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HomeMy WebLinkAbout2009-03-10 Council Packet - Work SessionREMINDER: COUNCIL WORK SESSION 1 UESLJM Y, ! innCH 10, 2009 6:00 P.M., COUNCIL CHAMBERS REVIEW OF CITY ATTORNEY APPLICATIONS *A LIGHT DINNER WILL BE PROVIDED. CITY ATTORNEY APPLICANTS Name Timely Cover letter Resume Writing References References 5-yr experience Trial experience Appellant experience Alaska licensed/ reciprocity Eric Auten X X X X X X N X X Stephen Bradford X X X X X X X X X Janelle Combs N X X X X X X X X Daniel Doyle X X X X X X X X X David Greenstein X X X X X l X X X Steve Jones X X X X X X X X Eric Jorstad X X X X X X X X X Anne Marshall X X x X X X X X X Matthew Myer X X X X X N X N X Mark Osterman X X X X X X X X X Jessica Perkins X X X X X X N X X Gary Poorman X X X X X X X X X Ronald Ringel X X X X X X X X X Scott Schillinger X x x x X N x* x x * Mr. Schillinner indicated his trial experience was one traffic trial CITY OF KENAI LEGAL DEPARTMENT JOB DESCRIPTION — CITY ATTORNEY Position: City Attorney Service Type: Supervisory and Professional— Exempt Definition: This is professional legal and administrative work of a highly responsible nature in directing the legal activities of the City. The City Attorney is the principal executive officer of the Legal Department, serves as the chief legal advisor to the City, and is responsible for providing legal services for the Council, City Manager, all departments and officials of the City. Responsibilities include planning, staffing and supervising a department for meeting the legal service needs of the City. Work is performed with technical independence subject to compliance with the law and review by the courts. Minimum Qualification: Admission to practice law in the State of Alaska. Desirable Qualifications: 1. Considerable experience in the practice of law, including trial litigation and appellate experience in Alaska. 2. Several years of experience in the general practice of law in the State of Alaska with some experience in the fields of Alaska municipal law and real estate law. 3. A thorough knowledge methods of legal research and legal reference. 4. Knowledge of federal, state and municipal law, as well as civil and criminal law, including the constitutional and statute law pertaining to Alaska municipal government law. 5. Knowledge of legal requirements relating to the authority and functions of City departments. 6. Knowledge of judicial procedures, rules of evidence, and court practice in the state and federal courts in Alaska. 7. Knowledge and skill in legal research, methodology and draftsmanship. 8. Knowledge of established precedents and sources of legal reference applicable to City legal activities. JOB DESCRIPTION — CITY ATTORNEY Page 1 of 3 Other Functions: Performs such other duties as may be required by the Council, City Manager and City departments. Physical Demands: While performing the duties of this job, the employee is frequently required to communicate orally and to use hands and fingers dexterously to operate office equipment; regularly required to sit; and occasionally required to stand, walk, and reach with hands and arms. Very occasionally required to transport up to 50 pounds. Specific vision abilities required include close vision and the ability to adjust focus. Reasonable accommodations may be made to enable individuals with disabilities to perform the essential functions. Working Environment Most duties are performed in an office setting. Some duties are performed in a courtroom or public meeting setting. Miscellaneous Information: Employment is based on qualifications free of personal and political considerations, with equal opportunity for all with no restrictions as to race, color, creed, religious affiliations, age or sex. The City does not discriminate against the qualified disabled in employment. JOB DESCRIPTION — CITY ATTORNEY Page 3 of 3 INDEX 1. Auten, Eric 2. Bradford, Stephen 3. Combs, Janelle [LATE SUBMISSION] 4. Doyle, Daniel 5. Greenstein, David 6. Jones, Steve 7. Jorstad, Eric 8. Marshall, Anne 9. Myer, Matthew 10. Osterman, Mark 11. Perkins, Jessica 12. Norman; Gary 13. Ringel, Ronald 14. Schillinger, Scott CITY OF KENAI Position Vacancy CITY Al IORNEY City Attorney — City of Kenai, Alaska. The City of Kenai, AIaslca, a home rule city (population approximately 7,000) seeks a City Attorney. The City has approximately 100 employees, and an operating budget of $18.3 million. The Legal Department consists of the City Attorney and a Legal Department Administrative Assistant. The City Attorney is hired and supervised by the Kenai City Council. The deadline for receipt of applications is February 1, 2009. Send a detailed resume that includes a history of education and work experience and identifies at least three professional employment references. Candidates also must submit a comprehensive professional writing sample and cover letter to Lee Salisbury, Legal Department Administrative Assistant, City of Kenai, 210 Fidalgo Avenue, Kenai, Alaska 99611 -7794. Resume and attached information w become public information. The starting salary will be dependent upon qualifications and includes an excellent benefits package. For more information about this position, call (907) 283 -8224. For more information about the City of Kenai, visit our home page at http.//www.ci.kenai.ak.us. Eric Auten 3744 Corps Cir. Anchorage, AK 99507 (614) 633 -6643 (cell) auteneric(a�yahoo.com Cary Graves, City Attorney Lee Salisbury, Administrative Assistant City of Kenai, Legal Department 210 FideIgo Ave. Kenai, AK 99611 -7794 Re: City Attorney Recruitment Dear Mr. Graves and Mr. Salisbury: 1/13/09 I am writing to express my interest in the City Attorney position open with the City of Kenai. I am a 1997 graduate of Brigham Young University, J. Reuben Clark Law School and for the majority of my legal career I have worked as an assistant borough attorney for the Kenai Peninsula Borough and as an associate attorney for Wohlforth, Johnson, Brecht, Cartledge & Brooking, P.C., in Anchorage. Since leaving the firm, I have been on an extended trip through the high Andes region of South America pursuing my interests in mountain climbing and cultural studies, and just recently returned to Alaska. I believe my substantial experience in municipal law working in both the public and private sectors, with particular emphasis on issues pertinent to communities in the Kenai Peninsula Borough, makes me an excellent candidate for this position. The law firm of Wohlforth, Johnson, Brecht, Cartledge & Brooking, is one of the oldest firms in Alaska, with a diverse and nationally recognized practice in the areas of public finance and municipal and state agency law. Clients include investment banks and underwriters, trust companies, securities issuers, corporations, non - profit corporations, rural Alaska communities, municipalities and state agencies. My practice with the firm focused primarily on public finance, municipal and real estate law. Recent public finance projects I worked closely on include the expansion of the Ted Stevens Anchorage International Airport and the Port of Anchorage; the issuance of revenue bonds for the refunding of debt incurred by the City of Anchorage's Municipal Light and Power; and various municipal capital improvement projects financed by tax - exempt bonds issued through the Alaska Municipal Bond Bank Authority. The firm frequently serves as contract counsel for the Department of Law and other agencies of the State of Alaska. For example, I worked closely as with senior members of the firm serving as contract counsel with the Department of Law's Oil, Gas and Mining Section in the appeals by the owners of the Trans Alaska Pipeline System of the State's property tax assessments of the pipeline system for the 2006 and 2007 tax years. The firm also serves as city attorney for various municipalities throughout the State, including the cities of Seward, Palmer, Houston and Akutan, among others. Notable matters I worked on in this role include litigation in U.S. District Court between the City of Seward and local environmental groups over alleged Clean Water Act violations by the City at its small boat harbor and related facilities, and another case against the City in state court over right -of -way and platting issues associated with the planned construction of a multi - governmental agency building in the core of the City's historical district. My work in the area of real estate included projects on behalf of both public and private clients. Examples of real estate matters I frequently handled for municipal clients include drafting and reviewing leases, licenses and permits for uses of city and borough -owned properties such as cell phone towers, helipads, material sites, as well as right -of -way agreements for utilities, pipelines and travel ways. Alaska Housing Finance Corporation is another major client for the firm, and I worked closely on numerous real estate closings for its bond - funded low income, senior /disabled, and other public housing projects reviewing, editing and drafting closing documents and performing research into legal issues that often arise from these transactions. Before joining this firm, I worked as an associate for Routh Crabtree, AFC, in Anchorage, a firm focusing primarily on the representation of financial institutions, title insurers, housing authorities and businesses in the areas of mortgage banking and real estate foreclosures. In this position I was responsible for handling all phases of numerous non - judicial and judicial foreclosure proceedings and representing the firm's mortgage lender clients in related matters such as bankruptcies and evictions. Prior to entering practice in the private sector, I worked as an assistant borough attorney for the Kenai Peninsula Borough in Soldotna for nearly five years, where I provided legal counsel to the borough assembly and administration, school board and administration, borough service area boards, and various borough committees, ad hoc work groups and task forces. Although the small size of the borough's legal department (four attorneys) often required all attorneys to share work on a full range of subject matters falling under the general area of municipal law, my practice focused primarily on municipal land use and zoning, public lands, natural resources and environmental law, property and sales taxes, special municipal districts, and constitutional law. As assistant counsel to the borough's planning department and area -wide road service area board and staff, I frequently assisted with drafting and reviewing contracts for sale or rental of borough land; hiring contractors to perform road maintenance or improvement, snow plowing and sanding, minor road repairs, grading, clearing rights -of -way, sign installation, and culvert clearing; constructing capital improvements; providing for general services such as equipment servicing, consulting and supplies; and managing borough facilities such as land fills and gravel pits. I also was frequently called to advise the board and staff members of the borough's 11 other special service areas that are responsible for providing services throughout the borough on wide - ranging areas such as fire protection and other emergency services, senior citizens' services, recreation, hospitals, and flood planning, mitigation and response. Among other matters, I worked extensively on research, reviewing and drafting of interjurisdictional agreements and memoranda of understanding to clarify respective functions and responsibilities of service areas and 2 city, state, federal and Alaska Native entities for matters such as planning, mitigation and response to natural disasters and other emergency situations. I was also primarily responsible for providing legal counsel to the borough's finance department on sales tax matters, including enforcement and collection by negotiation, and when necessary, litigation. In handling both taxation and land use matters, I frequently worked to resolve disputes between the borough and various Alaska Native entities such as Alaska Native Claims Settlement Act regional and village corporations, Indian Reorganization Act tribal governments and commercial entities, and allottees over issues such as sovereign immunity. Constitutional law was another major area of focus for my practice. Among other matters, I was called on numerous occasions to advise borough clients on due process and equal protection issues arising in student discipline and employee termination proceedings; sales and property tax disputes; and physical and regulatory takings disputes associated with road construction, maintenance and land use restrictions imposed by the borough. As a law student, I excelled in courses such as Water Law, Indian Law, Property Law, and Legal Research and Writing, earning a 4.0, 3.9, 3.5, and 3.7, respectively, in these classes. I also received various awards for my work in these areas, including the Dean's Award for earning the highest grade in Water Law; the 1996 Scholarly Writing Award for my third -year paper on Subsistence Rights of Alaska Natives; and a scholarship to attend an A.L.I. environmental law symposium in Washington, D.C. During law school I worked as an extern for the Environmental and Natural Resource Divisions of the Utah Attorney General's Office, where I drafted model legislation for Utah's environmental self -audit and pollution- credit trading legislation. I also worked as an extern for the State of Utah's Institutional and Trust Lands Administration, where, among other projects, I performed extensive legal research and writing on issues concerning the 1996 presidential declaration of the Escalante Grand Staircase National Monument under the Antiquities Act of 1906 and its possible effects on the State's many R.S. 2477 claims on State and federal lands in that area. And as a summer intern for the Department of Agriculture's Office of General Counsel in Juneau, I worked extensively on research and litigation preparation for Ketchikan Pulp Company's billion - dollar lawsuit against the U.S. Forest Service over an alleged breach of its long -term timber contract, as well as issues concerning the 1997 Tongass Land Use Management Plan. Thank you for your time and consideration. If you have any questions regarding my application or need any further information, the best way to contact me is by email at autenericyahoo.com. Sincerely, Eric Auten 3 Eric Auten P.O. Box 870178 Wasilla, AK 99687 Phone (614) 633 -6643 Email: auteneric(ayahoo.com Education • Juris Doctor, 1994 - 1997, Brigham Young University, J. Reuben Clark Law School, Provo, UT - Scholarly Writing Award for third -year paper on Alaska Native subsistence rights - Dean's Award for earning highest grade (4.0) in Water Law - Scholarship to attend A.L.I. environmental law symposium in Washington, D.C. • Bachelor of Arts in Anthropology, 1989 -1993, Colorado College, Colorado Springs, CO - Academic Venture Grant for study of indigenous populations in Potosi, Bolivia, 1992 - Co- captain of cycling team Professional Experience • Associate Attorney, March 2005 — September 2007, Wohlforth, Johnson, Brecht, Cartledge & Brooking, P.C., Anchorage, AK - Advised various Alaska municipal corporations on matters concerning municipal legislative bodies, real estate, contracts and procurement, and use, and compliance with Clean Water Act and other state and federal laws and regulations - Served as associate bond and legal counsel to Alaska State and municipal bond issuers, including Alaska Student Loan Corporation, University of Alaska, Alaska Municipal Bond Bank Authority, and Alaska Housing Finance Corporation - Performed legal research and provided counsel to bond issuers and underwriters on federal tax law and IRS regulations, procedures and rulings concerning preservation of tax - exempt status of state and local revenue and general obligation bonds - Represented major national underwriters in Alaska public finance transactions and provided legal advice on tax - exempt and taxable bond issues - Assisted in legal research and drafting pleadings for 2006 and 2007 property tax appeals for Trans Alaska Pipeline System - Assisted in preparing documents for closing AHFC multi - family and low- income loans - Prepared firm's responses to requests for proposals for legal services from municipal and state entities • Associate Attorney, June 2003 — March 2005; Routh Crabtree, P.C., Anchorage, AK - Assisted in overseeing firm's real estate and residential mortgage foreclosure department, including real estate foreclosures., bankruptcy and eviction proceedings - Represented residential mortgage lenders and title companies in litigation with borrowers in state and federal courts • Assistant Borough Attorney, September 1998 — May 2003, Kenai Peninsula Borough, Soldotna, AK - Performed legal research and provided legal counsel for borough assembly, department administrators, boards and committees, with emphasis on local taxation, zoning, special service areas, constitutional law, and disputes with federal and state government agencies and Alaska Native entities - Advised borough assembly on legality of proposed ordinances and resolutions and assisted with drafting at request of assembly - Provided legal counsel to borough's finance department and represented borough in real property and sales tax collection and litigation matters, including taxation of facilities for oil and gas exploration, production and transportation - Advised borough's planning department and area -wide road service area board and staff and assisted with drafting and reviewing contracts for sale, rental and lease of borough lands and facilities and permitting of operations such as and fills and gravel pits - Drafted and edited borough contracts for procurement of professional and supply services - Provided legal counsel to borough school district board and administration on constitutional issues concerning student disciplinary proceedings; employee grievances and other human resource matters; and board policies and procedures • Contract Attorney, 1997 - September 1998, Edgar Paul Boyko, Anchorage, AK • Law Clerk, January - 1997, Close & Associates, Truckee, CA • Intern, September - 1996, Utah Attorney General's Office, Natural Resources Division, Trust Lands Administration, Salt Lake City, UT • Intern, 1996, United States Department of Agriculture, Office of General Counsel, Juneau, AK • Intern, 1995, Utah Attorney General's Office, Environmental Division, Salt Lake City, UT Bar Membership and Professional Associations • Alaska Bar Association, Member 1997 — present (Municipal Law and Alaska Native Law Section member) • United States District Court for the District of Alaska, Member 2004 - present • Alaska Municipal Attorneys Association, Member 1998 - 2008 Personal Accomplishments, Skills, and Interests • Ascended numerous Andean peaks during climbing expeditions to South America, including solo winter ascent of 23,000 foot Aconcagua • Intermediate /Advanced Spanish language skills • Enjoy cross country skiing, bicycle racing, mountaineering, fly fishing, traveling, and reading on world geography, travel and cultures 2 Professional References for Eric Auten 1) Colette G. Thompson, Borough Attorney Kenai Peninsula Borough, Legal Department 441 N. Binkley St. Soldotna, AK 99611 (907) 262-4441 2) Jim Ustasiewski, General Counsel United States Department of Agriculture, Office of General Counsel 913 Federal Bldg., 709 W. 9th St. P.O. Box 21628 Juneau, Alaska 99802 -1628 (907) 586-8826 3) Larry Echohawk, Professor of Federal Indian Law Brigham Young University, J. Reuben Clark Law School P.O. Box 28000 Provo, Utah 84602 (801) 422-4001 4) John Simmons, Former Assistant Borough Attorney Kenai Peninsula Borough, Legal Department P.O. Box 1282 Bellingham, Washington 98222 -1282 (360) 656-5694 5) James Rasband, Professor of Water Law and Natural Resources Law Brigham Young University, J. Reuben Clark Law School P.O. Box 28000 Provo, Utah 84602 (801) 422-3394 Routh Crabtree, apc Eric Auten eauten ircalaska.corn EIN: 92- 0117080 Telephone: (907) 222 -4300 Fax: (907) 222 -4396 Attorneys at Law A Professional Corporation 3510 Spenard Road, Suite 200 Anchorage, Alaska 99503 , Esq. 1/28/05 Anchorage, AK 99501 Re: v. Dear Mr. Chugiak, AK Case No. 3AN -04 Civ. As 1 stated in our last correspondence regarding a possible settlement of the above - referenced matter, your offer of $21,000 to settle the dispute in full is not acceptable for our client In order to facilitate further settlement discussions, I feel it is important that we first come closer to some kind of rough consensus on the value of the property. The figure you stated in your letter of December 14, 2004 of $170,000.00 we feel is far off the mark. According to a recent Broker Price Opinion that was prepared at -- - - - -'s request on October 11, 2004 (copy is enclosed), the 30 -day "quick sale" value is $189,000.00, and the 6 -month market value is $205,000.00. If you dispute these figures, we would encourage you to arrange for your own appraisal, and if its evaluation differs substantially from 's figures, we would certainly take that into account in our settlement negotiations. In previous correspondence you have suggested that the forgery you allege occurred renders - 's deed of trust invalid not only as to Mr. 's interest in the property, but Mrs. - -'s interest as well. You also asked that we provide you with case law that would support our position that the alleged forgery does not entirely invalidate the deed of trust. Although Alaska case law on this issue is admittedly sparse, numerous other jurisdictions have permitted a mortgage executed by one spouse to survive the equitable distribution of the affected property. The North Carolina Court of Appeals has ruled that a "deed of trust" given by a husband during coverture without the knowledge or consent of his wife survived the distribution of the property to the wife in a divorce decree. Branch Banking and Trust Co. v. Wright, 328 S.E.2d 840 (N.C.App. 1985). Like Alaska, North Carolina statutory law Enclosure: October 11, 2004 appraisal provides that one spouse cannot encumber another spouse's interest during coverture. The court held, however, that after the divorce, the lien of the deed of trust attached to the husband's undivided one -half interest in the hands of the wife. Id. at 842. The divorce converted the tenancy by the entirety to a tenancy in common, subjecting one -half of the property "to the claims of the creditors of either spouse individually." Id. The Kentucky Supreme Court reached a similar result in a case in which a husband had signed a second mortgage on property held by him and his wife as tenants by the entirety. Peyton v. Young, 659 S.W.2d 205 (Ky. 1983). In a subsequent divorce proceeding, the husband conveyed his interest to his wife. Thereafter, he murdered her and then killed himself. The court held that the mortgage on the husband's interest survived the conveyance to the wife, entitling the mortgagee to one -half of the proceeds from the foreclosure sale of the property. Id. at 206 -07. Also on point is Sanderson v. Heffington, 757 P.2d 866 (Or.App. 1988). In that case, the husband forged his wife's signature on a mortgage, the husband and wife were subsequently divorced, and the judgment of divorce awarded the wife the real property "subject to any outstanding indebtedness." Id. at 867. After the divorce, the husband defaulted on the loan. The mortgagee was allowed to foreclose on the husbands undivided one -half interest. Reasoning that the divorce destroyed the tenancy by the entirety, but not the mortgage, the court held that the wife took the property subject to the foreclosure judgment. Id. The tenancy -by- the - entireties /tenancy -in- common distinction relied upon in these cases is key to distinguishing National Bank of Alaska v. Ketzler, 71 P.3d 333 (Alaska 2003) — a case you cited in a previous letter — from the facts in our case. In Ketzler the forger- husband was the sole record owner of record for the real property at issue and died shortly after he executed the deed of trust. The husband had also executed a will which named the wife as the sole devisee for the property. While the husband was still living and the two were married, the homestead statute you cited, AS 34.15.010, prevented the security interest granted by the deed of trust from attaching to the property. When he died, his entire fee interest in the property immediately vested in the wife. The result was that there was no period of time before the husband died during which he owned an interest in the property that was free of the wife's homestead interest. Various other well- established legal principals support 's claim on its deed of trust as well, regardless of any alleged forgeries by Mrs. . In general, equity will create a lien on property when this is necessary to accomplish substantial justice and protect creditors. Thus, courts will construe the existence of equitable liens where the parties have erroneously created a defective mortgage. Clayton Development Co. v. Falvey, 206 Cal.App.3d 438, 443 (1988); 3 Witkin, Summary of Cal. Law, Security Transactions in Real Property, §§ 13 -14, pp. 526 -528. Also, the weight of authority supports the proposition that the principal's retention of the fruits of an unauthorized act of the agent serves as ratification of that act; Restatement (Second), Agency § 99 (1958); 2 C.J.S. Agency § 49 (1936, Supp. 1972); 3 Am.Jur.2d Agency § 175 (1962, Supp. 1972). As I explained and documented for you in my last letter, Mr. was named either solely or jointly with Mrs. on at least four credit accounts that were paid in part in or full from the proceeds of 's loan. Although you stated that Mr. has claimed that these accounts were also obtained through fraud Page 2 of 3 by Mrs. without his knowledge, unless and until you provide us with credible documentation or other evidence to this effect, we will maintain the view that Mr. cannot be viewed as an entirely innocent party in this matter. As for the remainder of the funds that were disbursed from 's loan, we still feel that regardless of whether any other the loan documents were forged by Mrs. , that such a sudden infusion of funds into the marital coffers could have gone entirely unnoticed by Mr. seems to strain credibility. Finally, you should bear in mind that 's lawsuit is not premised entirely on its security interest under the deed of trust, but also on the promissory note. Upon the dissolution of Mr. and Mrs. 's marriage, their tenancy by the entireties would convert to a tenancy in common, at which point ajudgment lien in 's favor would attach to Mrs. 's interest in the property. Thus, even if 's security interest in the property were set aside on the basis of the fraud you allege occurred, that would not protect the property from being executed upon to satisfy a money judgment in the amount of the loan obligation. See, e.g., 41 Am.Jur.2d § 58; Lezine v. Security Pacific Fin. Services, Inc., 14 Cal.4a' 56, 925 P.2d 1002 (1996); Brownley v. Lincoln County, 343 P.2d 529 (Or. 1959). In light of the foregoing, and in the interest of avoiding what could become a costly and protracted lawsuit, would agree to settle this dispute for the sum of $72,000.00. Please feel free to call me if you have any questions. I look forward to your reply. Sincerely, Eric Auten Page 3 of 3 MEMORANDUM [" "Confidential — Attorney /Client Privilege""j To: Cheryl Brooking From: Eric Auten Date: 11/20/06 Re: City of Seward (Alaska Native Allotment Subdivision Act of 2004) Introduction: You recently requested an update on the legal status of Native allotments in Alaska, particularly in regards to the authority of Natives to lawfully subdivide their allotments. As you are aware, federal law prohibits the alienation by an allottee of any interest in his allotment without the express consent of the Secretary of the Department of Interior, In recent years, however, questions have frequently been raised about whether federal law specific to Alaska Native allotments allows for such consent to be granted. As a result, when an owner of restricted and attempts to subdivide and sell his property or dedicate certain portions for rights -of -way or easements for streets, utilities or other public purposes - all in compliance with State or local subdivision and platting requirements - it has been unclear whether those dedications constitute valid acts under federal law. This memorandum begins with a brief explanation and history of Alaska Native allotments, followed by a summary of the events and concerns that lead to the enactment of the Alaska Native Allotment Subdivision Act of 2004, which was specifically intended to address this issue. In conclusion, recommendations and practical considerations specific to the City of Seward and Kenai Peninsula Borough platting and subdivision processes are briefly discussed. Background: Native Allotment Act of 1906 ! Alaska Native Veterans Allotment Act of 1998: The Alaska Native Allotment Act of 1906' (the "Native Allotment Act" or "1906 Act ") authorized individual Indians, Aleuts, and Eskimos in Alaska to acquire an allotment consisting of one or more parcels of land not to exceed a total of 160 acres. Alaska Natives filed approximately 10,000 allotment applications for almost 16,000 parcels of land statewide under `Ch. 2469, 34 Stat. 197, amended ch. 891, § 1(a) -(d), 70 Stat. 954, repealed by Pub.L. No. 92- 203, § 18(a), 85 Stat. 688, 710 (Dec. 18, 1971). 1 the 1906 Act before its repeal by the Alaska Native Claims Settlement Act of December 18, 19712 ( "ANCSA "). The Alaska Native Veterans Allotment Act of 1998,3 as amended, (the "1998 Act" or "Veterans Allotment Act "), provided certain Alaska Native Vietnam -era veterans - who missed applying for an allotment due to military service - the opportunity to apply under the terms of the 1906 Act as it existed before its repeal. There were 743 applications filed for approximately 993 parcels under the Veterans Allotment Act before the application deadline closed on January 31, 2002. The total allotment workload remaining to be processed by the Department of Interior's Bureau of Land Management ( "BLM ") consists of approximately 2,700 parcels, including roughly 2,100 parcels filed under the 1906 Act and 600 parcels filed under the 1998 Act. Each of these individual remaining parcels must be separately adjudicated based on its unique facts and, if valid, surveyed and conveyed. Furthermore, of these remaining parcels, approximately 1,000 parcels are on lands no longer owned by the United States. On these parcels, the BLM is required by law to investigate and attempt to recover title to each parcel in order to convey the lands to the individual Native applicant. The nature of an Alaska Native allottee's title is fee, subject to statutory restriction on alienation and taxation and the federal government's general duty to administer these lands for the benefit of Natives.° These restrictions on alienation require approval by the Secretary of Interior (or the Secretary's designee) for any valid alienation of an interest in the land. Retroactive approval is discretionary but possible if equity dictates.5 Legal Issues Regarding Subdivisions of Alaska Native Allotments: The purpose of the federal statutory restrictions placed on Alaska Native allotments is to protect Alaska Native owners against loss of their lands by taxation, foreclosure, or adverse possession, and to provide oversight of any alienation of such lands for the owners' protection. Generally, these lands are administered according to federal law, particularly as it may relate to the issuance of rights -of -way, easements for utilities, and other public purposes. An unintended consequence of these protections has been that when an owner of restricted and attempts to subdivide and sell his property or dedicate certain portions for easements and other public purposes - all in compliance with state or local subdivision platting requirements - it has been unclear whether those dedications constitute valid acts under federal law. This uncertainty has worked to the disadvantage of owners of restricted and who wish to subdivide and develop their property. 243 U.S.C. § 1601 et seq. 3 Section 432 of Pub. L. 105 -276. "See State of Alaska 45 IBLA 318 (1980). Alaska Native allotments, however, are not "trust" lands, to which the United States holds legal title. There are very few trust allotments in Alaska, acquired under the authority of the General Allotment Act of 1887, 24 Stat. 388, as amended (codified at 25 U.S.C. § 331 etseg.). See, e.q., U. S. v. Mitchell, 445 U.S. 535 (1980). 5 See United States ex rel. Buxbom v. Naegele Outdoor Advertising Company of California 739 F.2d 473, 474 (9th Cir.1984), cert. denied 469 U.S. 1109 (1985). 