Lead Opinion
OPINION ON REHEARING
I. BACKGROUND
In McDowell v. State,
On October 28, 1990 the Joint Boards of Fisheries and Game adopted Policy Statement No. 90-18-JB, on the premise that they had “no other option than to apply the standard that all Alaskans are now eligible subsistence users under Tier I during the upcoming regulatory cycle.” Pursuant to this “all-Alaskan” policy, the Board of Fisheries adopted regulations that codified subsistence
Prior to the scheduled effective date of these regulations, United Cook Inlet Drift Association (UCIDA) filed suit seeking declaratory and injunctive relief regarding 5 AAC 01.596 and 5 AAC 01.598. UCIDA sought a declaration that the regulations were invalid and unenforceable “because they are based on a policy statement of the Board of Fisheries that in another action has been held invalid and of no force and effect.”
The prior action to which UCIDA refers is Morry v. State, No. 2BA-83-87 Civ. (Alaska Super., May 23, 1991), in which Judge Michael I. Jeffery issued a partial final judgment pursuant to Alaska Civil Rule 54(b). This partial final judgment provided in relevant part:
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that any policy statement by the Joint Boards of Fisheries and Game, or the Board of Game individually, declaring that “all Alaskans are now eligible subsistence users” is invalid and of no force and effect unless interpreted to mean that “all Alaskans are eligible to be considered subsistence users” if, prior to the subsistence hunting, their individual use of the fish or game meets criteria for “noncommercial, customary and traditional” subsistence uses of the particular fish and game population being harvested, under criteria established by regulation such as 5 AAC 99.010(b). McDowell v. State, 785 P.2d 1, 11 (Alaska 1989).
The Ninilehik Traditional Council (Ninil-ehik) moved to intervene in the present action, contending that the challenged regulations adversely affected the subsistence lifestyle and culture of its members. Ninilehik’s motion was subsequently granted.
In its decision, the superior court concluded that the same all-Alaskan policy statement being challenged in this ease had been previously considered and held invalid in Morry. The superior court observed that Judge Jeffery’s invalidation of the all-Alaskan policy was not confined to the facts of Morry. The superior court further held that it was bound by application of the doctrine of collateral estoppel to follow Judge Jeffery’s ruling invalidating the all-Alaskan policy.
5 AAC 01.596 and .598 are declared invalid for the reason that the state is collaterally estopped from asserting their validity because of the decision of [Judge Jeffery] in Morry v. State, 2BA-83-87 Civ., in which that court invalidated the Alaska Board of Fisheries and Game’s policy that “all-Alaskans [sic] are eligible to participate in subsistence uses.”
Following the entry of final judgment, both UCIDA and Ninilehik moved for awards of full attorney’s fees on the ground that they were public interest litigants. The superior court denied the motions for full fees, but awarded partial fees of $4,237.50 to UCIDA and $3,206.25 to Ninilehik.
II. NON-MUTUAL COLLATERAL ES-TOPPEL
A. Standard of Review
This court is not bound by the superior court’s resolution of questions of law. Rather we will adopt the rule of law that is most persuasive in light of precedent, reason, and policy. Ford v. Municipality of Anchorage,
B. Mootness
The parties disagree on whether the disputed legal issue underlying the State’s appeal is moot. Judge Jeffery’s ruling in Mor-ry invalidating the “all-Alaskan” policy was later overruled in State v. Morry,
This case is not moot. The underlying judgment of the superior court exists until it is vacated by the superior court or vacated or reversed by this court. We do so in this case based on our decision in Morry.
The question that may be moot is the propriety of using non-mutual collateral estoppel against the State. As to this question, we think the State’s arguments are persuasive. Assuming this aspect of the case has been mooted by subsequent developments, we conclude that the question of the application of non-mutual collateral estoppel against the State should be addressed under the public interest exception to the doctrine of mootness.
C.Application of Non-Mutual Offensive Collateral Estoppel Against the State
There are three requirements for application of collateral estoppel:
(1) The plea of collateral estoppel must be asserted against a party or one in privity with a party to the first action;
(2) The issue to be precluded from relit-igation by operation of the doctrine must*951 be identical to that decided in the first action;
(3) The issue in the first action must have been resolved by a final judgment on the merits.
Murray v. Feight,
1. The Mendoza Exception
The State concedes that the three requirements for the application of collateral estoppel identified in Murray are present in the instant case.
We decline to adopt the Mendoza exception which would preclude in all cases, the offensive use of collateral estoppel against the State. The exception to this doctrine which the Mendoza court created was one especially fashioned for the federal government as a litigant.
(1) the desirability of “permitting several courts of appeals to explore a difficult question before this Court grants certiora-ri;”
(2) the government’s need for flexibility in determining when to appeal; and
(3) the importance of preserving policy choices for successive administrations.
