You can
search the entire site.
or go to the recent opinions, or the chronological or subject indices.
Alaska Wildlife Alliance v. State (7/25/2003) sp-5716
Alaska Wildlife Alliance v. State (7/25/2003) sp-5716
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) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
ALASKA WILDLIFE ALLIANCE, )
EASTERN KENAI PENINSULA ) Supreme Court No. S-10520
ENVIRONMENTAL ACTION )
ASSOCIATION, FRIENDS OF ) Superior Court No. 3AN-01-07062 CI
McNEIL RIVER, and KACHEMAK )
BAY CONSERVATION SOCIETY, ) O P I N I O N
)
Appellants, ) [No. 5716 - July 25, 2003]
)
v. )
)
STATE OF ALASKA, and TONY )
KNOWLES, GOVERNOR of )
ALASKA, )
)
Appellees. )
________________________________)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, John Reese, Judge.
Appearances: Thomas E. Meacham, Anchorage,
for Appellants. Sabrina E. L. Fernandez and
Kevin M. Saxby, Assistant Attorneys General,
Anchorage, and Bruce M. Botelho, Attorney
General, Juneau, for Appellees.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
EASTAUGH, Justice.
I. INTRODUCTION
The day after the superior court dismissed a complaint
filed by public interest litigants, a second, substantially
identical, complaint was filed. The superior court dismissed the
second complaint on res judicata grounds, and awarded attorney's
fees against the public interest litigants because it found the
complaint was frivolous and brought in bad faith. We affirm the
res judicata dismissal of the second complaint because we hold
that the dismissal of the first complaint under Alaska Civil Rule
12(b)(6) was a decision on the merits. But we reverse the
attorney's fees award because it was reasonably debatable whether
res judicata barred the second complaint; it was therefore error
to conclude that the second complaint was frivolous and filed in
bad faith.
II. FACTS AND PROCEEDINGS
The Alaska Wildlife Alliance and several other
environmental conservation groups (collectively, the alliance)
first sued the Alaska Board of Game, the Commissioner of Fish and
Game, and the Governor of Alaska in November 2000 to remedy the
allegedly unlawful composition of the Board of Game's membership.1
The Board of Game oversees the conservation and
development of Alaska's wild game resources. Its membership is
governed by AS 16.05.221(b).2 The governor appoints the seven
board members subject to legislative confirmation. The only
statutory qualifications for appointment to the board are an
"interest in public affairs, good judgment, knowledge, and
ability in the field of action of the board."3 The statute also
encourages the governor to consider "diversity of interest and
points of view."4
In the November 2000 lawsuit (AWA I), the alliance
claimed that the composition of the board violated the Alaska
Constitution and AS 16.05.221(b) because all seven board members
were hunters, trappers, hunting guides, or persons representing
those interests.
The AWA I complaint asserted five causes of action.
The first count alleged that the composition of the board
violated what the alliance called the "requirement" in AS
16.05.221(b) of a diversity of interest and points of view. The
second count alleged that the composition of the board violated
the common use section of the Alaska Constitution.5 The third
count asserted that the composition of the board violated the
state's "trust duty and . . . fiduciary obligation" under the
common use section. The fourth count alleged that the failure to
include members who were not hunters, hunting guides, or trappers
violated the uniform application section of the Alaska
Constitution.6 The fifth count asserted that the common use
section required membership by non-hunters proportionate to
Alaska's non-hunter population, and that because no more than
twenty-five percent of Alaskans were licensed hunters, hunting
guides, or trappers, those groups combined should have no more
than two of the seven seats on the board.
The alliance sought a judgment declaring that the
board's composition violated AS 16.05.221(b) and the common use
and uniform application sections of the Alaska Constitution. It
also asked the superior court to transfer the board's regulatory
authority over wildlife to the Alaska Department of Fish and Game
until the board's membership met statutory and constitutional
standards. Finally, the alliance asked the court to order that
the board's membership be reconstituted via new gubernatorial
appointments and legislative confirmations.
The state moved to dismiss the complaint under Alaska
Civil Rule 12(b)(6) for failure to state a claim upon which
relief may be granted.7 The state argued: that the complaint
presented a non-justiciable political question; that the
complaint did not implicate the equal access and uniform
application sections of the Alaska Constitution; that the
complaint should be dismissed under principles of statutory
interpretation; and that the issues raised by the alliance were
based on false premises. On May 7, 2001 Superior Court Judge
Peter A. Michalski granted the state's motion and dismissed the
AWA I complaint under Rule 12(b)(6).
The next day counsel for the alliance filed a new
complaint: Edgar P. Bailey v. State of Alaska and Tony Knowles,
Governor (AWA II). Although the complaint was filed on May 8,
2001, it was not served on the state until July 9, 2001. Between
those dates, the complaint was amended to substitute for Bailey
the same plaintiffs who had brought AWA I. The amended
complaint in AWA II alleged that the membership of the board
violated AS 16.05.221(b), the common use and uniform application
sections of the Alaska Constitution, and the state's trust duty
and fiduciary obligation under the Alaska Constitution. The
alliance sought declaratory relief but did not ask the superior
court to reassign regulatory authority or to order the board
reconstituted.
Meanwhile, on June 1, 2001, after AWA II was filed but
before it was served, the superior court issued a written final
judgment dismissing AWA I. Neither the oral ruling nor the
written order included findings of fact, conclusions of law, or
any other explanation of the court's reasoning.
On June 26, 2001 the superior court in AWA I denied the
state's motion for attorney's fees. The court ruled that the
plaintiffs were public interest litigants and that the suit was
not frivolous. The court also stated that the procedure for
appointing and confirming board members "is a political process."
The state then moved to dismiss AWA II under Rule
12(b)(6). The state advanced the same arguments it had made in
its motion to dismiss the complaint in AWA I, but added that the
AWA II complaint should also be dismissed on res judicata
grounds.
Superior Court Judge John Reese granted the state's
motion to dismiss AWA II on res judicata grounds because he held
that the AWA I dismissal was on the merits. The court then
awarded the state $4,000 in attorney's fees against the
plaintiffs because it found that the complaint in AWA II had been
filed in bad faith and was frivolous.
The alliance appeals both the dismissal of AWA II and
the award of attorney's fees in AWA II.
III. DISCUSSION
A. Standard of Review
Whether res judicata prevents a plaintiff from bringing
an action presents a question of law that we review de novo.8
Complaints are to be liberally construed so that
motions to dismiss are rarely granted.9 To survive a Rule
12(b)(6) motion, a complaint only needs to show "a set of facts
consistent with and appropriate to some enforceable cause of
action."10
We review an award of attorney's fees for abuse of
discretion.11 An abuse of discretion exists if the award was
"arbitrary, capricious, manifestly unreasonable, or [if it]
stemmed from an improper motive."12
B. Res Judicata Bars the Alliance's Complaint.
Res judicata bars a subsequent action when a judgment
in a prior action was "(1) a final judgment on the merits, (2)
from a court of competent jurisdiction, and (3) in a dispute
between the same parties (or their privies) about the same cause
of action."13
The alliance argues that under Alaska Civil Rules 41(b)
and 52(a), res judicata cannot apply because the superior court
in AWA I did not issue a "reasoned decision." The alliance also
claims that the dismissal of AWA I was based on jurisdictional
grounds rather than on the merits. Finally, it claims that AWA I
and AWA II involved different defendants and claims for relief.
The state argues that the superior court dismissed AWA
I on the merits under Rule 41(b) and that res judicata therefore
bars the AWA II complaint. The state also argues that the two
complaints involved the same parties and causes of action.
1. The absence of findings of fact and
conclusions of law does not prevent the AWA I
dismissal from having res judicata effect.
