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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Halloran v. State (06/24/2005) sp-5912

Halloran v. State (06/24/2005) sp-5912

     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


SEAN HALLORAN,           	)
                              		)    Supreme Court No. S-11358
          Appellant,               	)
                              		)     Superior  Court  No.  3AN-02-10420 CI
     v.                       		)
                              		)    O P I N I O N
STATE OF ALASKA, DIVISION     )
OF ELECTIONS,                 	)    [No. 5912 - June 24, 2005]
                              		)
          Appellee.                	)
                              		)

                              

          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, William F. Morse, Judge.

          Appearances:  Michael Jungreis, Hartig Rhodes
          Hoge & Lekisch, PC, Anchorage, for Appellant.
          Sarah  J.  Felix, Assistant Attorney General,
          and   Gregg  D.  Renkes,  Attorney   General,
          Juneau, for Appellee.

          Before:   Bryner,  Chief  Justice,  Matthews,
          Eastaugh, Fabe, and Carpeneti, Justices.

          EASTAUGH, Justice.

I.   INTRODUCTION

          A  voter  challenged the constitutionality of  election

procedures for voting on an initiative proposition in the  August

2002   primary   election.   The  voter  obtained   a   temporary

restraining  order  that  allowed him  to  cast  a  vote  on  the

proposition in the primary without affiliating with  one  of  the

six   political   parties   offering  ballots,   but   his   main

constitutional  challenge was later mooted  by  legislation  that

revamped the procedure for primary elections.  The superior court

declined  to award attorneys fees to the voter because  it  found

that  neither  party  had prevailed under the catalyst  approach.

Although  it was not error for the superior court to  reject  the

voters  fee  request under the catalyst approach, we  remand  for

consideration  of  his  alternative  theory  that  entry  of  the

temporary restraining order made him the prevailing party.

II.  FACTS AND PROCEEDINGS

          The August 27, 2002 primary election was the first held

after the Alaska legislature enacted chapter 103, SLA 2001.  That

statute, codified as AS 15.25.010, changed the primary format  in

Alaska  from a blanket primary election  in which one ballot  was

provided  for  all  parties and candidates  to a  closed  primary

election   in which separate party primary ballots were  provided

for  each  recognized political party. Each partys  2002  primary

ballot  set  out: (1) the candidates nominated to represent  that

party  in  the  general  election and  (2)  a  ballot  initiative

proposition known as 99PRVT.  That initiative proposition, titled

an  Initiative Implementing Alternative Voting Electoral  System,

was  non-partisan and was identical on each partys  ballot.   The

proposition  was on the 2002 primary ballot because AS  15.45.190

requires  an  initiative proposition to be placed  on  the  first

statewide  general, special, or primary election conducted  after

the  measure  is  eligible for voting.  Only by  using  a  ballot

provided by one of the six parties could a voter cast a  vote  on

the initiative proposition in the 2002 primary.

          Sean  Halloran  went to his polling  place  on  primary

election day and was told that he had to choose a political party

ballot  in  order  to  vote.  He refused  to  publicly  associate

himself  with  any  of the political parties  and  was  therefore

denied the opportunity to vote, even on 99PRVT.

          Later  that day Halloran filed a three-count  complaint

in  superior  court.   His  complaint  alleged  that  the  Alaska

Division  of  Elections  violated his right  to  vote,  right  of

privacy,  and  right  of free association  by  requiring  him  to

affiliate with a political party before casting a vote on a  non-

partisan  ballot initiative proposition.  He asked the  court  to

grant  orders:  (1) directing the Division of Elections to permit

him to vote on 99PRVT without affiliating with a political party;

(2)  declaring the primary election system unconstitutional;  and

(3)  permanently enjoining the division from requiring voters  to

affiliate with a political party prior to voting on matters other

than the selection by political parties of candidates.

          Following  a  contested  hearing,  the  superior  court

issued  a  temporary restraining order (TRO) that instructed  the

division to allow Halloran to randomly choose one of the  parties

ballots   and  cast  his  vote  on  the  initiative  proposition.

Halloran  took  this  order to his polling  place  and  voted  in

accordance with its terms.

          On   September  17,  2002  Halloran  filed  an  amended

complaint alleging that the state intended to use the same closed

ballot  voting  system  for future primary  elections  (including

initiative  propositions) and that use of  this  mechanism  would

continue  to  infringe upon his rights.  The state  answered  and

moved  for  summary judgment based on the statute of limitations.

