Ross v. State

Decision Date02 August 1999
Docket NumberNo. 98-35720,98-35720
Citation189 F.3d 1107
Parties(9th Cir. 1999) WAYNE ANTHONY ROSS; THE REPUBLICAN PARTY OF ALASKA, INC.; THE ALASKA LIBERTARIAN PARTY; THE ALASKAN INDEPENDENCE PARTY; MARK CHRYSON; LINDA S. MCKAY, Plaintiffs-Appellants, v. STATE OF ALASKA; STATE OF ALASKA, DIVISION OF ELECTIONS; LIEUTENANT GOVERNOR FRAN ULMER, in her official capacity of Supervisor of Elections; SANDRA J. STOUT, in her official capacity of Director of the Division of Elections; JANE/JOHN DOE, 1 through 10, Defendants-Appellees
CourtU.S. Court of Appeals — Ninth Circuit

Kenneth P. Jacobus, Kenneth P. Jacobus, Anchorage, Alaska, for the plaintiffs-appellants.

James L. Baldwin, Assistant Attorney General, Juneau, Alaska, for the defendants-appellees.

Appeal from the United States District Court for the District of Alaska; H. Russel Holland, Chief District Judge, Presiding. D.C. No CV-95-00053-HRH.

Before: Procter Hug, Jr., Chief Judge, Stephen S. Trott and A. Wallace Tashima, Circuit Judges.

HUG, Chief Judge:

The Republican Party of Alaska, Wayne Anthony Ross, and Linda S. McKay (collectively, "Republican Party"), and the Alaska Libertarian Party ("ALP"), the Alaskan Independence Party ("AIP"), and Mark Chryson (collectively, "minor parties") appeal the judgment of the district court dismissing this case. Appellants brought suit challenging Alaska's "blanket primary" system of determining the nominees of political parties. See Alaska Stat. SS 15.25.010-205 (Michie 1989). The district court granted partial summary judgment to defendants State of Alaska, et. al. ("the State") with regard to the Republican Party, holding that the doctrine of issue preclusion barred the Republican Party from relitigating certain issues decided by the Alaska Supreme Court in O'Callaghan v. State, 914 P.2d 1250 (Alaska 1996). The district court also dismissed the claims of the minor parties because they failed to demonstrate the existence of an actual case or controversy. We have jurisdiction pursuant to 28 U.S.C. S 1291, and we AFFIRM.


The issue in this lawsuit is the asserted unconstitutionality of Alaska's "blanket primary" system of determining which candidates will represent political parties in the general election. A blanket primary places all candidates of every political party on the same ballot, and allows voters to vote for any candidate regardless of the voter or candidate's party affiliation. Thus, a registered Republican could vote for an Alaskan Independence Party candidate for Governor, a Republican candidate for United States House of Representatives, and a Democratic candidate for State Senate. See O'Callaghan, 914 P.2d at 1254-55. Appellants assert that this system unconstitutionally infringes upon their First and Fourteenth Amendment rights to free political association, right to petition, and right to due process. Therefore, they request a declaratory judgment to that effect, as well as an injunction prohibiting the State from conducting primary elections in any manner other than in conformance with the rules of the political parties.

The initial complaint in this action was filed on February 16, 1995. On February 17, 1995, the Republican Party intervened in the O'Callaghan case, an action in the Alaska Supreme Court which also challenged the constitutionality of the blanket primary. In O'Callaghan, the Alaska Supreme Court upheld the blanket primary system, employing a balancing test and concluding that the benefits to the State of such a system outweighed the burdens on the rights of the political parties. 914 P.2d at 1261-63.

A third amended complaint in this case was filed in the federal district court on July 31, 1997. On February 10, 1998, the district court issued an order on the State's motion for partial summary judgment, ruling that issue preclusion barred the Republican Party from re-litigating issues decided in the O'Callaghan case. In making this ruling, the district court also held that the doctrines of claim and issue preclusion did not affect the minor parties' suits. However, on April 3, 1998, the district court granted the State's motion to dismiss the minor parties, concluding that no case or controversy existed with respect to these parties. A final judgment as to all issues and all parties was issued on July 13, 1998, and Appellants filed a timely appeal on July 22, 1998.