The superior court in AWA I did not issue findings of
fact or conclusions of law when it dismissed the complaint. The
alliance argues that res judicata should not bar AWA II because
there was no "reasoned decision" in AWA I. The alliance uses the
"reasoned decision" shorthand to refer to an opinion containing
findings of fact and conclusions of law. For simplicity we
accept the alliance's terminology in our discussion, but in doing
so, we do not intend to suggest that Judge Michalski's decision
in AWA I was not "reasoned," despite its lack of findings of fact
or conclusions of law.
The alliance bases its argument on its reading of the
interplay between Alaska Civil Rules 52(a) and 41(b). Rule 52(a)
states in part:
If an opinion or memorandum of decision is
filed, it will be sufficient if the findings
of fact and conclusions of law appear
therein. Findings of fact and conclusions of
law are unnecessary on decisions of motions
under Rules 12 or 56 or any other motion
except as provided in Rule 41(b).
Rule 41(b) states in part:
If the court renders judgment on the merits
against the plaintiff, the court shall make
findings as provided in Rule 52(a). Unless
the court in its order for dismissal
otherwise specifies, a dismissal . . . other
than a dismissal for lack of jurisdiction,
for improper venue, or for failure to join a
party . . . operates as an adjudication upon
the merits.
The alliance argues that for a Rule 12 dismissal to be
a judgment on the merits under Rule 41(b), the court must issue
findings of fact and conclusions of law under Rule 52(a).
We do not read Rules 41(b) and 52(a) to require a court
to issue findings of fact or conclusions of law for a dismissal
decision to be on the merits. Rule 52(a) states that findings of
fact and conclusions of law are not necessary for decisions made
under Rule 12, except as provided in Rule 41(b). Rule 41(b)
states that if a court renders a judgment on the merits, it shall
make findings as required by Rule 52(a). But Rule 52(a) does not
require findings of fact for Rule 12 dismissals. Furthermore,
Rule 41(b) states that unless the court otherwise specifies or
the decision is based on a lack of jurisdiction, a dismissal
operates as an adjudication on the merits. Here, the court did
not "otherwise specify," and, for reasons we will discuss, the
dismissal was not based on a lack of jurisdiction. The dismissal
of AWA I was an adjudication on the merits, notwithstanding the
absence of findings of fact and conclusions of law. The absence
of findings of fact and conclusions of law does not prevent the
application of res judicata to the AWA I dismissal.
The alliance invokes Usibelli Coal Mine, Inc. v. State,
Department of Natural Resources in support of its argument that
res judicata cannot apply in the absence of a "reasoned
decision."14 We held in Usibelli that res judicata did not apply
if a prior decision did not address or consider one of the
plaintiff's arguments.15 We relied on the Restatement (Second) of
Judgments and identified several indicia that a prior judgment
was final: "that the parties were fully heard, that the court
supported its decision with a reasoned opinion, [and] that the
decision was subject to appeal or was in fact reviewed on
appeal."16 The alliance emphasizes the "reasoned opinion" factor.
But Usibelli did not say that all the factors had to be present
for res judicata to apply. Moreover, Usibelli listed those
factors to determine whether a decision is final, not whether it
was on the merits.
The alliance also looks to federal case law. The
federal courts typically require trial courts to issue reasoned
decisions explaining their rulings. The alliance points to
Couveau v. American Airlines, Inc., in which the plaintiff
appealed a grant of summary judgment for the defendant.17 Res
judicata was not an issue. The defendant moved for summary
judgment on several grounds, and the trial court granted summary
judgment without explaining its reasoning or indicating which of
the defendant's arguments it found persuasive.18 The United
States Court of Appeals for the Ninth Circuit explained that
"when multiple grounds are presented by the movant and the
reasons for the district court's decision are not otherwise clear
from the record, [we] may vacate a summary judgment and remand
for a statement of reasons."19 But the court in Couveau did not
say that a reasoned decision must be issued in order for a
decision to be treated as being on the merits. Moreover, a
review of the entire record here permits us to ascertain the
basis for the superior court's dismissal in AWA I.
