No. 92-363 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

ALVIN BIRKHOLZ , 

Plaintiff and Appellant, 

STATE OF MONTANA, et al., DEPARTMENT 

OF ADMINISTRATION, DIRECTOR DEPARTMENT 

OF FISH, WILDLIFE & PARKS, and MARC 

RACICOT, ATTORNEY GENERAL, 

Defendants and Respondents. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis and Clark, 

The Honorable Thomas C. Honzel, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Alvin Birkholz, Pro Se, Miles City, Montana 

For Respondents: 

Noman C. Peterson, Assistant Attorney General, 

Agency Legal Services Bureau, Helena, Montana 

Submitted on Briefs: September 24, 1992 

Decided: February 19, 1993 

. , > 

, . .I 
Justice Terry N. Trieweiler delivered the opinion of the Court. 

Appellant Alvin Birkholz appeals from an order of the First 

Judicial District Court, Lewis and Clark County, dismissing his 

complaint on the grounds that it is barred by res judicata. We 

affirm. 

The sole issue on appeal is: 

Did District Judge Thomas Honzel properly dismiss Birkholzls 

second malicious prosecution action filed in the First Judicial 

District Court? 

On June 30, 1990, Alvin Birkholz was charged with a 

misdemeanor violation by the Department of Fish, Wildlife, and 

Parks in Custer County, for failing to properly mark an unattended 

fishing set line with his name and address. On September 13, 1990, 

Birkholz filed a civil action in the First Judicial District Court 

against the State of Montana, the Department of Administration, the 

Department of Fish, Wildlife, and Parks, and the Attorney General, 

and generally alleged malicious prosecution of the misdemeanor 

charge. District Judge Dorothy McCarter dismissed the malicious 

prosecution action on December 17, 1990, based on Birkholzls 

failure to state a claim against any of the defendants upon which 

relief could be granted. 

In particular, Judge McCarter determined that Birkholz did not 

meet the elements of a malicious prosecution claim. She determined 

that (1) probable cause existed for the fishing violation citation; 

and (2) the malicious prosecution action was premature because at 

the time that Birkholz commenced the suit, the underlying criminal 

2 
prosecution for his alleged fish and game violation was still 

pending. Birkholz did not appeal Judge McCarterls decision. 

On March 13, 1991, Birkholz failed to appear at the scheduled 

trial for the fish and game violation. He was subsequently 

convicted of the misdemeanor charge. He did not appeal this 

conviction. 

Approximately one year later, on February 26, 1992, Birkholz 

brought a malicious prosecution action in the Sixteenth Judicial 

District Court against two justices of the peace and two district 

court judges who were involved at some point in his misdemeanor 

conviction. This action was dismissed with prejudice. We denied 

Birkholz's appeal of the dismissal on the grounds that the appeal 

had no merit. 

On April 8, 1992, Birkholz commenced a third malicious 

prosecution action. This action was brought (for the second time) 

in the First Judicial District Court. It involved the same 

parties, subject matter, and issues that were involved in 

Birkholz's first malicious prosecution action. This second 

malicious prosecution action in the First Judicial District Court 

is the subject of this appeal. 

On June 12, 1992, District Judge Thomas Honzel dismissed 

Birkholz's second malicious prosecution action in the First 

Judicial District Court. He concluded that the case is barred by 

res judicata. 

The doctrine of res judicata stands for the principle that a 

party should not be able to relitigate a matter that the party has 
already had the opportunity to litigate. Public policy requires 

that there be some end to litigation. Turtainen v. Pouken (1990) , 243 

Mont. 355, 360, 792 P.2d 1089, 1092; FirstBankv.FourthJudiciulDkt. Court 

(1987), 226 Mont. 515, 519, 737 P.2d 1132, 1134. 

Our Court has employed a four element test to determine 

whether or not a second action is barred by res judicata. For res 

judicata to be applicable: 

(1) the parties or their privies must be the same: 

(2) the subject matter of the action must be the same; 

(3) the issues must be the same, and must relate to the 

same subject matter; and (4) the capacities of the 

persons must be the same in reference to the subject 

matter and to the issues between them. 

Turtainen, 792 P.2d at 1092. 

We conclude Judge Honzel properly dismissed Birkholzls second 

malicious prosecution action in the First Judicial District Court 

based on res judicata. All four elements of res judicata are 

present. 

First, Birkholz1s second malicious prosection action in the 

First Judicial District involved the same parties that were the 

subject of his first suit: namely, the State of Montana, the 

Department of Administration, the Department of Fish, Wildlife, and 

Parks, or its Director, and the Attorney General. Second, both 

malicious prosecution suits involved identical subject matter: the 

prosecution for the same fishing violation. Third, Birkholz raised 

the same issues in both suits. Finally, the capacities of the 

persons involved in both lawsuits were the same. 
In short, Judge Honzel was faced with the same case that Judge 

McCarter dismissed in an earlier action by Birkholz. Therefore, 

the case was barred by res judicata. 

We affirm the District Court's dismissal of Birkholz's second 

malicious prosecution action in the First Judicial District Court. 

The second action was barred by res judicata. 

Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 

1988 Internal Operating Rules, this decision shall not be cited as 

precedent and shall be published by its filing as a public document 

with the Clerk of the Supreme Court and by a report of its result 

to Montana Law Week, State Reporter and West Publishing Company. 

We concur: 

i Chief Jus ice 
c February 19, 1993 

CERTIFICATE OF SERVICE 

X hereby certify that the following order was sent by United States mail, prepaid, to the following 

named: 

Alvin Birkholz 

P.O. Box 764 

Miles City, MT 59301 

Norman C. Peterson 

Agency Legal Services Bureau, Dept. of Justice 

215 No. Sanders 

HeIena, MT 59620 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA