----------------------- Page 1----------------------- 1965-66 HOUSE JUDICIARY COMMITTEE TABLE OF CONTENTS 1966 INDEX TO MINUTES 1966 MEMOS 1966 MINUTES) ETC.: 1/27/1966 - 4/9/1966 I~ 196)-66 HJ MINLOG ----------------------- Page 2----------------------- J \ \ ." ( "~ ----------------------- Page 3----------------------- INDEX to JUDICIARY COMMITTEE,:~MINUTES - 1966 Bills considered by the committee and the date of the minutes referring to the bill are listed below. Materials and reports on the bills follow the minutes of the day a bill was considered. Following this index are general reports by committee counsel on bills referred to the committee. HOUSE BILLS (1 - 100) Date SENATE BILLS Date 48 2/4 15 2/9 62 2/23 4 3/14 & 21 9 3/21 66 3/21 6 4/9 (101 – 200) 167 1/27 138 1/27 168 2/1 & 4 176 1/28 171 2/1 182 1/28 108 2/11 & 18 184 1/28 142 2/18 117 2/8, 9,& 10 177 2/8 157 2/8 118 4/4 & 5 194 4/4 151 4/8 201 - 300 275 1/27 & 28 228 2/18 299 2/1 & 22 267 3/8 292 2/16 & 18 234 3/9 249 2/21 209 3/9 279 3/2, 3 & 21 213 3/10 220 3/10 238 3/14 263 3/8 282 3/19 & 22, 4/1 296 3/23 262 3/26 295 4/1 278 4/4 231 4/5 279 4/9 206 4/14 256 4/14 257 4/14 254 4/14 (301-400) 31 2/2 310 3/9 317 2/2 319 2/3 352 2/3 321 2/8 349 2/9 371 2/10 324 2/15 & 16 311 2/15, 16, 18, 23 ----------------------- Page 4----------------------- (301-400) 381 2/21 304 2/21 374 2/22 378 2/23 359 2/23 302 3/3, 10 373 3/4 & 7 309 3/4 383-387 3/5, 7 & 28; 4/9 389-390 3/5 353 3/8 363 3/10 368-370 3/12 & 28 303 4/4 375 4/4 (401 – 500) 419 3/2 487 3/2 402 3/3 418 3/3 462 3/4 436 3/7 490 3/9 450 3/9 ( 424 3/10 435 3/14 427 3/19 & 24 493 3/19 & 21 449 3/24 447 4/1 452 4/4 (501 – 600) 506 3/8 & 10 505 3/29 502 4/14 526 4/14 HOUSE RESOLUTIONS SENATE RESOLUTIONS HR6 3/3 SCR 9 2/10 HCR 42 3/3 SCR 13 2/16 & 18 HR2 3/8 * * * * * * ----------------------- Page 5----------------------- ----------------------- Page 6----------------------- ALASKA STATE LEGISLATURE LEGISLATIVE COUNCIL BOX 21 99·JUNEAU MEMORANDUM March 4, 1966 SUBJECT: HB 383-390, excluding HB 388 TO: Representative Gene Guess, Chairman Judiciary Committee This is a group of bills introduced at the request of the Legislative Council. They are suggested legislation resulting from the January 1966 Legislative Council report entitled “Legislative Oversight of the Administration of statutes.” The report covered a review of the regulations of the Department of Natural Resources and the Supreme Court opinions of the past year. Mr. Kent Edwards, the Council staff attorney who prepared the report, will appear before the Committee to explain the bills. A copy of the report is attached. Jane Asher Reviser of Statutes JA/mh ----------------------- Page 7----------------------- ALASKA STATE LEGISLATURE LEGISLATIVE COUNCIL BOX 2199·JUNEAU MEMORANDUM March 1, 1966 ------ ....... --- SUBJECT: HB 279, Disqualification of Judges TO: House Judiciary Committee, Chairman Guess FROM: Jane Asher SB 279 changes the present law in the following respects: Page 1, line 18. A new reason for disqualification is added. Page 1s lines 21 - 23. Compare (5) with AS 22.20.020(4) to see how this reason for disqualification has been changed. Page 1, lines 27 - 29 and page 2, lines 1 - 5. This is a new subsection which requires that another judge determines the matter of disqualification and not the one who may be disqualified. (Page 2, lines 7 - 19. This subsection is approximately the same as AS 22.20.020(5). However, under present law, the bias or prejudice must be proved to the judge who is considered biased or prejudiced. Under this bill, the action is immediately transferred to another judge. Under present law and under this bill, only one affidavit of bias or prejudice is allowed. This approach is similar to a preemptory challenge to a juror. Page 2, lines 20 - 22. This is a new subsection which is taken from the Arizona law. Page 2, lines 23 - 27. This is a similar provision to the one presently in the law in AS 22.20.020(5). Compare the two for the slight differences. Page 2, lines 28 - 29. This is the exact language now found in AS 22.20.020(5). Page 3, lines 1 and 2. This bill might be considered to only affect those suits filed after it became law. This section applies it to actions pending on the date it becomes law. You will note that the word "act1onfl was used throughout the bill. Under AS 01.10.060(1) in the laws of this state, action" includes any matter or proceeding in a court, civil or criminal. California (CCP 170), Arizona (ARS 12-409-411), and Oregon (ORS 14.210 - 270) law was used in the preparation of this bill. ----------------------- Page 8----------------------- ALASKA STATE LEGISLATURE LEGISLATIVE COUNCIL BOX 2199·JUNEAU MEMORANDUM March 1, 1966 ------------ SUBJECT: Agenda, week of February 28th. TO: Judiciary Committee, Chairman Guess FROM: Jane Asher SB No. 17 - This bill is a legislative council bill introduced as a result of the 1965 review of supreme court decisions. In Silverton v. Marler, Sup. ct. OPt No. 186, January 30, 1964, the court held that AS 09.10.020 was in conflict with and superseded by Rule 3 of the Rules of Civil Procedure since the section was a procedural one. AS 09.10.020 says that an action is commenced when the complaint 1s filed and the summons issued. Rule 3 requires only the filing of a complaint. There has been some discussion of either amending AS 09.10.020 so that it is the same as the rule or else changing the rule by legislation to conform with the present wording of AS 09. 10.020. The reason for these approaches would be that since the statute of limitations is substantive law and not procedure, that the law should contain the manner of stopping the running of the statute of limitations, that is, by commencing a civil action. Such an amendment could be as follows: AS 09.10.020 is repealed and re-enacted to read: Sec. 09.10.020. TOLLING OF STATUTE OF LIMITATION. The running of a statute of limitation is stopped by the commencement of an action as set out in Rule 3 of the Rules of Civil Procedure. Such an amendment probably isn't necessary because AS 09.10.010 says that a civil action must be commenced within the periods prescribed by statutes of limitation and Rule 3 says an action is commenced by the filing of a complaint. HE 300 - This bill changes the date of the primary election to the day after Labor Day. CSSB 50 on the same subject has passed the Senate and is now in the House. eSSB 50 changes the date to the fourth Tuesday in August but the bill doesn't take effect until January 1, 1967 so it would not affect the election this year. CSSB 50 contains' other amendments to the election code. A copy 1s attached •. ----------------------- Page 9----------------------- Chairman Guess -2- March 1, 1966 HE 408 - This bill amends the law of vagrancy to include a person who, without legitimate reason, loiters about a school where children are in attendance, or who loiters about a nearby public place frequented by school children. JUDICIARY COMMITTEE PUBLIC HEARING ON HB 419 relating to a state lottery 8:30 March 1 in Superior Court Other bills on this week's agenda will be covered in additional reports. They are: SB 279 - Disqualification of Judges HB 418 - Off street parking, declaration of taking for 302 - Minors dining in restaurants which serve liquor 462 - Powers and duties of judicial council 309 - Jurisdiction in civil actions 402 - Amending the Human Rights Act 373 - Accident reports 220 - Powers of local boundary commission 306 - Comparative negligence 353 - Wiretapping 435 - Non-profit Corporation Act ( ----------------------- Page 10----------------------- ALAS K A STATE LEGISLATURE LEGISLATIVE COUNCIL BOX 2199·JUNEAU MEMORANDUM February 14, 1966 ---------- SUBJECT: Agenda, week of Feb. 14, 1966 TO: Judiciary Committee, Chairman Guess FROM: Jane Asher The following bills on this week’s agenda are considered in separate memoranda: HE 108 and draft of CS (Deed of trust - Postponement of Sale) HB 142 (Civil Rights) HE 299 (Uniform Arbitration Law) SB 157 and draft of 2dCS (Fish buyers - bond or cash purchase) HB 311: This bill allows the court the discretion to impound any vehicle under the control of a minor at the time he violates a law relating to alcoholic beverages. The vehicle may be impounded for not more than 30 days and at the owner's expense. HE 324: This bill relates to the control of depressant and stimulant drugs. AS 17.15.010 says, “It is unlawful for a person to sell, give away, barter, exchange or distribute (1) ….” Paragraph (1) is amended by Sec. 1 of HB 324 to include “a depressant or stimulant drug designated by the commissioner of health and welfare under sec. 35 of this chapter …” Sec. 2 of the bill defines a depressant or stimulant drug. Sec. 2 also says that drugs listed in the Uniform Narcotic Drug Act (AS 17.10) shall not be included for regulation under this Act since they "are already regulated. There has been some question raised as to whether alcoholic beverages could come under the definition of depressant and stimulant drugs in this Act. If it is considered that it can, then the bill could be amended by adding before the period on page 2, line 3, or any intoxicating liquor as defined in AS 04.20.010 11. The bill was reported out of Health, Education and Welfare “Do Pass” as amended. The amendment 1s: Page 1, line 26, after word “drug" add “any drug which contains”. This amendment corrects a typographical error. The definition of depressant or stimulant drug is based on the definition in the New York Depressant and Stimulant Drug Control Act. (Sec. 3371, New York Consolidated Laws Service) ----------------------- Page 11----------------------- Chairman Guess Judiciary Committee -2- February 14, 1966 A supplemental memorandum will be prepared on the other bills on this week's agenda which are: HB 374 Public Access to Public Buildings) HB 378 Bring Deputy Magistrates under Retirement System) HE 304 Require Public Records on Loans by Alaska Development Corporation) HB 279 - Friday, Feb. 18 (Disqualification of Judges) PUBLIC HEARING -- HB 353 -- HE WIRETAPPING 7:30 p.m. - February 16th - Room 2 ( ----------------------- Page 12----------------------- ALASKA STATE LEGISLATURE LEGISLATIVE COUNCIL BOX 2199·JUNEAU February 10, 1966 SUBJECT: HB No. 299 - Arbitration Law TO: Chairman Guess, Judiciary Committee FROM: Jane Asher This bill is the Uniform Arbitration Law adopted by the National Conference of the Commissioners on Uniform State Laws and approved by the House of Delegates of the American Bar Association. It has been adopted in five states according to the "Book of the States”, 1964-65. They are Arizona, Illinois, Massachusetts, Minnesota and Wyoming. Approximately 20 other states have modern arbitration laws. A comparison of the arbitration provisions of 20 state laws would be too time-consuming but attached to this memorandum is a copy of the Washington Law on arbitration so that the committee may compare any section of it with the Uniform Law. The Washington Law on arbitration was chosen simply because of the proximity of the state. If a state does not have an arbitration law, as is the case in Alaska, a voluntary contract provision to arbitrate subsequent controversies between the parties can be ignored by one party and the other party has no legal remedy for enforcement of that contract provision. JA:ic Att. (Attached to this memorandum was Secs. 7.04.010--220 of the "Washington Revised statutes which is Oh 138 of 1943 without amendment.) ----------------------- Page 13----------------------- Arbitration 7.04.040 7.04.010 Arbitration ·authorized. Two or more parties may agree in writing to submit to arbitration, in conformity' with the provisions of this chapter, any controversy .which may 'be the subject of an action existing between them at the time of the agreement to submit, or they may include in a written agreement a provision to settle by arbitration any controversy thereafter arising between them out of or in relation to such agreement. Such, agreement shall be valid, enforceable and irrevocable save upon such grounds as exist in law or equity for the revocation of any agreement. The provisions of this chapter shall not apply to any arbitration agreement between employers and employees or between employers and associations of employees, and as to any such agreement the parties thereto may provide for any method and procedure for the settlement of existing or .future disputes and controversies, and such procedure shall be valid, enforceable and irrevocable save upon such grounds as exist in law or equity for the revocation of any agreement. [1947 c 209 § 1; 1943 c 138 § 1; Rem. Supp. 1947 § 430-1.] Saving: "Sections 264, 265, 266, 267, 268, 269, 270, 271, 272, 273, and 274 of the Code of 1881 (sections 420 to 430, both inclusive, Remington's Revised Statutes; sections 7339 to 7349, both inclusive, Pierce's Code) are hereby repealed: Provided, however, That arbitration proceedings pending upon the effective date of this act may be carried through to final judgment under the provisions of said sections, which are hereby continued in effect for such purposes only." [1943 c 138 § 23.] This applies to RCW 7.04.010 to 7.04.22Q, incl. 7.04.020 "Court" defined-Applications in writing-How heard. Any application made under authority of this chapter shall be made in writing and heard in a summary way in the manner _and upon the notice provided by law or rules of court for the making and hearing of motions or petitions, except as otherwise herein expressly provided. [1943 c 138 § 2; Rem. Supp. 1943 §·430-2.] .' 7.04.030 Stay of action pending arbitration. If any action for legal or equitable relief or other proceedings' be brought by any party to a written agreement to arbitrate, the court in which such action or proceeding is pending, upon being satisfied that any issue involved in such action or proceeding is referable to arbitration under such agreement, shall, on motion of any party to the arbitration agreement, stay the action or proceeding until an arbitration has been had in accordance with the agreement. [1943 c 138 § 3; Rem. Supp. 1943 § 430-3.] - 7.04.040 Motion to compel arbitration-Notice and hearing-Motion for stay. (1) A party to a written agreement for arbitration claiming the neglect or refusal of another to proceed with arbitration thereunder may make application to the court for an order directing the parties to proceed with the arbitration in accordance with their agreement. Eight day’s notice in writing- of such application shall be served upon the party alleged to be in default. Service thereof shall be made in, the manner provided by law for service of a summons in a civil action in the court specified in RCW 7.04.020. If the court is satisfied after hearing the parties that no substantial issue exists as to the existence or validity of the agreement to arbitrate or the failure to comply therewith, the court shall make an order directing the parties to proceed to arbitrate in accordance with the terms of the agreement. (2) If the court shall find that a substantial issue is raised as to the existence or validity of the arbitration agreement, or the failure to comply therewith, the court shall proceed immediately to the trial of such issue. If upon such trial the court finds that no written agreement providing for arbitration was made or that there is no default in proceeding thereunder, the motion to compel arbitration shall be denied. (3) Either party shall have the right to demand the immediate trial by jury of any such issue concerning the validity or existence of the arbitration agreement or the failure to comply therewith. Such demand shall be made before the return day of the motion to compel arbitration under this section, or if no such motion, was made, the demand shall be made in the application for a stay of the arbitration, as provided under subsection (4) (a) hereunder. (4) In order to raise an issue as to the existence or validity of the arbitration agreement or the failure to comply therewith, a party must set forth evidentiary facts raising such issue and must either (a) make a motion for a stay of the arbitration. If a notice of intention to arbitrate has been served as provided in RCW 7.04.060, notice of the motion for the stay must be served within twenty days after service of said notice. Any issue regarding the validity or existence of the agreement or failure to comply therewith shall he tried in the same manner as provided in subsections (2) and (3), hereunder; or (b) by contesting a motion to compel arbitration as provided under subsection (1) of this section.[1943 c 138 § 4; Rem. Supp. 1943 § 430-4.] . 7.04.050 Appointment of arbitrators by court. Upon the application of any party to the arbitration agreement, and upon notice to the other parties thereto, the court shall appoint an arbitrator, or arbitrators, in any of the following cases: (1) When the arbitration agreement does not prescribe a method for the appointment of arbitrators. (2) When the arbitration agreement does prescribe a method for the appointment of arbitrators, and the arbitrators, or any of them, have not been appointed and the time within which they should have been appointed has expired. (3) When any arbitrator fails or is otherwise unable to act, and his successor 'has not been duly appointed. (4) In any of the foregoing eases where the arbitration agreement is silent as to the number of arbitrators, three arbitrators shall be appointed by the court. . . Arbitration 7.04.100 .. Arbitrators appointed by the court shall have the same power as though their appointment had been made in accordance with the agreement to arbitrate. [1943 c 138 § 5; Rem. Supp. 1943 § 430-5.] 7.04.060 Notice of intention to arbitrate-Contents. When the controversy arises from a written agreement containing a provision to settle by arbitration a controversy thereafter arising between the parties out of or in relation to such agreement, the party demanding arbitration shall 'serve upon the other party, personally or by registered mail, a written notice of his intention to arbitrate, Such notice must state in substance that unless within twenty days after its service, the party served therewith shall serve a notice of motion to stay the arbitration, he shall thereafter be barred from putting in issue the existence or validity of the agreement or the failure to comply therewith, [1943 c 138 § 6; Rem. Supp. 1943 § 430-6.] 7.04.070 Hearing by arbitrators. The arbitrators shall appoint a time and place for the hearing and notify the parties thereof, and may adjourn the hearing from time to time as may be necessary, and, on application of either party, and for good cause, may postpone the hearing to a time hot extending beyond the date fixed for making the award. All the arbitrators shall meet and act together during the hearing but a majority of them may determine any question and render a final award. The court shall have power to direct the arbitrators to proceed promptly with the hearing and determination of the controversy. [1943 {! 138 § 7; Rem. supp. 1943§ 430-7.] 7.04.080 Failure of party to appear no bar to hearing and determination. If any party neglects to appear before the arbitrators after reasonable notice of the time and place of hearing, the arbitrators may nevertheless proceed to hear and determine the controversy upon the evidence which is produced before them [1943 c 138 § 8; Rem. Supp. 1943 § 430-8.1] 7.04.090 Time of making award-Extension. If the, time within which the award shall be made is not fixed in the arbitration agreement; the award shall be made within thirty days from the closing of the proceeding, and any award made after the lapse of such thirty days shall have no legal effect, unless the parties extend the time in which said award may be made or ratify any award made after the expiration of the thirty day period. Any extension of time or ratification of the award shall be in writing and signed by all parties to the arbitration. [1943 c 138 § 9; Rem. Supp. 1943 § 430-9.] 7.04.100 Representation by attorney. Any party shall have the right to be represented by an attorney at law in any arbitration proceeding or any hearing before the arbitrators. [1943 c 138 § 10; Rem. Supp. 1943 § 430-10.] 7.04.110 Special Proceedings 7.04.110 Witnesses-Compelling attendance. The arbitrators, or a majority of them, may require any person to attend as a witness, and to bring with him any book, record document or other evidence. The fees for such attendance shall be the same as the fees of witnesses in the superior court. Each arbitrator shall have the power to administer oaths. Subpoenae shall issue and be signed by the arbitrators, or any one of them, and shall be directed to the person and shall be served in the same manner as subpoenae to testify before a court of record in this state. If any person so summoned to testify shall refuse or neglect to obey such subpoenae, upon petition authorized by the arbitrators or a majority of them, the court may compel the attendance of such person being the said arbitrator or arbitrators or punish said person for contempt in the same manner now provided for the attendance of witnesses or the punishment of them in the courts of this state. [194" }38 § 11; Rem. Supp. 1943 § 430-11.] Witnesses, compelling attendance Chapter 5.56 7.04.120 […]ns may be taken with or without a commission […] and upon the same grounds as provided by law for the talking depositions in suits pending in the courts of record in this state. [1943 c 138 § 12; Rem. Supp. 1943 § 430-12.] Depositions: Rules of court; Pleading-rules 26-37; also Title 5. 7.04.130 Order to preserve property or secure satisfaction of award. At any time […] determination of the arbitration the court may […] of a party to the agreement to […] order […}> take such proceeding as it may […] for the […] of the property or for securing satisfaction of the award [1943 c 138 §13; Rem. Supp. 1943 § 430-13.] 7.04.140 Form of award-copies to parties. The award shall be in writing and signed by the arbitrators or by a majority of them. The arbitrators shall promptly upon its rendition deliver a true copy of the award to each of the parties or their attorneys. [1943 c 138 § 14; Rem. Supp. 1943 § 430-14.] 7.04.156 Confirmation of award by court. At any time within one year after the award is made, unless the parties shall extend the time in writing, any party to the arbitration may apply to the court for an order confirming the award, and the court shall grant, such an order unless the award is vacated, modified, or corrected, as provided in RCW 7.04.160 and 7.04.170. Notice in writing, of the motion must be served upon the adverse party, or his attorney, five days before the hearing thereof. The validity of an award, otherwise valid, shall not be affected by the fact that no motion is made to confirm it. [1943 c 138 § 15; Rem. Supp. 1943 § 430-15.] Arbitration 7.04.170 7.04.160 Vacation of award-Rehearing. In any of the following cases the court shall after notice and hearing make an order vacating the award, upon the application of any party to the arbitration: (1) Where the award was procured by corruption, fraud or other undue means. (2) Where there was evident partiality or corruption in the arbitrators or any of them. . (3) Where the arbitrators were guilty of misconduct, in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence, pertinent and material to the controversy; or of any other misbehavior, by which the rights of any party have been prejudiced. (4) Where the arbitrators exceeded their powers, or so imperfectly executed them that a final and definite award upon the subject matter submitted was not made. (5) If there was no valid submission or arbitration agreement and the proceeding was instituted without either serving a notice of intention to arbitrate, as provided in RCW 7.04.060, or without serving a motion to compel arbitration, as provided in RCW 7.04-.040(1). An award shall not be vacated upon any of the grounds set forth under subdivisions (1) to (4), inclusive, unless the court is satisfied that substantial rights of the parties were prejudiced thereby. Where an award is vacated, the court may, in its discretion, direct a rehearing either before the same arbitrators or before new arbitrators to be chosen in the manner provided in the agreement for the selection of the original arbitrators and any provision limiting the time in which the arbitrators may make a decision shall be deemed applicable to the new arbitration and to commence from the date of the court's order. [1943 c 138 § 16; Rem. Supp. 1943 § 430-16.] 7.04.170 Modification or correction of award. In any of the following cases, the court shall, after notice and hearing, make an order modifying or correcting the award, upon the application of any. party to the arbitration: (1) Where there was an evident miscalculation of figures, or an evident mistake in the description of any person, thing or property, referred to in the award. (2) Where the arbitrators have awarded upon a matter not submitted to them. (3) Where the award is imperfect in a matter of form, not affecting the merits of the controversy. The order must modify and correct the award, as to effect the intent thereof. [1943 c 138 § 17; Rem. Supp. 1943 § 430-17.] 7.04.180 Special Proceedings 7.04.180 Notice of motion to vacate, modify, or correct award-Stay. Notice of a motion to vacate, modify or correct an award shall be served upon the adverse party, or his attorney, within three months after a copy of the award is delivered to, the party or his attorney. Such motion shall be made in the manner prescribed by law for the service of notice of a motion in an action. For the purposes of the motion any judge who might make an order to stay the proceedings, in an action brought in the same court, may make an order to be served with the notice of motion, staying the proceedings of the adverse party to enforce the award. [1943 c ,138, § 18; Rem. Supp. 1943 § 430-18.] 7.04.190 Judgment-Costs. Upon the granting of an order, confirming, modifying, correcting or vacating an award, judgment or decree shall be entered in conformity therewith. Costs of the application and of the proceedings subsequent thereto, not exceeding twenty-five dollars and disbursements, may be awarded by the court in its discretion. [1943,c 138 § 19; Rem. Supp. 1943§ 430-19.] 7.04.200' Judgment roll-Docketing. Immediately after entering judgment, the clerk must attach, together and file the following papers, which constitute the judgment roll: (1) The agreement; the selection or' appointment, if any; of an additional arbitrator, or umpire; and each written extension of the time, if any, within which to make the award. (2) The award. (3) Each notice, affidavit or other paper used upon an application to confirm, modify or correct the award and a copy of each order of the court upon such an application. (4) A copy of the judgment. The judgment may be docketed as if it was rendered in an action. [1943 c 138 § 20; Rem. Supp. 1943 § 430-20.] 7.04.210 Effect of judgment. The judgment so entered has the same force and effect, in all respects as, and is subject to all the provision~ of law relating to, a judgment in an action; and it may be enforced as if it had been rendered in an action in the court in which it, is entered [1943 c.138 § 21; Rem. Supp. 1943 § 430,-21.] 7.04.220 Appeal. An appeal may be taken from any final order made in a proceeding under this chapter, or from a judgment entered upon an award, as from an order or judgment in any civil action. [1943 c 138 § 22; Rem. Supp. 1943 § 430-22.] Rules of court: Appeal-rule 14 (6). ALASKA STATE LEGISLATURE LEGISLATIVE COUNCIL BOX 21 99·JUNEAU February 11, 1966 SUBJECT: Supplemental Agenda for Week of February 7, 1966 (HB 142 and HB 108) TO: Chairman Guess, House Judiciary Committee FROM: Jane Asher HE 142: Federal crimes against civil rights are set out in 18 USC Secs. 241 - 244. HB 142 would make the offenses in sec. 241 (conspiracy against rights of citizens) and sec. 242 (deprivation of rights under color of law) state crimes. Sec. 243 was not included in the bill because it provides a penalty for the exclusion of jurors on account of race or color in either a federal or a state court. Sec. 244 was not included because it prohibits discrimination in a public place of entertainment or amusement against a person wearing a uniform of the armed forces, and applies only in the District of Columbia or a territory or possession of the U. S. Alaska has an existing statute (AS 11.60.230) which makes it illegal for a public amusement establishment to discriminate because of race or color. HB 108: this bill amends the law relating to deeds of trust. A deed of trust is essentially a mortgage. A person who borrows money on his property (trustor) signs a deed of trust making his property security for the money borrowed. The man he borrows the money from is called the beneficiary of the trust and the legal title to the property is placed in the trustee. If there is default in the payment of the money the property can be sold according to the terms of the deed of trust. In the law which liB 108 amends (AS 34.20.080 Sale at Public Auction") the manner of selling the property under a deed of trust is set out. Specifically it says that the sale shall be made "under the terms and conditions and in the manner set out in the deed of trust." It was felt that rather than to rely on the variance in deeds of trust as to postponement of sale that a uniform method of postponing the sale should be set out in the law. HE 108 adds a subsection to AS 34.20.080 which sets out a manner of postponement of sale. The wording is self-explanatory except perhaps for the use of the word “grantee” on page 1, lines 12 and 14. AS 34.20.080 uses the terms "trustee” and IIbeneficiaryfl. Perhaps it should be the trustee or both that sign the request. In American Jurispru- dence ilLegal Formslf, examples of provisions in two different forms of deed of trust are: ----------------------- Page 20----------------------- Chairman Guess -2- Feb. 11, 1966 1. H •• and the trustee may from time to time postpone such sale by publication. 1I 2. tiThe trustee may postpone sale of all or any portion of the property by public announcement at the time and place of sale and from time to time thereafter may postpone the sale by public announcement at the time fixed by the preceding postponement. II It should be noted that example 2, above allows for a partial sale of the property as well as more than one postponement, neither of which are covered in HB 108. ( ----------------------- Page 21----------------------- , AlAS~{A STATE LEGISLATURE ( LEGISLATIVE COUNCil BOX 2199·JUNEAU MEMORANDUM February 9, 1966 ------_ ..... _- SUBJECT: Agenda for week of February 7, 1966 TO: Chairman Guess, House Judiciary Committee FROM: Jane Asher HCS2dCSSB 157: This bill was taken up by the committee at a public hearing on February 3rd. A draft of a 2d committee substitute was prepared for the public hearing on February 4th. The objections to the House Committee Substitute were that (1) the requirement for a bond \llould force small reputable buyers out of business; (2) a bond couldn't be large enough to actually protect the sellers; and (~ (3) that the bond would be difficult and expensive to enforce. The argument in answer to (1) was that the bill provided for the Commission of Labor to waive the bond if the buyer were reputable or had sufficient assets to protect the interest of the sellers. The 2d House Committee Substitute was based on the premise that shore-based operations have assets which are easily ac- cessible for attachment if they don't pay the sellers but that floating operations 'should pay cash for fish as they can leave Alaska and are therefore difficult to reach for service of process and attachment of assets. It was also pOinted out that some floating buyers are owned by corporations with almost no assets who return to another state and dissolve their corpora- tion. The committee decided against including payment by check as well as cash because if the checks aren't good, you have the same problem with process, attachment and assets as you do with credit buying. The committee decided against including shellfish since there is no problem with the purchase of shellfish. The committee considered whether a seller should be able to waive the requirement tha~the sale must be for cash in those areas where there is no probl~m with credit sales. Such a provision ----------------------- Page 22----------------------- Chairman Guess -2- February 9, 1966 would probably be proper if the classification of persons in- volved can be substantiated. Sutherlandis "Statutory Construction ll Sec. 2104 says that legislation is not class or special legislation if lithe persons or things embraced by the act form by themselves a proper and legitimate ,class with reference to the purposes of the act. Constitutions do not forbid a reasonable and proper classi- fication of the objects of le~islation. The question is, what is reasonable and proper l • The committee must determine as a fact whe.ther they think a limitation or waiver as to area or persons to be covered by the act is reasonable and proper. Since the act creates a crime, there is also the question of whether limiting the crime to a certain class of people or allowing waiver of a criminal provision is proper. But again, even with crllnes, it is sufficient if the classification is reasonable and proper. Only a waiver shpuld be acceptable as proof that no crime was committed .. One section of the 2d House Committee Substitute makes the seller subject to the same" penalty as the buyer for accepting payment in other than cash. This section is based on the c fact that floating buyers can be outside the jurisdiction of Alaska and the only way to control them is to make it a crime to sell to them on credit. This was the approach taken in AS 43.75.100 which makes the seller liable for the fish tax if he sells to a floating buyer outside the jurisdiction of the state. It may be no such prob- lem exists in relation to this bill and if so it would not be "necessary to make it a crime for the seller to sellon credit. SB 177: The Director of Securities, Department of Commerce, called my attention to a typographical error in AS 45.55.140(b) (5), that is the word "onll had been erroneously written lIor". This bill corrects that error. SB 117 am: Under the Alaska Business Corporation Act, (AS 10.05) names of corporations can be reserved and registered. This bill uses about the same language as is found in AS 10.05.024 - 10.- 05.042 but allows the reservation and registration of the name of a business which is not incorporated, that is, tl any commercial or industrial enterprise which is not incorporated and which may be owned by a person or persons, partnership, firm associ- ation "or organization ," (Page 3, Lines 5-8) t The Senate made the following amendments in the original bill which I drafted for Senator Pollock: . II / " 11 Page 2, Line 22: Delete from. year to year and insert lIevery five yearstl ----------------------- Page 23----------------------- Chairman Guess -3- February 9, 1966 ( Page 2, Line 23: Delete Ileach yearH Line 27: Change !leach'! to "anyl! These amendffients create the conflict between secs. 10.35.060 and 1.0.35.070 as to registration each year or every.five years. SB 15: This is a bill introduced by request of the Legislative Council. A full explanation of the reasons for the bill are found on pages 24 - 27 of the If Legislative Oversight of the Administration of Statutes" published by the Legislative Council in January, 1965. Copies are attached. The bill passed through the Senate with a unanimous liDo Pass ll recom- mendation from the Judiciary Committee and a floor vote of 19--0! HE 349: This bill was introduced by the gov~rnor with the following cover letter: Pursuant to State law and the Uniform Rules of the Legislature~ I am submitting a bill which adds a penalty section to the statute in which malicious damage to markers, posts, and signs is prohibited. The penalty was inadvertently dropped from the statute when it was amended in 1962. ( This letter is not technically correct. Ch. 23 SLA 1962 didWoT drop the penalty as stated in the letter'. It simply moved the penalty to a subsection of the second of two sections on the subject. See copy of Ch. 23 SLA 1962 which is attached. A 'supplemental report on HE 108, 142 and 279 will follow. ----------------------- Page 24----------------------- IIS)10a.N».1I --~----'--- ·"t w. ......, Qa!.rlllJa, Ju4So'kI7 ~,.. PaOlI: Jaae Aaber ".fta ton..- ... ......_ .. tae....... r.r 'the week ·Of J ...".31. II!!!: .....ttl..,.'..........,. to taU tore- 1I .~ ....... *l 1JII'IItt.after,DR1....~ the ,J'eD1al ~.. .. "&red. Lut I'8&r AS 28.3'.026 ..........1dlIs 1:8 It en. , ....... ~8."'.U8., .... D·....... 1.Q'peot .tatat.~ 0.' , 1, liM 14 ttorft aIlcRd.. M norn. JlB1.1!:: ~-111 ...... " •••t;lGrelatSaa.to ........... •a.x•• .". reQlIlr_ .., ..JOu.oe81- ~1•• ·tothe lte.hold.er .. _ .. _11 .' tile ....... tM~ pie. up a Yeldel••1Ie¥ed t. 'be .~d. lIB 299: '!'Ae"111 _ UIe Wt-.s ~ltm'l_ Law ..... lit 'Ihi Jlat£oDal eoat~ ot tlle 'e.....ilaen .. aauera 8'ue Lava. ad ........ ,.. tae_. of Deleca__ ot va. AllerSoul Bar Aaaoe1a"le. 1Ir...... JIIlleJrtlrat"'d 1Jke bU1..and :8aI'JI: -.1'8 ·are a :rew feraal ,...... wh1.wU1 1M aeted .. __ *,.....*OWet tile .!tona An troa .... ..ttUl ... 'CJped. lle4era ""trat~ la- ala, m .....a"~ ......tate ... _. IlaYe .. Ufll...tS.o. 1.w. a ..1__.,., .....8JI8Ilt; ,. aftdtftl." ~""l'Overale. CD .. ~re4 ,. .. ~... Mae ."1" baa .DO 1._~t.,eIIt.roeraeat. B8 310: \'Id.a, bUl al1..rerSld;ereetJ. _fttre __*fa 8 ..... __.au1Gll tor'....... .._.nstW0t44 1iIe- C.~-:r~~~WL-='::-J.·:.!:l·:- ae:at.oa aroM. .. la1l .......t17 prov"" .tor Sa....., ae- as-_ .. 1iU ·....t l.'wtpe"* •. UZI .Au".Aa~a.36~010 or,tlt.ltlll._ ltaee4,. b~lecSe14.S. ... ,!, ft9111e .~~,., ..-.npraoclAes•. A,*-eaetl 18 a ....t····"" ~I"l a...rd he _$. ,_ 11111 .. ·..... AS 2.2.30.010' sa *lie ... all .ext.a,_ laW. \'he ........ 1-.... ortl7 r... ..."1..... '*l1 ~...ltil1 ..,.u.e8. 01___ detalld p~ tor"" .' .. ·.tJIaU. Dda .'1Ire,••JaA81,e.50.·* ... 100 .........ildDa fer ,,'erial ................. tDa- .-3..'elaa. ----------------------- Page 25----------------------- -2- : The present law 8878 tba·t ~he tem, of a pers01\ aea- to _r18~Dt 'beams OR ,he_be 1s aeftteBce4. I th1aklt !fl. tbemtent. o.r th1a bll.1. that 'be person aball receive credit totfU4 tds. sentence tor t1meapent .' !aCU8'~ pead_ trial or Genteno1Ds. .1;1 it lIaF 40 sometldas Glae. It ..,.. deprive 'b!m ot credit .from the of' aeatenotas _t11 Mia reeelYe4 at the place ~beldll aerftt Ida ..teaoe. Perbapa I. am read1.Ds tile. 1~'too 'ee~all7l but perllapa tile tint aeatenee sbould. be le:rt m~he;p'e8..t law .tat_ tbateon,t1DeIleat ~~tbe ... ofeeateao- _ ad. thea. aA4!DS the' ·DeW ...teacesiy·_ the def~ 'cre41t toft tille .peD~1De_t_ trial orseDteac1Ds .. See attached dratt. P'I3if= 'Dda'18 a bUlmtr~ .., t.,.~ cOllllttee ·aatI ~t ·Ii sef-expl.aaa'to17* !!Ie reault of the btl1ls to br1RC a t01'91peorporatlo1l t1Rane1D& lftatallmeat sale. ua4eratat.e regulat,ioa.• : . Oft P8B8' 1, l1&e 10~thewrd '"'pro1'Oae4~' 18 ",deleted oauaeltaho\l1d DOt be tbere. !be word .PrO)108e4·'· Sa ~- correct 81Dce there are ftO p;rov18,101t8 "tor the .·taDdarda to ~.... ~t ,p clear from rea4_ thee.tire, aect10D tbelt "opropos.4~cahoU14 'be delete48iDee the' eonds- 810a c~a tbestandardB.if' TAe ~tto AS 44'iI{19.260 relateato atep 8DIle_t1on~ The aaeadme:nt require. tbat the local ~C:OID1a.1oa obta1n voter approval .r:rom tile .area to be ana.exed betore be- &~a ....xat,ioD. There .18&questtoa of tbe ~. meat belDS coaat1tut~1oftalUDder Secc. 1<2 otArtlole ,X 01· O\U" state cODStltu'1oll. See·~. ~2 Slws c'8Ram powera to tile e~1oa ''*1Gb mar be l11Rlte4_ the ......t sa ttda' bUl. See., 128.,.. the local ~'COIRSae1oa 1\870.,,· 8:1de1' and PftaeBt. ·to the les181atve aD¥ p~~ ~, and that the chaDge shall be e~t'ectlveunl... 4ls:ap- proved _the leclalature. lble.·.·...., .. !' .t,_.)PH.. ,..i8..._ .•. t.·... ft,_,~,··.•.·'·.. ·a..Jt1aD.·...... '.• 0.'.t'.' t.. ·be........ ·•. ...· ~wu..... ··'...(ft.'.···.tl.,'.... e.• 6.t. Sec. 2051· relet. to atep ....atlOft~ t11e eORd.u10A IIQ" allow the vote ~dby t!dJJ bttltmt- 1;be COBIiB(fion 13 Dot bound bvthevote. ----------------------- Page 26----------------------- A LAS K A STATE LEGISLATURE LEGISLATIVE COUNCIL BOX 2199·JUNEAU MEMORANDUM SUBJECT: Sectional Analysis of HB 353 Re Wiretapping TO: Judiciary Committee, Chairman Guess I. GENERAL. HB 353 is concerned with what 1s commonly called wire- tapping or eavesdropping. Section 280 pertains to the misuse, interception, and divulgence of messages sent by wire or radio and Section 290 is concerned with the recording or listening to oral conversations without the consent of at least one of the parties to the conversation. A violation of anyone of the sections of the bill is made a misdemeanor with a maximum penalty of $1,000 fine or imprisonment for one year, or both. Under the federal act, in order to obtain a conviction, both interception and divulgence must be proved. This facet ( of the federal act has been extensively criticized by the U. S. Attorney General's office. Also, it is not clear under the federal act whether an innocent interception is a crime and the federal courts have split on the question. Section 280 of HB 353 avoids those problems. II. SECTIONAL ANALYSIS. Section 280(a) applies to the employees of a common carrier communications system. It prohibits the employee who takes the message for transmission, the employee receiving the message and any employees assisting in those operations, from divulging or releasing in any manner the meaning of the message, except to the persons listed in this section, through authorized channels. It is to be noted that a court may order the divulgence of a message. Section 280(b) deals with the initial acquisition of a message by persons through the interception of the message at any time. The section contemplates an intentional inter- ception. It should be noted that under this section, the interception alone constitutes a prohibited activity. There is no need to prove interception and divulgence, although the latter activity is also prohibitea-Dy this section. Section 280(c) prohibits a person for whom the message is not intended, regardless of the means by which that person received the message, from using the information he has re- ceived ror his own or another's benerit. ----------------------- Page 27----------------------- -2- Section 280(0) prohibits a person from disclosing the meaning of the message when the person has actual knowledge or should reasonably be expected to know that the communication originally was obtained in violation of section 280. In this case, the person would, of course, also be violating section 280(c) if the person used the information obtained for his own or anotherts benefit. Section 280(e) prohibits a person who is not entitled to information, but becomes aware of the contents of a message although not actually in physical receipt of a message, from in any way divulging the meaning of the contents of the message, or from using the information for his own or another's benefit. ORIGIN OF SECTION 280. Sec. 280 is based primarily on section 605 of the Federal Communications Act. The bill does not make innocent interception a crime except in the case of a person using infor.mation obtained for his own or another's benefit or the person divulges any information he has obtained. Section 290 makes it a criminal offense to listen to or record any oral conversation without the consent of one of the parties to the conversation. It covers not only a tele- phone conversation, but any oral conversation in an office, home, car, boat, or any other place a conversation might be ( held. It prohibits the illegal use of any type of eavesdropping device, electronic or otherwise. Section 290(2) prohibits a person from using information obtained through illegal use of an eavesdropping device for his own or another's benefit. Section 290(3) prohibits a person from revealing the meaning of any conversation heard by means of the illegal use of an eavesdropping device; and Section 290(4) prohibits a person who becomes aware of the contents of a conversation from revealing the meaning of the conversations if he knows or reasonably should know that the information he has received was originally obtained by the illegal use of an eavesdropping device. SUPPLEMENTARY CO~{ENT - EFFECT OF BILL ON POLICE AND ADMISSIBILITY OF EVIDENCE. Neither section 290 or section 300 (the exemption section) makes any exception for law enforcement officers. A law enforcement officer is subject to the same penalties as a private citizen who violates the provisions of ( \ ----------------------- Page 28----------------------- -3- the bill. Law officers would be permitted under section 290(1) to record and listen to a conversation with the consent of one of' the parties to the conversation. The most common examples of when this provision would be applicable would be in the case of' a kidnapper who has told the victim's family he will call them or obscene phone calls. Along this line, it is to be noted that only six states permit, by statute, law enforcement officers to obtain evidence by wiretap or other means. They are Maryland, Massachusetts, Louisiana, Nevada, New York and Oregon. Of these six states, only Louisiana does not specif'ically require a judicial order preceding the tap. --- Six states prohibit, by statute, the admission of any evidence obtained in violation of a wiretap or eavesdropping statute. They are Maryland, Nevada, Illinois, Rhode Island, Oregon and Pennsylvania. Overall, 39 states, by statute, prohibit wiretapping or electronic eavesdropping, while 11 states prohibit only physical interference with wires. In regard to evidence obtained by wiretap or other eavesdropping devices being used in a court proceeding, the bill does not in any way change the existing law of Alaska. The admittance or rejection of such evidence is left to case law and the rules ( governing the admissibility of evidence as interpreted by the court. Sec. 300 of the bill simply lists the activities which are not to be considered criminal under the provisions of the statute and is self-explanatory. III. REPEALS. Sec. 2 of the bill will repeal provisions in the present law that will duplicate provisions of' the proposed bill if' enacted. Sec. 2 amends AS 42.20.050 by deleting subsection 1 which makes it a crime for one to divulge the contents of a message to any person other than the party for which it was intended, his attorney, or agent. This is covered by section 280 of the proposed bill. Sec. 3 repeals AS 42.20.100 which deals with persons taking messages from a telegraph wire or intercepting a message to which they are not entitled. This activity is covered in section 280 of the bill. ----------------------- Page 29----------------------- ( ) ----------------------- Page 30----------------------- \ .;1..1 JUDICIARY COMMITTEE MINUTES January 28', 1966 Chairman Guess called the meeting to order at 2:15 p.m. The following members were present: Messrs. Josephson, stevens, Taylor, H1llstrand, T1llion and Metoalf. The first order of business was BE 138. The following people appeared in favor of the bill: Mr. Joe Kirkbride, Director, Division of Worlanents Compensation,- Department of Labor; Mr. Lewis Dischner and Mr. Henry Hedberg, repre- sentatives of labor. Mr. Josephson offered the following amendment to the bill: On page 1, lines 19 and 20, delete "When a judgment of default is entered by the superior oourt," and add in place of it, IIAnytime after a supplemental order by the board,". Motion seconded and passed. ( Mr. Josephson moved that SE 138 as amended be reported out of committee tlDo Pass". Mr. Taylor seconded. Motion passed. The committee next oonsidered HE 167. Mr. A. W. Lingle, Director of the Division of Insuranoe, Department of Com- merce, and Mr. F. W. Eastaugh, Juneau attorney representing the National Association of Insurance Commissioners, appeared in favor of the bill. Mr. Taylor moved that the bill tlDo Pass". Seconded by Mr. stevens. Mr. Taylor asked unanimous consent. There were no objections. The last bill considered was HB 275. Mr. stevens, the sponsor of the bill spoke on it. General discussion resulted in a request to committee counsel to prepare a draft of a committee substitute embodying the matters disoussed for oonsideration by the oommittee. The Chairman announced that the following day the committee would take up SB 220 and SB 176, 182 and 184. Meeting adjourned. ----------------------- Page 31----------------------- Under SS i. II the Attorney Gene:rel~ upon request ot the COJlJl1aaloner or Labor must atve lepl aas»tace to a recipient of work'lleRa I eompenaatlonmthe collection ot' del"aulte4 ~nt. a Ju4p!ent ot •.fault .baa been entered b7 the superior court .. The.. c7u4icia1'7 Cowalttee amendment would allow the legal asa1stance of the Attorne3f General to begin at aDJ" time atterthe supplemental ord.'r 01: the *>rkmeaa' .Compen- sation Board since ltD at tbat time that action 0e81M in the superior court 4 The effeot otth1s bill as amended is to allow the reclp1ent of W'orBmens 'eompenaat1on$ whose emplo;rer bas defaulted in pafment of the award, to have sta,te legal &sa18tance 1n colleetmg the award" ----------------------- Page 32----------------------- \ REPORl 01' JUDICIARY COMMIftEB ON lIB 161 HB 161 will allow Aluka to retain state control of its 1rmuraAce lndustry * Tbe language or this bIll was taken, t'rom tbe reSUlat:1ons of the Securltyand kohange Commis$1on. U~b18 b1111a Dot passed., the. 3.E~C. will reSUlate our dOmestie oompan1e-'1n the Bale manner provided by thla b,111. 