Halloran  opposed the states motion and cross-moved  for  summary

judgment.

          While  these  motions  were  pending,  the  legislature

passed  House  Bill  (H.B.)  46.1  House  Bill  46  requires  the

Division of Elections to issue a separate primary election ballot

that  contains only the ballot titles and initiative propositions

being voted on in the primary election.2  This ballot is separate

from  the  political party ballots and can be used by anyone  who

does not wish to affiliate with a political party.

          After  the  legislature passed H.B.  46,  the  superior

court  held  the  summary judgment motions in  abeyance  to  give

Governor  Frank  Murkowski an opportunity  to  act  on  H.B.  46.

Governor Murkowski signed the bill into law and it became chapter

          96, SLA 2003.  The superior court then declared Hallorans case

moot  but reserved the issue of attorneys fees.  Both sides moved

for  attorneys fees; both sides asserted prevailing party status.

Halloran  argued  that  the  superior  court  should  employ  the

catalyst  theory to determine which party had prevailed and  that

he  had  achieved some of the benefit he sought  when  the  court

issued  the TRO allowing him to vote.  The state claimed that  it

had  prevailed because its goal was dismissal of the case,  which

was ultimately dismissed as moot.

          The  superior  court  entered an order  declaring  that

[n]either  Sean  Halloran, nor the State of Alaska,  Division  of

Elections is the prevailing party in this action.  Neither  shall

recover  attorneys fees, costs or interest.  The court  discussed

the  catalyst theory and determined that Halloran had not  proved

that his lawsuit motivated the legislatures enactment of H.B. 46.

The court refused to delve into the motivations behind passage of

H.B.  46,  stating that to do so would be an intrusion  upon  the

affairs of the legislative branch.  It found that Halloran sought

to   have  the  court  declare  the  primary  election  procedure

unconstitutional.   Reasoning that the  legislatures  passage  of

H.B.  46 did not establish that the preexisting election law  was

unconstitutional, the superior court held that Halloran  had  not

achieved the goal of his litigation.

          Halloran  appeals  the denial of his  motion  for  full

costs and attorneys fees.

III. DISCUSSION

     A.   Standard of Review

          We   review   the  superior  courts  determination   of

prevailing  party status for abuse of discretion.3   We  exercise

our  independent judgment in reviewing whether a trial court  has

applied  the appropriate legal standard in making its  prevailing

party determination.4

     B.   We  Have  Jurisdiction To Decide Whether  the  Superior
          Court  Erred in Failing To Grant Attorneys Fees to  Any
          Party.
          
          The  state first asserts that where there was no  award

of  attorneys fees that would be affected by appellate review, it

is  not clear that we have jurisdiction to hear the appeal.5  But

AS  22.05.010 grants parties such as Halloran an appeal  to  this

court  as a matter of right.6  This right is not affected by  the

fact that the superior court declined to award any attorneys fees7

or  that the merits of much of Hallorans case are moot.8  We have

jurisdiction  to  decide an appeal asserting  that  the  superior

court  erroneously denied the appellants motion for an  award  of

attorneys fees.

     C.   The  Catalyst Theory Does Not Apply to a Lawsuit Mooted
          by   Legislation  Absent  the  Clearest  Expression  of
          Legislative Intent.
          
          Halloran  argued in the superior court  and  argues  on

appeal  that  correctly applying the catalyst theory  requires  a

determination  that he is the prevailing party  for  purposes  of

awarding attorneys fees.

