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O'Callaghan v. Alaska (7/5/96), 920 P 2d 1387
Notice: This opinion is subject to correction before publication in
the Pacific Reporter. Readers are requested to bring errors to the
attention of the Clerk of the Appellate Courts, 303 K Street,
Anchorage, Alaska 99501, phone (907) 264-0607, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
MIKE O'CALLAGHAN, )
) Supreme Court No. S-6181
) Superior Court No.
v. ) 3AN-92-8553 CI
STATE OF ALASKA, WALTER J. ) O P I N I O N
HICKEL, an individual, JACK )
COGHILL, an individual, and )
JIM CAMPBELL, an individual, )
Appellees. ) [No. 4368 - July 5, 1996]
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Dana Fabe, Judge.
Appearances: Michael O'Callaghan, pro se,
Anchorage. Marjorie L. Vandor, Assistant
Attorney General, Bruce M. Botelho, Attorney
General, Juneau, for Appellees State of
Alaska, Walter J. Hickel and Jack Coghill.
Kathleen A. Weeks, Law Offices of Kathleen A.
Weeks, Anchorage, for Appellee Jim Campbell.
Before: Rabinowitz, Matthews, Compton and
Eastaugh, Justices. [Moore, Chief Justice,
This appeal originated with events surrounding the 1990
state primary election. The facts were described by this court in
Mike O'Callaghan's first appeal, O'Callaghan v. State, 826 P.2d
1132 (Alaska), cert. denied, 506 U.S. 860 (1992). We summarize
them briefly here.
In the 1990 state primary election, Jack Coghill won the
Republican Party's nomination for lieutenant governor.
O'Callaghan, 826 P.2d at 1133. The Republican Party ticket was
therefore Coghill and Arliss Sturgulewski, the Republican Party's
candidate for governor. John Lindauer and Jerry Ward had won the
Alaska Independence Party's (AIP's) primary election nominations
for governor and lieutenant governor respectively. On September
19, 1990, Lindauer and Ward withdrew as the AIP candidates. The
same day, which was before the statutory forty-eight day deadline,
Coghill withdrew as the Republican Party candidate and joined
Walter Hickel to form the new ticket for the AIP. Id. The
Republican Party substituted Jim Campbell as the party candidate
for lieutenant governor.
On September 28, 1990, O'Callaghan filed a complaint
seeking a temporary restraining order prohibiting the director of
elections from printing Coghill's name on the general election
ballot as the AIP's lieutenant governor candidate. Id. After this
request was denied, Coghill's motion to intervene in the case was
granted. O'Callaghan then petitioned the court for a hearing on
the proper interpretation of AS 15.25.110, which governs the
practice of filling vacancies by party petition. The trial court
treated this as a motion for summary judgment and denied the
motion. The court granted the cross-motion filed by Coghill and
the State, finding that AS 15.25.110 did not prevent Coghill from
appearing on the ballot. Id. O'Callaghan appealed. We affirmed
the grant of summary judgment and declined to review other
arguments made by O'Callaghan not raised below. Id. at 1133 n.1,
On November 23, 1992, O'Callaghan filed this complaint in
the superior court against the State, Hickel, Coghill and Campbell
claiming: (1) Hickel and Coghill failed to pay the required filing
fee; (2) Hickel and Coghill were not members of the AIP and were
not nominated by the Central Party Committee of the AIP; (3) Hickel
and Coghill maintained throughout the campaign that they were
Republicans; (4) Hickel and Coghill altered their Declaration of
Candidacy forms, constituting forgery; (5) Coghill's voter
registration form changing his party membership is not valid and
Coghill was nominated as the AIP candidate while still a Republi-
can; and (6) Campbell submitted his Declaration of Candidacy two
days late. O'Callaghan requested that the election be declared
void and a new election be held. He also requested damages of
On January 21, 1993, Campbell moved for judgment on the
pleadings or, alternatively, for summary judgment. O'Callaghan did
not file an opposition at this time, and Campbell's motion was
granted. Campbell then moved for actual attorney's fees of $1,210.