'fhe state was· gIven until Ju11 1;$1 ,tg66 to pass thls b111 bef'ore the federal gove:r.nment takeaover in th1a field .. Slnoethe sta'te presently controls ita lnsurance compan1es, it wae felt tnat regulation should DOt be given to the federal govermnent 1n tbis are.,. ----------------------- Page 33----------------------- JOURNAL SUP P L E MEN T Fe 'oruary 23, 19C:5 H 0 USE No. 11 HESSAGES FROf.l THE GOVERNOR February 23, 1965 Honorable Warren A. Taylor HB Chairman, House Rules Comrrdttee 167 Alaska State Legislature Juneau, Alaska Dear YlI'. Chairman: Pursuant to State law and the Uniform Rules of the Legislature, I am submitting a bill relating to insider training domestic stock insurance company equity securities. This proposed legislation authorizes the Department of Co~~erce to regulate the purchase and sale of stocks and other equity securities of insurance companies organized under the lavls of Alaska. This bill. is designed to regulate purchases and sales of stock by officers and directors of the companies and persons ovming more than ten percent of any class of equity security who, by virtue of their positions of influence in the company, could use their knowledge of company affairs to makeur~easonably large profits from the purchase and sale of its stock. Such legislation is necessary to assure continued regulation by the State of insider stock transactions. The Federal Government has by law given states until January 31, 1966, to regulate such transactions; if after that date the transactions are not regulated by states, the Federal Govern- ment assumes jurisdiction over these transactions. Sincerely, /s/ Hugh J. Wade Hugh J': Wade Acting Governor -1- ----------------------- Page 34----------------------- ROBERTSON, MONACLE, EASTAUGH S ANNIS ATTORNEYS AT LAW R. E, ROBERTSON (1885-1961) P. O. BOX 1211 M. E. MONAGLE 200 NATIONAL BANK OF ALASKA BLDG. F. O. EASTAUGH JUNEAU, ALASKA 99801 PHONE JUNIPER 6-3340 R.J. ANNIS CABLE ADDRESS: ROMEA J, B. BRADLEY January 24, 1966 Hon. Walter E. Guess, Chairman House Judiciary Committee Alaska State Legislature Juneau, Alaska Re: Fourth Alaska Legislature - Second Session HB 167 - Inside~ Trading Statute Dear Mr. Guess: Supplementing our brief conversation on the subject bill: Jim Newton's letter of January 25, 1965 to Al Lingle, enclosing extract from amendment to the Securities Exchange Act of 1934, indicates the federal interest in states enact- ing the Insider Trading Statute. Copies are enclosed. Comparison of Section 16 of the federal act with HB 167 shows the latter embodies provisions to effect the re- quirement of regulating sales of insurance stock by directors and officers having "inside" information as to values of such stock. I also enclose two page copy of proposed bill for state enactment as recommended by the National Association of Insurance Commissioners at their 1964 meeting. I first drafted a bill from this information and submitted it to Mr. Lingle who then sought Attorney General approval. It was approved after language incorporating Alaska bill drafting requirements was inserted. As you know this approval was obtained and the bill introduced by the Rules Committee at the request of the Governor. Enactment of HB 167 will allow Alaska domestic insurance companies to come within the exemptions allowed in the federal statute in those jurisdictions which have provided for re- porting such "insider" transactions before July 1, 1966, the scheduled termination of the present moratorium period. ----------------------- Page 35----------------------- HQn. Walter E. Guess January 24, 1966 Page 2 The bill was referred to Commerce, which recommended passage, and Judiciary. I hope you can schedule this bill for consideration by your committee at an early date and would appreciate the opportunity of appearing. F. O. Eastaugh FOE:enk Enols. co: Mr. Lingle Mr. Martin Mr. Taft ( ----------------------- Page 36----------------------- IN R£PLYING "L.E~IL QUOl"E UNITED STATES SECURITIES AND EXCHANGE COMMISSION REGIONAL OFFICE 9TH FLOOR, HOGE BUILDING, 705 SECOND AVE. SEATTLE. WASHINGTON 98104 Mr. A. W. Lingle Director of Divisinl1 of p(~ni:ir'·~.· " Insur-3nce anl.~ Sec-uri ties Deparrment of Commerce R() 0 [1": 1 1. 5, A 1 ask a 0 f f:i c e B(d 1J 1. r. g Junean, Alaska Dear Sir: 1~e FederAl Securi.ties Acts administered by this Comrni s c: i ,"'In were amcnri ed und er c;=J t e (' f ALlguS t 20. 1q 64, t(' rcnuire cOffiol1Ance with cert?in rep('rti_ng, f'\roxy. 3nd o t h t? r r u 1e S 0 f t h i, ~ C0 mm i ~ s i (' n [) veL' r !)1.1 rat ion R C' f (~ c e r t ~i n size 'h'it'h a certr.:dn numbt't' l)f st()cl(hol'~~ers. Tht?$e Arrendmer;ts c·ynrE'ssly provide, hcw2ver. that 1 ins:Jr..-:;n(..:e ('('mnarit-'S which ,~r,-j sl\l;iect to -l.nd do cnTl 01v , ... ' . with c,:,rtai'" mi.nimufTl st;1~\,1:)r"': .. i:" their stA.tt.' l')f lDcnrT)orCl- tic:! ;'j~-e exempt '[rOll' l)orl ;;.I·lS ,'of t ~1e l':1w. To en;qh1e us to d(>u''(iTI1ne whether Any L'.'-:- th' ; nsur·2nce comr>r1ni_r.?s in- corp·:'Jr<':'.te'J i.n y(lur state l1t"r-o I~>ll\! tled l(i be exempted frol)l these l:P.\'; regulations by virt'F:' ,:f your laws imnosi.ng min i ~ U IP S t 3 f': d :~ r d s, ~. e wnul j ('J :) P r ',-' C' ~ atE' he in g Lr; form e d : 1. ~.]h e the r y 0 iJ r ~ t ,'. t:, r t' C] , l -1 r ~ s ,1 n n u a 1 rep c' r t s t c be f 11 e d y,," it:' , 'I, 'l], ': iran (1 t h ~ r 0 f f ~ c i ;:.11 1 substantially ~i"cC'-'r·:?nce Ylith ~he 1~":'quirt'­ rnents prescr{~'f'{: ~\' th~· ~~;1tiorla]. /\sso(~iation of Insurance C('n'~f,; ~,S i ('n(.)rs. 2 . \.]'h e the r you r s t '3 t ereg ul ate s the 5 (! 1 i. cit a t ion of proxies in rtcc0rd<1DCe with .the r~qu'irements of the 0:ation81 Assc'clatiC'n l)f Insuraf,c"= Com- missionprs. '3 • Hhether after Ju1v 1, 10 6(" the our-chase .::lnd , . ~. ,. ~ M 1e '0 f the '1 n S U l q nee (' ,)IT: '!" ~ n y sec; :..1 1. tv secu - i r i_ tie s by ben e fie ; a 1 CJ ,>/1", e r s n f 1nf. ,)r mo r e .._._--_..-:-:-- _._-_.--::----_ ..----.-- ..____-------,c-r-. ----------------------- Page 37----------------------- of a class of the issuer's securities, by its officers, or by its directors, will be subject to regulation -- including reoorting of trans- actions by those persons and recovery of short- term trading profits of those persons by the corporation -- suhstantial1y in the manner pro- vided in Section 16 of the Securities Exchange Act of 1934 (a cory (If which is enclosed). Inasmuch as an in~ II ;~~.. :.' (',mp any, to be exempt, wi. 11 h av e to be subj e c t to S t 2 t- C' ( ,',-,' s .~ :'1 t j s f yin g e a c h 0 f the s e categori.es, it would he h(':-')(~.i1 11 you v,7ould furnish us copies of the relevant port~(\; s of your statutes or rules relating to these requiremenr·c;. If to your kno~ledg~ ~rooosals ar~ to be submitted to your legislat~re for action to obtAin the benefit of the insurance company exemption from the new Federal laws, we would appreciate your advising us of the nature of these proposAls. Your cooperat~on i.n this rn.qtter may be of assistance to th insurance industry, and will certainly be of assist- Ance tG this office. Very truly yours. JameA E. Newton RegionAl Administrat0r Enclosure c· ----------------------- Page 38----------------------- :21 1'1 f,,!c.,' to hrinE-' :-:I~,h sl1it v.,itf'I:l :-!xfy \:(ty~ :,ftt~r l to apply wiz' . 'ct to all,\' tlanSadl()1l b\· a ]\'(!lH':"t \)1' :-1:;,iI fail diligently t') pr :secut6 the .. \ brok~r or drai" ,., ;dlY (>X(,~1IptPd security. 'II'!!' : It'rPtl ftpr: but no sueh :--lill. ~~ll:ill 1)\, brought ,n) If any i ;\-;:-;ioTl of this S('eti()l\ I~ iT: ('\)!\ II' ': :,,1I. t\\() YC'ars afu>r ll\t~ date. :;;ucL prof:t wa~ (lId with allY :,,·pv:.-;ion uf allY b\\ of the l~!l:!t"i I,I'!, T!I;~ ~Idl:-:l'dj(}!l ~h;dl J:'1t LW ~'()lIstl'li!'d Sf at l'S III fon , ,,;, 't' datI' this ,';l~ClioIl t;J~ps ('£1".' ,) .,' :\11 \' I J':IlI~;l<,t ion whpl'f> slli'h lJt'Ilt'ii(.'lal t lie pro\'i~i(J1; '!':-: ..,e('.lj~Hl :-.l.'lll pnl\(lil. 1 I".' \\;1:"; not :';lldl h(,th :\t thl' tllllt~ of the iJur- "lli,d :;:lil', ()t' the ~alt-> alld 1:l1J'f·licl:-'(>. of tt,e Directors, Oft;,'~:r-.. and Print'ipal Stockholder:-; ",'1" jil\'(>in'd. ur any tnU!~;tel10Ij Id' trall~l'> :--;u,,"nll,'" 1\" (:1, Every persoII whl) i~ llircctly or :(' ," \\11i";" tla' ('(jTll1Il1~~!t)n by nl1(h) alld rqpda- 1lidin'dly thf' t>;.'IlPtlcial OWI1er of 1I1()1~' than 10 pt'!' I ,,1.~ 1.11':' ()o.i·lrq,1 ~i,';; Lilt. /'OIlljll'pL'·TI.}"d WiT[llIl l'i'lI! ll!il /If :lTI.\ ·'LI-:~ uf (lny t'qIJl~y ~"I'ilr;ty (\111"1 : ',1' i' '!l'.'~" .1 I ~.I·; ~1;l)<':f'l,tinn, 1;"\1 PI'. din'ctly 'i,' lrldin'ctly, Ii ll'. at tIl p till d' (I f r !It· I I'g i~.I ('; I: i I • : I ,) f S\ If" h "'I'i' I .1'1 t .\ 1·, -:"il any "(lllity ,"lI'I'llriry (If such !~::;Hl.'r (titLer ul' wdldll tt'l: ("I:. ~ 'tflfl ilt"lwl"!lIIl'~ "'!!(!I lll'!l!'!:i'i:t! IL,Il! ~m ('xt'~lIp!('d ~l'CllI'it.\). Jf ~~lt' J)I'r,-flll :-;ellil,g 0\\'111'1'. dilt"'~I':, (II' I'!li,·~'r. a "'l'd('I]It'1lt ""jtll 1 1:1' tIll' -"'t',!:1 it," III' ili:-- pr;:ll~'ip,d ( 1) d )t.,.. ',.;t own tin' I'XI Jtall;':l ; ~IJld '( '·'ld.C:ITI' ')l'lL';Il:d iL"lt'I,f witii ,,1,1,\ .... (,It! .. ,r (~, if (;WI1it:g the .-:P,·idit.y, d(I'·'- tlU' \..'1':1",,,- "of: \ ·d t;~I' allilolillt IIf ~t11 I'ql;if\' :-:'" ! II: .j,.',\t'1' i: 1~;(;ll<.;t ~Il('h ~(lk wit:I;!. t\\"~.'nl'y day::: \ '11 r! I .l·... I I f ~ I " i. i....~: Ii'l I)f wi IJ d I be i... t h I' tJ" Ill' ; :( , 'tl t hi'! n fill', OJ' dues liOt. Wit hin tl\ e dil}'::' ;) fter ,.,Ud1 O\\'l\vl, and \\:j ~;;l, li'l: \1:1."~ d~~l'nH-'d ~'h:llIg" 1lI '-:;.L <\\'\III·!'.":!I:P dlll'in!l':-III.'11 1111111:11. ~ilf',·i .. ,· III guftd ra:tlt b" 'Wa." catl' {,ri;.rlli·\i ~:I,·r'l·,d' ',qth tliP- ('1)lllllll;::;JOil) :II'!' lll;,ddr' \(1 l!lake :-;lJdl dl'lin>ry or dpPOSlt w~ti:i;' i'at;pg lti~~ ()\\j'tJ'"hir ilt lb, I lkl' of tht' (':liPIII\;'r ~1J(')1 ljrll~~ (II' rhHt to do ~o \\()lIld l'-<'lU~l~ 1!T!dtH l~.· nHJlllh ,lilt! :-:iI"L I'hall,:.(t'·:", illlli~ fl\\'11f'r~Lip il~ ll(t\'\.' ('on\'('Ill"I1Ce or t'xpcn:*!, O{,(,lirll·d d\l"111g' ~lll~, l'ah'I:,1ar TIIOlltli, (d) The provlsiollS (If this :-;f'ction shall n.ll tIt) FIll' tll\' PlIl'[d)SI' fit jl('I'n'lItillg tht~ lInf:lir U:-lt"d'lIlf"Y'III;t(!()1l ",llil] Illay 11:lH' 1ft'en phl:iil,hi I'. dirt,,'tnl', fIr ()Jlii~l'r \'.\ tH,Tt;'; ,11111'~~~~ r!lade in \'\lI!tra\~'llt:{)P (If ..,\jcll fill":' n'a~i)l: of hJ.'· !·~·1~11 i()I1~illP II) t lip i",;sHl'r~ nny prl.,;it ;1 r :,1 l""gubtioll;o, a:) Ill\' C'1!I1mli~;-;i\,;1 !l\ay lido!'! III n>,ali"I·d i,y ~1''1; f",1]'. allY pIJr,.'lu<~n .In.! ~,d,'", ';rlkl' t{) ('arry (Jilt tht:: purpu~l'-; of tlw: ~'~dipilo :ll'y ~:tlp i11'd (ill'\ l,a:,(:, l)i a:,\ f'qu i1 \ .",-(·U1I'lty ,,1' :-;.i'·)~ js~urr (ld~I"1 than an pXPllq·!t,.l H\('(d:ty) Ac('ounts and Records, RE'ports, ExaminatIOns \\ I(iiill :1",\ fl"l j,'d ,,1' 11''':4 tli:ll, "';); 1Ii'lll!L::., lll,ll'> of Exchange:.-, ..'lemhers. and Others :-'11\:11 ~1'('111 ;t,~ \'. ,! .:. '1(;il'l'd IT! t-(c)(.d fadii ill {'I)TI :--;1' [11.:,\' 17. (:l) l'>"t'ry :Ihtil'llai :-!t~('urities px- !\I.... ti,,), '.\'!' II ,\ (;,II( PI'i~\'!II:~,:--ly ('Olltraclt,d, o.:h;111 ,·II:I'!:.'I', I":pry IlWmhl'l th"·J'I'I'f. \'\t'ry l'!'ukcr "1' A inur.,·!o ;11!1 to;. I' '!I\'I'I':dtll' by llit. i'~,-'!I\'r, Il't't':-'PI'" :1.,;,1\,: \\ :)" tLlll...:art~ i1 ;"1.':1\1'..., ...: lIt ~('Clir.t1t':-: 1;', p I,:' an,\ ,::"':,!IOII IlIl t.hl· l':lrL (jf ;":llch bt'rH'.l:,'!ai llt[(ld~rh llH' Ilwdl,:;n Lf a:,., ":11,,11 !lH'Ilibp[,. P\'t'!'V \~\\'lll'r, ;11I't" 1(;1'. 'II' (,tlit'/'r ill ('llti\ri:lg llll" :-Ildl tl':lii.:;lf!]L'; r :;.,l,li)l~ rlt,' ~h'llrity rH11'1.ha:';t'd or llrnk,'" (II' de!!L')' 1't-;!i:-::\'l'pd I'\: !,:;!!;t I,: : .. ~P"; ;,,', i of Till: 1I'1'11!"')'" ;!;g fl,(, o.:(,t'tll'i:y ~(lid ill1' a l)(,fIO(t I\f {k~ ·rill·.' :-:hall 111.t!\f'. kt·\·p. alld rrp';;f>!'\'" l,·; ex,:~".·dill~ :-'\, ;'l,\fllh"" :-:\(llt II) ru'()\ I'!, ::lld, pr,tlit may [H' ;1'0..:{ it till',! at. hw or in I'i{lltty ill aIlY cn!lrt £ ~:t"t'TII1!'i :J of l',:hlit' ~I' 719. 7~.rh ','OJl,J.!. (;~:.: !'t'lt Ilt·:. of ('OHlpett':lt .ll:ri-:didion Ly tb' IS:-',liPr. or by tlit'. ;ld".'t; ·'t·V.'I)' rt·)!"i"'~I·r'·d tooPPlJr1;L'4oI ,,~ ... ),·i·l'li·l.. o'o\'llpr ()f :l::Y ... ··(·lir:tyof tIlt.: h:-'IH'I' III UI\~ IliUrle alld .! ;-:,J'TI"'-': ~ C)r l'I!t.Il<- :"\.., 'i'':! i~lnl l',:,' t:' :o\~Il' , ... \ ft:"Or~tlltt-"'(l ··.·'·pr·. Lrokl·r ir !.··dp" ~~~.~ft·rp.i i'·,r.:IJol,.t :i: iH'Lalf ()f ;~:iltI'I' if t}l\~ I:-:;,uer ;.;!1all fn;l or '1,;; It, i.( thi:- rtt;,·· (II; ·t·'·J'~." ~ir."f..I·r 1,- ·1.t'.'\(.·r ..il~ .. ''';!·;.. !l'.t'li)! U !l1dri\,·r f-,r i.lf:n t·,,', "llr'·~,H:-l.' i-ttl,i. •. " flf "0,.".1', I ~1'("d"!10 1;,.i. . "I(I·;t~.l '.: I'uhlk ~(J, 71<), 'nitl, l"'I';~ ,,,_ .;,.i;"':'~ !ht' lS~t~ of ~!I') '~"I.·ii .. "r n~ •• ' ..... ll!fa.·~ ~\.r ::I ... ~;"';IU Stili. 10701. .lLi· ,~ ... !tf· COfl!i1i'· ... :·t· ..\\!.~; "'us ·~.l~r.!.,! ! ..... ill"f .1 itt •.1·:. ----------------------- Page 39----------------------- ... ~ AN ACT CONCERNING INSIDER TRADING OF DO~~STIC STOCK INSU~~NCE COMPANY EQUITY SECURITIES B~ I~ Enacted ~ the General Assembly of the State of ( ___________): Scct:Lon 1: Every person vih.O is directly or indire.ctly the beneficia C~;]l1~i'" of more than ten P€:I." cent of any class of any equi ty security of a domestic stock insurance company, or who is a director or an officer of such company, shall file in the office of the (superin- tiCaaent) (commissioner) (director) on or before (the thirty-first day of January, nineteen hundred sixty-five), or within ten day~ after he becomes such beneficial owner, director or officer a sta.tement, in such form as the (superintendent) (Commissioner) (dil:-ector) may prescribe, of tLoe amount of all equity eecuritie~ of such company of which he is the beneficial owner r and withir~ te:ll days after the close of t::'2ch calendar month thereafter. 1£ th~~'~::: has been a change in DUe!:-_ ownership during such month, shall file in the office of thl2 (::':!l!(~j ..~:; ··oJ him of a primary or second- ary market (otherwise than on an exc~~nge as defined in the Se- curitie:; ::~·",·_change Act of 193~-) f or such secur1 ty. The (superin- tendent) ,:'-;()rnmissioner) (director) may" by such rules and regu- lations ,;;.. i18 deems necessary 01'"' appropriate in the public inter- est, dei':LH',S and prescribe terms and con dltions with respeot to securltiB~ ~eld in an investment account and transactions made in the ordinary cou~se of business and incident to the establish- ment or maint~nance of a primary or secondary market. Section 5; The provisions of sections 1, 2, and 3 of this act shall not apply to foreign or domestic arbitrage transactions un- less made in contravention of such rules and regulations as the (superintendent)· (commissioner) (director) may adopt in order to carry out the purposes of this scte sectio"n 6: The term It equl ty securi ty" when used in this act means any stock or similar sacurlty'; or any securi ty convertible , with or ldthout consideration, into such a security, or oarrying any warrant or right to subscribe to or purchase suoh a security; or any such warrant or right; or any other security which the (super- intendent) (commissioner) (director) shall d eam to be of similar nature and consider necessary or appropriate, by such rutes and regulations as he may pr esoribe in t he public interest or for the protection of inv~stors, to treat as an equity security. Section 7: Tne provisions of sections 1, 2, and 3 of this act shall not apply to equity securities of a domestic stock insur- ance company if (a) such securities shall be registered, or shall be required to be registered, pursuant to section 12 of the Securi- ties Exchange Act of 1934, as amended, or if (b) such domestic steck insursnce company shall not have any class of its equity securities held of record by one hundred or more perso~s on the laat busine:;a ds.y of the year ne.xt prece.ding the year in which equity securities of the company would be subject to the provisions of sectiong 1, 2, and 3 of this act except for the provisions of thi~ aubsection (b). S~ction 8: 1~e (superintendent) (commissioner) (director) shall have the power to make 8uch rules and regulations as may be neces- sary for t~ie ex~cution of the functions vested in him by aections ----------------------- Page 41----------------------- ... ""r'----...- (~ \ ••,_ .... ..1 1 through 7 of this aot, end mRy for S"(l;Jch purpose classify domestic stoch-: insurance companies, Sec.Ul--:_ t les, and other persona or matt&~s within his jurisdiction. No provision of sections 1, 2 and 3 o~ this sct imposin~ any liability shall apply to any act done or omitted in ~ood faith in conformity with any rule or regulatio~ of the (superintendent) (commissioner) (director), notwithstanding that such rule or regulation may. qfter such act or omission, be - amended or rescinded or determined by judicial or other authoritj" to be invalid for any reason. Section 9. This act shall take effect (September firs~, nlne~e~~ hundred sixty-four). NOT E - It 1 s· r e c or.un end edtha t t he term "0 f f icer" bed e ;- i ne d 1)Y regulation of the insura~ce c0~missioner which in effect adopts the definition set out in Sc!;"=:r"i1Jle SIS as promulga.ted by the Nationa.l Association of Irisu:'ance Commissioners, to wit: The term "offieerTl means a president, vice president, treasurer, actuary, secretary, controller, and any other person Who performs for the co~pany functions corresponding to those preformed by the fore- goipg offlcers o ----------------------- Page 42----------------------- ( JUDICIARY COMMITTEE MINUTES January 28, 1966 The meeting was called to order by Chairman Guess at 2:25 p.m. Members present were: Messrs. Josephson, Stevens, Taylor, Tillion and Metcal~. The minutes of January 21, 1966 were approved. The Chairman announced that HB 220 would not be considered this day. The draft of CS for HB 275 was considered. Mr. Stevens ex- plained that there were four changes from the original bill. Under the substitute: 1. there will be no adviSOry jury if the minor objects; 2. the minor has no right to the jury; 3. the number on the jury is left to the discretion o~ the judge; and 4. the manner of choosing each jury from the list o~ high school students is left to the discretion ( o~ the judge. Mr. Taylor moved that OS for HB 275 I!Do Pass!! and asked unanimous consent. Mr. Metcalf objected. Mr. Stevens seconded the motion. Motion passed and the committee substi- tute was reported out of committee. The committee took up SB 176._. After discussion by the com- mittee, Mr. Tillion moved liDo Pass II and asked unanimous consent. There were no objections so the bill was reported out of committee .JtDo Pass 11 .. The committee then considered SB 182 and Mr. Stevens moved that SB 182 nDo Pass n and asked unanimous consent. There were no objections so the bill was reported out of committee. The committee next took up and discussed SB 184. Mr. Tillion moved the bill llDo Pass" and asked unanimous consent. There being no objection, the bill was reported out of committee. The meeting was adjourned at 3:05 p.m. ----------------------- Page 43----------------------- 'fh1a b111 w,lll &1,1_ tl1e e~ tobaYe an 84v18017' 4Ul7 ooapo••4 fit b1P.obools~t. 1ft JuVenile bear1nss whloh 4080t involve a. tel..,., obarc." aaaaultwlth a dea4lJ' weapoa or batter,. '!hea4Y1aol7 Jtu7 caMet be u.ed 1t theldaopob3ee'. and. 11' it 18 used. tbejudp' 1s not bound totollow tbe' reoommendations. AdvlsOl7.1urlea Daft' beeD WJed in Alaska "" 1Dd1y1dual Jwipr. aDd It- ba8 beea t'0Uftd to be 'wo::rkable and usetul. U.....r, the uae otauch31iri.eB Mould be atatl1toJ!7'80 ~bere wl11 be ,.ttorDd.t7tb~out ~he .'ate eourt arstea. \ ~ ----------------------- Page 44----------------------- - .•.-. ----------------------- Page 45----------------------- ,p~.........13.·_.11-_.) ~....... lie.·............... ... ~... '.'..'.... ;......... ....... 'IiJlfIilIIi!I¥-'. ~' .....-- . the ldtla_'l ••'._a •_......1,..... 18 ...·ludi_ ........ S. __ ......__ ·~1ad,. ... ~........M:I............. WlbIdl1 '_ MIat· .."...• ----------------------- Page 46----------------------- .... :....·~••~.II.......; ...__.a.•Ul_; .... .'....11···'··. _____....._ . _ =--'"~Fn·=:'='-:--" _.i_·. -', . .....__ • '.tdllllrnn"_ 01.; ,.., ......' .d.~··WId«b .....:lr.._ ....", " , . ' .. '.·...-tifla"• ........ ......... ........'latlIa __ ..&IsO.• 10._. ......... • •.·.,.1•• · .. ...,.. ____• .... . JI&&, ••• .....11 __•• '. ;._01"'. Sa at .·II;.JtO_ ......,-~ .... )..........." .........;...1.... ., ...... ill ..~Ia."··.•,. .... ....... , . Sate. JJl\Wl1lSa ,.'0•. ...ti-,.. ·~..'I....... Ia.,...-, . •..,..1f1ta .-.,. :~-)-.... L III • - ..:. ," ._.'.....8 .........~...... :SA _ ...68.-_.) _ ~..............•••...llnnll ..•• S '. .IIM' -, "', '. i' ..".lal..·.'''' All _itT". " ell C») .. '..,. __ .' ,. ...... ...; ___lOa.• ......_..,..._ AI" :'::, .~.1' _..~..... p...ul.a _1J~""'_ ...... SA ..____• ----------------------- Page 47----------------------- JUDICIARY COMMITTEE MINillES -- February 1., 1966 The meeting was called to order by Chairman Guess. Present were Messrs. Josephson., Stevens, Taylor, Hillstrand, Tillion and Metcal:f. The first order of business was HB 299. After lengthy dis- cussion the bill was referred to the committee counsel to check the provisions in other state arbitration laws to see how they compare. The committee recessed. The meeting was called to order. Present were Messrs. Guess, Josephson, Stevens, Taylor, Hillstrand and Metcalf. Mr. Sassara appeared before the committee to testify in favor of HB 168 and 171. HB 168 was referred to committee counsel for preparation of a draft of a committee substitute. HB 171 was discussed. Two amendments were proposed: (1) Page 1, line 12 -- delete lipersonal If and add l!by certified mail It after unotice It; ( 2) Page I, line 15 -- after 11 If the l! add ( flrecord orn. Mr. Stevens moved that the bill liDo Pass!! with the above amend- ments. There were no objections and the amended bill passed out of committee. Chairman Guess announced that the Legislative Council had referred Part 1 of the Mental Health Study to the Judiciary Committees for study and recommended legislation. He appointed Mr. Hillstrand and Mr. Stevens as a sub-committee and asked :for a preliminary report in about a week. Chairman Guess announced that HE 310, HB 317 and HE 319 will be on the February 2nd agenda. ----------------------- Page 48----------------------- 'lJ'rtder pt'G,eeDt 1,1\. Wben aabaDdaae4 veMele 18 ~0USd1a the • tate$' aot1ee 18 alvea totbe OWDer 'that the veb.141e bas heeD toUDd. K8 111woul4 make ~chaap:ta 1ft th1a law. Jf1nlt l' WO'U14 req~ that the ao,toe be __ cert1t1ad aU !Datea4 orpe.rsoaal aotleell< Dda a~ ,lD AS 28.30.- 020 will make it e_alatent • .1tb the l~oZAS 28.30.- 03:0 \1bl,ob .ap: H tt the vehlele ,18 BOt elaJaed 1tllthta 45 ..of the BOt!......~f III other words;J ODe Mots.on ~a_tlt ape. " ," of' $ery1oe *11e the next. Bee-- t10D apeaks of "&11 the DOt1_f· J _4 the amell4raeD:t wUlcorreet th1a1l1coae1atenq" 2be. second cbaDp _de _ lIB 111 w111 Hqu1rethat tbe Dotlcce 1fbleh 18 prea••t17 Sly.. to Ute owaer of tb8" abaD4oM,dveh1cle &18·0 be c.lven to the 11_ ·bolder or ea- euabraacer,. !be laat c~ wbleb the Ju41c1al7 coalttee am.dmeat _kes 1a a.teclm1calone and I18Kea DOcbaDse 1nthe. -aa1'ftc. The worda ~trecor4 Of"f ~ a4ded atter ~"It the'" Sathe last sentence of: the aeot10Dso tbat t'be ~e1& correct aM ~. cons1&teat w1th the same 1_aGed at t!ae ead of theflra·t aenteJlee 1n the aeetleD. ----------------------- Page 49----------------------- JUDICIARY COMMITTEE MINUTES FEBRUARY 2, 1966 The meeting was called to order at 2:20 p.m. by Vice-Chairman Josephson. Members present were Messrs. Guess, Stevens, Taylor, Hillstrand, Tillion and Metcalf. The committee took up HE 310. Mr. Eastaugh appeared on behalf of the American Insurance Association and also spoke for Mr. Banfield who represents Mutual Alliance. Mr. Eastaugh and Mr. Banfield were not in favor of the bill as written. The committee considered the following two amendments to HE 310: 1. Page 1, line 14 -- After ttamount" add tlor a portion thereof, II 2. Page 1, line 18 -- Put a oomma instead of a ~eriod at the end of the line and then add, lunless the person liable therefor was pre- vented by law or by act of the person to whom suoh amount is payable from paying the amount awarded. tl Mr. Taylor asked unanimous consent on amendment 1. There being no objeotion the amendment was adopted. Mr. Taylor asked unanimous consent on amendment 2. Mr. Guess objected. ( The amendment failed on a vote. Mr. Hillstrand moved that HB 310 as amended liDo Pass tT • There being no objection HE 310 as amended was reported out of committee. The committee considered HE 317. After presentation of materials on the bill by Mr. Josephson and disoussion, Mr. Stevens moved that HB 317 liDo Pass ". l\ir. Josephson seconded. Motion passed. Mr. Guess announced that the committee would oonsider HB 319, HE 352 and CS for HE 168 the next daye Meeting was adjourned. ----------------------- Page 50----------------------- From Proceedings of Mary 27--29 1964 of National Conference on Bail and'Crimina1 Justice From Address of Hon. Earl 1tJarren, Chief Justice STICE OPENING SESSION 9 )rth in the Rule ~ The Committee on Rules of Practice and Procedure of the Judicial Coriference of the United States, taking cognizance missioners and of these and other considerations, has submitted amendments ~ of the accused. to Rule 46 proposed by the Advisory Committee on Criminal il is common to Rules which are designed to facilitate the release on bail of ~akness of both. a greater percentage of indigent defendants. The Advisory hat an accused Committee feels that to the extent other factors make it rea- ~lly required to sonably likely the defendant will appear, it is both good prac- trial. But the tice and good economics to release him on bail, though he 3ct of bail cre- cannot arrange for cash or bonds even in' small amounts. ~ho are unable Proposed changes in the Rule would provide for a deposit Gy to obtain a of cash or government securities in an amount less than the both. And de- face value of a bond; the release of the accused without finan- . until trial, in cial security when other deterrents appear reasonably effec- I think in this tive; the imposition of nonfinancial conditions as the price spite which in of dispensing with security for a bond; and notification that r such time on bail-jumping is a federal offense. ;s incarcerated I am advised of several experimental projects directed to ~ ny kind. the use of nonfinancial considerations in the .release of ac- 4:/ ',~ J )r bonds and cused pers'ons prior to trial. The eight district judges of the (]~, i 3urity need be United States District Court for the Eastern District of ~,~ , '"",, :ity as Circuit Michigan adopted a policy of releasing on personal bond ~i' o r~ecent cases. those defendants with substantial ties to the community,. 1.\ .!( "system- after investigation by the United States Attorney's office. :{ III -oe an effec- The statistical results involving over 400 cases during a six- \'! ~ condition of month period, commencing September 1, 1961, are quite im- h ~oceeds on the pressive. During that time a surety bond was required in Ii The Supreme only about a third of the cases, but was dispensed with for !! fendant is de- the remaining two-thirds of the defendants, who were released lecause of his on personal bond. No serious problem of default occurred. rns with other Another, and immensely significant, experiment in this same d ,whether an field is the Manhattan Bail Project, about which I am sure ly man would you will hear much during the course of this conference. 'h property to The evidence so far strongly indicates that, with careful in-' }onsiderations vestigation and adequate notification and follow-up proce- ~d from jump- dure, a system which has been termed pre-trial parole can )f family and be utilized with safety in a substantial number of cases. ,-J . ,All of these Additional experimental programs have been undertaken .,. effective to in oth~r jurisdictions, inclu~g release on recognizance pro- '" , gralIls in.~t.; Louis and the District of Columbia and a youth ----------------------- Page 51----------------------- ( 'f :itc". ">..,xi",.···, 10 NATIONAL OONl!'EBENOE"ON BAIL ING ENGINEERS et' al. d when, ~ (····lg , Court, of Appeals of, Kentucky. e ~ ~r-, Dec; 4, 1953. treets in', DICI(ISON et al. v. ,SHUMATE.';: International union hrought action , , 19ments~ Court of Appeals of Kentucky. against the Commonwealth's Attorney of defend~' Jefferson County and the Attorney General lony! " "Dec. 4, 1953., of 'Kentucky seeking a declaration of rights r traffi~l Action ,w~s ,brought involving ques- concerning the meaning and validity of stat-', ,y street tion of alleged\ illegal arrest. The Carter; ute providing that it shall be unlawful for ~ 'stt~e,ts, Circuit Court, -John A. Keck, J., entered any national or international labor organ- ie inter.'" , d ' t d t" d £ n ization having 100 or, more members in good JU gmen, an mo Ion was ma e or, a l ,streets. ' appeal. The, Court of Appeals held that standing, who r~side or work in.Kentucky, . ,i (;' hestnut;,l there was sufficient evidence' on' question, 'not to have at all times one or more duly' 'on Fif': of an illegal arrest to warrant submission' chartered and established local or subsidiary organizations in the state.· The. Jefferson Juthwest: of case to jury. . 1,' C'" 'C Ch B h F' D' .lrcult ourt" ancery rane;" lr~t 1- l to dis- Judgment affirmed. 'vision, Macauley L. Smith, J;~eptered judg- )pped in Ii. ment adverse to Commonwealth's Attorney sign-on False Imprisonment ~39 at:ldAttorney, General,: and, ,they 'appealed., , \ :ne interf-~ The Court of Appeals, Cullen~, C., h~ld ,that, th~ 'bus, Evidence on question' orill~gal~rtesi statute is not unconstitutionaL" :.,:" " ': wassuffideht; to; warrant r ·submtssidri.',';of • . ; l ".' ' .•.•. t,'_, : ;'.:' erS~ctibn ~ time' of ~ case~d;jUty. t:::,JU; '\, Judgment rever~ed ~ith, directions.,' - ~",~ 1';- If l} l!"l~l ;tl "'t,r~~~::r·;~ ... ;· 1.~;·.·;l bus was, ----------------------- Page 81----------------------- v 696. ,Kyi ,262 .SOUTHWESTERN REPORTER, 2d SERIEs . I. Labor Relations. ~141 custom,butan organization that is localized II.· Lab( Branch offices in Louisville, Kentucky in Kentucky. KRS 336.170•. Pur and Paducah, Kentucky of local union, See publication WorrlB Rnd Phrases, shall be which had its headquarters in Evansville, for other' judicial constructions and defi- ternatio: Indiana, were not "subsidiary organiza.;. nitions of "Local Organization". more m( tions" within meaning' of Kentucky statute or wod 4. Labor Relations ~141 providing that it shall be unlawful for 'any times 011 'national or international labor organiza- Statute providing that it shall be unlaw- lished l~ tion having 100 or more members in .good ful for any national or internati9nal labor the stat~ standing, who reside or work in Kentucky, C?rganization having 100 or more members union h not to have at all times one or more duly in good standing, who reside or work in a Kentu chartered and established local or "sub- Kentucky, not to have at all times one or that ha! sidiary organizations" in the state, since more duly chartered and established local Kentuc1 word "organization~' contemplates an organ- or subsidiary organizations in the state, iza'tional unit with a governmental structure means that there must be a local organiza- 12. Labl of its own, and something 'that is capable of . tion available for all members of the union some degree of independent existence as in ,Kentucky. KRS 336.170. An an entity. KRS 336.170. establis: 5. Evidence ~(I) , jurisdic See publication Words and Phrases, for other judicial constructions and deft- . Statutes ~15 lectivel~ not vio nitions of "Organization" and '~Subsid­ iary Organization". The· Court of Appeals is entitled tr be unla' recognize matters of common knowledg~ al labo .. ,2. Lab!>r Relations ~141 ancl to give consideration, to contemporane- mernbel ous circumstances throwing light on legis- work it Where international union had a large lature's intent when Court of Appeals COD- one or number of members residing and working .!Otrues a statute. local .( in Kentucky, and most of them were under state. jurisdiction of local unions with headquar- 6. Evidence ~II ters .outside the state, and the only local The Court of. Appeals, in construing a 13. Lat maintained was one with' headquarters in statute, may take judicial notice of the his- Louisville and which had jurisdiction only If torical setting and conditions out of whicn over members residing or working in Louis- ries on statute was promulgated. ville area, Louisville local did not consti- locais , tute compliance with statute providing that 7. EvJdenc8 e=>11 kind 01 it shall be unlawful for any national or ute pn The Court of Appeals, in construing a international labor organization having 100 any na or more members in good standing who re-. statute, may take notice of the economic ization side or work in Kentucky not to have at all 'conditions existing at the time \of enact- standir ment of the statute. times one or more duly chartered and es- not to tablished local or subsidiary organizations charte' 8. Statutes ~181(2) in the state. KRS 3'36.170. iary 0] Statutes must be given a practical con- or int€: .3. Labor Relations ~141 struction. ute. 1 Statute providing that it shall be un- 9. Statutes ~181(2) lawful for any national or international 14. La labor organization having l{)O or more mem- A statute will not be construed so as to i U , .., bers in good standing, who reside or work lead to an absurd conclusion• be unl in Kentucky, not to have at all times one or al lab I., 10. Statutes ~212.3 I more duly chartered and established "local" memh or subsidiary organizations' in the state, .. It wi,ll not be presumed that the, legis- 1 work means not merely a "local organization" lature, in' enacting a statute, intended a . one 0] from standpoint of union terminology an,d useless or futile thing. local 1 i .'1 ·f 's.' ----------------------- Page 82----------------------- HAMILTON v. INTERNATIONAL UNION OF OPERATING ENG. Ky. 697 , Cite as 262 S.W.2d 695 :is localized, II. Labor Relations ~14r state, and that any national or international, Purpose' of statute providing that it labor ,organization which violates the stat- 'ses, ~hall be unlawful for any national or in- ute shall for each offense be 'fined not less Jefi.- ternationallabor organization having 100 or than $1,000 nor more than $10,000, there more members in good standing, who reside, may be one prosecution, for: period covered or work in Kentucky, not ,to have at all by indictment, in each county in which the, times one or more duly chartered' and estab- offense is committed. KRS 336.170. 111 be unlaw- 'lished local or subsidiary organizations in l.ti9na1 labor 15. Crl'mlnal Law ~13 the state, is to require that all members of )re members union have opportunity for m'embership in Statute providing that it shall be un- or work in a Kentucky local or subsidiary organization 'lawful for any national' or international :imes one or that has jurisdiction to represent them in' labor organization having 100 or more mem-, blished local K~ntucky. KRS 336.170. bers in good standing, who reside or work n the state, in Kentucky, not to have at all times one or :al organiza- 12. Labor Relations ~141 more duly chartered and established local or of the union subsidiary organizations in the state, and A national or international union, which that any national or international labor or- establishes one local union with state-wide ganization which violates the statute, shall, jurisdiction, or several locals which, col- for each offense, be fined not less than $1,000 lectively, have state-wide jurisdiction, does nor more than $10,000 is not void for un- s entitled tc not violate statute providing that it shall certainty, on ground that it does not define be unlawful for any national or internation- with sufficient certainty w!J.at constitutes an~, n knowledge al labor organization having 100 or more offense. KRS 336.170. )ntem'porane- members in good standing,' who reside or ght on legis- work in Kentucky, not to have at all times 16. Const1tutionRJ. Law ~277(1) , Appeals con- one or more duly chartered and established, Labor Relations ~83 local or subsidiary organizations in the state. KRS 336.170. Statute providing that it shall be un":' lawful for any national or international tOtlstruing a 13. Labor Relations ~141 labor organization having. 100 or more mem- c~ the his- bers in good standing, who reside or work ' o~ vf which' If a national or international union car- in Kentucky, not to have at all ti.mes one ries on activities in Kentucky, through its or more duly chartered and established , ; locals and membership, without having the local or subsidiary organizations in the' state, kind of local organizations required by stat- ,did not deprive local unions, which were· ute providing that it shall be unlawful for located outside Kentucky, and which had l con,struing a any national or international labor organ- .members in Kentucky, of property rights the economic ization having 100 or more members in good without due process of law. KRS 336.170. me i of enact- I standing, who reside or work in Kentucky, not to have at all times one or more duly 17. Constitutional Law ~277(1) - I chartered and established, local or' subsid- The due process clause of the consti- iary organizations in the state, the national tution is not designed to protect monopolies. practical con- or international ,union has violated the stat- ute. KRS 336.170. 18. Labor Relations ~83 ' Statute providing that'it shall be unlaw- 14. Labor Relations ~I057 ful for any national or .international labor strued so' as to Under statute providing that it shall, organization having 100 or more members be unlawful for any national or internation- in good standing, who reside or work in al labor organization having 100 or more Kentucky, not to have at all times' one or J{ members in good standing, who re.side or more duly chartered and established local that the legis- work in Kentucky, not to have at all times or subsidiary organizations in the state, is_ te, ,intenQed a one or more duly chartered 'and established a.valid exercise~·Qf the police power. Prn.S- 336.170. ' .. ." ' local or subsidiary organizations in .' the ----------------------- Page 83----------------------- -r 1 ,', ,$"-;¥l?t lffbfttftft"lt.rtr ' ~ 1Ntn'=t*fr#t~&'e' rr ] 698 262 SOl1THWEST~:REPO}tTER,"2ci' SERIES' 19. Constitutional Law ~90 " upon the question ,of whether the Act would [1] 1 Labor Relations' ~45,83 j • be constitutional if so interpreted, as to thattl j 'Paduc place the Union ,in the. status of noncom- I Statute providing that it shall be unlaw",: organi I' pliance. ,The Commonwealth's attorney and fulforany national o,r international labor, statute the Attorney General have appealed. 1 organization having 100 or more members not "( r in good standing, who reside or .work in The first question' before us is whether that,tJ ! Kentucky, not to have at all times one or the Union is complying with the Act, as statuti I more duly chartered and established local 'correctly construed. If that question is with~ '1 or subsidiary organizations in the state, answered in the negative, we must determine somet '! does not invade constitutional freedoms of whether the Act as we construe it, is valid of inc .~i speech and assembly, and does not conflict and enforceable. 1 with federal labor laws guaranteeing free-, [2] 'j dom of choice in selection of bargaining The Union has a large number of mem- a cor .I I 'j agents. KRS 336.170. bers residing and working in the vicinity of some' 1 I Paducah, Kentucky. These workers are is oUI I, i under the jurisdiction of Local No. 181, ofth 1 which has its headquarters at Evansville, suppl 'I, A. Scott Hamilton, Louisville, J., D. Indiana, but which has branch offices at 'j; ; Buckman, Atty. Gen., H. D. 'Reed, Jr., Asst. ,Louisville and Paducah. Local' 181 has [3J Atty. Gen., for appellants. 1 jurisdi<;:tion over stationary, hoisting, and requi 1 Hubert T. Willis, John L. Richardson, portable engineers residing or working, in State i ! Jr., LOUIsville, for appellees. southern 'Indiana and in all counties of the: i ,Kentucky except four northern counties. ~ custe These four counties are under the juris- ized i CULLEN, Commissioner. j diction of Local No. 18, which has its head- mear j The International Union of Operating quarters in Cincinnati, Ohio. The Union, tion ,I ,1 Engineers brought this action against the also has' Local No. 930,. with headquarters \ ' in K \ Commonwealth's, 'attorney "of Jefferson in .Louisville, which has jurisdiction only J' County and the Attorney General of Ken- over stationary engineers residing or work- [5 tucky, seeking a declaration o"f rights con- ing in the Louisville area. requ :\ cerning the meaning and validity ,of Chapter titlec I '164 of the Acts of 1952 KRS 336.170" which The lower court found that Local No. knm reads as follows: 930 was a local chartered· and established tern! 1 in this state, within the meaning of the on t 1, "Section' 1. It shall 'be unlawful' for 1952 Act,and therefore adjudged that the 251 , any national or international labor or-, Union, by maintaining this local, was com- may ~ " ganization having one hundred or more plying. with the Act. The Union contends seW members in good standing'who reside ' that not only'does Local No. 930 constitute l or work in Kentucky not to have at all a compliance with the Act, but that the was I M01 times one or more duly chartered and branch offices of Local No. 181, in Paducah It I I ' , established local or subsidiary organiza- and, Louisville, constitute "subsidiary or- ditil '-1 , tions in this State. ganizations" in Kentucky within the mean- a st " i "Section 2. Any national or inter- ,: ingof the Act. The Commonwealth's at- Rec , ! torney and the Attorney General maintain , ~ .. national labor organization which vi- that a reasonable interpretation of the Act I ,olates section) of thisl Act, shall for .... requires the Union to establish in Kentucky 2d I ,each offense, be fined not less than one ;1 one or more autonomous locals of such i, thousand dollars nor more than ten I thousand dollars." character that each Kentucky member of V the union could have membership in a Ken- 1, . The circuit court adjudged that the 'Union tucky local which would have jurisdiction e v ( , was complying with the Act; as interpreted' to represent its membership in labor matters r by the court, and therefore did not pass' in Kentucky. ~ 1, - t ;1 ',I 'I I ----------------------- Page 84----------------------- :HAMILTON v. INTERNATIONAL UNION OF OPERATING ENG. Ky. Cite as 262 S.W.2d695 [1] We have no difficulty in concluding Those attendant circumstances, the con- :t would that the branch offices of Local No. 181 in text of the act andits consequences are L as to Paducah and Louisville are not "subsidiary controlling, even though it may be nec- _ lOr ~ '1l- organizations" .withi~ the meaning of the essary to modify the language used in n\ .ld statute, for the simple reason that they are •order to make it consistent. * * *" :d. not "organizations". We think it is clear whether that the word "organization" as used in the [8-10] Other pertinent rules of con-,' statute contemplates an organizational unit struction are: Statutes must be given a Act, as stion is with a governmental structure of-its own- ,practical construction. Commonwealth v. :termine something that is capaple of some. degree Randolph, 277 Ky. 724, 127 S.W.2d 398; is valid of independent existence as an entity. Reevesv. Fidelity & Columbia ,Trust Co., '293 Ky. 544, 169 S.W.2d 621; a statute [2] Whether Local No. 930 constitutes will not be construed so as to lead to an )f mCffi- a compliance with the Act is a question absurd conclusion. Reeves v. Fidelity & :inityof somewhat more troublesome. However, it Columbia Trust Co., 293 Ky. 544, 169 S.W. I ) :ers are is our opinion that a reasonable construction 2d 621; Swift v. Southeastern Greyhound ~o. 181, of the Act requires something more than is' Lines; 294 Ky. 137, 171 S.W.2d 49; it ansville, supplied by this local. will not be presumed that the legislature in- ffices at tended a useless or futile thing. Washburn 181 has [3,4] As we construe the Act, when it v. Paducah Newspapers, 275 Ky. 527, 121/ ng, and requires a "local" organization Hin this S.W.2d 911. rking, in State" it means not merely a Hlocal" from nties of the standpoint of union terminology and The'situation that existed in the Paducah :ountics. custom, but an organization that is local- area, with 'respect to foreign control of .e juris- ized in Kentucky. And. we think the Act union affairs, 'was a matter of com~on :ts head- means that there must be a local organiza- ,knowledge at the time of enactment of the e Union tion available for' all members of. the union statute here in question. It had received quarters in Kentucky. wide newspaper publicity and was a subject ,on only of general public discussion. In addition, )r work- [5-7] As has been said, the Court is not some of, the problems connected with this required to act in, a vacuum. • We are en- situation were brought before this Court in titled to recognize matters of common International Union of Operating Engineers )(.