This appeal involves challenges to two separate rulings of the district court: (1) the grant of partial summary judgment to the State on the basis that "issue preclusion " prevents the Republican Party from re-litigating the issues decided in O'Callaghan; and (2) the dismissal of the claims of the minor parties for lack of a case or controversy.

I. Issue Preclusion and the Republican Party

The district court's holding that the Republican Party was barred from re-litigating issues decided in O'Callaghan encompassed the following issues: (1) whether "Alaska's primary laws are per se unconstitutional if the laws conflict with the rules of the political parties; (2) whether Alaska's blanket primary requirement violates these plaintiffs' First and Fourteenth Amendment rights; and (3) whether the State of Alaska must alter its primary election laws to conform with Article XIV, Section 1 of the Rules of the [Republican Party of Alaska]."1 The Republican Party challenges this ruling with respect to issues (2) and (3). "The district court's grant of summary judgment on res judicata grounds is reviewed de novo." Hiser v. Franklin, 94 F.3d 1287, 1290 (9th Cir. 1996).2

A. Application of Issue Preclusion

" `It is now settled that a federal court must give to a state-court judgment the same preclusive effect as would be given that judgment under the law of the state in which the judgment was rendered.' " Id. (quoting Migra, 465 U.S. at 81).3 Therefore, Alaska law with regard to issue preclusion applies to the determination of the preclusive effect of the O'Callaghan case. Under Alaska law,

issue preclusion prohibits a party from re-litigating an issue where: (1) the party against whom the preclusion is employed was a party to or in privity with a party to the first action; (2) the issue precluded from re-litigation is identical to the issue decided in the first action; (3) the issue was resolved in the first action by a final judgment on the merits; and (4) the determination of the issue was essential to the final judgment.

Wilson v. Municipality of Anchorage, 977 P.2d 713, 726 (Alaska 1999); Jackinsky v. Jackinsky, 894 P.2d 650, 654 (Alaska 1995).

The Republican Party does not and cannot contest elements (1), (3), and (4). However, it does argue that the issues in this case are not identical to the ones decided in O'Callaghan due to events occurring after that case was decided which change the "balance" evaluated in O'Callaghan. Specifically, the Republican Party points to the national Republican Party's passage of National Rule 34(f), which provides that no candidate nominated under a system which allows persons who are participating in the selection of nominees of other parties to participate in the selection of Republican nominees will be recognized as a nominee of the Republican party. It further provides that if a state law or state party rule provides for the selection of a Republican nominee in violation of this rule, the Republican nominee will be selected by convention, unless a state party rule provides specifically to the contrary.4 Another event which changes the issues involved in this case, according to the Republican Party, is Alaska's 1998 gubernatorial primary election, which the Republican Party asserts shows the dangerous effects of cross-over voting.

Restatement (Second) of Judgments S 27 cmt. c (1982)5 sets forth four factors to be considered in determining whether the issue in a proceeding is identical to an issue previously litigated:

Is there a substantial overlap between the evidence or argument to be advanced in the second proceeding and that advanced in the first? [2] Does the new evidence or argument involve application of the same rule of law as that involved in the prior proceeding? [3] Could pretrial preparation and discovery relating to the matter presented in the first action reasonably be expected to have embraced the matter sought to be presented in the second? [4] How closely related are the claims involved in the two proceedings?

Using these elements as guidelines, it is clear that the issues in this case are identical to those decided in O'Callaghan. First, there is substantial overlap in the evidence and arguments, with the only differences being the two changes in circumstances described above. In addition, the same rule of law, a balancing test evaluating the interests of the State and the interests of the parties, would apply to both proceedings.6 Finally, the claims involved in the two proceedings are entirely based on a determination of whether of not Alaska's blanket primary is constitutional.

The "changes" set forth by the Republican Party do not change the conclusion that the issues in this case are identical to those resolved in O'Callaghan. For example, the Republican Party National Rule 34(f) is intended to advance the same interests identified in O'Callaghan--reducing the effect of raiding and promoting party accountability--and the Republican Party does not identify any new interests which the rule seeks to achieve. Moreover, while the Republican Party argues that it may not be able to place any candidates recognized as Republican candidates by the national party on the general ballot, the state party can avoid this result by adopting contrary rules for the selection of its nominee which conform to Alaska law. Finally, the national Republican Party has thus far not applied this rule to prevent a candidate from being...

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