Over opposition grounded in part on O'Callaghan's alleged status as
a public interest litigant, Campbell was awarded fees of $360. The
court found that O'Callaghan was not a public interest litigant
"since he asked for $500,000 in damages." The State, Hickel and
Coghill subsequently moved for summary judgment. This motion was
granted. A final judgment was entered from which O'Callaghan has
The appellees argue that this appeal is moot. We agree.
This court has stated that it will "refrain from deciding questions
'where the facts have rendered the legal issues moot.'" Hayes v.
Charney, 693 P.2d 831, 834 (Alaska 1985), quoted in Municipality of
Anchorage v. Anchorage Daily News, 794 P.2d 584, 588 (Alaska 1990).
"A case is moot if the party bringing the action would not be
entitled to any relief even if they prevail." Maynard v. State
Farm Mut. Auto. Ins. Co., 902 P.2d 1328, 1329 n.2 (Alaska 1995)
(citing Kleven v. Yukon-Koyukuk Sch. Dist., 853 P.2d 518, 523 & n.8
In his complaint before the superior court in this case,
O'Callaghan requested as relief that this court "void the 1990
Governor's election and direct the State of Alaska to hold an
election with only qualified candidates on the ballot and award the
plaintiff $500,000 in damages." The issues in this second case
have been rendered moot by the fact that the terms in office of
Walter Hickel and Jack Coghill have ended. As for Campbell, the
case was moot when it was filed, for he was not elected in the 1990
general election. Therefore, no possible relief may be given even
if O'Callaghan were to prevail in this case. To void the 1990
Governor's election would have no effect in that those currently in
office were not chosen in that election.
Because O'Callaghan also seeks damages, his claim is only
moot if the damage claim is meritless. No arguably valid legal
theory justifying a damage award has been presented either to the
superior court or to this court. This aspect of O'Callaghan's
claims is not only meritless, but frivolous. Thus, the request for
damages must fail as a matter of law. See Petersen v. Mutual Life
Ins. Co., 803 P.2d 406, 411 n.8 (Alaska 1990); State v. O'Neill
Investigations, Inc., 609 P.2d 520, 528 (Alaska 1980).
This court has recognized a public interest exception to
the mootness doctrine. However, that exception does not apply
here. The exception uses three criteria for determining
(1) whether the disputed issues are capable of
repetition, (2) whether the mootness doctrine,
if applied, may repeatedly circumvent review
of the issues and, (3) whether the issues
presented are so important to the public
interest as to justify overriding the mootness
Peloza v. Freas, 871 P.2d 687, 688 (Alaska 1994). In this case,
the disputed issues are not likely to be repeated, and if they are
repeated, a timely election challenge would be possible.
Therefore, the public interest exception to the mootness doctrine
does not apply and the appeal is moot.
One of the superior court's bases for granting
defendant's summary judgment was res judicata. The superior court
found that the
[p]laintiff in this case certainly could have
brought all of the present claims against
defendants in his original action of September
1990. All of the present claims arose from
the same transaction as the original claim --
the allegedly illegal candidacy of defendants
Coghill and Hickel.
This court has explained its position on res judicata in DeNardo v.
Under the doctrine of res judicata, a
judgment on the merits of the controversy bars
subsequent actions between the same parties
upon the same claim. The doctrine implements
"the generally recognized public policy that
there must be some end to litigation and that
when one appears in court to present his case,
is fully heard, and the contested issue is
decided against him, he may not later renew
the litigation in another court." It is
settled that res judicata precludes re-
litigation by the same parties, not only of
claims raised in the first proceeding, but
also of those relevant claims that could have
been raised. The claims extinguished by the
first judgment include "all rights of the
plaintiff to remedies against the defendant
with respect to all or any part of the trans-
action . . . out of which the action arose,"a
mere change in the legal theory asserted as a
ground for recovery will not avoid the preclu-
sive effect of the judgment.
740 P.2d 453, 455-56 (Alaska), cert. denied, 484 U.S. 919 (1987)
(citations omitted), quoted in Calhoun v. State, Dep't of Transp.
and Pub. Facilities, 857 P.2d 1191, 1193 (Alaska 1993).