In most cases involving dismissal or summary judgment,
the grounds for the superior court's ruling can be discerned from
the parties' motion papers. As we noted above, "findings of fact
and conclusions of law are unnecessary on decisions of motions
under Rules 12 or 56."20 We agree with the implied reasoning of
the Ninth Circuit in Couveau that a trial court addressing
multiple theories for dismissal or summary judgment should always
identify the grounds for its ruling with sufficient clarity to
permit meaningful appellate review. But here, even though the
AWA I dismissal order did not explain the reason for dismissal,
we can infer the court's reasons for the AWA I dismissal from its
subsequent opinion denying the state's attorney's fees motion.
We do not want to discourage superior courts from explaining
their reasons for granting relief under Rule 12(b)(6). But in
this case, Judge Michalski's attorney's fees order in AWA I
permits us, in considering whether res judicata barred AWA II, to
determine why the superior court dismissed AWA I.
2. A ruling on justiciability is not a
ruling on jurisdiction.
Alaska Civil Rule 41(b) states that "[u]nless the
court in its order for dismissal otherwise specifies, a dismissal
. . . other than a dismissal for lack of jurisdiction . . .
operates as an adjudication on the merits."21 The court's order
in AWA I did not specify that it was not a dismissal on the
merits. The alliance argues that the court dismissed AWA I for
raising a political question, and that this basis for dismissal
is jurisdictional.
The alliance correctly notes that we have taken a broad
view of the meaning of "jurisdiction" in context of Rule 41(b).
In Blake v. Gilbert we interpreted jurisdiction "to include
preconditions and other initial bars to suit, where the defendant
has not yet incurred any significant prejudice."22
A claim implicates the political question doctrine when
there is "(1) a textually demonstrable commitment of the issue to
a coordinate political department; (2) the impossibility of a
court's undertaking an independent resolution of the case without
expressing lack of respect due coordinate branches of government;
and (3) the need for adherence to a political decision already
made."23 We also consider whether there are any "judicially
discoverable and manageable standards for resolving the issue."24
The alliance argues that the political question
doctrine is a jurisdictional matter because "[i]t cares not about
the substantive merits of a lawsuit." But in Baker v. Carr the
United States Supreme Court classified the political question
doctrine as an issue of justiciability.25 The Court then
distinguished jurisdiction from justiciability:
In the instance of nonjusticiability,
consideration of the cause is not wholly and
immediately foreclosed; rather, the Court's
inquiry necessarily proceeds to the point of
deciding whether the duty asserted can be
judicially identified and its breach
judicially determined, and whether protection
for the right asserted can be judicially
molded. In the instance of lack of
jurisdiction the cause either does not "arise
under" the Federal Constitution, laws or
treaties (or fall within one of the other
enumerated categories of Art. III, 2), or
is not a "case or controversy" within the
meaning of that section; or the cause is not
one described by any jurisdictional
statute.[26]
We agree that the political question doctrine is more
than jurisdictional and is instead a substantive basis for a
dismissal. Although we give a broad meaning to "jurisdiction"
for purposes of Rule 41(b) involuntary dismissals, that view is
designed to allow plaintiffs to remedy defects that prevent a
court from reaching the merits of a complaint.27 But when the
merits raise a political question, the defect is not curable.
The superior court's dismissal of AWA I was not a dismissal for
lack of jurisdiction. Under Rule 41(b), the dismissal was an
adjudication on the merits.
3. AWA I and AWA II involve the same
parties and claims.
Res judicata applies when two cases involve the same
parties or their privies and the same causes of action.28 The
alliance argues that the differences between the AWA I and AWA II
defendants and claims for relief were sufficient to avoid res
judicata.