Id. at 160-61.
We think UCIDA’s and Ninilchik’s arguments distinguishing state litigation from federal litigation in the context of these three factors are persuasive. As to the first factor, they note that in contrast to a federal district court, the superior court’s jurisdiction is statewide,
Concerning the second factor, the State’s attempt to equate the functions of Alaska’s Attorney General with those of the United States Solicitor General does not withstand scrutiny. Unlike the Solicitor General, Alaska’s Attorney General essentially litigates in a single jurisdiction and is faced with a much smaller volume of litigation. Consequently, the need to authorize appeals of only the strongest cases is not as compelling as it is in the diverse federal judicial system.
As to the third Mendoza factor, preserving policy choices for successive administrations, we agree with UCIDA and Ninilchik that this factor does not carry significant weight. Given the wide variety of options a new state administration has in regard to pursuing its own policy initiatives, we are not persuaded that this factor compels adoption of the Mendoza exception.
2. The Exception for Unmixed Questions of Law
Alternatively, the State contends on rehearing that the weight of authority as well as sound policy justifications support the adoption by this court of a limited exception to the application of collateral estoppel against the State on “unmixed questions of law.”
The Restatement (Second) of Judgements § 29(7) (1982) states that even when all the prerequisites for non-mutual collateral estop-pel are present, a party should be permitted to relitigate an issue if it “is one of law and treating it as conclusively determined would inappropriately foreclose opportunity for obtaining reconsideration of the legal rule upon which it was based.”
The official commentary to this section of the Restatement notes that “it is also pertinent that the party against whom the rule of preclusion is to be applied is a government agency responsible for continuing administration of a body of law applicable to many similarly situated persons.” Restatement (Second) of Judgements § 29 cmt. i (1982). Thus the Restatement recognizes the unique position of the states amongst litigants in their respective court systems. First, the State is the most frequent litigator and it is therefore most likely to be bound by collateral estoppel if the rule were strictly enforced.
The adoption of this exception to collateral estoppel does not result in the absence of any restraints on the State’s ability to advance inconsistent legal arguments in different cases. As noted by both the State and the authors of the Restatement, the judicial doctrine of stare decisis accords the prior holdings of the highest courts of this State precedential value while still permitting the reconsideration of legal issues when conditions warrant.
Although one of the preeminent values which the legal system seeks to obtain — and one of the primary justifications for the application of collateral estoppel
III. CONCLUSION
The superior court’s entry of final judgment on Count I of UCIDA’s complaint is reversed based on State v. Morry,
.In its superior court complaint UCIDA also asserted that the regulations were invalid because they were inconsistent with existing subsistence statutes and were not adopted in conformity with the Administrative Procedure Act, AS 44.62.
After the complaint was filed the superior court issued a temporary restraining order prohibiting the State from implementing the Upper Cook Inlet Subsistence Management Plan, 5 AAC 01.598. The State then petitioned for review. We granted the petition and reversed because the superior court had failed to consider the potential injury to subsistence users that would result from issuance of a T.R.O., and on the further ground that AS 16.05.258(c) granted a preference to subsistence users over commercial users. State v. United Cook Inlet Drift Ass’n,815 P.2d 378 , 379 (Alaska 1991).
. The superior court concluded that Ninilehik met requirements for intervention set out in Civil Rule 24(a) and State v. Weidner,
. In so holding the superior court determined that UCIDA met requirements for application of the doctrine of collateral estoppel identified in Murray v. Feight,
. Ninilchik raised several other issues on cross-appeal, but has chosen not to pursue them. UCI-DA does not appeal from the denial of full attorney's fees.
. UCIDA and Ninilchik also note that the legislature subsequently amended the subsistence laws, Ch. 1, 2d Special Sess., SLA 1992. “The Cook Inlet subsistence salmon regulations at issue in this case have been reinstated, and there is now no case or controversy concerning the all Alaskans policy underlying those regulations.”
. The test for application of the public interest exception to the mootness doctrine involves three main factors: “(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 doctrine.” Hayes v. Charney,
.Relitigation of issues that have been litigated and determined in an earlier action by a final judgment is precluded by application of collateral estoppel. DeNardo v. Municipality of Anchorage,
. The State’s concession reads in part: ”[T|he state was a party to the prior Morry litigation, the issue of the ‘all-Alaskan’ interpretation of the subsistence statute was identical, and there was a final judgment on the merits in the superior court[].”
. The State argued that we should adopt the Mendoza exception when we initially heard this case. Pursuant to this court's order dated March 3, 1994, the State limited its argument on rehearing to the question of whether we should adopt the narrower exception to collateral estoppel for unmixed questions of law. We address this argument infra Part II.C.2.