          We  have  stated  that  the catalyst  theory,  when  it

applies,  requires a party to show that a goal of the  litigation

was  achieved  by  succeeding  on  any  significant  issue  which

achieves  some of the benefit sought in bringing the suit.9   The

party must then show that its lawsuit was a substantial factor or

significant catalyst in the action that caused the case to become

moot.10 A plaintiff must show both a causal connection between the

filing  of  the  suit  and the defendants actions  and  that  the

defendants  conduct  was  required by law,  i.e.,  not  a  wholly

gratuitous response to an action that in itself was frivolous  or

groundless in order to succeed under the catalyst theory.11

          Halloran relies on DeSalvo v. Bryant, in which we  held

that the catalyst approach allows for awards of attorneys fees in

instances  where  a plaintiff prevails when his  or  her  lawsuit

brings about the relief requested in a manner other than a formal

judgment.12

          The  state argues that Halloran is reading DeSalvo  too

broadly.   We  agree.  In DeSalvo, the lawsuit was  mooted  by  a

settlement  procured  by  the parties  themselves  without  their

respective counsels knowledge in an attempt to thwart the payment

of counsels fees.13  We held that courts should not participate in

denying  [counsel] compensation as the result of the questionable

conduct  of  [their clients] in settling the . . . claims  behind

counsels back.14 Although the catalyst theory had been questioned

by  the  federal  courts, we held that it  could  be  applied  to

DeSalvos case.15

          In  the  course of denying costs and attorneys fees  to

both  sides,  the  superior  court held  that  Halloran  had  not

          adequately shown that he was the catalyst in this case becoming

moot and dismissed.  It further stated:

          He  has  not shown that his lawsuit motivated
          the  Alaska State Legislature to enact  House
          Bill  46.  Hallorans complaint sought to have
          the  existing  Alaska election  law  declared
          unconstitutional.   The  legislature   merely
          enacted  a  new law.  It did not  necessarily
          agree    that    the    old    scheme     was
          unconstitutional.   Hallorans  goal  was  not
          achieved by the litigation and it is  unclear
          that it would have been.
          
The court also stated:

          Delving   into  the  thought  processes   and
          motivations  of the Alaska State  Legislature
          is  not  in  the  [province] of  this  court.
          Deciding  whether Hallorans  lawsuit  or  his
          lobbying  efforts or public  outcry  prompted
          the  legislature to enact House Bill 46 is  a
          political question.3  Court involvement would
          result  in  an intrusion upon the affairs  of
          the  legislative branch.4 Therefore, a causal
          connection between Hallorans lawsuit and  the
          enactment  of  House Bill  46  has  not  been
          established.  Halloran is not entitled to  an
          award of attorneys fees and costs.
          
          
               3     State, DNR v. Tongass Conservation
          Soc.,  931  P.2d  1016,  1020  (Alaska  1997)
          (courts   should  not  attempt  to  determine
          whether  a lawsuit rather than, for  example,
          vigorous lobbying, or a collective perception
          of   good   public   policy,   prompted   the
          legislature [to act or] not to act).
          
               4    Id.
          
          We  agree  with the superior courts comments concerning

the  difficulty  of determining whether a pending lawsuit  caused

the  legislature to enact a particular law.  When a case  becomes

moot due to a legislative amendment, rarely if ever could a party

prove  that  its litigation conduct was a substantial  factor  or

significant  catalyst in the passage of the  legislation  because

that determination would require the court to delve into the mind

of   the  legislature.   We  have  held  that  ascertaining   the

legislatures  true  motive is a task which more  often  than  not

would  be  impossible  and  that  judicial  inquiries  into   the

legislatures  motives are to be avoided.16   Thus,  the  catalyst

theory should not be used to determine the prevailing party  when

a  case  is  mooted by a legislative enactment  absent  the  very

clearest  expression of legislative purpose.  In such a case,  it

is  not enough for a party to show that its lawsuit provided some

impetus  for the legislative change.17  Halloran has not referred

us  to any facts, and to nothing in the text of H.B. 46 or in its

legislative history, that would satisfy the rigorous standard  of

causation that applies in such a case.18  We therefore hold  that

the  superior  court  did not abuse its discretion  by  rejecting

Hallorans request for an  attorneys fees award under the catalyst

approach.

     D.   The  Prevailing Party Issue Should Be Decided  in  this
          Case  Under  Civil Rule 82 Without Using  the  Catalyst
          Theory.
          