~o. knowledge, and to give consideration to con- v. J. A. Jones Const. Co., Ky., 240 S.W.2d :ablishcd te~poraneous circuplstances throwing light 49, and in Inteinational Union of Operating ; of the on the legislature's intent. Baker v. White, Engineers v. ,Bryan, Ky., 255 S.W.2d 471. that the 251 Ky. 691, 65 S.W.2d 1022; The court The big' issue was local representation and ras com- may take judicial notice of .the historical voice in union affairs. contends setting and 'conditions out of which an Act onstitute was promulgated. Martin v. Louisville [llJ 12] 'To so construe the 1952 Act as ' , ! that the i Motors,276 Ky. 696, 697, 125 S.W.2d 241. ,contended by the union would be to render ~, Paducah It may take notic~ of the economic con- the Act completely useless and futile. No I ,iary or- ditions existing at the time of· enactment of conceivable purpose could be accomplished Ie mean- a statute. Grieb v. National Bank of Ky.'s by requiring a union merely to mainta:~ a I llth's at- Receiver, 252 Ky. 753, 68 S.W.2d 21., . local in one small area of Kentucky, with maintain its membership limited to those who worked : the Act In Green v. Moore, 281 Ky. 305, 135 S.W. in one branch of the craft in that area. The ~ 2d 682, 683, we said: ; (entucky obvious purpose of the Act was to require ;. ! of such I8.'1&1 e_'-et••lth Vl••onelD. I't·S.. t'tIridler .'tllted that - ••leed. Claapter 262., relJ'111& upoatbea.l••lelatlve and J.dlc1al_~1e1.: trOll otller statee. att..,. to Provide .. ..au tOl1 $17,1aala VlacouiD all penoaal eoUGIIB wbtch. in a au. proceaa ••nse.. ita ....0_b1. 't. _ here aaalnaJt the ....da.,..ndaDt.· ----------------------- Page 114----------------------- JUDICIARY COMMITTEE MINUTES MARCH 5, 1966 I Chairman Guess called the meeting to order at 10:00 a.m. All members were present. The committee took up HE 383 - 387 and 389 and 390 which are bills introduced by the Legislative Council as a result of the recommendations in the January 1966 Council report H "Legis3;ative Oversight of the Administration of Statutes • Mr. Kent Edwards of the Council staff who prepared the Council report described each bill to the committee. Com- missioner Holdsworth of the Department of Natural Resources appeared on HE 383 - 387 to answer committee questions as to how the bills would effect the present procedure of his department. Mr. Stevens moved that HB 383 and 385 tlDo Passu and Mr. Taylor seconded. Both bills passed out of committee. Mr. Stevens moved that FIB 387 liDo Pass II with the following amendment: On page 1, line 17J after "by" insert "puchase, exchange, condemnation,H Mr. Taylor seconded and motion passed. ( Mr. Guess moved that HB 389 liDo Pass". Motion passed without objection. Mr. Taylor moved that HB 390 HDo Passt!. Motion passed·without objection. The committee asked Mr. Edwards to prepare drafts of conunittee substitutes for HE 384 and 386 and asked that Mr. Edwards and Commissioner Holdsworth return on Monday, March 7th at 3:00 p.m. to discuss them. Meeting was adjourned. ----------------------- Page 115----------------------- ----------------------- Page 116----------------------- ----------------------- Page 117----------------------- .....-1 ....... . - .... . __.. .,'.... .. ;.-:.........- ..............., ... . 7 '. _..... • .; ,'- " _' ". • ' .• __ • _'. .' • ~. _ .......... ( ( ----------------------- Page 118----------------------- -- ----- ----- ------ -----------------'--.-----.-- ----------------------- Page 119----------------------- ----------------------- Page 120----------------------- JUDIC IARY COMMITTEE MINUTES March 7, 1966 ( Ohairman Guess called the meeting to order at 10:00 a.m. All members were present. Mr. Banfield appeared with a draft of a committee substitute for HB 373. Commissioner Underwood also appeared at the request of the committee. The committee discussed the draft and by agreement made some changes. Mr. Stevens moved that the tr committee substitute as agreed upon by the committee liDo Pass • Motion passed without objection. The committee discussed HB 436. Mr. Stevens moved that HB 436 be prepared as a committee substitute with an effective date of Janua~ 1, 196~ and that the language be clarified by changing It it II to 'ordinance 11 in both paragraphs of the bill. MOtion passed without objection. The committee discussed drafts of committee substitutes for HB 384 and 386 with Mr. Edwards and CommiSSioner Holdsworth. It was decided to continue work on the two committee substitutes and take them up at a later meeting. Meeting adjourned. ( l ----------------------- Page 121----------------------- .-- .,'-,..;.r - - .. ....,.,..... ......1.., , ....,.- .... 1D~••* ... ma.er!..'.l - .•l~".io1\:. '.; .....' ..•. ot-. ...,*'''''.... .U ..IRdU..~.,lAe :e.... .... ~,C~I'< .' " .~"ft ~..·.... - .. 1a.u·......__ ...... ~: .' .~.' .. UMI. ..,J..et ,.be.~n. ')~ __'.~~~"";', ..... """ "~' ", .,,-,.. , ..... Idd.:.e ....~I.... ~,~18~~'''•• ·.r.'._•. o..... lA .... ~.J(.) ......... ,:,., ..>$..,. ... ...... .....t.'....~I.. )laftt....... J••- ·"·.au,talu.,.,u.. ...u..; ". 'u'..··,·fd· •• ,...,.ri. ,'~ ~._ .....*~......:J, ___ ._.~......_: ...." ... ..- .la·. enil- .... ·tL.~rlaS...'l""le ~~tBII-"~........ ~*. ftJtt..i:U4 tnta .....tloal. ace. ,saCb)., .-.1.11., ....1" (e) a ..... 1DWll... 1. the ...__•. U.1__ ·," ~'-"'ftftla7~·" ..... pe;r......,.....J*l" ...... .. ~.-_~:.-u.. ,~..........,.Il ..s.e• •, ..nf1'i" -.1118 fit ..........' ad..... and • .........1e ebuae e&D ...... ret. '....ld.· . ----------------------- Page 122----------------------- .........,," ( ----------------------- Page 123----------------------- JUDICIARY COIVlMITrEE MINUTES MARCH 8, 1966 Chairman Guess called the meeting to order at 2:00 p.m. All members were present. The committee discussed BB 267. Mr. "Josephson moved tlDo Pass ". Motion passed without objection. The committee considered House Resolution No.2. Mr. Taylor moved llDo Passu. Motion passed without objection. The committee discussed a draft of a bill to have coroners decide to what mortuary a body shall be sent if there are no instructions from the next of kin. The committee counsel was asked to draft the bill for introduction by the committee based on the discussion. The committee considered HE 353 on which they had previously held a public hearing. Mr. Guess moved liDo Pass" and the motion passed without objection. Mr. Josephson signed liDo Pass ll with attached amendment. The committee discussed HE 263. Mr. Stevens moved that the bill be amended to state that it would only take effect when the U. S. or Alaska Supreme Court extended the rule in Gideon v. Wainwright, 372 U.S. 335, to misdemeanors and that HE 263 as ( amended "Do Passll. Motion passed without objection. Meeting adjourned. ----------------------- Page 124----------------------- JUDICIARY COMMITTEE REPORT ON HE 263 as Amended ( The United states Supreme Court has ruled (Gideon v. Wainwright ~ 372 US· 335) that j_ igent defendants charged with felonies must be provided counsel by the states. This doctrine has been extended at tLe lower :ederal court level to include the defense of indigents charged with m~~demeanors. HB 263 as amended will not take effe0t unless the United States or the Alaska Supreme Court extends ~~e r~le of Gideon v. Wainwright to cover misdemeanors. If this extension of the rule takes place, then under fill 263 as amended an Agency for Pub~ic Defense will be established in the Office of the Governor. The agency will provide legai counsel to an indi- gent accused of committing a misdemeanor. The agency will be administered by the public defender a~d two assistant attorneys. Their qualifications are set out in Sec. 44.19.740 of the bill. The bill does not preclude a court, either on its own mo- tion or upon application of the agency or an indigent defendant~ from appointing an attorney other than an Agency attorney to represent or to assist in representing an indigent defendant at any stage of the proceedings or on appeal. ----------------------- Page 125----------------------- ( JUDICIARY COM1\lITTEE REPORT on HOUSE BILL NO. 353 i. GENERAL. JIB 353 is conce:."'ned with what is comnionly called wire- tapping or eavesdropping~ Section 280 pertains to the misuse~ ihterception~ and divulgence of messages sent by wi~e or radio and Section 290 is concerned with the recording or listening to oral conversations without the consent of ,at least one of the parties to the conversation. A violation of anyone ottl1e sections of the "0ill is ::nade a misdemeanor wi th a nlax:L~';:u:::~ penalty of ~?:1.;J 000 fine or imprisonment for one year, ~2 both. Unc.e::' the feder's.l 2.C~c;J :n o::c.8r to obtain a cor.:.viction" both ir/~2r'ception and divulgence must be p:i..'"'oved.. This f$.cet of the :ede~al a~t has been extensively criticized by the U. S. ~~torney GeneralIs office. Also, it is not clear unde~' ,:~r.:.8 fed.eral, act whether an innoce.ntinterceptlon is a cri~2 ana the' federal courts have split on the questioh. Sectic~ 280 of }lli 353 avoids those problems. 2. SECTIONAL fu~ALYSIS~ Section 280(2) applies to the employees of a common (;2.::-rie::-' (;o:-::mun~ca..tioris system. It prohibits the employee \{(i,O' ta'~':2s the message :for tl"'ansmission" the employee receiving '~~:e message and any, employees assisting in those operations" :'::'om c~i vulgi:1.g 01..... releasing in any manner the meaning of the =c3sage~ excepi to ,the persoris listed in this section" through 8:~,:.:;ho::·ized channels. It is to be noted that a court may order 0~e div~lgence of a message. Section 280(b) deals with the initial acquisition of a ~0ssage by persons through the interception or the message at a~y time. The section contemplates an intentional inter- cep'"Clon. It should be noted that under this sectloD, the ::.:.:r-.. terception alone constitutes a prohibited activity. There is no need. to ~)rove interception and divulgence, although the latter activity is also prohibited by this section. Section'280(c) prohibits a person fo~ whom the message ~3 not i~tended, regardless of the means by which that person -~•.c::.r·e.!ivc.Q~ "-1"..,>::::. 'Y'r;c.ss~c~a 'f"-~OY'" ·'~S.!i no' ..!-"ne' .:; '0·~o·:,,-r'i~ .l_.!! o'l"l 'ne has' re- .;.,. ,_v .J.. c: 0 .. Av ••~'C' '-""0\;;;3 .... ~ ... Vi. .'_ 10 L,. ...... ~ .._ .....hO' v..L .1..1." l ceived for n~s own or another 7 s b2nefit. ----------------------- Page 126----------------------- -2- Section 280(d) prohibits a person from disclosing the ( meaning of the messa~e when the perso~ has actual k.C10~\11edge or should reasonably be expected to l-cDOvJ that the com.iilunication originally was obtained in violation of section 280. In this case~ the person would~ of course~ also be violating section 280(c) if the person used the information obtained for his own or anotherfs benefit. Section 280(e) prohibits a person who is not entitled to informatlon~ but becomes aware 0::: the contents of a message although not actually in physical receipt of a :message.? fro::n· in any T."f2Y d.ivulging the meaning of the contents .f."> -;-he mas~,",r.:-··'":l 0-" -('-('o·rr:· U·Ct~·r10' ":-~a -"f"/j·?o .........~'">'": .....·.J--J..~o·n r<:""or 0.L v ...... l..c:; )...Jo..bV~ l.. -.- ~ •• ~-l..""O v ..... c ....... ..1. ...... .......Q..\.I .l. his own or another 1 s oenefit~ P"'-C~Ti\T Q":i' <::l?f'i mTON·T ?000 C::e r • ~PO -1S ~o·~saa.:'\ 'O"(>-l'Y(')""Y,-ifiT on O.1.~..l.. , __ , _ u ....... 'v..L-'-.1. _ .. u v ........ u ...... <..-:.. C _ ...... u ...Cl. ........ ...I..c./ "'--i o~"'\ o/-u""'r::; "'T.... J-h,::::. ·~~·:::-.ri,:;,.-:-.""l riO'~·'iY1"i'''/'';-'; --·-:::·'--i OYiS AC-i- ... Ifi'('le ..o~ "".11 does. sec v_ ... _ ,./ v...... V.l.C .I.. \;;:\..<.IV _ Cl..~ 'v 4....j."'~~_ ....... I.;~ v_.... .~ v.. .s..~J. ...I.. not make innocent inte:eception a crime exc2p'c in the case of a person using ini'O}7Ination obtained for his o~vn or another J s -be~""e·f'~ -:- o~"'" -'-1'1~ pa---' .... o·r. rll"V~',l ()'CQ <:)~.-.\.,. -'j~/jlC'>O-"..·y(-;~ ..·-~ 0'Yi ·n,::::. 'n"s o~DJ.Ga-i·""eQ., .... .......r.. v ..... v_ ... 'V IV..L;j..... U v:._;.:;:>,,;;; u 0.._J.j' _.I... J.. ......0. v..L. l..i. • \;.. 0.. ..... l... r Q0n~~0~ ~9~ ~~lrOQ i~ 0 n~i~~~Ql O_?.L~Ar...,se +0 l~~Jv~~n +0 0- )...../'-'-':..1_ ... _ to- U L...."'""".:\.,.'-~ _0 a "'""",_tl._l.J.,-,,,,_ __ v _._ '-"'._ '-' J.. record 2~ oral convers~tion without the consent of 6ne of the narties to the co~vers2t~on. !t covers not only a tele- phc~'1e conversation:;' but any, oralconve:-'sat:::;"on in an office" hOl·;le.? CE..:.Y'.9 boat) or any other place a co:c;.versation might be ( held.. It prohibits the illega1 use of any type of eavesdropping device.? electronic or othe:r-wise .. Sec.... :.ion 290( 2) lJrohibits a person from using information obtained through illegal use of an eavesdropping device for DlS own or another1s benefit~ Q:::.,-••.._.:'; 0·..., 290/ ':( \ ·''''-('Oh-ii'''.-1':-C! '"' ·oerso;..... l.-'""-r>o;'':'i ·("::::"vc.-;:,>ll·~n0· ~v:-'ne m,ean~nf!: lo...ICl.;v...:... l._ ~.....J) 1.1- ~ ... ...:...,-,_v...., Cl. ... ...I. _ ..... _t;; c'-'-_ l.J. a ....r.. _ o:~· any C02."'.:.v8i"sation heard by means of the illegal use of an eavesdrop?:ng device; and C:~r. ..--i 0''") ~90·!l.J. \ -.-',-(>0":l-"r-;':-8 "" Do-or,S'o'''' w'no 'oc.co·~"'es .-.r'1a""-'C O.L·~ u'Cvv ..... __ ..... \.J J;-,'" ....J..u_v a ~V.J.. .;...1.. \... .t • .\. c;.V\i J.e "'C:~e cont2nts of a conversation from revealing the meaning of vi.;.\:;; co::~v2::-'sations if he ktlOHS oJ.~ reasonably should lcnow that 'che inf'c::':l:ation he has r'eceived VJas originally obtained by the illegal use of an eavesdropping device. S::J":??LElvlENTARY COYfMENT - EF'}?ECT OF BILL ON POLICE .AND AD=JIISSIB:LITY OF EVIDENCE., Neither section 290 or section 300 (the exemption section) makes any exception for law enforcement officers.. A law enfoY'cement officer is subject to the same penalties asa·private citizen who violates the provis~ons o~ ----------------------- Page 127----------------------- -3- ( La1v offi·cers 1'10lJ_ld be per';:-nit-'ced undel""' section 290(1) to ~ecord and listen to a co~versation with the consent of one of the parties to the conversation~ The most common exar:1ples of when this provision VJould be applicable v.Jould oe in t:~le case of a l,,:id.n2.:9per who has told the victim 1 s family he will call them or obscene phone ·calls. Along this line, it lS to be noted that only six states per~'l1it., by statute; law enforce:-i'lel'1toffice:c's to obtain eVidence . by wir'e-'cap 0:2 othel"" "(Jeans ~ T'l"ley are, IVla:c·yland.'1 r·lassachusetts" Louisiana) Nevada, New York and Oregon. Of these six states, only Louisiana dOGS not specifically require a judicial order preceding the tap~ Six st;s:t;es l)rorl.ibit:,~ Dy sJca.lc17~~ceJ "cl1.2 adrt~ission of any evidence obtained in violation of a Wiretap or eavesdropping statute" lJ:hey a:c'e· I:''Ia:c'ylanc.,:; Nevsda;> Illinois., Rhode Island" Oregon and Pennsylvania. Overall, 39 ·gtate~, by statute) ~u~~Oh~~oi+ T\J'~~~+~~n~~u o~ al~'0~~O~~~ P~v·~sd-~~v~-.0-_",.~... .• 4~~.,.~. w~.ilp ~_;./_,. .1-.1. a.l.~ _v ii' __ C V'--~Jl.J-"'-b .!.. c_'-' ........ v.).. ~_.;...v ~'-'" '-" _ J ___........ • ,_ ..... _~ s':ca"ces pror~ibi~c only physical ir.:.-c2:c·f~e:c·er:.ce ~\Ti~0h li·viT~es. 1.:'1 ~",c:.O'ai"-,~l -(- 0 ·:::.v-: n 0-.''''.,c ~ o"!Yc' '") -7 ~"'t -:::'Q{ '-J\T "'i.c' -..... -::..;- ,,-(" 0.-::-' o-'-;.,·~ ':--" c:. r-, v::, "" a:'l-".op-o-: -r. 0' .l.. eo _ u v C ~UCl'" ~ U O._*~C I v h -'-_ '-' VC-_J -'- 0~.:.,-"_ ~o.. C u... _ -J..J,b devices being used in a cou:"t pr'oceeding; the bill does not in any way chal."lge the. existing law of Alaskae T[-le adr:iittance or rejection of such evidence is left to case law' and. the Y'-ules rr 0 V ,-:::. _-"'-..('...' -1 r:a.: -;-: "1'" e ::::: r'>u..--r11 iSS -~ ~u(' -~ '"i -1 -;- \r v'" ,C"l ' ;.=:, v· .:; Q" e -r..,... a ~ S ·interpY-e-ced by the ( '-' '-' ....... _'-' v.l. , '-'" ..... -.. .......J- ..... _ v J. - '-"...... ... J,,,, c. ...... . c OU1..... t .. Sec., 300 of:· t~1e -bill S~::.:'l)ly lists the activities which are not -Co be consider'ed c:::'i:-:~ir,-al under- the pY'ovisions of the statute a::!..0. is self-explanatory" S2C~ 2 of the bill will repeal prOVisions in the present 1 PT",.,?,.••_.,..... ~-.- ,,/':'''' -, a.-'-,~,"\~ ~ rc ,",~-c:. ·.·O-';"O·~7-~ s~..~'.. '"',,~~ 0-,,-:0 -I-~e -o-~'""''''oC'ed- "0· -1 ,i, ~ ,.... -'-_ v~.:.C::.. '-' .\ ..i.....LJ. . ~•.i:-'.l..:...\50. 0..... ~ _ ,\ -'- _v ••u - V". .r: J.. v,:..J "-' . _..l........L .... Bnact2o.., Sec .. 2 arnends AS L:-2 .. 20.050 by deleting subsection 1 vI~.ich ';·~'_~:~~·':2S i-e a c,rime for or.:.8 to divulge the cor~tents of a rr~2ssa2>:; -::~ sX~"'J ~')erson other tha.Yl th~ party for which it was i:'-:·.ter.:.C;::..2Q;; his attorneyJ or ager,::c.. ~'his is covered by section 280 of the pr6posed billu Sec. 3 repeals AS 42D20~~OO which aeaLS with persons -~2.:;::ing messages l.... rom a telegraph wire or intercepting a message 'co which they ar'e not entitled .. · Ti1.ls activity is covered in section 280' of the' bill .. l.l... AMEND~~ENT.. I ),! (j! The ar.1endment, offered by lJ~r 0 Josephson is almost identical to sees. 141 .. 720 - 141.990 of the Oregon Revised Statutes. The amen~~ent allows the presiding judge for the judicial district ----------------------- Page 128----------------------- ( -~.- in which the interception will take place to allow an intercep- tion of telecumrnunications, radio cO~ilunications or conversa- tions by peace officers if there are reasonable grounds to believe that a crime directly and irnmediately affecting the safety of hW1?-an life or the national security has boen committed OT is about to be committede Also~ there must be reasonable grounds to believe that evidence will be obtained essential to the sol'l:~tion of the crirne" or which may enable the prevention of the crime and there must be no other means readily available for obtaining the information. The order must be applied for by the district attorney with the appz'oval of the attorney gener'al ~Jhether the interception is to be made by peace officers of the state or a political sub- alvisio~Q The court may examine under oath the district attorney, a witness he produces, or anyone the court wishes to question. If the court issues the order for interception, it is effective for,iO days under this amendment. The Oregon law allows 60 days. The order may be reneTHed for 10 days at a time e The amendr.1ent makes it a misdemeanor to use an expired order or to release any information abollt the application or any supporting documents or testimony. The presiding judge shall, (- however:> report to the legislature the nllillber of orders and re- newals issued and also the nature of the reasons for issuance. l/ ----------------------- Page 129----------------------- AMENDMENT ( Orrered in the HOUSE By Mr. Josephson To HB 353 Page 4, between lines 7 and 8 insert new sections to read: Sec. 11.60.320. ORDER FOR INTERCEPTION OF TELECOMMUNI- CATIONS, RADIO COMMUNICATIONS OR CONVERSATIONS. (a) An ex parte order for the interception of tele- communioations, radio oommunications or conversations by peace orficers or the state or of a political sub-division, may be issued by the presiding judge for the judicial district in which the interception will take place~ upon application or a district attorney,with the approval or the Attorney General, setting out fully the facts and circumstances upon which the application is based and stating that: ( (1) there are reasonable grounds to believe that a crime directly and immediately arfecting the safety or human life or the national security has been committed or is about to be committed; (2) there are reasonable grounds to believe that evidene.e will be obtained essential to the solution of such crime, or which may enable the prevention or such orime; (3) there are no other means readily available ror obtaining such information. (b) Where statements are solely upon the information and belier or the applicant, the preoise souroe or the inrormation and the grounds for the belief must be given. (c) The applicant must state whether any prior application (~ ... has been made to obtain telecommunications, radio communications or conversations on the same instrument or from the person and, if such prior application eXists, the applicant shall disclose ----------------------- Page 130----------------------- the current status thereof. (d) The application and any order issued under this section shall identify fully the particular telephone or telegraph line, or otherteleconnnunication or radio com- munication carrier or channel from which the information is to be obtained and the purpose thereof. (e) The court shall examine upon oath or affirmation the applicant and any witness the applicant desires to produce or the court requires to be produced. (f) Orders issued under this section shall not be effective for a period longer than 10 days, after which period the court which issued the warrant or order may, upon applica- tion of the officer who secured the original warrant by application, in its discretion, renew or continue the order for an additional period not to exceed 10 days. All further ( renewals thereafter shall also be for a period not to exceed 10 days. Sec. 11.60.330. PROCEEDING UNDER EXPIRED ORDER PROHIBITED. An officer who knowingly proceeds under an order which has expired and has not been renewed as provided in sec. 320 of this chapter is considered to act without authority under sec. 320 of this chapter and shall be subject to the penalties provided in sec. 350 of this chapter, as though he had never obtained the order or warrant. Sec. 11.60.340. RECORDS CONFIDENTIAL. The application for any order under sec. 320 of this chapter and any supporting documents and testimony in connection with it shall remain confidential in the custody of the court, and these materials shall not be released or information concerning them in any manner disclosed except upon written order of the court. No nerson having: custody of anv records maintained under ----------------------- Page 131----------------------- secs. 320 - 340 of this chapter may disclose or release any ( materials or information contained therein except upon written order of the court. Sec. 11.60.350. PENALTY FOR VIOLATION OF SEeS. 330 or 340. Violation of sec. 330 or 340 of this chapter is punish- able, upon conviction, by a fine of not more than $3,000 or by imprisonment in the penitentiary for not more than three years, or by both. Sec. 11.60.360. REPORT TO LEGISLATURE. Each presiding judge shall make a report to the legislature at the beginning of each session giving the number of orders issued under sec. 320 of this section and any renewals of those orders and the nature of the reasons for issuance. ( Page 4, line 3 - Insert after section number IIPENALTY FOR VIOLATION OF SEeS. 280 and 290. lt page 4, line 8 - Change uS ec • 11.60.320" to "Sec. 11.60.370." ----------------------- Page 132----------------------- JUDICIARY COMMITTEE MINUTES MARCH 9, 1966 Chairman Guess called the meeting to order at 3:00 p.m. All members were present. The committee considered three senate bills, SB 234, 209 and 310. After discussion of the bills, Mr. Stevens moved that they lIDo Pass II and asked unanimous consent. There were no obje ctions • The committee then considered HB 490 and the bill was moved liDo Pass" without objection. The committee discussed HB 450. The committee amended the bill in the following manner: Page 1, line 19 and 20: add lIminority" before umember" on both lines. Page 2, delete lines 5 and 6 and renumber accordingly. Page 6, delete lines 24 - 28 and insert: Sec. 24.55.200. PUBLICATION OF RECOMMENDATIONS. After a reasonable time has elapsed, the public examiner shall present his opinion and recommendations in writing to the governor. If the situation is not reme died_ ( within a reasonable time, the public examiner shall submit his opinion and recommendations in writing to the members of the legislature. The public examiner shall include with his opinion any reply made by the agency. Mr. Stevens moved that it liDo Pass l1 as amended. There were no objections. Meeting adjourned. ----------------------- Page 133----------------------- <: ( ----------------------- Page 134----------------------- -- _Ill' ••• ( ( ----------------------- Page 135----------------------- ----------------------- Page 136----------------------- ----------------------- Page 137----------------------- ,.',- """~" -.~- -~ -'".""",,,,~ a._ ...._.......1I1n.. _ .....OIIIF';.; ......till.: .............~ ...~. -'_____._'1J.;I. 11.............·..'••'....·__ ...'.dL ..' :............ -~....."., ......................... :- .'.'"........,...__ .......W,'."...,.--..; •• __ ._ .......1'••·;·. _ ....................... _____ - __ - __• _________~_________________________________ ____________________________________________________ T _ ___________ _ ------~.------------ ' ...._' ........1••,.,.... ;.., .......< ......,. '.......·........rfdle' .............. ----------------------- Page 138----------------------- JUDICIARY COMMITTEE MINUTES MAROH 10, 1966 ( Chairman Guess called the meeting to order at 3:00 p.m. All members were present. The committee discussed CSSB 213 and HB 363. The committee asked that a committee substitute be prepared for HB 363 to incorporate the following amendments: Page 1, line 15, delete 11, when considered advisable,ll Page 1, delete lines 19 and 20 and insert "installment. If the employer agrees, the installment is forwarded by the employer to the clerk of the superior court which entered the judgment or the court trustee, if there is one, and the amount of the installment is exempt from execution. 1f Mr. Stevens moved that CSSE 213 and CSHE 363 liDo Pass tl • There were no objections. The committee discussed a bill to have coroners decide to what mortuary a body should be sent which was prepared according to the committee instructions of March 8th. Mr. Stevens moved that the committee introduce the bill. There were no objections. The committee discussed aSHE 302 which they had instructed be ( prepared at the meeting of March 3rd. Mr. Guess moved that aSHB 302 liDo Pass II. There were no objections. The committee then considered HB 220. Mr. Guess moved liDo Pass ft. Motion passed without objection. The committee discussed HE 424 and Mr. Stevens moved liDo Pass ll • Motion passed without objection. Meeting adjourned. \ ----------------------- Page 139----------------------- ----------------------- Page 140----------------------- ____ .111.,.·,__ ...·...'" ----------------------- Page 141----------------------- )'D . ( REPORT OF JUDICIARY COMYuTTEE ON CSHB 302 Under preBent.~aw, a person under 21 years of age cannot enter premises licensed to sell alcoholic beverages unless he is accompanied by his parent or guardian or spouse who has at- tained the age of 21 years. CSHB 302 would allow a nineteen or twenty year old to en- ter a restaurant for dining even though the restaurant was li- censed to sell alcoholic beverages. The Alcoholic Beverage Control Board would designate the premises which could be con- sidered as restaurants under this bill. If the premises were insid~ a City, the designation would have to have the approval ( of the city council and if the premises were outside a city but within a borough, then the borough assembly would have to give their· approval. , l ----------------------- Page 142----------------------- ._Dar .... ~••··*1l""_~1·.... .•·",·,·.•~#.·.·.....,··._.,.•..,··.U8t·..•••~.·~t _~"'01U$ .•l••I.·."..~~ .··.,...·II:I~r:~:.~~ ...n .. ~· •• Ptr·-·II~.··......···~_~:.·l.~ .. ~~,.",~~_..~~ •• ..._,.-Ui_".tIt.'.0' .1dJI,. ~.""" ••"J;l. . ...1&* .~.• ...··""~._"'1.l&'''1a r,;bOMft,'J!OJI·the area 118' .t.Dro*&'llea·. A .....~O\_ ........· t_ .._~.lt&1l..•.-..~~,.. • 1d70_•• ·_'b.~- U~.. It ttitwftft,ra',BO~l.i'" w:1Vd.a t,._•. ,_ ......:raba11 ..oUler au1__ 1. &IT",_.'.. . ----------------------- Page 143----------------------- - .••- I ( J;;jri ... ----------------------- Page 144----------------------- .al..· ......- ......-.......... ., .............. ,.. .. JtIplda...··............___ ..............._ .......... 1I!tU ....s- ..__.1111 ......,_ ....... .........., .......... #4 ..................1•• __ is , .......·...., • ..utr _ .....~I ...... ta stUl .................. eI ......., .. ... _...,••• ...... •. '. st ..,,"'_"IlI"t ••••• ., ... ....... .. .. aetUtIIJIe .,.. ......... ( ----------------------- Page 145----------------------- JUDICIARY COMMITTEE MINurES MARCH 12~ 1966 Chairman Guess called the meeting to order at 2:00 p.m. Members present were Metcalf, Tillion, Taylor, Josephson and Stevens. Mr. Don Kane, ASSistant Attorney General, and Mr. Bruce Campbell repr~senting the Department of Highways appeared on HB 368, 399 and 370. Mr. Stevens moved that HB 370 liDo Passt! with the word ttcondemnation lJ removed on page 1, line 23 and with the words lion the state highway systemll changed to read "under the federal aid primary and secondary system as defined in Title 23 of the United States Code" on page 1, lines 25 and 26, and with the definition of state highway system deleted from page 2, lines 4 - 7. Motion passed without objection. The committee recommended referral to the Finance Committee. The committee discussed HB 368 but decided to hold the bill until such time as it obtained additional information relating to the necessity for the bill, a comparison with existing law on the subject in AS 08.60 and its effect on City and borough powers now existing under AS 08.60. The committee then considered HB 369. Committee counsel ( was asked to draft a committee substitute on the basis of the discussion. Meeting was adjourned. ----------------------- Page 146----------------------- Public Law 89- 285 89th Congress, S. 2084· Oct<;:>ber ~2, 1965 ( 79 STAT. 1028 To provide for scenic de"elopment and road beautification of the Federal·aid highway systems. Be it enacted by the Senate aM H (}use of Representati·v8s of the United States of America in Oongre8s as8em.bled, Hi~ Bea.u- tification Aot TITLE I of 1955. SEC. lOt. Section 131 of title 23, United St.ates Code, is revised to 72 Stat. 904. read as follows: . "§ t3L Control of outdoor a.dvertising 'I "(a) The Congress hereby finds and declares that the erection and maintenance of outdoor advertising signs, displays, and devices in areas adjacent to the Interstate System and the primary systam should be controlled. in order to protect the public investment in such high- , ways, to promote the safety and recreational'value of public travel, and to preserve natural beauty. "(b) .Federal-aid highway funds apportioned on or after January 1, 1968, to any State which the- Secretary determines has not made provision' for effective control of the erection and mainten3.Ilce along the Interstate System and the primary syst-em of outdoor advertising signs, displays, and devices which are within six hundred and sixty feet of the nearest edge of the right-of-way a....nd visible from the IIl~in t.rave1ed wah; of the syst-em, shall be reduced by amounts equi110I0 per ! Centum of thraJIiounts Wliich would otherwise be apportioned to such I State under section 104 of this title, until such time as such State shall 72 Stat. 889. , provide for such effective control. Any amount which is withheld I .< from apportionment to any State hereunder shall be reapportioned to ( '-; the other States. Whenever he determines it to be In the public .interest, the Secretary may suspend, for such periods as he deems necessarY, the application of this subsection to a State. ( ~(c) Effective control means that after January 1, 1968, s':~;,\ ".:;n5, displa)'B, and devices shall, pursuant to this section, be lirrE'tc.,-l to (1) directional and other official signs and notices, which :signs and notices shall include, but not be limited to, signs and notices pertaining to natural wonders, scenic and historical attractions, which are required . or authorized by law, which shall conform to national standards hereby authorized to be promulgated by the Secretary hereundeT. which standards shall contain provisions concerning the lighting, ;~. num- ber, and spacing of signs, and such other requirements ~:,.;, may be appropriate to implement this section, (2) signs, displays, and devices a.dvertisin~ the sale or lease of property upon which they are located, and. (3) SIgnS, displays, and devicesadvertismg activitIes conducted on the property on which they are located. "(d) In order to promote the reasonable, orderly and effective dis- .play 'of outdoor advertising while remaining consistent with the pur- poses of this section, signs, displays, and devices whose size, lighting and spacing, consistent with custoIIlary use is to be determined by agreement between the several States and the Secr(>ot~rv, may be erected and maintained within six hundred and sixty feet of the nearest edge of the right-of-way within areas adjacent to the Inter- sta.te and primary'systems which are zoned industrial or commercial under authority of State law, or in unzoned commercial or industrial a.reas as may be determined bv agreement between tlle several States and the Secretary. The States shall have full authority under their own zoning laws to zone areas for commercial or industrial pnrposes, and the actions of the States in this regard will be accepted for the ----------------------- Page 147----------------------- ( \ I Pub. Law 89-285 - 2 - October 22, 1965 ( 79 STAT. 1029 P!lrp0se8 of this 4ct.. Nothing i~ this subsection shall apply to signs, dIsplays, and deVIces referred to In clauses (2) and (3) of subsection (c) of this section. . "(e) Any sign, display or device lawfully in existence along the Interstate System 01'" the Federal-aid primary system on September 1, ,_.:1 1965, which does not conform to this section shall not be required to be removed until July 1,1970. Any other sign., display, or device law- fully erected which does not conform to this -section shall not·be required to be removed until the end of the fifth year after·it becomes nonconforming. " (f) The Secretary shall, in consultation with the States, provide within the t?ghts-of-way for areas at aP1?roP:iate d~stances from in!er- changes on the Inter::,--tate System, on which SIgnS. dIsplays, and deVIces giving specific infonnation in the interest of the'traveling public may De erected and maintained. Such signs shall conform to national standards to be promulgated by the Secretary. . "(g) Just compensation shall be paid upon the removal of the fol- lowing outdoor advertising signs, displays, and devices- . "( 1) those lawfully in existence on the date of enactment of this subsection, . ... "(2) those la.wfully on any highway made a part of the inter- state or primary system on or after the date of enactment of this f ' subsection and before January 1, 1968, and ... . "(3) those la.wfully erected on or after January 1, 1968. The Federal shar.e of such compensation shall be 75 percentum. Such· compensation shall be paid for the following: "(A) The taking from the owner of such sign, display, or device of all right, title, leasehold, and interest in such SIgn, dis- . play, or device; and . . "(B) The 'taking from the owner of the real property on which ( the sign, display, or device is located, of the right to erect and maintain such SlgnS, displays, and devices thereon. ( "(h) All public lands or reservations of the United States which are adjacent to any portion of the Interstate System and the primary system sha.ll be controlled in accordance with the provisions of. this section and the national st.andards promulgated by the Secretary. lnfonnation " (i) In order to provide information in the specific interest of the centers. traveling public, the State highway departments are authorized to maintain maps and to permit informational directories and advertising pamphlets to be made available at safety rest areas. Subject to the approval of the Secretary, a State may also establish information cen- ters at safety rest a.reas for the purpose of informing the. public of places of interest within the State and providing such. other j information as a State may consider desirable. Bonus pa.YIDents. . "(j) Any State highway department which has, under this section us in effect on June 30, 1965, entered into an agreement with the Secre- 11 tary to .control the erection and maintenance of outdoor advertising II signs, displays, and devices in areas adjacent to the Interstate System shall be entItled to receive the bonus payments as set forth in the I agreement, but no such State highway department shall be entitled I to such payments unless t.he State maintains the control re<\uired under I such agreement or the control required by this section, whwhever con- [I trol is stricter. Such payments shall be paid only fr-om appropriations r made to carry out this section. The provisions of this subsection shall .1 not be construed to exempt any State from controlling outdoor adver- Ii tising as ot.herwise provided in tillS section. . Ii "(k) Nothing in this section shall prohibit a State from establish- ,.\ ing standards imposing stricter limitations with respect to signs, dis- I plays, and devices on the Federal-aid highway systems than those established under this sect.ion. . . . '. ----------------------- Page 148----------------------- October ZZ, 1965 - a - Pub. Law 8.9-Z85 ( 79 STAT. 1030 "(1) Not less than sixty days before making a final determination Notice of final to withhold funds from a State under subsection (b) of this section, determination. or to do so under su~ctiqn (b) of section 136, or with respect to failing to agree as to the size, lighting, and spacing of signs, displays, , and devices or as to unzoned commercial or mdustrial areas in which signs, displays, and devices may be erected and maintained under subsection (d) of 'this section, or with respect to failure to approve under subsectIon (g) of section 136, the Secretary shall give written notice to the State of his proJ?OSOO determjnation and a stat~ment of the reasons therefor, and durmg such period shall give the State an . opportunity for a hearing on such determination. Following such hearing the .Sec~etary shaH issue ~ written ~rder setting forth his final deternnnatlOn and shall furnIsh a copy of such o~er to the Sta~. Within forty-five days of receipt of such order, the State may appeal such order to any United States district court for such State, and upon the filing of such appeal such order shall be stayed until final judgment has been entered on such appeal. Summons may be served at any place in the United States. The court shall have jurisdicti'On to affirm the detennination of the Secretary or to set it aside, in whole or in part. The judgment of the court shall be subject to review by the United States court of appeals for the circuit in which the State is located and to the Supreme Court of the United States upon certiorari or certification as provided in title 28, United States Code, section 1254. If any part of an apportionment 62 Sta.t. 928. to a State is withheld by the Secretary under subsection (b) of this section or subsection (b) of section 136, the'amount so withheld shall not be reapportioned to the other States as long as a suit brought by such State' under this subsection is pending. Such amount shall remain available for apportionment in accordance with the final judg- ment and this subsect,lOn. Funds withheld from apportionment and subsequently apportioned or reapportioned under this section shall be available for ~xpenditure for three full fiscal years after the date of ( such apportionment or reapportionment as the case may be.. "(m) There is authorized to be appropriated to carry out the pro- Appropria.tion. visions of this section, out of any money in the Treasury not other- wise appropriated, not to exceed $20,000,000 for the fiscal year ending June 30,1966, and not to exceed $20,000,000 for the fiscal year ending June 30, 1961. No part of the Highway Trust Fund shall be available to carry out this section." - SEC. 102. The table of sections of chapter 1 of title 23 of the United States Code is amended by striking out . "131. Areas adjacent to the Interstate System." and inserting in lieu thereof "131. Control of outdoor advertiSing." TITLE IT SEC. 201. Chapter 1 of title 23, United States Code, is amended to 23 USC 101 add at the end thereof the following new section: et. ~. "§ 136. Control of junkyards "(a.) The Congress hereby finds and d~clares that the establishment and use and maintenance of junkyards in areas adjacent to the Inter- state System and the primary system should be controlled in order to .{ protect the ,Public investment in such highways, to promote the safety and recreatIonal value of public travel, and tq preserve natural beauty. "(b) Federal-aid hi~hway funds apportioned on or after January 1, Apportioned 1968, to any State whIch the Secretary determines has not made pro- funds, with- holding. ----------------------- Page 149----------------------- Pub.. Law 89-Z85 4 - October ZZ, 1965 ( 79 STAT. 1031 ( vision for effective control of the establishment and maintenance along the Interstate System and the primary system of,Qutdoor ju~ardS, which are within ousand feet of th earest . g..e-Of the ci£t-of~ ~ay an VISI Ie from the mam traveled wa~ of the system, shall be reduced by amooots equal to lOper centum of the amounts' which would otherwise be .apportioned to such State under section 104 of this title, until sueD. time as such State shall provide for such effective Reapportionment control. Any amoont which is withheld from apportionment to any of withheld State hereunder shall be reapportioned to the other States. When- funds. ever he determines it to be in the public interest, the Secreta~ may suspend, for such }!eriods as he deems necessary, the applicatIon of this subsection to.& State. " (c) Effective oontrolmeans that by January 1, 1968, such junk- yards shall be screened by natural objects) plantings, fences, or other appropriate means so as not to be visible from the" main traveled way of the system, or shall be removed from sight. Definitions. " (d) The term 'junk' shall mean old· or. scrap copper, brass, rope, rags, batteries, paper, trash, rubber· debris, waste, or junked, dis- mantled, or wrecked automobiles, or parts thereof, iron, steel, and other old or scrap ferrous or-nonferrous material. . . "(e) The term 'automobile graveyard' shall mean any establish- ment or place of business which is maintained, used, or operated for storing, keeping, buying, or selling wrecked, scrapped, ruined, or dis- mantled motor vehicles or motor vehicle parts. " (f) The term 'jookyard' shall mean an establishment or place of business which is maintained, operated, or used for storing keeping, 7 buying~ or selling junk, or for the maintenance or operatlon of an automobile graveyard,and the term shall include garbage dumps and sanitary fills. . " (g) Notwithstanding any provision of this section,junkyards, auto graveyards, and scrap metal processing facilities may be operated within areas adjaeent to the Interstate System and the primary system which are within one thousand feet of the nearest edge of the right-of- ( ( way and which are zoned industrial under authority of State law, or which are not zoned under authority of State law, but are used for industrial activities, as determined by the several States subject to approval by t~e Secre!