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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.