          Halloran  also  argued in his superior court  attorneys

fees  motion  that whether his lawsuit caused the legislature  to

change  the  primary  election balloting  system  was  irrelevant

because  he  had achieved some of the benefit sought in  bringing

the  suit. He contended that he sought to vote on 99PRVT  without

associating with a political party and that he achieved that goal

when  the  superior  court  granted the  TRO  that  required  the

division  to allow him to choose a ballot at random and cast  his

vote  on the initiative proposition.  Although Halloran primarily

relied  on the catalyst theory, which we concluded in Part  III.C

does  not  apply  here, his argument in the superior  court  that

obtaining  the  TRO made him the prevailing party  justifies  our

consideration of this more traditional basis for awarding fees in

Alaska.19

          Alaska Civil Rule 82 provides that the prevailing party

in  a  civil case shall be awarded attorneys fees.  We have  long

held that the prevailing party is the party that succeeds on  the

main  issue  in  the case.20  But we do not require  a  party  to

succeed  on  all issues in order to prevail.21  When  each  party

prevails  on some issue, it is within the trial courts discretion

          to refuse to designate either party as the prevailing party.22

          The  state  relies on Shepherd v. State, Department  of

Fish  &  Game23  in arguing that obtaining a TRO  is  not  itself

sufficient to confer prevailing party status.  Shepherd sued  the

Alaska  Department  of Fish and Game, alleging  that  regulations

favoring   resident  hunters  over  non-resident   hunters   were

unconstitutional.24  The superior court eventually ruled  against

Shepherd  and  upheld the states regulation,  but  early  in  the

litigation   Shepherd   succeeded  in   having   some   emergency

regulations overturned because they had been improperly noticed.25

We  affirmed the superior courts finding that the state  was  the

prevailing  party.  We reasoned that the procedural  validity  of

the  emergency regulations [was] only peripheral to  the  central

issue  litigated  by  the  parties  the constitutionality  of  AS

16.05.255(d).26

          Although Hallorans case is similar to Shepherd in  that

both  cases involved a preliminary judicial action followed by  a

substantive   constitutional  challenge,  they  are  procedurally

distinguishable.  In Shepherd, the substantive issues were  fully

litigated  and the regulations were ultimately determined  to  be

constitutional.27  Here, the superior court never finally resolved

the  constitutional  question because it became  moot.   Although

Hallorans only victory was in obtaining the TRO that allowed  him

to  vote,  the  TRO was also the only relief granted  during  the

litigation.   In  Shepherd, the preliminary  victory  was  purely

procedural;  it  did  not  require the  court  to  undertake  any

constitutional analysis.28  Here, the TRO stated that  [i]f  this

order  is  not issued, [Halloran] will be unable to exercise  his

constitutional  right to vote without being forced  to  affiliate

himself  with  a  party  with  which  he  does  not  wish  to  be

affiliated.  The superior courts order also stated that  Halloran

may  lawfully  refuse  to affiliate himself  with  any  political

party.   The TRO was not peripheral to the central issue  of  the

constitutionality  of  the  challenged  election  procedure   the

          superior court considered the substantive issues in deciding to

grant the order.

          The state argues that the voting procedure required  by

the  TRO did not provide Halloran the relief he requested because

he  was  required to cast his vote on the ballot of  one  of  the

parties.   We  are  unconvinced by  this  contention.   Hallorans

complaint  sought an order directing the defendant to permit  the

plaintiff  to  vote on the ballot measures . .  .  without  first

requiring  the  plaintiff to affiliate with any political  party.

The  TRO  required election officials to allow  Mr.  Halloran  to

select one ballot in a manner that does not constitute his having

a  selection  of  a  partys specific ballot.  Election  officials

allowed  Halloran to vote in accordance with the  TRO.   The  TRO

therefore  allowed  him  to  vote on the  initiative  proposition

without affiliating himself with any party; this was part of  the

relief his complaint requested.

          The  state  also argues that the TRO could  not  confer

prevailing party status on Halloran because Halloran did not seek

to  make  the TRO permanent.  But once Halloran cast his vote  on

August  27,  2002, the TRO had achieved its purpose.  The  relief

Halloran  requested  in  seeking the TRO was  permanent;  he  was

permitted  to and in fact did vote on 99PRVT without  affiliating

with a party.  The later dismissal of his complaint did not cause

his vote to be uncounted.

          In  the  superior  court, Halloran  barely  raised  his
alternative theory that entry of the TRO made him the  prevailing
party.   It  is therefore not surprising that the attorneys  fees
order  did not address this alternate argument.  But because  the
order did not rule on this alternative theory, it is necessary to
remand  for  consideration  of whether  entry  of  the  temporary
restraining order made Halloran successful on a main issue in his
case.