. In Mendoza the U.S. Supreme Court stated:
We have long recognized that "the Government is not in a position identical to that of a private litigant,” both because of the geographic breadth of Government litigation and also, most importantly, because of the nature of the issues the Government litigates. It is not open to serious dispute that the government is a party to a far greater number of cases on a nationwide basis than even the most litigious private entity.... Government litigation frequently involves legal questions of substantial public importance; indeed, because the proscriptions of the United States Constitution are so generally directed at governmental action, many constitutional questions can arise only in the context of litigation to which the Government is a party....
A rule allowing nonmutual collateral estop-pel against the Government in such cases would substantially thwart the development of important questions of law by freezing the first final decision rendered on a particular legal issue. Allowing only one final adjudication would deprive this Court of the benefit it receives from permitting several courts of appeals to explore a difficult question before this Court grants certiorari.
.AS 22.10.020(b).
. UCIDA also notes that any potential benefit that Alaska courts might derive from relitigating legal issues would be minimal, since superior court opinions are generally unpublished and therefore not readily available throughout the Alaska judicial system.
. Federal courts in New York also have declined to extend the Mendoza exception to state government, on the ground that the factors warranting the federal exception did not apply to the state. See Benjamin v. Coughlin,
. The State limits its argument, and we limit our holding to "unmixed questions of law." This should be distinguished from mixed questions of law and fact, which the State concedes it may be collaterally estopped from relitigating. We decline today to decide whether this exception ought to apply to private litigants other than the government.
. Adopting the Restatement view, the United States Supreme Court has noted that "when issues of law arise in successive actions involving unrelated subject matter, preclusion may be inappropriate.” Montana v. United States,
. This might result from a statutory change, the adoption of new administrative regulations, or as the result of an appellate decision. See, e.g., Commissioner of Internal Revenue v. Sunnen,
. Like the Restatement, we choose not to create an exhaustive list of circumstances in which col
.Concerning this rationale, Restatement (Second) of Judgments § 29 cmt. i (1982) states:
If the rule of issue preclusion is applied, the party against whom it is applied is foreclosed from advancing the contention that stare deci-sis should not bind the court in determining the issue. Correlatively, the court is foreclosed from an opportunity to reconsider the applicable rule, and thus to perform its function of developing the law. This consideration is especially pertinent when there is a difference in the forums in which the two actions are to be determined, as when the issue was determined in the first action by a trial court and in the second action will probably be taken to an appellate court; when the issue was determined in an appellate court whose jurisdiction is coordinate with or subordinate to that of an appellate court to which the second action can be taken; or when the issue is of general interest and has not been resolved by the highest appellate court that can resolve it.
. The State also argues that strict application of collateral estoppel would force it to appeal cases which it might otherwise not appeal simply because there was an unfavorable legal ruling which might bind it in future litigation. This would occur, for example, where the State was the prevailing party on the main issue but lost on a secondary issue, where the parties would otherwise be able to reach a post-judgment settlement in lieu of an appeal, or where the equities of the individual case did not otherwise merit the pursuit of an appeal.
. See Public Defender Agency v. Superior Court,
. See Geoffrey C. Hazard, Jr., Preclusion as to Issues of Law: The Legal System’s Interest, 70 Iowa L.Rev. 81, 92 (1984).
. Restatement (Second) of Judgements § 29 cmt. i (1982) ("When the issue involved is one of law, stability of decision can be regulated by the rule of issue preclusion or by the more flexible rule of stare decisis.’’)', see also Pratt & Whitney Canada, Inc. v. Sheehan,
. For example, in United States v. Stauffer Chem. Co.,
. Professor Motomura cites three goals that are commonly advanced in support of giving collateral estoppel effect to prior judgments: (1) efficiency, (2) repose, and (3) consistency. Hiroshi Motomura, Using Judgments as Evidence, 70 Minn.L.Rev. 979, 1003-04 (1986).
. Though our holding makes the State the prevailing party in this case, the State cannot recover attorney’s fees from Ninilchik. We have consistently denied awards of attorney's fees against losing parties who have in good faith litigated issues of genuine public interest. See Oceanview Homeowners Ass’n v. Quadrant Constr. & Eng'g,
We have previously rejected arguments that subsistence use constitutes a private interest sufficient to deny public interest status. Alaska Survival v. State, Dep’t of Natural Resources,
Lead Opinion
ORDER
IT IS ORDERED:
1. Opinion No. 4054, issued on February 18, 1994, is WITHDRAWN.
2. The opinion on rehearing, Opinion No. 4195, is issued today in its place.
Entered by direction of the court at Anchorage, Alaska on May 12, 1995.
Before: MOORE, C.J., and RABINOWITZ, MATTHEWS and COMPTON, JJ.