The 1990 suit included the State and Jack Coghill as
defendants; they are also defendants in this case. O'Callaghan,
826 P.2d 1132. The claim in the first case was whether "AS
15.25.110 prohibits a person's name from appearing on the general
election ballot when that person withdraws as a candidate for one
political party to accept another party's nominating petition."
Id. at 1133. While this suit involves other issues as well, res
judicata is not limited to preventing claims brought in one
proceeding from being brought again. The doctrine also encompasses
other "claims that could have been raised"in the first proceeding,
arising from the same transaction "out of which the action arose."
DeNardo, 740 P.2d at 456. In this case, the claims brought in the
first case and the claims brought in this case both arose out of
the events surrounding the 1990 gubernatorial election. O'Callag-
han, 826 P.2d at 1133. Thus, as to the claims against the State
and Coghill, the doctrine of res judicata prohibits O'Callaghan
from relitigating issues that could have been brought in the 1990
O'Callaghan argues that because he qualifies as a public
interest litigant, it was error for the superior court to award
attorney's fees against him. Here the trial court found that
O'Callaghan was not a public interest litigant because he had
requested $500,000 in damages.
This court reviews trial court determinations of public
interest litigant status under an abuse of discretion standard.
Spenard Action Comm. v. Lot 3, Block 1, Evergreen Subdivision, 902
P.2d 766, 781 (Alaska 1995).
In previous cases we have articulated four factors in
determining public interest litigant status:
(1) Is the case designed to effectuate
strong public policies?
(2) If the plaintiff succeeds will
numerous people receive benefits from the
(3) Can only a private party have been
expected to bring the suit?
(4) Would the purported public interest
litigant have sufficient economic incentive to
file suit even if the action involved only
narrow issues lacking general importance?
Anchorage Daily News v. Anchorage Sch. Dist., 803 P.2d 402, 404
(Alaska 1990); see also Citizens for the Preservation of the Kenai
River, Inc. v Sheffield, 758 P.2d 624, 626 (Alaska 1988). Focusing
on the fourth factor, sufficient economic incentive to file suit,
we have held that the mere fact that a plaintiff seeks damages does
not conclusively preclude a determination of public interest
litigant status. Eyak Traditional Elders Council v. Sherstone,
Inc., 904 P.2d 420, 426 (Alaska 1995). "Instead, the court should
also look to the facts of the case to determine the litigant's
primary motivation for filing the suit." Id.
In the present case, the court seems to have treated the
inclusion of the damage claim as conclusively precluding public
interest litigant status for O'Callaghan. There is no indication
that the court examined O'Callaghan's primary motivation for
instituting the litigation. However, we need not remand to the
trial court for an exploration of O'Callaghan's primary motivation
because, as to Campbell, the litigation was frivolous as a matter
of law. Campbell was sued more than two years after he had run and
lost in the 1990 general election as the Republican nominee for
lieutenant governor. As of the time of filing the suit Campbell
was a private citizen and there was no arguable legal basis for
including him in the lawsuit. Public interest litigants who file
or pursue frivolous litigation are not immunized from the
assessment of attorney's fees. See Thomas v. Croft, 614 P.2d 795,
798 (Alaska 1980) ("Plaintiffs who in good faith seek to vindicate
the strong public policy favoring fair and correctly conducted
elections should not be penalized by an assessment of attorney's
fees unless the suit is frivolous."), cited in Municipality of
Anchorage v. Citizens for Representative Governance, 880 P.2d 1058,
1063 n.5 (Alaska 1994). We thus affirm the award of attorney's
fees in favor of Campbell on the ground that the suit against him
was frivolous. (EN1)
For these reasons the judgment is AFFIRMED.
1. This court may affirm a judgment on grounds not employed by
the court which issued the judgment. Torrey v. Hamilton, 872 P.2d
186, 188 (Alaska 1994); Ransom v. Haner, 362 P.2d 282, 285 (Alaska