2 The economic advantages of subdivision in compliance with State and local law, however, have led a number of Alaska Native allotment owners over the past two decades to survey their property for subdivision plats and to submit the surveys to local authorities for approval. These plats typically contained certificates of ownership and dedication, whereby the landowners purported to dedicate to the public and for roads, utility easements, or other public uses. Platting authorities, the public, individual subdivision lot buyers, and the restricted landowners relied on these dedications and a presumption that they were binding and enforceable. Up until October 2000, the Interior Department's Bureau of Indian Affairs ( "BIA "), pursuant to its trust responsibilities, approved Alaska Natives subdividing their allotments and dedicating rights -of -way and utility easements. The BIA estimated that as of 2004 there were 206 such subdivisions in the State. Lots were sold within the subdivisions to both Native and non - Native purchasers. In late 2000, however, the Department of the Interior's Office of the Solicitor determined that this presumption was not clearly established in law.6 In response, the BIA and its realty service providers' sought to overcome the doubts raised about the validity of past dedications, and for the ensuing 2% years the State of Alaska and local governments tried to resolve the issue of dedication - both past and future - with the BIA. BIA's position was that local governments and the State could apply for easements for public ways under existing federal regulations, namely 25 C.F.R. Part 169. These regulations, however, impose significant legal burdens upon the applicant as a condition of statutory authority to approve the application. Among other things, they generally operate under the assumption that title to the easement or right -of -way is being directly transferred from the allotment owner to the holder of the easement or right -of -way. The State of Alaska and some affected municipal platting authorities have been unwilling to apply for or accept title to such easements or rights -of -way on behalf of the public. These units of government understandably prefer that public rights be established by dedication, rather than direct title transfers, which might saddle the local government with maintenance or tort liability. As a result, municipalities have often declined entirely to review new preliminary subdivision plats of an allotment, as such preliminary plat could not provide legal access to the subdivision lots and 6 The matter that apparently instigated the Solicitor's opinion arose earlier in 2000 when the Bristol Bay Borough placed a utility line across the front of a Native -owned property with the existing owner's permission. A new owner of the property, however, questioned the validity of the easement, arguing there is no statute allowing Natives to subdivide their lands, much less grant easements across them. 7 Most realty service providers are actually contractors, rather than BIA employees, who are authorized pursuant to the Indian Self- Determination and Education Assistance Act, Pub. L. No. 93 -638, 88 Stat. 2203, as amended, (codified at 25 U.S.C. § 450 et seq.). Among other things, this Act directs the Department of Interior, at the request of a federally recognized tribe, to contract with tribes or tribal organizations to carry out the services and programs the federal government provides to Indians and Alaska Natives. Therefore, as authorized by this Act, regional nonprofit corporations or other tribal entities in Alaska can assume management of the realty function from the BIA to perform realty services for Alaska Native lands. 3 would fail to comply with the requirements of municipal platting codes and the platting statutes of the State. Without the participation of platting authorities and governments, it has been difficult to resolve uncertainties as to the validity of dedications on previously filed and approved subdivision plats. Moreover, it has been impossible for Native owners of restricted lands who, in the future, may wish to subdivide their land in accordance with State or local platting requirements, to do so without first terminating the restricted status of their lands, thereby subjecting it to State and local property taxing authority and creditors' claims. If an allottee should subdivide his property without complying with applicable statutes or local platting ordinances, which was suggested by the BIA as an alternative, the economic realities are that the allottee would not fully recognize the value of the allotment. Title insurers, for one, may refuse to issue a title policy without an exception to cover this uncertainty. Prospective purchasers and lenders would generally not undertake the risk that they would not have legal access to the lots within an allotment subdivision. And for prospective purchasers who were willing to assume such risks, financing would likely be difficult if not impossible to obtain on reasonable, conventional terms. Also, public utilities would not extend utility services to and within a subdivision of a Native allotment because they would not acquire the easements and /or rights -of -way necessary to extend those utilities. The lack of utilities would further reduce the overall value of a subdivision lot within a Native allotment subdivision. In sum, the inability of an allottee to subdivide his allotment in compliance with local platting ordinances or State statutes is not just a mere inconvenience, but a significant barrier for those who desire to subdivide and develop their allotment to increase its economic potential. Alaska Native Allotment Subdivision Act of 2004: The inability to subdivide Alaska Native allotments in compliance with State statutes or local platting ordinances resulted in growing frustration both at the federal level and among individual ailottees wanting to realize economic gain from subdividing their allotments. Critical mass was reached in 2003, when legislation in response to these concerns was introduced in both the U.S. House and Senate. Aside from a number of attempts by various interest groups to use the legislation as a soapbox to promote their individual agendas in areas that were at best, tangentially related to the relatively simple and narrow real estate issue at hand, most testimony suggests that the legislation was non - controversial and was supported by the State of Alaska, local governments, the Department of the Interior and individual allottees. The final version of the legislation, Senate Bill 1421, was signed by the President on October 18, 2004, to become Public Law No. 108 -337. (The full text is copied below.) Entitled the "Alaska Native Allotment Subdivision Act," the Act authorizes Alaska Native owners of restricted allotments, subject to the approval of the Secretary of the Interior, to subdivide their land in accordance with State and local laws governing subdivision plats, and to execute certificates of ownership and dedication with respect to these lands. The Act also confirms the validity of past dedications that were approved by the Secretary. The overriding intent of the Act was to pave the way for Alaska Native owners of restricted lands to create new subdivisions in compliance with State or local platting requirements without forcing them to choose between the financial benefits of compliance with applicable law and the retention of protections against real property taxation 4 and creditors' claims inherent in the restricted status of their lands. This feature is clarified by language in the legislation providing that federal restrictions against taxation and alienation are only lost by compliance with State or local platting requirements as to those specific interests expressly dedicated in the certificate of ownership and dedication. As of the beginning of November 2006, no final or proposed regulations to implement the Act have been published in the Federal Register.' Regulations or other administrative interpretations addressing the Act may still be forthcoming, however, as the power of an administrative agency to administer a congressionally created program necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress.' Considerations and Recommendations for City of Seward: [REDACTED] s During two public hearings of the Senate Committee on Energy and Natural Resources Subcommittee on Public Lands and Forests held in Anchorage on August 6, 2003, and February 12, 2004, the Department of Interior recommended adding a new section to S.B. 1421 expressly authorizing the promulgation of regulations to clarify how the bill would be implemented, but no such language appears in the final version of the legislation. 9 Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) citing Morton v. Ruiz, 415 U.S. 199 (1974). 5 PL 108 -337, October 18, 2004, 118 Stat 1357 (S 1421) ALASKA NATIVE ALLOTMENT SUBDIVISION ACT An Act To authorize the subdivision and dedication of restricted and owned by Alaska Natives. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, SECTION 1. SHORT TITLE. This Act may be cited as the "Alaska Native Allotment Subdivision Act . SEC. 2. DEFINITIONS. In this Act: (1) RESTRICTED LAND. - -The term "restricted land" means and in the State that is subject to Federal restrictions against alienation and taxation. (2) SECRETARY. - -The term "Secretary" means the Secretary of the Interior. (3) STATE.- -The term "State" means the State of Alaska. SEC. 3. SUBDIVISION AND DEDICATION OF ALASKA NATIVE RESTRICTED LAND. (a) IN GENERAL. - -An Alaska Native owner of restricted land may, subject to the approval of the Secretary- - (1) subdivide the restricted and in accordance with the laws of the- - (A) State; or (B) applicable local platting authority; and (2) execute a certificate of ownership and dedication with respect to the restricted land subdivided under paragraph (1) with the same effect under State law as if the restricted and subdivided and dedicated were held by unrestricted fee simple title. 6 (b) RATIFICATION OF PRIOR SUBDIVISIONS AND DEDICATIONS.- -Any subdivision or dedication of restricted land executed before the date of enactment of this Act that has been approved by the Secretary and by the relevant State or local platting authority, as appropriate, shall be considered to be ratified and confirmed by Congress as of the date on which the Secretary approved the subdivision or dedication. SEC. 4. EFFECT ON STATUS OF LAND NOT DEDICATED. Except in a case in which a specific interest in restricted and is dedicated under section 3(a)(2), nothing in this Act terminates, diminishes, or otherwise affects the continued existence and applicability of Federal restrictions against alienation and taxation on restricted and or interests in restricted and (including restricted land subdivided under section 3(a)(1)). Approved October 18, 2004. 7 Lee Salisbury crom: Lee Salisbury . nt: Wednesday, January 14, 2009 11:04 AM J: 'auteneric @yahoo.com' Subject: City of Kenai We are in receipt of, and thank you for submitting, your application for consideration regarding our City Attorney position. We will begin our review process in February. Please let us know if you have any questions. Lee Salisbury Legal Admin. Asst. City of Kenai 210 Fidalgo Avenue Kenai AK 99611 Tel. 907 283 -8225 Fax 907 283 -3014 CONFIDENTIALITY NOTICE: This electronic mail transmission may contain legally privileged information. The information is intended for the use of the individual or entity named above. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution or taking any action based on the contents of this electronic mall is strictly prohibited. if you have received this electronic mail in error, please contact sender and delete all copies. SUPPLEMENTAL FROM ERIC AUTEN Date: Wednesday, February 25, 2009, 6:15 PM Mr. Auten, We are in the process of reviewing resumes for the position of Kenai City Attorney. Could you please let us know regarding your experience in civil or criminal trials and any civil or criminal appellate experience. Thank you in advance for your assistance with this request. Lee Salisbury Legal Admin. Asst. City of Kenai 210 Fidalgo.Avenue Kenai AK 99611 Tel. 907 283 -8225 Fax 907 283 -3014 CONFIDENTIALITY FY NO'I IC L: This electronic mail transmission may contain legally privileged information The information is intended for the use of the individual or entity named above, If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution or taking any action based on the contents of this electronic mail is strictly prohibited. if you have received this electronic mail in error, please contact sender and delete all copies. 2 Lee Salisbury rom: Stephen Bradford [Bradford Law @msn.com] ant: Thursday, January 29, 2009-1:33 PM J: Lee Salisbury Subject: City Attorney postition Attachments: Resume Municipal 0908.doc; Respondents Brief SD 26108.doc; Thomas v Branson.pdf Dear Ms. Salisbury: I am applying for the position of City Attorney. For more than ten years I have been in Branson, Missouri, a town of about 7,000 that welcomes nearly 8 million visitors each year. The primary focus of my private practice here in Branson is representing owners and developers with their real estate transactions, including land use, planning and zoning and representing them before the relevant governmental bodies. I have also served two local communities as municipal attorney and prosecutor. I am attaching my detailed resume, which includes three professional references. I am also sending you a copy of an Appelate Brief I wrote in a lawsuit that went to the Missouri Court of Appeals. The issue involved municipal elections and, as you will see from the copy of the Court's opinion that I am also sending you, my client was victorious at both the trial level and on appeal. If you have any questions, or would like to discuss the position or my qualifications, please contact me either by email or at 417 -294 -3133 (cell) or 417 - 334 -8520 (office). tephen Bradford adford Law Office ,aO Box 998 Branson, Missouri 65615 PLEASE NOTE: (1) e -mail is not a secure method of communication; (2) any e -mail that is sent to you or by you may be copied and held by various computers it passes through as it goes from me to you or vice versa; and (3) other persons might intercept our communications by improperly accessing your computer or my computer or even some computer unconnected to either of us through which the e -mail passes. If you want future communications to be sent in a different fashion, please let me know AT ONCE. Stephen Bradford P.O. Box 998 Branson, Missouri 65615 417 - 294 -3133 Bradford_Law @msn.com Education: University of Kansas, Lawrence, KS; B.S. Business Administration, 1979 University of Kansas School of Law, Lawrence, KS; J.D., 1982 Summary Description of Relevant Municipal Experience: • Currently practicing law in Branson, Missouri, with emphasis on real estate transactions, land use and planning, and general corporate and business matters. • Former City Attorney for Forsyth, MO and Branson West, MO, and Municipal Prosecutor for Branson West, MO. • Presenter at Missouri Municipal Attorneys Association annual summer seminar. Detailed Work Experience: 2005- present 2002 -2005 Bradford Law Office, Branson, Missouri. Styron Law Firm, Branson, Missouri. 1993 -2002 Solo law practitioner, focusing primarily on real estate transactions and general corporate law, and self - employed consultant on real estate, telecommunications, internet, start -up manufacturing and financial transactions. Seminar presenter on corporate management and law. 1990 -1993 Midland Bank Group, Kansas City, Missouri. COO and chief compliance officer of $400 million savings and loan, with responsibility for $250 million real estate loan portfolio. Involved in restructuring and work -outs of troubled loans. 1989 -1990 Payless Shoes, Topelca, Kansas. Primarily negotiated and documented real estate acquisitions and leases, plus some general corporate matters. 1988 -1989 Private practice of law in Lawrence, Kansas. General practice, including litigation, domestic relations, criminal and general business matters. 1986 -1988 IAC Group, Kansas City, Missouri. General Counsel and EVP of $20 million financial services holding company. Responsible for diversification into new areas, regulatory compliance and other legal matters. 1983 -1986 Watson, Ess, Marshall & Enggas, Kansas City, Missouri and Olathe, Kansas. Private practice with 80- member law firm, primarily in corporate law and some litigation support. 1982 -1983 Touche Ross & Co. (now Deloitte & Touche), Kansas City, Missouri. Tax consulting and compliance, with some audit work. Stephen Bradford Page 2. Professional references: Mr. Kenney Smith, City Administrator City of Branson West 110 Silver Lady Lane Branson West, MO 65737 417 - 272 -3313 I was previously the city attorney and municipal prosecutor for Branson West. Mr. Jan Blase, City Manager City of Neosho 203 E. Main Street Neosho, MO 64850 417- 451 -8050 Mr. Blase was the City Manager of Forsyth, MO while I was city attorney. Mr. Russell Schenewerk Attorney at Law 500 W. Main Street Branson, MO 65616 417 -334 -7922 Mr. Schenewerk is an attorney in Branson, MO. IN THE MISSOURI COURT OF APPEALS SOUTHERN DISTRICT SD No. 26108 STATE OF MISSOURI, ex. rel. JAMES A. THOMAS Relator/Respondent vs. DONNA NEELEY, TANEY COUNTY CLERK Respondent and SANDRA WILLIAMS, in her Capacity as City Clerk Appellant Appeal from the Circuit Court of Taney County, Missouri Hon. William R. Hass, Special Judge BRIEF OF RELATOR/RESPONDENT JAMES A. THOMAS Stephen Bradford #33678 The Styron Law Firm 301 W. Pacific, Suite A Branson, MO 65616 (417) 334-4455 Attorney for Relator /Respondent James A. Thomas 1 TABLE OF CONTENTS Page Table of Contents Table of Authorities i i Statement of Facts 1 Points Relied On 3 Argument 5 Point I 5 A. Standard of Review 5 B. The Trial Court properly found that the duties of the City Clerk and the County Clerk in a municipal election, are ministerial; and that Thomas timely filed a written, signed and sworn declaration of candidacy affuining his qualifications, and has a right to be certified as a candidate for municipal election under §115.347 RSMo 6 B.(i). The distinction between ministerial and discretionary duties 9 C. Determining residency is difficult and requires the exercise of discretion. It is not a decision to be made by the clerk without express authority and standards given by the legislative body 9 C.(i). Challenging the qualifications ofa candidate on the basis of discretionary factors 11 C.(ii). Branson's Ordinance regarding the duties of its clerk ....... ........... ..,,,........... 11 D. Cases cited by Appellant involve candidates disqualified by competent persons or courts other than the election authority; or which involved a defined standard requiring no discretion by the clerk 13 Point II 16 Conclusion 19 Appendix 2 TABLE OF AUTHORITIES Cases Page Chowning v. Magness, 792 S.W.2d 438 (Mo.App.S.D. 1990) 1 Henderson v. Murray, 78 S.W.3d 147, 149 (Mo.App.E.D. 2002) 10, 11, 16 Jones v. Carnahan, 965 S.W.2d 209, ( Mo.App.W.D. 1998) 9 Mansur v. Morris, 196 S.W.2d 287 (Mo.banc 1946) 14 Murphy v. Canon, 536 S.W.2d 30, 36 (Mo.banc 1976) 5 State ex rel Christian v. Lawry, 405 S.W.2d 279 ( Mo.App. 1966) 15 State ex rel Danforth v. Alford, 467 S.W.2d 55 ( Mo.banc 1971) 15 State ex rel King v Walsh, 484 S.W.2d 641 ( Mo.banc 1972) 16, 17 State ex rel Lupo v. City of Wentzville, 886 S.W.2d 727, 729 (Mo.App.E.D. 1994) 6 State ex rel Mason v. County Legislature, 75 S.W.3d 884 (Mo.App.W.D. 2002) 14 State ex rel Rogers v. Board of Police Comm. of Kansas City, 995 S.W.2d 1, 2 (Mo.App. W.D. 1999) 6 Williams v. Williams, 99 S.W.3d 552, 556 (Mo.App.S.D. 2003) 6, 18 Statutes §105.487 RSMo 7 §115.124 RSMo 7 §115.1.27 RSMo 7 §115.346 RSMo 4 8 §115.347 RSMo 4, 7, 8, 9 §115.355 RSMo 7 §115.526 RSMo 4, 10, 11, 15 3 STATEMENT OF FACTS Respondent Thomas offers the following correcting statements to the Statement of Facts of Appellant: Appellant states as fact that Thomas merely "changed his mind" about where he resides, citing three transcript references. This phrase is not used by Thomas anywhere in the Legal File or Transcript, and when counsel for Appellant uses that phrase during cross - examination, Thomas does not agree (Tr. 43). Thomas does say he "made the decision" (Tr. 47, 49, 59) and moved to Branson in January 2003 (Tr. 31, 64). Appellant's statement of facts concerning Branson merchant license renewal forms (L.F. 60, 63), is incorrect because it was not established that Thomas had any knowledge of the addresses on the forms (Tr. 135, 137), and there is no signature to indicate who provided the information (Tr. 136, 137). Thomas supplements the Statement of Facts with the following: Thomas testified he resides at 3431 West Highway 76, Branson' (Tr, 28), which he considers to be his legal residence (Tr. 33). Thomas moved in January, 2003 (Tr. 31, 64), abandoned his previous residence in Stone County (Tr. 40) and he intends to stay as a resident indefinitely (Tr. 40). Thomas is a registered voter at 3431 W. 76 (Tr. 29, 106, L.F. 55), he voted in Branson Ward 1 at the presidential primary election in February 2004 (Tr. 29), and his driver's license reflects his residence address as 3431 W. 76 (Tr. 29, L.F. 55). 1 For simplification, the address at 3431 West Highway 76, Branson, MO will be referred to in this Statement of Facts as "3431 W. 76" 1 Thomas testified it is at 3431 W. 76 where he: eats 90% of his meals (Tr. 33), spends most of his time (Tr. 34), keeps personal effects (Tr. 34), spends three or four nights per week with his wife (Tr. 34), and receives magazine subscriptions and other mail (Tr. 35, 63). The property at 3431 W. 76 consists of a Lodge owned by a sub - chapter S corporation (Tr. 38) of which Thomas owns 71% (Tr. 39). Thomas sleeps in a specific room at the Lodge, #465 (Tr. 34), but does not consider himself limited to that room (Tr. 52, 63). Thomas keeps his personal effects in his office suite (Tr. 34) so the Lodge can, if needed, rent Room 465 on those nights he does not stay there (Tr. 65). As City Clerk, Appellant Williams uses the following procedure to determine if candidates are qualified to be on the ballot: • "I check with my utility department" (Tr. 90). • "I check...on their taxes and their real estate taxes" (Tr. 90). • "I check their voter's registration" (Tr. 90). • "Two or three phone calls, and its all done" (Tr. 91). With Thomas the City Clerk also considered the following to determine his qualifications to be on the ballot: • "My husband delivered his mail for years. I know where his house is" (Tr.91). • "I called and ...Donna Neeley (Taney County Clerk and a respondent herein)... personally told me that there was nothing in the room (at the Lodge). She had checked the drawers, she had checked the closets. There was not a razor there (or) toothbrush." (Tr. 92). • "I also contacted the Stone County...clerk to confirm when James A. Thomas was a registered voter in Stone County..." (Tr. 93). 2 POINTS RELIED ON L THE TRIAL COURT PROPERLY DETERMINED THAT THE DUTIES OF THE APPELLANT/BRANSON CITY CLERK, IN RECEIVING DECLARATIONS OF CANDIDACY AND IN CERTIFYING THE NAMES OF' CANDIDATES TO BE ON THE BALLOT FOR MUNICIPAL ELECTIONS, ARE MINISTERIAL. THE TRIAL COURT FURTHER DETERMINED PROPERLY THAT RELATOR/RESPONDENT THOMAS, HAVING TIMELY FILED HIS WRITTEN, SIGNED AND SWORN DECLARATION OF CANDIDACY WITH THE BRANSON CITY CLERK, HAD A RIGHT TO THE PROPER PERFORMANCE OF THE MINISTERIAL DUTY BY THE CITY CLERK. THE CITY CLERK FAILED TO PERFORM THAT MINISTERIAL DUTY, AND MANDAMUS WAS PROPERLY ISSUED TO COMPEL THE PERFORMANCE OF THAT DUTY. CASES PAGE State ex rel Rogers v. Board of Police Comm. of Kansas City, 995 S.W.2d 1, 2 (Mo.App. W.D. 1999) 6 Williams v. Williams, 99 S.W.3d 552, 556 (Mo.App.S.D. 2003) 6 Jones v. Carnahan, 965 S.W,2d 209, (Mo.App.W.D. 1998) 9 Henderson v. Murray, 78 S.W.3d 147, 149 (Mo.App.E.D. 2002) 10 3 §115.347.1 RSMo 4,7,8,9 §115.346 RSMo 4,8 §115.526 RSMo 4,10,11,15 I1. IF RESIDENCY OF A CANDIDATE IS A DISCRETIONARY DETERMINATION TO BE MADE BY THE CITY CLERK OR OTHER ELECTION AUTHORITY, THOMAS MET HIS BURDEN OF PROOF IN ESTABLISHING HIS RESIDENCY AS BEING AT 3431 WEST HIGHWAY 76, BRANSON, MISSOURI. CASES PAGE Henderson v. Murray, 78 S.W.3d 147, 149 (Mo.App.E.D. 2002) 16 State ex rel King v Walsh, 484 S.W.2d 641 (Mo.bane 1972) 16 Williams v. Williams, 99 S.W.3d 552, 556 (Mo.App.S.D. 2003) 18 4 ARGUMENT I. The Trial Court properly determined that the duties of the Appellant/Branson City Clerk, in receiving Declarations of Candidacy and in certifying the names of candidates to be on the ballot for municipal elections, are ministerial. The Trial Court further determined properly that Relator/Respondent Thomas, having timely filed his written, signed and sworn Declaration of Candidacy with the Branson City Clerk, had a right to the proper performance of the ministerial duty by the City Clerk. The City Clerk failed to perform that ministerial duty, and mandamus was properly issued to compel the performance of that duty. A. Standard of Review This appeal is from a court tried case, and the judgment of the trial court in a mandamus action is to be sustained unless there is no substantial evidence to support it, unless it is against the weight of evidence, or unless it erroneously declares or applies the law. Appellate courts should exercise the power to set aside a judgment on the ground that it is against the weight of the evidence with caution and with a firm belief that the judgment is wrong. Murphy v. Canon, 536 S.W.2d 30, 36 (Mo.banc 1976). 5 The discretion of the trial court in granting a writ of mandamus will not be reversed where it appears to have been lawfully exercised and no abuse is shown. State ex rel Rogers v. Board of Police Comm. of Kansas City, 995 S.W.2d 1, 2 (Mo.App. W.D. 1999). Where the trial court makes no findings of fact, the Court of Appeals considers all fact issues to have been found in accordance with the result reached. Accordingly, evidence shall be viewed and all inferences drawn therefrom in the light most favorable to Tomas as the prevailing party, and this court must give due regard to the trial court's credibility determinations. Williams v. Williams, 99 S.W.3d 552, 556 (Mo.App.S.D. 2003). Any statements contained in the transcript that appear to contradict other statements made, or that are contrary to the judgment, are therefore to be disregarded. The function of mandamus is to command the performance of a ministerial act, pursuant to a right established by law, Rogers, 995 S.W.2d at 3. To determine whether right to mandamus is clearly established and presently existing, the court examines the statute under which the relator claims right, State ex rel Lupo v. City of Wentzville, 886 S.W.2d 727, 731 (Mo.App.E.D. 1994). B. The Trial Court properly found that the duties of the City Clerk and the County Clerk in a municipal election, are ministerial; and that Thomas timely filed a written, signed and sworn declaration of candidacy affirming his 6 qualifications, and has a right to be certified as a candidate for municipal election under §115.347 RSMo2 The Missouri election law statutes prescribe detailed steps to be followed when an election is called, whether the election is at the state or political subdivision level. Each of these statutory steps imposes upon the person calling or conducting the election a ministerial duty, rather than a discretionary duty on the clerk.3 Eliminating the exercise of discretion assures fairness and equal access to the ballot. The statutes also require that a person shall file a "written, signed and swom declaration of candidacy" in the office of the municipal clerk before their name is printed on the ballot as a candidate for municipal office, §115.347 RSMo. It is the ministerial duty of the clerk to confirm the declaration is "written, signed and sworn". 2 §115.347.1: No candidate's name shall be printed on any official ballot unless his written, signed and sworn declaration of candidacy has been filed in the office of the appropriate election official as provided in this subchapter. 3As examples, §115.127 RSMo specifies the opening and closing filing date and how notice of the election must be published; §115.124 RSMo requires a clear designation by the clerk of where candidates are to form a line to file; §105.487 requires the clerk give, at the time of filing, written notice of certain obligations to file financial interest statements; and §115.355 RSMo requires the clerk see proof of identity of those persons filing declarations of candidacy (but does not require proof of residency). 7 After a candidate has filed a declaration of candidacy the municipal clerk has the ministerial duty of checking whether the candidate is "in arrears for any unpaid city taxes or municipal user fees," §115.346 RSMo. The clerk exercises no discretion; the candidate is in arrears or they are not. An election authority has the authority to refuse to certify a candidate only in those situations in which the determination of qualifications can be made without exercising any discretion.4 There are no discretionary determinations imposed by statute on any city official in accepting or rejecting a candidate for municipal election. In its Amended Peremptory Writ of Mandamus and Final Judgment, the Court made the finding that Thomas "timely filed his written, signed and sworn declaration of candidacy for Alderman — Ward 1 of the City of Branson, Missouri." (L.F. 36). In explaining its decision, the Court referred to §115.347 RSMo and said, "... a person who wishes to be a candidate for some office, `must file ... a written signed and sworn declaration of candidacy.' In this case, in the office of the municipal clerk, and that happened here." (Tr. 150). Thomas plead his compliance with the provisions of §115.347 RSMo in his Amended Petition (L.F. p. 5), in his Reply (L.F. p. 24, 27), and during oral arguments. The City Clerk did not offer any contradiction to Thomas' compliance with the provisions of that statute. 4 Examples include dete ping whether a candidate is a U.S. citizen; of proper age; a registered voter, convicted felon, or a previously removed or impeached officer. 8 The Writ in Mandamus issued by the Court compels the City Clerk to perform its ministerial duty and certify the name of Thomas as a candidate, as in § 115.347 RSMo, and orders the County Clerk to place his name on the ballot (L.F. 36). B.(i). The distinction between ministerial and discretionary duties. Where a city clerk has no authority to exercise discretion, the statutory duty to certify a candidate who timely filed a written, signed and sworn declaration is ministerial and subject to mandamus. In Jones v. Carnahan, 965 S.W.2d 209, (Mo.App.W.D. 1998), the Court looked at the distinction between a "ministerial act" and a "discretionary act" and said at 213, "A ministerial act is defined as an act that law directs the official to perform upon a given set of facts, independent of what the officer may think... (while) a discretionary act is one requiring the exercise of reason in determining how or whether the act should be done." By the Jones definition, and in each of the examples given in the previous footnotes, the outcome of a ministerial duty will be the same, given the same set of facts, no matter who performs the duty. By contrast, the results of a discretionary act will vary, depending on who exercises the discretion, and that person's knowledge, experiences, attitude, depth of inquiry, and the presence of subtle pressures. C. Determining residency is difficult and requires the exercise of discretion. It is not a decision to be made by the clerk without express authority and standards given by the legislative body. 9 In matters involving qualifications of candidates, "It has been said that the question of legal residence `is often difficult to determine. "' Henderson v. Murray, 78 S.W.3d 147, 149 (Mo.App.E.D. 2002). It should be noted that Henderson involved a challenge by another candidate under §115.526 RSMo. The Henderson Court went on to say "It will be found in every case, however, that the difficulty has arisen upon disputed facts, in the determination of which the credibility of the opposing witnesses has frequently been a factor." Id. The Henderson Court then reviewed a number of cases dealing with legal residence, and stated "All of these cases apply the same concepts and analyses of legal residence, only to differing sets of facts." Id. The court was not willing to "disturb the trial court's findings on (the candidate's) credibility and believability in terms of his intent." and affirmed the trial courts finding that the candidate was a resident of the city ward in which he was running, on evidence that he was merely staying at a home belonging to a friend 3 to 4 nights per week (and owned a lakefront home with his wife outside of town). Id, at 150. If a trial court has difficulty determining legal residence, and must carefully weigh the evidence and the credibility of the candidates and witnesses, it is apparent why the legislature has not enacted any statutes describing a specific duty or steps to be taken by a city clerk to make that 10 determination on the spot; rather, the city clerk is to rely on the "written, signed and sworn declaration of candidacy ". C.(i). Challenging the qualifications of a candidate on the basis of discretionary factors. While the legislature has wisely avoided making the right to be on a ballot dependant upon who might be clerk, it has established a way to challenge a candidate's qualifications. Rather than giving the city clerk the discretion to make those determinations in private, the legislature has restricted the right to challenge someone's declaration of candidacy or their qualifications to be on the ballot to an opposing candidate running for the same office, under strict procedural rules, with an opportunity to be heard in an open forum by an impartial judge § 115.526 RSMo. In addition to the Henderson case discussed above with facts similar to this matter, Chowning v. Magness, 792 S.W.2d 438 (Mo.App.S.D. 1990) involved a Taney County election in which the qualifications of a candidate were challenged because of residency, brought by an opposing candidate under § 115.526, RSMo. There is no mention of the county clerk or any other officer making the determination and this case is a prime example of the system intended by the legislature working as desired. C.(ii). Branson's Ordinance regarding the duties of its clerk. Even though the legislature has not given clerks of 4`h Class cities the discretionary power to determine the qualifications of a candidate, no city is prohibited from adopting an ordinance authorizing that discretion. In December, 2003 the City of 11 Branson adopted Ordinance No. 2003 -282, adding a new Section 115.050 describing the duties of the City Clerk (L.F. Ex. 1, p. 46 -47). Of the new ordinance, the Trial Court said: "The Clerk said herself that she drafted the ordinance... But here's the whole thing. Item L (of Ordinance 2003 -282) ...added a section that says, speaking of the duties of the clerk, `Shall be the Election Authority for the city and shall perform all duties required.' Well the ordinance doesn't spell out what any of those duties are." (Tr. 149). The Court, in its findings and by issuing the it in mandamus, is merely saying that a city clerk cannot ignore its statutory ministerial duty to certify a candidate who timely files a written, signed and sworn declaration, in favor of ambiguous duties that are not `spelled out'. In this case, the Branson City Clerk had certain duties when Thomas declared his candidacy,5 and the resulting ministerial duty to certify Thomas' name on the ballot. The Clerk testified that no statute tells a clerk to check any external sources for residency (Tr. 78), and even though the new ordinance does not describe any duty regarding a candidate's residency or provide any procedures for checking residency, the City Clerk took other unauthorized, varied and discretionary steps.6 5 Those duties include obtaining a written, signed and sworn declaration of candidacy; seeing proof of his identity; providing him notice of financial interest disclosure requirements; and checking if he is in arrears in his city taxes. (L.F. Ex. 3, p. 49 -55). 