     E.    The  Superior Court Is Not Required To Apportion  Fees
According to        Stage in the Litigation.

          It  is  undisputed that Halloran is a  public  interest

litigant.29  As a public interest litigant, Halloran is  entitled

to  full reasonable attorneys fees if he is determined on  remand

to be the prevailing party.30

          The  state argues that if Halloran is determined to  be

the  prevailing party, he should recover fees only for work  done

up to the issuance of the TRO.31

          In  Hickel  v. Southeast Conference, we held  that  the

superior  court  did  not abuse its discretion  by  declining  to

apportion its attorneys fees award according to the stage in  the

litigation.32    The  superior  court  awarded  full   reasonable

attorneys fees to the plaintiffs.33 We affirmed this award because

[a]ll  of  the  fees sought by plaintiffs relate[d]  to  attorney

services  performed before a final judgment was  entered  in  the

trial  court  and  the  various stages  of  the  litigation  were

significantly related.34

          Once a public interest litigant has been identified  as

the prevailing party, his or her varying degree of success on the

different  issues is rarely a component of a reasonable  fee.  35

The  public  interest  litigant rule  is  designed  to  encourage

plaintiffs  to  raise issues of public interest by  removing  the

awesome  financial burden of such a suit.36  Fees  for  a  public

interest  litigant  should  be apportioned  only  in  exceptional

circumstances, but the superior court may apportion  fees  if  it

determines that some issues or proceedings were so frivolous that

apportionment of attorneys fees would be necessary  to  determine

reasonable fees.37

           On  remand  if  the  superior  court  determines  that

Halloran  was  the  prevailing  party,  it  should  consider,  in

deciding  what  fee award is appropriate, whether the  stages  of

Hallorans  litigation  were substantially  related,  whether  the

attorneys fees were incurred before entry of final judgment,  and

whether any of Hallorans claims or proceedings were frivolous.

IV.  CONCLUSION

          For  the  reasons discussed above, we VACATE the  order

denying an award of fees to Halloran and REMAND.

_______________________________
     1     Ch. 96, SLA 2003 (enacting C.S.H.B. 46(STA) (effective
Sept. 14, 2003)).  H.B. 46 amended AS 15.25.060(a).

     2    Following amendment in 2003, AS 15.25.060(a) provides:

          The   primary  election  ballots   shall   be
          prepared  and distributed by the director  in
          the  manner  prescribed in this section.  The
          director shall prepare and provide a  primary
          election ballot for each political party that
          contains all of the candidates of that  party
          for  elective state executive and  state  and
          national legislative offices and all  of  the
          ballot  titles and propositions  required  to
          appear on the ballot at the primary election.
          The director shall print the ballots on white
          paper  and  place the names of all candidates
          who  have  properly filed in groups according
          to offices. The order of the placement of the
          names  for  each office shall be as  provided
          for the general election ballot. Blank spaces
          may  not  be provided on the ballot  for  the
          writing  or pasting in of names. The director
          shall  also  prepare  and  print  a  separate
          primary  election ballot including  only  the
          ballot  titles and propositions  required  to
          appear on the ballot.
          
 (Underlined text added by H.B. 46.)



     3    Shepherd v. State, Dept of Fish & Game, 897 P.2d 33, 44
(Alaska 1995).

     4    Koller v. Reft, 71 P.3d 800, 804 (Alaska 2003).

     5    The state bases its jurisdictional argument on Ulmer v.
Alaska  Restaurant  &  Beverage Assn (ARBA),  33  P.3d  773,  777
(Alaska  2001).  We there held that [b]ecause there was no  award
of  attorneys fees that would be affected by appellate review and
the  issue has not been preserved for appeal, we decline to reach
the  merits on this basis.  Id.  In that case, the state had  not
sought  attorneys fees in the superior court.  Id.  We held  that
the state could not request attorneys fees for the first time  on
appeal.   Id.   ARBA does not stand for the proposition  that  we
will  not, or cannot, review a superior courts refusal  to  award
attorneys fees to either party.

     6    AS 22.05.010(a) states that a party has only one appeal
as  a  matter of right from an action or proceeding commenced  in
either the district court or the superior court.

     7    Cf. De Witt v.  Liberty Leasing Co. of Alaska, 499 P.2d
599,  601  (Alaska 1972) (holding that trial courts determination
that neither party prevailed was manifestly unreasonable and  its
refusal to enter attorneys fees award was erroneous).

     8     LaMoureaux v. Totem Ocean Trailer Express,  Inc.,  651
P.2d  839,  840 n.1 (Alaska 1982) (holding that court  will  hear
moot  case  to  determine  prevailing party  for  attorneys  fees
purposes).