-ary. ~ . ~. ',(h") Notwlthstandm ny prOVISIon ~f}~s/s~~lon, any Junkyard n in existenee on the ate of enactment ~which does not 'b conform to the requirements of this .eeeti6n and which the Secreta;ry~t finds as a practical matter cannot be screened, shall not be required to be removed until July 1, 1970. ~ Landscaping and "(i) The Federal share of landscaping and screening costs under screening costs. this section shaltbe75 per centum. . Juru:yards. " (j ) Just <;-<>mpensation shall ~e p~id the owner for the ~location, Costs of relo- removal, or dISposal of the followmg Junkyards- cation, etc. "(1) those lawfully in existence on the date of enactment of this subsection, "(~) those lawfully along any highway made a part of the ,~ interstate or primary system on or ~fter the enactment of this ( .subsection and.before January 1, 1968, and . "(3) those lawfully establIshed on or after January 1, 1968. :~)~ The Federal sha.re of such compensation shall be 75 per centum. "(k) All public lands or reservations of the United States which ~ are' adjacent to :my portion of the interstate and primary systems shall be effectively controlled in aCC<)rdan~ with the provisions of this section. . . "(1) Nothing in tills section shall prohibit a State fr6m:establishing standa.rds imposing stricter limitations with respect to outdoor junli- ----------------------- Page 150----------------------- October 22, 1965 - 5 - Pub. Law ?9-285 ( 79 STAT. l03i'\ yards on the Federal-aid hi.ghway systems than those established under this section. ' " "(m) There is authorized to be appropriated to carry out this sec- Appropriation:. ti'On, out of any money in the Treasury not otherwise appr'Opriated, n'Ot to exceed $20,000,000 f'Or the fiscal year ending June 30, 1966, and not to exceed $20,000,000 for the fiscal year ending June 30,1961. No part of the Highway Trust Fund shall be available to carry out this section." SEC. 202. The table of sections 'Of chapter 1, title 23, United States 72 Stat. 917. Code, is amended by adding a~ the end thereof the following: "136. Control of junkyards." TITLE ill SEC. 301. (a) Section 319 'Of title 23, United States Code, is revised to read as follows: , ' "§ 319. Landscaping and scenic enhancement " (a) '.fhe Secretary may approve as a part of the construction of Federal-aid highways the costs of landscape and roadside develop- ment, including acquisition an,d development of publicly owned and controlled rest and recreation areas and sanitary and other facilities reasonably necessary to accommodate the traveling public. "(b) An amount equivalent to 3 per centum of the funds appor- tioned to a State for Federal-aid highways for any fiscal year shall be llJlocated to that State 'Out of funds appropriated under authority of this subsection, which shall be used for landscape and roadside develop- ment within the highway right-of-way and for acquisition of interests in and improvement of strips of land necessary for the restoration, preservation, and enhancement of scenic beaut.y adjacent to such highways, including acquisition and development of publicly owned ana controlled rest and recreation areas and sanitary and other facili- ties within or adjacent to the hig-hway right-of-way reasonably neces- ( sary to accommodate the travelin~ public, without being matched by t.he State. The Secretary may authorize exceptions from this require- ment, upon application of a State and upon a snowing that such amount if:, in excess of the needs of the State for these purposes. Any funds not used as required by this subsection shall lapse. There is author- Appropriation. ized to be appropriated to carry 'Out this subsection, out of any money jn the Treasury not ot.herwise appropriated, not to exceed $120,000,000 for the fiscal year ending June 30, 1966, and not t'O exceed $120.~00,009 for the fiscal year ending June 30, 1967. No part of the HIghway Trust Fund shall be available to carry out this subsection." (b) The bible of sections of chapter 3 of title 23 of the United States Code is amended by striking out· "319. Landscaping." and insert.ing in lieu thereof "319. Landscaping and scenic enhancement." SEC. 302. In order to provide the basis for evaluating the conti~uing Estimate and ( programs authorized by this Act. and to furnish the Con~ress with the study. mformation necessary for authorization of approJ>riatlOns for fiscal years beginning after June 30, 1967, the Secretary, m cooperation with ihe State highway departments, shall make a detailed estimate of the cost of carrying out the provisions of this Act, and a comprehensiv.e study of the economic impact of such programs on affected individuals and commercial and industrial enterprises, the effectiveness of such programs and the public and private benefits realized thereby, and alternate or improved methods of accomplishing the objectives of this ----------------------- Page 151----------------------- ( 79 STAT. 1033 'Pub. Law 89-2~5, - 6 - October 22, 196~5 " Report to ,..<\.ct. The ,.Secretary shall submit such detailed estimate and a ~,()rt ( ~ Congress. .concernings\ICh comprehensive study to the c<>ngressnot later ,than January 10, 1967. ,," !hIes and reg- SEC. 303. (a) Before the .promulgation of standards, criteria, and ulations. rules and regulations, necessary to ca.rry out sections 131 and 136 of title Ante, pp. 1028, 23 .of the Uni~ States Code, the .secretary of Commerce shall hold ,-rr :~'9~0. , public hearings in each State for the purpose of gathering all relevant mformation on which to base such sta:ndards, criteria, and rilles and regulations. ' , Report to (b) The Secretary of Commerce shall report to Congress, not later Congress. thin January 10, 1967, all standards, criteria, and rules and l:egula- tions to be ~pplied in carrying out sections 131 and 136 of title 23 of the United States Code. . ,Appropriation. , SEC. 304. There is authorized to be appropriated the sunl ef $500,000 to enable the Secretary of Commerce to carry out his iunctions'under section 135 of title 23 of the United States Code relating to highway safety progr:ams., ' ' , SEC. 305. Nothing in this Act or the amendments made by this Act shall be construed to authorize the use of eminent domain to acquire ~ny dwelling (including related buildings). TIT;LE tv " ' SEC., 401. 'Nothfug in this Act or the amendments made by this Act shf!.ll be construed. tS3(3) --") signed the hole. The object of the '"""') :' a c........ -.) player is to light three, four or five ., ;:~y pinball machines were not :'. rices, and 'were not outlawed by lights in a row horizontally, vertically :',::C or any other state law. ORS or diagonally on the backboard by caus- ',dID, 167.405, 167.505, 167.535 ing the ball to roll into the appropriate 2} (b); Const. art. IS, § 4. hole on the board. Free plays are scored upon principles similar to Bing~ by the lighting of three, four or five lights in a row. * * *" :,'. Sullivan, Asst. Atty. Gen., for On the brief were Robert Y. The complaint avers that "it is just and .\tly. Gen., and John D. Nichols, equitable under the existing circumstances '. Gen., and Walter W. Foster, that the Court ** * determine by de- vi Polk County, Dallas. claratory judgment that the machille herein is not a gambling device as defined by Ore- ',':. Williams, Salem, for respond., gon Revised Statutes 167.535 and 167.555 "; :,im on the brief were Otto R. and that the legal opinion of the defendant ':,. and' Paul Burris, Salem. Thornton and its directive be held for naught * * *." The prayer sought a de- :,\)T, Justice. cree holding that "free play pinball m'a,- :::. appeal by the state from a de- chines of the type herein described and , ':d by the circuit court in a cause proof of operation offered are not gambling: , ."c p~aintiff, Marshall McKee, insti- devices' as defined by ORS 167.535 and 167.- '.;:,S( the District Attorney of Polk 555:' :,~ 1',:d-37% ) ___--.""v'· ~~-'" ----------------------- Page 157----------------------- which the two defendants filed jointly. Oth- other representative of val~e-·o-r~'· v.r "'''~d- o'sit of a coin what it will vend tne plaInnn S ill"-'-'U . eVI_ thc ep . :. 'terms of. the statute er parts adnlitted that the defendant Attor- dence of winniI)g capable of being ex- or dispense, shall be pU11lshed upon con- ney General issued.in his "offici~l capacity'; changed or redeemed for anything f . t' n by a fine of not ,less than $10 nor It will be noticed 1 "IC 10 the opinion dated March 20, 1958, in which value, when it returns to the PlaY~r more than $100, and in d~faul~ of pa!- vides that any perso he expressed the belief that "these so-called free plays upon securing a designated mcnt of the fine shall be Impnsonedm nicke1-in-the-slot mal 'free play' machines violated both ems score." , the county jail one day for each $2 operates as describ( 167.535 and 167.555." The answer further thereof: guilty of the crime I alleged that on October 4, 1947, Mr. Thorn- There is rio claim' that' the statement j1:~1 "(1) Upon deposit th:rein of a coin, . tion of our laws. ton's predecessor issued an opinion which quoted is at variance with the record. Te, slug, token or other thmg representa- lowed by two subs { d.eclared that "free-play pinball machines illumination of a part of the machine in t~: tirc of value, the machine ~nay vend or many' similar word: manner indicated by the excerpt which \,,: cerned with machiJ were gambling devices as defined by §§ 23- dispense any merch~ndlse, money, Q35 and 23-939 O.C.L.A., now compiledi~ took from the answer signifies to the Playc; check, token, slug, credIt or other r~p­ kinds. Subsection Oregon Revised Statutes as ORS 167.535 that he has won the right to a frec p!:: .... rescntative of value or evidence of wm- "Upon deposit the and 167.555 respectively." Going on, it al- In order to avail himself of the right !;~ ning in varying quantities or values, * * *" and subs leged that "on or about March 20, 1958, de- pushes a button but 'does not deposit in tl·.t depcnding upon chance. . exchange for a def fendant Thornton caused to be issued an machine a 'coin, slug or anything else. Th "(2) In exchange for a deposittl:ere- Alth~ugh the latter Opinion No. 3976, affirming the aforesaid brief filed by the defendants-appellants (At- in, there may be' received at occaslO~a1 slug * * *" thl torney General and District Attorney) says: the same. The de opinion and conclusion reached by Attorney or uncertain intervals or in varymg General Neuner." The answer further set "It is this distinctive 'free game' fca- quantities or value, fronl time to time, chine and thereupor forth: ture which is involved in this case and that point on sub~ dcpending upon chance, any money, which incidentally gives this and other machine which is "Plaintiff contends that the free-play . check, slug; token, credit or other r~p- similar machines the generic terin scribed, in subsecti( pinball machines owned and operated rcscntative of value or evidence of wm- 'frec-play pinball machines.' Snch ma- in specifying the by him in the manner above described chines thus stand apart from mach inC's !ling which: is concerned uses 1 are not prohibited nor subject to sei- dispening coins, tokens, mints or simi- "(a) May be exchanged or redeem- or dispense any me zure and destruction under the provi- lar items. Cf.,· State v. Coats, 158 Or. ed for anything of value. token * * */' sions of ORS 167.405, .167.535 to 167.- 122, 124-127,74 P.2d 1102." "(b) May be deposited in such ~a­ which it is applic; 540 or 167.555." In other words, the machine with which tb chine or device for further operation merchandise, mone 1t continues: case is concerned issues to the player m or play with the c'hance of. winning or tion (2) omits th "*' * * a real and substantial dis- slug,' coin or other item. Likewise, i: receiving additional merchandise, mon- pense" and, accordi pute exists between plaintiff and de- awards to the player nothing whatever ex- ey, check, token, slug; credit or other it is applicable is' fendants herein over the lawfulness of cept occasionally a free play. representative of value or evidence of . Subsection' (1) re free-play pinball machines as herein The findings of fact,' after mention:!:~ winning." vends or dispens( described unde'r the provisions of ORS ORS 167.405, 167.535 and 167.555 \vhich J:(' The appellants (defendants) present only varying quantities 167.405, 167.535 and 167.555~" ~ited in the answer, state: f)nc assignment of error. It -follows: on chance" unlaw The' cause was submitted to the court " * * * Provided, however, tl12t "The court erred in entering its de- patronizes a mach: cree permanently enjoining the defend- to receive somet' upon stipulated facts. The part of the find- the parties through their attorneys h:l\'c ings of fact which recites the' manner, in, agreed that the applicable statute to k ~nts fro111 curtailing, molesting or con- great in value it n which the machine indicates the player's interpreted is 167.535." fiscating the plaintiff's free-play pin- fact that the "qu: c ball machines inasmuch as such decree come to him are right to a free play is couched in the same No one claims that the' finding just quo: : was based upon an incorrect Conclu- the machine is re language as the above quoted excerpt of the misstates the agreement of the part;c' sion of Law that the operation of such a gambling devic~ answer. The findings contain no assertion ORS 167.535 reads as follows: . machines was not prohibited by ORS We now turn t that the machine issued to the player any- "Any person, firm" or corporati.e,n 167.535, which was not supported by section (2) outla, thing except a free play. N or do they con~ who possesses, sets up, conducts, maHl- the undisputed facts;" subsection does il tain any recital that there comes to the play~ tains, operates, or is in control of the chandise." Likev ·er somthing of a tangible or physical nature operation, either as owner,. proprietor. Terry v. City of Portland, 204 Or. 478, such as a token, slug or card. The conclu- lessee, ,employe or agent, or plays or 2'-..) P.2d 544 held that since free play have already not( sions of law state: ' . uses. any n1ckel-in-the-t" ,machine."lr ;:nhall l11achi~es lend themselves to gam- "vend or dispem ( '. "The machine as describe~ in the other device of like c eter, Wh:C1~ ~;~ing purposes the police" power' of the (' to the mac ----------------------- Page 158----------------------- the play the machine may issue to him ab-' then stancls by while the machine goes are =:.a. ... .L ........... - • things must be of a ta embrace replay mach1l1es. , -. solutely nothing. Or, it is possible that at through the operation of issuing to him an' The same difficulty is encountered if one ter; that is, they mu "occasional or uncertain intervals or in item of merchandise., The subsection, how. corporal nature so th; varying quantities or values, from time to ever, appears to be aimed at machines attempts to apply subsection (2) ~a) of OR~ cally "deposited" in t ~ '3" to the plaintiff's maclunes. ThiS time, depending upon chance," there may which, in dispensing mints, gum balls or 161·;) ;) , '. d fend ants argue that it • I'S applicable to com-operate ma- come to him "money, check, slug, token, , other itelps, do so "in varying quantities or cectlon ' . d to say that the statut ", . f om which "there may be receive , Clunes r ' . which dispenses ched credit or other representative of value or values, depending upon chance." Thus, up. asional 'or uncertain intervals or m evidence of winning." Subsection (2), on one play the patron of the machine rnav at oCC . . . * * '* de- , but does not prohibit however, does not stop there. If it did, its receive a piece of chewing g~m and 0;1 \'arying quanhtles or value mits replays without ( language in that phase of the matter would the next not only gum but. also some trinket. p~l1ding upon chance, any money, check, tokens. If,we asslU . k * * * which * * * May be somewhat similar to that of subsection The patron of a vending machine stands I< * ,*", Pinball ga,me ma.chine which '~'-;: ' , : t;l[ at " " . issue any tangIble objects and rcq;::~~, ~t .• :. ~t:itl We believe that the amendments wluch posit olf none upon replay is not a i::,' ";"rl'i..!. a gave ORS 167.535 its -present form rend:r device and is not rendered tllllawilil t, :::-: ,)% it clear that' that section of our la~s. IS utes pertaining to, setting up of lo:t:: l~(,'it'lhL the enactment which determines the vabdlty any other law of state; and int1:;:' ! ~ ,;: t 11 ,of plaintiff's machines. In our opinion tl:e charging possession and operation ,: ", ~1.n~ t \\ machines are not outlawed by that provl-, ,play pinball machines were d~ii;::::, ;'.( Pl."):-::'l' sion of our laws.- No other enactment has ORS 167.535. ': lll;l any application to them. 'fe) t The challenged de-cree is, affirmed. i' \\'h:ch, "The Robert M. Christ, Deputy Dis!' ;\:' , ., 'I'll, Multnomah County, Portland, for;-:" With him on the: briefs were Let; '~, t';;,d!cll, Dist. Atty. of Multnomah Cou:,: .. , .f " :'l:nd~ult Donal D. Sullivan, Deputy Dist. ;\:: • .. a Multnomah County, and Charles 1:: ;( ~r. one mond, Dist. Atty. of Multnomah C " :'",', whieh Portland. . "n:icr sc , :t then ,Francis E. Harrington, Portlanu, L' STATE- of Oregon, Appellant, spondents,., ~c"{'i\'l'd ~ v. -;,!ing- ur Charles George JOY, Respondent. ,-:;,c'r rt'!l ROSSMAN, Justice. :;,:e of \\ STATE of Oregon, Appellant, These are two appeals which k'" \ m:\)' t v. consolidated by order of this co:;:: for it! Sam G I LGUS, Respondent. One of the two defendants'a!';- "; the ell: Supreme Court of Oregon, Charles George Joy, was inclictt,,: ' ':::;: ;\ddit En Bane. grand jury of Multnomah County: ' r rt:pr('!iC crime of possessing and operating' ;, : "I Will A.rgued and Submitted Sept. 16, 195D. • 111, in-the-slot machine in violation '); , Decided Dec. 9, 1059. 167.535. To the indictment he tiL: : < ·t();-.~35 murrer which, referring to the iilt::' ,I. n.l' per~( recited: "The 'facts stated do n(J: ( , i " ,~,"'t.·~!,cS Prosecutions for, iIIegal possession and tute a crime." The demurrer ',L,~ ". ~ 'Pt: rat <.'~ operation of nickel-in-the-slot machines. tained. , ;,.::"0, citl The Circuit Court, Multnomah County, Al- fred T. Sulmonetti, J., sustained demurrers The challenged indictment aile,:: 'i', t'lllploy the defendant p06sessed and operaL: , .• ,:y niek, to the indictment, and appeals were taken. The Supreme Court, Rossman, ]., held that "* * * a nickel-in-thc-sltn - ',~ .!n·iec ( ':,,~c, as d pinball game machine which does not is- chine, ,to-wit, one 'Bally Vari~ty' : i ',' 1!:ch Ill: , sue any tangible objects and requires de- ball game, which said: machine o~·,::, ;~: P.Z\I-38 posit of none upon replayis not a gambling in a manner so' that in exchange : ' , device and is not rendered unlawful by deposit therein of a coin there I::.," ') -,.~ ......,...........~ ----------------------- Page 161----------------------- i"', .- '_"0! ...------, ( ~ a mis· UNITED STATES v. TWO COIN-OPERATED PINBALL MACHINES' 57 ~r the Cite as 241 F.Supp. 57 (10G5) lto the only that upon the facts and circum· 2. Gaming ~2 !rroga· stllnces of the instant case, the prose- Coin"'operated pinball machines, in- cutor's statement did not deprive defend- volved in libel against. them as gambling ~om ant of a fundamentally fair trial. . devices under federal statute, were not ,rial TiuEmce The writ is denied." specifically enumerated as lawful devices r state· iIi Kentucky statute. Gambling Devices ~ to ob· Act of 1962, § 1 et seq., 15 U.S.C.A. § :les not 1171 et seq.; KRS 436.230(5). ~d upon 3. Gaming ~58 ,roperly Coin-operated pinball machines, as to the involved in libel against them as gam- ls chal· bling devices under federal statute, were compe· not exempted from application of federal UNITED STATES of America, , attest· Libelant, statute by virtue of any exception con- he trial. v. tained in that statute. Gambling Devices ;hat not Act of 1962, §§ 1 et seq., 9, 15 U.S.C.A. tir trial, nro COIN-oPERATED PINBALL MA· §§ 1171 et seq., 1171, 1178. * gone CHINES, Nos. B-1197 and B-1378, Respondents. 4. Gaming ~52 .s to the Civ. A. No. 4727. Federal statute, under which coin- was in United States District Court operated pinball machines may be con- !ase and W. D. Kentucky, demned and forfeited jf gambling de- position at Louisville. vices within statute, as applied to devices s client's March 26, 1965. involved in libel against them, was con- . reading stitutional exercise of legislative power . lldgment. Gambling Devices Act of 1~62, § 1 et seq., 15 U.S.C.A. § 1171 et seq. t an un.,. Libel against coin-operated pinball vith im· machines as gambling devices under fed· 5. Gaming ~62 era! statute. The Distri<;t Court, Brooks, Transportation of coin-operated pin- his sum~ Chief Judge, held that the record estab- ball machines in interstate commerce is ~ktoa lished that the machines were gambling prohibited, if gambling devices, under :ly ad· devices in that they were designed and federal statute. Gambling Devices Act urt holds manufactured primarily for use in con- ·.of 1962, § 2, 15 U.S.C.A. § 1172. nection with gambling and by operation en made 6. Gaming ~61 Judge's of which a person could become entitled Coin-operated pinball machines any con- to receive as a result of application of would be condemned and forfeited to i~ing the dement of chance money or property~ United States, as gambling devices, pur- :eady re- Decree of forfeiture accordingly. suant to statute, in libel brought for ltates ex , 2d Gir., purpose. Gambling Devices Act of 1962, '§ 7, 15 U.S.C.A. §1177. 1. Gaming ~61 ),-27,438, (1963) ; Record, in libel action, established ,. Denno, that coin-operated pinball machines were Boyce F. Martin, Jr., U: S. Atty., .for 31, 1965. gambling devices as defined in federal W. D. Ky., Wm. E. Scent, former U. S. U.S. 443, si:.tute, in that they were designed and Atty" Louisville, Ky., for W. D. Ky., ,8 (1965). manufactured primarily for use in con- for libelant, United States of America. It, 309 F. 62), cert. r.ection with gambling and by operation Ben T. Cooper, Louisville, Ky., and 873, 9 r•. of which person could become entitled Paul R. Connolly, Washington, D. C., for t.o receive as result of application of ele- respondents and claimants. ment of chance money .or property. Gambling Devices Act of 1962, § 1 et seq., BROOKS, Chief Judge. 1,5 U.S.C.A. § 1171 et ~eq.; KRS 436.- This matter having come on regularly 230(5). -for hearing before the Court and a Jury, 241 F.SUPp.-4¥2 -............""""""""',........--'., -_ ,4 ,?O?,,~ \.W~·;;J ..~,.··· .• t.?,,,'I?!i)\!f.·W.I¥.,,.1!!.: (I. pelled ::.'~5' these devices peculiarly and unique- che in· :i' :luited for gambling purposes. on the ,j, Successful play of these devices s with u:;not be achieved by the application of Carl MASSEY, Plaintiff, ~yer \:.:ill and depends upon the result of the v. only l;;lication of an element of chance. ' Anthony 3. CELEBREZZE, Secretary of in the 5. The successful player of these de- Health, Education and Welfare, Free Defendant. corded ; ;:<3 will win not only a right to replay No. 6"11. Replay t~,~ devices but also the opportunity to red so ~,:;.;; irce games redeemed for cash' or ' United States District Court 9 free ;,::·:rchandise. E. D. Kentucky, Pikeville Division. these ~r will CONCLUSIONS OF LAW Oct. 18,,1953. games [ 1J 1. The respondent machines are essing -.• ;:;!;ling devices as defined in 15 U.S.C. le mao ~ 1171 in that they are designed and Action for review of decision deny- which ~,:.m:factured primarily for use in con- ing social security disability benefits. The District Court, Swinford, Chief game c':ction with gambling and by the opera- res of :,O;) of which a person may become en- Judge, held that denial of benefits was not supported by substantial evidence in reases :::;"d to rcceive as a result of an applica- 19ister ~"n oi an element of chance money or, absence of showing of employment oppor- )e im- ;;l)r-c·rty. tunities available to person who could do only what claimant could do in the an on- ion of ::2) 2. The respondent machines are general area where claimant lived: device >': .-pecifically enumerated as lawful de- Motion of plaintiff for summary recon- ',;:('3 in Section 436.230(5), Kentucky juqgment sustained; motion of defend- mare :>'i:'cd Statutes. ant therefor overruled., ~-" ~ ----------------------- Page 164----------------------- WILLIAM A. EGAN, GOVERNOR ( DEPARTMENT OF REVENUE OFFICE OF THE COMMISSIONER ALASKA OFFICE BUILDING - JUNEAU . March 23, 1966 HONORABLE GENE GUESS Chairman, House Judiciary Committee Alaska State Legislature Juneau, Alaska In Re: Senate Bill No. 282, An Act Relating to Coin-Operated Devices Dear Mr. Guess: Attached is a summary of gross collections of the coin-operated device tax provided under AS 43.35.010-43.35.090 for the calendar years 1962, 1963, 1964 and 1965. -The summary shows gross collections of tax before refunding to munici- ( palities and boroughs for each class of device, as well as collections of distributors fees and transfer fees. The tax schedule for coin-operated devices is as follows: Coin-operated device - Class I $ 48.00 Coin-operated device - Class II 120.00 Coin-operated device Class III ·240.00 Distributor fees 50.00 Transfer fees 5.00 The statistics contained in the attached summary are for your informa- tion and for the members of the House Judiciary Committee. Very trul~YOU.s, \.....-;~j /) ~- ) ; '-0""'". ~..,. '--?L~ R. D. Stevenson . Commissioner of Revenue Attachment ----------------------- Page 165----------------------- r', / ............, .~ SUMMARY OF GROSS COLLECTIONS . OF COIN-OPERATED DEVICE TAX AS 43.35.010-43.35.090 1965 Gross 1965 1964 Gross 1964 1963 Gross 1963 1962 Gross 1962 TyPe of tax or fee Collections Units Collections Units Collections Units Collections Units Coin-operated device - Class I $30,207 .45 677 $30,023.00 642 $31,744.60 672 $ 33,313.98 699 Coin-operated device - Class II 35,730.00 311 38,585.80 .}_'2:Z~ 57,107.00 462 71,100.52 614 ~ 3 ·680 .00 - Coin-operated device - Class III 480.00 2 z 16 9z 112.00 40 5%688.80 ~ Sub-total of gross collections $66,417.45 990 $72,288.80 985 $97,963.60 1,174 $110 , 103 . 30 1,341 Distributors fees 350.00 500.00 350.00 600.00 Transfer fees 15.00 -0- 35.00 130.00 Total of gross collections ~66z782.45 990 ~72z788.80 985 ~982348.60 12174 ~110z833.30 1,341 ~ ----------------------- Page 166----------------------- L.AW OFFICES OF ( PETER J. KALAMARIDES P. O. BOX 1346 ANCHORAGE OFFICE ANCHORAGE. ALASKA SUITES 204·209 CRAWFORD BUILDING 21 March 1966 507 E STREET PHONE 272·7431 The Honorable Gene Guess House of Representatives Juneau, Alaska Re: Senate Bill 282, An Act Relating to Coin-operating Devices Dear Mr. Guess: Pursuant to your request regarding the above, I am writing to you, suggesting that the following substantive matters be made amendments to the bill: (That this law shall not remain in existence beyond June 30, 1971; (It is the intention of the Legislature that ( this bill shall in no way be deemed an attempt or intent to liberalize or to exempt the State of Alaska from the limitations imposed in 15 U. S. Code 1171, eta seq.) As you are aware, the opposition, both in the newspapers and at the hearing, has alleged that the passage of this bill and enactment into law in its present state, would open the State to legalized gambling. Our state statute having to do with prohibiting gambling, to-wit, AS 11.60.140, is exactly word for word the same as the Oregon statute prohibiting gambling, and it should not be surprising because Alaska borrowed this statute from Oregon many years ago. The leading case in Oregon in which free plays were deter- mined not to be a thing of value, is McKee vs. Foster, et aI, 347 Pac. 2d 585, in which the Supreme Court of Oregon deter- mines that free replays are not a thing of value. This is directly contra to the finding of our Supreme Court in its case determined last August, and as stated before determined l upon the same statute. If the judicial minds of the Supreme ----------------------- Page 167----------------------- The Honorable Gene Guess -2- 21 Harch 1966 Court of two separate jurisdictions differ obviously, there must be a decided split in the determination as to whether or not free replays or property are a thing of value. Nonetheless, we cite further for your information, the case of the U. s. vs. 2 Coin-operated Pinball Machines, U. S. Dist- rict Court, Kentucky, case decided March 26, 1965, in which the court made a determination that pinball machines of the class 2 type giving free plays authorized by state statute, did not, in fact, remove it from the limitations as defined in 15 USC 1171. There are five separate statutes which must be considered in the determination as to whether or not Senate Bill 282 would allow or authorize the importation through Interstate Commerce into the State of Alaska of like machines for replacement parts: 25 U. S. Code 4461, the Internal Revenue statute vlhich defines what a pinball machine is, and the taxes to be assessed on it. It 'Was under this section that the U. S. vs. ~rp4.n case was determined, in which case the courts determined that class 2 devices are liable to taxation as gambling devices for the purpose of this federal statute. 15 U. S. C. 1171, et. seg., with particular emphasis on 1172, which section sets forth the manner and means by which a state may exempt itself from the limitations imposed by the federal statute. To date Nevada is the only state which has taken advantage of this exemption. 18 U. S. Code 1952, which section is the anti-racketeering act, which punishes any individual attempting the illegal importation of equipment to be used for gambling. The penalty is severe. The State of Alaska anti-gambling statutes. Senate Bill 282 amended as proposed above, would set out a limitation and a closing date in order to allow this type of machine to phase out, and would also express the intention of the Legislature not to exempt the State of Alaska from the limitations imposed by 15 U. S. Code 1171, et. seq. I am aware that on March 16, 1966, you received what purported to be an Opinion signed by 'Warren C. Colver, Attorney General for the State of Alaska, setting out that these machines could be imported into the State under federal law in the event Senate Bill 282 were enacted into law, however, the Opinion of ----------------------- Page 168----------------------- The Honorable Gene Guess 21 March 1966 the A,ttorney General does not cite one case in support of his conjecture, and certainly, and obviously, his office should make more research if he is to support the purported Opinion. I do not believe that the Judiciary Committee should be guided by this conjectured Opinion because of the fallacious reasoning set out therein. In discussing the matter vlith the Honorable Richard L. McVeigh;) United States Attorney for the District of Alaska, I have been apprised that he 'vlas in discussion with you on March 16, 1966, and informed you of a letter he had received from the Honorable William G. Hunley, Chief of the Organized Crime and Racketeer- ing Section of the Department of Justice, in which letter Mr. Hunley sets out specifically that he does not feel that the enactment into law of Senate Bill 282 'Would authorize the importation of class 2 devices or replacement parts into the State of Alaska through interstate commerce or foreign commerce. It would seem then, that after the sand and the smoke is settled, that Senate Bill 282 is an innocuous bill which would merely put the machines back into a free replay status, the same as they have been for years, and prior to the time of the Supreme Court decision of last August. You should also consider that in the interim period between December 1962 and August 1965 that no machines or replacement parts came into the State of Alaska in interstate commerce or otherwise because of the statutes above cited. I do not feel that emotionalism should have any factor 'in thEi determination as to whether or not a bill should be enacted into law. I do feel, however, that the Legislature should take into consideration the economic determination as to whether or not people, who were for years in what was a legal business by law, suddenly are ousted from their property and property rights by a decision that would .tend to cause them to lose not only anticipated income, but property and property rights and interests to their great financial detriment. I refer not only to the distributors and operators but also to the loss to be encountered by the locations, the maintenance people, the warehousemen who handle the storage and moving of these machines, and all other incidental individuals who have annual earnings from their employment directly or indir- ectly from the class 2 devices, and who are all engaged in ( ----------------------- Page 169----------------------- The Honorable Gene Guess -4- 21 March 1966 paying their income taxes and who may ultimately become unemployed. submitted, r-~..~'-. ~~~'~ PJK: cmb cc: Members of the Judiciary Committee ( ----------------------- Page 170----------------------- ~ (' I~ ) THE LEGAL ASPECTS OF THE FIGHT AGAINST GAMBLING (This report has been prepared for the Alaska Council of Churches upon the request of Reverend Richard K. Heacock, Jr. of the Juneau Methodist Church.) January 29, 1966 This report does not attempt to deal with law enforce- ment against professional gambling operations such as betting pools, football pools, pari-mutual betting and the like, Since there is adequate legal machinery for the elimination of such activies. Further, no comment has been made on the recently introduced law for a State lottery since the intent of the law and the dangers inherent thereto are readily ap- \ parent without any elaboration. This report does deal with two specific areas of special concern in the campaign against gambling activities. These two areas are the pinball machine and the proper en- forcement of the permitted lotteries and games of chance or skill under the so-called "Bingo Law". Some suggestions are made as to possible legislation which the Alaska council of Churches may wish to introduce and some ideas for possible community action. ~ ----------------------- Page 171----------------------- "Seizure and destructlon 0:1: gamDJ.lng aev .LC(:!::;. -un:: Commissioner of Public safety, a member of the Division of state police, or a police or peace officer designated by the commissioner shall seize and destroy a gambling implement." prior to the 1965 decision of the supreme Court on pin- ball machines, it had been necessary in order to destroy a pinball machine as a gambling implement, to prove that the machineha.d, in fact, been used as a gambling implement. This required that a police officer go into a place where the pin- ball machine was situated, play the machine long enough to run up a winning score, get paid-off for his winning score, then, remembering the serial number and exact identity of the machine, testify in court that the particular machine had been used in gambling. Then the court would order that particular machine destroyed. This was the rule under the case of pinball Machine vs. State 371 P2nd 805, decided in 1962. was achieved However, in 1965 a major break-through/in the fight against pinballs in the companion cases of State vs. Pinball Machine and pinball Machine vs. State 404 P 2nd 923. In these two cases, the Supreme Court summarized the nature of the pinball machines as follows: "The type of pinball machine involved in these cases is an electro-mechanical device operated by a motor which is activated by the insertion of a coin in the machine. Balls are released which the player shoots with a plunger device on the table or playboard portion of the machine. The balls drop into number- ed holes which cause corresponding numbers on a bingo-like card on the backboard to light up. When the player gets a certain combination of lighted numbers on the bingo card, the machine registers a certain number of free games to which the player becomes entitled. The number of free games that one may win depends not only upon the number and sequence of lighted numbers on the bingo card, but also upon the odds which are con- trolled by a mechanism called a search relay. Odds are varied and generally increase in the player's favor as he inserts more coins in the machine or utilizes the free games that he has accumulated. The effect of ES N. WANAMAKER 1 chance after the p.,.nt of a pnce, then one 1s gambl1n8. n Vn4er tlUt\\ eue" p1:nball maohine. are Sambl1Q3 .t.mpl_nta it ) the tbree e88,ntlal el.ments are present. The proponents of this bl11 feel that the .tatemant in the bill ~ that tne p1.,. shall not be cOMtrued &$ a th1n@ of val_ ----------------------- Page 179----------------------- ...,.-c;;;:""'" ~ (' ,~ '1'b1s ~ 01" may not be '0. A& alreaq atated, AS 4., .. '5 tue. oo1n.Qperated. devioes and. contains a section stating ~ that it does not legalize gambling. It lsestablleh.ed. law .in the Un.1ted. States that you 8¥ tu tbins" wh.lcn an \ 111esal. 'lbe law de.f1n1ns and proh1b1tins gambl1nC 1. .found in fltle 11, Cr1minal Law. Theretore.. Q aSa bV amend1ng AS 43.35 instead of Title 11 createa further liti- gation to determine whether the amendment of the taxation law chanie' the effeot of the supreme court ease whiob was declded. on the sections found in the oriminal 1_. U our court should. tind that enaotment of sa aS2 means that pinball machines are legal in Alaska beeauae they 40 not slye a p:r1ze sinoe tree pl~s have no value, then this raises tbe q'tJltut1on as to whethexanew pinball maob,lnee or ""\ parts tor ex1et1ns ones oan 'bG broUSht into the state. In OctGbeJ', 1962, the teet.raJ. law 1n Title 15, of the United States Code, Sees. 1111 ~ 1118 waa amended eo that tranaporta. '") t10n otsambllns deviees or parts for them ln interstate COIIl'me"e 1$ not legal. Since that t1lne I no new machinee or parte have enten4 Alaska. However, under Sec. 1112 of Title lS USC, the t~~portatlon of gamb11ng devices into • state 18 p08.1~le it tho state bas enaoted a law (1) provld1ns t·or the exempt10n ot the state from the provls1ona or the Sec.. 1112 or (2) 1n which the gambling devioe 1s specifically enumerated ae lawful in a statute ot the state. ~e question arises al to whether sa a82 would eDtrq)t Alaska trom this .rederal law and allow the """'\ importation of ptnball macb1nea or their parts into the atate. ,--..." mka ~ftA_ftftA~~a ft~ ~h.d ~4" e+.+. +hG. +k~ ~41' ~A~_ M_+ ----------------------- Page 180----------------------- ~ ~. (' .~ ..3... Ileoember 1959.. states that tNe plq pinball _cb~n$$ ave ~ not gambllns device., and are not outlawed bJ anJ ,tate law. Oreson haa, 1n effect, dec14e4 exactly oontrar,v to our supreme cwrt, and S13 282 wwld put Alaska in tbe a.. ~ position. ..a Oregon. Sinee Oregon 1$ notexempte,d from the federal lew pX'Gvlcn~"17 d1aow'.uJ$4 and. tMn~O" oannot 1mpo:rt p1nbeJ.l ..hinea, Ala8ka. would not be eUMJ?ted. Another caae 0.1ted in support of proponents· poslt1on 1s Jl!4ted.ltaM! vt It!!... OO"~9R!'Dtldp, ,lln~all BHhln". 24~ , .• hpp.51 (thlltedStatte J)lstrtct Oourt, 196').ln that ease it was held that pinball ...hines are not apeelflcally enl.Derate4 as lawful (levlcGG 1n sec. 436.2,0 (,) KentuolQ' Revised ltatutea and theretcre are not exempted from the a,plication of 15 V.S.O. Secs. 1171 - 1118, Title 15 USG. ~ the lentucKr stat~te, Sec. 436.230 (,) desoribes a plnb_ll macbine wh$.ch lives tre. plqe and eaysthat "plqlns such ~ t apply to &1W penon keepinS, m.anacUS.. operat1q, conduot1na.. or own1ns suCh device which onl~ alves a tree came or sames for the skill of the pla,er pla71nc such _ohine or device .. » SUbseotion (1) makes it 111esa1 for a person to operate, con4uct, eto., enume~te4 types ot Sumllng. fhe p"JOnenta o£ sa 282 point to the Nevada law a8 the onl,. one wtUoh eumpts a Ita~ from the provlsions of 1, V.I.C. SiUih 1111 .... 1118_ sec Ii 4'3'114:10 of the Nevada Statutes 18 ,..-.".\ entitled "Declaration of etate's exemption trOll o,erat:J..on of provisionS: of l' V.S.C. Sec. U12 1t , and Sec. 46J.42018 ~ ----------------------- Page 181----------------------- ,r" II"" ~\ ,,------- -""- part8 can \)e broUSht into Alaska. In a. memorandum to Mr. r) Gue.a, ."ed Mareh 16, 1966. Attorn., Qeneml Colver stated "U the oourts weN to take the view that D 2Sa did 1n etr.et lesal1ae the k1n4 ot plnball maeb111$ d••crlbe4 in AS ~ 43.3!hQ90 (2).. then 'bheae machine. eould be 1mported into tbe: etate under te4eral law U 'f... ., beoa'w!lfli! the t.de~a1 law SIq'. "lt snall not 'be unlawtul 1;.0 transport :1n1ntentate•• 'II$OnWKU?oe 8n7 cabl1ns 4evtoe 1nto &n¥ etate in which the t~po"ed Sambl3..ns device 18 spee:1tloal17 enumerated. as lawful 1n a statut:e of that state." 'lbe opponents or the 1>111 teel that tnt. bill opeu the state to a toa ot ,ambling which w111 contlnue until prohibition b,. aome tutl.U9 lea1alatuN. The proponents etate tha.t th.e 1)111 .111 allow thou people who have larse ) 1nvea\Mnta 1ft p1.n1.'Nilll maobinea to operate thtu,. ~b1nell with the l'l.Op$ that the,- will PQ' to~ themselvea \)etGN the,. ~ aN womout. Tbe lUe of theae maob1nes haa been $ta.1;ed to be . about flve :rean. 'l'bel)epartm.ent or Revenue taxatlon reooNe shows that texes were pa1d on 614 machine. 1n 1962, 462 1n 1903.. 327 in 1964 and. 3U. in 1905. The pNPonent. ot & aSa state 'that this b111 at1:eats leas than 300 maoh1fte$ and that acme maohines are Minc used as parts to'll other macbine. and. th.a.t w11;111n tlve ,ea.rs all the maohines w111 be wom out. Wbe opponents ot the bill teel this statement 1& \l.!U.mportant e1nce new _ohinea an4 part. can be 1mpOrtecl. it the. bill pus"•• ~ This report doe_ not attempt to SO lnto the pro. and. cons of pral)11n8 'but cmly to recognize the 181al and. tact-.l ~ ----------------------- Page 182----------------------- -,. - tt tf I; Il'.'.f!.·•..... ...·,t.... ,~. ,1.•. ··.·'.·.·.·.·I•.•••••. ..I..··."l,.•.••... i,·.i.••. ,•. ·I.,.II.·.'.·.;.• ·l,.·.• ··.:!.•. 1.·.•..•,.1.··•. 1.'.I.!.. ...•.•.:1~,1 I.'.·...• •.· f. !.·.:•.. ·.·I.:. ...••.!.. ,I· .,. , '.' ·~rl·.·~F· ·."I'c·IJI"UU A . . , ·,:.·••.~f••• ·.,.1·1", ... ·I·!,! rift.! ~i'i I I' I' 1 '.'" '. ' ....•.•.....' ..... '.. '·1·. =1 .. '..... '... 1'1: ,. Ir.1:1.1 f r II.~ ' 1 ;. ~ f . 1 i 1:.lt/ ;>' ~·i:f.. ·ll.llCia,• ....... '..... ,.,'.,.,.... ;.,.i..... ·•...•... ,·.,'.. e....~;.,J, I I.··•• ··,I.•. I:.!.'·I·•.•..,I.!........•. ;,•. .....'i~I,-.·... : ;•.::.. ' I! f:i:! I I '" ~. ..1 .. ·... .,...•. .r,. .-. ": ..... li.' I'. 'I.. •."'I.,....... ...E·<····.1'.....' •.,.'.'•. ' ..... 1........, I'" "J '''II a." "~"li.IJ~;.,li.l 1!1~.. r··~ ti "...Itl ". · '.t'......•.. ~..•.. :.1.··..•• ',..'.,...... '.'..'('... , ...... 1,.,... .....,1..,ii....., •..... '.. f·,'." .1.... ·. D.i.I.. ,........' '.'... '...•..•.,.' I.•.. :.........,. .:;q....:. ...'··.· ..•.. 1,.·..,f._...... ..'~,.. '.. !.'.., •I..... -s: ...1' .. .' -" t:JI , tlitl f · -1..li&;·l' II! I r:1~,lrllii(l~ Itlll I': 11"1i I'!I<..~I f.·._f~1 ~_!l4!=a I~ ~iA r. ii ~i~JI u I ......."I.···"· II fiI•• ·"" el'I'· -. . Ii 14 ~i.' .......... 11 ... ".,. ... II til "..., • ~ . .." .. .4 "'" I; .. ----------------------- Page 183----------------------- ----------------------- Page 184----------------------- ----------------------- Page 185----------------------- ----------------------- Page 186----------------------- JUDICIARY COMMITTEE MINUTES April 4, 1966 Chairman Guess called the meeting to order at 9 a.m. Present were members Metcalf, Taylor and Hillstrand. The committee considered HE 303 ~~d ~~anL~ously moved it out liDo Pass ll • The committee then discussed SB 194 and it was moved that it "Do Pass". There was no objection. Meeting adjourned. ( ----------------------- Page 187----------------------- ~..... ~.-~~............. ~"''''''', ----------------------- Page 188----------------------- ----------------------- Page 189----------------------- ( JUDICIARY CO~~ITTEE MINUTES APRIL 4, 1966 The meeting was called to order at 4 p.m. by Chairman Guess. Present were r~1essrs. !JIetcalf, Stevens, Tillion, Taylor and Hillstrand. Senator I',1cNealy and rtlr. Milt Daugherty spoke on CSSB lIB. The committee asked that the Department of Law appear before the committee the following day on the bill to answer questions. No action was taken on the bill. Rep. Stalker appeared on HB 452. No action was taken on the bill. The committee took up eSSB 278 and after discussion recommended t ha tit 11 Do Pas s II • The committee then considered HE 375. The committee recommended that proposed State Affairs eSHB 375 liDo Pass" with the following amendment: Page 1, line 12: Insert after word II statute If the following: II, by ordinance, II Meeting was adjourned. ( ( ----------------------- Page 190----------------------- ----------------------- Page 191----------------------- ___ ·_1.···.••• ·· ...I~_· • -'JI' r ( ••'1 ..... Under see. 4 of this bill, it 11'1111 talte effect 011 JanuarJ 23# , 1967 wh1ch:ls the :first day of the next legislative ~ess1on" so that regulations can be promulgated and put berore the legislature at that time. ----------------------- Page 192----------------------- ( JUDICIARY COr·1]VIITTEE MINUTES APRIL 5, 1966 Cljairman Guess called the meeting to order at 4:30 p.m. All members Irvere present except Mr. Josephson. Mr. Mike Holmes from the Department of Law appeared on eSSB 118 at the request of the committee. No action was taken on the bill. The committee then considered SB 231. The committee recommended .that SB 231 be replaced by HCSSE 231 and that it !lDo Passtt. ( ( ----------------------- Page 193----------------------- J Aprtl 5_ 1966 The Honorable Gene Guess Alaska State Representative Chairman. House Jud1c1ar,y Committee Alaska State Legislature . Juneau, AlaalO1 Re: senate BUl 118; Retail lnatallment Contracts. Dear Representat1ve Guess,-. You have' asked Whether the maximumserv1ce charges per- mitted by senate Bill NO. 118 include interest or 'Whether interest may be oharged on top of the max1mwn ·s~erv,1ce charge. In brief# the maXimum servi.cecbarge permitted by- senate Bill 11818 the ex- clusive charge· that may be ~deona·.reta11 installment contract. ( AS 45.10.120 provides: The service oharge .shall include a11 charges 1noident to investigating and making the retail 1nsta.llmentcontract or- cha.rge agreement and for the pr1v1~ege or making the installment payments under theoontraot or agreement. .Noother tee. expense.. or charge may betalcen. re.ce1ved# reserved, ·or contracted tor investigating and making the ·contractor agreement, or tor the pr1v1- lege of making the payments. . It should be explained that Senate Bill 118 has nothing ·to do with 1nterest rates.. Under existing :state law the maximum 1nterest rate is 8% except in the case: of l1censed small loan oom- panies. SenateB111'118 has noeftect whatsoever Qnthe ex1.sting usury law. . What Senate Bill 118 does regulate lathe sale of mer- chand,.se. on installment contracts. or charge accounts. Interest 18 the sum charged bY' a lender of money and does not include service oharges. Service charges- have been universally held by the courts not to be interest Within the meaning of the usury atatute·s. Unde~ existing law there is no11m1;t to the 'service 'charge that maY' by imposed in a retail installment ·contraot, because ·the USU%7 laws do not apply to service chargea.· . '., ----------------------- Page 194----------------------- " , The Honorable Gene Guess April 5, 1966 ( Juneau. Alaska -2- Banks and other lending institutions that·loan money are governed by the usury statutes because they loan money and charge and collect interest. A reta11e~ on the other hand does not loan money wIthin the meaning or the usury statutes. He sells merchan- dise for one price tor cash or tor a higher price on t1me. The dltrerence between the cash price and the time pr1ce 1s called the service charge and is not interest. Retailers do not loan cash to its customers. For that reason the questIon of whether a reta1ler can charge a serv1ce charge and interest 1s based on the false as- sumption that reta1lers charge 1nterest. See U.C.L.A. Law Review Vol. 7. No.4 (1960). . A retailer would only be perm1tted to charge the amounts perm1tted by senate Bill 118. Those amounts are a max.1mumof 18.43~ per annum on the unpaid balance (where there 1s a down payment) or 18% per annum on the outstanding balance (in the cas~ or a charge account). / ay its terms the bl11clearly appl1es to open end accounts. See Sec. 45.10.120(c) and the derlnltions of the terms retail charge agreement. revolving Cbar,e agreement and retail charge agreement (__ in AS 45.10.220(8) and',(9 • ' Very truly ;yours, WARREN C. COLVER ATTORNEY GENERAL BY Michael M. Holmes Deputy Attorney General wccllOOlllvh .......