6 The steps are described and referenced in Thomas' supplemental Statement of Facts. 12 It becomes obvious that the additional steps taken by the Branson City Clerk in rejecting Thomas' declaration of candidacy are discretionary and unauthorized when one considers what might be the result after this City Clerk retires in "three or four months" (Tr. 72). Will the successor: be able to apply a test based on "my husband delivered his mail for years" (Tr. 91); Will she make calls to two county clerks to check Thomas' voter registration (Tr. 92, 93), even though one of those clerks testified there is no time requirement in which a voter's registration must be changed after moving (Tr. 109); or will that successor have a standard based on checking "...the drawers...the closets...(and whether) there is not a razor there (or) toothbrush." (Tr. 92). Perhaps the next city clerk will instead accept the written, signed and sworn declaration of a candidate and let an opposing candidate raise any questions about qualifications in open court. D. Cases cited by Appellant involve candidates disqualified by competent persons or courts other than the election authority; or which involved a defined standard requiring no discretion by the clerk. Appellant relies on cases in which candidates have been disqualified or otherwise prevent by the election authority from being on the ballot. In each, however, there was no discretion necessary in reaching the determination of the candidate's qualifications or right to be on the ballot; or, if discretion was necessary, the determination was made by someone other than the ministerial clerk, with authority and in a position to exercise that discretion. 13 State ex rel Mason v. County Legislature, 75 S.W.3d 884 (Mo.App.W.D. 2002) (Appellant's Brief, p. 15, 16, 25, 26) involved a requirement that a candidate for the Jackson County Legislature must have been registered to vote in Jackson County for 3 years (and did not involve the issue of residency). Clearly, any election authority could make that determination without the exercise of discretion, and all would reach the same result, because the voter registration lists will either show a 3 year period or it will not. That is not the same as here, where the clerks sought to use the time of voter registration to establish residency, even though there is nothing that requires a person to re- register within a given period of time after moving. From Thomas' standpoint, he was concerned only because he knew he could not vote in Branson until he did re- register, and being a voter is a necessary qualification of holding office. Mansur v. Morris, 196 S.W.2d 287 (Mo.banc 1946) (Appellant's Brief, p. 22, 25) involved a candidate who had previously been declared by the Supreme Court to be ineligible. Appellant asserts that Mansur is controlling because it says the duties of the county clerk under the relevant election statute are not purely ministerial. However, the statute involved was for the correction of errors and omissions on the ballot, and the clerk was not asked to exercise any discretion in determining whether the candidate was qualified — that determination was already made by the Court. Mansur, where there had already been a judicial determination of disqualification, is easily distinguished from this case, where no court has made a determination that Thomas is disqualified. Obviously, anytime a court of competent jurisdiction has made such a determination, it is the duty of the election authority to refuse to certify the 14 individual, such as when a local Circuit Court determines qualifications after an opposing candidate brought an action under §115.526 RSMo to challenge the qualifications. State ex rel Danforth v. Alford, 467 S.W.2d 55 (Mo.banc 1971) (Appellant's Brief, p. 23 -25) was a case of first impression involving an impeached official who sought to place his name on the ballot in the election to fill the position vacated as a result of his impeachment Again, there had already been a proper determination that the impeached official was not qualified. The election official was not asked to exercise any discretion in making that determination, as it had already been made. Appellant's assertion that the placement of Thomas' name on the ballot will be a nullity and result in disenfranchisement is not legitimate, when the only person who has declared Thomas to be disqualified is the clerk. State ex rel Christian v. Lawry, 405 S.W.2d 279 (Mo.App. 1966) (Appellant's Brief, p. 25 -27) is also easily distinguished from this matter, and irrelevant, because it involves compliance with the clerical requirements in declaring one's candidacy. Had Thomas filed his declaration after the deadline; had he failed to sign and swear his declaration; had he not paid his taxes until after the deadline, then the clerk would have the ministerial duty to keep him off the ballot. However, he complied with all those standards, and the city clerk seeks to disqualify Thomas on a standard that requires discretion. 15 II. IF RESIDENCY OF A CANDIDATE IS A DISCRETIONARY DETERMINATION TO BE MADE BY THE CITY CLERK OR OTHER ELECTION AUTHORITY, THOMAS MET HIS BURDEN OF PROOF IN ESTABLISHING HIS RESIDENCY AS BEING AT 3431 WEST HIGHWAY 76, BRANSON, MISSOURI. As noted in Argument I.C., above, determining residency is difficult. Generally speaking, it is a matter of intent. A recent case with very similar facts is the Henderson case cited above, 78 S.W.3d 147, which involved a candidate for the Jennings City Council. The candidate and his wife had sold a house they owned in Jennings, and together purchased a lakefront home in Cuba, Missouri in which the candidate makes his home with his wife for a portion of each week, including the weekends. Although his wife stays at their home in Cuba, the candidate testified that he stayed 3 — 4 nights per week at a friend's house in Jennings, without exchanging any cash rent. The candidate had a phone installed, and received mail at his friends house. The trial court determined that the candidate was a resident of the Jennings city ward in which he was running, and in which his friend's house was located. The trial court also found that the candidate intended to reside permanently in the ward, and relied on State ex rel King v Walsh, 484 S.W.2d 641 (Mo.banc 1972) (the "Kit Bond" residency case). The judgment of the trial court was affirmed. The court went into detail outlining the history of residency cases, and described how the same rules will have a different effect on different factual situations, and only the trial court determines what portions to 16 believe or disbelieve of a witness's testimony about his intent. 78 S.W.3d at 150. The court also held that, for purposes of determining residency in order to run for city council, the location where the candidate regularly makes his home with his spouse does not necessarily deters tine his legal residency. Id, at 148. The Kit Bond case, referred to above, solidified the premise that the "residence is largely a matter of intention, to be determined not only from the utterances of the person whose residence is in issue but also from his acts and in the light of all the facts and circumstances of the case. King, 484 S.W.2d at 644. The court considered Mr. Bond's interest in politics and dove hunting, and his long term plans for a law office some day in Mexico, Missouri; and overlooked such matters as listing a Virginia address as his "residence" for purposes of taking the Virginia bar exam. The court held that Kit Bond met the residency requirements necessary to run for governor, and said "the question of residence is one of fact, a question often difficult to determine." Id. In this matter, Thomas testified as follows: He resides at 3431 West Highway 76, in Branson (Tr. 28). He considers 3431 West Highway 76 to be his legal residence (Tr. 33). He moved to 3431 West Highway 76 in January, 2003 (Tr. 31, 64). He abandoned his previous residence in Stone County (Tr. 40). He intends to stay as a resident of Branson indefinitely (Tr. 40). He spends 3 or 4 nights / week at 3431 West Highway 76 with his wife (Tr. 34). He eats 90% of his meals at 3431 West Highway 76 (Tr. 33). He spends most of his time at 3431 West Highway 76 (Tr. 34). He keeps personal effects 3431 West Highway 76 (Tr. 34). He receives magazines and other mail at 3431 West Highway 76 (Tr. 35, 63). 17 The record also reflects that Thomas is a registered voter at 3431 West Highway 76 (Tr. 29, 106, L.F. 55), he voted in Branson Ward 1 at the presidential primary election in February 2004 (Tr. 29), and his driver's license reflects his residence address as 3431 West Highway 76, Branson (Tr. 29, L.F. 55). It is also significant that the City Clerk, in attempting to disqualify Thomas as a candidate, did not do so because he was not a resident of Branson, but because she could not verify "that he had met the one -year residency requirement." (Tr. 96). In issuing its Writ in Mandamus, even though the Court talked about the statutes and the Branson ordinance being "ambiguous" (Tr. 152) it was still the Court's to determination that Thomas was qualified to be a candidate in ordering the County Clerk to place him on the ballot (L.F. 36). In this matter, neither party requested findings of fact. Where, as here, the trial court makes no findings of fact, the Court of Appeals is to consider all fact issues to have been found in accordance with the result reached, that is, with the finding that Thomas was entitled to be certified as a candidate in the upcoming municipal election. Accordingly, all of evidence shall be viewed, and all inferences drawn, in the light most favorable to Thomas as the prevailing party, with this Court giving due regard to the trial court's determinations of credibility. Williams v. Williams, 99 S.W.3d 552, 556 (Mo.App.S.D. 2003). In that context, there is clearly sufficient evidence to affirm a finding that Thomas is a resident of the City of Branson 18 CONCLUSION WHEREFORE, in light of the foregoing, Relator/Respondent Thomas requests that this Court affirm that the trial court properly determined that the duties of the Branson City Clerk as election authority for municipal elections are ministerial in the acceptance and receipt of Declarations of Candidacy and in the certification of names as candidates for the ballot; that Thomas has timely filed his written, signed and sworn declaration of candidacy and has the right to be certified as a qualified candidate for Alderman of the City of Branson; that sufficient evidence was presented to establish that Thomas is a resident of the City of Branson, and has been for more than a year next preceding the election to be held on April 6, 2004; that the City Clerk had a duty to certify Thomas as a candidate; and that the County Clerk has a duty to place Thomas' name on the ballot. Having failed in that ministerial duty, mandamus is appropriate. Thomas prays that this Court affirm the ruling and judgment of the trial court, and the issuance of the Amended Peremptory Writ of Mandamus and Final Judgment; that the requests and prayer of Appellant be denied; that costs be assessed against Appellant, and for such other and further relief as to the Court seems fair, just and equitable. Respectfully submitted Stephen Bradford, MoBar 33678 P 0 Box 7297, Branson MO 65615 -7297 417 334 -4455; 417 336 -3131 fax email: sjb @styronlaw.com ATTORNEYS FOR RELATOR 19 CERTIFICATE OF COMPLIANCE AND FILING The undersigned certifies that two (2) complete copies of Respondent's Brief were served on Mr. Daniel. R. Wichmer, #39389 110 W. Maddux, Suite 200 Branson, MO 65616 Attorney for Appellant Mr. Bob Paulson Taney County Counselor PO Box 1086 Forsyth, MO 65653 Attorney for Respondent Donna Neeley The undersigned certifies that Respondent's Brief includes the information required by Rule 55.03; complies with the limitations contained in Rule 84.06(b) and contains approximately 4,530 words; the software uses is Microsoft Word; and the diskette provided to this Court has been scanned for virus and is virus -free. Stephen Bradford, #33678 Attorney for Respondent 20 APPENDIX Statutes §105.487 RSMo Al §115.124 RSMo A2 §115.127 RSMo A3 §115.346 RSMo A5 §115.347 RSMo A6 §115.355 RSMo A7 §115.526 RSMo A8 A 21 920 Mo. 128 SOUTH WESTERN REPORTER, 3d SERIES STATE of Missouri ex rel. James A. THOMAS, Relator/Respondent, v. Donna NEELEY, Taney County Clerk, Respondent, and Sandra Williams, in her capacity of City Clerk of Branson, Missouri, Respondent - Appellant. No. 26108. Missouri Court of Appeals, Southern District, Division One. March 23, 2004. Background: Declared candidate for al- derman brought petition for mandamus against city and county clerk after city clerk declined to certify him as election candidate due to residency requirements. The Circuit Court, Taney County, William R. Hass, S.J., granted the petition and issued writ. City clerk appealed. Holdings: The Court of Appeals, James IC. Prewitt, J., held that: (1) placement of' candidate on election bal- lot was ministerial duty subject to mandamus, and (2) evidence was sufficient to support find- ing that candidate met residency re- quirements. Affirmed. Garrison, J., concurred in the result. 1. Mandamus 0=187.2 An order awarding a peremptory writ of mandamus is appealable. 2. Mandamus x187.9(5) On appeal, the court reviews the grant of a writ of mandamus under an abuse of discretion standard; under that standard, the court will reverse the trial court's rul- ing only if it is so arbitrary and unreason- able as to shock the sense of justice and indicates a lack of careful consideration. 3. Mandamus c}71 Mandamus is the appropriate action when seeking to require the performance of an official of a ministerial act. 4. Mandamus c=71 A writ of mandamus will lie to compel a public official to do that which he or she is obligated by law to do and undo that which he or she was prohibited by law from doing. 5. Mandamus crz>72 A writ of mandamus cannot compel the performance of a discretionary, act. 6. Mandamus x71 A "ministerial act" subject to a writ of mandamus is one that law directs the pub- lic official to perform upon a given set of facts, independent of how the official may regard the propriety or impropriety of performing the act in any particular ease. See publication Words and Phrases for other judicial constructions and definitions. 7. Mandamus X12 A "discretionary act" not subject to writ of mandamus is one that requires the exercise of reason in determining how or whether the act should be performed. See publication Words and Phrases for other judicial constructions and definitions. 8. Mandamus cz;> 71 A writ of mandamus will only issue when there is an unequivocal showing that the public office failed to perform a minis- terial duty imposed by law. STATE EX REL. THOMAS v. NEELEY Cite as 128 S.W.3d 920 (Mo.App. S.D. 2004) 9. Mandamus a10 The party seeking a writ of manda- mus, the relator, must show a clear and specific right to the relief sought. 10. Mandamus d10 The relator seeking writ of mandamus must prove that he has a clear, unequivo- cal, specific, and positive right to have the official perform the act demanded, and the remedy will not lie if the right is doubtful. 11. Mandamus 0=10 To determine whether the right to mandamus is clearly established and exists currently, the court examines the statute under which the relator claims the right. 12. Appeal and Error «846(5), 852 When neither party requests specific findings of fact or conclusions of law, all fact issues are considered to have been found in accordance with the result reached by the trial court, and the judg- ment will be upheld on any reasonable theory supported by the evidence. 13. Mandamus x74(3) Placement of declared candidate on election ballot is ministerial duty of city clerk rather than discretionary decision, for purposes of writ of mandamus, if candi- date has met statutory obligations such as not being in arrears in taxes and timely filing written, signed, and sworn declara- tion of candidacy. V.A.M.S. § 79.070, 115.346, 115.347, subd. 1, 115.349. 14. Municipal Corporations 0=138 Evidence was sufficient to support finding that declared candidate for alder- man met residency requirement; candi- date signed declaration for candidacy and affidavit attesting that he met the residen- cy requirement, candidate testified that he considered hotel which he partially owned his residence, candidate's drivers license and voter registration form listed hotel as Mo. 921 his residence, and candidate testified that he ate 90% ninety percent of his meals at hotel, spent most of his time there, kept personal effects there, spent three or four nights a week there, and received mail there. V.A.M.S. § 79.070. 15. Municipal Corporations (3=138 Residency for election candidacy pur- poses is a question of fact that is to be determined from the acts and intentions of an individual citizen. V.A.M.S. § 79.070. Daniel R. Wichmer, Branson, for appel- lant. Stephen Bradford, Styron Law Firm, Branson, for relator- respondent. JAMES K. PREWITT, Judge. Sandra Williams ( "City Clerk"), in her capacity as the City Clerk of the City of Branson, Missouri, appeals from an amended peremptory writ of mandamus and final judgment that ordered her to immediately certify the name of Jim Thomas as a candidate for Alderman- Ward I of the City of Branson, Missouri at the election to be held on April 6, 2004." In that same judgment, Donna Neeley ( "County Clerk "), in her capacity as Taney County Clerk, was ordered to place Thom- as' name on the ballot as a candidate for alderman for the same election. City Clerk challenges the trial court's judgment with two points on appeal, as- serting that the trial court erred as a matter of law in entering the peremptory writ of mandamus in Thomas' favor be- cause there was no unequivocal ministerial or statutory duty for City Clerk to certify Thomas as a candidate and because Thom- as failed to present evidence that he met the residency requirement stated within § 79.070, RSMo 2000. 922 Mo. 128 SOUTH WESTERN REPORTER, 3d SERIES Facts On October 7, 2003, Thomas registered to vote in Taney County. A few days earlier, he had contacted the Stone County clerk's office to disenroll from Stone Coun- ty's voter rolls. When personnel in Coun- ty Clerk's office attempted to identify Thomas' proper polling place in Taney County, it was determined that the ad- dress Thomas listed on his voter registra- tion form, 3431 West Highway 76, in Bran- son, Missouri, was a business. Thomas had already been registered as a voter in Taney County when that determination was made. Although County Clerk never rejected Thomas' voter registration, she visited the property, which is a hotel called Lodge of the Ozarks, Inc., owned by a corporation of which Thomas owns seventy -one percent. Based on information from Thomas that he used room 465 of the hotel as his resi- dence, County Clerk checked the room and found no personal effects— toothbrush, ra- zor, clothes, etc. County Clerk did not look elsewhere on the property, such as Thomas' office. According to Thomas, on the three or four nights a week he stays there, he uses room 465, and has a "stand- ing order" for that room, although he was not opposed to the hotel management rent- ing the room if he was not staying there on a particular night. Thomas indicated that he showered and kept clothing "some- where besides that room." On January 16, 2004, Thomas completed a "Declaration of Candidate for Nomina- tion" form, in which he "announced" him- self as a candidate for the office of Alder- man–Ward I for the general election to be held April 6, 2004. Within this form, Thomas designated himself as a resident and registered voter of Taney County, re- siding at 3431 West Highway 76 in Bran- son, Missouri. The notarized form includ- ed an affidavit in which Thomas affirmed that the information contained therein was true. City Clerk signed the form twice, once as the "election official or other offi- cer authorized to administer oaths" and a second time within the affidavit portion of the form as the "officer accepting declara- tion." According to City Clerk, she was aware that the address Thomas used on the form was a business, which made her question whether Thomas met the residency re- quirement of § 79.070, RSMo 2000, which provides: No person shall be an alderman un- less he or she is at least twenty -one years of age, a citizen of the United States, and an inhabitant and resident of the city for one year next preceding his or her election, and a resident, at the time he or she files and during the time he or she serves, of the ward from which he or she is elected. City Clerk proceeded to investigate the matter. She "talked to the County" and was informed that Thomas had registered to vote in Taney County on October 7, 2003; she spoke with County Clerk, and they discussed County Clerk's own investi- gation of Thomas' alleged residence de- scribed above; she contacted the Secre- tary of State's Office, and someone there told her that she was "the election authori- ty as far as certifying "; and she contacted the clerk's office in Stone County and veri- fied that Thomas notified Stone County officials that he was changing his address "and was going to register in ... Taney County." Additional information from Stone County showed that Thomas had last voted in Stone County in November, 2002. City Clerk spoke with Thomas on Janu- ary 27, 2004, about her concern and asked him how long he had resided at the hotel; Thomas' initial response was that he had resided there since October, 2003. Upon STATE EX REL. THOMAS v NEELEY Cite as 128 S.W.3d 920 (Mo.App. S.D. 2004) further questioning, however, Thomas stated that he meant that he had regis- tered to vote in October, 2003, but had "resided [at the hotel] for 12 years." As the conversation between City Clerk and Thomas continued, she told him that she needed something to show that he met the residency requirement, such as a change of address form, utility bill, or ca- ble bill. Thomas informed City Clerk that he would speak with his attorney and bring her an affidavit. City Clerk insisted that she needed more than that, but Thom- as said, "[City Clerk], I'll get an affidavit to you." Thomas did provide an affidavit that afternoon, attesting that he had been an inhabitant and resident of Branson "for more than one year continuously next pre- ceding April 6, 2004," and a resident of the appropriate ward currently and at the time of filing for the office of alderman. Within the affidavit, Thomas listed 3431 West Highway 76 as his mailing address and residency. City Clerk determined that although Thomas was "not in arrears for any unpaid monies or fees to the City of Branson[,]" there was "no way that [she] could certify that [Thomas] had met the one -year resi- dency requirement." City Clerk informed Thomas that she "had no ability to certify a document to the County Clerk saying that he was qualified." Thomas was told of City Clerk's determination that he was ineligible for the April 6, 2004, election on January 27, 2004. Thomas filed a petition in mandamus on February 10, 2004, and the circuit court issued a preliminary order in mandamus that same day. On February 17, 2004, the court granted a motion adding City Clerk as a respondent; accepted Thomas' filing of a first amended petition, and executed a preliminary order in mandamus, directing County Clerk, City Clerk, and the City of Mo, 923 Branson, to file pleadings to Thomas' peti- tion in mandamus. A hearing was held on the matter on February 20, 2004, and a peremptory writ of mandamus filed that same day. Al- though City Clerk filed a notice of appeal on February 23, 2004, the trial court filed an amended peremptory writ of mandamus and final judgment on February 26, 2004, which reflected the court's intention for the peremptory writ of mandamus to be final for the purposes of appeal by adding the sentence, "This order is a final judg- ment under Rule 74.01 for purposes of appeal." Within the amended peremptory writ of mandamus, the court found that Thom- as had "timely filed his written, signed, and sworn declaration of candidacy for .Alderman-Ward I of the City of Branson, Missouri[,]" and that his name "was not certified to the Taney County Clerk as a candidate" for the alderman office for the April 6, 2004, election. City Clerk was "ordered to immediately certify the name of Jim Thomas as a candidate for Alder- man -Ward I of the City of Branson, Mis- souri, at the election to be held on April 6, 2004." County Clerk was "ordered to immediately place the name of Jim Thomas on the ballot as a candidate for Alderman -Ward I of the City of Branson, Missouri, at the election to be held on April 6, 2004[.]" Only City Clerk has ap- pealed, County Clerk has not, but has communicated to this Court that she agrees with City Clerk's brief. Discussion Standard of Review [1, 2] An order awarding a peremptory writ of mandamus is appealable. State ex rel. Selsor v. Grimshaw, 762 S.W.2d 868, 869 (Mo.App.1989). On appeal, we review the grant of a writ of mandamus under an abuse of discretion standard, Bergman v. 924 Mo. 128 SOUTH WESTERN REPORTER, 3d SERIES Mills, 988 S.W.2d 84, 88 (Mo.App.1999). Under that standard, we will reverse the trial court's ruling only if it is so arbitrary and unreasonable as to shock the sense of justice and indicates a lack of careful con- sideration. Id [3 -5] Mandamus is the appropriate ac- tion when seeking to require the perform- ance of an official of a ministerial act. Hunter v. County of Morgan, 12 S.W.3d 749, 764 (Mo.App.2000). A writ of manda- mus will lie to compel a public official to do that which he or she is obligated by law to do and undo that which he or she was prohibited by law from doing. See State ex rel. Burns v. Gillis, 102 S.W.3d 66, 68 (Mo.App.2003). Therefore, a writ of man- damus cannot compel the performance of a discretionary act. Id. [6-8] A ministerial act is one that law directs the public official to perform upon a given set of facts, independent of how the official may regard the propriety or impropriety of performing the act in any particular case. Jones v. Carnahan, 965 S.W.2d 209, 213 (Mo.App.1998). A discre- tionary act is one that requires the exer- c. se of reason in determining how or whether the act should be performed. Id. A writ of mandamus will only issue when there is an unequivocal showing that the public office failed to perform a ministerial duty imposed by law. Id. [9 -111 The party seeking a writ of mandamus, the relator, must show a clear and specific right to the relief sought. Sel- sor, 762 S.W.2d at 869. The relator must prove that he has a clear, unequivocal, specific, and positive right to have the official perform the act demanded, and the remedy will not lie if the right is doubtful. Jones, 965 S.W.2d at 213. To determine whether the right to mandamus is clearly established and exists currently, the court examines the statute under which the rela- tor claims the right. Id. [12] We also note that when neither party requests specific findings of fact or conclusions of law, all fact issues are con- sidered to have been found in accordance with the result reached by the trial court. Edmunds v. Sigma Chapter of Alpha Kap- pa, 87 S.W.3d 21, 29 (Mo.App.2002). Fur- ther, the judgment will be upheld on any reasonable theory supported by the evi- dence. Weatherwax v. Redding, 953 S.W.2d 162, 167 (Mo.App.1997). In our review, we are mindful of the trial court's opportunity to have judged the credibility of the witnesses and we accord due defer- ence in that regard. Lewis v. Gibbons, 80 S.W.3d 461, 466 (Mo.banc 2002). With the above standard of review in mind, we turn now to the specific points raised on appeal by City Clerk. Point I —No unequivocal showing of a ministerial or statutory duty [13] Within her first point, City Clerk asserts that the trial court erred as a matter of law in entering the peremptory writ of mandamus because there was no unequivocal showing that City Clerk failed to perform a ministerial or statutory duty. City Clerk points to comments made by the trial judge that did not make their way into the final judgment in which the trial judge indicated that he was going to order that Thomas' name be placed on the ballot, but further stated: Now, in doing that, I make no com- ment on whether he's a likable or unlika- ble fellow, because I don't know any- thing about him. But I do think this: every dog has got —has got one bite. And I think that what we've got here is that we've got a mess in these statutes and very little guidance on how to do it. And I'm convinced if, of nothing else, that after three hours, if I'm having a hard time making a determination of it, STATE EX REL. THOMAS v. NEELEY Cite as 128 S.W.3d 920 (Mo.App. S.D. 2004) it has to be impossible for a County Clerk to do it. The trial judge also stated that the stat- utes were "ambiguous, and the ambiguity must be resolved in favor of [Thomas]." Under § 79.320, RSMo 2000, the city clerk of a fourth class city (Branson's clas- sification) has duties and a term of office fixed by ordinance. The statute goes on to list particular duties, including keeping a journal of the proceedings of the board of aldermen, maintaining records and papers belonging to the city, serving as general accountant, and being empowered to ad- minister official oaths and oaths to persons certifying to demands or claims against the city. Under the ordinance within the City of Branson municipal code that specifies the appointment, duties, and term of the city clerk, City Clerk "[s]hall be the Election. Authority for the city and shall perform all duties required." Branson Municipal Code § 115.050 (2003). Under Missouri statute, § 115.055, RSMo 2000, "[e]ach election authority and its designated employees may administer oaths and perform all other duties neces- sary to register voters and conduct elec- tions." Section 115.346, RSMo 2000, states: "Notwithstanding any other provisions of law to the contrary, no person shall be certified as a candidate for a municipal . office, nor shall such person's name appear on the ballot as a candidate for such office, who shall be in arrears for any unpaid city taxes or municipal user fees on the last day to file a declaration of candidacy for the office." Section 71.005, RSMo 2000, provides that "[n]o person shall be a candi- date for municipal office unless such per- son complies with the provisions of section 115.346, RSMo, regarding payment of mu- nicipal taxes or user fees." We recall from the facts that City Clerk specifically noted Mo. 925 that Thomas was not in arrears on any such taxes or fees that would disqualify his certification as a candidate under these statutory provisions. Under § 115.347.1, RSMo 2000, "[n]o candidate's name shall be printed 071 any official ballot unless his written, signed and sworn declaration of candidacy has been filed in the office of the appropriate elec- tion official as provided in this subchap- ter." Here, Thomas filed the above-men- tioned declaration of candidacy in the City Clerk's office, who is, by ordinance, the election authority for the City of Branson. Section 115.347.2, RSMo 2000, provides that "[a]ny person filing a declaration of candidacy containing a false or forged sig- nature or containing the name of a nonex- istent or fictitious person shall be guilty of a class one election offense." Section 115.349, RSMo 2000, sets out the time for filing a declaration of candidacy and the form of that declaration. Al- though it speaks to declaration of candida- cy for nomination in a primary election, the declaration should include the candi- date's name, residence address, office for which he or she proposes to be a candi- date, the party ticket on which he or she wishes to be a candidate, and that if nomi- nated and elected, he or she will qualify. § 115.349.3, RSMo 2000. Under § 115.349.1, RSMo 2000, "no candidate's name shall be printed on any official pri- mary ballot unless the candidate has filed a written declaration of candidacy in the office of the appropriate election official by 5:00 p.m. on the last Tuesday in March immediately preceding the primary elec- tion." There is no dispute here that Thomas' "Declaration of Candidate for Nomination" contains the information out- lined in § 115.349.3, RSMo 2000, and was timely with respect to the April, 2004 elec- tion. 926 Mo. 128 SOUTH WESTERN REPORTER, 3d SERIES Although outlined above, § 79.070, RSMo 2000, provides: No person shall be an alderman un- less he or she is at least twenty -one years of age, a citizen of the United States, and an inhabitant and resident of the city for one year next preceding his or her election, and a resident, at the time he or she files and during the time he or she serves, of the ward from which he or she is elected. City Clerk draws our attention to Man- sur v. Morris, 355 Mo. 424, 196 S.W.2d 287 (1946). In that case, a court issued a writ of prohibition against a county clerk re- quiring that the clerk keep Mansur's name off the ballot. Id. at 288. Mansur himself, however, also filed a petition for a writ of prohibition to prevent the removal of his name from the ballot. Id. The Court considered a statutory provision that pro- vided that when a party central committee has issued a certificate of nomination for a county office under a separate specific statutory provision, to 511 a vacancy on the party ticket previously nominated, and ob- jections thereto are filed, the county clerk shall pass upon the objections and his deci- sion shall be final in the first instance, but subject to an order to the contrary, made in a summary judicial or quasi - judicial re- view on application of any interested party. 