The alliance first asserts that the parties are
different because it sued the Board of Game and the Commissioner
of Fish and Game in AWA I but it did not sue those defendants in
AWA II. But in AWA II the alliance simply replaced lesser state
entities with the State of Alaska. And in both cases the
alliance sued the Governor of Alaska. Res judicata is not
defeated by substituting one state entity for another when the
claim is based on the same conduct, and when the same defense of
non-justiciability applies regardless of which specific state
entity is named as a defendant.
The alliance next argues that the causes of action in
the two cases differed considerably because the alliance dropped
its request that the court transfer the board's regulatory
authority to the Commissioner of Fish and Game until the
defendants re-constituted the board's membership. But the court
in AWA I dismissed all of the alliance's causes of action and
claims for relief, not merely the request for injunctive relief.
The remaining claims in AWA II are the same as in AWA I.
Deleting one request for relief did not alter the underlying
causes of action.
C. It Was Error To Award Attorney's Fees Against the
Alliance.
In AWA II the superior court awarded $4,000 as partial
attorney's fees under Alaska Civil Rule 82 against the alliance
plaintiffs because it determined that the second complaint was
frivolous and brought in bad faith. The alliance argues that it
was an abuse of discretion to award fees because the complaint
was neither frivolous nor brought in bad faith. We agree.
We have held that under Rule 82, "it is an abuse of
discretion to award attorney's fees against a losing party who
has in good faith raised a question of genuine public interest
before the courts."29 But fees may be awarded against a public
interest plaintiff if the claim is frivolous or brought in bad
faith.30
The order awarding fees identifies three reasons for
deciding that the complaint in AWA II was frivolous and brought
in bad faith. First, it states that the action was previously
dismissed with prejudice and that the alliance was barred from
refiling the complaint under res judicata. Second, it finds that
the complaint "was subject to a number of obvious affirmative
defenses which [the alliance] failed to address or present any
good faith argument for overcoming." Finally, it states that the
alliance "made no effort to explain or justify [its] attempt to
collaterally attack the ruling of the prior court on this matter
and [it] presented no good faith authority or argument for
overcoming the application of res judicata in this matter."
We are not persuaded that the filing of AWA II
demonstrates bad faith. It was reasonably debatable whether the
first complaint had been dismissed on the merits. Although we
held above that the alliance's second complaint was barred by res
judicata, this result was not so self-evident that the filing of
AWA II indicates bad faith.
We are also not persuaded that the alliance failed to
address several obvious affirmative defenses in its response to
the motion to dismiss AWA II. The state argues that the alliance
"conceded or did not really address" five affirmative defenses
that the state raised in its motion to dismiss AWA II, and that
therefore the alliance's claims were frivolous and brought in bad
faith. But the alliance's opposition to the motion to dismiss
did respond, at least in some way, to each of the affirmative
defense arguments. Its responses may have been less than
exhaustive, but they were sufficient to preclude a finding of bad
faith.
Finally, we are unpersuaded by the order's statement
that the alliance "made no effort to explain or justify [its]
attempt to collaterally attack the ruling of the prior court on
this matter and [it] presented no good faith authority or
argument for overcoming the application of res judicata in this
matter." The question whether res judicata attached to the
dismissal in AWA I was reasonably debatable, even though we have
ruled for the state on that issue. Moreover, the alliance was
not attempting to collaterally attack the dismissal of AWA I.
Instead, it asserted - in good faith but ultimately
unpersuasively - that the parties and claims in AWA II were
different from AWA I, and that AWA I was not dismissed on the
merits.
It is true that the AWA II complaint was filed the day
after the AWA I complaint was dismissed, and that the alliance
did not appeal the AWA I dismissal or ask the superior court to
explain its reasoning. But the course the alliance chose to
follow does not demonstrate bad faith or that the claim was
frivolous. Just because a complaint is found to raise a
political question does not necessarily mean it was frivolous.
That a complaint is deemed barred by res judicata does not
necessarily mean that it was filed in bad faith. We hold that it
was error to award the state attorney's fees against these public
interest litigants. This result moots the alliance's claim that
it was error to deny its motion for reconsideration of the
attorney's fees award.
IV. CONCLUSION
We therefore AFFIRM the order of the superior court
granting the state's motion to dismiss on res judicata grounds,
but VACATE the order awarding attorney's fees and REMAND for
correction of the judgment.
_______________________________
1 Alaska Wildlife Alliance v. Alaska Bd. of Game, No. 3AN-00-
12369 CI (Alaska Super., June 1, 2001).
2 AS 16.05.221(b) provides in part:
For purposes of the conservation and
development of the game resources of the
state, there is created a Board of Game
composed of seven members appointed by the
governor, subject to confirmation by a
majority of the members of the legislature in
joint session. The governor shall appoint
each member on the basis of interest in
public affairs, good judgment, knowledge, and
ability in the field of action of the board,
and with a view to providing diversity of
interest and points of view in the
membership. The appointed members shall be
residents of the state and shall be appointed
without regard to political affiliation or
geographical location of residence.
3 Id.
4 Id.
5 "Common Use. Wherever occurring in their natural state,
fish, wildlife, and waters are reserved to the people for common
use." Alaska Const. art. VIII, 3.
6 "Uniform Application. Laws and regulations governing the
use or disposal of natural resources shall apply equally to all
persons similarly situated with reference to the subject matter
and purpose to be served by the law or regulation." Alaska
Const. art. VIII, 17.
7 Alaska Civil Rule 12(b)(6) provides: "[T]he following
defenses may at the option of the pleader be made by motion: . .
. (6) failure to state a claim upon which relief can be granted."
8 Dixon v. Pouncy, 979 P.2d 520, 523 (Alaska 1999); Renwick v.
State, Bd. of Marine Pilots, 971 P.2d 631, 633 (Alaska 1999).
9 Odom v. Fairbanks Mem'l Hosp., 999 P.2d 123, 128 (Alaska
2000).
10 Id.
11 Tenala, Ltd. v. Fowler, 993 P.2d 447, 449 (Alaska 1999).
12 Id.
13 Plumber v. Univ. of Alaska Anchorage, 936 P.2d 163, 166
(Alaska 1997).
14 921 P.2d 1134, 1142 (Alaska 1996).
15 Id.
16 Id. (quoting Restatement (Second) of Judgments 13 cmt. g
(1982)).
17 218 F.3d 1078 (9th Cir. 2000).
18 Id. at 1081.
19 Id.
20 Alaska R. Civ. P. 52(a); see also Christensen v. NCH Corp.,
956 P.2d 468, 477 (Alaska 1998).
21 Alaska R. Civ. P. 41(b).
22 702 P.2d 631, 636-38 (Alaska 1985).
23 Malone v. Meekins, 650 P.2d 351, 357 (Alaska 1982).
24 State, Dep't of Natural Res. v. Tongass Conservation Soc'y,
931 P.2d 1016, 1019 (Alaska 1997) (quoting Baker v. Carr, 369
U.S. 186, 217 (1962)).
25 369 U.S. 186, 198, 208-37 (1962).
26 Id. at 198.
27 See, e.g., Blake v. Gilbert, 702 P.2d 631, 637-38 (Alaska
1985) (ruling dismissal of corporation's complaint for lack of
capacity to sue based on failure to pay taxes and file annual
report was jurisdictional and not bar to subsequent suit by
shareholder in privity with corporation bringing same cause of
action).
28 Id. at 634-35.
29 Eyak Traditional Elders Council v. Sherstone, Inc., 904 P.2d
420, 422 (Alaska 1995).
30 Cabana v. Kenai Peninsula Borough, 21 P.3d 833, 837 (Alaska
2001) ("frivolous claims preclude public interest litigant
status"); Municipality of Anchorage v. Citizens for
Representative Governance, 880 P.2d 1058, 1062 (Alaska 1994)
("Public interest litigants must file and pursue their suit in
good faith.").