~1"•.-....,..-•.,............... ----------------------- Page 195----------------------- ----------------------- Page 196----------------------- ( PUBLIC HEARING ON SB 151 APRIL 8, 1966 The Public Hearing was called to order by Chairman Guess at 3 p.m. Appearing as witnesses were borough chairmen from the Kenai, Fairbanks and Juneau boroughs and a representative from the League of Alaska Cities. ( ( ----------------------- Page 197----------------------- ': ..•. STATEMENT (- ,FOR THE HOUSE JUDICIARY COMMITTEE CONCERNING SENATE BILL 151 BY BOROUGH CHAIRMEN April "'2,' 1966 • ,0 o. This concerns the proposal to exclude by legislatio'n .indian reservations ;. from the borouzhs surrounding them. It seems that the proponents must, mis- understand the major c,onsiderations involved which are: ',. Basic indian rights enjoyed by reason of the trust status of '. 0', ''. property are not abridged by reason of reservations being within ~ :- : "'.', boroughs jnor are any similar rights of the tribe, and 'village on ' the reservation. In is normal in other s,tates. that indian reservations and. l~nds are parts of ,the county or'counties " containing them. To make reservations non-borough islands in boroughs would be to create permanent tax escape havens for all kinds of investments'which would find the temptation too great to resist • . ,Boroughs are essential political sUb'ciivisio'ns of the' state carrying out the state function of. education and other major governmental' purposes. To have tax escape islands within boroughs would bE: unfair to' the., .( ,:,',' interests of the people of the ent'ire stace and violate the principle of equity in taxation. ,i . !.)' . " ,," , The major example of what is at stake is the borough sur:counding the Hoquawkie Reservation. Huge oil industry development is under- :. " way on the east side and shore of Cook Inlet, in the Inlet and on the west shore and side of the Inlet surrounding the reservation., We know we are to enjoy the henefits of huge investments i~ develop'- ment~jand that hundreds of millions of dollars in value in various processing plants are in prospect,. It would be an intolerable' ' ", injustice to hand out a permanent tax exemption to un~old millions' of dollars of industrial, ,enterprises. by creating a tax escape haven of the reservation. ..' . '...., " ". We respectfully emphasize there is no question of being in a borough . impinging on the established rights enjoyed' by a tribe on a reservation ~ • r'. ' but that excluding a reservation would create a situation of almost ' I" unmeasurable special privilege at: the expense of' all, the other tax-: . , payers. .. . In line wit.h almost universally accepted public policy throughout the nation we are removing racial and ethnic barriers and promoting equality and better understanding among· men. The proposed legis- lation would be a step backward that would eng~nder a.growing ill will· .,'. over what' would inevitably be widely viewed,as special privilege. ' e' " l 'J:his vlould be detrimental, 'to all c,oncerned. ..' .: ~.' . , ,',:': ,::' . , .. , ' ,," .. ' .• '," . :. ,. . '. ' ....• ' ..;.' .. ,', ". " ", .... . ',' .. ----------------------- Page 198----------------------- i' ,-' Statement - House' Judiciary Committee ,by Bo,rough Chairmen ~'4-2-l966 ::.' ,,', ( page 2 of 2 pages :,' .'tt" • 'By our great good fortune in oil.resources and the startling petroleum,' ." industry developments the econo~ic wellbeing of tne people of Tyonek is assured beyond· the most extravagant dreams of a short while ·ago. It would be an act of injustic'e against the, taxpaying people of the' borough and of the entire state to create a condition of special .over-privilege , ,for the industry of a permanent unlimited tax 'exemption in the area of ,. greatest development. ' " .,' .. , ,- . The situation in the one borough'us~d for illustration would exist in .', 'any other borough surrounding a reservation, the difference being only: in the degree of' injustice. ' I' .', We respectfully"reconunend that the L'egislattire .do not ~reate enclaves, in ,< •• t· any boroughs by excluding reservations or any other ~ands' excepting as to the ' ,', Federal Governmen~l,s own military establishments. .' ': ~, NORTH STAR BOROUGH,~ , , sl JackSchleppegrell" , Chairman MATANUSKA-SUSITNA",~ BOROUGH al Jan Koslosky, ';:;hai rman, .' ' ,': ", ( GREATER ANCHORAGE AREA. BOROUGH sl John Aspl~nd, , Chq.irman~" .' .. • I •••• KENAI PENINSULA BOROUGH sl Harold E. p,otileroy" Cha'irman ~. .', '" .' .. " ., , . . '; " , Irep, .~ ~ " .. ",','.. 'Subscribed to .a,:~s"o -by,:': ~ . ",', " Itt" ,: " ,GATEWAY ,BOROUGH:,',:' "''Robert Ward~" Ch,air,7'rJan 't':,'.:, :, ,,'I' " . ,', ", GREATER" SITKA' BOR,O,l/qll' , ,t', • GREAT EfiJ UNEA U"'B'oRiJUG H ,'" , 'C,Zaude', 'Mi ~7,sap,,' ,{:r.'~·'Cna{r'man ',' .,':.' , .., .. ',', .. .........:.., < 1 ·1 '~ ..~ ,''';\ .. . . ,' ','., :,4 ; ...... " ',', "Ii .•. .' .~, . . ';':':," '.' " . ;.,: t' " .'. :-.t ': .~ .: '" ';, , , .' " .. ,,' ..... . ~'. . , ... , " '. ",' . '.': ," , ~. .. . . i " .... ',1" t., . :':. ',' ----------------------- Page 199----------------------- TESTIMONY ONSB lSI, suaMITTBO'TO ntE HOUSE JUDICIARY COMMITTEE by the ALASKA MUNICIPAL LEAGUE '. Chairman, Members of the Committee: For the record 1 am Don M. Berry, Executive Director of the Alaska Municipal League, an organization representing 27 cities and 5 boroughs throughout Alaska. On behalf of the League I wish to thank the Committee for this opportunity to present our testimony in opposition to SB 151. While this measure has become commonly known as the "Tyonek bill", I will not discuss this specific instance since I have not been authorized to represent as Legislative agent the Kenai Peninsula Borough in any matter. The League opposes SB 151 primarily because of its effect on the tax- paying citizens of Alaska. 1£ all native villages were allowed to withdraw from boroughs, the remaining tax load would have to be borne by those citizens who do not seek such exclusion. We do not feel that this is equitable to those people who come under borough government in the same manner as the Indian villages who now seek to withdraw. If SB 151 is enacted into law, it would make the effect of establishing tax-free entities throughout Alaska. It is apparent that this would give un- due and harmful advantage to these entities as compared to other local govern- ment units. It would be impossible for cities which assume their fair share of the local tax burden to compete economically or industrially with these tax-free communities. The normal progress and growth of such cities would I, I ----------------------- Page 200----------------------- The Conatitution of the State of Alaska dictates that all local Govern- ment shall be vested in boroughs and cities. There are no provisions in the Constitution for. excluding certain groups who have b~en privileged to have their unique form of, local government. The legislature exercised its power to set borough boundaries, subject to a referendum of the people, and at that time no objection'was raised to the inclusion of Indian villages. In conclusion, Mr. Chairman and Members of the Committee, the Municipal League opposes passage of ~B 151 because it gives financial advantage to a few to the detrement of many. This state, and its legally constituted political subdivisions, can ill afford to grant unwarranted tax privileges to groups who are merely dissatisfied with certain forms of local government. Finally, we consider SB 151 as special legislation and has no place before this legislature. Re~pectfully submitted, Don M. Berry '. ----------------------- Page 201----------------------- C' CO:NCER1\HNG TYON'EK VILI.JlGB R8QUEST FOR El:CtUSICYi',T OF J~')(ONEK AfmA l~ROlvI TI..rE KE1\JJiI PEN'll';SSULA B01~OUGE The J!lss:2m1bly of tIll:; K8~1ai Pe;'l.insuJ.a EC:tOl.lg-h Ol)POSS;; e)~:ch.Lsi,Jn of the 7yonek areci fr01n the bOl~ougll on the gro'ur:d ~?xGlusi()n v\7ould be corrfTailY to tb.8 intent and purposes of th8 const:ituU.o:n ~ th,e J.a,\!ij .r8;~PGcting the: borou.gh 'I.-:,,-;r.::.',1 v......t= or:.v'r·':.r''''rno~''I·;· c:~~nd' 'i'he 'l;;t·(~n···!.· o'!: +1""l8 l .....::.{,"C!}lCi.·:;.h~:~,-:::. d.o,""",,.\.J~ .l.;;.,-' ~....... .t._.;,"-'l. __ .... ~....... _.:. ... ~, • •t. ...._ .... ....~ ......... :..'l.'... r,. ~~\..i. ........... * Arl lnui18diate xnajor PUR'pose 0:( HH3 J.cgislatu.re in ordering tl19 h1corpora- t:/.on of 'the Kena.i Penin~nJla BO~~OU£fh and SCV·8I'cd. ci:b.e:t ~:;.orol!.ghs vV'as to establish borough :"e:;:;po:nsibHity for schools ,and X....10V0 the State OU'C of direct school op1s:::aticrl.. 'This is [:llso consistG:n:~ ''Vvi'i:h '~~2S ~O}jcy of. the ?,3c1eral Govenlment The Bo:'ough School Di~__)·t:;~:l.:::>'~ i;:~ :f.t:;d,sil::1e. A.i:1~ S!.:;3~~lices t~~::.~~,."~~. I~ " ...... ". ;~ ~,. \. '.. '... :-...' - :m.'u.Gf3 .. ( oU :I.ndus '('(1 :La C~ook InL::t ;. .......... . / . f{!,ajor vI/a'te.r trazlspo~t;:;.·,~':;.c>t:, . . ~. :.;.. nccUon vv-lth developlL'.:;l-~:~ ::;;.\,~1d(;;;:r study for the future 08·i:.::d.)Jj"..;-,.."_,, ... ,_,..~·. _;;.,rbor at K,3nai" ..!..\J n18t and '1./_.,. ......;, lz·larld la:rg{3 Cf\lcJ.l:\~ci"t:.les o:t lJI~(;pertS7 f~orn ,~ ~ili(~.~::=; ClZ"rSa .~~) a-~.7():~cl 1~1\):t~()tlg11 tay~,es 0 Oil lands I leases., ,\;')'e118 ar.:.d rT~achiD8ry directl':!" ;:~,;so(..::i,a-;~z:;d '\-\r5:th prcducticD. ;:,~re t3Xernpt f:coTn property tcrxes. }:xclusion of the Tyonek TCSe:f'le vlould constItute a furt!.1er automatic 8xernption for la.rge quantities of associa.ted oil indv.st.ry ptOP2'f';"-:{ 1. ----------------------- Page 202----------------------- tha.t 5.s r:.;Ubj{3Ct to property tax and should net escape ]:;:s El1ECe 0;: !3'!}pport of ( tb.e arE:a. government a It is frOri'i such pro!;)(-;;;rty' that revenu,;,: should and fllU.st COlne to help pc';,y the costs of schools and other scr'vlces ~ To c;':"ea te such a sj.'tuation v\Jould he "fNholly incom.patible vl7ith sound public lJolicy and good gov0/.11.men:t • The l(~gj.slattlre vvent to g~~eat len.gths to cGrnbine cit:.t3S o.nd outl'}{ing area.s into a vl&h18 g-ov'3rn.fnontal 'O.nlt.. Exclusion of the TyOIlt3k. reserve \ivould be an in'\lit:::raon. to surroundJ..n9 areas also to request excluf;!ion.. PUI encroa.chr;J,ent OJ: tl13.~cat of enQ.~oaChnlGnt tJiJ.at v'lould v,reaken the Cc.:pc~cH:y of the borot\gh t.o Can":,i" oui: ·t:he g-l"oiJv1.ng :respons~.bnities con.templated in the Go:n.stH..utlon and lav? :Zor this (~sscn",ial lnicldle 1:8ve1 ox 90VeK'nrilent \vould be contrary to the puxpose of the state to seC't~re strong.! capable bo:rough gover-n- l'nent to lessen. the state burden for direct adm.inistraU.on of area services and functions. Rights on ~~e !v1Otluai{~f}::ie resc:rve G};:i.sting PiXCs·uiJ.rrt to applicable 18.\1\;7 an(1 court d'3cisions a:re not at i28118.. VIj1:~J'lt i~; at issue is 'Nhe·i:.t"'1E~!f to cx'eate a "v~irtual enclave enjoyIng in effect an e::·c~r(;"'i·-·"'t';~~;~f?:i:'OY'j.;:ll r.i(J·;~·r;: of having all property of all kinds a.nd hy "whorni2;V'8l" GVlncct :~n3e! froEl clny tax ob1i9ation for support of th.e area £rovornmc:f'.t .. ( tJ:~8 C011St:l:tuttOll ar:~.d. l)oj."·c~v.gj:-~. ~::":~.~~ ~~·~-!:'~:l.~t :(,~,~ of boroughs to take respo!1sibiHty :;.:);;;' c·:::·2.;;:-;" <:':;;0":,; :'~:..:·T!.n'~cr;:i·." s·tep in gover'11111erlt c:t~l~:f 2~ ·~~~;:,tt'c):;.]~~?~ l~;t:~~~:.i-l;.iS:~:~ in carrying olri: its respol1r:::l.bilHh;;s :;:·).O'II c::"LI 5.::;. {i.-le o;{'(h)tJ:i (h;;·v·elc).);De:;.~·: borough government:, 111 ·tile 1)el~;l~:;t] Jur~·t ;;~i'~\8.~~C~~ an.(~ tI)j"()l.t~;·11 ·tlie SlIf:~SE;/=~~Y:.L;~·;l~'.~.~t ----------------------- Page 203----------------------- ( JUDICI~/!'.RY COMI\1ITTEE ~1INUTES APRIL 9, 1966 The meeting was called to order at 3 p.m. by Chairman Guess. A quorum of the members was present. The committee discussed SB 279 and Tillion moved that it be reported out liDo Pass". ~11r. Taylor seconded and the motion passed. The committee next considered SB 6. The committee voted that HeSSB 6 tlDo Pass!!. The next bill considered by the committee was HB 384. The committee voted to replace the bill with CSHB 384 and recommended t ha tit ! I Do Pas s II • Meeting adjourned. ( ----------------------- Page 204----------------------- REPORT OF HOUSE JUDICIARY COMMITTEE ( ON HOUSE COMMITTEE SUBSTITUTE FOR SENATE BILL No.6 In Watts and Blue v. Seward School BOard, Alaska Supreme Court No. 427, sept. 1964, the court construed AS 14.20.170(2) which is amended by HOUSE COMMITTEE SUBSTITUTE FOR SENATE BILL NO.6. In that case the court held that two teachers, Mr. Watts and Mr. Blue could be discharged because their action in soliciting labor union and fellow teachers for support in removing the school superinten- dent and members of the school board from office was an immoral act under Alaska law. The case was taken to the United States Supreme Court (Watts v. Seward School Board Per Curiam No. 923) which 'Said: 'We need not consider petitioners' contentions at this time, for since their petition for certiorari was filed, Alaska has amended its statutes governing the dismissal of teachers.' The amendments referred to were chapters 14 and 41, SLA 1965. The state supreme court now has the case before it and HOUSE COMMITTEE SUBSTITUTE FOR SENA~BILL NO.6 and this report will be helpful to it as an expression of legislative intent that the immorality necessary for nonretention of a teacher is his commission of an act which, under the laws of the state constitutes a crime involving moral turpitude. While the substantive change of HOUSE COMMITTEE SUBSTITUTE FOR SENATE BILL ( NO.6 is alread~ embodied in the recently passed HOUSE BILL NO. 12 (Education Code), it is felt that enactment of HOUSE COMMITTEE SUBSTITUTE FOR SENATE BILL NO. 6 will make manifest legislative intent as an aid to the court." ----------------------- Page 205----------------------- ----------------------- Page 206----------------------- .......-~__ l ...~·....... ., .. ~~".""...·l,l............'~ .......s-Sa ."'.11".**-".,_"l_,.C,.... I .....~~ 't......~..........~~ ....,_ ....n_ ..... J ...lit· Sf.. . " ..,.... . ~~. ...1.a,t....... - tile .....---,.............-.... - tile .~ ........~~.~ •• wII1eb~"'*~_ • __, :-=:::--.u::.;-:-..-'::::-: ~~ ...a'ar1."" ,.,. _ ....tile: '. ;1WI81l''' .• ''. ·.....1•••••.".........or •.• '. ~.~.u. ... au 1.......~~·1a1ll1 __.......... __ .IJUl a18e .....S,....t' ~-loa u .. lire ...........,_ .,.. ...S&- ,....Spt. ,__.~.~_of..,. ...~~- olust....... III *.'a...•.. __--.".'.".. lIdeId... ·.•.. '..•..•. :........ : ...........'.~.' ...• ~".'~.~' ...IaS.. · '.~.' ~ .....:'~'.' .....·.'11•••'.. ·.... wi .....''.~.•.............. , ...........' ,.'••• -l8oII ......., .......... Ia"..,..'-. ..... , ..........or ..,....'1 ......... 81ted .....,. ----------------------- Page 207----------------------- ( JUDICIARY COMl'J!ITTEE MINUTES APRIL 14, 1966 9 a "m. A quorum of the committee was ];:resent. HB 502 was reported out Ii Do Pa ss Ii. n eSSB 206 was reported out lIDo Pass • Four members reported it II Do Pa ss It wi th the following amendment: Page I" line 13: Delete lteleven" and inser.t !!tenlland delete If three IT and insert IItwO". Meeting was adjourned. 1 p.m. Chairman Guess called the meeting to order. Present were members stevens" Josephson, Hillstrand, Taylor, Metcalf and Tillion. The committee discussed HB 526 and reported out CSHB 526 liDo Pass"" The committee recommends that CSSB 256 "Do Pass ll with the following amendments: Page 1, line 15: Change rrtwo ll to "one". Between lines 21 and 22 on page 2, insert the following: *Sec. 3. Beginning September 1, 1967, the presiding judge of the superior court in each judicial district shall accept applications for all positions as district judge in his judicial district with all appointments to be made before January 1, 1968. All interested persons including any district Judges sitting on September 1, 1967 may apply. The term of any district judge sitting on September 1, 1967 shall expire when an appointment to his position is made under this section. On page 2, line 22, delete all material and insert: *Sec. 4. Secs. 1 and 2 of this Act take effect January 1, 1968. The committee next considered SB 257 and recommended that it liDo Pass" and that it be referred to the Finance Committee. The committee recommended that eSSB 254 lIDo Pass II with the following amendment: Page 1, line 12: Insert after "$12,OOOfl the words Ilor more than $16,000 11 r.1eetlng was adjourned. ----------------------- Page 208----------------------- ...•;~... .' ....... ..~. ;jf ----------------------- Page 209----------------------- ( l'.icNELl•.Ly ME~·u.J1:S ~ltprBm2 QInurt AttJlJleys d L:lW 941 FOURTH AVENUE ANCHORAGE. ALASKA 99501 BUELL A. NESSETT. CHIEF JUSTiCE January 12, 1966 JOHN H. DIMOND, J,SSOCIATE JUSTICE JAY A. RAB!NOWrr:~, ASSOCIATE JUSTICE: Honorable Robert J. I\lcNealy President of the Senate Alaska state Legislature Box 1912 Fairbanks;, Alaska. Dear Bob: ( There are enclosed copies of the legislation relating to the court system which we discussed on your recent visit. The draft bills include the following: I (1 \ A bill to remove the ceiling on the salaries of V ..... ) district magistrates. /.-;; ) A bill to allow retirement of judges at age 60 \j \. .... after ten years of service, and to increase retirement beneri ts to 5% of salary per year.. of service to a maximum of 75% of salary. . ; ..../ f<1 (3) A bill to place district magistrates and the administrative director under the judicial retirement system. ~I (L!.) A bill to clarify the authority of court person- f ' nel to perform notarial functions. (1) The bill to remove the sala~J ceiling on district magistrates would enable correction of the inequity of having assistant district attorneys paid more than the judges before t1lhom they plead. The supreme court would fix salaries at least commensur- ate with experienced attorneys in the executive branch,; l. (2) The bill to allow judges to retire at age 60 in its Section 1 is explained by the enclosed letter from the actuaries ----------------------- Page 210----------------------- senator McNealy -2- Jar..uary 12" 1966 , dated January 25, 1965. As noted in the letter, this change would not place any additional cost burden on the retirement system. Section 2, increasing the retirement benefits, will increase the cost f~om $60,641 to $92,694, i.e. $32,050 per year. This is de- tailed in the attached Exhibits la and Id. (3) The bill to bring district magistrates and the administrative director under the judicial retirement system will cost $37,994 per year at the present salary levels, as shown by Exhibit 2a. If salary increases are allowed and the higher retirement benefit schedule is approved, the cost increase would be $66,732, as shown by Exhibit 3d. (4) The bill rela.ting to notarial functions of court personnel· is one 111[e originally offered in ~1arch, 1964, as explained in the attached copy of the cover letter we then sent to you. We did not request its introduction in 1965, but it should be conSidered. \1e are preparing background ma.terials to justify the need for the proposed changes in the judicial retirement system and for the district magistrate salary increases. ~lhen these are ( ready, we will forward copies for your reference and have them',· available for committee hearings or other use as appropriate. With kindest p~rsonalregards, Sincerely yours" ----------------------- Page 211----------------------- .15:.. :;:~ T Hi tJ R S TeO r=:; V HAN S G NCO N S U L 7" i N G ACT U A lH ~ E .~2; NEW YORK DALLAS FORT WORTH HOUSTON MILWAUKEE OKLAHOMA CITY ( GENERAL OFFICES ORVIL.L.E C. BEATTIE 1080 GREEN BAY ROAO DONAL.D I. BROTHERS AL.AN A. GROTH LAKE SLUFF. II...L.. 60044 ROBERT V. THONANDER CE 4·3400 Nor'MAN N. STROM FROM CHICAGOI SR 3-2345 WILL.IAM N. BRET. JR. DAVIS H. ROENISCH JOHN J. VOL.AND ONE N. I.A SALLE STREET CHICAGO. IL.L.. 60602 LOGAN O. JOHNSON F'I 6·0101 RleHAh~ C. Kl;;oI\'rING THEODORE A. SWEENEV MILTON Q. ELL.ENBY ELMER G. HANSON RICHARD J. WILLIAMS RALPH JACQMIN Air Mail JAM E S. I. PET E R SON R 0 a E R T C. W A R'E HAM EDWARD J. MUL.LEN LARRY M. FISHER January 25, 1965 Mr. Thomas B. Stewart Administrative Director Alaska Court System 941 Fourth Avenue Anchorage, Alaska 99501 :)ear Tom: Voluntary Retirement - Age 60 and 10 Years Servi ce You have requested our opinion of the effect on the contribution requirements for the Alaska Judges Retirement System if J usti ces or iudges were permitted to retire at age 60 and after 10 years service on a voluntary basis.· If any individual retiring under this provision drew his pension prior to age 65, the amount of the benefit would be reduced on. an actuarial equivalent basis. Reduction of the benefit to the actuarial equivalent basis means that, insofar as the individual is concerned, there is no additional cost to the system in permitting him to receive an immediat.e benefit. Th is conclu- sion is based on the fact that the retiree would be in average good health. To the extent that the iudge or Justice retires because of ill health, some payments might be made in case of early retirement ~hat would not otherwise. be made if the pension were deferred to age 65. It is our conclusion that this risk is negligible, particularly since the individuals affected by this provision would still not have completed 13 years of servi.ce and earned a fu II 50% pension • Until this time, there would be strong incentive for a judge to continue on in service since the combination of the actuarial equivalent reduction and the loss of the·4% accrual for each additional yearofservice would sharplycurta~1 his pension~ ----------------------- Page 212----------------------- , ... -2- Alaska Court System January 25, 1965 A second ~inor cost consequence would be for the group as a whole, even though no extra cost would result on t~e part of any individual because of the actuarial equivalent reduction. As noted, a judge can earn a full' benefit with 13 years of service. Afi"er this time, ho is not increasing his pension with his additional years on the bench because of the 50% maximum. . At presen"c, judges who enter between ages 46 and 48 must serve an .extra year or two of service to become eligible for benefits unqer the rule of 75 whereas they would not have to do so if allowed tb retire u-nder the age 60 and 10 years of servi ce rul~. For example, a judge who comes on the bench at age 47 can only voluntarily refire at age'61 after 14 years of service. Under the new rule, he would still be eligible for the 50% benefit at age 60 and 13 years of service and he would lose little by retiring one year earlier. If all judges in this category consistently did this, there would be a ve~y slight increase in cost to the system as a whole since employment of an additional judge might ultimately be required because of the aggregate of sl ightly shorter servi ce periods than would be realized under the rule of 75. Again, it is our opinion that this potential additional cost is not significant. This is particularly true since it is likely that other considera- tions, rather than the minimum period of service to earn full benefits, will ( be determinative of the judge's decision to retire. Furthermore, there would be no effect on judges entering prior to age 46 or after age 48. Consequently, after consideration of all aspects of the proposal, we believe that any additional cost,if any, to the system because of the change would be of minor proportions o' and would not be easi Iy measurable 0 We would suggest that the easiest method of making the change would be to modify the first two sentences of subparagraph (d) of Section 25.25.010 as follows: "A Justice or judge may voluntarily retire, and is eligible for retirement pay when he has (1) reached the age of 60 years and has served for 10 years or more, or (2) his age plushTs years of service equals 75. () If the Justice or judge has not reached the normal retirement age of 65 years, he may elect either to have his retirement pay begIn when he reaches the age of 65 years, or to have his retirement pay begin on an actuarial equivalent .basis as of the effective date of h is retirement. II This adjustment seemed to us to be the simplest way to permit the earlier retirement without being redundant or unduly complicating the legis- lation. Since the actuarial equivalent now appli.es to both cases in the first sentence of subparagraph (d) I the reference to I,' i n the latter case II is om itted. ,. ____________--:-ARTHUR STEDRY HANSEN CONSULTING ACTUARIES------------- .. ··,,··--- ----------------------- Page 213----------------------- -3- . Alaska Court System January 25! 1965 At the same time, the addition of the words IInormal retirement ll in front of age 65 in the second sentence stresses that full benefits are not payable until this age. In the usual situation, we would add a definition of "normal rerll"(3n1@rH d6t¢il and s(;1p~roto the payment of full bemefits on or Qftaf this rirno from an early retireme'nt provision dealing with age 60 and 10 years of service and the rule of 75. . On the other hand, the suggested change appears both simple and clear. The only risk we see in not separately defining a normal retirement date and benefit is that it may appear in the future simple merely to change the age that full benefits are payable from 65 to 60. It cannot be too strongly emphasized that th is wou Id be a ve'ry expensive change to make in the system and perhaps more stress should be laid on it in the wording of the law. ' Should you have any question concerning these comments, we would, be pleased to discuss it with you further at your convenience. I Very truly yours, ARTHUR STEDR~Y HA',N/$EN) '" CONSULTING ACTUARIE'S L ( ~'. tf-- or earnIngs for each yOOi" of servi ce maximum 50% of earnings for life. Normal Retirement Date. Age 65, after completion of 10 years of servi ce, or when age plus servi ce exceeds 75. Compu Isory retirement at age 70. Benefit is reduced to actu- arial equivalent if payment begins prior to age 65. Disability Benefit If deemed incapacitated after 2 years of servi ce or on own option after 5 years of servi ce, a fu II benefit based on earnings and servi ce to date of incapacity. , Widow's Benefit In event of death after 2 years of service or after retirement, widow receives one-half of the annuity which was or would have been payable to the judge'. (~ Contribution Judges contribute 5% of pay. Normal Cost Less Judges Contributions· Net Employer Outlay $53,112 Past Servi ce Require-' ment 12-31-64 $303,188 Estimated Assets Employer 105,500 Judges 36,904 Net Requ irement $160,784 40 Year P.mortization of Past Service Requirement Net Annual Outlay of Court System $60.641, -- 1154-3-85 , 1-4-66 ___________________________ ARTHUR ,STEDRY HANSEN CONSU~TING ACTUARIES-,------------------ ----------------------- Page 215----------------------- Exh~ -",... ,..., .......~-'"'-.-- ..-'''.---. Judici'al Retirement System - State of Alaska Actuarial Valuation (As of December 31, 196~ Normol Retirement Benofit .5°ib of earnings for cClch year of servi ca Maximum 75% of earnings for life. Norma I Reti rement Date Age 65, after completion of '10 years of servi ce, or when age plus service exceeds 75. Compulsory retirement at age 70. Benefit is reduced to actu- arial equivalent if payment begins prior to age 65~ Disabil ity Benefit If deemed incapacitated after 2 years of service or on own option after 5 years of servi ce, a fu II , benefit based on earnings and servi ce to date of incapacity. In event of death after 2 years of servi ce or after retirement, widow receives one-half of the annuity which was or'would,have been payable to the iudge • ( I - Contribution Judges contribute 5% of pay. i Normal Cost $ 91,483 Less Judges Contributions 11,932 Net Employer Outlay $79.'55) Past Servi ce Require- ment 12-31-64 $423,075 Estimated Assets Employer 105,500 Judges 36,904 Net Requirement $280.671 40 Year Amortization of Past Servi ce Requ j rement 13, 143 Net Annual Outlay of Court System $92.694 1154-3-85 1-4-66 ----.-:...-________ ARTHUR STEDRY HANSEN CONSULT(NG'ACTUARIES-~--------~ ----------------------- Page 216----------------------- Exh ibi" " ( J u.di cia I Reti rement System - State of Alaska (Mag istrates) Esti mated Costs (As of July 1f 1966) 4% of t\lCtrnings for ooeh yeClr of S(;)i'vi (;0 ffloximum 50% of earnings for life. Normal Retirement Date Age 65, af~er completion of 10 years of servi ce f or when age plus service exceeds 75. Compulsory retirement at age 70. Benefit is reduced to actu- . arial equivalent if payment begins prior to age 65. Disability Benefit If deemed incapacitated after 2 years of servi ce or on own option after 5 years of servi ce, a full benefit based on earnings and service to dote of incapacity. Widow's Benefit In event of death after 2 years of servi ce or after retirement, widow recejves one-half of the annuity which was or would have been payable c' to the iudge 0 Contribution Judges contribute 5% of pay after July 1, 19660 Norma! Cost less Judges Contributions Net Employer Outlay $33,484 Past Service Require-' ment 7-1-66 Estimated Assets Employer :34,500 Judges 11,500 Net Requirement $ 96.312· 40 Year Amortization of Past Sel'vi ce Requ irement Net Annual Outlay of Court System $37.994 ." L. 1154-3-83 1-4-66 -----__ l\C'T'UIIO C:TJ:"noV' ~Il.N~I='N r.ONSULTiNG ACTUARIES---...,-----...:-..---- ----------------------- Page 217----------------------- Exhibit 3d ~' JudiCia!' Retirement System - State of Alaska (Magistrates -Proposed Salary) Esti mated Costs (As of July 1, 196~) Norma I Retft·emont Benefit' , SOk of ¢eJrniflgs for' ooch year of service n"iQximurn 75% of earnings for fife .. Normal Retirement Date , Age 65, after compl etion of 10 years of servi ce, or when age plus servi ce exceeds 75.. Compu Isory , retirement at age 70.. Benefit is reduced to actu-, ' arial equivalent if payment begins prior to age 65~ Disabil ity Benefit If deemed incapacitated after 2 years of servi ce ' , oron own option after 5 years of servi ce, a fu II benefit based on earnings and servi ce to date of / incapacity .. , Widow's Benefit In event of death after 2 years of servi ce or after retirement, widow receives one-half of the , annuity which was or would have been payable ( -Co the iudge .. Contribution Judges contribute 5% of pay after July 1, 1966 .. Normal Cost $ 72,032' " Less Judges Co'ntributions 12,440 Net Employer Outlay $59,592 Past Servi ce Requirement 7-1-66 $19{?,473 Esti mated Assets Employer 34,500 Judges 11,500 Net Requirement $]52,473 " 40 Year Amortization of Past Servi ce Requ irement 7,140 Net Annual Outlay of Court System $66,732 L.- 1154-3-83 , 1-:--4-66 ----------------------- Page 218----------------------- ( ALASKA' / ST'A T E .LEG I S LA T U RE ( , LEGISLATIVE COUNCIL BOX 2199·JUNEAU MEMOI(IIN UM TO: House Judici'ary Committee Re: SB 282, An Act ,relating to coin-operated devices. Attached find a copy of 1. Legislative Council review of State v. Pinball Machines; Alaska Sup. Ct. Ope No. 298, 1965. 2. Chapter 24 of Title 15 'USC relating to the transpor.tation of gambling devices. '3. Nevada statutes permitting gambling devices in interstate commerce. ' ( 4. Copy of Attorney General Colver1s memorandwn ( to Mr. Guess. l ----------------------- Page 219----------------------- ( of the Code can begin without delay. In other words, instead of being authorized to merely create a plan of revision, as provided in HB 256, it is recommended that the Legislative Council be given authority to begin work immediately with each department and agency on a revision of its regulations. It is also recommended that the Council be assigned the responsibility 'of re- writing the instructions on drafting techniques and prescribing a uniform system of indexing I numbering and arrangement of text to be used in lieu of those in- structions and requirements now contained in Title 1 of the Administrative Code. Each of these tasks it is believed can be performed by the Council within its present staff structure. Under the staff's proposed additions to HB 256, the interim powers and re- sponsibilities vested in the Legislative Council would terminate when the re- vision of the Code is accomplished .. At that time the Council would then submit to the Legislature the method it recommends for the future promulgation, publi- . cation i and distribution of administrative regulations. A bill to effectuate the recommended proposal is contained in Appendix 7 • III" REVIEW OF STATE SUPREME COURT DECISIONS This part of the report contains analyses of four recent state supreme court opinions and the Council's recommendations based on these analyses. A. STATEv.PINBALL MACIDNES [Sup. Ct. Ope No. 298 - August 19, 1965] 1. Fact Situation. Various pinball machines in the cities of Anchorage and Fairbanks were seized as gambling implements under the authority of AS 11.45.040. Essentially, the machines featured a coin insertion to activate the machine I the shooting of balls by a player, the dropping of balls into holes, the lighting of numbers on a bingo-type card I the varying of odds by a mechanism within the machine and the winning of free games by chance.. No pay-off in money or things of monetary value was' found to have been made to winning· players. Winners only ac..;.. quired the right to continue playing th.e .game without paying additional money until the number of fre~ games won were used up. l -12- ----------------------- Page 220----------------------- ( 2 . Statutes Involved. The only statute involved in these cases that is pertinent to the legislative problem to be discussed is AS 11.45.040 which states: The commissioner of public safety, a member of the division of state police, or a police or peace officer designated by the commissioner shall seize and destroy a gambling implement. 3. Superior Court Decisions. The superior court at Fairbanks held that a pinball machine is a gambling implement per se I while the superior court at Anchorage held that it is not. 4 . Supreme Court Decision. The Supreme Court agreed with the superior court in Fairbanks and held that pinball machines are gambling· implements which are subject to seizure and des- truction under the law. According to the court, the essential elements of gambling are price I chance and prize, and whenever some tangible thing is "used or mainly designed or suited for gambHng" it is a gambling implement. In applying these criteria to pinball machines the court noted that since a person must insert money into a pinball machine to activate it I the element ( of price is present and because the number of free games one may win is uncertain, the element of chance is also present. Moreover, a prize was won, even though the free games ac- cumulated had no real monetary value I because, said the court: It is not the es sence of gambling that the element of prize have a monetary value. If that which one seeks to attain, regardless of whether it has value in money, may be attained by chance after the payment of a price I then one is gambling. 5. Legislative Problem. This case indicates that there is a need for the legislature to either define what it considers to be a "gambling implement II or to at least make clear its position re- garding pinball machines as gambling implements. Under the court's present criteria almost any game which a person pays to play or see can fall into the catagory of gambling because of the presence of price, chance and prize. In. fact, a literal application of the definition adopted in this case would require the conclusion that even bubble gum machines ,which have . ,little trinkets interspersed among the gum,' are gambling instruments -13- ----------------------- Page 221----------------------- ( to be adjusted manually or automatically to raise or lower the frequency of winning free games. One such device is known as a "reflex unit. II It operates con- stantly to adjust the odds--unbeknownst to the player-- to protect the "house. 11 After a series of pay-offs the unit begins to disconnect circuits in the odds-fixing mechanism to reduce the chance of increasing the odds with each coin; after a period of slow play the unit re- verses and reopens circuits to make it progressively easier to win a greater number of games again. It may be feasible, therefore, to use the mechanical makeup of pinball machines as the basic method for determining whether a particular pinball machine is a gambling implement. (A draft bill incorporating this approach is contained in Appendix 8) . It is the Legislative Co~ncil' s belief that further consideration of the problem posed by this case is needed. Thus I the Council recommends that the material related above and the draft bill in Appendix 8 be referred to the House State Affairs and the House Finance Committee for their study and analysis. ( B. WADE v. [Sup. Ct. Op. No. 306 - November 4, 1965] 1 . Fact Si ation. The Secretary of State denied an application for a recoun of votes for the House of Representatives I race of November I 1964, in the sixteenth election district on the ground that the ap ication was not received within the time set by law for filing suc applications. The state canva of the election in question was completed and certified to the Se retary of State on November 19, 1964. The application I which ad been signed by ten qualiHed voters of the sixteenth electio district (one of whom was the appellee I Lazer Dworkin) I was m iled on Novemb er 23, 1964, (four days after the canvass) and re eived by the Secretary of State on November 25th, which wa six days after certification of the state canvas s (one of those ix days being an intervening Sunday). 2. Statutes Involved. This case in olved the following statutes: (a) AS 15.20.. 430 I A defeated candidate or 10 qualif d voters who believe there has been a mistake made by election official or by the canvas sing board in counting e votes in an -15- ----------------------- Page 222----------------------- ( ALASKA STATE LEGISLATURE 2 IN THE LEGISLATURE OF THE STATE OF ALASKA 3 FOURTH LEGISLATURE - SECOND SESSION 4 A BILL 5 For an Act entitled: "An Act relating to the clarification of the 6 meaning of a gambling implement as applied 7 to pinball machines and other coin-operated 8 gamesj and providing for an effective date." 9 E IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 10 * Section 1. AS 11.45 is amended by adding a new section to 11 read: 12 Sec. 11.45.050. PINBALL MACHINES AND OTHER COIN- 13 OPERATED GAMES. (a) A pinball machine or other coin-operated 14 game is a gambling implement within the meaning of sec. 40 15 of this chapter unless it is designed solely for amusement 16 purposes and does not contain a device for releasing free 17 plays, a meter for registering or recording the plays so 18 released, a provision for multiple coin insertion for increas- 19 ing the odds on winning free plays, a device for adjusting 20 the machine manually or automatically to raise or lower the 21 odds on winning a free play, or a mechanism capable of 22 awarding more free plays than would, within reason, be played 23 off by the average person. 24 (b) A pinball machine or other coin-operated game, the 25 use of which has entitled a player to a payoff in money or 26 other material thing of value, by the proprietor or an 27 employee of the establishment in which the machine is located, 28 is subject to seizure and destruction under this chapter. l 29 * Sec. 2. This Act takes effect on the day after its passage -1- ----------------------- Page 223----------------------- Page 2945 TITLE 15.-COMMERCE AND TRADE § 1172 r f strued as modifying or limiting any other statute any money or property, or (B) by the operation ! relating to the classification of information for of which a person may become entitled to receive, t ( reasons of national defense or security. (Sept. 9, as the result of the applic" !i!~'n of an element of 1950, ch. 936, § 5, 64 stat. 824.) chance, any money or prop(;" ;~l" I (3) any subassembly or esseni.>;;"~ rt: intended § 1156. Use of existing facilities. to be used in connection with any such machine i (a) The Secretary may utilize any personnel, or mechanical device, but which is not attached facilities, bureaus, agencies, boards, administrations, to any such machine or mechanical device as a I offices, or other instrumentalities of the Department constituent part. r. of Commerce which he may require to carry out the (b) The term "State" includes the District of purposes of this chapter. t (b) The Secretary is authorized to call ·'upon Columbia, Puerto Rico, the Virgin Islands, and f Guam. other departments and independent' establishments (c) The term "possession of the United States" ' and agencies of the Government to provide, with means any possession of the United States which is I their consent, such available services, facilities, or not named in subsection (b) of this section. other cooperation as he shall deem necessary or: (d) The term "interstate or foreign commerce" helpful in carrying out the provisions of this chapter, means commerce (1) between any State or posses- and he is directed to utilize existing facilities to the sion of the United States and any place outside of full extent deemed feasible. (Sept. 9, 19,50, ch. 936, such State or possession, or (2) between points in § 6, 64 Stat. 824.) the same' State or possession of the United States § 1157. Relation to other provisions. but through any place outside thereof. Nothing in this chapter shall be construed to re- (e) The term "intrastate commerce" means com- peal or amend imy other legislation pertaining to the merce wholly within one State or possession of the' Department of Commerce or its component offices United States. (Jan. 2, 1951, ch. 1194,§ 1, 64 Stat. or bureaus. (Sept. 9, 1950, ch. 936, § 7,64 Stat. 824.) 1134, Oct. 18, 1962, Pub. L. 87-840, §§ 2, 3, 76 Stat. 1075,) AMENDMENTS Chapter 24.-T~ANSPORTATION OF GAMBLING DEVICES 1962-Subsec. (a) (2), (3). Pub. L. 87-840, § 2 (a), Sec. (b), substituted provisions including machines and me- 1171. Definitions. chanical deVices designed and manufactured primarily 1172. Transportation of gambUng devices as unlawful; for gambling by the operation of which a person may exceptions; authority of Federal Trade Commis';' become entitled to receive, as the result of chance, any sion. money or property, for provisions which included ma- 1173. Registration of manufactures and dealers. chines or mechanical devices designed and manufactured (a) Activities requiring registration; contents to operate by inserting a coin, token, or similar object, of registration statement. in par. (2), and inserted ", but which is not attached to ( (b) Numbering of devices. any such machine or mechanical device as a constituent (c) Records; required information. part", in par. (3). (d) Retention of records. Subsec. (b). Pub. L. 87-840, § 3, substituted "the (e) Dealing in, owning, possessing or having District of Columbia" for "Alaska, Hawaii." custody of devices not 'marked or num- SUbsecs. (d) and (e). Pub. L. 87-840, § 3, added sub- bered; false entries in records. secs. (d) and (e). (f) Authority of Federal Bureau of 'Investiga- EFFECTIVE DATE OF 1962 AMENDME~T tion. Section 7 of Pub. L. 87-840 provided that: "The amend- 1174. Labeling and marking of shipping packages. ments made by this Act [enacting section 1178 of this 1175. Specific jurisdictions within which manUfacturing, title and amending this section' and sections 1172 and repairing, selling, possessing, etc., prohibited. 1173 of this title] shall take effect 'on the sixtieth day 1176. Penalties. after the date of its enactment [Oct. 18, 1962]." 1177. Confiscation of gambling devices and means of transportation; laws governing. SHORT TITLE 1178. Nonapplicability of chapter to certain machines Section 1 of Pub. L. 87-840 provided that Pub. L. 87- and dev'ices. 840, which enacted section 1178 of thiis title, and amended this section and sections 1172 and 1173 of this title, may § 1171. Definitions. be cited as the "Gambling Devices Act of 1962." As used in this chapter- SEPARABILITY OF PROVISIONS (a) The term "gambling device" means- Section 8 of act Jan. 2, 1951, provided that: "If any (1) any so-called "slot machine" or any other provision of this Act [this chapter] or the application machine or mechanical device an essential part thereof to any person or circumstance 1s held invalid, such invalidity shall not affect other prOVisions or ap- of which is a drum or reel with insignia thereon, plications of the Act [this chapter] which can be given and (A) which when operated may deliver, as the effect without the invalid prOVision or application, and result of the application of an element of chance, to this end the provisions of. this Act [this chapter] are any money or property, or (B) by the operation declared to be severable." of which a person may become entitled to receive, CRoss REFERENCES as the result of the application of an element of Numbering of gambling devices, see section 1173 of chance, any money or property; or this title. (2) any other machine or mechanical device § 1172. Transportation of gambling devices as unlaw- (including, but not limited to, roulette wheels and ful; exceptions; authority of Federal Trade Com.- similar devices) designed and manufactured pri- mission. marily for use in connection with gambling, and It shall be unlawful knowingly to transport any (A) which when operated may deliver, as the re- gambling device to any place in a state, the District sult of the application of an element of chance, of Columbia, or a possession of the United States 36-500 0-65-\'01. :3--5;;t J! ," ----------------------- Page 224----------------------- § 1173 TITLE 15.-COMMERCE AND TRADE Page 2946 Pag from any place outside of such State, the District of (3) It shall be unlawful for any person during any tl Columbia, or possession: Provided, That this section calendar year to engage in the business of repairing, 0: shall not apply to transportation of any gambling reconditioning, buying, selling, leasing, using, or tJ device to a place in any State which has enacted a making available for by others any gambling h law providing for the exemption of such State from device, if in such businc:;.