     9    DeSalvo v. Bryant, 42 P.3d 525, 530 (Alaska 2002).

     10    Id.

     11    Id.

     12    DeSalvo v. Bryant, 42 P.3d 525, 530 (Alaska 2002).

     13    Id. at 527.

     14    Id. at 529.

     15    Although the United States Supreme Court has
          recently disavowed use of the catalyst theory
          in suits under federal fee-shifting statutes,
          the rationale behind this theory may apply to
          the  facts  of  this case.  As this  approach
          allows  for  awards  of  attorneys  fees   in
          instances where a plaintiff prevails when his
          or   her  lawsuit  brings  about  the  relief
          requested  in  a manner other than  a  formal
          judgment,   we  believe  that   it   may   be
          appropriately used under the circumstances of
          this case.
          
Id. at 530 (internal citations omitted).

     16     State,  Dept of Natural Res. v. Tongass  Conservation
Socy, 931 P.2d 1016, 1019-20 (Alaska 1997) (holding inquiry  into
legislatures  motives  for not enacting bill  involves  political
question  that is nonjusticiable).  We used the catalyst approach
in that case because the lawsuit arose from a federal statute and
federal  courts  were, at the time, using the catalyst  approach.
Id. at 1017.

     17     But  cf. City of Yakutat v. Ryman, 654 P.2d 785,  793
(Alaska 1982) (affirming superior courts discretionary refusal to
award  prevailing  party  status  to  defendant  whose  case  was
dismissed   because  superior  court  found  plaintiffs   lawsuit
provided  some impetus for citys corrective actions which  mooted
issues and resulted in dismissal).

     18    In holding that the catalyst theory should not be used
when  lawsuits  are  mooted  by legislative  action,  we  do  not
completely  disavow  its use.  There may be  times  the  catalyst
theory may be used to determine the prevailing party for purposes
of awarding attorneys fees.  See, e.g., Jerue v. Millett, 66 P.3d
736,  743  n.  13,  749 (Alaska 2003) (stating  that  under  some
circumstances plaintiffs may be able to recover attorneys fees in
at  least  some  types  of  cases  dismissed  for  mootness,  but
declining   to   decide  whether  catalyst  theory   applies   to
shareholder derivative suit).

     19    Zeman v. Lufthansa German Airlines, 699 P.2d 1274, 1280
(Alaska  1985) (applying liberal approach to determining  whether
issue or theory was raised in lower court).

     20     Hickel  v.  Southeast Conference, 868 P.2d  919,  925
(Alaska  1994) (citing Tobeluk v. Lind, 589 P.2d 873, 876 (Alaska
1979)) .

     21    Day v. Moore, 771 P.2d 436, 437 (Alaska 1999) (holding
superior  court  did  not abuse its discretion  in  finding  that
plaintiff  who  succeeded  on one of three  claims  and  defeated
counterclaim was prevailing party).

     22    Fernandes v. Portwine, 56 P.3d 1, 8 (Alaska 2002); see
also  Nordin  Constr. Co.  v.  City of Nome, 489  P.2d  455,  474
(Alaska 1971).

     23     Shepherd v. State, Dept of Fish & Game, 897  P.2d  33
(Alaska 1995).

     24    Id. at 36.

     25    Id. at 36, 44.

     26    Id. at 44.

     27    Id. at 45.

     28    Id. at 44.

     29     A party is a public interest litigant if (1) the case
was  designed to effectuate strong public policies; (2)  numerous
people  would  benefit  if the litigant  succeeded;  (3)  only  a
private  party could be expected to bring the suit; and  (4)  the
litigant  lacked  sufficient economic incentive  to  bring  suit.
Matanuska  Elec. Assn v. Rewire the Bd., 36 P.3d  685,  696,  698
(Alaska  2001)  (affirming  superior  courts  determination  that
members  of rural electrical co-op were public interest litigants
in suit to remove co-ops directors).

     30    See id.

     31    The record contains Hallorans summary of fees incurred;
it  seems to suggest that a relatively small part of the fees was
incurred for work before the TRO was issued.

     32     Hickel  v.  Southeast Conference, 868 P.2d  919,  927
(Alaska 1994).

     33    Id. at 933.

     34    Id. at 926, 927.

     35     Dansereau  v. Ulmer, 955 P.2d 916, 920 (Alaska  1998)
(reversing  superior courts apportionment of  attorneys  fees  by
issue  because  it  had  not found that any  of  public  interest
litigants claims were frivolous).

     36     Anchorage v. McCabe, 568 P.2d 986, 990 (Alaska  1977)
(reaffirming  policy of awarding public interest  litigants  full
reasonable attorneys fees).

     37    Dansereau, 955 P.2d at 920 & n.4.