·, ,,' >11V" nr receives any Ii the provisions of this section, or to a place in any such device knowing that it 1U'i3 oeen transported d subdivision of a state if the State in which such in interstate or foreign commerce after the effective t( subdivision is located has enacted a law providing date of the Gambling Devices Act of 1962, unless, Sue for the exemption of such subdivision from the pro- after November 30 of the preceding calendar year suc: visions of this section, nor shall this section apply to and before the date on which he buys or receives of t any gambling device used or designed for use at and such device, such person has registered with the At- son transported to licensed gambling establishments torney General under this subsection. qui: where betting is legal under applicable state laws: (4) Each person who registers with the Attorney (ii) Provided, further, That it shall not be unlawful to General pursuant to this subsection shall set forth scri transport in interstate or foreign commerce any in such registration (A) his name and each trade naI: gambling device into any State in which the trans- name ut:lder which he does business, (B). the ad- ane ported gambling device is speciftcally enumerated dress of each of his places of bUSiness in any State as lawful in a statute of that State. or posseSSion of the United States, (C) the address (d) E Nothing in this chapter shall be construed to in- of a place, in a State or posseSSion of the United sec1 terfere with or reduce the authority, or the existing States in which such a place of business is located, it 13 interpretation of the authority, of the Federal Trade where he will keep all records required to be kept by seCI Commission under the Federal Trade Commission him by subsection (c) of this section, and (D) each leru Act. (Jan. 2, 1951, ch. 1194, § 2, 64 Stat. 1134; Oct. activity described in paragraph (1), (2), or (3) of mo: 18,1962, Pub. L. 87-840, § 4, 76 Stat. 1075.) this subsection which he intends to engage in dur- ord REFERENCES IN TEXT ing the calendar year with respect to which such The Federal Trade Commission Act, referred to in the registration is made. (e) text, is classified to sections 41-46 and 47-58 of this (b) Numbering of devices. title. AMENDMENTS (1) Every manufacturer of a gambling device de- . 1962-Pub. L. 87-840 excepted gambUng devices used fined in paragraph (a) (1) or (a) (2) of section 1171 am or designed for use at and transported to licensed gam- of this title shall number seriatim each such gam- un( bling establishments where betting is legal under state bling device manufactured by him and permanently shi: laws, and provided that it shall not be unlawful to trans- affix on each such device, so as to be clearly visible, or ~ port such devices into any state in which the device is such number, his name, and, if different, any trade de'V specifically enumerated as lawful m a State statute. name under which he does business, and the date of qui EFFECTIVE DATE OF 1962 AMENDMENT manufacture of such device. Amendment of section effective on the sixtieth day (2) Every manufacturer of a gambling device de- an~ or after Oct. 18, 1962, see seotion 7 of Pub. L. 87-840, set oult (~ as note under section 1171 of this title. fined in paragraph (a) (3) of section ll71 of this pIa CROSS REFERENCES title shall, if the size of such device permits it, num- ( ber seriatim each such gambling device manufac- to 1 Penalty for violations, see section 1176 of this title. tured by him and permanently affix on each such rec § 1173. Registration of manufacturers and dealers. device, so as to be clearly visible, such number, his (a) Activities requiring registration; contents of name, and, if different, any trade name under which (f)1 registration statement. . he does business, and the date of manufacture of shl' (1) It shall be unlawful for any person engaged in such device. . (a) the business of manufacturing gambling devices, if (c) Records; required information. to· the activities of such business in any way affect in- (1) Every person required to register under sub- rea terstate or foreign commerce, to manufacture any section (a) of this section for' any calendar year COl gambling device during any calendar year, unless, shall, .on and after the date of such registration or sec after November 30 of the preceding calendar year, the first day of such year (whichever last occurs), ter and before the date on which such device is manu- maintain a record by calendar month for all periods factured, such person has registered with the At- thereafter in such year of- an~ dis torney General under this subsection, regardless of (A) each gambling device manufactured, pur- loc whether such deVIce ever enters interstate or foreign chased, or otherwise acquired by him, pel commerce. (B) each gambling device owned or possessed or (2) It shall be unlawful for any person during any by him or in his custody, and calendar year to engage in the bUsiness of repairing, (C) each gambling device sold, delivered, or 11'~ reconditioning, buying, selling, leasing, 'Using, or shipped by him in intrastate, interstate, or for- making available for use by others any gambling eign commerce. '] ref, device, if in such business he sells, ships, or delivers (2) Such record shall show- effE any such. device knowing that it will be introduced (A) in the case of each such gambling device un4 into interstate or foreign commerce after the ef- defined in paragraph (a) (1) or (a) (2) of section fective date of the Gambling Devices Act of 1962, 1171 of t..1"lis title, the information which Is re- 1 unless, after November 30 of the preceding calendar quired to be affiXed on such gambling device by to year, and before the date such sale, shipment, or subsection (b) (1) of this section; and en~ delivery occurs, such person has registered with the (B) in the case of each such gambling device do.~ der Attorney General under this subsection. defined in paragraph (a) (3) of section 1171 of tor ----------------------- Page 225----------------------- 2946 Page 2947 TITLE 15.-COMMERCE AND TRADE § 1177 g any this title, the information required to be affixed principal place of business, and the addresses of his places ,iring, on such gambling device by subsection (b) (2) of of business in such district. On or before the last day g,( this section, or, if such gambling device does not of each month every manu r,.-,"+,urer of and dealer in gam- bling devices shall file witi. .'vtorney General an in- tb have affixed on it any such information, its catalog ventory and record of all sales ;.J') i '.-('rles c·f gambling s any listing, description, and, in the case of each such devices as of the close of the prCCi.:0.L1b" ciJ.ic;)ciar month lorted device owned or possessed by him or in his cus- for the place or places of business in the district. The monthly record of sales and deliveries of such gambling ~ctive tody, its location. devices shall show the mark and number identifying each nless, Such record shall also show (i) in the case of any article together with the name and address of the buyer year such gambling device described in paragraph (1) (A) or consignee thereof and the name and address of the :!eives of this subsection, the name and address of the per- carrier. Duplicate bills or invoices, if complete in the e At- son from whom such device was purchased or ac- foregoing respects. may be used in. filing the record of sales and deliveries. For the purposes of this chap· quired and the name and address of the carrier; and ter. every manufacturer or dealer shall mark and number ::>rney (ii) in the case of any such gambling device de- each gambling device, so that it is individually identifi· forth scribed in paragraph (1) (C) of this subsection, the able. In cases of sale. delivery. or shipment of gambling trade name and address of the buyer and consignee thereof devices in unassembled form, the manufacturer or dealer shall separately mark and number the components of each ~ ad- and the name and address of the carrier. gambling device with a common mark and number as if State it were an assembled gambling device. It shall be unlaw·, dress (d) Retention of records. ful for any manufacturer or dealer to sell. deliver, or ship nited Each record required to be maintained under this any gambling device which is not marked and numbered section shall be kept by the person required to make for identification as herein provided; and it shall be un. :ated, it at the place designated by him pursuant to sub- lawful for any manufacturer or dealer to manufacture. pt by recondition, repair, sell, deliver, or ship any gambling each section (a) (4) (C) of this section for a period of at device without having registered as required by this sec. 3) of least five years from the last day of the calendar tion, or without filing monthly the required inventories month of the year with respect to which such rec- and records of sales and deliveries." dur- such ord is required to be maintained. EFFECTIVE DATE OF 1962 AMENDMENT (e) Dealing in, owning, possessing or having custody Amendment of section effective on the sixtieth day after. of devices not marked or numbered; false entries Oct. 18, 1962, see section 7 of Pub. L. 87-840, set out as a note under section 1171 of this title. in records. e de- (1) It shall be unlawful (A) for any person during CROSS REFERENCES 1171 any period in which he is required to be registered Penalty for violations, see section 1176 of this title. gam- under subsection (a) of this section to sell, deliver, or ently ship in intrastate, interstate, or foreign commerce § 1174. Labeling and marking of shipping packages. sible, or own, possess, or have in his custody any gambling All gambling devices, and all packages containing Grade device which is not marked and numbered as re- any such, when shipped or transported shall be· ~("t quired by sUbsection (b) of this section; or (B) for plainly and clearly labeled or marked so that the any person to remove, obliterate, or alter any mark name and address of the shipper and of the con- e o.~- or number on any gambling device required to be signee. and the nature of the article or the contents this placed thereon by such subsection (b). of the package may be readily ascertained on an lUm- (2) It shall be unlawful for any person knowingly inspection of the outside of the article or package. lfac- to make or cause to be made, any false entry in any, (Jan. 2, 1951, ch. 1194, § 4, 64 Stat. 1135,) such record required to be kept under this section. CROSS REFERENCES ~, his ,hich (f) Authority of Federal Bureau of Investigation. Penalty for violations, see section 1176 of this title. re of Agents of the Federal Bureau of Investigation § 1175. Specific jurisdictions within which manufactur· shall, at any place deSignated pursuant to sUbsection ing, repairing, selling, possessing, etc., prohibited. (a) (4) (C) of this section py any person required It shall be unlawful to manufacture, recondition, sub- to register by sUbsection (a) of this section, at all repair, sell, transport, possess, or use any gambling reasonable times, have access to and the right to device in the District of Columbia, in any possession year copy any of the records required to be kept by this of the United States, within Indian country as de- m 'or urs) , section, and, in case of refusal by any person regis- fined in section 1151 of Title 18 or within the special riods tered under such subsection (a) to allow inspection maritime and territorial jurisdiction of the United and copying of such records, the United States States as defined in section 7 of Title 18. (Jan. 2, pur- district court for the district in which such place is 1951, ch. 1194, § ~. 64 Stat. 1135.) located shall have jurisdiction to issue an order com- pelling production of such records for inspection CROSS REFERENCES ~ssed or copying. (Jan. 2, 1951, ch. 1194, § 3, 64 Stat. Penalty for violations, see section 1176 of this title. 1135; Oct. 18, 196:;l, Pub. L. 87-840, §5, 76 Stat. 1075,) § 1176. Penalties. i, or for- REFERENCES IN TEXT Whoever violates any of the prOVISIons of sec- The effective date of the Gambling Devices Act of 1962" tions 1172-1174 or 1175 of this title shall ~e fined referred to in pars. (2) and (3) of subsec. (a), means the not more than $5,000 or imprisoned not more than effective date of Pub. L. 87-840. See effective date note evice under this section. two years, or both. . (Jan. 2, 1951, ch. 1194, § 6, 64 ::tion' AMENDMENTS Stat. 1135,) ; re- 1962-Pub. L. 87-840 amended section generally. Prior § 1177. Confiscation of gambling devices and means of :e by to such amendment, section provided that: "Upon first transportation; laws governing. engaging in business, and thereafter on' or before the 1st Any gambling device transported, delivered; day of July of each year, every manufacturer of and dealer in gambling deviCes shall register with the At- shipped, .manUfactured, reconditioned, repaired, torney General his name or trade name, the address of his sold, disposed of, received, possessed, or' used in j 1 'O>"w'~""'~:L.':'::.·.,:"~~~,,;,,,":cL'::;~;;~h~::;;~;";;'.~:~,~ ----------------------- Page 226----------------------- § 1178 TITLE l5.-COMMERCE AND TRADE Page 2948 Page 29 violation of the provisions of this chapter shall be Sec. seized and forfeited to the United states. All pro- 1196. Penalties. SectiOl 1197. Guaranties. visions of law relating to the seizure, summary and is hereb: 1198. Shipments from fore;"'" "~Tles, posting of bond. judicial forfeiture, and condemnation of vessels 1199. Chapter as additional JI may be : ( vehicles, merchandise, and baggage for violation of 1200. Persons excluded from opcratiull oX ch4pter. [this Chi the customs laws; the disposition of sUch vessels vehicles, merchandise, and baggage or the proceed~ § 1191. Definitions. Federa from the sale thereof; the remission or mitigation As used in this chapter- ifying tl of such forfeitures; and the compromise of claims (a) The term "person" means an individual under, SE set out a and the award of compensation to informers in re- partnership, corporation, association" or any othe; spect of such forfeitures shall apply to seizures and form of business enterprise. Comm forfeitures incurred, or alleged to have been in- (b) The term "commerce" means commerce wearing curred, under the provisions of this chapter, insofar among the several states or with foreign nations, as applicable and not inconsistent with the provi- or in any Territory of the United states or in the § 1192. I sions hereof: Provided, That such duties as are District of Columbia, or between an;y- such Territory (a) '] imposed upon the collector of customs or any other, and another, or between any such Territory and offering person with respect to the seizure and forfeiture of any State or foreign nation, or between the District into thE vessels, vehicles, merchandise, and baggage under of Columbia and any State or Territory or foreign for int] the customs laws shall be performed with respect nation. transpo to seizures and forfeitures of gambling devices under (c) The term "Territory" includes the insular or dellv this chapter by such officers, agents, or other per- possessions of the United States and also ans Terri- wearing sons as may be authorized or designated for that tory of the United States. tion 1H purpose by the Attorney General. (Jan. 2, 1951, (d) The term "article of wearing apparel" means dangerc ch. 1194, § 7, 64 stat. 1135.) any costume or article of clothing worn or intended lawful ~ to be worn by individuals except hats, gloves, and and an § 1178. Nonapplicability of chapter to certain machines footwear: Provided, however, That such hats do not merce \ and devices. constitute or form part of a covering for the neck, (b) ~ None of the provisions of this chapter shall be face, Or shoulders when worn by individuals: Pro- or the construed to apply- vided further, That such gloves are not more than introdu ( 1 ) to any machine or mechanical' device de- fourteen inches in length and are not affixed to or tion or signed and manufactured primarily for use at a do not form an integral part of another garment: for the racetrack in connection with parimutuel betting, And provided further, That,such footwear does not (2) to any machine or mechanical device, such merce, consist of hosiery in whole or in part and is not of sectj as a coil-operated bowling alley, shuffleboard, affixed to or does not form an integral part of as to b marbel machine (a so-called pinball machine), another garment. be unIE or mechanical gun, which is not designed and (e) The term "fabric" means any material (other petitim ( manufactured primarily for use in connection with than fiber, filament, or yarn) woven, knitted, felted, tice in gambling, and (A) which when operated does not or otherwise produced from or in combination with sion Ac deliver, as a result of the application of an ele- ' ment of chance, any money or property, or (B) by any natural or synthetic fiber, film, or substitute (c) ~ the operation' of which a person may not become therefor which is intended or sold for use in wearing offerin! entitled to receive, as the result of the application apparel except that interlining fabrics when in- made 0 of an element of chance, any money or property, or tended or sold for use in wearing apparel shall not be 1s so 1: worn t (3) to any so-called claw, crane, or digger ma- subject to this chapter. chine and similar devices which are not operated (f) The term "interlining" means any fabric or rece: be an 1 by coin, are actuated by a crank, and 'are designed which is intended for incorporation into an articlp. and de( and manufactured primarily for use at carnivals ' of wearing apparel as a layer between an outer shell "Federa or county or State fairs. aQd an inner 'lining. 164, § 3 (Jan. 2, 1951, ch. 1194, § 9, as added Oct. 18, 1962, (g) The term "Commission" means the Federal Pub. L. 87-840, § 6, 76 Stat. 1077.) Trade Commission. 'I'he 1 EFFECTIVE DATE ,(h) The term "Federal Trade Commission Act' text, is Section effective on the sixtieth day after'Oct. 18, 1962, means the Act of Congress entitled "An Act to 'title. see section 7 of Pub. L. 87-840, set out as a note under section 1171 of this title. create a Federal Trade ,Commission, to define its Enfor powers and duties, and for other purposes", ap- title. Sec. Chapter 25.-FLAMMABLE FABRICS proved September 26, 1914, as amended. (June 30, Guarl 1191. Definitions. 1953, ch. 164, § 2, 67 Stat. 111.) lng, see 1192. Prohibited transactions. InjUIl REFERENCES IN TExT 1195 of 1193. Standards of fiammab1l1ty; proposal~ for new \ standards. The Federal Trade Commission Act, referred to in MisdE 1194. Administration and enforcement; ll;l,w governing; subsec. (h), Is clasSified to sections 41-46 and 47-58 of title. rules and regulations; inspections, tests, etc. this title. ,1195. Injunction and condemnation proceedings. EFFECTIVE DATE § 1193. (a) Temporary injunction; venue. Section 12 of act June 30, 1953, provided that this sta (b) Process of libel for seizure and confiscation; chapter shall take effect one year from June 30, 1953. (a) manner of procedure; consolidation of SHORT TITLE be deel trials. (c) Application by defendant for representative Congress in enacting this chapter provid~d by section 1 of sect samples of seized materials. of act June 30, 1953, that it should be popUlarly known worn t (d) Disposal of condemned materials. as the "Flammable Fabrics Act." or exp ----------------------- Page 227----------------------- 463.410 GAMBLING LICENSING AND CONTROL ( and collected in the same manner as other charges, Ji!'011SeS and penalties under this chapter. [Part 10e:99:1931; added 1945, 492; A 1947, 734; 1949, 114; 1955, 760] TRANSPORTATION OF GAl\IBLING DEVICES IN INTERSTATE COMJHERCE 463.410' Declaration of state's exemption from 'operation of pro- visions of 15 U.S.C. § 1172. Pursuant to section 2 of that certain Act of the. Congress of the United States entitled "~n act to prohibit transportation of gambling devices in interstate and foreign com- merce," approved January 2, 1951, being c; 1194, 64 Stat. 1134, and also designated as 15 U.S.C. §§ 1171-1177, the State of Nevada, acting by and through its duly elected and qualified members of its legislature, does hereby in this section, and in accordance with and in compliance with the provisions of section 2 of such Act of Con- gress, declare and proclaim that it is exempt from the provisions of section 2 of that certain Act of the Congress of the United States entitled "An act to prohibit transportation of gambling devices in interstate and foreign commerce," approved January 2, 1951, being c. 1194, 64 Stat. 1134. . [1:97:1951] 463.420 Legal shipments of gambling devices, slot machines into State of Nevada. All shipments of gambling devices, including slot machines, into this state, the registering, recording and labeling of which has been duly had by the manufacturer or dealer thereof in .accordance with sections 3 and 4 of that certain Act of the Congress of the United States entitled "An act to 'prohibit transportation of ( gambling devices in interstate and foreign commerce," approved January 2, 1951, being c. 1194, 64 Stat. 1134, and also designated as 15 U.S.C. §§ 1171-1177, shall be deemed legal shipments thereof into this state. [2:97:1951] LICENSING AND REGULATION OF DISSEMINATION OF HORSE RACING INFORMATION 463.430 Unlawful to disseminate horse racing infonnation without license; public utility exception, . 1. It shall be unlawful for any person, firm, corporation or association in this state to supply or disseminate in this state by any means information received from any source outside 'o~ this state concerning horse racing, when such information is to be used by the user for the purpose of maintaining .and operating any gambling (1963) ----------------------- Page 228----------------------- ( ---...... ----- -....- ..... f •.. ---.. -.-.. --..--•.---- ~ p"V: ' •• ' ) NJIJ~ \..\.. .a- \. ,~,,, '--- .... __ .••. __ ••__ ...., (In;f; Ji) March 16, 1966 RepresentatIve W.. F. Guess Alaska state Legislature FROM; Warren C'. Colver Attorney Qeneral RE:· 8,.13.282;, An Act Relating to ,Pinball Mach1nes At. your request'we have examined S ~B. 282 to determine what effect it would have on multlple-cOUl insertion pinball- 'machines under state and federal law. S.B. 282 amends AS 43.35.090(2) by adding a statement to ,the effect that the award of urree plays shall not be con- strued as a thing of value." This 1s an obvious attempt to lega11ze the t~pe ot pinball machine specifically de,SCr1b~d)1n AS 43.35.090(2). The Alaska Supreme' Court has held that the kind of pinball machine described in AS 43.35«090(2) is a gambling device per se on the theory that the three elements neoessary to constitute a gambling device are present in the machine,. Those ,three elements are consideration" chance and prize. The Court held that the award or free play,s was a prize because a rreepl.ay is a thing or value. S.B. 282 attempts to provide that free plays shall not be ·construed asa thing or- value. ''''"'4' . ,J First" it should be noted that AS 4'3 .• 35.090 does not proMb1t or perm1t gambling or gambling devices. See State' of Alaska v,. Pinball Machines, 404P.2d 923 (Alaska 1965). It sImply ilriposes a taxon certain co1n-operated devices 1nelud1ng one type of device that is clearly illegal: u co1n-..operated device class 3'1# i.e." one-arm bandits and other maohines that make direct pay-orts in cash.. merchandise" etc. Taxing illegal devices is not uncommon and follows the federal practice with regards to gambling imple·- ments. AS 43.35.·090 neither prohibits or permits pinball machines) l.t merely taxes them. The statute that makes gambling implements illegal and subject to se1zure1s AS 11.45.040•. Gamb11ng1mplements~ according to the Alaska Supreme Court~· can be taxed evan it they are illegal. 'So" changing the pr.ov1s1.ons o£ AS 43.35.090(2) m1ght not make a . certain kindot {),,:1nball mach1n,e (the ki,nd, ,deacr,1,bed a. coin- . operated'clss8' 2) ,illegal under AS 11.4S.040~--: , ~; ',' > -t ,r - ,-. " ... ' '. , ~' '., "" .. ~, ----------------------- Page 229----------------------- ( Representative W. P. Guess March 16, 1966 Alaska State Leg1s1at.ure -2- Considering all the litigation the State has already, engaged in over this matter it would perhaps preclude further l1t1f-;& t10n if the amendment was to AS 11.45.040.. By adding a sentence to AS 11.45.040 pInball machines could either be made legal or illegal and we could dispense with further expensive litigation. However, if the courts were to take the view thatS.B. 282 did in effect legalize the kind ot pinball mach1ne described in AS 43.35.090(2), then thasemaohines could be 1mported1nto . the State under federal law. The .federal law on this subject 1s' contained in l5 U.S.O. §§ 1171 - 1178; 15 U.S.C. § 1172 provideD that gamb11ng devices cannot be transported to any place 1n a state except._.. --.- that nit shall not be unlawtul. to transp'ort 1ninterstate ,/.. "'.~ conunerce any gambl:1ng dev1celnto any a·tate1n·which the trans- ported gambling device. 18·.spec1'f1cal17 enumerated as lawtu11n 8 statute of that state.": .: . . . ( ) . ,'. -,' ~.' ----------------------- Page 230----------------------- JUDICIARY COMMITTEE MINUTES MARCH 19, 1966 Chair.man Guess called the meeting to order at ~o a.m. Present were Stevens, Metoalf, Tillion and Taylor. Vic Carlson, Assistant City Attorney of Anchorage, spoke on HB 427, HB 493 and SB 282. Mr. Don Berry, Alaska Municipal League, spoke on HB 49~ • .3 Meeting was adjourned. ( ( ----------------------- Page 231----------------------- JUDICIARY COMMITTEE MINUTES MARCH 21, 1966 Chairman Guess called the meeting to order at 10:00 a.m. Present were Messrs. Metcalf, Tillion, Taylor and Stevens. Mr. Don Berry of the Alaska Municipal League and Rep. William Moran appeared on HE 493. Mr. Moran spoke in favor of the bill and Mr. Berry against it. No action was taken on the bill. The committee next considered HB 9 and Mr. Taylor moved "Do Passu and asked unanimous consent. There were no objec- tions. The committee considered SB 66 and the following two amend- ments to the bill were discussed: On page 1, beginning on line 24, insert: (c) Any zoning done by the division of lands, Department of Natural Resources, under (b) of this section, is not final until approved by concurrent resolution at the next regular session of the legis- lature. On page 1, line 19, after "power!! insert flwithin federal lands u Mr. Stevens moved it flDo Pass with the amendments". Motion passed. The committee then considered HB 279. The committee decided to limit sec. 2 of the bill to superior court judges and to make the following amendments: Page 1, line 29, delete everything after "to" and on page 2, line 1, delete everything before l1 the ll. Page 2, line 13, delete everything after flto H and delete all of line 14 and line 15 delete "then toll Mr. Stevens moved that it liDo Pass with amendments II. Motion passed. The committee discussed SB 4 and the committee counsel was asked to prepare a committee substitute along the lines of the dis cuss ion. Meeting was adjourned. ----------------------- Page 232----------------------- ----------------------- Page 233----------------------- ----------------------- Page 234----------------------- ----------------------- Page 235----------------------- JUDICIARY COMMITTEE MINUTES MARCH 22, 1966 ( Chairman Guess called the meeting to order at 4:30 p.m. Members present were Messrs. Stevens, Josephson, Hillstrand, Metcalf and Taylor. Rev. Richard Heacock, representing the Alaska Council of Churche~ and Rev. Ernest Jones, representing the Alaska Mission of the Methodist Church, appeared and spoke against SB 282. Meeting was adjourned. ----------------------- Page 236----------------------- JUDICIARY COMMITTEE MINUTES MARCH 23, 1966 ( Vice-Chairman Josephson called the meeting to order at 2 p.m. Present were members Tillion, Metcalf, Taylor and Hillstrand. The following persons appeared and spoke in favor of the Labor and Management Committee Substitute for HE 296: Bruce Monroe, Deputy Commissioner of Labor; Lewis Dischner, Alaska Teamsters Local 959; Mark Hensen, Coal Operators Assoc.; and Newton Cutler, D. K. MacDonald Co. of Alaska. Mr. Taylor moved that aSHB 296 "Do Pass!l. Motion carried. Meeting was adjourned. ( ----------------------- Page 237----------------------- REPORT ON CSHB NO. 296 ( Sec. 1 of CSHE 296 increases the amounts to be paid into the second injury fund by the employer or his insurance carrier. Sec. 2 of the bill leaves in the law that the Workmen's Compensa- tion Board may approve lump-sum settlements when it appears to be in the best interest of the beneficiaries. It deletes the limitation that in death cases the lump-sum settlement shall be approved only in cases where the deceased leaves a spouse and more than five years have elapsed since the death of the employee. Sec. 3 substantially rewrites AS 23.30.215 to improve the bene- fits of the spouse and children of a deceased employee. Para- graph (a)(1) is the same as present law. Paragraph (a)(2) - (4) should be com~ared to present law to determine the changes. Generally, (a)(2) raises the lump-sum settlement upon the widow IS remarriage from two ~earsf compensation (which amounted to a maximum of $2,948.40) to $10,000 and at the same time limits the amount of the total compensation to $20,000 in the aggre- gate. In the past the total compensation has usually averaged around $8,000 or $9,000 but the insurance companies have kept $37,000 in reserve. The $20,000 limit closes the open end that has existed under this section except as to the situation _...._._.?overe~_ by (e) of this section. - (a)(3) is reworded but there seems to be no substantive (- change, except for the age change which will be discussed later. In (a)(4), on line 20, page 3, after rtchildren li , the words lIor if the amount payable to a surviving wife or dependent husband and to children is less in the aggregate than 65 per cent of the average wages of the deceased ll have been dropped. A $20,000 limitation is also added in this paragraph in place of the dropped language. (b) fixes the method of computing death benefits and a new method is created by this bill based on the determination of the average weekly wage of the employee as set out in AS 23,30.220 and sub- ject to the same weekly maximum limitation in the aggregate as temporary total disability compensation under AS 23.30.175(a). Subsection (b) changes the maximum and minimum average weekly wage from the present $27 and $81 to a minimum of $45 for a widow or widower, $15 for a child or $30 for children~( . (c) is the same except the words nor death!! are added at the end of the sentence. (d) is the same exce~t that on page 4, line 14, the word flmayl! that is after Hboard f in the present law has been deleted and inserted on line 15 after Hcarrierll and the word frshall U has l been deleted after llcarrierll. On lines 16 and 17, the words "who is not a resident of the United States or Canada" have been added. ----------------------- Page 238----------------------- (e) is a new sub-section. It provides that regardless of anything else in this section, that the surviving widow or widower who was dependent upon the deceased employee at the ( time of death and incapable of self-support by reason of mental or physical disability or otherwise not employable and who has not remarried shall continue to receive death benefits until conditions change. Whether a person is unemployable is left to the determination of the board. Sec. 4 of the bill amends AS 23.30.265 (7) to raise the age from 18 to 19 years for those minors who may receive support as dependents of the deceased. ( ----------------------- Page 239----------------------- JUDICIARY COMMITTEE MINUTES MARCH 24, 1966 ( Mr. Guess called the meeting to order at 3:30 p.m. Present were members stevens, Metcalf, Tillion and Hil1strand. The committee discussed HB 427 and the proposed committee substitute. Mr. Stevens moved that the committee substitute "Do Passu. There were no objections. The committee considered HB 449 and two proposed bills prepared by the committee counsel at the committee's request. Mr. stevens moved that the two new bills be introduced by the committee and there were no objections. The committee then decided by unanimous consent to withdraw HB 449 which is on the same subject as the two new bills. Meeting adjourned. ----------------------- Page 240----------------------- ----------------------- Page 241----------------------- '.........1,,.."..11 ,,,. _ 'MIl" 8M;••.,. ,ulrl. _ ..............., -- - - - - - "--- ..•' ....................... ••"IUII,'·•.~ .....' ..,..............., t.'.. ';--.a.·'.·/·". .-- , ._ ........'111...... " ......... • ,...........r ..,.••••J .;•.,." , w ----------------------- Page 242----------------------- ~a;ab-----~---~---~- ----------------------- Page 243----------------------- WILLIAM A. EGAN, GOVERNOR J [,I ( f;,..". ~J'"";if yJ ~ ~ DEPARTMENT OF LAW U~J OFFICE OF THE ATTORNEY GENERAL 80X2170 - JUNEAU 99801 February le, 1966 The Honorable Walter E. Guess Alaska State Representative State Capitol Building Juneau, Alaska 99801 Re: A Bill to Establish Land Boundaries Affected by Earthslides Dear Representative Guess: Enclosed herewith is a bill that was drafted for the city of Anchorage by a Professor Richard R. Powell. At the cityts request, we have put the bill into the usual form for bills to be introduced in the Alaska Legislature. We have not ( made any substantive changes or considered any of the policy que,s tions presented by the bill. We understand that the city of Anchorage will make Professor Powell available to any legislative committee that considers the bill. I am also enclosing his notes explaining in detail the meaning of the bill section by section. It appears that Professor Powell has done a very fine job with the bill. The city has advised us that it is extremely impor- tant that this bill be given the earliest possible attention. Yours very truly, WARREN C. COLVER ATTORNEY GENERAL MIVlH/grg ( Encl cc w/encl: Karl Walter ----------------------- Page 244----------------------- March 17, 1966 ( Gentlemen; The problem for which the Earthslide Relief Act is proposed is the present inaccuracy of land plats upon which landowners and lending institutions rely in areas affected by an earthslide. For example, in the area termed the "L" Street Slide Area (roughly north of 9th Avenue and west of "L" Street in Anchorage) the land has shifted with most of the buildings, trees, fences, etc. in tact. The owners and others having an interest in this group approximately of 300 lots describe their holdings by re- ference to a certain lot and block of the plat of the original townsite of Anchor- age. After the earthslide by referring to this plat many property owners would find they are encroaching on their neighbors and on the public right-of-way, like- wise the streets are encroaching on private property. There is a need to have the official plat represent the truth of the land boundaries as shifted. This bill does not affect disputes concerning property lines which existed before the earthslide and is drafted to specifically save those disputes for the private parties to settle. This bill is concerned with the public interest as- pect of having boundaries accurately described by reference to an official plat. The bill, if enacted, accomplishes the result by providing for a judicial deter- mination of the accuracy of a new plat after notice is given to every property ( owner and every other person with an interest in the area affected by the new plat whose interest can be discovered through a search of the records and a view of the property or is otherwise known. The form of the bill which is under sonsideration has been prepared by Pro- fessor Powell, a real property professor at Columbia for forty years. I regret that Professor Powell cannot be here to testify. The bill in its present form contains much procedure and is based upon the McEnerney Act of California which has been tested and upheld by the U. S. Supreme Court. If the bill is changed in form so as to allow a different method of serv- ing notice, time for appearing, etc. the precedents of the McEnerney Act cases will not be as persuasive and therefore may create further litigation which only postpones the period of uncertainty. It is a question for you to decide, whether or not the form of the bill should be changed so as to allow for use of present court procedure. The legis- lative council staff has been furnished with a draft bill from which most of the procedure has been omitted. Thank you for your attention to this problem. Sincerely, ~tor D. Carlson Anchorage Assistant City Attorney ----------------------- Page 245----------------------- ( ----------------------- Page 246----------------------- .C': J-::.:c: Je>.::-.:: ~~cic';,\::--j' :o~j~~~~·~~(!:: of ~~~ S~:~ut(: ( c~d ~8~SC of ~~~;csc~t~t~vcs of ~~c S~~t2 of Al~ska: ·~;0v~r.s ti:C'~ ~ .. ~~cc2s:;';l,.;1;:; ·.-:o~ ....:'.'g) ;;'c:..,;'s '~o ;-"c.;ch JU:-iCZ.U by 2ir ... so tnt)t ! cou:c .)~:-~'::;.:.;- bC';'CiC yc;.;.;- :--.or;c)r"-:'O!C c·~;;;":·i~ ~tC...:~:, 1;"; ?.:!'-SOii, i:i SUP?8it or t~2 ,so- c2:1cc ~~:;·::;i-s1i(jc R2;:C·; Ac"c; J:--;(~ ::--,~ c()rlt~;iit!l~r,cc: of these 2.ttcm?/cs being ~i-;-':::<)~~~·:~1..;;, '~~,,:! C;-.~1i,-;".;-; 0;- '.::~2 ;;CJ~SC ~~0~C~'::';·/~ COiiii"iiitt8C! 5~SC;CS~CC~;-;cit: I r;;~ke \. .. ~ ... ~c: \';.-~;·~tcn p~"cscr.'~L:lt~O!1 ;-c~-: ~iO;';'~# cor.s;G:':':':-~~~Ol~. ,.... C" ,.....,("\._ ... -:- ..t_ r"" .,.."'" "" ..;" ~-. -'~ i . ... t"""\. ~ .. ' - ,-, (""' '- r.. ,." ~.'=, I 1 J,... t (~ 0..... J .. ~l....... ~.'''t.''' ..... - A.. c:: (1 ~ ~. ~- ~ _'- ...J'.,..:_t.i ... ; LV ",,- \0.1, ..... \0. ... Cl..#it) .~·""""fll'-'~"':~:') fo..,i'_o :....." ... '- •.• \..4.1..0 )01..,..; 10,." IIr."J...,I rv' ...... - I ..... u ?~r~o~a 0f t~is 1~S~s12tion 2~d ~t~ c1ca( 2~thoriz~tion under th~ ~olicc power of the S~3tL;; 2r.d (2) ~~c ~:=j~-~-I~~t of" ~>,r:! ?~-0?O~C.::~ ~~2.tut(; c:r.d t~le ~.Jt·:;~ty of t!,")<1t ~o~~a, ~n cst2blishj~S clue ~:occss 0: ~~W fo~ the in rem procced,~s· T~':c c~~":!-'~C:~2:~~/:L::. ::-. so ',"=.:..-;:.5 ~;"ie :,~0Vc;;;~:;n;:s of the C:u('t-h ~:~:.:tC(! \::-;c~:-t,~:~;~~:/ C~~ ~~ ~·;h() o·.. ·,;'n:: ,.·.,~~t ~) ..~.~-~:;f ·~hf'. C~i~-~! ... IS su.r,:c·2, lc9~s1.:::t~on C.3~1 be hc~~f~l. The ?~~?o:c of this lc:isl~~~o~ is to ~r0vidc j~dicjai ~2c~inc~; fo~ ~~ :..,c .- C $ ~~ 0 ; <::. :: ~ 0 :: 0 f c 2.;- ~: c. 1r. ~~ '/ 2 S t 0 ~ ~;i d ~0 t~ ~ C~;- i C $ " I ..c :; .) Y.$ 1 1r. c '; .:; ..:; c t , t !~ z: t ~ (: C: bo~ :1~L:.": os, d S cs ~&b 1 : s hcc! L.,~/ ti"'. (; .::.2. 'j ~ ;".Cj~~~·~ J des e~'/c to t;e c~,o.~0d ~ cd ~ r-J ,,,,·,_r.. ~'·""'-.-~d· ','hl·-t.. ~-:-- .... 'C',·~I',.,. -c -, ,~,",11'-!-1"" -o':"'+- 01; A·-_- .... ''-l' ... '''' :::r.;- S:":"""'r- ~o""':cy C ••J ......;. ~ \,A~ ....... \,.:\,.... .,j •• , '-...f~ '-t,;"'~ ..:;"L- ....',. (..;~ c... • \. ..... ~L...I~I."..: rJo t"" • t.,.l.;t"'(":;, ... ,4...:; • '...I' !M\.. \".oft , ... ~ .l • .lY ..... 2:-'CCS) ;·;.r::-::gc:g..;s) ?ubli;::: ~r,~pIOVCi"::(;;j-.ts 2i;d o-::h-.:;r s-L~',~l~;;i- c'i'tc:--;:>r-isc:s.' 7hi,S sort c)f 1(;9is~ut~o0J to c:.:,t~b~i~)h c,':':~~4,rj'~~cs ~s ~o l~nd o\f_tnc ..~~r.i?~) 1$ ~1c~\rl,/ \",ithin t:",c pc.'!-icc.: :::,o'tJo:"' 0':-= ~ ~J..:<:.-:c. -j-:'i~~ :,,;:):dinSj ~~::s bcr:il ma<.iz i:"l r;",uny of ou. stc:;tcs, (Ark~n~as) C21iforni~J Il1i~ois ~~d N~~;aska), and has been recognized as cor~ect by the United S~~t~s Sup~c~e C0U;~~ (SC8 2~n~xcd ~~10 on the scope of ~hc police powe~, as recognized in other juri5d1ct~ons and ~lso in Al~sk~) . Thc,fo~~~t of tho ?~o?bscd st~t~tc dCp2r~$ considerably Trom the accustc~cd. j .... <:;,:,:;,;,·;ttCC::"I; c.-:.bOc.:i1CS ;:rc,c,-,:L:-,=:: j;';':;"~~::(;;"S \·A.·ich are possible fo~ A1c.sk2. on·1y if --, ":':':~l*:~~_:" t!-:c b~ 11 is P~SSC(J :.:;~/ z. ~\·.\O-t:-.~~-ds \'0-::8- in C:'Cl1 c:1~n'ib8rJ £::. the Sup:er;;::; Co~r~ ~s willing to surplcsen~ i~s ~xi~~i:"l9 ;ulas, by a new rule pe~mitting this \ L.::~·;C;L;(; ~J;-occdu;"e l;;!1>, in ~C-::iO~'iS a~~'~;--:()~"iz(;(~ OJ' t:-,is bi 11. Tn1s r~i S(;S~ a \/e~;1 !;'~;c~:ca: C;:.;c::;t·;o:; :.ipC)n "d;~c~ jO~ t,e.:;,j :0 ."[;.::ke U Ce:C1S10rl .. The ~o5s"ibl(! altel'":;Ci- :~vc ~s a ~eJ~~fting of ~he bill to ~li~i~at2 all deviations from the p~e~e~tly c£t~b1ished R~lcs of C~v~1 PtOC~d~~2. This second course of 2ction seems to be ~~c lC2$t di~turb~ng ~nd the c~si2r. Cut is it? The present format of the act ~ol]o~s, a1~ost s1avish1y~ the fc;~~~ 0f the McEnerney Act, e~~ctcd in Califor~ia ~~ 1906 to provide feli~f f~c~ the ~n~Gl~~2Llc u~ccrtaintic5 c~uscd in that state ~>' '~!-;e ~/l:jo1csalc d~s.trllction of !~;-~d ~·(::(;or(Js·. '·-C1-.c C.::l i,for .... ·i~ 1C9·;~;lQt10n t."ie:'d ;,) 0::0"" "0 "':'> '1·... oc,":.-i,··.. ':) (,"~~- ;:"l'- "'-:"')~' :":"r..'" .;,.. (:;.... 1 :;• .r.:,'~O"'.' ,"".',-:, ,= ~",·h.,1·S ~"~" '.'. '.,.'ou'r h~ '*'* •.., ...... \,. \.A. C. ,_, ",-"'.. IUt\:, \.)\...j .....~ ... (;.J...)o \..J"t'-i\,..j\.. .......t..:... •• ,Ii; __ , ._.;;;;.;, U 4 __ _ - ..• ~->" .;,.,. t:.'-,~I,-,)\ .,.t...:: .... r.., \"O,,1~ '"'''S,,''''' '~"~ "" r~·~"~,o:,..., L.';,..~.~ ..-, ... 0'''\ -11 '!"\r.> ...... ons bo ...... -. .... d '"" .J\... '- ; •• i •• 1 C aJ ,,- U .. r , •• \.",. i. \1. 11,..,i' U r \:.:, \,....0. I.., ;, t. ,::.; ..... 'Ior,... ....... ~~ ....... U , 4·,,,•• 'I::,;j •• c:.. !/ .. !J ~t':;:· " Iii • ~ .:.:.;. i • c;:bo;-'n, krio'",r:i 0:- u:;kr.m".'n in t~c; :':ho1.::; ·,,;o;":(~.. -.-his ~s cc::: !cc! in leae?:] 03rlance .1 • ..J. ccc/(:(: i~ ;-em. T!-.is ~·la~ needed in C;:~::::o;"n'~~. T~is i~ ric<;;dc·d ~~ ,n.1~s~,z. The C~1ifQ~n~a statute was sevcr~ly tes~c~ov~r a 20 year pa~iod, in both St2tC a~d ?s~c~~l co~~:s~ It st~od thc~~ ~c:ts. !f Al~ska adopts a st~tute ~n the California ?~::o.::c;"'r,) all of t}-,c g."c:at b,:;::/ 0-: ?tCC(;CC;'"'4t!: 0ui1t up I.IJi'th respe.ct. t(j C:::d ~;C.~-;i1Q 0cccmc.s ~ ;-'c 1eve:; nt 2.;-.d he 1?:= u: b0C~' o{- ;::;;-cC2d 2:-1 ts to Su ?por t the i I. ;-c;n char-.:Jc tcr of the Alasknn statu~~. If, O~ the o~~er h~nd) the f6rmat of the Al~s~an J (__ c;-;~c~..,an~ rc1~~s ',:hol1y on its picsen .:lj cstablishe:d iules of civil p;"occc:..;roo for" ----------------------- Page 247----------------------- -2- ( 1~~.s dcsi~"C!d ~:'~. ~·c:n ch~rc.ctc:-) t}~c; ;-(;::~lt -;.~::..'/ !~oss~bl'1 be c~t}~~; a fir:dlng thz;t it l~cks d~c c~cccss ~cc~~site fo~ an in rem ~8crec 0~ a full sus~~ininc of the " - ~ :-it:!\'! st~~~tc. Ever. 'if thC;8 is c\ter;tt.:~~ 1,' a full Sllst(}in~ng of :~;c ne'r-J st2Atute 1-:': \"ji11 h;)vc cost mall)' thOL:Sulids of do11.::,ii-s ~nd \-;-r11 not 9~v.z: CCr"~z..>it~C'S foi- "::';\'(; O~,. C!'/\.~:--' ~c.n 0;- r.io~.. c ;'car-s zt,e~d. So '.J:riicn ij,i tern2t~:\l~ is ;-e::11y tn(: best -;0: yo~r S~c-::c? On t!it:lt quest-; on ,'0;" ~nd the t~·:o chambers \·,hi ch you. represent n~v~ the responsibility_ (~e~ annexed memo on the Ildue ';Ji"OCCGS 11 certainties of a st.:atute in the p.-u?:)s(;d for.i1~ t. 1i ) i t;"/ 1,_ / ( L••/ ~ R-; chw ;-d R. PQi'1811 2~~r~~~s Dwight P~Of2SS0~ of L~w 2;~ CQ1U;1ib'ia U;"dve~·sity ~n NC:'d YO;-K and Professor of Law, Hastings College of the Law, San Fr~ncisco, C~lifo:n~~ ( ----------------------- Page 248----------------------- Chapter 46 Earths ride Rel ief Act Concerning Land Boundaries ( Sec. 09.46.010 Short title. 09.46.020 Exercise of the police power of the State. 09.46.030 Prerequisite earthslide changing land boundaries. 09.46.040 Venue. 09.46.050 Permissible plaintiffs. 09.46.060 Prerequisite designation of parties and notice. 09.46.070 Separate actions as to separate slide areas. 09.46.080 Commencement of action; parties; contents of complaint. 09.46.090 Summons; issuance; form. 09.46.100 Summons; publication. 09.46.110 Summons; memorandum of known interests; posting. 09.46.120 Summons; service on persons having known interests. 09.46.130 Jurisdiction. ( .. 09.46.140 Appearance; time; restriction on content of answers; saving of rights of parties not litigable in this action. 09.46.150 Lis pendens\ 09.46.160 Vacating of streets in whole or in part. 09.46.170 Judgment; proof of facts. 09.46.180 Judgment; scope. 09.46.190 Judgment; standards. 09.46.200 Judgment; effect. 09.46.210 Judgment; recording_ 09.46.220 Pro'cedure appl i cab1 e. 09.46.230 Cumulative remedies. 09.46.240 Severability. 09.46.250 Effective date. (-- ----------------------- Page 249----------------------- Alaska Statutes Title 9 Code of Civil Procedure ( Chapter 46 Earthslide Relief Act Concerning land Boundaries. , Sec. 09.46.010 Short title. This chapter may be cited as the Earthslide Relief Act Concerning. land Boundaries. 1 Sec. 09.46.020 Exercise of the police power of the State. 2 This chapter is enacted as an exercise of the police power of the State of Alaska, for the purpose of serving the public welfare of the people of Alaska by (1) making fully available for new constructions the entire area owned by each entity,3 either public or private, which end can only be served by a re- establishment of certainty as to the present location of land boundaries; and (2) facilitating the sale, mortgage and/or lease of land parceis within the State; and (3) confirming and establis~ing the exact areas available for public uses in streets and other public ways; and . (4) minimizing the losses suffered by land owning entities, which have been caused by an earthslide, by allocating to adjacent owners areas of land released by the narrowing or vacating of streets owned by a municipality, with the consent of such municipality, given for the promotion of the general welfare of the peopJe of Alaska, thus reducing in an equitable manner 5 the number of landowners ( having losses, caused by an Act of God, in the square footage of land owned prior to the earthslide; and (5) correcting the he~etofore approved and filed public records,6 consisting of land plats, which no longer are accurate, so that a substitute plat, judicially found to be in accordance with existing boundaries as fixed by the earthslide, which was an Act of God, and duly filed subsequent to such judicial approval, will accurately represent the existing land boundaries; and (6) permitting these ends to be accomplished in a single action in rem,7 brought with respect to a large area affected by an earthslide, rather than in numerous separate actions; and (7) safeguarding the due process of the remedial procedure in rem, established by the provisions of this chapter by allowing deviations from the Rules of Civil Procedure wisely established by the Supreme Court of Alaska for aat other actions and proceedings of a civil nature, legal, equitable or otherwise. It is expressly declared to be the purpose of the legislature to change these established Rules to the extent, but only to the extent, authorized in this Chapter, and only in the conduct of the actions authorized in this Chapter. 9 The legislature of this State affirms that the attainment of each of the objectives enumerated in this Section will significantly promote the welfare of all the people in the State of Alaska. IO ( ----------------------- Page 250----------------------- -2- Sec. 09.46.030 Prereguisite earthslide changing land boundaries. Whenever' the boundaries of land, owned either by public or by private persons have been c moved by an Act of God, consisting of an earthslide, so that they are in a ·location different from that at which, by solar survey, they were located before such earthslide,11 an action in rem to recognize the boundaries as they presently exist and to quiet title within such boundaries in the persons judicially found entitled thereto under the provisions of this chapter, is authorized, maintainable by the persons and with the procedures provided for in this chapter for the handling of the emergencies dealt with herein. Sec. 09.46.040 Venue. An action, authorized by the provisions of this chapter, sha 11 be brought in the superi or court ;'idVi ng j uri s~l ci:i on \·.. i til respect ,I ~o the geographical area of the State, wherein is located the land wholly or chiefly affected by the earthslide. Sec. 09.46.050 Permissible plaintiffs. An action, authorized by the pro- visions of this chapter may be begun by el) any borough of the State, with the joinder of any city or cities included therein; 12 or (2) any city not included within the boundaries of a borough, where the earthslide has affected land within such city,13 or land outside such city as to which outside land the city has statutory power to approve a land map; 4 or (3) any school district, which has statutory power to approve a land map;15 or ( (4) any other~ entity or person, not described in the preceding three clauses of this Section, who on proper application to the Superior Court, having juris- diction of the a9tion if.brought, is granted permission by such Court to bring such an qcti on. 16 , Sec. 09.46.060 Prerequisite designation of partie~...2!'_' .J. Plaintiff ) ) vs ) ) All persons Claiming any Interest ) In, or Lien Upon, the Real Property ) Action No. Herein Described, or Any Part ) Thereof ) ----------------------- Page 252----------------------- -4- ( The people-of t~e State of Alaska, to all persons claiming any interest in, or lien upon, the real property herein described, or any part thereof, defendants, greeting: You are hereby required to appear and anst.'Jer the complaint of '"'" . plaintiff, filed "/ith the clerk of the above entitled -c-o-u-r-t-a-n-d--c-o-u-n-t-y-, within three months 32 after the first publication of this summons and to set forth \'lhat interest or lien,if any,33 i~ntcr.e~t . different from, or greater than that described in the complaint as your i:ft.ter--es.t)you have in or upon that certain real property or any part thereof, situated in the County of particularly described as fo 11 ows: (here insert descr3~tion of the entire real property sought to be affected by the action) And you are hereby notified that unless you so appear and answer, the plaintiff will apply to the court for the relief demanded in the complaint, to wit. (here insert a statement of the relief so demanded.)35 Witness m hand and the seal of said court this _____day of _____ y A.D. 36 (Seal) ( Clerk Sec. 09.46.100 Sum~ons; public~~;on. The summons shall be published in a newspape.1" of general circufation published in the district in which the action is pending, or if none is published therein, then in a newspaper published in this State circulating in such district. 31 The nawspaper in which publication is to be made shall be designated by anSorder of the court ~r a judge thereof to be signed and filed with the clerk. 3 No other order ,for the publication of the summons shall be necessary, nor shall any affidavit therefor be required, nor 39 need any copy of the complaint be served, except as required by this Chapter. , Such publication shall be made four times during four consecutive calendar weeks, once in each week and to each publicatiof. thereof shall be appended a memorandum in substance as follows: "The first publication of this summons was made in (here in~rt name of newspaper) on the day of A.D. (insert the date)u Sec. 09.46.110 SU~ffions; memorandum of known interests; posting. A memorandum listing the names and addresses, so far as they can be ascertained by the plaintiff or plaintiffs through reasonably diligent inquiry,41 of each person mentioned in the complaint as having an estate or interest in the entire real property sought to be affected by the action,identified in each case as to the lot or lots in which such interest exists,shall be appended to the summons. 42 A copy of the summons, and a copy of the/said memorandum, shall be posted in a conspicuous place ----------------------- Page 253----------------------- -5- ( on each separate parcel of the entire real property described in the complaint as affected thereby, within fifteen days after the first publication of the summons. 43 Sec. 09.46. 120 SLHTtrrlOnS; s~rvi ce on persons havi ng knov;Jn i nt(~e"'es ts. A copy of the summons and compiaint and of the mc~orandum of known interests described in Sec. 09.46.110 shall be ~rsonal1y served prior to the date of t~e last publication of the summons, upon each person pamed in the me~orandum of known interests, if he can be found within the state. Q5 Such service shall be made by the person and in the manner prescribed in Rule 4 of the Rules of Civil Procedure for personal service of a summons. 46 If he resides out of ,the State, within fifteen days after the first publi- cation of the summons, a copy of the summons, complaint and memorandum of known interests shall be deposited in the United States Post Office, enClosed in a sealed enve1ope, IJostage prepaid, addressed to him at the address given in the said memorandum,4 or if no add4&ss is there given, at the office of the Borough in which the action is brought. If he resides within the State and with due diligence49 cannot be found within the State before the date of the last publication of the summons, the 50 copies shall be mailed to him as above provided forthwith and within ten days after the date of the last publication of the summons. Sec. 09.46.130 Jurisdiction. Upon the completion of the publication and ( posting of the summons, its personal service or mailing, as required by Sections 09.46.100 to 09.46:120 inclusive, the court has complete jurisdiction over the plaintiff or plaintiffs and the entire real property described in the complaint as intended to be affected by the action and over the person of everyone having or claiming any estate, rigbt ti'tle or interest in or to, or lien upon, all or any part 'of the property and shall be deemed to have obtained the possession and control of the property for the purposes of the action with complete jurisdiction to render the judgment provided for in this Chapter. 51 Sec. 09.46. 140 ;\ppearance; time.LJ:,.estri cti.on on content of anSirh~~rS; salvi ns of riqhts or parties not litigable in this action. At any time within three month s 52 after the first publication of the sum~ons, or such further time not exceeding thirty days,53 as the court for good cause may grant, any person having or claiming any estate, right title or interest in or to, or lien upon, all or any part of the property may appear and make himself a party to the action by pleading to the complaint. Ali answers must be verified and must (1) specifically set forth the particulars in which the claimant's estate, right title or interest in or to, or lien upon all or any part of the property is different from, o~4greater than, the interest or such claimant as it is described in the complaint; and (2) be confined to rights based on events occurring at the time of, or since the time of the Act of God, consisting of the earthslide. 55 ----------------------- Page 254----------------------- -6- ( To whatever extent, if at all, such answering party has rights against anyone ~hatsoever, based upon facts or events \"hi ch occurr-ed before such earth- slide,5 such claims shall remain unaffected by this action and shall be as~ertable subsequent to the conclusion of this action at any time and in any manner permitted by law, notwithstanding the judgment granted in this action;57 recognizing however the fina1ity of this judgmen~ as to the consequences, with respect to land boundaries, of such earthslide. 5 Sec. 09.46.150 Lis pendens. The plaintiff, on the commenc~1ent of an action authorized in this Chapter, and an a~swcring defendant, on the filing of an answer, is privileged to file a notice of the pendency of the actig" in the form and at the place and with the effects specified in Sec. 09.45.790.~9 Sec. 09.46.160 Vacating of streets in ~'Jhole or in part. The vacating of streets in whole or in part by the voluntary action of a municipality, for the purpose of making it possible for the cou~t to mitigate the har-dships suffered by individuals because of the change: in land boundaries caused by the Act of God, consisting of an earthslide can be accomplished by the offer of the municipality expressed in the complaint described in Sec. 09.46.080 followed by the court's approval thereof in the action authorized in this Chapter, without any other formalities of any kind. This provision is declared to be a special emergency substitute for the provisions contained in Sections 40.15.140 - 40.15.180 inclusive. 60 ( Sec. 09.46.170 Judqement; pr~~~acts. In an action of the type authorized in thi~ Chapter, judgment shall not be given by default,6i but the court must require proof of the facts alleged in the complaint and other pleadings. Sec: 09.46.180 Judy~e~t; scope. The judgment shall (1) determine the land boundaries of each parcel of land located within the entire area of real prgRerty sought to be affected by the action, whether owned ,publicly or privately; 2 and (2) determine the person or persons having estates, rights, tities, interests and claims in and to each such parcel, whether legal or equitable, present or future, vested or contingent, or whether they consist of mortgages or liens of any description;63 and (3) approve and direct the proper filing of a new plat map covering the entire area of real property sought to be affected by the action, as a substitute for the plat maps heretofore filed, but rendered inaccurate by the Act of God, consisting of an earthslide. ~---- Sec. 09.46. 190 Jud~enti s~ndards. 64 In reach; n9 the cone! US i cns ca 11 ed for',,, Sec. 09.46.180 the covet shai 1 give effect to the changes in land boundari es caus'ed by the earths 1ide, 0,6~i ti gated, however, so far as can equi tab 1y be done, by allocating to contiguous lots parts of the land released by a municipality by its voluntary vacation of areas formerly constituting public ways, which such vacatings of streets shall be approved in this judgment. ( ----------------------- Page 255----------------------- -7- ( Sec. 09.46.200 Judqmet"lt; effect. This. judgr:1ent shall be conclusive ~"i th res pect to 1and boundaroj es upon every person \fJho at the commenCGmcnt or this action had or cla~med any estate, right, title or interest in or to any part of the entire ~rea of real property described in the complaint as intended to be affected by tnis action, and upon every person claiming 67 under any such person by title subsec;ucnti;o the commencement of the action. Sec. 09.46.210 Jud0ment; rect?!£ir:s. .. A certified cOlpy of the juds:nen~8shall be recorded, at the expense of the plaintiff or plainti·~:'.:s in the act:on,o in the office of the recorder of the recording district69 in which the affected land is situated. 220 p' ~. b'\l -. e· • ~ -II. h· Sec. •• !roceaure aQP.lca Ie. txcept as otnerWlse prOV1CCu 1n t ~lS 09 46 Chapter, all rules of law relating to 2vidence, pleading, practice, new trials and appeals applicable to other CiV1; actions shall apply to actions ~uthorized by this Chapter. 70 (Do not need sections like Cal. Code Civl: Pro. 751.]9, 751.20, 751.21)71 Sec. 09.46.230 Cumulative r2.m:;::;'(Hcs. The It"emedies provided for by this Chapter are cumulative and in ad2Fition to any other remedy provided by iawi~or quieting or establishing title to real property or the boundaries thereof. (00 not need sections like Cal. Code Civil Pro. 751.23 - 751~28}73 ( Sec. 09.46.240 SG~ler.Jbili_tl.74 If any part, provision Or' section of this Chapter, or the application of any such part, provision or section in any particular respect, shall be adjudged by any court of competent jurisdiction to be unconstitutional or· ()~thcrwise inv.;did or ineffective, in whole or in part, such judgment shall be conflned in its operation to the particular part, provision or section or application directly involved in the controversy in which such judgment shall have been rendered and shall not affect, impair or invalidate the remainder of such part, provision or section or their application in other respects; and to the extent that such part, provision or section is not unconstitutional or otherwise invalid or ineffective, they shall remain in full force and effect. Sec. 09. 46.250 Effective date. This act takes effect on the day after its passage and approval, or on the day it becomes law without such approval. 75 ( ----------------------- Page 256----------------------- ( COIJrts cDnd~cted as to bind the (a) to embody in a rcco~~~~~c ~ec~~e; the b~undar~~s of ~2n~~ b~th publ~c and private, as they sh~!l be found to exist subsequ8nt to a~ Act of God) consisting of a landslide either great O~ sma]~; and (b) to accept la~d ~:cas made ~v~fl~b~8 bj pro?er authori~~c5 ~j the vacating or narrowing of streets or other public w~YSJ to th~ ,. -,' : extent th~y serve p~~lic w~lfarc by ;, ..t_., .. -...... caused by the s2~d Ac~ of God; ~nd ( c ) t() z. ?::-ts·,:, \/~.:: fc.' ~ ~: 1·r -:-; j ~-:,: ~! ~ C '.-'~ oj r~I;':~) s ~r;:t)~){:!;' ~; :"19 :: he .:;~:~}:. ~-..~ .~ ~'~~:J ~~r; ;:: ~~ C: r 1t~ S j f).~ ~c :-~ i)U~ ~ : c .:::-: ~~ ;,';- i V~ te j to b,·~ S Ld)~3 t: t i..:t~(.:~~ fc)~'" ~:.> .:" ~ ·c: .:.•~·~:V':l ::r!-O'/-r:(! ~:--(:~ ..~~: 1·:d hc~"e'~:\~'::~:'~~~':: ~~~~~·stJ...~nt to 12v1:; r~2:re t!-N~~/ ''2xisted befo~e trle ] ands 1~ Cr6S; (2 ) so as to make each ?~rcel ownc~) fcl~y 2vailable for struc~ tures (thus avo~di~0 wh~t one cautious Anchor~ge OW~2r re- ~~~~~~t s,~i ~~ ~~rr;l~~~(~~ ~iii~ ~ ~!::f~~\:~ t~h~~f;~,~ ~ '~~~ ~ ~~!~g b~~k~no~'f ~ 71 land, however, the boundaries m1ght ~c found to h2V0 bc~n affected by the ca~th s1idc$ of 1964); (3) to aS$un.~ s2~fety it) the pu:"cnasing" n"~l)rtgaging 0;- leasing of land; (4) to per-rrrit the issu':;7lce of tit1e insurance poYicics" '1:~thout the ,:;xcept-! oriS :10\'$ necessary to care fo~ the ex'i s t"i ng uncer.,.. tainties as to bound~rie5; (5) to con~irm 2n~ establish thc'a~eas available for public uses in dedicated $trccts; (6) to correct the heretofore approved and filed pub1ic records, consisting of land plats~ so that they will accurately rep~ resent existing 12;;1d bouruch::rics; (7) to substitute O~~ action for each affected area~ ~nstead of the scores or m2ybe h~ndreds of separate quiet title actions otherwise likely to be broughta) ----------------------- Page 257----------------------- ( Essentia1 features o~ t~2 p:o~o5e~ new lcg~s1aticn L~ Designation of th2 cou;~t in \·;rdch action shZl11 b~ brought as the court having genc;a1 ori;in~l jurisd~:tion i~ the ~egment of the state in which the land ~ffcctcd b; the actio~ (0: the major part t~s;eaf) ~s !,)c.)tc;d~ _'~t;J ~'~-~''''~'''~ ~: ::c~ ~~::':<~:.~...~.·.~~~,~·:~~._~_~___ ~~~..2'__c_=~.,_·_"_"_~:. any Oijrc:Jg:" ~~~/it!~) ~)t· t'I.;~:t:~(\,.~~~ the j·o1,.:·~(:j'J;r (~f the city C~ ~~h~_ there~ n; any city no~ included within t~c boundar~~s of a borough w~th :es?ect to land within such city (Noma) or outside such city as to which the city has po\t;er, under statute tQ zpproVe a l~nd map (Cordova); any schoo] district '. 4. ,A.uthor1ze thc;; tJL~~:r:~~'U:f b:-';:-:S':"':;J such action,!;J in its d·iscr€tion~ to \/acate or t~) :1C!r~~,)t:t c;.~t:~t: .l(l.E..t~:~2j in such ir~anr;c~- as it i)e~~e~/es \ 60 ,t\ severab1 ~.z ty c ~au$e:) so th2~ found i t1V.:; i 1di ty of anyone or more proGlO visiol1s l<~aves ali th:::: (,:':st va~'Jdfo) 7. Emt:Gdy i 11 the act procc<~:;c;;,: fC:~,T:d t·:) cons t'E tute du~;;: process in n21rKi1 'h1g an in r~m act1o~ to meet the needs of California after the earthquake and fire of 1906 (Cal Code Civil Prcc o g~ 751$1 ~ 751.28~ (This will invonve cooper2tion of $upr'eme Court of Alask.3 so as to al10ili th-js emergency tlgntc';t'.':r:; of the procedures provided in Ru1,~ 4.) ( ----------------------- Page 258----------------------- THE PROPOSEQ EARTKS~.,rC)E R::LI~~: ;,~..~::-~.. CC,:.>:;::f:'~r,jI~·1·:: lj~~fJ of the seventc2:.1 volw:-::!s of Tc-:-itcil;"i,l ",:.;;:·orts and of the four voL.:::-:''':;;;s of rc?o~... ts since the beginning of statehood~ (through 383 Pe 2d) shows that Alaskan courts have been as w~11ing to sustain stcte 2ction ~s within the police ro~cr of the State, as the courts in other statc~ of the co~nt~y. In the fol1owi~~ p2ges of this memorandum; ,{1,. g askan C2:Cl 5 oj Gns h.:v<;; :::Oc;~:::n gr-oup,:;d on the bas is of the ::;pec~: of the police power dealt with •. Metlakatla Indian Co~~un{ v M, 362 2d. 901, 1961. DC31ing with a statute concern~ng fish traps, ChiGf Justice Nesbitt considered at length the justific~tion for rcs0~tingto the police power far the p~otection of natural resources (salmen) despite the detrimental effect that such legislation might have on some p~ivate individuals~ II Safeguarding of public mo~als. In Territory v House No~ 24, 7 Alaska 611, 1927, Judge Reed sustained the power of the Legislature to suppress houses of lewdness and prostitution. In Boehl v Sabra Jet Room, Inc. 349 Pw 2d, 585, 1960, Justice Dimond emphas i zed the broad scope of the po 1ice pOirIer in dea Iing Vii th regu 1ati ons of the liquor industry. See also as to rGgtdat-ions of Hquo~", In re Ashland, 4- Alaska 486, 1912; In re Nakais license, 9 Alaska 1, 1934; Terr. of Alaska v Five Gallons, 10 Alaska 1, 1940; In Application of Wakefield, 10 Alaska 599, 1945; Co . ----------------------- Page 259----------------------- -2- In re Key,c" 11 Pdask21 55t), :9l.:B; U.. S,. v Bo:rdin2ni, 15 ~,laska 88, ( appeal clism1d 16 f~~ask21 ~85J1 233 F. 2d .. 12G, 1956. III Promotion of p~blic safety. In ei ty of {;,,;;cho~-2g(; '- -. 's Floor Covering, 13 Alask~ 7t;,~;, lOS f.'v, Supp. 717, 1952, tho co~:t held inv2~id ~n ordinance requi~i~g 1ic~nzcs fo~ cGing b~si~2SS, on th0 ~F·olmd it ex:ceedcd the pro pct'" scop~ of the:: po 1i ce pC;;N~r .. In City of KodL::;k \/ V21tr:-;,::n, ]7 JUaska !23, '957, an orciin2nce ~(:~:::t,sing d 1icense tax on automobiles o~ non-rc~~~snts driven on the Etre~ts of Kodiak was sustain~~ as a res~lation pro~cr under the po1icc powcr~ In NatJ.:he~'Js v Q:.:'rnton, 362 P.. 20 932, ]96], the Supreme Court held unconstitutiona1 a statute which eutho~-? :: :;,:d th~ tt.Ji1Sp'::Jrt2t:on of school chi 1dren to non-~~b] 1C SC:-,:,"" The Legislature had decla:cd such transf-'Ct-to:,tion t\~oLdd pre;;':C'':;''; t.~lC hca 1trQ a~,d safety of s.c~~'){)] c:u~; ~ c~ren~ Justice /'u-ena and the C;-'if;.~: Justice explained the result t~us: 111"Je do nC"lt Clean ~~C) lC.l::>/:-:-:,2t the Legislature has no 2~t:-;C.;::"'~ty ~:;) provide by lcgisl~tion fo~ the health and safety of schoo~ c:;i~~:en in Alaska xxx All we are saying xxx is that xxx (the disputed provision xxx docs no~ c:~~ctu~te th2 intent expressed thc~G~n by the legislature",:' ( In dissenting, Just~ce D~~8 expressed the Vlew that th~ m~jo~ity o?inion improperly curtailed the police power ;~~ the protection of health and safety.. IV Preservation of p~~!ic hco1th~ In United States v Ccs~8~ci21 Co., 6 Alaska 94, 1918~ Judge Bunnell of the District Court of Fairbanks, reached a result more unde~stand2~le in 1918 than in 0966", He held a statute H:;Jiting the trJoU"'kday in Alaska to ei ght hours \!,r(]$ 2i1 ! 'lH1r821sonab] e Glnd i nva I 'i d attempted exe~"ci:se of the police pOt'Jer ..jj St~",~mgcly he couph;d th1S hold-ing tL9ith a strong assertion that the police power of a ~tatG enab1es it to Itprescribe regulations to promote the hea1th, peace, ~orals, education and good order of the people, and to legislate so as to increase the industries of the state, develop its resources, and aed to i ts ~'Jea 1th and prospes-i ty", n In TerU"'itory of Alaska v Craig Enter~:wises'y 355 P. 20 .. 397, ]960, the Supr~;rne .court re\7~rsed a ;,:];;::c1:,:on of the lo~oJer COUr't that a lien provided for under the Alaska Employment Security Act was unconstituticna18 Justice Dimond wrote the opinion, in which this !~nguage is found: J~he Alaska Legislature has found that economic insecurity due to unemployment was a ser-ious ml2;ij1~ce to the heaH:h, morals a~,d \'.i\~ufait"e of the peopce of Aiaska. ThereforG it adopted the Alaska 5\'ip1oyment Security Act "in order to promote the p';Jblic good and the goner-au welfare of the citizens of Alaska. xxx tar discussing the lien as a l part of the re'TIeay prov·:~.:...d by the Legi s 1ature, he conti nued:) The~c ----------------------- Page 260----------------------- "; .. ~._.1___ the ( \... ~ .'~ ~ A] aska ~0t:.",~? ~'-,',,' ~I,_:~ ~-c~ I~) :".~ ~n~~~:~~~~;O" ~~,~ t'.-,p Three things deserve •. ,,;" .... - ..".'':''::'' ~ " ~~~~;,,:;~ \.a.JCi-,:"';;"'j \......., ~ t..~ u ,....... ". ,.I;iill..,,;.~ii ~"-'" ..". __ -~~::';~ .?:, ~ t\'~·~~:; ere vi a t ;~(.; F~>o~: ~~~,t~J(~j; (b) tb~e weig~t prop~r- ~ cc~~t to 8 legislative ~2c~~~ation of the need fot(' .,.. ,'. ~~. C:~~s',:-~~:c;::;~~: ~~D $(?t:\)G ::;~~b] ic \/Jei ~fa~e; cr~·'.~J (c) tr~e p~·op~fJiety c ..f s~.JS~~:2-1r\~li1~) ~~~"~2: (~'::~;::~1 ~s of i:; prograrn, t.~hic:" v~:~,,"i~C as a ~Jjho 1e s.erves ~:: ..~ ~:d i c t':2l f <:.1 r c .. V Zoning ordinances~ In City of A~C~O~2gC v P2U k, 1~ rlaska 392, 113 F~ Supp_ ( i903, a zordng on:nrilance 'r.:k;;'::~-:';;9 ;,:J:t>-: C"c:s'i '._-, ai-cas 1:J2S s~st(;;;·ii.C.:U~ Dist~ict Judge Folta genzra1izej hi~ vie~ thus: !I~'~othing is n-;o:;e C0:-:1,~;;c:'"::)1,:c::: ~=~1a::l t~..>:~ L""cgu1,:':QiJ cmd tc:S~::"~ct'ion of the use of ]anC' in a zor:(~ declared to be rcsidentiai .. H was under consideration~ Dist~ict liThe sys tS:iS or SL1IrV'3Y'S 2;10 ~ 5 ~:ps';2d of J.'J a] governr.'/2nt ] an:::;~; ~~>:>: cor/':,2.T<':'; 1atc!s the disposition of same in r8ct~~;ular pa~cGls, ~~ at 1east with str~~ght ( p-3:r'al]Ed side.2:nd end ihv~s i~S ~':.~.,,"C; cr-'d::::~]y~ jess I1J21st(;2:fu~ 2nd C;,;)st bCr-Ic;;'ficial to all concerned~ ro~ this reason, if not otherwise, the tlrUst00 should have the authorit1 to straighten a J ir~eJu1~r boundary between occupants, even if in so doing,. such str2ight~. ~ound~r~ necessarily oxclud~d portions of?n occup.Jrrtlsimpt"ovh;-;~2:nt$ of sr::;J1] va~;.H~.li In Alaska Gold RCCOV2~Y Co. v ~c?~~~~n X~ning &Trading CO$' 7 A:aska 385, 1926, the court sustained a sta .. c~ ?~rrnitting ~ ~riva:~ ~ining ccspcny.to condemn !and, ~uot~ng with 2pp:cval, th2 fol)owi~g pass2ge from the opinion of Mr. Justice Ho1~cs in ~oble State B2nk v H2shel1, 219 UvS. 110: Sl\tle have feili scientif~c:ljy ccrt21~, clr'5te:rri.J of iegis1atic;r:, and 2$ n: often is difficult to mark the Hn:~ t:hc:::t'e ~'~h.r.:t is calh:d t!"'Je police pOt'ier of the states is limited by t~e Constitution of the U~ited States, Judges should be s]ow to read into the latter a voi~mus ~utare as against the law-making .pO\'ler .. II The foregoing review of Alaskan cases makes it clear that Alask~n law recogn 1zes the po] i cc pot,:c~ as 2:11 ~ ~'1he~,:;'nt i r:gficcdi erlt in the exi s tence of govet"n- ment; and permits the c,~et""cise of this p'0t:~'2r hrithout CC:nrr::G[isat~oii to the persons thereby caused loss) v.:henevcn such 211 c:;::,v.:t~ci se ~ s shotJn to be r~?;asonz;b 1)! neeced for the safeguardi O1g of rr~Oj3: 1:: J !-"'"{,e~~ 1 f~ ()J~ sZ1tfc~ty ~ Ou fFoif tr~e conseuva -;c i fJt~ of natUri ~3; 1 resow-ces, Oii for the p[l"C-;c,:,:;..~ ,,~1 0";: t:~,;;: pubHc t\!elf2:lr'c; .. The shortnes::; err PdiS.skan history and the sparseness of its population have cc=bined to ma~Q the number ~nd vari ety of cases i nvo 1vi ng the po 1~ C(; p:J1.'.'er' ; css. than those IIJhi ch can be found in c i ocr and more popu 1ous states.. Ihi.$ ~.: urd ~r;::o:'tarit.. Th~;; basi c doctb'"i rae has had ar."Ip 1e and generous acceptance.. /'\S [1;2:t;7 ::;::;ob ~ ,~,,~::::; ;::..t'.~' cncount~re:cl ne~'J £,;pp i i cat; ens of the basic doctrine are to be expcc~~~. ----------------------- Page 261----------------------- . .- , t: " ( Concerning land Boundaries$ The grc2t earthquake of March 1964 moved seg~ents of the Alaskan earthes SUrf2CG in ~ s~~cr2~11 northwesterly dircction~ Some of the mO\~ed se9n~e~'ts t\;~et~c ij~e12'Li\('2::~l SE~~':;:~];; "Jrt'v!oiv·'ng O~~j' a fC:rJ ~~~~(JTged lots. Or;~et;-5 of the n:'o\l~:,'d S(::~!;·~c~;:·~::: L~~<~·.,~. c'o·tr~ ::.~tructures 2~,~j bOt.:~c·]:'<>Jo~8S... ; t~(~ r1~:::~-::,~~.d poit~t of b~e9in·n1teg fo~~ r.;C~::,~J C~):r;;:;.ttrUCt-:C1~~S i~oJ -tut'ur"-c ,>::.\/(~ c;~~;:~Cri-t, cSf.)ec~c~11y in urban atreas, is cc<~t~-;l~"~)' as to t~·:~ locZJt~l:in 0'';; stu(:,;'.?~·~ 1i~nw',:!: 2t~cl lot l·~ncs .. for Alaskan cc~rts to ~~scuss tne relation between uncert=~~tios in lend ~i~:2S 2~d the doctrine of tne pa:ice power~ Other states have fac0d this a~d related ~~ob12ms8 When Arkans~s W~3 st~~l ~arg81y unse:tlcti, the lcgis12tu~c ~~t~c~~ a special variety of ~uiet title 2c~:on ~p~1ic2~ie to lands sold fc: i~~~n~~0nt t~xeSe The purchase~ at se~h a S2;~ could bcg~n his proceeding b1 ~ ~otic~ pL)blist1ea in a ne~~;Esl:'·2per ca~ "::-:g ('~~ Z~t Gh~:~cns~r5 to s\hc)t.~J cause:~ ;~~~1.~··2 purchaserls title should not b2 co~f~rmeJ$ In t~e course of an c~~~~on sustaining a chal1enger i s claim the Supre~c CO~:t of the Un~ted St&tcs sa~d: !tIt is a very gre2t E;1J~1 in 2n;; c:;:,:·,~~l':·~ ,_/ ·;~o have 'titl;;:;:s to L:ric ins;:;cure and uncer-tain; and es.pecial [y f;,,; r,.(;t'.I St2tes, ~.'hG:re its r€:suH:: is to rc;;:.:n:~ the set t 1emcnt a~~c] ~:;.:- ~~ ~~~ \'aC2d1t ] ar~(Js~Ax p~ t r;1aJ~ ~,/~ 11 not purchase a law suit, O~ risk thG 10S5 of his ~aney and 1cbo~ upo~ 2 ( litigious title~ The ac: ~0~ under consideration was intended to this evilxxx The jurisdiction of the court over the controve~$y is fc~~J~d on the presence of the p~0p2rt~; and like a proceeding in :em, It D8COmGS , conclusive against th~~ absc:;-~t CL2:~~:"J2nt:, as tJJEd] as the present: contest.:.nt .. IIO A Nebraska quiGt title st2tute, cn&ctcd in "235 was found to b~se an un- chal1engable title in the person t~ho has c~:~ful1y conformed to the statute's provisions. The Un~tcd St.:tes $:~:~~:;Q3';C Cou~t itl ~e~ching th~s r'csuH: said: ! ! , ..... "" ~ \., . ) '- .• t ... e· • 1:: ~. • t ~ .. n • ~ • .,. i ne .)la re; nas c()n~Cf"C l O~/8!;" p~~o per -y \':.'1: ~ :1~ n i s n mi s; ar.tiI tne cone: i 'lon of Ot1ne~s hi p of rea li es ·~c:tc ~:'ii-~" .;::<; n, '2.l1e O~'.i;r;cr be s tiiO;rlgcfi ()G.... citizen, is subjection to its rules concerning the holding, the tr~nsfefi, 1iabilijty to obli9at~ons, V:l'Cc.: GGQ He, 2nd the modes of estDbli~.hing titles thereto~ It cannot t~~~g the pC~ .. ~n of a non-resi~ent within its limits xxx but it may dcte~m~nc the extent of his title to r~al estate within its 1imit~; and for the pu~pose of such determination may p~ov~de any reasonab n e methods of i ~ ng noV; ~ C(::.. Th:.! V07:2_!:..-bei rig of c"very £~.mun..~ty r€>qult~(=:s t ~~ '.~~:>.. ~:-2 fi:i"2:1(.?~ (;~r ~~!2~~' 85t.ut~~ t:~·;;:.~·.. ::~';2~~n s!'~~d:i~ ~o:.;2 SE'::L~re, anti that th~re b2 conveni8~~ ~nd certain 8~t;~ods of dGterminirc unsettled - ia -~ r ~~tzestions rr~s~~,e(;tinq it. 1((2rf:~}r~asis 2.8 cizd) TrJe ea rtnqu21ke t:~~ t:: r~g ~~~1 L~I!; t;t;~·] en S2rr1 :S~ 2~r:c1 ~~cc:· ~.,.. p~?~ 1~ ~ S;'C·6.1 created an intolerable situatiorn fot'" an ~]ire(;;dy S~22bL...: lH"'OZr1 ;:::c;;~;-;·.: .. ;~it:y.., inc burning of the official land reco~ds .8ft most 12ndowne~s without evidence of ownershi p; and also 1eft many lo~ni~g inst:~utio~s without the assurances of pu... ~ cri ty. The rernediiS11 Sl:2tute j co:r~·;~·~'.~~~;~~::·)/ ~~p(;'i~~en of as t!1C' $~~cErt(~rtnel ~~ct, ~Jas enacted by an extra session of tho ~~;~s12ture, a~d bcc2~a law on J~~c 16, 1906. 8 ----------------------- Page 262----------------------- -5- ,- ;~ <.: ..: .. " ,~ ....:,-" ( The presently P~O?~SC~ ...... ti~ proc~dure of this a~: The first im?O~t2~t quoted \\lith a'D~~~c\?~l t:;~(; ~ec::: .. c:,,~, 0-/ y~·-~C; Cr~1t~:;,~~ S'L;ztcs SuprE:me cc·u~.. ;:. in >·~;~t~;~~do v Ca Hforni a: g3 J1It fo11C,t:}S th,~t 2:~)1 ~.~:~::.::.~: sancti c)r~cd by c~:~(~~ ,2~~~':::: c~:~ ';~:~' leg i s ~ a ~t 1\t"~! p~t\~·2~~ j :~ ~ ..~ _ ~.:.2~~:'~~'~~~~~!?:~·~~~:~ ~'. ::~.,. :;-: :.~: ;.~ .:;J u p~j ~~;" I ~J (': )' ~.~j }-~ .~ C t~ :P (j £ (~; ij>- d s and prc~scrves these i:r:,~::~.,.t~'2.jI ().~. ;~~;~.:~"'·~I .::r.d just:cc, Jr;,~~... _ C~ ~-:<~i(.. :~·o c,(: due ~~"oces s of ~ z.Jt\"1 s ~~ ~ s. ~.~ ::2;) 11i ccJ) th~t a decree g~~nt~d ~~~suant ~0 ~~ ~c:~crncv Ac~ W2S co~~lusivc ~s ~9~~~S{ a resfdent ate C2]ifob~~"\i2! '~("f:-J'S r~'~~'/(~l;t~ r~~,j t;'~~'::'::;:~"~'V~:~~ i:CtU2::ti ~Jl:::~~~jc.:~ c'T' ~~:~2 .~~n:~j,,:,:.~.,~::,-~i~n:JJ 2~d \'~)~10 ep~~z;~ent3y h::(J b'81~;::~ ~~,~"'~(2: C"'- ,~.,) ()~-:: 1:~~~c ]cr~':':: .' ~:'Ii(~~;,- (:~":) 2: 9S.~ ~i~,:~·~ ·Jc·:;s~" T~·~is dcc"is1on sustZ:lris tJ-~'2: 1rJ ~C~~p;~ '~-":>::'~~r O':;=;J ()!.:,t2ir:c~~ G::7 ~)~I;~-C;-::.:,~~!P .~:;':;:';':':\:;L,Q;~";ity ( to t~e. ~;IQ:}\::~~.2": t~·e:.;:~:::rit2-;} (~\~(~r~ <.~ ~ (;2::5(.. '.,. -..~;t·(,~ tn() P:twop2t'~'''~:):1 ~.~~ S:~'·';~ o~f :::~.c : ~t(; claimant had been t:~-$(~:,~. _ j:/ ;~~-:~ ~~:ee. T~8 statute was dec!2~e~ :0 ~~~i w~th a ~egitimate area for 2n ~:~rc~se o~ ~~c ~~Ticc t~.~s it is ir~ ::Si:~~~::~~..1 .~~~ (,r·"'·...4. set~rity of the ~itlQS co ~c~~ C~t2tC 2~d i~ regist:: of such ~itl~s, it is obvious t~2t to f~r~ed by the McE~crney dacrce ~. '~his appeaJ bccc~~s ?r2c~jCJ:t; 2 tcs~ .~ st~sngth of a McEnerney title. xxx Since the McEncrn0Y su~t bro~sht in 2~ d0fcndants all persons claiming a:;y estate in the r;JoOIOp~t-t}:': ~Q:~s~·~Jt:dcnt ~",..q2!5 ir~~ ea\~~ a pa~~ty thereto, as though he had been (,:,~pr'ess! y :i;:;.:>,~~_, t:... crcd fj,,)':::"C{ Th;:,; fs:,gcd deed i n ev~ clcncc llJaS the equivalent of perjured :2st~s~ny, and it is the settled law of this sate that a judgment cannot be s~... ;;,slck b~;c2:tzsc: it is oredicated upon per ured testir.':ony. There r:.ust be an end ';"0 1it:~;ation.Il~7' ----------------------- Page 263----------------------- I" --0- ( It is, pcr~13ps, sL·~~:;;~:lt~:1L.;-- h.::.~ _' .. ' ~_ .._:.~) ~::.:~f~,;~:Q~::?~S ty~ng in t~~c: s·co:)C of the pclice power, as it h2S b~c~ .:}Sn2~tcd tJ~~ in Alask~n decisions, a~d in the present pressing proble~s caused 25 to land bound~ries by the earth ~i~ce of 1S(: i~~. ..\~~ ;',: e n 0 ~ t :j~\~c~:. t ::.:~ ?y} J~··~C.. \" ~<;.~::<~-.,~; t () ":':= ,:~, L: i)::; t~! ~·t ~ -.: ~~ 12 ;,(1 rna sse S C:i ec.: t: (; S z: P'B r\' ad ~ ng L;~·-~r;c~.. ta:n~t;l as to t~·~'\.J C)'..~::~~S '~.~r:~:2·~~ /J~~..:.~~ t~~3 ;:·;-C'?2ri b()und8rics of P:'lt.·:·:~ ar~d ~.j~ i \lC.. ~~ C c··..·,:~'er s hips c -;: .~;-, :c;;: :=; 2) C~~·~:·:·:: ~ ;<~:, '.:1:~ (; ..~ }~J(;)f C:! ;~~. ::'~~2 2; r to bE"; , z; S ()?'"~ C 0 b~~ C:-JW'~,cs c!J~*b lines, fcr:ce Hncs az;c ::'::-~:G/ :::u;Qf,:-:::;:e c~:.:~~kin9s, £!"_ ar~ the:.! ot the ::>12(:(;5 !}'jhce-e a solc.r sur\'ejt !:JJS~;,cj L~~~>~ln t;rjt,; SC~/~~:'.::~.~ ::~.2rid12;n V}1,:::'uld t",):3C:C: the:r: on the basis of the lot 1i~cs ~s th~y c~istcd tefo~e 1964? Ccrt£i~~! on ~~is point is essential to the fu11 uti~iz~tion of the cityls land. it ~J ~cs~~­ able ~o all persons ho1~ing lznd lic~s as sccu~ity. It is vital to m2ke the recorde{i plat maps r"12:)~"eser'It:2-~~\/(; c:"': ~Jr-escnt f=ucts. The ~~·e]1ear(: ~,. ::;-~c peop1e of Alaska is at stake~ L8gis12t~on to ca~e for th~sc necessities is not only proper; it is the duty of t~~ lcgislatu~e to provide machinery for the o~derty settlement of these uncertain:ics. ( ----------------------- Page 264----------------------- ( Ccmp~re S~cpardJ Histo;y 2~~ The0~y of Government, 7 Encyc. Soc. Sci. 8-9, 1957: 1;~'lh8r.cvcr 2 stoU~) O~: ;;:",~-.~~:;-; [..2;;lgS actuc;"tcd by cor.-:r:or. intc:-osts and desires creates an o:g2~ized i~3tit~tional mechanism for the furtherance of these ends and for the adj~st~2nt and control of their relationships, tho,·e is gOV'::i'"rY-:-:~~iit .. XX;~ -;-;-'2 ~;u;.ctions or govc;-nment are socia1 control and pub1ic s.:!rv-i·':2. 11 2 Beverly Oil Co. v City of Los A~;~1cs, 40 C~l. 2d 552, 254 P. 2d. 865, 1953. 3 L L H2:dacheck v Sc;~astiDny 239 ,.-".~. :~S~<:> 30 S.. Ct. 1 :3, 602:'Ed. 3 ;-8, ,;:~::-fiimlng the val-;dit:y or a Ca1iforn"i.:t z::;;)-;;/9 1~'.-. in the City of Los Angeles .. 4 Compare Pmve11 on 2c2i1 Property;; p2:ta .. 859, 1958: IIIt is c~?p2r8rit ~,:::-,at the po1icc power concept is not 2 5t~t~C concept; but one which onl&rges and changes its content with ~ltcr~~io~s in the accepted views as to the proper functions of government. The his:OT1 of ~~G United Stat2s is a record of steadily broadening ide~s as to fu~ction of government in connec~ion with land use. ll Thi S author p:-oceeds in subscc;uc;-jt ;):;;:rZlg;-2?~~S to de 1i ncate the resorts to the police pm'lei in U';(;:L2d:.:S'~c~::.",- .:<"'\'J of ·;,"';;;:C'~• .:-,-." ... ' ·l;t v .c:.:.y •• , 0 i •• L...).), iV/ /:; ",,_';.j ~ .... ~.I.- ;...0 .... , i.. <,..;;_,; .... "., I..I'~ ... 0 ...... ", ... ...·.I.l0na i y of the act J sayi ng: "I t Ci.:hc 8U:"(i·t ~~c.co:-d Act) \:.'as dcr;;anded as a t:1Cltter of s2fcty in a great emer9c~cy. I~ ~QS not calculated to t3kc any reasonable being by surprise. It Vias k:"iC!,.';-' ~hf'oughout the civi Hzed \tJorid that a large part of the City of ChicQ90 h~d been ~cstroyed by fire, and that ~he records of the courts and the reco~ds of dcc~s w~re all destroyed. This naturally comnanded the attention G~'! a1 i ('2':':SO:;;;0: e persons evcryv;hci'e, and called ----------------------- Page 265----------------------- -2- ( upon them to attc~d ~nd see ~~~~ ~~0ns ~~w~~ be adopted to mitigate the evi 15 and danger's incidcr::: ·~o U-,G ~c5t;·L;ction., The legislation '.'las not clone in a corner, but before the o~se:va~ion of the civilized world. We cannot doubt the power of the G.:.";c;-a} Assc:TIC 1y to pa 5S the act. Ii 9 Title & Documents Restor~~ion Co. v Kcr;~;cn, 150 Cal. 289. 83 ? 356, 1906. 11") IV At p.. 301. ]j .c..t p. 305 .. 12 These: un-ique fe.::tLH'"es y (c:u;):-;c,:::'~c,<,: -;n t;-;::; p;"'oposcd Alaskan st~tl:tc) included ( -.) ';+..~ "'\~'-~"''''o:::',..l:n f-r"m _l..""".,."..<,.""". l·e-.J,· ..~.J• .)-::~('Iv'.(..'-118): ('0) 1·t·sltJ-iu,r,h,"c';;:.111 ~ (Q". ~:feetto tile liea t; ~nd four, f~et; .. ;t~~",,~h~~~o1:th 0 Tiliff ,s,1:iding of t'lie;;ie~rtli(!re.at;ed a problem' in ·r@~l;·property' 10C~ltiorr.s .f::TId 'df.~s~riptiona ,i!Ji;::~the -area because the~l!lt' of d'the"6riginal 'ro-w--n.sl t(!: 1.110 ltJng:2'r represents the, actu,e:ll 10c8..ti.on of the, pX'operty .. Th.is i8 an i~lI~di£;te s'"!oneetrr 'of the' Ci ty bec~.use an,easeme~lt c~nnot be g:f.v~n to tb.e State, of Ala~,ka 810ng L Street for th¢ .purposes of constructing a state b.iglr:~~y~proje~t {and City streets 'and:"a11eya 'in some ca~eg nnprl~'ate#rope#~y. ' . ,.~ . . PJCOfe~Bf~r P~el1 ~las cOlit~'~ted bec,~u8e he~i'8pro'bahly the out:- ~ti1ritdi:1g 85clthor:lty on Anglo">il:l.~rican 't"E:e£l prc'perty la;t;7,~ Al:t.:-%ched t~f, this f1f~ffiorandum is; ~n excexpt from the 1964-65 edition of tfbO~£ ~~O j~.n.Jtme1ti.ca (!on(!~rnill',.g .'Professor,Powel:l showing his' ':ac The field of real property law is extrem~ly compl~x ffi>UO IAny legislaticn.'!'1n01.'" 1:~soJ:u.ticnl of the problem must, be t~lo1:"ough, meticulous ti'nd/ accord wi th du.e process; ( 2 ~ Professor Pewell bas vast eA.'1leriel.l.ce f.n the field of real . propert"Y law ~avin.g· taught at Columbia Uni'\1"~rsity for 40 years, . having been the reporter o~ the Restatement of Property L~'&nd the authoro.f the. most outs'tanding treatise on property law in thie country, and having been on retainers ·'to many ls.rge proper~y' OTmers with unique problems; /,., • I I 3 0 It will save the City and the ta.xpayers money ~~ have s comprehensive statute conce~ing",the effe~t.on land o%nership c,aused ;by.:earth slides t"it~ the most simple procedu-y;,Ei to resol:ve f:onflicts~ Without ,1egis~ation. ~:t.tl~ problems w~be unresolv~d and Clty'ownersh.ip will not be, finally determintfa. The" Office of . Emergency Planning funds 'available for tb~' L Street replat are unavailable for. the T.urn~gain are~which.eventually must be replatted~. .' . .An· expe~~ i~'f;he:' f·ield is'. 'More ltkely to. knov' ext'lctly what is ne'eded .' :.'·to.. accomplish: the' result tfith tbe·leA.at time and expen~e ~nd to . .produce. a .proce'dur,ewhich~il1· sut:vive 11 court test and finally determ:i..~e ·a.~1. (ycinersh~p quesJ:ions; ..' 4~' Professor POlrJell being S1i."l. exper·t in' his f:i.eld will be a more convincing witness before the legislature because he will be able t(~ explain ~Jith £luthority .exactly what bis propos~l accoli1t1'lishes, answer any questions snd explain why anything else would be unsat.is- factoxy; ~. If 'an interested party should initiate' a court chall~nge to any statutory. procedure to solv~' the pr~blem t~e fact that an ~xpert in. real prope~ty law studied. ~he' problem 'and suggested the ·.solution.· . "'f~~ld '~ertainly ·c.arry great ~eight with the· cou.rt in Upholding. the: .' . statute.· . { ~ ----------------------- Page 268----------------------- October ';\'6~.. Further the fact that Professor Powell was i.nteres 1 eno 1gh in our pro'blem to ~all instead of vn:iting and yuult.ed ~o ·'-kn-f,w vlnell the- legislature -meets in ()r~'er to' det~mine. the work c t::j:r~~et~hle ill.~ic.tite8 his eagerness to tJas simply addressed to I'an persons" ~Jho chose to cha110nge the plaintiff's claim. Arndt v Griggs, 134 u~s. 316, 10 S. Ct. 557, 1890: ( .1(The State) has control over property within its limits xxx whether the o\>Jner be stranger or citizen. It cannot bring the person of a non-resident within its 1imits xx~ but it may determine the extent of his title to real estate within its limits; a~d for the purpose of such determination may pr?vide any reasonab~e f;;:;:;thods of imparting notice." Title & Documents Restoration Co .. v Ke~rigan, 150 Cal .. 289, 88 P. 356, 1906, in sustaining the constitutionality of the McEnerney Act, said: I~XX the legislature may provi entirely novel and unprecede~~ed methods of procedure, provided that the; afford the parties affected the substantial securities against arbitrary and unjust spoiiation which are embraced within the system of jurisprudence prevailing throughout the land. 11 American Land Co~ v Zeiss, 219 u.S. 4], 31 S~ Ct. 200, 55 l.Ed. 82, 1911, in sustaining the validity of the McEne~ney Act, said: liThe criterion is not the possibi1ity of conceivable injury, but the just and reasonable character of the requirements, b3t~~g reference to the subject with IIJhich the statute deals." Ht\v'ill'[;; Mullane v Central Hanove~ Ba~k & Trust Co., 339 u.s. 306, 70 S.Ct. 652, 1950, found that a statute establishing a mode of service which could be used by a trust company in securing a judicial settlement of its accounts with respect to a com~on trust fund, was insufficient, said: L/ ----------------------- Page 273----------------------- "-i .... -2- ( liThe statutory no~)ce (by pub~ication alone) to known beneficiaries is inadequate, not because in fact it fails to reach everyone, but because, under the circumstances, it is not r2asonably calculated to reach those who could easily be informad by at ~ean~ at hand.xxx The mails today are recogni zed as an effi ci e:lt c.:rid i ne~,q)cnsi ve means of coml1uni cati on.. t~o:-e­ over, the fact that the trust co~?any has been able to give mailed notice to known beneficiaries at the ti~e ~he common trust fund was established is persuasive that postai no-cd~~c,Jtion at the time of accounting ~·:ould not seriously burden the plan .. 11 ( Thi s defect 1;}21S r-er:-;e;::H c';::; 1." N~w Yo:k Banking Law §100-c, by an amendment, -';' enacted by N.Y. Laws ,c. , requiring mailing to all k~ow~ beneficiaries .. ) In this case th2 opinion of the Court, written by Justice Jack~G~ he1d that publication alone const~-'.:.;",;":z..:,d \Jue process 'l as to IIthose ben·.::;. :c::z..';{;$ whose interests or whe~eabQuts could not with diligence be ascertained~xxx However great the odds th~t puL~ication will never reach the eyes of such unknown parties, it is not in the typical caS0 much more like~y to f2il than any of the choices open to legislators endeavoring to prescribe the best notice practicabl~xxx The vi:~i interest of the state in bringing any issues as to its fid~ciaries to a final settlemen: can be served on1y if interests or claims of individuals who are outs~~a of the State can somehow be determined. {J, constiucti 011 of the due p~Qocess clause \;k;~ ch 'dollld place ( impossible or impractical obstacles in the way could not be justified~J' Thus the criterion of jurisdiction is the simple physical fact that the affected land is in the State; and the criterion of due process is the reasonable completeness of the method~ prescribed for giving notice to interested parties bf the pendency of the action. Factors assuring "due p~OGeSSti in this .D..ct. The re} evant p:-ovi 5i ons of u..,(; proposed statute are (a) publication ($09.46~lOO). Cf. Cal. Code Giv. Proc~ ~75i~06~ (b) post-ing (§09 .. 46.110). Cf. Cai. Code eiv... Proc .. ~751 .. 08. (c) personal service on persons with known interests 'iif he can be found vJlthin the state" (s09 .. 46.120). Cr. Cal .. Code eiv. Proc. ~751",10. (d) mai1ing to non-residents (§09.46.120). Cf. Cal. Code Civ. Proc. §751.10. (e) mailing to residents who cannot be found within the state. (g09.46.120). Cf. Cal. Code CiV8 Proc~ §751.10. (f) filing a lis pendens~ (§09.46 .. 150). Cf. Cal. Code Civ. Proc. § 751.13. (g) requi rernent that judgment be given only on proof of facts, and not on default, (§09",L:h.170). Cf. Cal. Code Civ. Proc. §751.14. ----------------------- Page 274----------------------- , .... .' '. ( These seven factors have been held to constitute due process under the comparable California statute. Any d~v~2~~on, even in detail, from these pro~ visions of the California statut~) ~2ke ~css certainly helpful the long line of California and United St~~~s cl~cisions upholding the due process quality of the California enactment. It \/elfare" of the State. (4) W:'1en Anchorage was laid out originally, adequate and reason~bly wide publ i c streets and all eys were Ilreserved" so that the Ci ty became o~'mer in fee simple of these public ways. The areas reserved provided adequate space for sc\'·.'crs, water mains and for the installations of other public utilities. To ~·,ha tever extent an ers tv;hi 1e s tra i ght street has been bent (l. Street) or obliterated (M Street) it is vitally important that the areas available for future public uses be made certain and that all possibility of existing public uses being treated asl'encl"'oachments" be eliminated. Both such certainty and such elimination will serve the public welfare of a city still in the early stages of urban grm>Jth. (5) The c1ause in proposed Section 09.~~.020, dealing with voluntary vacat- ing of streets in whole or in part, may conceivably caus;-~ifmany property o~:Jners to Ide 1come (rather than to oppose) the creati on of the new procedure. The pna-<:sc Hin an equitable manner" recognizes the desirability of a court partici- ( pating in this les~ening of hardships caused by the earthslide. Thus these provisions, hopefully, can elicit both popular and judicial favor for the enactment. (6) The making accurate of "pub1ic records," \·.rhich by factors beyond human control, .have been made ina~curate iP~unhelpful, is a favored aspect of "serving the public welfare. 11 This point was stressed in both the California and Federal cases sustaining the McEnerney Act, ~Jhich reestablished the land records destroyed by the San Francisco earthquake of 1906. (7) It would seem that the landovmers in the slide areas \Jili also serve "public welfare l' by lessening the court time required for the getting of good results. /'VO l\ (8) and (9) The clause in proposed Section 09~46.020 dealing with a change in the Court established rules of procedure cal ls~a careful weighing of the merits of two available alternative modes of drafting. ~nder the statutes of Alaska, the legislature can make such a change, if it expresses a desire to make the change ( '-- . ----------------------- Page 277----------------------- -3- ( and eives a two-thirds vote for it. Under Alaskan decisions the change has to bo b;ought about by a legislative declaration of an intent" to make the changes. See Rule 93 and Leege v. Martin, 379 P. 2d 447. Can a two-thirds vote of the L0gislature be counted on1 If that is doubtful, then the language of this clause needs softening, and effo~ts should be begun to persuade the Supre~e Court to ~mcnd its rules so as to permit the tighter in rem procedure to be applied in the very narrow area of these earthslide relief cases, because of the uncomraon cmer-genci es \-Ji th vJhi ch they clea 1 and because of the va lue of bei og ab1e to use the United States Supreme Courts decisions on due process, made with refe~ence to this in rem procedure, authorized in the California McEnerney Act. The latter course of action ~~uld be smoother if it can be managed. (10) It is clear that when a Legislature has said that certain action is nceded to serve public welfarc~', courts are hesitari'tto reject the statute, thus substituting its opinion for the expressed view of the Legislature. I therefore advise leaving in this last paragraph of Section 09.46.020. (11) It will be noted that the first 46 ~urds in Section 09.46.030 make the new type of action available where the change in the location of boundaries has been caused either by a local earthslide (i.e. L. Street) or by a massive earthslide, (i.e. to area between the Anchorage seashore and Glenallen.) In both of these cases the present and 1ast boundaries are in different 1~cations by solar survey. Any attempt to establish boundaries by remeasuring distances ~/estward from the Seward Mer1dian would create a maximum of chaos in any urban community, such as Anchorage. ( (12) This fir~t'clause of Section 09.46.050 describes Anchorage and other similar boroughs of Alaska. (13). The first half 'of' the second clause, of Section 09.46.050, describes Nome and'other simi1ar cities of A1aska. (14) The second half of the second clause of Section 09.46.050 is designed to cover Cordova, and other similar cities of Alaska. ( 15) Un dej the A 1ask a n s tat ute S some s c h00 1 d) s t j l' c t s h ave poy./ e r to a p pro ve land maps. If, by the forces of Nature, which are beyond the power of man to controi, these erstwhile approved maps have ceased to be correct, it would seem that a correction of such maps should be made possible under this new statute. (16) I have included this fourth clause of Section 09.46.050, without prior discussion with anyone. Maybe it can be omitted. My thought in including it, was to make it clear that the proposed legislation was not local legislati6n "\'la~..........:oi;-'V"k"JCaL\..l~5'J.-a~n1 confined in its benefits to a few spots only, in the la~ge State of Alaska. Perhaps no one would ever invoke Clause 4. Its presence in the statute might reasonably silence persons feeling only a slight concern with the welfare of Anchorage and some other few cities or areas. ----------------------- Page 278----------------------- -4- ( (17) In the cases testing the "due process" provlslons of the HcEnerney Act of C~ ifornia, frequent stress is laid on the value of having before the Court "every person in actual and peaceable possession " of the affected land. The provisions of Section 09.46.060 are designed to make these precedents applicable to tne proposed Alaska~'statute. (18) and (67) The importance of. securing an adjudication "binding upon all the world'l cannot be overstressed. This was the unique feature of the McEnerney Act. Here again we find the undesirability of one of the Alaskan Rules of Court. In Rule 60b. the provision resembles Federal Rule 60b. It provides: lIOn motion the Court may relieve a party from a final judgment. The motion shall be made not more than,one year after judgment is entered. This rule does not limit the power of a court to entertain an independent action to re 11 eve a party from a judgment, or to grant re 1i ef to a defendar:'..~.!'~ personally served, or to set aside a judgment for fraud upon the court. il California has Code of Civil Procedure 473a which omits the eighteen underlined words in the above quoted rule. The one year short statute of limitations is probably helpful in sustaining due process; but the ability to cancel a judgment fixing boundaries on an application merely showing the applicant not to have been "personally served" would nullify the nceded efficacy of the other safeguards, including personal service on known persons plus publication and posting. Thus we are faced again with the problem discussed supra in Comments 8 and 9. Whatever solution is determined upon ( there, \·d 11 apply .also to the problem no\-, raised. The reported California cases do not include any (which I have found) in which the application to set a McEnerney judgment aside was made within the one year period. They do include cases where the application, being made after the year, failed, and this failure was bas~d on the in rem ch~racter of the action. (19) This will' enable any locality to clear up existing uncertainties as to boundaries in the area where these uncertainties are most pressingly trouble- some, as for example, in the L. Street slide area of Anchorage. It will also permit the workability of the statute to be tested with a mlnlrnum of expense for title searches. With the experience thus acquired, the other needed actions (if any) can be more easily managed. (20) This sentence conforms to present Rule 3 of the "Alaskan Rules. (21) This unique titlino of the action (without the naming in the title of any specific persons) is modelled on the McEnerney Act of Cal ifornia (Cal. Code Civ. Pro ~751.04). The known parties affected are required to be named in the complaint (see proposed Section 09.46.080(4}) and they are all required to be personally served (see proposed Section 09.46.120) (22) The term "entire real property sought to be affected l' a110\-J$ the action to affect, simultaneously, all the lots of a subdivision or other sizable area, thus enabling one action to produce results based upon a common disaster which has happened as to all the area suffering that disaster. As to al~ the operative facts and the applicable rules of law are the same. One action (instead of scores or hundreds) can attain justice with a minimum of court time and a minimum of legal expense by individuals. ----------------------- Page 279----------------------- -~- (23) This provision will put before the court the exact areas as to which ( it is hoped to obtain a confirmation of public rights of way. It could probably be satisfied by a map (as for example-of the L. Street slide area) ~hOl"ing the streets. and c111cys as they survived the earthslide. The City would \Ji~~h (I lhi,~k) n'lI (0 .:}.:dm "'-~.·ltl.d p\,~;~.,-:~::.i~·,~;Ti of lhe 1."lnJ ir~cluJtJ In- th~ 1,,,I.li. \lC~i·~ .. r II,., !,I .. t ~'== \1",',' Cl·•• io.«nd IH~~·OI""_ I lin (";~rlho.lido. Ihll~ tl\n city \'/"111 d be: adm i II i flg the ex ten l to wh 1(.11 i ts bounu.]r i cs had been altered by the Act of God. This puts the City on the same basis as it claims private o\>wners also are. (24) Compliance \vith the requirements of Section 09.46.080(4) \>Ji11 require title searches on each lot, plus a physical inspection, to make sure that there is no "possession" which gives reasonable notice of unrecorded rights. If all persons thus di scovercd are gi ven due not; ce of the acti on I the c 1.a i m of "due process;' based on publication and posting, will be strengthened by the doctrine of representation, under which the joinder of available persons can base a jt.:dgment binding on others. As to the "doctrine of representation,1I sec Restate~ent of the Law of Property, ~~ 180-186, and Powell on Real Property paras. 294-296. (25) The Alaskan statutes have soecific prOV1Slons for the "vacation of plats or streets." (Sections 40.15.140 - 40.15.180). The proposed statute calls for a substitute procedure. This clause is the first step in this substituted procedure, which is dealt with in proposed Section 09.46.160 and requires cow·t approval and "equitable allocation to contiguous lots il (proposed Section 09.46.190). It does not seem likely to me, that this substituted ( emergency procedur~ is likely to incu:· anyone's opposition. (26) This statement of the relief demanded should certainly be patterned on the provisions of proposed Section 09.46.180; and perhaps should also cOht~in the qualific~xion implicit in the last paragraph of proposed Section 09.46.140. (27) The first sentence of proposed Section 09.46.090 conforms to Alaskan Rule 4(a). (28) The second sentence of proposed Section 09.46.140 is adapted from Alaskan Rule 4{a), so as to make it fit the peculiarities of an action affecting many parcels of land. (29) The third sentence of proposed Section 09.46.140 is an amalgamation of Alaskan Rule 4(b) and California Code of Civil Procedure §751.05. (30) The phrase "or any part thereof" takes on special meaning because of the many parcels simultaneously affected by the action. (31) - (36) The form of the Summons differs from that in other actions (a) in the manner of describing the defendants; (b) in the allowance of three months after the first publication for answer; (c) in requiring a description of the "entire real property.1I Otherwise it conforms (I believe) \'/ith the existing Alaskan practice. In the first~o of the three above described deviations, it follows the format used under the California McEnerney Act which has passed the test of IIdue process. 1I ( ----------------------- Page 280----------------------- -6- (37) and (38) The first two sentences of proposed Section 09.46. 100 conform to Alaskan Rule 4(E}(3). (39) The third sentence of proposed Section 09.46.100, assumes that the new type of action necessarily requires a publication and hence dispenses with the procedures presciibed ~'Jith respect to a type of action in which publication is only sometimes necessary. (40) The me'11oranaum required by the last sentence in proposed Section 09.46. 100 to be appended to the summons, serves to give notice as to the beginning of the three months period allowed for answer. (41) The requirement of IIreasonably diligent inquiry" is essential to "due process. Ii This requir~~ent would be met (I believe) by the securing of a title search as to each lot plus the physical inspection of each lot followed by such further inquiry as to unrecorded interests as such inspection showed to be necessary. (42) This me~orandum required by the fir5t sentence of proposed Section 09.46 .. 110 serves as a partial amplification of i:he Surrrnons designation of the defendants as "All persons etc. 1I and also provides a list of those to be served in accordance with the provisions of proposed Section 09.46.120. The unique feature of the McEnerney Act in California and of this proposed statute is its Ilio rem't character, permitting the judgment to become binding on persons other than those listed, if the requirements of the statute are carefully observed. (~ (43) The stipulated period of posting (",ithin fifteen days) can be altered slightly but I think it should not be less than ten or more than thirty. The fact of such posting was stress~d in the due process cases on the McEnerney Act of Californfa. (44) - (46) The first of these provls1ons can easily ca1l for over a thousand copies of the surrrnons, complaint and memorandum in a case involving only the L Street slide of Anchorage. These provisions conform largely, but not completely, with existing Alaskan Rule 4. (47) - (48) In so far as a known address is available this paragraph largely resembles existing Alaskan Rule 4. The last clause is modelled on California Code of Civil Procedure ~751.10 (part of the McEnerney Act) which authorizes mailing lito the county seat of the county in "'Jhi eli the acti on is brought .Ii I thi nk I was told, while I was in Anchorage, that in Alaska, the "boroughll is the entity corresponding to the County of California. (49) - (50) As to Alaskan residents who can't be located, this last paragraph of proposed Section 09.46.120, provides a mode of service by mail which is model1ed on California Code of Civil Procedure S751.10. I have provided for such mailing within ten days after the date of the last publication of the sUlTrnons. If it is thought that convenience requires more than ten days for this operation, it can be lengthened but certainly not beyond thirty days. The publication period is roughly one month; the time for answer is three months. Hence all services by ~J mail ought to be complete a month (or more) before the ending of the time to answer. ----------------------- Page 281----------------------- -7- ( (51) This Section'. 09.46.130 is an exact copy of the provls1on in California Code of Civil Procedure, §751.11. It is the crux of the in rem character of the action. (52) The three months time for answer is more liberal than the existing Alaskan rule on publication. This liberality is justified (in my judgment) by the un; que bi ndi ng po\>.:er of the judgrrrl.:!nt sought. (53) This thirty day permissible extension of the time to answer is modelled on California Code of Civil Procedure, §751.12. Some such period is helpful to rebut a claim of arbitrariness, but the period needs to be kept short. , (54) and (55) These provisions will prevent this action from being pro- "'~~"',tracted greatly in duration and increased greatly in complexity. If any named ,I"[->\:.-,/par-ty-sould bring into litigation all of his pre-earthquake quarrels, there ~// would be"~o predictable time for the action's completion. Also some: of the issues so i1Fpccted might requi~e a jury trial, thus complicating the court's task. By confining a defendant's answer to (a) the presentation of the particulars in which he claims something "different from l1 or I'greater than ll the interest of such claimant as it is described in the complaint; and (b) to claims based on the earthslide itself, or events occurring since the earth- slide, the focus of the action is kept within a managable narrowness. (56) - (58) The restrictions on permissible answers, discussed above in ( (54) and (55), make it necessary to save to any litigrant any other claims he may have; but this saving needs to be protected from using these other claims as a mean3 for upsetting the finalities as to boundaries of specific parcels, accomplished by this action. (59') Proposed Section 09.46.150 incorporates the existing Alaskan provls10ns of Sections 09.45.790. It seems unnecessary to set out in full the provisions ?lready adequately covered in the existing statute. See also Cal. C. eiv. Pro. 5751.13. (60) Proposed Section 09.46.160 allows the vacating of public streets in whole or in part by (a) the offer of the municipality expressed in the complaint; pius (b) the judicial approval of the allocation of the released lands to OlrJners of "contiguous lands ll (see proposed Section 09.46.190), without other formalities, and specifically without conforming to the provisions of existing Sections 40.15.140 - 40.15.180 inclusive. It would appear that "o~/neos of contiguous lands ll would be as fully protected by these emergency provisions as by those normally usable. A legislative approval of the substitute procedure will be highly useful in discouraging IIhold- up ll litigations. (61) The exclusion of a judgment by default is modelled on California Code of Civil Pro. ~ 751.14. I believe this is an important factor in the allowance of an in rem binding force of the judgment finally obtained. It gives to that judgment the weight of a judicial consideration of the issues involved. ----------------------- Page 282----------------------- o -v- ( (62) - (63) The language of this proposed Section deserves careful thought by the Ci ty Attorney of Anchorage. I have phrased it ina manner \'Jh i ch seems to me to be adequate; but one more conversant with local factors may easily see particul~rs which needmodifi-cation or amp~ification-. For exampie, the opinion of the Attorney General of Alaska #6, dated September 14, 1964 takes a position, which I believe to be sound, as to the o'vmership of land submerged by the earths1ide. Imp1ernenting his position, it is necessary to settle where the bound~ries now are of the privately owned properties, which have been subme~ged. It might be useful to include in proposed Section ·09.~'>6.180, a subdivision \'Jhich ldould give to thls opinion of the Attorney General the additional weight of a judicial acceptance. When Anchorage deals 't/ith the Tournagin ae-ea this ~';ould be very important. In the map which I have, showing the overlay of the present shoreline on the former plat of lots the owners of these lots need a decision as to the effects in moving their boundaries caused by the earthslide. This will define the areas as to which avulsion has extended private ownership onto land now submerged. This is in no way in conflict with the theory of the proposed action. Accretion and avulsion have never been applied to cases except those involving water boundaries. They are both irrelevant to changes of boundaries by landslide. This may make it useful in defining the scope of the judgment to permit the boundaries, as established by it, to be consistent with continued private ownership of lands under \l/a ter. (64) - (66) Proposed Section 09.46.190 embodies the basic theory of the action. If this theory is ~ot accepted, I can see no possible solution which will not disrupt any urban community. If it were argued that boundaries between city lots now exist at the places where, by solar survey, they were located before March 27, 1964, each city lot in th~ slide areas would be several feet distant from all existing fence or curb line~ plus an additional removal from the expected location due to the large land mass slide which occurred from Anchorage to Glenallen. Any such dislocation would be intolerable by private and public owners alike. The utilization of street areas released in whole or in part to mitigate the hardships of persons, whose ownerships have decreased in square footage is an emergency act of grace participated in by both the reieasing cities and the courts in an exercise of its equity powers. (It will be useful to compile an exact list of (a) lots not decreased in square footage under the proposed replatting; and (b) lots which are- decreased, with a statenent, as to each, of the amount of decrease). (67) See Comment (18) supr8. (68) - (69) The provisions of proposed Section 09.46.210, both as to place of recording and as to the person paying the costs of recording need to be checked {and possibly modified} by the City Attorney. See Cal. Code Civ. Pro. ~751.16. (70) Proposed Section 09.~~.220 is modelled on California Code of Civil Procedure §751. 17. It stresses the general conformity of the proposed action to those heretofore familiar to the bench and bar of Alaska. ( ----------------------- Page 283----------------------- ... . -9- (71) Under the McEne~ne~ Act ~ separate action had to be maintained for each parcel of land. Hence' a separate lIindcx and registerl.l of these actions was necessary (C~l. Code Civ. Pro. ~751.19). There is no such need in the proposed procedure. Similarly ~751.20 as to the joinder of all parties of this action in any subsequent action; and s751.2Y authorizing an executor, admin- istrator, guardian or other fid~ciary to be either plaintiff or defendant are either inappropriate or cared for by general provisions of Alaskan law. (72) Proposed Section 09.46.230 is modelled on California Code of Civil Procedure 5751.22. It is believed to be a useful clarification of the relation between the proposed type of action and the existing quiet title action. (73) There is no need, in this s~atute, to include such provisions as are found in California Code or Civii Procedure 55751.23 - 751.28, establishing a procedure by which persons could be cc~tain to be made parties in any subsequently brought action under the McEnerney Act. Parties shown to have interests by the record~ or by on-the-ground-inspection are required in the proposed statute to be joined. Anyone not thus covered is permitted to request his joinder, if he has matters which he believes deserve consideration. (74) Proposed Section 09.46.240 is modelled on a severability clause which I drevl in 1964 for inClusion in a New York State generai revision of the law on Powers of Appointment sponsored by the Ne~J York Temporary Commission on Estates. It was adopted by the leg; sl ature of Ne'.'J York as Real Property La\'J $168, by Ne\'I York Laws of 1965, chapter 684. Such a clause is an important ingredient in any ( statute designed to make changes or additions to existing law. (75) Proposed Section 09.46.250 requires such changes as may be injected by the proposed statute being labelled an Uemergencylt bit of legislation. ----------------------- Page 284----------------------- JUDICIARY COMMITTEE MINUTES MARCH 26, ~966 ( Chairman Guess called the meeting to order at ~O a.m. All members were present. Mr. Andrew Stancioff of Ocean Mining, a subsidiary of Ocean Science and Engineering, Inc. asked to be heard on SB 262. Mr. Stancioff spoke against the proposition that existing permittees should be allowed to extend their permits for 6 or 8 years as would be the case under SB 262. Mr. Charles Herbert, Deputy Commissioner of the Department of Natural Resources was present to answer questions. It was noted that Mr. Herbert's letter to the Resources Committee on SB 262 is on page 691 of the House Journal. The bill is not in the committee so no action was taken. Meeting was adjourned. ( ----------------------- Page 285----------------------- JUDICIARY COMMITTEE MINUTES MARCH 28" 1966 Chairman Guess called the meeting to order at 10 a.m. Present were members Stevens, Metcalf" Taylor, Josephson and Hillstrand. Mr. Mike Holmes, Deputy Attorney General, appeared at the request of the committee to answer questions on HB 368 and 369. No action was taken on the bills. Mr. Kent Edwards of the Legislative Council staff and Commissioner Holdsworth of the Department of Natural Resources appeared with draft copies of committee substi- tutes for HB 384 and 386 which were prepared at the request of the committee. No action was taken on the bills. Meeting was adjourned. { ----------------------- Page 286----------------------- WILLIAM A. EGAN, GOVERNOR ( DEP)JAR.T1\4ENT OF LAW OFFICE OF THE ATTORNEY GENERAL BOX 2770"':' JUNEAU 99807 March 21, 1966 The Honorable Gene Guess Chairman House Judiciary Committee Alasl<:a state Legislature Ju:n/;, ..~ Alaska Re: Highway Beautification Bills Dear Mr. Guess: As a result of the hearings on House Bills 368 and 369 before the House Judiciary Committee on March 12, 1966, we have re-examined the existing State la\\] to attempt to determine whether Al'aska nov.] has sufficient statutory authority to do the things necessary to comply with Federal Highway Beautification ( Act of 1965 (PL 89-285). Enclosed with this letter are the com- ments of Mr. Bruce Campbell, Special Assistant to the Commissioner . of Highways., Vie agree with Mr. Campbell's conclusions and \'Jould like to make some additional statements on the legal implications of the existing statutes and their relationship to PL 89-285. At the outset we would like to point out that we share the Committee1s concern about radically changing the existing State law regulating outdoor advertising and junkyards. Until now no insoluble problems have arisen under the existing State statutes. However, we sincerely feel that PL 89-285 has placed some fairly stringent requirements on the State that simply can- not be met under the existing law. We are\particularly concerned about this because the Department of Highways and the Depar.tment of LavJ will be responsible for seeing that the Federal require- ments are met and if we cannot achieve compliance with the Federal statute and ~egulations, the State will be liable for an enormous monetary penalty in that as much as 20 percent of its total federal- aid for highway construction may be withheld by the United States . Bureau of Public Roads. vIe are convinced, from our meetings 'VJith BPR officials in vlashington, D. C." that the Federal Government means to obtain compliance "lith PL 89~285 and that the penalty ~ill be invoked against those states that do not'provide for effec- tive control over outdoor advert1s1ngand junkyards within the. meaning of PL 89-285. l ••!". , ----------------------- Page 287----------------------- The Honorable Gene Guess March 21, 1966 Juneau, Alaska -2- JUNF:-:--."RDS. Under PL 89-285 each s-ca-ce must have made prov:Lsion for :.,':,3ctive control of the establishment and mainte- nance along certain £ederal*&1d h1g1~nys of outdoor junkyards vlhieh are 'vJithin one thousand feet of the nearest edge of' the right of way and visible from the main traveled way. Effective control means that. the junkyards must be either screened so that they are not visible from the highway or completely removed from sight .. The existing Alaska junkyard statute basically regulates the ~f")cation of junkyards and requires that a person using or prop;,,,; irlg to use a location for a junkyard must obtain a c rtifi- cate of approval for the location. He are in complete agreement with Mr. CampbellJs observations about the problems presented by the fact that most certificates issued under AS 08.60 would be 'issued by cities and boroughs except to note that those permits issued for locations outside the cities and boroughs are issued by the Commissioner of Public Safety rather than by the Commissioner of Health and \velfare. ( , The paramount reason that.AS 08.60 does not give the State the "effective control" required by PL 89-285 is that it contains absolutely no provision for the city,' borough or Commissioner of Public Safety to revoke a certificate once it is issued. Authority to revoke a license may not be implied. See 33 Am.Jur., Licenses, § 66. And, even if such authority could be implied, there is no way that the owner can be paid just com- pensation by the city, borough, or Department of Public Safety for the taking or damaging of his junkyard. If a borough, for example, has issued a certificate of location to a particular junkyard O1-vner and a federal-aid primary highway is placed. so that the'junkyard is within one thousand feet of the nearest edge of the right of way, the junkyard rnust, under PL 89-285, be either moved or screened. If, under Federal reg~lations, it is necessary that it be moved, the borough could not simply revoke the certifi- cate of location. First of all, it has no authority to revoke the certificate. Second, to do so V'lould deny the.·certificate holder ". due process of law and damage his property. without just compensa- tion in violation of'tl1e Alaska state Constitution. . \ How then could the Statee.ffect the rem'oval of the junk- yard? ~Not by condemnation certainly, because under state law the Department of Highways can only acquire by condemnation property reasonably necessary to construct and maintain highways. ( ~.. ' ----------------------- Page 288----------------------- The Honorable Gene Guess March 21, 1966 Juneau, Alaska -3- Acquisition of junli:;hr;'::,'"'1 out.door adverti~3:Lng. See VJoJ.v{~:'Jnc\ ;:;lgn \'lorks v. Bloomfield Hi 11s " 2 '71 N. vI. 823 (rvIi ch • 192?r:-"---~~-----~------"""~ -\~.'" ",. " '. , See also numerous cases collected in 58 A.L.R.2d 1318, et seq. In our opinion AS 19.25.090 VJould be held uncons titu- tional if challenged in a court action. This would not, in our opinion, excuse the State from compliance with PL 89-285. In 1r orc , to make the existing Alaska s-tatutes regulating outejJor a(~v\.n>cising constitutionally valid and also to make them provide the Department of Highways with the means to provide lIeffective controlll within the meaning of PL 89-:-285, substantial revisions are required. We felt 'that a complete revision of the statutes _- relating to outdoor advertising would be the most appropriate means to tailor the Alaska statutes to the detailed requirements of the Highway Beautification Act' of 1965. However, we certainly realize that HB # 369 is not the only approach. It would be pos- sible, by substantial amendment to AS 19.25, to comply, \'Jith \ ( PL 89-285. However, based on our considerable study of the matter ~ve believe that the approach taken in HB ~? 369 is the most appro- priate one in that it assures compliance with PL 89-285 and will provide maximum federal reimbursement of just compensation paid to owners of outdoor advertising that must ultimately be taken by the State. The urgency for enactment-of a bill to provide for "effective controltl of outdoor advertising within 'the meaning of PL 89-285 is the same as in the case of junkyards. Signs erected after October 22, 1965 (the effective date of PL 89-285), will be lawfully erected and when the State has them removed it will have to pay just compensation for them but there will be no federal reimbursement. Therefore, it is imperative th~t, as soon as pos- s,ible, it is made unla\'1ful to install these signs within 660 feet of the right- of way of federal primary highways. If we can provide any further information on this sub- ject,- please let us know. Yours very truly, \'IARREN C. COLVER ATTORNEY GENERAL (- By . h r~J..C ael M. Holmes' . Deputy Attorney General r.'IMH/grg cc: Governor Egan Bruce Campbell ,A~'V"Ic>' !\c.Vl ----------------------- Page 291----------------------- UM-4.l4 • (Rev. 1/64) MEMORANDUM State of Alaska ( TO: ~lichael M. Holmes DATE: March 16, 1966 Deputy Attorney General Department of Law FILE NO: 01-1041 SUBJECT: Junkyards and Outdoor Advertising FROM: B. A. Campbell Special Assistant to the Commissioner for Engineering Depa.rtment of Highways I have reviewed proposed I-louse Bills 368 and 369 concerning the control of junkyards and the control of outdoor advertising. I have also revie\'Ied Public Law 89-825, specifically Title I and II, which require certain control of outdoor advertising and junkyards in order to qualify for complete Federal-aid apportionment. In addition to this, I have reviewed Title 19, specifically section 25, which pertains to the control of outdoor advertising, and Title 8, specifically section 60, which concerns itself with the regulation of junkyards. During the hearing held on SaturdaYJ March l2 J with the House.Judic- iary Committee it was the feeling of the committee that existing junkyard rep,ulations contained in Title 8 were sufficient to comply ( with Title II of Public La,.., 89-825 and that outdoor advertising statutes as contained in Title 19 would be sufficient to comply with Title I of Public Law 89-825 with certain amendments. I do not con- cur completely with the House Judiciary Committee concerning this matter. The following are points that I believe should be clarified in the existing legislation so that it will allow the Department o£ Highways the necessary tools to comply with Title I and Title II of Public Law 89-825. Referring first to junkyard regulations, I find the following: (1) Title II of Public Law 89-825 requires regulation of garbage dumps and sanitary fills as well as junkyards. Title 8 of the existing law does not include garbage dumps and sanitary fills. Amendment would be necessary to include garbage dumps and sanitary fills under Title 8. (2) Under 8.60.060 a person either using or proposing to use a loca- tion for a commercial or public junkyard must obtain a certificate of approval for the location. It specifically states that if the loca- tion is in a city, the certificate shall be procured from the city councilor its designee. If the location is outside the city but within an organized borough, the certificate shall be procured from the assembly of the organized borough or its designee. If the loca- tion is outside an incorporated city or borough, the certificate of location shall be obtained from the Commissioner of Health and Welfare. This means that State regulations made by the Commissioner of Health l and Welfare can only be enforced in those areas ·outside cities and organized boroughs. ®s ----------------------- Page 292----------------------- DH-4J4 ,(Rev. 1/64) MEMORANDUM State of Alaska ( TO: Holmes DATE: March 16, 1966 FILE NO: 01-1041 SUBJECT: SHEET NO. 2 FROM: Campbell In order for compliance with Title II of Public Law 89-825, which requires effective control of the establishment and maintenance along the interstate system and the primary system of outdoor junkyards which are within 1,000 feet of the nearest edge of right of way and visible from the main traveled way of the system, it would be necessary for each city, each organized borough, and the Commissioner of Health and Welfare to adopt regulations meeting the minimum requirements of Title II of Public Law 89-825. It would be very difficult, if not impossible, for the State to ex- ert the necessary influence to require each city and each organized borough to adopt such regulations. In addition, the Federal-aid primary system in Alaska traverses nearly every city and nearly every organized borough in Alaska. This would mean that in order to impose effective control as we envision it as required under Public Law 89-825, the action of innumerable city councils and borough assemblies would be required. We feel this would be very difficult and time-consuming to accomplish. It would also require the considerable expenditure of State funds in liaison between the Department of Highways, Department of Health and Welfare, Depart~ ment of Public Safety, and all the cities and boroughs in which' these necessary regulations must be adopted. . It would appear to be much simplier to simply pass a bill, essentially in conformance with HB 368, to regulate junkyards adjacent to the Federal-aid primary system throughout Alaska. This would in no way prevent either the cities or the boroughs from .issuing regulations more restrictive, but it would centralize and provide by statute the minimum requirements as needed to conform with Public Law 89-825 and would eliminate the need for 30 or 40 separate legislative groups comprising city councils and borough assemblies in passing regulations to conform with the Federal Act. We also must remember that many of these governing bodies may not desire to pass regulations in conformance \iith the Federal Act since they are not directly concerned with the apportionment or expenditure of Federal-aid highway funds. Their interests are more oriented towards the local level. I think it would be safe to say that getting all concerned city councils and borough assemblies to adopt regula- tions that would conform to Public Law 89-825 would be a monumental task. (3) We must remember that the purpose of Title II of Public Law , c. 89-825 and liB 368 is to protect the public investment in highways, to promote safety and recreational value of public travel, and to ----------------------- Page 293----------------------- DH-434 -,(Rev. 1/64) MEMORANDUM State of Alaska ( TO: Holmes DATE: March 16, 1966 FILE NO: 01-1041 SUBJECT: SHEET NO. 3 FROM: Campbell preserve natural beauty. In issuing certificates for junkyards local governments (city councils or organized borough assemblies) may require only that junkyards be screened. This may be done by any number of methods, the most inexpensive of which is usually a board fence. I can think of one shining example be- tween Eagle River and Chugiak on the Glenn Highway just north- east of Anchorage where a junkyard is being used on the south side of the highway and a board fence has been erected around it. This board screen is constructed of lumber of various ages, sizes, and descriptions, and erected in a variety of methods. From my own observation, I am not sure in my O\'ln mind which would mar the landscape more, the junkyard or the fence erected to screen it. Certainly neither would, in my estimation, "pro- mote the safety and recreational value of public travel or pre- serve the natural beauty." By having a State law such as HB 368, uniform regulations could be adopted providing for minimum screen- ing requirements of all junkyards within 1,000 feet of the highway right of way on the Federal-aid primary system. I believe this would be much more desirable than having a variety of varying regulations promulgated by the various cities and boroughs. The tourist 'and highway traveler, in most instances, does not realize or care when he traverses across a city limit or organized borough boundary. He has a right to expect uniform highway con- struction, signing, and, I believe, beautification. I think it is important to consider here that the purpose of Public Law 89- 825 is to provide recreational value of public travel and to pre- serve the natural beauty. The main pur~ose is not to regulate junkyards per see (4) Of primary concern to this Department is the effective control of junkyards within the meaning of Title II of Public Law 89-825 with regard to existing junkyards which have been granted a certificate by either the city or the borough but are not in conformance with the requirements of Title II of Public Law 89-825. As an example, I cite the following hypothetical example: A year ago a person secured a certificate for the development of a junkyard approximately 800 feet off a section of the Federal-aid primary system in Alaska. As a condition of this certificate, certain restrictions have been incorporated by the issuing agency_ The junkyard owner has complied with these conditions. In addition, he has spent $10,000 having his site cleared and another $10,000 having it graded. Also, he has spent $5,000 having an access road I constructed to it. Thus, based on the issuance of a certificate, ----------------------- Page 294----------------------- DH-434 c (Rev. 1/64) . MEMOR.ANDUM State of Alaska ( TO: Holmes DATE: March 16, 1966 FILE NO: 01-1041 SUBJECT: SHEET NO. 4 FROM: Campbell the junkyard owner has invested $25,000 for the development of a junkyard which complies with all the conditions of his certificate. Since he is wi thin 800 feet of the right of ''Jay he now is in non- compliance with Title II of Public Law 89-825. What recourse is open to the Department of Highways to comply with the requirements of Title II? As I see it under existing statutes, we must go to the city or borough which issued the certificate and request that they amend or withdraw it. If they amend the certificate and re- quire the owner to screen his junkyard, a. condition which was not required in the original certificate, I believe this is unfair treatment of the junkyard owner since he has made his investment based upon certain conditions included in the original certificate in good faith. If the certificate is withdrawn and the junkyard owner required to move, again I feel this is unfair treatment since, again, the junkyard owner has acted in good faith and invested $25,000 as a result of the certificate being issued to him. It is my opinion that if conditions must be changed through no fault of his own after ( he has acted in good faith he should: 1) Either be grandfathered, which means he can remain under the terms of his origina.l permit until such time as he would normally go out of business, or 2) Be compensated for the additional costs he must incur to confox:m with the new regulations. If he is grand fathered under the new regulation or certificate, he will not be in compliance .with Title II. Hence, it appears that the only alternative is to require him to move or screen his junkyard. It is my feeling that HB 368, which provides for compensation for the· moving or screening of those junkyards which were legal at the time of the passage. of this Bill, is fair and equitable. In addition, I feel that it is desirable to allow Federal funds to participate in 75% of the cost. Situations similar to this could occur in future years under the following conditions: Ca) A section of the Federal-aid highway system which is presently designated as Secondary could be redesignated as Primary, thus re- quiring junkyards adjacent to conform with Title II. Certificated junkyard owners along this highway would find themselves in a pre- dicament, as indicated above, \'lhere they now must either move or screen their junkyards to comply with Title II. For this I believe they should be paid just compensation as outlined in HB 368, since they were legal and certificated at the time the system designation I was changed through no fault of their own. ----------------------- Page 295----------------------- DH-434 f,(Rev.I/64) ~ ME ORANDUM State of Alaska TO: Holmes DATE: March 16, 1966 FILE NO: 01-1041 SUBJECT: SHEET NO. S FROM: Campbell (b) A new hight'lay location may be determined by the Department of Highways and may pass within 1,000 feet of a certificated junkyard. Again, the junkyard owner comes under the requirements of Title II for 'regulation through no fault of his own and I believe, again, should be paid just compensation as provided in HB 368 since he must incur additional expense to either move or be screened. Actually, under Ca) and Cb) above I do not see that under the existing Title 8 statute that the Department of Highways has any legal authority to force junkyard owners to comply with the re- quirements of Title II. Our only recourse is to go to the cer- tifying authority, either the city or the borough, and request that they reregulate the junkyard in question to comply with Title II. Under the present act the junkyard owner must accom- plish this if the borough or city so designates, at his own expense. Title I, Public Law 89-825, requires effective control of outdoor ( advertising adjacent to the interstate and primary highway system. This act provides basically that outdoor advertising cannot be per- mitted within 660 feet of the highway right of way line except in industrial and commercial areas. In our meeting before the Judic- iary Committee on Saturday, tvlarch 12, it was the feeling of the committee that existing statutes, with some amendments, contained . in 19.25.080 through 19.25.130 of Alaska Statutes were sufficient to control the outdoor advertising within the requirements of Title I, Public Law 89-825. I have some questions which remain unanswered concerning this matter. First of all, I note under the purpose of the outdoor advertising statutes it is explained it is the purpose of this act to protect the public safety and the welfare of persons using the highways of the State by having the outdoor advertising along the highways re- moved, thereby eliminating a source of distraction to vehicle operators and persons on the highway. I assume then that section 19.25.090 which follows and prohibits all outdoor advertising must apply only to that advertising adjacent to or visible from the high- way. I grant that generally this act is sufficient to control sign- ing along the highway, but I feel that it goes too far. As an example, most modern gas stations have a large sign on the premises near the front of their station which indicates the type of oil products they handle. I think we are all familiar with the round sign that carries the word "Texaco", the shield shaped sign that carries the \'lord "Shell", and the other signs that carry the ,~ords "Chevron" and "Union". These, generally. are located in such a manner as to present a minimum of ----------------------- Page 296----------------------- DH-434 (Rev. 1/64) MEMORANDUM State of Alaska ( TO: Holmes DATE: March 16, 1966 FILE NO: 01-1041 SUBJECT: SHEET NO. 6 FROM: Campbell distraction to the driving public. Under section 19.25.090, I believe, these signs would have to be removed. I am not sure whether this is good or not. Without these signs it would be impossible, or next to impossible, for a driver to tell the type of gas that was sold at any service station without driving in and asking. Since this is the age of the credit card, it is very important to most people to know the type of ga.s that they are about to purchase. I think that these sign have a purpose useful to the traveling public and when regulated by proper regulations do not constitute a source of distraction to the vehicle operator, as outlined in section 19.25.080. I believe that the proposed legislation in bill 369 is desirable in that certain on-premise advertising, when !1rol!erly regulated, can be allowed. I would say that it was an awfully fine line that distinguishes between the informational sign and the advertising sign in many instances. In addition, I feel that it would be nec- ( essary for us, in the uniform application of the existing law, to remove much advertising on buildings in urban areas adjacent to the Federal-aid primary system. In Anchorage, for instance, the Federal- aid primary system traverses the full length of Fifth Avenue. There are many advertising signs on buildings and on top of buildings along this route that I think should come down if we are going to force rural gas station operators to remove gas identification signs. Therefore, I believe that the permission of some advertising on premises and in some commercial and industrial areas, as provided in HB 369, is desirable. Section 19.25.100 provides for the erection of certain rural signs in an Alaskan motif to identify road hOllses and other places of business on the rural highway system. This Department has recently negotiated with the Bureau of Public Roads and received approval of such signs. We are unique among the 50 states since only Alaska has the many miles of completely rural highl-Jay system which require this type of signing. The Bureau of Public Roads is allowing us to use signs similar to the sign presently installed on the Interstate System in other states to identify the services of gas, food, and lodging. We can use only these three words and cannot identify the type of gas, lodging, or other in- formation that might be desirable. Under Section 19.25.100 it is pro- vided that each owner or manager of the rural establishment shall in- stall the sign at his own expense. This Department would prefer that this be changed to allow the Department to install the signs without cost to the owner or manager after a suitable application had been , ----------------------- Page 297----------------------- DH-434 ( (Rev. 1/64) MEMORANDUM State of Alaska ( TO: Holmes DATE: March 16, 1966 FILE NO: 01-1041 SUBJECT: SHEET NO.7 FROM: Campbell made and approval had been given for such a sign. Since these signs, in most instances, must be within the right of way, it is our feeling that it is much more desirable to have the Department erect and maintain these signs. In order to insure uniformity and compliance with the Uniform ~lanual' on Traffic Control Devices, it is essential that all these signs be manufactured either by the Department or under its jurisdiction. It also follows that we must maintain the signs since they are within the right of way. In keeping with the scenic beauty of our highway system we feel that all highway signs should be kept in good state of repair. Nothing \-\lQuld be \'lorse, we feel, than run-down, faded, bullet-rirlden signs. If we leave it to the owner of the establishment to maintain the sign, I am certain that in many instances poor maintenance will occur. Therefore, we feel it is very desirable to change section 19.25.100 to allow the Department to install and maintain the signs since we believe this will be in the best interest of the motoring public. Any regulation, we feel, must have a penalty for the erection of the ( sign. If, as proposed under HE 369, a 3D-day grace period is allowed the sign owner, he can erect a sign, leave it in position 30 days until after he is notified, take it down and move it someplace else within a few feet for another 30 days. I think this loop-hole in HB 369 should be plugged by making it a misdemeanor to erect the sign initially. BAC/mth , ----------------------- Page 298----------------------- JUDICIARY COMMITTEE MINUTES MARCH 29, 1966 Chairman Guess called the meeting to order at 9 p.m. Present were members Metcalf, Taylor and stevens. The committee considered HB 505. It was moved and seconded that HB 505 flDo Pass". Motion carried. Meeting adjourned. ( ( ----------------------- Page 299----------------------- JUDICIARY COMMITTEE MINUTES APRIL 1, 1966 ( Chairman Guess called the meeting to order at 9 a.m. All members were present. The committee considered SB 282. It was moved and seconded that SB 282 liDo Not Passu. Motion carried. The committee discussed CSHB 295 and the committee recommended it flDo Pass" by unanimous consent with the following amend- ments: On page 1 - line 14: insert after flof" the words tlor passenger on" Line 15: insert after "operatett the words Hor ride" Line 22: delete all matter after the word "passenger" Line 23: delete the whole line and insert - Hand the operator has effective liability coverage for the protection of the passenger against bodily injury in the sum of not less than $10,000 when the operator is riding on a public highway." ( The committee next considered HB 447. The bill was reported out liDo Passu by unanimous consent. Meeting adjourned.