1d at 292-93 (internal quotations omitted). The Court noted a case in which it was held that the election authority had the power under the above- referenced statute to remove a relator's name from a ballot as a nominee for presidential elector -at- large, on the ground that the potential nominee was ineligible. Id. at 293. The Court distinguished that case by noting that no objections had been filed, as was true in the Mansur case. Id. The conclusion of the Court's analysis in the Mansur case was that the election authority's duty in- volving determining the eligibility of a po- tential candidate were discretionary. Id at 294. However, the Court determined that prohibition was the proper remedy as the election authority usurped judicial function by determining Mansur was eligi- ble for office. Id. City Clerk argues that she had the duty, as the election authority for the City of Branson, to determine the eligibility re- quirements of Thomas and other candi- dates for city offices, following the reason- ing of Mansur. We disagree. Section 115.015, RSMo 2000, provides that "[t]he county clerk shall be the elec- tion authority, except that in a city or county having a board of election commis- sioners, the board of election commission- ers shall be the election authority." There is no dispute that neither the City of Bran- son nor Taney County has a board of election commissioners. Under § 115.023, RSMo 2000, the elec- tion authority is to conduct all elections. Section 115051.1, RSMo 2000, provides that in a county where there is no board of election commissioners, the county clerk may employ staff members to help with the conduct of elections. As stated above, § 115.055, RSPvlo 2000, allows for election authorities and designated employees to "administer oaths and perform all other duties necessary to register voters and conduct elections." Section 115.115, RSMo 2000, outlines that the duty for the election authority to designate polling places, and the proce- dures to follow in so designating. Other sections, such as §§ 115.125, 115.127, and 115.391, RSMo 2000, discuss other duties of the election authority regarding the con- duct of elections, such as notification of elections, preparation of ballots, and the timing for the declaration of candidacy. One last statutory provision we will note here is § 115.353, RSMo 2000, which STATE EX REL THOMAS v. NEELEY Clue as 128 S.W.3d 920 (Mo,App. S.D. 2004) states, in part, that the declaration of can- didacy for any county office shall be filed "in the office of the county election author- ity." There is no similar statutory provi- sion for a city office. In her testimony at the hearing, County Clerk noted that, in her capacity as Taney County clerk, she would conduct the April 6, 2004, municipal election for the City of Branson. County Clerk pointed to such duties related to that, including the print- ing of ballots, after receiving a certified sample ballot from the City of Branson. City Clerk in her testimony agreed that County Clerk conducted the elections, and performed duties related to the conduct of elections, such as designating polling places and printing ballots. City Clerk testified that she (City Clerk) prints the sample ballot and sends it to County Clerk after certifying it. An exhibit was entered into evidence, a manual published by the Missouri Municipal League, a trade organ- ization for city clerks. According to City Clerk, based partly on the guidelines in the manual, she determined that it was part of her duties "to check for candidate qualifications." City Clerk also indicated that someone in the Secretary of State's office instructed her that she was the one to be making the residency determination for Thomas, "that the County Clerk only conducts the election[.]" Considering the statutes and testimony discussed above, we come to the conclusion that City Clerk does not have the discre- tion to decide whose names are placed on the ballot. We do agree though that City Clerk has, among her duties under the ordinance in which she is named the "elec- tion authority" for the City of Branson, a ministerial duty to certify the names of' candidates. However, where, as here a candidate met his statutory obligations, such as not being in arrears in taxes and timely filing his written, signed, and sworn Mo. 927 declaration of candidacy with the City Clerk's office, we find no basis under which City Clerk may make a discretion- ary decision not to certify the name of that candidate. It was not error for the trial court to enter a peremptory writ of mandamus on the grounds stated in Point I that there was no ministerial or statutory duty. Point I is denied. Point II— Thomas failed to meet the resi- dency requirement of ,§ 79.070 and there- fore failed to meet his burden for a writ of mandamus [14] In Point II, City Clerk argues that the trial court erred as a matter of law in issuing the peremptory writ of man- damus because Thomas failed to meet the residency requirement of § 79.070, RSMo 2000, and Thomas therefore, was not enti- tled to avail himself of mandamus. We disagree. Recall our standard of review above, in particular that in our review we our mind- ful of the trial court's opportunity to have judged the credibility of the witnesses and we afford the trial court due deference in that regard. Chowning v. Magness, 792 S.W,2d 438, 439 (Mo.App.1990). Also, when neither party requests specific find- ings of fact or conclusions of law, all fact issues are considered to have been found in accordance with the result reached by the trial court. Edmunds, 87 S.W.3d at 29. Further, the judgment will be upheld on any reasonable theory supported by the evidence. Weatherwax, 953 S.W.2d at 167. [15] Residency is a question of fact that is to be determined from the acts and . intentions of an individual citizen. Marre v. Reed, 775 S.W.2d 951, 954-55 (Mo. bane 1989). Here, we find that there was sub- stantial evidence before the trial court for it to have determined that Thomas met the residency requirement under § 79.070, 928 Mo. 128 SOUTH WESTERN REPORTER, 3d SERIES RSMo 2000, which is the only determina- tion on the fact issue of residency that is in accordance with the judgment. Thomas signed a declaration for candi- dacy attesting that he met the residency requirement and that, if elected, he would be qualified. In addition, he signed an affidavit, subject to § 115.347.2, RSMo 2000, under which "[a]ny person filing a declaration of candidacy containing a false or forged signature or containing the name of a nonexistent or fictitious person shall be guilty of a class one election offense." There was also evidence at trial regard- ing Thomas' acts and intentions. He tes- tified that, prior to January 2003, he con- sidered his Stone County address as his residence, but that, after that time, he considered the West Highway 76 address as his residence. Thomas is a known business man and investor in Branson, and also was politically involved, and had donated $16,000 to a Branson mayoral candidate on the ballot in April 2003. He testified that he was not "happy financial- ly" with what was occurring in Branson. Thomas' drivers license, although the rec- ord does not reflect the date of issuance, (but does reflect an expiration date of 4- 20 -2006) lists his residence as 3431. West Highway 76. Thomas testified that he eats ninety percent of his meals at that address, spends most of his time there, keeps personal effects there, and spends three or four nights a week there (along with his wife), and receives mail, including magazine subscriptions, there. Thomas was questioned on cross- exami- nation as to when he made his deteimina- tion to move to Branson. On cross- exami- nation by City Clerk's attorney, Thomas was asked whether he considered the hotel his residence before January 2003, to- which Thomas relied, "We planned to, yes, but we made the decision in January, sir. That's when it became definite." City Clerk's counsel also asked whether Thom- as' decision to move was as a result of the April 2003, elections and therefore, made subsequent to that time. Thomas an- swered that it was during that timeframe that he "made the definite decision to do so .... [ a]Ithough we'd [he and his wife] been planning [and] ... made the definite decision in —about in January, okay." Thomas was then asked about an exchange of questions and answers in his deposition: [Counsel for City Clerk]: So subsequent to that election, you said, "I'm going to make myself eligible. I'm going to start moving everything over here," correct? [Thomas]: I've become a resident, yes, of Ward I. [Counsel]: That's right. And that was subsequent to the April elections, cor- rect? [Thomas]: Yes. Returning to the cross - examination, Thomas protested that he was confused at the deposition, "I think you're correctly, but you —you had me circular. 'Subse- quent'—I d &d ^'t pick up on you. —I said `prior,' and I held to it every time that January is when we made the decision. You put —sort of —words in my mouth at the time." Later, on re -cross by County Clerk's counsel, Thomas was asked, "So the reason you —you moved over to Bran- son was because what happened in the April election was not favorable to your political point of view ?" Thomas replied, "That's when I made the definite time. However, we were planning on it other- wise— forgetting the politics of it." Essentially, it was for the trial court to weigh the credibility of the witnesses, and, as stated, there was ample evidence for the trial court to have found that Thomas met STATE EX REL. THOMAS v. NEELEY Mo. 929 out as 128 S.W.3d 920 (Mo.App. S.D. 2004) the residency requirement of § 79.070, Alderman -Ward L The judgment is af- RSMo 2000. Point II is denied. firmed. Conclusion The trial court did not abuse its discre- tion in granting a writ of mandamus in favor of Thomas, ordering City Clerk to certify Thomas' name as a candidate for BARNEY, P.J., concurs; GARRISON, J., concurs in result. aw♦ o S HEY NUMBER SYSTEM ``T Lee Salisbury '=1.0m: Lee Salisbury nit: Thursday, January 29, 2009 2:47 PM a: 'Bradford_Law @msn.com' Subject: City of Kenai position We are in receipt of, and thank you for submitting, your application for consideration regarding our City Attorney position. We will begin our review process in February. Please let us know if you have any questions. Lee Salisbury Legal Admin. Asst. City of Kenai 210 Fidalgo Avenue Kenai AK 99611 Tel. 907 283 -8225 Fax 907 283 -3014 CONFIDENTIALITY NOTICE: This electronic mail transmission may contain legally privileged information. The information is Intended for the use of the individual or entity named above. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution or taking any action based on the contents of this electronic mail is strictly prohibited. if you have received this electronic mail in error, please contact sender and delete all copies. Jannelle R.S. Combs 1706 North 6th Street Bismarck, ND 58501 (701) 306-0039 February 5, 2009 Lee Salisbury Legal Department Administrative Assista City of Kenai 210 Fidalgo Avenue Kenai, AK 99611 -7794 RE: Kenai City Attorney Position Dear Lee Salisbury: I apologize for the late submittal, but I did not find your advertisement until after the deadline had passed. I hope that the City Council will still consider my application. Enclosed please find my resume, references and writing sample for consideration of the City Attorney position with Kenai. I have experience with ten jury trials, many bench trials and several Minnesota appellate cases in my career. I have almost ten years of practical experience, including with Judges, city prosecutor offices private practice and government. I thoroughly enjoyed prosecuting work; however, it was not an area of law in which you could support your family for long term in Minnesota. Thank you for your time and consideration. We have viewed Kenai as the area of Alaska to which we ideally would like to move, so 1 do hope you will still consider my application for this position. I look forward to meeting with you as time allows. If you should have any questions, please feel free to contact me. Sincerely, Jannelle R.S. Combs Enc. Jannelle R.S. Combs 1706 North 6th Street Bismarck, North Dakota 58501 (701) 751 -2664 [home] (701) 306 -0039 [cell] Email: jannelle @stegerlawoffice.com WORK EXPERIENCE Attorney - Steger Law Office, Bismarck, ND, formerly LaFlair Law Office, Lake Park, MN October 2004 to Present • Prepare oil and gas title opinions • Civil practice of probate and business clients • Provide Title Company with residential title opinions and. advice • Assist other law fines in document preparation for city prosecution, probate, real estate and research matters Personal Speech Coach - Speaking with Success, Fargo, ND January 2007 to Present • Assist individuals in bettering their public speaking skills • Owner / Operator Transportation Management Officer II- Department of Transportation, Bismarck, ND February 2008 to August 2008 (temporary position) • Review contracts • Provide legal research, legal advice and assist General Counsel as necessary • Appointed Assistant Attorney General Partner- Th,orwaldsen, Malmstrom, Sorum, Wilson, LaFlair & Majors, Detroit Lakes, MN August 2000 to October 2004 • Mahnomen City Prosecutor and assist City Attorney as needed • Litigation of family, criminal and civil issues • Represent clients in general practice City Prosecutor- Solberg, Stewart, Miller, Johnson & Tjon, Fargo, ND April 2000 to August 2000 • Prosecute criminal cases for cities of Moorhead and Dilworth • Weekly meetings with zoning and fire department officials • Negotiate plea offers, research relevant issues and represent State in trial Law Clerk- Minnesota Seventh Judicial District, Moorhead, MN August 1999 to April 2000 • Research, draft memos and orders • Observe daily court activities and assist judge Jannelle R.S. Combs EDUCATION University of North Dakota School of Law —Grand Forks, North Dakota August 1996 to May 1999 • Juris Doctor degree in May 1999 With Distinction • Moot court quarterfinalist in Fall 1997 • Moot Court: Board Member and President • Carrigan Cup participant and certificate of merit winner (trial examination contest) • McLellan Scholarship recipient • 1999 Who's Who Among American Law Students and National Dean's List • 3.32 GPA and Dean's List • Order of the Barristers member North Dakota State University— Fargo, North Dakota June 1993 to May 1996 . • Bachelor of Science in History; Minor in Political Science • History Club President • Corwin Roach Scholarship recipient • Phi Eta Sigma and Pi Sigma Alpha member Hawaii Pacific University — Honolulu, Hawaii September 1992 to May 1993 • Honors Program • Freshman Class Representative • Environment Club member • English as a Second Language tutor WRITING SAMPLE Attached TRANSCRIPTS Available upon request REFERENCES Attached Jannelle R.S. Combs 1706 North 6th Street Bismarck, ND 58501 (701) 751 -2664 [home] (701) 306 -0039 [cell] Email: jannelle @stegerlawoffice.com REFERENCES Mary Sorum (former partner) Thorwaldsen, Malmstrom, Sorum & Majors, PLLP PO Box 1599 Detroit Lakes, MN 56501 -1599 (218) 847 -5646 Melinda Hansen - Weerts (worked with her as of counsel) One 2 "6 Street North, Suite Fargo, ND 58103 (701) 271 -9393 (Fargo office) (218) 596 -8470 (Ulen office) Rebecca Kendall (former paralegal in Thorwaldsen firm) 410 North 8"' Street PO Box 33 Rogers, AR 72757 -0033 (479) 846 -2008 (home) (479) 586 -4783 (work) On April 27, 2006, Plaintiff served Interrogatories to Defendant, namely Set 1 and Request for Production of Documents. Defendant provided a response to these documents dated June 2, 2006. See Exhibit A. Plaintiff contends that Defendant did not fully answer the Interrogatories nor did she answer the Request for Production. Plaintiff has informally requested the completion of these answers. See Exhibit B. Said requests have been denied, so Plaintiff commenced this Motion to Compel Discovery. This brief is in support of a Motion to Compel Discovery. FACTS As per the attached Exhibit A, Plaintiff contends that Defendant has not fully answered questions 4, 7, 8, 9 and 12 of the Interrogatories, as well as refusing to sign the release for the public assistance file in the Request for Production of Documents 1(b) and l(c). On the Interrogatory 4, Defendant only lists assets, but fails to answer the rest of the questions including the value at the time of the relationship and its present value and location or disposition information. In regards to Interrogatories 7, 9 and 12, Defendant objects to the questions as immaterial. Interrogatory 8, when requesting if there are any Liabilities against assets, the answer is listed as not applicable. This answer is vague and unclear as to whether liabilities do not apply to the present action or whether there are no liabilities against the assets. In regards to the Request for Production of Documents, Defendant claims that the application for public assistance was "confidential." Additionally Defendant refuses to release any documents relating to her possible prosecution for public assistance fraud. Plaintiff contends that the listing or non - listing of the real estate in the public assistance file is central to this case. Additionally, Plaintiff believes that Defendant's understanding of the value of her interest in the real estate be Listed on her public assistance application and file to assist in valuation. If these facts are determined to not be relevant once Plaintiff views the file, then the Court can determine at the time of trial that the information is immaterial. A Motion for Order Compelling Discovery is explicitly allowed under Minn.R.Civ.P. 37.01. Additionally, the Rules allow evasive or incomplete answers to be considered "a failure to disclose, answer, or respond." Id. I: Discovery is to be liberally allowed. In Minnesota, the Rules have liberally allowed the request and disclosure of information to provide for meaningful pre -trial knowledge. Parties may obtain discovery regarding any matter, not privileged, that is relevant to a claim or defense of any party....[r]elevant information sought need not be admissible at the trial if discovery appears reasonably calculated to lead to the discovery of admissible evidence. Minn.Civ.R. 26.02 (a) The free exchange of information provides for a complete depiction of the case at hand and will not only facilitate trial preparation but also any settlement efforts. If an objection to relating to privilege or relevancy is to be claimed, then it shall be made clearly. Objections shall state with particularity the grounds for the objection and may be served either as a part of the document containing the answers or separately. The party submitting the interrogatories may move for an order under Rule 37.01 with respect to any objection to or other failure to answer an interrogatory. Answers to interrogatories to which objection has been made shall be deferred until the objections are determined. Minn.Civ.R. 33.01.(c). In the case at hand, there were objections relating to confidentiality and that the information is immaterial. Since there is no immaterial objection in evidence at tria 2 Plaintiff will assume immaterial would equate to irrelevant. In this case, however, the information requested was very relevant. "Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Minn.R.E. 401. Further the comments after Rule 401 explain that "[t]he rule adopts a liberal as opposed to restrictive approach to the question of relevancy. If the offer has any tendency to make the existence of a fact of consequence more or less probable than it would be without the evidence it is relevant" II. The Information requested is relevant and not privileged. The question relating to the property of the Defendant is a standard one, to which Plaintiff just requests a complete, not partial, answer. The main issue is the public assistance file of the Defendant. The Defendant refuses to provide this release because the information is immaterial and confidential. The standard for admission of evidence, as stated above, is whether it is relevant and non - privileged. In this case, the information requested is both. A. RELEVANT The information in the public assistance file would have the tendency to make several material facts more or less probable. Minn.R.E. 401. The first is the issue of the type of ownership interest that the Defendant claims. She indicates that she has contributed to an increase in value of the real estate and that she believes her ownership interest was given because 3 of those contributions. However, Plaintiff believes that Defendant was to have a contingent interest in the property in case of his demise in return for the caregiving services which she had been anticipated to provide in the future. Plaintiff believes that his view of Defendant's ownership will be shown by her application for public assistance. Further Plaintiff believes that Defendant did not list the real estate as an asset on her application further evidencing that she believed she had no interest in the property once she left the Plaintiff's home. If the Defendant did list the asset, her idea of the valuation of her interest would be material to the determination for the Court of how much her interest is worth. The public assistance application appears to be the only thne that the Defendant was questioned regarding her interest in the real estate before the beginning of this litigation, so it is the only way for Plaintiff to find evidence regarding those issues. This is not a matter of a "fishing expedition," but rather a matter of the Plaintiff having knowledge that the public assistance file does exist and may contain valuable information, Cargill Inc. v. Jorgenson Fauns, 719 N.W.2d 226, 231 (Minn.App. 2006). Additionally the information provided might be relevant to statute of frauds exceptions. Berg v. Carlstrom, 347. N.W.2d 809, 812 (Minn. 1984). B. NON - PRIVILEGED "Nothing in these rules shall be deemed to modify, or supersede existing law relating to the privilege of a witness, person, government, state or political subdivision." Minn.R.Ev. 501. The Committee Comment from 1977 for Rule 501 provides for a list of privileges in the statute referenced as Minn Stat. §§ 595.02 to 595.025. Id. None of those exceptions listed apply in the present case. This is not a case of a public authority being forced to release information without knowledge of the person who submitted the information, but rather just a request for information 4 and a release to review one person's file. Concern about privacy does not equate to a legally enforceable right to privilege. Gunnufson v. Onan Corporation, 450 N.W.2d 179, 181 ( Minn.App. 1990). Even in cases such as Gunnufson were a non - party's information is ordered to be disclosed, there was no finding of privacy rights raising to the level of privilege. Id. In the present case, where we are only requesting a party's information, there is even a further lack of the right of privilege. 11. Attorney's fees and costs are allowed. If the Court grants this Motion or if the Defendant provides the information, the Court shall order reasonable expenses to be paid by the Defendant to Plaintiff for the costs of this motion. If the motion is granted, or if the requested discovery is provided after the motion was filed, the court shall, after affording an opportunity to be heard, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in making the motion, including attorney fees, unless the court fords that the motion was filed without the movant's first making a good faith effort to obtain the discovery without court action, or that the opposing party's nondisclosure, response, or objection was substantially justified or that other circumstances make an award of expenses unjust. Minn.Civ.R. 37.01(d)(1). If the Court finds the vague answers as well as the objection based on privilege are without merit, then reasonable attorney's fees and costs for this motion shall be ordered. Bowman v. Bowman, 493 N.W.2d 141, 145 -46 (Minn.App. 1992). CONCLUSION: The foregoing discussion demonstrates that the Interrogatories and Request for Production of Documents were related to non - privileged and relevant information. As such, 5 Plaintiff requests that the Motion to Compel be granted, ordering Defendant to fully answer the questions and provide the release of information regarding her public assistance file. Additionally, since the information was requested informally and denied, Plaintiff requests that attorneys' fees and costs also be assessed against the Defendant in the amount of $ Respectfully submitted this day of December, 2006. By: 6 Lee Salisbury Legal A.dminist ve Assistant Crom: Jannelle Steger Combs [ mailto :jannelle @stegerlawoffice.com] nt: Thursday, February 05, 2009 6:14 AM '0: Lee Salisbury Subject: Question regarding city attorney position Dear Lee Salisbury, I just saw your ad on your website for the City Attorney position, but it states it closed on Sunday. Is it active on the website by mistake still or would it be possible to submit an application late? Thank you so very much, Jannelle Combs. 2 Lee Salisbury From: Lee Salisbury ant: Thursday, February 05, 2009 10:48 AM ;: 'Jannelle Steger Combs' Subject: Kenai City Attorney position We are in receipt of, and thank you for submitting, your application for consideration regarding our City Attorney position. We have begun our review process. Please let us know if you have any questions. From: Jannelle Steger Combs [mailto:jannelle @stegerlawoffice.com] Sent: Thursday, February 05, 2009 10:35 AM To: Lee Salisbury Subject: RE: Question regarding city attorney position Thank you again. Attached is my submittal. From: Lee Salisbury [ mailto :lsalisbury@ci.kenai.ak.us] Sent: Thursday, February 05, 2009 1:21 PM To: Jannelle Steger Combs Subject: RE: Question regarding city attorney position Many of the applicants submitted via e -mail and you are welcome to do that. Faxing is also an option (907 283- ,14). Lee Salisbury From: Jannelle Steger Combs [ mailto :jannelle @stegerlawoffice.com] Sent: Thursday, February 05, 2009 10:21 AM To: Lee Salisbury Subject: RE: Question regarding city attorney position 1 appreciate your prompt response. '1'11 express mail off the package today. Thank you, Jannelle Combs. From: Lee Salisbury [ mailto :lsalisbury@ci.kenai.ak.us] Sent: Thursday, February 05, 2009 1:04 PM To: Jannelle Steger Combs Subject: RE: Question regarding city attorney position Ms. Combs. Although the application period has closed, you are welcome to submit your application. It will be up to City Council to determine whether or not they will consider your late application. kat k you for your interest. Lee Salisbury tom: Cary Graves ".nt: Monday, February 02, 2009 9:09 AM Lee Salisbury Subject: FW: City Attorney Attachments: RESUME for City Attorney Position.doc Lee, Rick received this on Saturday morning. Ca ry From: Rick Koch Sent: Monday, February 02, 2009 8:47 AM To: Cary Graves Subject: FW: City Attorney Rick R. Koch City Manager City of Kenai 110 Fidalgo Ave. enai, AK 99611 27)283 -8222 ,.,07)398 -0190 From: ddoylepc @comcast.net [mailto:ddoylepc @comcast.net] Sent: Saturday, January 31, 2009 6:21 AM To: Rick Koch; Rick Koch Subject: City Attorney Dear Mr. Koch: I write in reference to your solicitation for the position as City Attorney. Accordingly, I submit my credentials for your consideration. I have experience several years of experience in government administration in Canada and the USA. I also bring many years of legal expertise to this offering. I travel quite frequently back to the province of Alberta as I have family there. I miss the northwest and would like to make a permanent return. Thank you for receiving this as I am not sure if this would have gotten to the appropriate officials before the deadline. Respectfully, 7aniel T Doyle, Esquire t Daniel T. Doyle, Esq. 5 State Street, Blackstone, MA. 01504 (508) 883 -9509 Fax (508) 883-1357 Cell 508-294-4055 EDUCATION AFFILIATIONS EXPERIENCE 1992 - Present • Juris Doctorate Southern New England School of Law, North Dartmouth, MA. June 1991 • Bachelor of Science Rhode Island College, Providence, RI. 1977 • Certifications University of Idaho, Public Facilities Management • Teaching Credentials State of Rhode Island & Province of Alberta, Canada • Massachusetts Bar Association • Worcester Bar Association • Bar Advocate with CPCS assigned to Worcester County • Chairman Town Committee Daniel T. Doyle, P.C. Attorney • Admitted to Practice in the Massachusetts and Federal Courts June 1992 • Bar Advocate in. the Milford District Court • Legal Counsel for the Blacicstone Housing Corporation • Land use and Zoning trial experience • Contract negotiations and Business development • Certified for Superior Court Trial representaion • Children and Family Law- Educational Advocate • Family Law, Elder Law and Estate Planning 1990 - 1992 Environmental Recovery Systems, Inc. NE Director - Permitting • Coordinated the permitting process at federal, state and local levels for the development of regional solid waste recycling facilities. Development of business plans financial forecasts for acquisition of capital • Public speaking and presentations 1983 - 1990 Town of Blackstone, MA. Town Manager • Chief Executive Officer of the Town government. Developed and managed an annual fiscal plan, 5 -10 Million. • Managed a staff of municipal employees, 35 -50. Chief negotiator for all labor contracts for four Unions. 1977 - 1983 City of Fort McMurray, Alberta, Canada Director • Retained by the Province of Alberta as a member of a management team assigned to build a city in the Northeast sector of the Province to be called Fort McMurray, Alberta, Canada. • Administered an annual fiscal plan operational and capital, 15 - 20 Million • Managed a staff and supervisors, 3 supervisors and 100 employees • Contracts management for major infrastructure and superstructure developments for the government. Negotiated labor contracts for Public Employees Union Community Involvement and Activities Co- Founder & Chairman of the Blackstone Valley Boys & Girls Club Chairman & Historian for Ancient Order of Hibemians Div.17 Blackstone Lector for St. Paul's Church, Blackstone, MA 2007 Recipient of the Mass Bar /Worcester Bar Community Service Award Favorite sport — Dog Sledding in Northern Canada Lee Salisbury r=rom: Lee Salisbury snt: Monday, February 02, 2009 11:21 AM : 'dd oylepc @comcast. net' Subject: Kenai City Attorney position We are in receipt of, and thank you for submitting, your application for consideration regarding our City Attorney position. We have begun our review process. Please let us know if you have any questions. Your references and writing samples were not received — only one document was attached (your resume). Lee Salisbury Legal Admin. Asst. City of Kenai 2.10 Fidalgo Avenue Kenai AK 99611 TeL 907 283 -8225 Fax 907 283 -3014 CONFIDENTIALITY NOTICE: This electronic mail transmission may contain legally privileged information. The information is intended for the use of the individual or entity named above. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution or taking any action based on the contents of this electronic mall is strictly prohibited. if you have received this electronic mai( in error, please contact sender and delete all copies. 1 SUPPLEMENTAL FROM DANIEL DOYLE References Name: Carol Erskine Address: Worcester Juvenile Court City: Worcester Phone: (work) 508 -791 -7109 Relationship: Professional State: MA Zip Code: 01608 (home) 508- 839 -5518 Name: Elaine Z. Connors Address: 244 Lincoln Street City: Blackstone State: MA Zip Code: 01504 Phone: (work) 508- 898 -3800 Ext 394 (home) 508- 883 -2577 Relationship: Friend and myAccountant Name: David Shulman Address: 25 Lincoln Street City: Framingham Phone: (work) Relationship: Professional Name: Kenneth White State: MA Zip Code: 01702 (home) Address: 102 Bellingham Road City: Blackstone State: MA Zip Code: 01504 Phone: (work) retired (home) 508 -883 -7739 Relationship: Friend Name: William Rollins Address: 25 Staples Lane City: Blackstone State: MA Zip Code: 01504 Phone: (work) 508- 868 -1065 (home) 508- 883 -8251 Relationship: Friend and co- founder of Blackstone Valley Boys and Girls Club Commonwealth of Massachusetts Worcester, SS. Housing Court Department CA # 06 -CV -21 Roger Pepin, Plaintiff v. Paul Marvelle, Gary Jolicoeur, Jim Pitler and John Therrien, as they are Members of the Zoning Board of Appeals for the Town of Blackstone, Defendants TRIAL MEMORANDUM OF DEFENDANT, PAUL BRUYERE AND TOWN OF BLACKSTONE ZONING BOARD OF APPEALS Paul Bruyere is an individual who resides in the Town of Blackstone, Worcester County, Massachusetts. He is Trustee of the Bruyere Realty Trust, owner of the subject property of this action. The property is located at 43 Main Street, Blackstone, Massachusetts. The property is located in a commercial zone as identified in the Town of Blackstone Zoning Map. It is occupied solely by Paul Bruyere doing business as Island Cabinet and Millwork. Mr. Bruyere purchased the subject property in 2002 and operates his business at this site. The property is approximately 110 feet across the frontage on Main Street, Blackstone and extends 60 feet to the Blackstone River. The topography of the property is such that the elevation from the front to the rear at the Blackstone River is approximately a 30 -foot Page 1 of 11 drop off the river. The building was once used by the Blackstone Potato Chip Manufacturing Company. It is 5,000 square feet on the street level and another 5000 square feet in the lower level of the building. The property descends to the River another 10 -15 feet. The property adjacent to Mr. Bruyere's property on the northwesterly side is owned by the Plaintiff, Roger Pepin. There is approximately 10 feet between the two properties. Each owning 5 feet from each building. There is an existing concrete stairwell that covers the entire 10 feet between the properties to the secondary level that did not allow either party to descend safely to the river level of their respective properties without benefit of ladders. The concrete stairway is very old and existed at the time of the Blackstone Potato Chip factory, which ceased to exist by the mid 1980's. Paul Bruyere desired to improve the stairway on his portion of the land between his property and Mr. Pepin's. The old concrete stairway was not in compliance with building codes for inadequate run and rise to the stair treads as well as a lack of railings. The stairway did not allow Mr. Bruyere to gain access safely to the lower level of his building or to the back of his property at the river level. Mr. Bruyere obtained permission from the Town of Blackstone to construct a stairway. He also desired to construct a landing and access to the lower level of his building for his own use as well as proper and safe access to the rear of his property at the river grade. Mr. Pepin complained as to the issuance of the permit. He appealed to the Blackstone Zoning Board of Appeals who upheld the Building Inspector's decision to grant the permit. Mr. Pepin filed a complaint with this Court appealing the ZBA's decision. Paul Bruyere filed a petition for variance with the Blackstone Zoning Board of Appeals seeking relief from the side lot set hack in order to allow the stairway with the additional landing and lower stairway to remain under an approved variance. The ZBA granted the variance and Mr. Pepin appealed the matter to this Court. The Plaintiff, Mr. Pepin filed a Motion for Summary Judgment and after hearing the Court ordered that the matter be remanded to the ZBA for written findings as to why the variance was granted. The Blackstone ZBA issued their written findings, which have been submitted, to this Court as an exhibit. Page 2 of 11 Instead of the matter being further address by this Court, the Plaintiff elected to bring a new action on the same issues before the Land Court in Boston. The Defendant, Paul Bruyere argued successfully before the Land Court that the matter should return to the Housing Court for final disposition of the matter which brought us before this Court for trial. Mr. Bruyere contends that he has shown that the variance issued by the Blackstone Zoning Board of Appeals has merit and offers the following legal premise for the ZBA's actions. Further to this, Mr. Bruyere contends that Mr. Pepin, although an abutter to the subject property, he has not presented any evidence in his complaint or at trial that would give him credible standing to bring this action. Mr. Bruyere offers the following legal premise regarding Mr. Pepin's standing. 1. The Zoning Board Of Appeals Did Not Base Its Grant Of A Variance On A Legally Untenable Ground, Nor Did It Act In An Unreasonable, Whimsical, Capricious Or Arbitrary Manner In Granting The Variance The ZBA Acted Within Its Statutory Authority And In A Reasonable Manner Pursuant to G.L. c. 40A, § 10, a zoning board of appeals may grant a variance from the requirements of zoning upon a finding that owing to circumstances relating to the soil conditions, shape or topography of such land or structures and especially affecting such land or structures but not affecting generally the zoning district in which it is located, a literal enforcement of the provisions of the ordinance or by -law would involve a substantial hardship, financial or otherwise, to the petitioner or appellant, and that desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of such ordinance or by -law. Warren v. Zoning Board of Appeals of Amherst, 383 Mass. 1, 9 (1981). When a decision of a zoning board of appeals is challenged, "[t]he burden rests upon the person seeking a variance and the board ordering a variance to produce evidence at the hearing in the Superior Court that the statutory prerequisites Page 3 of 11 have been met and that the variance is justified." Dion v. Board of Appeals of Waltham, 344 Mass. 547, 555 -556 (1962). In this case, much of the work involved replacing a staircase at the side of the building. That staircase was necessitated by the rather unusual topography of the land which is described in detail in Mr. Pepin's memorandum. [Pepin Memorandum at 1 -2] ( "The land between Mr. Pepin's house and Mr. Bruyere's building on the locus is significantly lower than the street and there are two sets of concrete stairs from the sidewalk to the lower level of their respective properties, one on either side of the property line. "). Mr. Bruyere argues, and Chairman Marvelle specifically found, that due to the topography, the replacement of the stairway and landing was necessary for safety reasons. See Joseph v. Board of Appeals of Brookline, 362 Mass. 290, 293 (1972) (finding a hardship caused by topography where compliance with zoning would cause a safety issue by requiring the construction of an excessively steep access ramp). Construction of a doorway was also warranted in order to permit safe and easy access to the lower level of the building. Again, the need for such access is necessitated by the unusual topography of the land on which the building was constructed. Significantly, this is not a case where the hardship was self - created. Contrast Adams v. Brolly, 46 Mass. App. Ct. 1, 4 (1998). Finally, Pepin has failed to identify any detriment to the public good, substantial or otherwise, or any way in which granting the variance will nullify or substantially derogate from the intent or purpose of the by -laws. Contrast Chiancola v. Board Of Appeals Of Rockport, 65 Mass. App. Ct. 636, 637 -638 (2006) (variance properly denied where proposed driveway would have made access by emergency vehicles too precarious). Page 4 of 11 The reviewing Court should not disturb zoning board decisions unless the decision was based on a legally untenable ground or was unreasonable, whimsical, capricious or arbitrary. Mintz v. Roman Catholic Bishop of Springfield, 2006 W.L. 870952 (2006); Subaru of New England, Inc. v. Board of Appeals of Canton, 8 Mass. App. Ct. 483, 486 -488 (1979). There is a presumption in favor of the Board's familiarity with local conditions. Murray v. Board of Appeals of Barnstable, 22 Mass. App. Ct. 473, 479 (1986). The Court should sustain the Board's actions if any reason on which the Board can fairly be said to have relied has a basis in the trial judge's findings and is within the standards of the zoning bylaw and the Zoning Enabling Act. S. Zolpe & Co. v. Board of Appeals of Waltham, 4 Mass. App. Ct. 357, 360 (1976). The Court should affirm the Board's decision even if reasonable minds could reach differing conclusions from the evidence. Auburn v. Planning Board of Dover, 12 Mass App. Ct. 998, 999 (1981). In evaluating a Board's decision, the Court may not substitute its judgment for that of the Board. Hunters Br00% Realty Corp. v. Zoning Board of Appeals of Bourne, 14 Mass. App. Ct. 76 (1982). The Court "does not possess the same discretionary power as does the hoard, and the decision of the board can only be disturbed if it is based on a legally Page 5 of 11 untenable ground or is unreasonable, whimsical, capricious or arbitrary." Subaru of New England, Inc. v. Board of Appeals of Canton, 8 Mass. App. Ct. 483, 486 -488 (1979). The record clearly supports the ZBA's action. Not only did the decision satisfy the statutory requirements, but also Mr. Pepin has not shown that the decision was unreasonable, whimsical, capricious or arbitrary. 1 The Plaintiff, Pepin Lacks Standing To Challenge The Issuance Of The Variance, although the Plaintiff is an Immediate Neighbor, He Cannot Demonstrate That He Has Suffered Or Will Suffer Any Harm From The Decision Of The Zoning Board Of Appeals In their complaint, the plaintiff has failed to demonstrate or even address how he was harmed by the actions of either the Building Inspector or the Zoning Board of Appeals. As noted above, the plaintiff's property is adjacent to Mr. Bruyere's property but presents no claim of alleged harm to establish standing under G.L. c. 40A, § 17 nor can the Plaintiff claim standing for any alleged harm to general civic interests. In the absence of some demonstrable harm, the Plaintiff lacks standing to proceed with his claim, and Mr. Bruyere is entitled to a favorable judgment. "Standing is an issue of subject matter jurisdiction." Planning Board Of Marshfield v. Zoning Board Of Appeals Of Pembroke & another, 427 Mass. Page 6 of 1 I 699, 703 (1998), citing Ginther v. Commissioner of Ins., 427 Mass. 319, 322, (1998). Only a "person aggrieved" may challenge a decision of a zoning board under G.L. c. 40A, § 17. See Marashlian v. Zoning Bd. of Appeals of Newburyport & others, 421 Mass. 719, 721 (1996). While "abutters" enjoy a rebuttable presumption that they are "persons aggrieved ", owners of property in the general vicinity of the subject property enjoy no such presumption. Marashlian v. Zoning Bd. of Appeals of Newburyport & others, 421 Mass. at 721; Denneny v. Zoning Bd. of Appeals of Seekonk, 59 Mass. App. Ct. 208, 211- 212 (2003). An abutter whose standing is challenged or a plaintiff who is not an abutter and who seeks to establish standing to challenge a zoning decision "must put forth credible evidence to substantiate his allegations." Id., citing Bedford v. Trustees of Boston Univ., 25 Mass. App. Ct. 372, 377 (1988). See Marinelli v. Board of Appeals of Stoughton, 440 Mass. 255 (2003). In order to meet this burden, the plaintiff's evidence must be more than unsubstantiated claims or speculative personal opinions. See Denneny v. Zoning Bd. of Appeals of Seekonk, 59 Mass. App. Ct. at 212. Rather, the plaintiff must establish through specific facts an injury personal to him or her. See Valcourt v. Zoning Bd. of Appeals of Swansea, 48 Mass. App. Ct. 124, 127 -128 (1999), review denied 430 Mass. 1114; Harvard Square Defense Fund, Inc. v. Planning Page 7 of 11 Bd. of Cambridge, 27 Mass. App. Ct. 491 (1989) (individual or corporate property owners acquire standing to challenge zoning decision by asserting possible claim of definite violation of private right, private property interest, or private legal interest) review denied, 405 Mass. 1204. Generally, concerns about the visual impact of a structure do not confer standing to appeal a zoning decision. Denneny v. Zoning Bd. of Appeals of Seekonk, 59 Mass. App. Ct. at 212 -213; Barvenik v. Board of Aldermen of Newton, 33 Mass. App. Ct. 129, 131 -134 (1992) (personal dislike of architecture, distress at assumed interference with view, or unhappiness in existing vegetation were ineffective to confer standing on abutting landowners and their adjacent landowners to challenge construction of housing units for elderly citizens in two - family residence district). The burden of proof as to standing requires satisfaction that the plaintiff is one of a limited class of individuals who are entitled to challenge a zoning board's decision. To qualify for that limited class, a plaintiff must establish by direct facts and not by speculative personal opinion- that his injury is special and different from concerns of the rest of the community. He must show that his legal rights have been, or likely will be, infringed or his property interests adversely affected. Subjected and unspecific fears .... are all considered insufficient bases for aggrievement under Massachusetts Law. See Page 8 of 11 Id. At 132 -133. Further, a harm to the general civic interest in enforcement of zoning laws is not an injury sufficient to give rise to standing to challenge determination by town zoning hoard. See Id. at 212 -213 (a general civic interest in the enforcement of zoning laws is not enough to confer standing to appeal a zoning decision). Accord Planning Bd. of Marshfield v. Zoning Bd. of Appeals of Pembroke, 427 Mass. 699, 701 -703 (1998). While the term `person aggrieved' should not be construed narrowly, a plaintiff must be able to demonstrate, not merely speculate, that there has been some infringement of his legal rights." Denneny v. ZBA of Seekonk, 59 Mass.App.Ct. 208, 211 (2003). "The claimed injury or loss must be personal to the plaintiff, not merely reflective of the concerns of the community." Id. Here, nothing in the plaintiffs' complaint or in any other pleading establishes or even alleges the type of harm that would confer upon them standing to challenge the ruling in this case. Cf. Marashlian v. Zoning Bd. of Appeals of Newbuiyport, 37 Mass. App. Ct. 931, 932 -933 (1994) (owners of property located across street from proposed hotel for which zoning board of appeals granted special permit and variances failed to make specific showing that they would be injured or that such injury would be special and different from that Page 9 of 1 1 which others throughout the zone would experience), review granted, 419 Mass. 1102, affirmed, 421 Mass. 719. In fact, reading through the complaint, the plaintiff has failed to allege harm of any kind from the ZBA's decision. If because of the minimal contact between the side portions of the properties, the plaintiffs are considered to be abutters, Mr. Bruyere has certainly rebutted any presumption that the Plaintiff is a person aggrieved by the decision. In the absence of such a showing, they simply lack standing to proceed with their claims, and Mr. Bruyere is entitled to judgment in favor of the valid variance. Further to this, it should be stressed that during the trial, Mr. Pepin claimed that his harm was the fear of increased traffic along the walkway — and, since the building of the walkway (almost two years ago) Mr. Pepin admits there is NO increased traffic, in fact, the walkway and door are "hardly ever used." Mr. Pepin's other concern was that ivir. Buryere would use the lower area as a space of tenants — and, again, there was no evidence produced at trial to indicate that that was or would happen. In fact it was the Municipal Inspector, Mr. Rivet who stated that Bruyere would have to apply for a whole new round of permits if he were to put tenants in the building. Mr. Pepin has not demonstrated any harm (only the future possibility, although unlikely, of potential harm) and that is not enough to be considered an aggrieved party. Page 10 of 11 Conclusion Aside from the merits of the variance being appropriately issued by the Blackstone Zoning Board of Appeals, the facts, viewed in the light most favorable to the Plaintiff, fails to establish that he has standing to pursue the instant action or that there is any legal basis for reversing the order of the ZBA, Bruyere is entitled to judgment as a matter of law. Respectfully submitted, Paul Bruyere By his Attorney, Daniel T. Doyle, Esq. B.B.O. # 560520 61 Main Street Blackstone, MA 01504 (508) 883 -1130 Page 11 of 11 Repectfully Submitted Town of Blackstone ZBA By Their Attorney Jena M. Caruso, Esq, B.B.O. # 658637 Merrick, Louison & Costelllo 67 Batterymarch St. Boston, MA 02110 617- 439 -0305 David Greenstein 4006 Laird Place • Chevy Chase, MD 20815 (617) 543 -6258 (M) • david©greensteinlawoffice.com EXPERIENCE LEGAL Litigation • Insurance Coverage: Represent largest global insurance company against insured utility in insurance coverage litigation relating to environmental clean -up costs. Represent largest title insurance companies in coverage disputes. • Insurance Defense: Represent insured owners and institutional lenders in litigation to resolve real estate title disputes and claims. Document review in major fraud and breach of warranty case. • General: Represent contractors and individuals in mechanic's lien enforcement, breach of contract and boundary dispute actions. Transactional • Real Estate: Represent purchasers, sellers, lenders, lessors and lessees in residential and commercial real estate transactions, draft and negotiate transactional documents. Supervisory and direct responsibility for opening, processing, settling and post - closing commercial and residential sales, refinances and construction loans in multiple jurisdictions, including all legal, title, escrow and settlement work for entire condominium and subdivision projects with local and national developers. Administrative • Tax: Spearheaded new tax assessment appeals practice and appear before administrative boards on behalf of commercial and individual property owners to resolve property tax related issues. Corporate Represented software companies, both in -house and as outside counsel, in GSA Schedule 70 contract negotiation. Negotiated, drafted and managed various agreements for software and professional services. Advise management on contractual and business risks and attempt to measure, manage and mitigate or eliminate those risks. Counsel corporations on general commercial matters. Organized and advised small businesses. BUSINESS Management Managed title insurer regional office, started and managed title agency branch office and started and managed real estate brokerage. Responsible for an average of 10 direct reports. Responsibilities included staff hiring, training and mentoring, budget, administrative and operations management. Sales • Software (Engineering Design): Developed enterprise -wide software, training and consulting agreements. Led sales efforts that resulted in the single largest order from General Electric, in our software becoming the tool of choice for engineering design at United Technologies and at Lockheed Martin to secure and implement the largest ever defense contract ever awarded. Professional trainings include Negotiation, Solution Selling, Large Account Management, Leadership and Presentation Skills. • Title Insurance: Developed sales plans and marketing collateral to drive new business and grow existing business from commercial property owners, lenders, real estate attorneys, private equity firms, brokers and other potential sources. • Real Estate: Brokered sales and leases of commercial and residential properties. • Financial Services: Developed consultative investment relationships with individuals, small business owners, professionals and executives. Securities licenses included Series 7, 63, 65, MA Life & Health. Training • Software (Engineering Design): Trained new account managers in sales process, products and sales management systems. • Title Insurance: Trained attorney title agents in title examination, preparation and underwriting of title insurance policies and in operating title insurance agencies. Developed, organized and delivered various seminars and trainings. Assisted in the integration of technology into agency practices. • Real Estate: Trained new real estate agents in sales and leasing of commercial and residential properties. Compliance Performed audits of title insurance agency financial records and transaction files for compliance and fraud. EXPERIENCE Jackson & Campbell, P.C. Associate Attorney Washington, DC 2007 - Present Kase & Associates, P.C. Managing Attorney Bethesda, MD 2005 - 2007 Chicago Title Ins. Co. Agency Boston, MA 2003 - 2005 Representative Greenstein Law Office Attorney Newton, MA 2002 - 2005 Greenstein Real Estate Broker The MathWorks, Inc. Major Accounts Natick, MA 1997 - 2002 Manager Merrill Lynch Financial Consultant Boston, MA 1995 - 1997 Prudential Securities Assistant Wellesley, MA 1993 —1995 Financial Advisor EDUCATION Suffolk University Law School JD, with Honors Boston, MA 1998 - 2002 Manhattanville College BA Purchase, NY 1989 - 1993 MILITARY United States Air Force Reserves Westover AFB, MA 1992 - 2000 Bar Admissions Real Estate Title Insurance PROFESSIONAL LICENSES Massachusetts 2002 District of Columbia 2005 Maryland 2005 US Supreme Court 2006 Massachusetts 2003 Maryland 2005 Virginia 2006 REFERENCES Richard W. Bryan, Esq. a. President, Jackson & Campbell, PC b. (202) 457 -1638 c. Worked for him on complex litigation 2. Kara Wyrsch, Esq. a. Attorney, Kase & Associates, PC b. (240) 395 -2800 c. Supervised her 3. Craig Appaneal a. Business Development, Center for Creative Leadership b. (336) 383 -6412 c. Friend and worked together on same team 4. Jonathan Chenard a. Director of Services, GravityPeople b. (415) 725-8443 c. Friend and worked together COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. ONEBEACON AMERICA INSURANCE COMPANY, Plaintiff, V. NARRAGANSETT ELECTRIC COMPANY, Defendant. NARRAGANSETT ELECTRIC COMPANY, Plaintiff -in- Counterclaim, V. AMERICAN HOME ASSURANCE COMPANY, et at Defendants -in- Counterclaim. SUPERIOR COURT CIVIL ACTION NO. 05- 3086 -BLS -1 MOTION OF DEFENDANTS -IN- COUNTERCLAIM, AMERICAN HOME ASSURANCE COMPANY AND NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA, TO COMPEL DOCUMENT PRODUCTION ORGANIZATION OBLIGATIONS Defendants -in- Counterclaim American Home Assurance Company ( "American Home ") and National Union Fire Insurance Company of Pittsburgh, Pa. ( "National Union ") (collectively, the "AIG- Related Carriers "), by and through counsel, hereby submit this Motion for an Order to Compel Document Production Organization Obligations of Plaintiff -in- Counterclaim Narragansett Electric Company ( "NEC ") by ordering that it provide a categorized index which designates the general nature, source and origin for all documents produced by it in connection with this case within fifteen (15) days of the date of the Court's ruling hereon. A Memorandum and Affidavit, both in support of this Motion, have been served herewith. Pursuant to Superior Court Rule 9A(c)(2), the AIG- Related Carriers believe that a hearing will materially assist the Court in ruling on the matters raised in this Motion and hereby request that a hearing be held. Dated: September 23, 2008 Respectfully submitted, Richard W. Bryan, pro hac vice Julie S. Selesnick, BBO # 650968 A. David Greenstein, BBO #654478 JACKSON & CAMPBELL, P.C. 1120 20`h Street, NW South Tower Washington, DC 20036 Tel: (202) 457 -1600 Fax: (202) 457 -1678 Attorneys for Defendants -in- Counterclaim American Home Assurance Company and National Union Fire Insurance Company of Pittsburgh, Pa. 2 CERTIFICATE OF COMPLIANCE WITH RULE 9C Pursuant to Superior Court Rule 9C, I, A. David Greenstein, hereby certify that I, as counsel to the AIG- Related Carriers, participated in a meet - and - confer session with counsel for NEC to discuss the AIG- Related Carriers' request that NEC meet its organization obligations for the documents produced by it in connection with this case. Specifically, on August 29, 2008, I held a conference call with Jay Smith, counsel for NEC. The issues were fully discussed, but no agreement could be reached. Dated: September 23, 2008 3 A. David Greenstein COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. ONEBEACON AMERICA INSURANCE COMPANY, Plaintiff, V. NARRAGANSETT ELECTRIC COMPANY, Defendant. NARRAGANSETT ELECTRIC COMPANY, Plaintiff -in- Counterclaim, V. AMERICAN HOME ASSURANCE COMPANY, et at Defendants -in- Counterclaim. SUPERIOR COURT CIVIL ACTION NO. 05-3086-BLS-1 JPROPOSEDI ORDER Upon consideration of the Motion for an Order to Compel Document Production Organization Obligations, filed by Defendants -in- Counterclaim American Home Assurance Company and National Union Fire Insurance Company of Pittsburgh, Pa. (the "AIG- Related Carriers "), any Opposition thereto, any argument of' counsel thereupon, and the entire record herein, it is hereby: ORDERED, that pursuant to Massachusetts Rule of Civil Procedure 34(b), Plaintiff -in- Counterclaim Narragansett Electric Company shall provide the AIG- Related Carriers, within fifteen (15) days of this Order, a categorized index which designates the general nature, source and origin of all documents produced by it in connection with this case. Dated: IT IS SO ORDERED. Justice Ralph D. Gants Suffolk County Superior Court Copies to: All counsel of record. COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. ONEBEACON AMERICA INSURANCE COMPANY, Plaintiff, V. NARRAGANSETT ELECTRIC COMPANY, Defendant. NARRAGANSETT ELECTRIC COMPANY, Plaintiff -in- Counterclaim, V. AMERICAN HOME ASSURANCE COMPANY, et at Defendants -in- Counterclaim. SUPERIOR COURT CIVIL ACTION NO. 05- 3086 -BLS -1 MEMORANDUM IN SUPPORT OF MOTION OF DEFENDANTS-IN- COUNTERCLAIM, AMERICAN HOME ASSURANCE COMPANY AND NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA, TO COMPEL DOCUMENT PRODUCTION ORGANIZATION OBLIGATIONS Dated: September 23, 2008 Richard W. Bryan, pro hac vice Julie S. Selesnick, BBO # 650968 A. David Greenstein, BBO #654478 JACKSON & CAMPBELL, P.C. 1120 20 Street, NW South Tower Washington, DC 20036 Tel: (202) 457 -1600 Fax: (202) 457 -1678 Attorneys for Defendants -in- Counterclaim American Home Assurance Company and National Union Fire Insurance Company of Pittsburgh, Pa. TABLE OF CONTENTS BACKGROUND 1 ARGUMENT 2 CONCLUSION 5 TABLE OF AUTHORITIES RULES Mass. R. Civ. P. 34 2, 4 Super. Ct. R. 9A 1 Super. Ct. R. 9C 2 Fed. R. Civ. P. 34 3, 4 CASES Am. Intl Specialty Lines Ins. Co. v. NWI -I, Inc., 240 F.R.D. 401, 411 (N.D. Ill. 2007) 3 Google, Inc. v. Am. Blind & Wallpaper Factory, Inc., 2008 U.S. Dist. LEXIS 10845 (N.D. Cal. Feb. 8, 2008) 4 Okla. ex rel Edmondson v. Tysons Food, Inc., 2007 U.S. Dist. LEXIS 36308, at *16 (N.D. Okla. May 17, 2007) 3 Sparton Corp. v. United States, 77 Fed. Cl. 10, 19 (Cl, Ct. 2007) ....................................................................... ..............................3 Stiller v. Arnold, 167 F.R.D. 68 (N.D. Ind. 1996) 3 In re: Sulfuric Acid Antitrust Litig., 231 F.R.D. 351, 363 (ND. Ill. 2005) 4 United States v. O'Keefe, 537 F. Supp. 2d 14, 19 -20 (D.D.C. 2008) 3 Wagner v. Dryvit Sys., Inc., 208 F.R.D. 606,610 -11 (D. Neb. 2001) 4 ORDERS Consolidated Memorandum and Order on Narragansett Electric Company's Motions To Compel Responses To Interrogatories and Production of Documents dated June 23, 2008 4 iii Defendants -in- Counterclaim American Home Assurance Company ( "American Home ") and National Union Fire Insurance Company of Pittsburgh, Pa. ( "National Union ") (collectively, the "AIG- Related Carriers "), hereby submit this Memorandum in Support of their Motion to Compel Document Production Organization Obligations by Plaintiff -in- Counterclaim Narragansett Electric Company ( "NEC ") for documents produced by it in connection with this case. The AIG- Related Carriers respectfully request a hearing on this motion. See Super. Ct. R. 9A(c)(2). BACKGROUND By its First Amended Counterclaim, NEC, as the alleged successor -in- interest to Blackstone Valley Electric and Blackstone Valley Gas & Electric, is seeking insurance coverage with respect to its liability for pollution - related property damage at nine sites. NEC seeks coverage under policies allegedly underwritten by the Defendants -in- Counterclaim at various times between 1945 and 1986. Per agreement of the parties and Order of the Court, discovery and pre -trial activity are limited to the Tidewater MGP site and the Lawn Street disposal site. NEC has been served with document requests by the Defendants -in- Counterclaim and has produced almost 220,000 pages of documents, not including 227 additional boxes of documents to be made available for inspection, without providing a categorized index which designates the general nature, source and origin of all documents. Affidavit of A. David Greenstein Exs. 1 -8. NEC's vast, wide ranging, unorganized and unwieldy production includes an inordinate amount of repetition, irrelevant documents and many documents produced originally in a separate litigation, making it nearly impossible to wade through them in a remotely efficient or cost - effective manner. Apparently NEC agrees; NEC is clearly capable of providing and has attempted to provide some modicum of organization to the 227 boxes, although its organization remains woefully inadequate, particularly with respect to the rest of the production, where there is none. Greenstein Aff. Ex. 8. Under Rule 34(b), NEC is obligated to produce documents "as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the request." See Mass. R. Civ. P. 34(b). NEC has failed to comply with its Rule 34 obligations and should be ordered to do so. The AIG- Related Carriers provided a production log to NEC and made requests by phone and email throughout the discovery process, but NEC claimed that it was not aware of any obligation under the Rules to prepare any catalog, index, or chart listing categories of documents by Bates range for its document production. Greenstein Aff. Exs. 9 -11. Pursuant to Superior Court Rule 9C, the AIG- Related Carriers requested a meet - and - confer session to discuss the issues. During the meet and confer session between Mr. Greenstein and Mr. Jay Smith, counsel for NEC, on August 29, 2008, NEC claimed that it did not have the type of' organization to its document production that we were seeking and asking it to produce and contended that the Defendants -in- Counterclaim could organize the production themselves. Id. o 2. The AIG - Related Carriers and NEC were unable to reach an agreement, and the AIG- Related Carriers now move to compel NEC to comply with its Rule 34 obligations. ARGUMENT Massachusetts Rule of Civil Procedure 34(b) requires that a party who produces documents shall produce them "as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the request." Mass. R. Civ. P. 34(b). NEC claims that it does not have the type of organization to its document production that we are seeking and asking it to produce and contends that the Defendants -in- Counterclaim could organize the production themselves. It is difficult for the AIG - Related Carriers to believe that 2 NEC produced almost 220,000 documents and 227 additional boxes of documents to be made available for inspection without knowing what they are and where and who they came from. In fact, NEC must have some sort of categorized index to the documents because it complained that it sorted through over 1 million documents to get to the almost 220,000 produced, so there is no burden to producing a log or index to the Defendants -in- Counterclaim. With the unmanageable volume, repetition, irrelevant production and no organization to speak of, it is unreasonable for NEC to shift its burden to the AIG- Related Carriers. Numerous jurisdictions have interpreted an almost identical version of the Federal Rule 34 to require that a litigant do more than simply produce documents en masse, that Rule 34(b) "places the obligation on the responding party to `organize and label' the documents which are produced for inspection." and have required the producing party to index the documents to render them usable by the requesting party. See Stiller v. Arnold, 167 F.R.D. 68, 71 (N.D. Ind. 1996) (production of 7000 documents in no apparent order does not comply with a party's obligation under Rule 34(b)); United States v. O'Keefe, 537 F. Supp. 2d 14, 19 -20 (D.D.C. 2008), quoting Okla. ex rel Edmondson v. Tysons Food, Inc., 2007 U.S. Dist. LEXIS 36308, at *16 (N.D. Okla. May 17, 2007) (requiring producing party to create a "complete and fully accurate index "); Sparton Corp. v. United States, 77 Fed. Cl. 10, 19 (CL Ct. 2007) (criterion is whether the documents are so disorganized that it would be unreasonable for the requesting party to review the documents; producing party may not provide documents in "mass of undifferentiated, unlabeled documents" but must provide them in some "organized, indexed fashion "); Am. Intl Specialty Lines Ins. Co. v. NWI -I, Inc., 240 F.R.D. 401, 411 (N.D. Ill. 2007) (party providing access to warehoused documents with master index failed to comply with Rule 34(a) where some boxes were inaccurately labeled and 1,778 boxes either had no labels or labels did not provide 3 indicia of contents of boxes); Wagner v. Dryvit Sys., Inc., 208 F.R.D. 606, 610 -11 (D. Neb. 2001) (directing plaintiffs to search through volumes of irrelevant information does not comply with Rule 34(a); that producing party has unwieldy record keeping system that requires much time and effort to find anything is no excuse); In re: Sulfuric Acid Antitrust Litig., 231 F.R.D. 351, 363 (N.D. Ill. 2005) (producing party may not dump massive amounts of documents in no logical order on their opponents; undifferentiated production...will not do). It is unlikely that NEC kept these documents in cardboard boxes or on CDs or DVDs as part of its substantive business operations, but it is highly likely that they originated from many sources and NEC must organize them accordingly. "A party's option to produce documents is not absolute." Google, Inc. v. Am. Blind & Wallpaper Factory, Inc., 2008 U.S. Dist. LEXIS 10845 (N.D. Cal. Feb. 8, 2008). Finally, in keeping with the spirit of the discovery order entered in this cases it is clear that the court prefers disclosure, clarity and detail in discovery responses as opposed to obfuscation in the form of a massive document dump. NEC's claim that it has no obligation to do anything other than produce almost 220,000 pages of documents and 227 additional boxes of documents to be made available for inspection, without providing a categorized index which designates their general nature, source and origin violates its duties under Rule 34 as well as the spirit of the discovery order entered in this case. Accordingly, NEC should be required to produce its responsive documents in an organized, indexed manner that provides the AIG- Related Carriers the ability to decipher which requests have been properly addressed without the undue burdens of time and expense involved in wading through the obfuscation presented by a vast, wide ranging, unorganized and unwieldy document I See Consolidated Memorandum and Order on Narragansett Electric Company's Motions To Compel Responses To Interrogatories and Production of Documents dated June 23, 2008. 4 production. NEC should not be allowed to "hide the ball" and attempt to beat the AIG- Related Carriers into submission with its massive document dump. The nature of its production warrants the imposition of the duty to provide a categorized index that designates the general nature, source and origin of the documents produced by it in this case. CONCLUSION For the reasons set forth above, the AIG- Related Carriers respectfully request that NEC be compelled to provide a categorized index to its documents that designates their general nature, sources and origins. Dated: September 23, 2008 Respectfully submitted, Richard W. Bryan, pro hac vice Julie S. Selesnick, BBO # 650968 A. David Greenstein, BBO #654478 JACKSON & CAMPBELL, P.C. 1120 20th Street, NW South Tower Washington, DC 20036 Tel: (202) 457 -1600 Fax: (202) 457 -1678 Attorneys for Defendants -in- Counterclaim American Home Assurance Company and National Union Fire Insurance Company of Pittsburgh, Pa. 5 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. ONEBEACON AMERICA INSURANCE COMPANY, Plaintiff, V. NARRAGANSETT ELECTRIC COMPANY, Defendant. NARRAGANSETT ELECTRIC COMPANY, Plaintiff -in- Counterclaim, V. AMERICAN HOME ASSURANCE COMPANY, et al. Defendants -in- Counterclaim. SUPERIOR COURT CIVIL ACTION NO. 05-3086-BLS-1 AFFIDAVIT IN SUPPORT OF MOTION OF DEFENDANTS -IN- COUNTERCLAIM, AMERICAN HOME ASSURANCE COMPANY AND NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA, TO COMPEL DOCUMENT PRODUCTION ORGANIZATION OBLIGATIONS I, A. David Greenstein, hereby depose and say as follows: 1. I am an attorney associated with Jackson & Campbell, P.C., counsel for the Defendants -in- Counterclaim American Home Assurance Company and National Union Fire Insurance Company of Pittsburgh, PA in this action and a member in good standing of the Bars of the Commonwealth of Massachusetts, the District of Columbia and the State of Maryland. I submit this affidavit in support of the Motion of Defendants -in- Counterclaim, American Home Assurance Company and National Union Fire Insurance Company of Pittsburgh, PA, to Compel Document Production Organization Obligations. I am competent to testify as to these facts and have personal knowledge of the matters set forth herein. 2. During an August 29, 2008 Super. Ct. R. 9C meet - and - confer session, Plaintiff -in- Counterclaim Narragansett Electric Company claimed that it did not have the type of organization to its document production that we were seeking and asking it to produce and contended that the Defendants -in- Counterclaim could organize the production themselves. 3. Attached as Exhibits to this Affidavit are true and correct copies of the following documents: Exhibit Document Date Exhibit 1 Letter from Roger A. Ford Accompanying First Production May 19, 2008 Exhibit 2 Letter from Roger A. Ford Accompanying Second Production June 6, 2008 Exhibit 3 Letter from Roger A. Ford Accompanying Third Production . , June 20, 2008 Exhibit 4 Letter from Roger A. Ford Accompanying Fourth Production July 11, 2008 Exhibit 5 Letter from Roger A. Ford Accompanying Fifth Production July 25, 2008 Exhibit 6 Letter from Roger A. Ford Accompanying Sixth Production August 11, 2008 Exhibit 7 Letter from Roger A. Ford Accompanying Seventh Production September 12, 2008 Exhibit 8 Letter from Abram J. Pafford RE: Document Inspection September 12, 2008 Exhibit 9 Email from Julie S. Selesnick to Roger A. Ford May 20, 2008 Exhibit 10 Email from Roger A. Ford to Gerard C. Morici June 30, 2008 Exhibit 11 Email from Allan B. Moore to Richard W. Bryan July 11, 2008 I declare under penalty of perjury that the foregoing is true and correct. Executed in Washington, DC on September 23, 2008. A. David Greenstein Subscribed and sworn before me on September 23, 2008. 2 Notary Public My Commission Expires: DEBORAH A. STEWART Notary Public District of Columbia My Commission FY.^ rAS September 30, 2010 CERTIFICATE OF SERVICE I, A. David Greenstein, hereby certify that a true and correct copy of the Motion of Defendants -in- Counterclaim, American Home Assurance Company and National Union Fire Insurance Company of Pittsburgh, Pa., to Compel Document Production Organization Obligations, the Proposed Order, Memorandum and Affidavit in Support of the same were served upon all counsel of record by first -class mail on September 23, 2008. A. David Greenstein h',XHIBTT 1 COVINGTON & BURLING LLP 1201 PENNSYLVANIA AVENUE NW WASHINGTON. DC 20004.2401 TEL 202.662.8000 FAX 202.562.8201 W W W.COV.COM WASHINGTON NEW YORK SAN FRANCISCO LONDON BRUSSELS VIA OVERNIGHT COURIER AND ELECTRONIC MAIL Robert J. Keane, Esq. Mendes & Mount LLP 750 Seventh Avenue New York NY 10019 Shane R. Heskin, Esq. Craig H. O'Neill, Esq. John J. Lawson, Esq. White and Williams LLP 1800 One Liberty Place Philadelphia PA 19103 -7395 Re: Dear Counsel: ROGER A. FORD TEL 202.882.5290 FAX 202.778.5290 RFORD 9 COV. COM May 19, 2008 Kevin J. O'Connor, Esq. Hermes, Netburn, O'Connor & Spearing, PC 265 Franklin Street, 7th Floor Boston MA 02110 -3113 Richard W. Bryan, Esq. Julie S Selesnick, Esq. A. David Greenstein, Esq. Jackson & Campbell, PC One Lafayette Centre, South Tower 1120 20th Street NW Washington DC 20036 -3437 OneBeacon America Insurance Co. v. Narragansett Electric Co., Suffolk Super. Ct. Civ. No. 05- 3086 -BLS -I Please find enclosed Narragansett's first production in response to the Counterclaim Defendants' First Set of Requests for Production of Documents. We are making this production subject to the Court's Protective Order of October 19, 2007 and to the Parties' Stipulation Regarding Inadvertent Disclosure, by which you have agreed to be bound. The enclosed production includes documents bearing Bates numbers D- 052467 through D- 095471. Sincerely yours, Roger A. Ford Enclosure EXHIBIT 2 COVINGTON & 1201 PENNSYLVANIA AVENUE NW WASHINGTON, DC 20004 -2401 TEL 202.662.6000 FAX 202.662.6201 W W W.COV. COM BURLING LLP WASHINGTON NEW YORK SAN FRANCISCO LONDON BRUSSELS VIA OVERNIGHT COURIER AND ELECTRONIC MAIL Robert J. Keane, Esq. Mendes & Mount LLP 750 Seventh Avenue New York NY 10019 Shane R. Heskin, Esq. Craig H. O'Neill, Esq. John J. Lawson, Esq. White and Williams LLP 1800 One Liberty Place Philadelphia PA 19103 -7395 Re: Dear Counsel: ROGER A. FORD TEL 202.662.6290 FAX 202.778.6200 RFORD B COV.COM June 6, 2008 Kevin J. O'Connor, Esq. Hermes, Netburn, O'Connor & Spearing, PC 265 Franklin Street, 7th Floor Boston MA 02110 -3113 Richard W. Bryan, Esq. Julie S. Selesnick, Esq. A. David Greenstein, Esq. `Jackson & Campbell, PC One Lafayette Centre, South Tower 1120 20th Street NW Washington DC 20036 -3437 OneBeacon America Insurance Co. v. Narragansett Electric Co., Suffolk Super. Ct. Civ. No. 05- 3086 -BLS -I Please find enclosed Narragansett's second production in response to the Counterclaim Defendants' First Set of. Requests for Production of Documents. We are making this production subject to the Court's Protective Order of October 19, 2007 and to the Parties' Stipulation Regarding Inadvertent Disclosure, by which you have agreed to be bound. The enclosed production includes documents bearing Bates numbers D- 095472 through D- 107607. Sincerely yours, Roger A. Ford Enclosure EXHIBIT 3 COVINGTON & BURLING LLP 1201 PENNSYLVANIA AVENUE WASHINGTON, DC 20004 -2401 TEL 202.662.6000 FAX 202.662.6291 W W W.COV.COM NW WASHINGTON NEW YORK SAN FRANCISCO LONDON BRUSSELS VIA OVERNIGHT COURIER AND ELECTRONIC MAIL Robert J. Keane, Esq. Mendes & Mount LLP 750 Seventh Avenue New York NY 10019 Shane R. Heakin, Esq. Craig H. O'Neill, Esq. John J Lawson, Esq. White and Williams LLP 1800 One Liberty Place Philadelphia PA 19103 -7395 Re: ROGER A. FORD TEL 202.662.5290 FAX 202,778.5200 RFORD e COV.COM June 20, 2008 Kevin J. O'Connor, Esq. Hermes, Netburn, O'Connor & Spearing, PC 265 Franklin Street, 7th Floor Boston MA 02110 -3113 Richard W. Bryan, Esq. Julie S. Selesnick, Esq. A. David Greenstein, Esq. Jackson & Campbell, PC One Lafayette Centre, South Tower 1120 20th Street NW Washington DC 20036 -3437 OneBeacon America Insurance Co. v. Narragansett Electric Co., Suffolk Super. Ct, Civ, No. 05- 3086 -BLS -I Dear Counsel: Please find enclosed Narragansett's third production in response to the Counterclaim Defendants' First Set of Requests for Production of Documents. We are making this production subject to the Court's Protective Order of October 19, 2007 and to the Parties' Stipulation Regarding Inadvertent Disclosure, by which you have agreed to be bound. The enclosed production includes documents bearing Bates numbers D- 107608 through D- 129648. Sincerely yours, Roger A. Ford Enclosure RXHIBIT 4 COVINGTON & BURLING LLP 1201 PENNSYLVANIA AVENUE NW WASHINGTON, DC 20004 -2401 TEL 202.662.6000 FAX 202.662.6291 W W W.COV.COM Via Email and Fedex Robert J. Keane, Esq. Mendes & Mount LLP 750 Seventh Avenue New York NY 10019 BRUSSELS LONDON NEW YORK SAN FRANCISCO WASHINGTON Shane R. Heskin, Esq. Craig H. O'Neill, Esq. John J. Lawson, Esq. White and Williams LLP 1800 One Liberty Place Philadelphia PA 19103-7395 Re: ROGER A. FORD TEL 202.862.6200 FAX 202.178.8290 RFORD D OOV.COM July 11, 2008 Kevin J. O'Connor, Esq. Hermes, Netburn, O'Connor & Spearing, PC 265 Franklin Street, 7th Floor Boston MA 02110 -3113 Richard W. Bryan, Esq. Julie S. Selesnick, Esq. A. David Greenstein, Esq. Jackson & Campbell, PC One Lafayette Centre, South Tower 1120 20th Street NW Washington DC 20036 -3437 OneBeacon America Insurance Co. v. Narragansett Electric Co., Suffolk Super. Ct. Civ. No. 05- 3086 -BLS -I Dear Counsel: Please find enclosed Narragansett's fourth production in response to the Counterclaim Defendants' First Set of Requests for Production of Documents. As with our prior productions, we are making this production subject to the Court's Protective Order of October 19, 2007 and to the Parties' Stipulation Regarding Inadvertent Disclosure, by which you have agreed to be bound. The enclosed production includes documents bearing Bates numbers D- 129649 through D- 144509. Sincerely yours, Roger A. Ford Enclosure h;XHIBIT 5 COVINGTON & BURLING LLP 1201 PENNSYLVANIA AVENUE NW WASHINGTON, OC 20004 -2401 TEL. 202.082,0000 FAX 202.852,5251 W W W.COV.COM Via Email and Fedex Robert J. Keane, Esq. Mendes & Mount LLP 750 Seventh Avenue New York NY 10019 BRUSSELS LONDON NEW YORK f SAN FRANCISCO WASHINGTON Shane R. Heskin, Esq. Craig H. O'Neill, Esq. John J. Lawson, Esq. White and Williams LLP 1800 One Liberty Place Philadelphia PA 19103 -7395 Re: ROGER A, FORD TEL 202.882.5200 FAX 202.770.5280 RFORO 0 COV,COM July 25, 2008 Kevin J. O'Connor, Esq. Hermes, Netburn, O'Connor & Spearing, PC 265 Franklin Street, 7th Floor Boston MA 02110 -3113 Richard W, Bryan, Esq. Julie S. Selesnick, Esq. A. David Greenstein, Esq. Jackson & Campbell, PC One Lafayette Centre, South Tower 1120 20th Street NW Washington DC 20036 -3437 OneBeacon America Insurance Co. u. Narragansett Electric Co., Suffolk Super. Ct. Civ. No. 05 -3086 -BLS -I Dear Counsel: Please find enclosed Narragansett's fifth production in response to the Counterclaim Defendants' First Set of Requests for Production of Documents. As with our prior productions, we are making this production subject to the Court's Protective Order of October 19, 2007 and to the Parties' Stipulation Regarding Inadvertent Disclosure, by which you have agreed to be bound. The enclosed production includes documents bearing Bates numbers D- 144510 through D- 157249. Sincerely yours, /7-9c Roger A. Ford Enclosure HXHIBIT 6 COVINGTON & BURLING LLP 1201 PENNSYLVANIA AVENUE NW WASHINGTON, DC 20004-2401 TEL 202.682.6000 FAX 202.662.0291 W W W.COV.COM Via Email and Fedex BEIJING BRUSSELS LONDON NEW YORK SAN FRANCISCO WASHINGTON Kevin J. O'Connor, Esq. Brian D. Lajeunesse, Esq. Hermes, Netburn, O'Connor & Spearing, PC 265 Franklin Street, 7th Floor Boston MA 02110 -3113 Shane R. Heskin, Esq. Craig H. O'Neill, Esq. John J. Lawson, Esq. White and Williams LIP 1800 One Liberty Place Philadelphia PA 19103 -7395 Dear Counsel: ROGER A. FORD TEL 202.862.5290 FAX 202.778.5290 RFORO R COV.00M August 11, 2008 Robert J. Keane, Esq. Mendes & Mount LLP 750 Seventh Avenue New York NY 10019 Richard W. Bryan, Esq. Julie S. Selesnick, Esq. A. David Greenstein, Esq. Jackson & Campbell, PC One Lafayette Centre, South Tower 1120 20th Street NW Washington DC 20036-3437 Re: OneBeacon America Insurance Co. u. Narragansett Electric Co., Suffolk Super. Ct. Civ. No. 05 -3086 -BLS -I Please find enclosed Narragansett's sixth production in response to the Counterclaim Defendants' First Set of Requests for Production of Documents. This completes our primary document production in response to the insurers' requests, with the exception of three boxes of documents which were recently scanned and are in the process of being reviewed. As with our prior productions, we are making this production subject to the Court's Protective Order of October 19, 2007 and to the Parties' Stipulation Regarding Inadvertent Disclosure, by which you have agreed to be bound. The enclosed production includes documents bearing Bates numbers D- 157250 through D- 209687. It also includes a DVD, labeled D- VIDEO -1, containing video digitized from 8 -mm and 16 -mm film recorded after the 1938 hurricane. Sincerely yours, /17.- Roger A. Ford Enclosure HXHIBIT 7 COVINGTON & BURLING LLP 1201 PENNSYLVANIA AVENUE NW WASHINGTON, DC 20004 -2401 TEL 202.682.6000 FAX 202.662.6291 W W W.COV.COM Via Email and Fedex BEIJING BRUSSELS LONDON NEW YORK SAN FRANCISCO WASHINGTON Kevin J. O'Connor, Esq. Brian D. Lajeunesse, Esq. Hermes, Netburn, O'Connor & Spearing, PC 265 Franklin Street, 7th Floor Boston MA 02110 -3113 Shane R. Heskin, Esq. Craig H. O'Neil, Esq. John J. Lawson, Esq. White and Williams LLP 1800 One Liberty Place Philadelphia PA 19103 -7395 ROGER A. FORD TEL 202.662.6290 FAX 202.778.8290 RFORO ® COV.COM September 12, 2008 Robert J. Keane, Esq. Mendes & Mount LLP 750 Seventh Avenue New York NY 10019 Richard W. Bryan, Esq. Julie S. Selesnick, Esq. A. David Greenstein, Esq. Jackson & Campbell, PC One Lafayette Centre, South Tower 1120 20th Street NW Washington DC 20036 -3437 Re: OneBeacon America Insurance Co. v. Narragansett Electric Co., Suffolk Super. Ct. Civ. No. 05- 3086 -BLS -I Dear Counsel: Please find enclosed Narragansett's seventh production in response to the Counterclaim Defendants' First Set of Requests for Production of Documents. As with our prior productions, we are making this production subject to the Court's Protective Order of October 19, 2007 and to the Parties' Stipulation Regarding Inadvertent Disclosure, by which you have agreed to be bound. The enclosed production includes documents bearing Bates numbers D- 209688 through D- 219993. Sincerely yours, ,(7,9<z-7 Roger A. Ford Enclosure HXHIBIT 8 COVINGTON & BURLING LLP 1201 PENNSYLVANIA AVENUE NW WASHINGTON, 0C 20004 -2401 TEL 202.862.6000 FAX 202.6626281 WWW.COV,COM BEIJING BRUSSELS LONDON NEW YORK SAN FRANCISCO WASHINGTON BY FIRST -CLASS MAIL AND EMAIL Robert J. Keane, Esq. Mendes & Mount LLP 750 Seventh Avenue New York, NY 10019 Shane R. Heskin, Esq. John J. Lawson, Esq. Craig H. O 'Neill, Esq. White & Williams LLP 1800 One Liberty Place Philadelphia, PA 19103 -7395 Re: September 12, 2008 Kevin J. O'Connor, Esq. Brian D. Lajeunesse, Esq. Hermes, Netburn, O'Connor & Spearing 265 Franklin Street, 7th Floor Boston, MA 01220 -3113 Richard W. Bryan, Esq. Julie S. Selesnick, Esq. A. David Greenstein, Esq. Jackson & Campbell, PC One Lafayette Centre, South Tower 1120 20th Street, NW Washington, DC 20036 -3437 OneBeacon America Insurance Co. v Narragansett Electric Co., Suffolk Super. Ct. Civ. No. 05- 3086 -BLS -I Dear Counsel: As noted in Narragansett's responses to the insurers' joint requests for production of documents, Narragansett possesses, and has now identified and segregated, certain records that it would be inefficient or impractical to scan and produce in bulk, due to their volume, condition, and lesser or marginal relevance to this matter. However, due to the breadth of the insurers' requests, and Narragansett's desire to avoid unnecessary discovery disputes, Narragansett is prepared to make them available for review or sampling, on a supervised basis. The documents are located in Providence, Rhode Island, and, for your convenience, are described in an attachment to this letter. These documents are ready for review commencing as early as next week. Once the insurers have completed their review, and have marked the materials, if any, that they wish to have duplicated, Narragansett will arrange for the selected COVINGTON & BURLI NG LLP September 12, 2008 Page 2 materials to be sent to a third -party vendor for copying, scanning, or other duplication at the insurers' expense, as the condition of the documents allows.) We expect that with a team of four attorneys, the insurers can likely determine what they are interested in copying and complete their review of these materials in a week. A great deal of the material consists of regular statistical or other reports, bound or filed chronologically, that will not require a page -by -page review. The box counts on the attached table reflect how the materials have been stored, but there will frequently be less than a full box needing review. In addition to the documents listed on the attachment, Narragansett also has accounting vouchers and invoices that reflect payments made by its predecessors from 1900 through the 1990s. Although these records are at a level of detail that we doubt will prove of interest, they at least arguably touch upon topics raised in the insurers' broad document requests, and Narragansett does not wish to withhold them. While the majority of these documents are stored in separate, off -site storage, we have a substantial number of boxes in Providence, along with an index (by vendor and date) created over time by Narragansett's predecessors. We suggest that you examine these materials in Providence, and then consider whether additional review or sampling is worthwhile. If you conclude that you do wish to review more of this material, we can promptly arrange for that in Northborough, Massachusetts, where the bulk of these records are kept. We are generally prepared to make the documents in Providence available for review over the course of the next month, but will need to send personnel to the facility to host the review, and thus need to schedule times for review in advance. Accordingly, please let us know as soon as possible whether the insurers intend to review these records or some portion thereof, the dates on which the insurers would like to conduct their review, and the number and names of the attorneys or paralegals who will participate in the review effort. To facilitate our making the I Certain materials are very fragile, and if they prove to be of interest, Narragansett will need to further explore whether and how they might be reproduced. COVINGTON & BURLING LLP September 12, 2008 Page 3 documents available, we would also like to agree on a rough sequence for the categories of documents to be reviewed. We stand ready to discuss any concerns and to work out the appropriate logistics for the anticipated review, and we look forward to hearing from you soon. Sincerely yours, Abram J. Pafford Enclosure cc: Andrea Peraner- Sweet, Esq. Amber Anderson Villa, Esq. Sally & Fitch LLP One Beacon Street Boston, MA 02108 OneBeacon Am. Ins. Co. v Narragansett Elec. Co., Suffolk Super. Ct. Civ. No. OS- 3086 -BLS -I Boxes / volumes Type of records Comments 93 boxes Periodic reports Periodic reports issued at regular intervals relating to Narragansett's financials or operations, other than annual reports to shareholders and annual operating statistics sent to insurers, which have already been produced in this case. The reports range between the 1860s and the 1990s. Many are in original annual bound volumes. 73 boxes Director and shareholder minutes These records range between 1900 and the 1970s. 40 boxes Newspaper clippings Chronological scrapbooks of historical newspaper clippings kept by Narragansett, from the early 1900s to the 1970s. One additional scrapbook of newspaper clippings is not contained in a box. 7 boxes Public utility filings Historical filings relating to ratemaking activities. 8 volumes Daily log books Bound books containing information on Narragansett's gas manufacturing operations in the years 1854 -1883 and 1899 -1939. These books are large, extremely fragile, and in poor condition. 4 volumes Sanborn maps Bound volumes of original Sanborn maps. These books are large, fragile, and very heavy. 2 volumes Expense ledgers Bound plant ledger books showing expenses from 1941 to 1962. HXHIBIT 9 Message Page 1 of 1 Greenstein, A. David From: Selesnick, Julie S. Sent: Tuesday, May 20, 2008 2:44 PM To: 'Ford, Roger; Greenstein, A. David; dchaf In @hare- chaffin.com; jharding @morrisonmahoney.com; Keane, Robert J.; koconnor @hermesnetburn.com; lawsonj @whiteandwilliams.com; oneillc @whiteandwilliams.com; Bryan, Richard W.; Heskins @whiteandwilliams.com Cc: Greaney, William; Moore, Allan; Smith, Jay; aps@sally- titch.com Subject: RE: OneBeacon v. Narragansett Counsel, We are in receipt of your 43,000 page document production sent via FedEx. Please provide us with either a production log that breaks the production into categories or a production index to the extent you have one. We have attached our production log to this email as a matter of courtesy. Thank you, Julie Original Message From: Ford, Roger [mailto:rford @cov.com] Sent: Monday, May 19, 2008 7:55 PM To: Greenstein, A. David; dchaffin @hare- chaffin.com; jharding @morrisonmahoney.com; Selesnick, Julie S.; Keane, Robert J.; koconnor @hermesnetburn.com; lawsonj @whiteandwilliams.com; oneillc @whiteandwiiliams.com; Bryan, Richard W.; Heskins@whiteandwilliams.com Cc: Greaney, William; Moore, Allan; Smith, Jay; aps @sally - fitch.com Subject: OneBeacon v. Narragansett Counsel, Please see the attached cover letter, which accompanied Narragansett's document production sent today via Fedex, Regards, Roger Ford «production cover 5- 19- 08.pdf» Roger A. Ford Covington & Burling LLP 1201 Pennsylvania Ave. NW Washington DC 20004 rford @cov.com 202.662.5290 phone 202.778,5290 fax http://www.cov.com/rford/ This message Is from a law firm and may contain Information that Is confidential or legally privileged. If you are not the intended recipient, please immediately advise the sender by reply email that this message has been Inadvertently transmitted to you and delete this email from your system. Thank you for your cooperation. 9/23/2008 OneBeacon v. Narragansett v. American Home, et at American Home and National Union Production Log AH 000001 NU 000001 AH 000719 AH -NU 000001 AH -NU 000627 AH 001378 AH -NU 000656 AH -NU 300001 AH -NU 100001 000718 Policies NU 000179 AH 001377 AH -NU 000415 AH -NU 000655 Policies Underwriting Claims Claims AH 001480 Policies AH -NU 001971 AH -NU 300166 AH -NU 100015 AH -NU 200001 AH -NU 200465 Deposition Transcripts Document Retention Policies National Grid Semi - Annual Report February, 2008 Edison Electric MGP Handbook AH -NU 200466 AH -NU 200916 Radian Report 3/5/08; 3/11/08 3/5/08; 3/11/08 3/11/08 3/11/08 3/14/08 3/26/08 3/26/08 4/7/08 4/14/08 4/14/08 4/14/08 EXHIBIT 10 Page 1 of 2 Greenstein, A. David From: Morici, Gerard C. [Gerard.Morici @mendes.com] Sent: Monday, June 30, 2008 4:00 PM To: Brian D. Lajeunesse; Goingt @whiteandwilliams.com; Kevin J. O'Connor; JHarding @morrisonmahoney.com; O'Neill, Craig; Greenstein, A. David Cc: Keane, Robert J.; Valsangkar, Neil Subject: RE: Narragansett - Letter to Covington Counsel: Please see below response from Narragansett to the letter we sent them last week (forwarded to you on June 25, 2008). We will keep you posted on this. Regards, Gerard From: Ford, Roger [mailto:rford @cov.com] Sent: Monday, June 30, 2008 3:37 PM To: Monti, Gerard C.; Moore, Allan; Pafford, Abram Cc: JHarding @morrisonmahoney.com; Keane, Robert J.; Valsangkar, Neil Subject: RE: Narragansett (Our File: 307,692) Gerard, I apologize for the delay in getting back to you; I was out of the office last week traveling for business and then recovering from surgery. In the future, it may be expeditious to send these sorts of requests to more people on our side, which might help us avoid such delays. We'd be happy to set up a time this week to hear any specific questions you may have about our productions to date, but we think it would be much more fruitful to defer this discussion until later in July, when we will be at or close to the end of the process and have a more complete picture of our production. Similarly, we would suggest deferring a discussion of any in- person review of documents until later this month, as our reviews and rolling productions are ongoing and we are not yet certain of the precise quantities or scope of documents which will be made available for review, as opposed to produced outright. Further, your view (and ours) of the utility of any such in- person review may be better informed by the work we are currently doing. With respect to your request for a catalog, index, or chart listing categories of documents by Bates range, we are not aware of any obligation under the Rules to prepare any such materials, and we don't believe that the quantity of documents produced — which is, after all, a product of the extraordinary scope, volume, and burden of the insurers' Requests — creates or imposes yet further burdens upon us to prepare such materials or take other steps that the Rules do not require. Also, as we've stated, we presume that the insurers are coordinating and sharing costs for an electronic review of these materials, which should minimize your clients' costs and burdens and help you organize the productions however you wish. Lastly, just to be clear, our records indicate that we have produced over 126,000 pages to date. Roger 9/23/2008 Page 2 of 2 This transmittal may be a confidential attorney - client communication or may otherwise be privileged or confidential.If you are not the intended recipient, you are hereby notified that you have received this transmittal in error and that any review, dissemination, distribution, or copying of this transmittal is strictly prohibited. If you have received this communication in error, please notify us immediately by reply or by telephone, (call as at 212-261-8000) and immediately delete this message and all its attachments. 9/23/2008 F,XHIBIT I1 Message Page 1 of 3 Greenstein, A. David From: Moore, Allan [abmoore @cov.com] Sent: Friday, July 11, 2008 9:08 PM To: Bryan, Richard W.; Selesnick, Julie S.; Ford, Roger; Greenstein, A. David; dchaffin @hare- chaffin.com; jharding @morrisonmahoney.com; Keane, Robert J.; koconnor @hermesnetburn.com; lawsonj @whiteandwilliams.com; oneillc @whiteandwilliams.com; Heskins @whiteandwilliams.com; Going, Thomas Cc: Greaney, William; Smith, Jay; aps @sally - fitch.com Subject: RE: OneBeacon v. Narragansett Rick, we addressed this issue in an email by Roger Ford to London's counsel on June 30, which I will forward to you. We do not have "a production log or index." As Roger's email explains, we would be pleased to have a call with the insurers, as a group, to try to answer any specific questions, and we can provide some general guidance then, but we think any such discussion will be most fruitful when we are at or near the end of our production at the end of the month, as this is a massive, ongoing effort that we are still working through. From: Bryan, Richard W. [mallto:RBryan @JacksCamp.com] Sent Friday, July 11, 2008 5:48 PM To: Selesnick, Julie S.; Ford, Roger; Greenstein, A. David; dchaffin @hare- chaffin.com; jharding @morrisonmahoney.com; Keane, Robert 1; koconnor @hermesnetbum.com; lawsonj @whiteandwilllams.com; oneillc @whiteandwllliams.com; Heskins@whiteandwilliams.com; Going, Thomas Cc: Greaney, William; Moore, Allan; Smith, Jay; aps @sally- fitch.com Subject: RE: OneBeacon v. Narragansett Roger /Allan - Has Narragansett taken a final position regarding not producing a copy of its production log or index to the defendants? Rick Bryan 202 - 457 -1638 Please consider the environment before printing this e-mail. Original Message--- - From: Bryan, Richard W. Sent: Tuesday, July 01, 2008 12:21 PM To: Selesnick, Julie S.; 'Ford, Roger'; Greenstein, A. David; 'dchaffin @hare- chaffin.com'; 'jharding @morrisonmahoney.com'; 'Keane, Robert J.'; 'koconnor @hermesnetburn.com'; lawsonj @whiteandwilliams.com; 'oneillc @whiteandwiiliams.com'; 'Heskins @whiteandwilliams.com'; Going, Thomas Cc: 'Greaney, William'; 'Moore, Allan'; 'Smith, Jay'; 'aps @sally- fitch.com' Subject: RE: OneBeacon v. Narragansett 9/23/2008 Message Page 2 of 3 On the issue of production logs, while the issue of whether a log can be compelled to be created is interesting, it seems to me that anyone who already has a log created for internal purposes, at a minimum, should produce it. Any 30 (b)6 witness on document production is going to have to work from a log anyway at the deposition. Rick Bryan 202 - 457 -1638 1►(A Please consider the environment before printing this a -mall, Original Message From: Selesnick, Julie S Sent: Tuesday, May 20, 2008 2:44 PM To: °Ford, Roger'; Greenstein, A. David; dchaffin @hare - chaffin.com; jharding @morrisonmahoney.com; Keane, Robert J.; koconnor @hermesnetburn.com; Iawsonj @whiteandwilliams.com, oneilic @whiteandwilllams.com; Bryan, Richard W.; Heskins @whiteandwilliams.com Cc: Greaney, William; Moore, Allan; Smith, Jay; aps @sally- fltch.com Subject: RE: OneBeacon v. Narragansett Counsel, We are in receipt of your 43,000 page document production sent via FedEx. Please provide us with either a production log that breaks the production into categories or a production index to the extent you have one. We have attached our production log to this email as a matter of courtesy. Thank you, Julie Original Message--- - From: Ford, Roger [maiito:rford @cov.com] Sent: Monday, May 19, 2008 7:55 PM To: Greenstein, A. David; dchaffin @hare- chaffin.com; jharding @morrisonmahoney.com; Selesnick, Julie S.; Keane, Robert J.; koconnor @hermesnetbum.com; Iawsonj @whiteandwilliams.com, oneilic @whiteandwilliams.com; Bryan, Richard W.; Heskins @whiteandwilliams.com Cc: Greaney, William; Moore, Allan; Smith, Jay; aps @sally- fitch.com Subject. OneBeacon v. Narragansett Counsel, Please see the attached cover letter, which accompanied Narragansett's document production sent today via Fedex. Regards, Roger Ford «production cover 5- 19- 08.pdf» 9/23/2008 Message Page 3 of 3 Roger A. Ford Covington & Burling LLP 1201 Pennsylvania Ave, NW Washington DC 20004 rford@cov.com 202.662.5290 phone 202.776.5290 fax http://www.cov.com/rfordi This message Is from a law firm and may contain Information that is confidential or legally privileged. If you are not the intended recipient, please Immediately advise the sender by reply email that this message has been inadvertently transmitted to you and delete this email from your system. Thank you for your cooperation. 9/23/2008 Lee Salisbury To: object: Mr. Greenstein: david@greensteinlawoffice.com City of Kenai, City Attorney A review of your application reveals that there was no cover letter attached. If you wish to submit a cover letter please e -mail it to my attention. Thank you. Lee Salisbury Legal Admin, Asst. City of Kenai 210 Fidalgo Avenue Kenai AK 99611 Tel. 907 283 -8225 Fax 907 283 -3014 CONFIDENTIALITY NOTICE: This electronic mall transmission may contain legally privileged information. The information is intended for the use of the individual or entity named above. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution or taking any action based on the contents of this electronic mail is strictly prohibited, if you have received this electronic mail in error, please contact sender and delete all copies. Lee Salisbury From: david @greensteiniawoffice.com ent: Wednesday, January 14, 2009 11:27 AM Lee Salisbury Subject: Re: City of Kenai Thank you very much for the note. > We are in receipt of, and thank you for submitting, your application for > consideration regarding our City Attorney position. We will begin our > review process in February. Please let us know if you have any > questions. > Lee Salisbury > Legal Admin. Asst. > City of Kenai > 210 Fidalgo Avenue > Kenai AK 99611 > Tel. 907 283 -8225 > Fax 907 283 -3014 > CONFIDENTIALITY NOTICE: This electronic mail transmission may contain legally privileged information. The information is intended for the use of the individual or entity named above. If you are not the > intended recipient, you are hereby notified that any disclosure, > copying, distribution or taking any action based on the contents of > this electronic mail is strictly prohibited. if you have received this > electronic mail in error, please contact sender and delete all copies. SUPPLEMENTAL FROM DAVID GREENSTEIN Lee Salisbury To: Subject: david @greensteinlawoffice.com RE: Kenai City Attorney - Cover From: David Greenstein [mailto :david @greensteinlawoffice.com] Sent: Wednesday, March 04, 2009 12:22 PM To: Lee Salisbury Subject: RE: Kenai City Attorney - Cover Ms. Salisbury, am writing to express my strong interest in the Kenai City Attorney position. I have been interested in representing municipalities and /or school districts since I graduated from law school, but have not yet had the opportunity. In addition, we have been interested in returning to Alaska since we visited a few years back, including a stay in Kenai. My varied skills, experience, career goals and personal interests would make me an excellent fit for your city. As an attorney, my experience includes litigation, transactional and business counseling work. Prior to becoming an attorney, I have ten years of sophisticated business experience. I excel at both working in team environments and independently and my interpersonal skills are excellent. In the roles that I have had, work ethic, creativity and good judgment in problem - solving have been of the utmost importance. Additionally, as anyone who has worked with me can attest to my detail- orientation and organizational skills are top- notch. I have a strong work ethic. I attended law school in the evenings while working full time in engineering design software sales (which included travel) and bill an average of 160 -170 hours monthly (when the work is available and which means 180 -200 hours). Please let me know if you need anything further. I appreciate your consideration and confidentiality. Regards, David Greenstein Lee Salisbury From: David Greenstein [david @greensteinlawoffice.com] lent: Thursday, February 26, 2009 4 :32 PM Lee Salisbury Subject: RE: Kenai City Attorney Attachments: DavidGreenstein (CL).pdf; Motion to Reconsider or Modify Discharge.pdf; 20080201 Pltfs_ Motion for Summary Jdgmt (as filed) (2).PDF; Judge's Order (Pro Se Treatment).pdf; Lucas.SJ.Appeal.Brief.pdf; Motion to Compel Document Production Organization Obligations.PDF Thank you for the note. I have no criminal trial experience. I have civil trial experience related to environmental liability insurance coverage, real property transactional and title defect or dispute, mechanic's lien, title insurance coverage and defense ad related areas. My appellate experience is in similar areas. I have attached an updated resume and writing samples to illustrate the experience. Regards, Dave From: Lee Salisbury [ mailto :Isalisbury@ci.kenai.ak.us] Sent: Wednesday, February 25, 2009 8:18 PM To: david @greensteinlawoffice.com Subject: Kenai City Attorney Mr. Greenstein, We are in the process of reviewing resumes for the position of Kenai City Attorney. Could you please let us know regarding your experience in civil or criminal trials and any civil or criminal appellate experience. Thank you in advance for your assistance with this request. Lee Salisbury Legal Admin. Asst. City of Kenai 2.10 Fidalgo Avenue Kenai AK 99611 Tel. 907 283 -8225 Fax 907 283 -3014 CONFIDENTIALITY NOTICE: This electronic mail transmission may contain legally privileged information. The information is intended for the use of the individual or entity named above. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution or taking any action based on the contents of this electronic mail is strictly prohibited. if you have received this electronic mail in error, please contact sender and delete all copies. Lee Salisbury From: David Greenstein [david @greensteinlawoffice.com] Sent: Thursday, February 26, 2009 4 :32 PM To: Lee Salisbury Subject: RE: Kenai City Attorney Attachments: DavidGreenstein (CL).pdf; Motion to Reconsider or Modify Discharge.pdf; 20080201 Pltfs_ Motion for Summary Jdgmt (as filed) (2).PDF; Judge's Order (Pro Se Treatment).pdf; Lucas.SJ.Appeal.Brief.pdf; Motion to Compel Document Production Organization Obligations.PDF Thank you for the note. 1 have no criminal trial experience. I have civil trial experience related to environmental liability insurance coverage, real property transactional and title defect or dispute, mechanic's lien, title insurance coverage and defense ad related areas. My appellate experience is in similar areas. I have attached an updated resume and writing samples to illustrate the experience. Regards, Dave From: Lee Salisbury [ mailto :Isalisbury@ci.kenai.ak.us] Sent: Wednesday, February 25, 2009 8:18 PM To: david @greensteinlawoffice.com Subject: Kenai City Attorney Mr. Greenstein, We are in the process of reviewing resumes for the position of Kenai City Attorney. Could you please let us know regarding your experience in civil or criminal trials and any civil or criminal appellate experience. Thank you in advance for your assistance with this request. Lee Salisbury Legal Admin. Asst. City of Kenai 210 Fidalgo Avenue Kenai AK 99611 Tel. 907 283 -8225 Fax 907 283 -3014 CONFIDENTIALITY NOTICE: This electronic mail transmission may contain legally privileged information. The Information is intended for the use of the individual or entity named above. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution or taking any action based on the contents of this electronic mail is strictly prohibited. if you have received this electronic mail in error, please contact sender and delete all copies. David Greenstein 4006 Laird Place • Chevy Chase, MD 20815 (617) 543 -6258 (M) • david©greensteinlawoffice.com EXPERIENCE Jackson & Campbell, P.C. Associate Attorney Litigation • Insurance Coverage: Represent largest global insurance company against insured utility in insurance coverage litigation relating to environmental clean -up costs. Represent largest title insurance companies in coverage disputes. • Insurance Defense: Represent insured owners and institutional lenders in litigation to resolve real estate title disputes and claims. • General: Represent contractors and individuals in mechanic's lien enforcement, breach of contract and boundary dispute actions. Transactional (Real Estate): Represent purchasers, sellers, lenders, lessors and lessees in residential and commercial real estate transactions, draft and negotiate transactional documents. Administrative (Real Property Taxation): Spearheaded new tax assessment appeals practice, appear before administrative boards on behalf of property owners to reduce property tax assessments. Washington, DC 2007 - Present Kase & Associates, P C Managing Attorney Transactional (Real Estate): Represented purchasers, sellers, lenders, lessors and lessees in residential and commercial real estate transactions. Supervisory and direct responsibility for opening, processing, settling and post - closing commercial and residential sales, refinances and construction loans in multiple jurisdictions, including condominium and subdivision projects with local and national developers. Management: Started and managed title agency branch office. Responsible for an average of 10 direct reports. Responsibilities included staff hiring, training and mentoring, budget, administrative and operations management. Sales (Settlement Services): Developed and implemented sales plans, including marketing collateral, to drive new business and grow existing business from commercial property owners, lenders, real estate attorneys, private equity firms, brokers and more through inside and outside sales and industry networking events. Bethesda, MD 2005 — 2007 Greenstein Law Office, Attorney Greenstein Real Estate, Broker Transactional (Real Estate): Represented purchasers, sellers, lenders, lessors and lessees in residential and commercial real estate transactions, draft and negotiate transactional documents. Honors: Selected by peers as 2005 Massachusetts Super Lawyers RisingStarin Real Estate. Corporate: Represented software company in GSA Schedule 70 contract management and modification. Organized and advised small businesses. Document Review: Document review in major fraud and breach of warranty case as contract attorney. Training and Management (Real Estate Sales): Trained and managed new real estate agents in the purchase, sale and leasing of commercial and residential properties. Newton, MA 2002 - 2005 Chicago Title Insurance Company Agency Representative Sales: Developed and implemented sales plans, including marketing collateral, to drive new business and grow existing title insurance business from commercial property owners, lenders, real estate attorneys, private equity firms, brokers and more through inside and outside sales and industry networking events. Training: Trained new attorney title agents in title examination, preparation and underwriting of title insurance policies and in operating title insurance agencies. Developed, organized and delivered various seminars and trainings. Assisted in the integration of technology into agency practices. Compliance: Performed financial and transactional audits of insurance agency records for compliance and fraud. Boston, MA 2003 - 2005 The MathWorks, Inc. Major Accounts Manager Sales (Engineering Design Software): Developed enterprise -wide software, training and consulting business through inside and outside sales and industry networking events.. Led sales efforts that resulted in the single largest order from General Electric, in our software becoming the tool of choice for engineering design at United Technologies and at Lockheed Martin to secure and implement the largest ever defense contract ever awarded. Training (Engineering Design Software): Trained new account managers in sales process, products and sales management systems. Trained in Solution Selling (Bosworth), Strategic Selling and Large Account Management Process (Miller- Heiman), Negotiation and Presentation Skills. Natick, MA 1997 - 2002 Merrill Lynch Financial Consultant Boston, MA 1995 - 1997 Sales (Financial Services): Developed consultative investment relationships with individuals, small business owners, professionals and executives through inside and outside sales and community involvement. Securities Licenses: Series 7, 63, 65, MA Life & Health. Prudential Securities Assistant Financial Advisor Wellesley, MA 1993 - 1995 Sales and Customer Service (Financial Services): Assisted three top producing advisors with more than $300 million dollars under management. Liaison between advisors, clients and inter - company departments. EDUCATION Suffolk University Law School 3D, with Honors Manhattanville College BA Boston, MA Purchase, NY MILITARY 1998-2002 1989-1993 United States Air Force Reserves Westover AFB, MA 1992 - 2000 PROFESSIONAL LICENSES Bar Admissions Real Estate Broker Title Insurance Producer Massachusetts 2002 District of Columbia 2005 Maryland 2005 US Supreme Court 2006 Massachusetts 2003 Maryland 2005 Virginia 2006 APPEAL NO. 07 CV 2174 IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT BAYVIEW LOAN SERVICING, LLC, Plaintiff - Appellant, v. UNITED STATES OF AMERICA, et al., Defendants- Appellees. On Appeal from an Order OF THE UNITED STATED DISTRICT COURT FOR THE DISTRICT OF MARYLAND Case No. RWT -07 -0708 THE HONORABLE ROGER W. TITUS, JUDGE BRIEF OF APPELLANT BAYVIEW LOAN SERVICING, LLC David H. Cox Clifton M. Mount JACKSON & CAMPBELL, P.C. 1120 20th Street., N.W. Suite 300 -South Washington, D.C. 20036 (202) 457 -1600 Counsel for Bayview Loan Servicing, LLC CORPORATE DISCLOSURE STATEMENT Pursuant to Federal Rule of Appellate Procedure 26.1, Plaintiff - Appellant Bayview Loan Servicing, LLC hereby states that it is a wholly -owned subsidiary of Bayview Financial L.P. Respectfully Submitted, BAYVI'EW LOAN SERVICING, LLC By Counsel David H. Cox Clifton M. Mount JACKSON & CAMPBELL, P.C. 1120 20th Street, N.W. Suite 300 -South Washington, D.C. 20036 Telephone: (202) 457 -1600 TABLE OF CONTENTS CORPORATE DISCLOSURE STATEMENT TABLE OF AUTHORITIES iv JURISDICTIONAL STATEMENT 1 STATEMENT OF ISSUES 2 STATEMENT OF CASE 3 STATEMENT OF FACTS 4 SUMMARY OF ARGUMENTS 8 ARGUMENTS 10 I. STANDARD OF REVIEW 10 II. THE DISTRICT COURT ERRED IN RULING THAT FEDERAL FORFEITURE LAW PREEMPTED STATE LAW AND BAYVIEW STATES CLAIMS FOR EQUITABLE LIEN AND EQUITABLE SUBROGATION UNDER MARYLAND STATE PROPERTY LAW 12 A. Because Bayview is an Innocent Owner, Maryland Law Governing Property Rights Applies and is Not Preempted by 21 USC § 853 B. Bayview's Lien is Perfected by the Doctrine of Equitable Lien C. Bayview is Equitably Subrogated to the Elite Deed of Trust 12 14 15 III. THE DISTRICT COURT ERRED IN RULING THAT USA HAD NO NOTICE OF BAYVIEW'S INTEREST AND THAT USA EXERCISED ADEQUATE DUE DILIGENCE 18 A. USA Was on Notice of Bayview's Mortgage 18 IV. USA'S NOTICE OF THE FORFEITURE WAS DEFECTIVE AND VIOLATIVE OF THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT TO THE U.S. CONSTITUTION 21 A. USA Did Not Provide Adequate Notice to Bayview 22 V. BAYVIEW IS ENTITLED TO FILE A CLAIM IN THE FORFEITURE PROCEEDING TO CHALLENGE THE FORFEITURE 26 A. Bayview, an Innocent Owner, is Entitled to File a Claim in the Forfeiture Proceeding to Challenge the Forfeiture 27 V. CONCLUSION REQUEST FOR ORAL ARGUMENT CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE 111 27 29 TABLE OF AUTHORITIES CASES Blondell v. Turover, 195 Md. 251, 257, 72 A.2d 697 (1950) 19 Celotex Corp. v. Catrett, 477 U.S. 317, 322 -23, 91 L.Ed.2d 265, 273, 106 S.Ct. 2548, 252 (1986) 11 Chase Manhattan Bank, N.A. v. Am. Nat'l Bank & Trust Co., 93 F.3d 1064, 1072 (2d Cir. 1996) 10 Cincinnati Ins. Co. v. Urgent Care Pharm. Inc., 233 Fed. Appx. 245, 2007 U.S.App. LEXIS 10833 (4th Cir. 2007) 10 Costello Constr. of Md., Inc. v. J.D. Long Masonry, Inc., 236 Fed. Appx. 877, 880 (4th Cir. 2007) 10 Cramer v. Cramer Financial Corp., 1995 U.S. App. LEXIS 25906 at *17 n.5 (4th Cir. Sept. 13, 1995) 10 Dyson v. Simmons, 48 Md. 207 (1878) 15 Fertitta v. Bay Shore Development Corporation, 252 Md. 393, 402, 250 A.2d 69 (1969) 19, 21 G.E. Capital Mortgage Services, Inc. v. Steven A. Levenson, 338 Md. 227, 231- 232, 16 Grayson v. Buffington, 233 Md. 340, 196 A.2d 893 (1964) 17 In re Legel, Braswell Gov't Sec Corp., 648 F.2d 321, 326 (5th Cir. 1981) 11 Jones v. Flowers, 547 U.S. 220 (U.S. 2006) 22, 23 Kimm v. Andrews, 270 Md. 601, 620 -621, 313 A.2d 466 (1974) 21 Lewis v. Rippons, 282 Md. 155, 383 A.2d 676 (1978) 17, 19 Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S. Ct. 652, 94 L. Ed. 865 (1950) 23 iv Pence v. Norwest Bank, 363 Md. 267, 768 A.2d 639 (2001) 15 Philip Morris Inc. v. Harshbarger, 122 F.3d 58, 62 n.4 (lst. Cir 1997) 11 Robinson v. Hanrahan, 409 U.S. 38, 93 S.Ct. 30 (1972) 23, 24 Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir. 2003) 11 The Equitable Trust Company v. Imbesi, 287 Md. 249, 254, 412 A.2d 96 (1980) 15 United States of America v. Proctor, 1993 U.S.App. LEXIS 25683, p.5 (1993) 24 United States v. Borromeo, 945 F.2d 750, 753 (4'h Cir. 1991) 24 United States v. Certain Real Property Located at 2525 Leroy Lane, 910 F.2d 343, 347 (6th Cir. 1990) 12, 13 United States v. Estevez, 845 F.2d 1409, 1410 (7th Cir. 1988) 27 United States v. Reclaneyer, 836 F.2d 200, 208 (4th Cir. 1987) 13 Wightman v. Springfield Terminal Ry. Co., 100 F.3d 228, 230 (1st Cir. 1996) 11 STATUTES USCS Const. Amend. 5 22 21 U.S.C. § 881 13 21 U.S.C. § 853 12, 13, 14, 27 28 U.S.C. § 1291 28 U.S.C. § 1294 1 28 U.S.C. § 1444 1 28 U.S.C. § 2410 1 v Maryland Code Real Property Article § 3 -203 17 RULES Federal Rule of Civil Procedure 12 8 Federal Rule of Civil Procedure 56 8 OTHER AUTHORITIES 9A Wright & Miller, Federal Practice and Procedure: Civil § 2579 at 543 (1995) 10 G.E. Osborne, Handbook on the Law of Mortgages, § 282 at p.570 (2d ed. 1970)16 vi JURISDICTIONAL STATEMENT This case was originally filed in the Circuit Court for Prince George's County, Maryland. The United States of America ( "USA ") removed the case to the United States District Court for the District of Maryland ( "District Court ") because Bayview Loan Servicing, LLC ( "Bayview ") seeks to quiet title to real property upon which USA claims an interest. 28 U.S.C. § 1444 conferred jurisdiction upon the District Court because the relief sought by Bayview is governed by 28 U.S.C. § 2410. (See "Complaint for Declaratory Judgment," Appendix ( "App. "), filed herewith, at 5 -42.) 28 U.S.C. §§ 1291 and 1294 confer jurisdiction upon this Court as Bayview has appealed from a final decision from the District Court, which final decision — rendered in open court on October 29, 2007 and issued in written form on October 30, 2007 — disposed of the underlying action. (App. at 183; Transcript ( "Tr. "), filed herewith, at 40 -41). On November 16, 2007, Bayview filed its Notice of Appeal. (App. at 185- 186). 1 STATEMENT OF ISSUES 1. Whether the District Court erred in ruling that federal forfeiture law preempted state law, and ruling that Bayview's exclusive remedy was pursuant to the federal forfeiture statute. 2. Whether the District Court erred in ruling that USA had no notice of Bayview's interest and that USA exercised adequate due diligence in determining the status of title to the Property. 3. Whether the District Court erred in ruling that USA's notice of the proposed forfeiture to Bayview was adequate under the forfeiture statute and under the United States Constitution. 4. Whether the District Court erred in finding that Bayview was no longer entitled to file a claim in the forfeiture proceeding to challenge the forfeiture. 2 STATEMENT OF CASE This proceeding arises out of a claim for declaratory judgment by Plaintiff - Appellant, Bayview for equitable subrogation and equitable lien on the real property commonly known as 170 Azalea Court, Unit 23 -6, Upper Marlboro, Maryland 20774 (the "Property ") against Defendants - Appellees, USA and Margaret Lucas ( "Lucas ") or (collectively, "Appellees "). On October 29, 2007, Hon. Roger W. Titus, ( "Judge Titus ") of the District Court heard the Appellees' motion to dismiss or for summary judgment and Appellant's cross motion for summary judgment. The central issues heard by Judge Titus were: whether the Maryland state laws of equitable subrogation and equitable lien were preempted by federal forfeiture law; whether Bayview was a bona fide purchaser for value without notice; whether USA had notice of Bayview's interest in the Property and exercised due diligence in determining the status of title to the Property; whether by failing to file a claim in the forfeiture proceeding, Bayview lost the opportunity to challenge the forfeiture and whether USA's notice was defective and violative of Constitutional due process. Based on the pleadings and the hearing; Judge Titus ruled in open court on October 29, 2007 and rendered his written order on October 30, 2007 granting USA's motion to dismiss or for summary judgment. 3 STATEMENT OF FACTS In early 2006, Lucas was suspected by USA of engaging in wire fraud. hl February 2006, as part of its investigation into Lucas' financial crimes, USA conducted a title examination of the Property at issue and uncovered a first lien position deed of trust ( "Elite Deed of Trust ") securing a $97,400.00 loan ( "Elite Loan "). (Tr. at 20). In May, 2006, Bayview loaned $134,500.00 to Lucas ( "Bayview Loan "), secured by a deed of trust ( "Bayview Deed of Trust ") on the Property. (App. at 16- 42). The Bayview Loan refinanced the Elite Loan and required that it and any other liens be paid and released of record or order to obtain first lien priority for the Bayview Deed of Trust. (App. at 8). In June, 2006, Lucas was indicted for wire fraud and filed a financial affidavit, but failed to disclose the Bayview Loan in her affidavit. (App. at 62). In July, 2006, she pleaded guilty to wire fraud and as part of her plea agreement, Lucas agreed to forfeit the Property to USA as part of her restitution obligations. (App. at 62). At that time, Lucas was ordered to meet with the Government in a presentencing interview to discuss the details of her plea agreement. (App. at 62). Presumably, Lucas was to discuss the details of the plea arrangement, including her financial situation and status of her real property, for the purposes of restitution. Lucas met with government officials in August of 2006, and a presentencing report was issued. At no time did she 4 disclose nor did the Government inquire about the status of title to the Property that it sought to seize. (App. at 55). On September 7, 2006, a Certificate of Satisfaction releasing the Elite Deed of Trust was recorded in land records ( "Elite Satisfaction). (App. at 70). On September 29, 2006, Lucas was sentenced and signed a Consent Order of Forfeiture forfeiting the Property to USA. (App. at 65 -67). At that time, United States District Court Judge James Cacheris of the Eastern District of Virginia ordered Lucas to provide full access and disclosure of her financial information. (App. at 63). Lucas again failed to mention the Bayview Loan. USA, again, failed to inquire about the status of title to the Property it sought to have forfeited. (App. at 55; Tr. at 21). On October 12, 2006, using a seven (7) month old title examination, USA sent notice of the proposed forfeiture to potential third party claimants. (App. at 56; Tr. at 20 -21). USA sent personal notice to Mortgage Electronic Registration Systems ( "MERS "), the nominee for the lender on the Elite Deed of Trust, which had already been satisfied and released of record. (App. at 56, 156 -159). Because the notice was about a deed of trust no longer in existence, MERS did not reply to the notice. USA also published the notice in the Washington Examiner. (App. at 68 -69). Bayview, the current lender, had no reason to check the local newspaper for a notice of its intent to forfeit its secured property, particularly because it believed that the Bayview Deed of Trust was recorded and that it would receive personal notice of such items. On 5 October 25, 2006, USA filed a Lis Pendens in the land records in order to give notice to third parties. (App. at 75 -78). On October 31, 2006, after sending out notices based on a seven (7) month old title examination, USA received an updated title examination and was surprised to discover that the Elite Satisfaction had been recorded releasing the Elite Deed of Trust. (Tr. at 21). USA, then, intentionally failed to inquire about this mysterious payoff and release of the almost $100,000.00 Elite Loan by a criminal convicted of wire fraud who was incarcerated in federal prison. (Tr. at 21). Instead, on November 16, 2006, after realizing that it could surprisingly obtain the Property free and clear of any liens, USA moved for Final Order of Forfeiture which was granted on November 17, 2006. (Tr. at 21). In December 2006, due to Lucas' non - payment on the Bayview Loan as a result of her incarceration, Bayview tried to foreclose on the Bayview Deed of Trust and discovered USA's Lis Pendens. (App. at 10). In late January, 2007, after realizing that the Bayview Deed of Trust was not yet recorded, Bayview's settlement agent recorded it. (App. at 8, 16 -42). In a February 28, 2007 telephone conversation with undersigned counsel for Bayview, AUSA Karen Taylor admitted that after USA updated its title examination, it was surprised to find that Lucas, despite having recently pleaded guilty to felony wire fraud charges, had satisfied the $97,400.00 Elite Loan and had the Elite Deed of 6 Trust released as a lien on the Property. (Tr. at 21). Ms. Taylor also stated that USA intentionally did nothing further to investigate the miraculous disappearance of this sizable debt, nor did it inquire of Lucas, a criminal who recently pleaded guilty to felony wire fraud charges, how she was able to do satisfy the Elite Loan. (Tr. at 21). USA intentionally ignored the very real possibility that either the Elite Loan had been refinanced by a new lender who would invariably record a new deed of trust or that the loan could have been paid off through further fraud. In March, 2007, Bayview filed the underlying lawsuit. (App. at 5 -42). USA claims clear title to the Property and intends to sell the Property at public auction. Rather than pay Bayview, USA intends to use all proceeds to pay off Lucas' restitution obligations under her plea agreement with USA. (App. at 55 -60). USA, at all relevant times, knew that the Property was subject to the Elite Deed of Trust and never expected to take the Property free and clear of any liens under its plea agreement. (App. at 56; Tr. at 20). 7 SUMMARY OF ARGUMENTS The District Court ruled improperly that Appellee USA was entitled to dismissal of the claims against it pursuant to Fed. R. Civ. P. 12(b)(6) or summary judgment under Fed. R. Civ. P. 56(c). (App. at 183; Tr 28 -41). The well settled Maryland state law doctrines of equitable lien and equitable subrogation apply, perfecting Bayview's lien on the Property, and are not preempted by federal forfeiture law. The District Court erred in ruling that USA had no notice of Bayview's interest, and that USA exercised adequate due diligence in researching the state of title to the real property to be forfeited. The facts and supporting law show that USA relied unreasonably on a very old title examination, and even when it did update its title examination, it made no inquiries and ignored the logical conclusions it should have reasonably drawn from the new title search. As shown below, because of its actions and /or inactions, USA was on actual, constructive or inquiry notice of the Bayview Deed of Trust. The District Court erred in concluding that USA gave adequate notice to Bayview under the statute and the Constitution. USA's reliance on the old title examination, notice regarding the released Elite Deed of Trust and its intentional disregard of subsequent discoveries, show that its notice was not reasonably calculated to inform potential claimants of its intent to seize the Property. USA's 8 notice to Bayview was defective and violative of Constitutional due process. Finally, the District Court ruled that Bayview was no longer entitled to file a claim in the forfeiture proceedings. USA did not provide notice of the proposed forfeiture to Bayview, and as an innocent owner, Bayview has a defense of excusable neglect and is entitled to file a claim in the forfeiture proceeding to challenge the forfeiture. The judgment of the District Court should be vacated, and summary judgment in favor of Bayview should be granted. In the alternative, the case should be remanded for further factual findings. 9 ARGUMENTS I. STANDARD OF REVIEW Because this is an appeal from a grant of summary judgment, this Court reviews the District Court's grant de novo. Costello Constr. of Md., Inc. v. J.D. Long Masonry, Inc., 236 Fed. Appx. 877, 880 (4th Cir. 2007). This Court also views all disputed facts in the light most favorable to the Appellant and draws all reasonable inferences in its favor. Cincinnati Ins. Co. v. Urgent Care Pharm. Inc., 233 Fed. Appx. 245, 2007 U.S.App. LEXIS 10833 (4th Cir. 2007). In de novo reviews, this Court "can of course make [its] own conclusions from the record." Cramer v. Cramer Financial Corp., 1995 U.S. App. LEXIS 25906 at *17 n.5 (411' Cir. Sept. 13, 1995) (citing 9A Wright & Miller, Federal Practice and Procedure: Civil § 2579 at 543 (1995). An appellate court has the power to decide the cases on appeal if the facts in the record adequately support the proper result or if the record as a whole presents no genuine issue as to any material fact. Thus, if we find that a party must prevail as a matter of law, a remand is unnecessary. (internal quotation marks and citation omitted); Chase Manhattan Bank, N.A. v. Am. Nat'l Bank & Trust Co., 93 F.3d 1064, 1072 (2d Cir. 1996). Even where the district court failed to make findings concerning certain issues, a remand is not necessary if the court of appeals can make a complete and fair 10 resolution of the issues from the record on appeal. In re Legel, Braswell Gov't Sec Corp., 648 F.2d 321, 326 (5`h Cir. 1981). Summary judgment in favor of a movant is proper if the opponent failed to demonstrate the existence of a genuine factual dispute regarding any essential elements of the movant's case and the movant is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 -23, 91 L.Ed.2d 265, 273, 106 S.Ct. 2548, 252 (1986). In the subject case, there is a cross - motion for summary judgment before the Court: When faced with cross - motions for summary judgment, the court must review each motion separately on its own merits "to determine whether either of the parties deserves judgment as a matter of law. Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir. 2003), quoting Philip Morris Inc. v. Harshbarger, 122 F.3d 58, 62 n.4 (1st. Cir 1997). When considering each individual motion, the court must take care to "resolve all factual disputes and any competing, rational inferences in the light most favorable" to the party opposing that motion. Id. at 532, quoting Wightman v. Springfield Terminal Ry. Co., 100 F.3d 228, 230 (1st Cir. 1996). As shown below, the facts of record, when viewed in the light most favorable to 11 Bayview, not only warrant reversal but establish Bayview's entitlement to judgment as a matter of law. II. THE DISTRICT COURT ERRED IN RULING THAT FEDERAL FORFEITURE LAW PREEMPTED STATE LAW AND BAYVIEW STATES CLAIMS FOR EQUITABLE LIEN AND EQUITABLE SUBROGATION UNDER MARYLAND STATE PROPERTY LAW A. Because Bayview is an Innocent Owner, Maryland Law Governing Property Rights Applies and is Not Preempted by 21 USC § 853 Because Bayview is a bona fide purchaser for value without notice, or an innocent owner, Maryland law governing property rights applies and is not preempted by 21 USC § 853. In United States v. Certain Real Property Located at 2525 Leroy Lane, 910 F.2d 343, 347 (6th Cir. 1990), a case involving an interest in property based on a tenancy by the entirety, the court explained: We conclude that recognition of state laws governing property rights does not contravene the federal forfeiture scheme, and that the application of state law is the most appropriate method of determining the interest of an innocent owner. Id. at 347. The Leroy Lane court goes on to state: Id. at 349. The forfeiture provisions of 21 U.S.C. §§ 853 and 881 contain no rules of law for defining the scope of an innocent owner's property interests, and thus Congress has not expressly preempted this area with specific definitions or guidelines. 12 Finally, the Leroy Lane court concluded: in rem provisions of 21 U.S.C. § 881(a)(7) specifically provide that "no property shall be forfeited under this paragraph, to the extent of an interest of' an innocent owner. (Emphasis supplied). Under 21 U.S.C. § 853(n)(6)(A), the interest of a third party in the property may render "the order of forfeiture invalid in whole or in part." Under these provisions, the interest of a third party may be so extensive as to include the entire property, thereby defeating the Government's interest completely. Id. at 350. The Fourth Circuit has addressed and defined the issue of bona fide purchasers for value and innocent third parties in the context of federal forfeiture law: In order to effectuate legislative intent the tern "bona fide purchaser for value" must be construed liberally to include all persons who give value to the defendant in an arms' - length transaction with the expectation that they would receive equivalent value in return. If such persons are without knowledge of the potential forfeitability of the defendant's assets, they are entitled to recover under § 853(n)(6)(B). It does not matter for purposes of pursuing a petition under § 853(n)(6)(B) whether the arms'- length transaction was completed prior to entry of the order of forfeiture and the third party is seeking to retain value already conveyed by the defendant, or whether the transaction, intended to be completed in the future, is incomplete, the petitioner having already conveyed value and her anticipation of return been frustrated by the intervention of the forfeiture order. United States v. Reckmeyer, 836 F.2d 200, 208 (4th Cir. 1987). It is clear that with respect to an innocent third party, state law should be applied when considering property rights in the criminal forfeiture context. In May, 13 2006, Bayview loaned money in good faith to Lucas, without knowledge of any criminal prosecution or possible forfeiture. (App. at 8). Lucas' plea agreement and assignment of the Property to USA occurred months after the Bayview Loan. (App. at 62 -63). Certainly, Bayview, without notice of any possible forfeiture, was a bonafide purchaser for value of an interest in the Property. Because Bayview is a bona fide purchaser for value without notice and therefore an innocent third party, Maryland state law applies to its property interests. State property law is not preempted by federal forfeiture law and Section 853(n) is not the exclusive remedy. The state law doctrines of "equitable lien" and "equitable subrogation" perfect Bayview's interest in the Property. B. Bayview's Lien is Perfected by the Doctrine of Equitable Lien Bayview's lien on the Property is perfected by the doctrine of "equitable lien." Maryland law recognizes the doctrine of "equitable lien:" The principle is now so well settled, that it would seem to be beyond all question and controversy, that if a party makes a mortgage, or affects to make one, but it proves to be defective, by reason of some informality or omission, such as failure to record in due time, defective acknowledgement, or the like, though even by the omission of the mortgagee himself, as the instrument is at least evidence of an agreement to convey, the conscience of the mortgagor is bound, and it will be enforced by a court of equity. 14 The Equitable Trust Company v. Imbesi, 287 Md. 249, 254, 412 A.2d 96 (1980)(emphasis added), citing, Dyson v. Simmons, 48 Md. 207 (1878); see also, Pence v. Norwest Bank, 363 Md. 267, 768 A.2d 639 (2001). The Bayview Deed of Trust clearly manifests the intention of Lucas to convey the Property as security for her refinance of the Elite Loan. (App. at 16 -42). The fact the Bayview Deed of Trust was not recorded until January, 2007 is not fatal to its lien. Equitable Trust, supra. The question is not when the Bayview Deed of Trust was recorded, it is whether on May 24, 2006, the Property was pledged as security for the Bayview Loan. The Bayview Deed of Trust, on its face, makes it manifestly clear that this intention was carried out. The Bayview Deed of Trust is enforceable and has priority over the purported forfeiture to USA. C. Bayview is Equitably Subrogated to the Elite Deed of Trust Under Maryland law, Bayview is equitably subrogated to the first lien position of the Elite Deed of Trust: Although the doctrine of equitable subrogation may be applied in many contexts, one context involves the refinancing of a mortgage. Osborne states: "Where a lender has advanced money for the purpose of discharging a prior lien, and his money is so used, the majority and preferable rule is that if he did so in ignorance of junior liens or other interests he will be subrogated to the prior lien. Although stressed in some cases as an objection to relief, neither negligence nor constructive notice should be material." 15 G.E. Capital Mortgage Services, Inc. v. Steven A. Levenson, 338 Md. 227, 231 -232, 657 A.2d 1170 (1995), citing, G.E. Osborne, Handbook on the Law of Mortgages, §282, at p. 570 (2d ed. 1970). In G.E. Capital Mortgage Services, Inc., the priority of the foreclosing lender who had refinanced an original first trust was challenged by the holder of subsequent judgment liens. The Maryland Court of Appeals upheld the priority of the refinancing lender under the doctrine of equitable subrogation. The Court of Appeals said: G.E. Captal's refinancing of the First Federal mortgage also presents a sequence of transactions appropriate for equitable subrogation. G.E. Capital intended to achieve a first priority by refinancing, but failed to do so because of the intervening judgment liens of which G.E. Capital was unaware. Thus G.E. Capital expended $56,283.14 of its funds for the release of First Federal's lien, an expenditure which inured at law to the benefit of Levenson who, absent equitable subrogation, would move into the first priority position previously occupied by First Federal. Equity views G.E. Capital as subrogated to the released, first priority claim of First Federal in order to prevent unjust enrichment of Levenson. Id. at 242. The subject case is substantially similar to that of G.E. Capital Mortgage Services, Inc.. It is undisputed in the subject case, that Bayview loaned Lucas $134,500.00 in May, 2006 to refinance the Elite Loan. As part of the transaction, Bayview required that the Elite Loan be paid off and the Elite Deed of Trust and other liens be released in order to obtain first lien position on the Property. Neither Elite, 16 nor Bayview could have known of Lucas' plea agreement and pledge of the Property to USA for restitution for her crime at the time of the refinance. The plea and assignment to USA occurred months after the refinance of the Elite Loan. (App. at 62 -63). Bayview did not learn of the forfeiture until it commenced foreclosure proceedings in December, 2006. (App. at 10). At all times, Bayview's and Lucas' intentions and actions were designed to place Bayview in first lien position on title to the Property. The law of Maryland dictates that Bayview is equitably subrogated to the Elite Deed of Trust's first lien position, along with that of any other lien, which are all superior to USA's forfeiture, at least to the extent of the amount paid to satisfy the liens. The citation by USA of the "race notice" statute, Md. Code R.P. §3 -203, is inapplicable as the present situation is governed by the recognized doctrine of equitable subrogation. Not only is the doctrine of equitable subrogation controlling, but USA is not a bona fide purchaser for value of the Property. To claim priority under §3 -203, one must be a bona fide purchaser for value. Grayson v. Buffington, 233 Md. 340, 196 A.2d 893 (1964). Being a bona fide purchaser for value requires "good faith." See Md. Code R.P. §3- 203(1)(1). Actual or constructive knowledge of prior equities eliminates any protection afforded by §3 -203. Lewis v. Rippons, 282 Md. 155, 383 A.2d 676 (1978). 17 In the subject case, USA's actions or inactions after receiving the updated title examination were not in good faith. USA sent notice to interested parties based on a seven (7) month old title examination. (Tr. at 20 -21). After obtaining an updated title examination showing that the Elite Deed of Trust had been released, USA admitted that it intentionally made no attempt to see how someone convicted of wire fraud and in, or on her way to prison, could have paid off the Elite Loan. (Tr. at 21). Instead, with the possibility of unexpectedly getting the Property free and clear of any liens, USA moved for a Final Order of Forfeiture. (App. 71 -74; Tr. at 21). USA knew the Property was originally subject to the Elite Deed of Trust and never expected or intended to be in first lien position on title to the Property. (App. at 156- 159; Tr. at 20 -21). Contrary to USA's contention and the District Court's finding, USA did not acquire the Property it sought to have forfeited in good faith. Acquiring the Property in good faith should have entailed inquiring of Lucas the status of her title, and how she was able to pay off the sizeable mortgage. Bayview is equitably subrogated to the first lien position of the Elite Deed of Trust, and USA is barred from claiming priority over the Bayview Deed of Trust. III. THE DISTRICT COURT ERRED IN RULING THAT USA HAD NO NOTICE OF BAYVIEW'S INTEREST AND THAT USA EXERCISED ADEQUATE DUE DILIGENCE A. USA Was on Notice of Bayview's Mortgage 18 USA was on actual, constructive or inquiry notice of Bayview's interest in the Property. Constructive notice of prior unrecorded equities precludes the grantee from being a bona fide purchaser. Lewis v. Rippons, supra. Maryland law requires "reasonable diligence in a purchaser of real property to ascertain any defect of title." Fertitta v. Bay Shore Development Corporation, 252 Md. 393, 402, 250 A.2d 69 (1969). In determining whether a purchaser had notice of any prior equities or unrecorded interests, so as to preclude him from being entitled to protection as a bona fide purchaser, the rule is that if he had knowledge of the circumstances which ought to have put a person of ordinary prudence on inquiry, he will be presumed to have made such inquiry and will be charged with notice of all facts which such an investigation would in all probability have disclosed if it had been properly pursued. In other words, a purchaser cannot fail to investigate when the propriety of the investigation is naturally suggested by circumstances known to him; and if he neglects to make such inquiry, he will be held guilty of bad faith and must suffer from his neglect. Fertitta v. Bay Shore Development Corporation, at p. 402, citing, Blondell v. Turover, 195 Md. 251, 257, 72 A.2d 697 (1950). As discussed above, AUSA Karen Taylor stated the U.S. Attorney's Office knew of the existence of the Elite Deed of Trust when title to the Property was first examined in February, 2006. (Tr. at 20). 19 In August and September of 2006, the Government had two opportunities to interview Lucas, and inquire about the status of title to the Property they intended to have forfeited. In August, 2006, as part of the acceptance of her plea agreement, Lucas was referred by Judge Cacheris to the Government for a presentencing interview. (App. at 62). Part of the interview was presumably to discuss the details of the forfeiture arrangement, which would have included determining her financial situation for the purposes of restitution. At no time did the Government inquire about the status of title to the Property it sought to have forfeited. On September 29, 2006, Lucas was sentenced and signed a Consent Order of Forfeiture forfeiting the Property to USA. (App. at 63, 65 -67). At that time, Judge Cacheris required Lucas to provide full access and disclosure of her financial information. (App. at 63). Again, USA failed to inquire about the status of title to the Property it sought to have forfeited. (App. at 55; Tr at 20 -21). In October, 2006, USA sent notice to potential claimants based on a seven (7) month old title examination. On October 31, 2006, after obtaining an updated title examination showing that the Elite Deed of Trust had been released, USA was surprised that the Elite mortgage had been satisfied, but made no attempt to see if there was another secured lender in the process of having its security interest recorded. (Tr. at 21). Despite all of these facts known to USA, including that Lucas had pleaded guilty to wire fraud, was in or on her way to federal prison and that the loan 20 could have been paid off through further fraud, USA admitted that it intentionally made no inquiry into the Elite Release. (Tr. at 21). Instead, USA moved for a Final Order of Forfeiture so that it could obtain title free and clear of any liens. USA intentionally and in bad faith turned a blind eye to the surprising payoff, and now seeks to become unjustly enriched by attempting to unlawfully claim priority over a valid, good faith refinance of the Elite Loan by Bayview. USA had knowledge of circumstances which ought to have put it on inquiry notice: namely that a criminal convicted of wire fraud and about to go to prison somehow procured almost $100,000 to pay off a loan without selling her property. Further, USA had at least two of record interviews with Lucas regarding her forfeiture, one of which expressly mandated "full financial disclosure." Under these circumstances, and the possibility that the loan could have been paid off through further fraud, USA is presumed to have made such inquiry and is charged with notice of all facts which such an investigation would in all probability have disclosed if it had been properly pursued. See Fertitta, supra. USA is not entitled to rely upon the mysterious disappearance of a known debt owed by a felon convicted of wire fraud, and is charged with at minimum, constructive and /or inquiry notice of the Bayview Loan. See, Kimm v. Andrews, 270 Md. 601, 620 -621, 313 A.2d 466 (1974). 21 IV. USA'S NOTICE OF THE FORFEITURE WAS DEFECTIVE AND VIOLATIVE OF THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT TO THE U.S. CONSTITUTION A. USA Did Not Provide Adequate Notice to Bayview USA's notice to Bayview was defective and violative of the due process requirements of the Constitution. The Due Process Clause of the Fifth Amendment requires the government to provide a party with an ownership interest in property to be forfeited, notice and an opportunity to object to the government taking. USCS Const. Amend. 5. Notice must be "reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Jones v. Flowers, 547 U.S. 220 (U.S. 2006). In Jones, the government was required to take "additional reasonable steps" to attempt to provide notice of a tax sale to the property owner when under the circumstances, the statutory requirements were not sufficient for someone "desirous of actually informing" an interested party. Id., at 1716. The Jones Court used the following illustration to illuminate its point: If the [tax] Commissioner prepared a stack of letters to mail to delinquent taxpayers, handed them to the postman, and then watched as the departing postman accidentally dropped the letters down a storm drain, one would certainly expect the Commissioner's office to prepare a new stack of letters and send them again. No one "desirous of actually informing" the owners would simply shrug his shoulders as the letters disappeared and say "Z tried." 22 Id., at 1716 (emphasis added). The Supreme Court has applied similar Jones principles in seizure cases. See, Robinson v. Hanrahan, 409 U.S. 38, 93 S.Ct. 30 (1972). In Robinson, a citizen was jailed during the pendency of criminal forfeiture proceedings against his automobile. The citizen denied receiving notice of the forfeiture proceedings while in jail. In finding the forfeiture proceedings were void due to lack of notice, the Supreme Court said: An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. Id., at pps. 39 -40. Jones goes on to observe that " "[c]hance alone" brings a person's attention to "an advertisement in small type inserted in the back pages of a newspaper, "" and that "notice by publication is adequate only where "it is not reasonably possible or practicable to give more adequate warning," quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S. Ct. 652, 94 L. Ed. 865 (1950). The Supreme Court also stated that, "publication was not Constitutionally adequate," if it was possible and practicable to give more adequate warning. Id. at 317. Bayview had no reason to check "an advertisement in small type inserted in the back pages of a newspaper," but USA certainly had reason to suspect that there might be another 23 lender in existence. During the review of a forfeiture case, the Fourth Circuit said, after citing Robinson,: [F]orfeiture is a traditionally disfavored remedy in the law. As a result, those seeking forfeiture must be held to "strict compliance with the letter of the law. United States of America v. Proctor, 1993 U.S.App. LEXIS 25683, p.5 (1993), citing, United States v. Borromeo, 945 F.2d 750, 753 (4`h Cir. 1991). In the subject case, USA's notice could not have been reasonably calculated to inform Bayview of its intent to forfeit the Property. USA relied on a seven (7) month old title examination to determine the interests of potential third party claimants. USA ignored repeated opportunities to inquire of Lucas as to the status of title to her property. USA sent personal notice to the nominee for a lender whose loan had been satisfied and whose lien on the Property had knowingly been released on the record. Even after discovery of the Elite Release following an updated title examination, USA simply shrugged its shoulders to its implications and logical conclusions and moved for a final order of forfeiture. USA concedes that it had a duty to give notice to Bayview of the proposed forfeiture. (App. at 151). USA claims that it provided adequate notice of its intent to forfeit the Property to potential third party claimant by sending personal notice to MERS as nominee for Elite and publishing the notice in the Washington Examiner. 24 USA, however, concedes that the notice referenced a deed of trust that had been released more than one month prior to that notice being sent. (App. at 56, 70) MERS would have had no reason to respond to a notice regarding a deed of trust no longer in existence. Bayview would have had no reason to check the local papers for notice of intent to forfeit one of its secured properties, since it had the Bayview Deed of Trust and would have expected personal notice. Both USA and the District Court made much of the fact that MERS was the nominee for both lenders and that the Property address was included in the notice. (Tr. at 14, 31). Although the Property address was included in the notice, MERS deals in MIN numbers' which identify particular loans and loan numbers. MFRS also deals in recording references such as Book and Page which identify particular recorded security instruments. In fact, the District Court's finding that the notice identify the lender is in error. (Tr. at 31). MERS received notice from USA relating to a MIN number, from which the lender can be identified, relating to a paid off loan, and a released deed of trust. (App. at 156 -159). To find that somehow MERS should have figured out that there was another loan on the Property because it was the nominee for both loans is both impractical and unreasonable. In 2004, MERS handled over 22 million loans and registered over 1 MIN stands for Mortgage Identification Number which is how specific loans and deeds of trust are tracked by the MERS system once they are registered. 25 22,000 loans per day.2 Even at those numbers back in 2004, it would be nearly impossible to have imposed such a high burden on MERS. MERS had no reason to investigate whether it was the nominee for some new lender on some new deed of trust for the Property because the notice it received referenced a loan that was no longer in existence. (App. at 70). The same argument applies to USA's assertion that because the Trustee was the same on both deeds of trust, that somehow notice was adequate. (App. at 151). In fact, a trustee may have no direct relationship with a lender, may never know that he or she is listed on a particular deed of trust and when the lender attempts to foreclose, in many cases it appoints a substitute trustee to do so. There is no evidence that the trustee knew he was the trustee on both deeds of trust or that he received any notice of the intent to forfeit the Property. Under the circumstances, it was obligatory for USA to investigate how the Elite Loan had been satisfied. Once it was discovered Bayview refinanced the Elite Loan, USA would have been required to send written notice of the proposed forfeiture proceedings to Bayview. Shrugging one's shoulders because the government now stood to profit, and take property without being subject to a known secured debt blatantly violates the due process requirements of the Fifth Amendment. 2http: / /www.alta.orz! chnologv /mersfags.cfnz 26 USA's notice to Bayview was defective and violative of the due process requirements of the Fifth Amendment. V. BAYVIEW IS ENTITLED TO FILE A CLAIM IN THE FORFEITURE PROCEEDING TO CHALLENGE THE FORFEITURE A. Bayview, an Innocent Owner, is Entitled to File a Claim in the Forfeiture Proceeding to Challenge the Forfeiture Bayview, as discussed above is an innocent owner and is thereby excused from its neglect in filing a timely claim in the forfeiture proceeding to challenge the forfeiture. Bayview should be afforded the opportunity to contest the proposed forfeiture pursuant to the provisions of 21 U.S.C. §853(n). The 7th Circuit, in the context of a § 853 forfeiture, found that if a third party can demonstrate the inadequacy of the statutory notice, the failure to file a timely response based on such a notice is excusable. United States v. Estevez, 845 F.2d 1409, 1410 (7th Cir. 1988). In adopting its defense of "excusable neglect," the court in Estevez found that even in a case where a potential third party claimant received a mailed notice, but where the notice was not adequate to put the potential third party claimant on notice to the extent of his interests to be forfeited, the judgment of forfeiture was to be vacated. The court in Estevez then directed that he be provided with sufficient time to file a verified Section 853(n) claim. Id. at 1412. In the subject case, as discussed above, the notice to Bayview was defective and violative of the due process requirements of the Fifth Amendment. Further, Bayview 27 is an "innocent owner." Bayview is entitled to an opportunity to make a claim in the forfeiture procedure to challenge the forfeiture. VI. CONCLUSION For the foregoing reasons, the reasons set forth in the record herein, and those to be advanced at any oral hearing, the District Court's judgment granting USA's motion to dismiss or for summary judgment should be vacated and summary judgment in favor of Bayview should be entered. In the alternative, the case should be remanded for further factual findings. 28 REQUEST FOR ORAL ARGUMENT Bayview respectfully requests oral argument in this matter to answer any questions that the Court may have concerning the arguments raised in this appeal. Respectfully Submitted, BAYVIEW LOAN SERVICING, LLC By Counsel David H. Cox Clifton M. Mount JACKSON & CAMPBELL, P.C. 1120 20th Street, N.W. Suite 300 -South Washington, D.C. 20036 Telephone: (202) 457 -1600 29 CERTIFICATE OF COMPLIANCE PURSUANT TO FED. R. APP. P. 32(a)(7) I certify, pursuant to Fed. R. App. P. 32(a)(7) that the attached Brief is proportionally spaced, has a typeface of 14 points, and contains 6434 words (based on Microsoft Word 2002, the word processing system used to prepare the brief), exclusive of the tables, certificates, Appendix, and cover. I understand that a material misrepresentation can result in the Court's striking the brief and imposing sanctions. If the Court so directs, I will provide an electronic version of the brief and /or a copy of the word or line print -out. Clifton M. Mount Dated: April , 2008 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Brief of Appellant, together with accompanying Appellant's Appendix were served via first -class mail, postage pre- paid, on this day of April, 2008 to: Karen L. Taylor, Esquire AUSA Eastern District of Virginia 2100 Jamieson Avenue Alexandria, Virginia 22314 Counsel for Appellant and Margaret Lucas c/o Bureau of Prisons Alderson FPC Glen Ray Road Box A Alderson, West Virginia 24910 Pro Se Appellee Clifton M. Mount IN THE SUPERIOR COURT OF THE DISTRICT OF COLUMBIA Civil Division MATTHEW H. BERKOWITZ, et at, Plaintiffs, v. CHARLES A. ERICKSEN, et al., ) Defendants. ) Case No.: 2007 CA 006418 B (RP) Calendar 5 Judge Combs Greene Next Event: 02/15/08 ISC Filed D.C. S 08 Feb Clerk 0 PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT Pursuant to Super. Ct. Civ. R. 56, Plaintiffs Matthew H. Berkowitz and Arianna Berkowitz ( "Plaintiffs ") respectfully move this Honorable Court for summary judgment against Defendant Charles A. Ericksen ( "Ericksen ") on Count I of the Complaint, which seeks a declaratory judgment from this Court that the foreclosure proceedings and sale were validly conducted and that Plaintiffs are the equitable and true owners of the property at issue. In support thereof, Plaintiffs state that the evidence in this matter clearly establishes that Ericksen has no legal or equitable interest in and to the real property and improvements located at 1420 N Street, N.W., Unit 701E and P37, Washington, D.C. 20005 ( "Unit "). Despite indisputable evidence that Defendant Charles A. Ericksen was properly notified of the foreclosure, he has refused to remove his claim on title to the Unit. The foreclosure proceedings were conducted according to the statute, and Plaintiffs therefore are entitled to a declaration by this Court that they are the equitable owners of the Unit. WHEREFORE, Plaintiffs respectfully request that this Court grant summary judgment against Defendant Ericksen and in favor of Plaintiffs on Count I of the Complaint. In further support of this Motion, the Court's attention is respectfully directed to the accompanying i7 Statement of Undisputed Material Facts Supporting Motion of Plaintiffs' for Summary Judgment and the accompanying Memorandum of Points and Authorities. Respectfull ubmitte. J '5• :1& / 1 :ELL, P.C. 2 Roy L. '.0 '! 252858) rkaufr ann @ja scamp.com Dav d Greenstein( #494223) dgreenstein@jackscamp.com 1120 20th Street, N.W. South Tower — Suite 300 Washington, D.C. 20036 T: 202-457-1600 F: 202 457 -1678 CERTIFICATION PURSUANT TO SUPER CT. CIV. RULE 12 -1 I certify that I attempted to obtain consent to the relief requested in this Motion. Specifically, I corresponded with Christopher G. Hoge, counsel for Defendant Ericksen, by e -mail on January 28, 2008, and he declined to consent to this Motion. I corresponded with Jane Saindon Dudley, counsel for Defendant Unit Owners' Association of Towne Terrace East, by e -mail on January 28, 2008, and she consented to this Motion. 3 CERTIFICATE OF SERVICE I hereby certify that on this 1st day of February , 2008, a copy of the foregoing Plaintiff's Motion for Summary Judgment, Statement of Undisputed Material Facts, Memorandum of Points and Authorities, and proposed forms of Order were served via CaseFileXpress upon: Christopher G. Hoge CROWLEY, HOGE & FEIN, P.C. 1710 Rhode Island Avenue, N.W. 71h Floor Washington, DC 20036 Counsel for Defendant Charles A. Ericksen Jane Saindon Dudley, Esq. WHITEFORD, TAYLOR & PRESTON, L.L.P. 1025 Connecticut Avenue, N.W. Suite 400 Washington, DC 20036 -5405 Counsel for Defendant Unit Owners' Association of Towne Terrace East The Honorable Natalia M. Combs 9ree ufmann 4 IN THE SUPERIOR COURT OF THE DISTRICT OF COLUMBIA Civil Division MATTHEW H. BERKOWITZ, et al., Plaintiffs, v. CHARLES A. ERICKSEN, et al., Defendants. Case No.: 2007 CA 006418 B (RP) Calendar 5 Judge Combs Greene Next Event: 02/15/08 ISC ORDER GRANTING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT Upon consideration of the Motion of Plaintiffs Matthew H. Berkowitz and Arianna Berkowitz, for Summary Judgment, the Statement of Undisputed Material Facts with appended Exhibits "A" through "G ", inclusive, the Memorandum of Points and Authorities, any Opposition thereto, and the entire record herein, it is this day of , 2008, hereby ORDERED, that Plaintiffs' Motion for Summary Judgment be, and the same hereby is, GRANTED; and it is further ORDERED, that summary judgment be, and the same hereby is, ENTERED on Count I of the Complaint in favor of Plaintiffs Matthew H. Berkowitz and Arianna Berkowitz and against Defendant Charles A. Ericksen; and it is further ORDERED that, upon Praecipe by Plaintiffs, Defendant Unit Owners' Association of Towne Terrace East is DISMISSED as a party; and it is further ORDERED, that the foreclosure proceedings and sale are declared to have been validly conducted, in full compliance with the laws of the District of Columbia; and it is further ORDERED, that Plaintiffs have an absolute and indefeasible equitable title to the fee simple interest, in and to 1420 N Street, NW, Unit 701E, P37, Washington, D.C. 20005, also known for tax and assessment purposes as Lots 2014 and 2186 in Square 0212 and more particularly described as follows: The Part of the land conveyed being more particularly designated as Unit No. 701 -E and Parking Unit 37 of "Towne Terrace East, a Condominium" according to the Declaration of Condominium and the By -Laws relating thereto recorded May 13, 1980 as Instrument Nos. 15551 and 15552, respectively, among the Land Records of the District of Columbia, and the Plats and Plans of Condominium Subdivision recorded in Condominium Book No. 25 at Page 15 in the Office of the Surveyor for the District of Columbia ( "Unit "), free and clear from any and all claims, rights or interest in or to by Defendant Charles A. Ericksen. SO ORDERED. Natalia M. Combs Greene Associate Judge Copies to (via CaseFileXpress): Roy L. Kaufmann, Esquire David A. Greenstein, Esquire JACKSON & CAMPBELL, P.C. 1120 20th Street, N.W. South Tower — Suite 300 Washington, D.C. 20036 Christopher G. Hoge, Esquire CROWLEY, HOGE & FEIN, P.C. 1710 Rhode Island Avenue, N.W. 7th Floor Washington, DC 20036 Jane Saindon Dudley, Esquire WHITEFORD, TAYLOR & PRESTON, L.L.P. 1025 Connecticut Avenue, N.W. Suite 400 Washington, D.C. 20036 -5405 IN THE SUPERIOR COURT OF THE DISTRICT OF COLUMBIA Civil Division MATTHEW H. BERKOWITZ, et aL, Plaintiffs, v. CHARLES A. ERICKSEN, et aL, Defendants. Case No.: 2007 CA 006418 B (RP) Calendar 5 Judge Combs Greene Next Event: 02/15/08 ISC STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT 1. On or about July 30, 2007, pursuant to D.C. CODE § 42- 1903.13(c)(4), a Notice of Foreclosure Sale of Condominium Unit for Assessments Due ( "Notice ") was recorded among the Land Records of the District of Columbia for that certain real property located in the District of Columbia, described for purposes of assessment and taxation as Lots 2014 and 2186 in Square 0212 and which have street addresses of 1420 N Street, N.W., Unit 701E and P37, Washington, D.C. 20005, more specifically described as: The Part of the land conveyed being more particularly designated as Unit No. 701 -E and Parking Unit 37 of "Towne Terrace East, a Condominium" according to the Declaration of Condominium and the By -Laws relating thereto recorded May 13, 1980 as Instrument Nos. 15551 and 15552, respectively, among the Land Records of the District of Columbia, and the Plats and Plans of Condominium Subdivision recorded in Condominium Book No. 25 at Page 15 in the Office of the Surveyor for the District of Columbia ( "Unit "), See July 30, 2007 Notice of Foreclosure Sale of Condominium Unit for Assessments Due in Court File, a copy of which is appended hereto and made a part hereof as Exhibit "A ". 2. The Notice was as a result of the third time that the Unit was subject to foreclosure proceedings due to unpaid assessments along with another foreclosed unit in the building owned by Defendant Ericksen. See May 16, 2006 Notice of Intent to Record a Notice of Condominium Lien; December I, 2006 Notice of Foreclosure Sale of Condominium Unit for Assessments Due; April 23, 2007 Notice of Foreclosure Sale of Condominium Unit for Assessments Due and Affidavit of Jane Dudley, copies of which are appended hereto and made a part hereof as Exhibit "B ". 3. Defendant Charles A. Ericksen ( "Ericksen ") was sent and received each separate notice of the aforesaid foreclosures and requested that the Unit Owners' Association of Towne Terrace East (the "Association "), a Defendant herein, delay the foreclosure sales. Despite being accommodated by the Association and representing that he would pay the amounts owed, Defendant Ericksen did not pay. See March 16, 2007 Letter from Jane Saindon Dudley, a copy of which is appended hereto and made a part hereof as Exhibit "C "; Affidavit of Jane Dudley, Exhibit `B" herein. 4. On or about July 30, 2007, pursuant to D.C. CODE § 42- 1903.13(c)(4), the Notice was sent to Defendant Ericksen by certified mail to the two official mailing addresses that Defendant Ericksen had identified and provided to the Association. The first address was the mailing address of the Unit. The second address was P.O. Box 1777, Petersburg, VA 23805. Both notices were signed for and the receipts returned. See Certified Mail Return Receipts and Notice Package in Court File, a copy of which is appended hereto and made a part hereof as Exhibit "D"; Affidavit of Ryan McGuinness, a copy of which is appended hereto and made a part hereof as Exhibit "E ". 5. On or about August 20, 24 and 29, 2007, pursuant to D.C. CODE § 42- 1903.13(e)(5), an advertisement regarding the foreclosure sale appeared in The Washington 2 Times, a newspaper of general circulation. See Affidavit of Publication, a copy of which is appended hereto and made a part hereof as Exhibit "F ". 6. On August 30, 2007, pursuant to D.C. CODE § 42- 1903.13(c)(3), a foreclosure sale of the Unit was conducted at which Plaintiffs Matthew H. Berkowitz and Arianna Berkowitz were the successful high bidders at auction, and, pursuant to the advertised terms of sale, they remitted seven thousand dollars ($7,000.00) by way of deposit and earnest money. See August 30, 2007 Memorandum of Purchase at Public Auction in Court File, a copy of which is appended hereto and made a part hereof as Exhibit "G ". 7. The Association has complied with all notice, service of process, and sale requirements as set forth in D.C. CODE § 42- 1903.13, et. seq., as described in Paragraphs 1 through 5, supra. 8. The Association consents to the requested relief. Respectfully Submitt Ka f' ann( #252858) ufmann@jackscamp.com David Greenstein( #494223) dgreenstein@jackscamp.com 1120 20th Street, N.W. South Tower — Suite 300 Washington, D.C. 20036 T: 202-457-1600 F: 202- 457 -1678 3 IN THE SUPERIOR COURT OF THE DISTRICT OF COLUMBIA Civil Division MATTHEW H. BERKOWITZ, et aL, Plaintiffs, v. CHARLES A. ERICKSEN, et aL, Defendants. Case No.: 2007 CA 006418 B (RP) Calendar 5 Judge Combs Greene Next Event: 02/15/08 ISC MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT This matter involves Plaintiffs Matthew H. Berkowitz and Arianna Berkowitz' ( "Plaintiffs ") claims against Defendant Charles A. Ericksen ( "Ericksen ") as a result of their purchase at foreclosure sale of the real property and improvements located at 1420 N Street, N.W., Unit 70IE and P37, Washington, D.C. 20005 ( "Unit "). The foreclosure proceedings were properly initiated and noticed by The Unit Owners' Association of Towne Terrace East (the "Association ") as a result of Ericksen's failure to pay condominium assessments. Despite the Association's full compliance with statutory requirements in noticing and conducting the foreclosure sale, Erickson continues to improperly claim ownership of the Unit. Accordingly, Count I of the Complaint requests that this Court issue a declaratory judgment that the foreclosure proceedings and sale were validly conducted and that Plaintiffs are the equitable owners of the property at issue. The Complaint and Answer in this matter clearly establish that any title interest that Ericksen may have had to the Unit was extinguished by the foreclosure sale, and Plaintiffs are entitled to summary judgment on Count I of their Complaint. I. LEGAL STANDARD Summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Sup. Ct. Civ. R. 56(c); Miller v. Greater Southeast Community Hospital, 508 A.2d 927, 928 (D.C. 1986); Holland v. Hannan, 456 A.2d 807, 814 -15 (D.C. 1983). The moving party bears the burden of demonstrating the absence of any factual issue and entitlement to summary judgment. Miller,.supra, 508 A.2d at 928; Nader v. de Toledano, 408 A.2d 31, 41 -42 (D.C. 1979), cert. denied, 444 U.S. 1078 (1980). Once the moving party has met its burden, the nonmovant may not rely on the allegations and denials set forth in the pleadings but must offer specific facts indicating a genuine issue for trial. Miller, supra, 508 A.2d at 928; Stevens v. Airline Pilots Association International, 413 A.2d 1305, 1308 -09 (D.C. 1980), cert. denied, 449 U.S. 1111 (1981). If the nonmovant does not so respond, summary judgment, if appropriate, shall be entered. Miller, supra, 508 A.2d at 928; Stevens, supra, 413 A.2d at 1308 -09. II. ARGUMENT D.C. CODE § 42- 1903.13(c) ( "Statute ") plainly and unambiguously sets forth the requirements for the notice and sale of a condominium unit as follows: (4) A foreclosure sale shall not be held until 30 days after notice is sent by certified mail to a unit owner at the mailing address of the unit and at any other address designated by the unit owner to the executive board for purpose of notice. A copy of the notice shall be sent to the Mayor or the Mayor's designated agent at least 30 days in advance of the sale. The notice shall specify the amount of any assessment past due and any accrued interest or late charge, as of the date of the notice. The notice shall notify the unit owner that if the past due assessment and accrued interest or late charge are not paid within 30 days after the date the notice is mailed, the executive board shall sell the unit at a public sale at the time, place, and date stated in the notice. (5) The date of sale shall not be sooner than 31 days from the date the notice is mailed. The executive board shall give public notice of the foreclosure sale by advertisement in at least 1 newspaper of general circulation in the District of Columbia and by any other means the executive board deems necessary and appropriate to give notice of sale. The newspaper advertisement shall appear on at least 3 separate days during the 15 -day period prior to the date of the sale. 2 The Association, through counsel, satisfied each and every statutory requirement for foreclosing on Erickson's unpaid condominium assessments lien. In compliance with D.C. CODE § 42- 1903.13(c)(4), the Association first initiated foreclosure proceedings through a Notice of Foreclosure Sale of Condominium Unit for Assessments Due ( "Notice "), which was recorded among the Land Records of the District of Columbia for the Unit on July 30, 2007. The Notice set a foreclosure sale for August 30, 2007. In compliance with D.C. CODE § 42- 1903.13(c)(4), the Notice was sent to Ericksen by certified mail the same date of recordation among the Land Records of the District of Columbia on July 30, 2007, which was more than thirty (30) days in advance of the scheduled foreclosure sale. The Notice also was sent by certified mail to an alternative "address designated by the unit owner to the executive board for purpose of notice," which was provided by Ericksen to the Association. See D.C. Code § 42- 1903.13(c)(4). The Notice sent to each address was signed for by August 3, 2007, and both receipts were returned to the Association. As required by D.C. CODE § 42- 1903.13(e)(5), the Association then gave public notice by advertisement of the foreclosure sale in The Washington Times, a newspaper of general circulation. That advertisement ran on August 20, 24 and 29, 2007, thereby satisfying the Statute's requirement that the advertisement appear on at least three (3) separate days in the 15- day period prior to the date of the foreclosure sale. At the foreclosure auction of the Unit, Plaintiffs Matthew H. Berkowitz and Arianna Berkowitz were the high bidders and remitted seven thousand dollars ($7,000.00) by way of deposit and earnest money. Ericksen does not dispute these material facts in his Answer. In point of fact, Ericksen does not respond at all, much less deny, the specific allegations in the Complaint, so Plaintiffs' allegations are deemed admitted. See Super. Ct. Civ. R. 8 (d). Instead, Ericksen's sole 3 "defenses" are the non - material facts of actual notice and of some "misunderstanding" as to payments, neither of which constitutes a valid or viable legal defense to the Complaint and/or to the legality of the underlying foreclosure proceedings. As to Ericksen's contention that he was unaware of the foreclosure proceedings, as he did not actually receive the Notice, the Statute does not require and so the Association was not obligated to ensure actual receipt by Ericksen. The plain and unambiguous statutory language requires only that "notice is sent by certified mail to a unit owner." See D.C. CODE § 42- 1903.13(c) (emphasis supplied). Ericksen can point to no legal authority that he was entitled to actual receipt of the Notice of the foreclosure sale, because no such authority exists in this j urisdiction. To the contrary, it is clear that "actual notice of a foreclosure sale is not required if the statutory requirements are adhered to." Young v. 1st Am. Financial Services, 992 F. Supp. 440, 445 (D.D.C. 1998) (concluding that "[t]he statute was satisfied by sending the notice of foreclosure sale to plaintiffs' last known address by certified mail, return receipt requested, and delivering a copy of the notice to the Mayor at least 30 days prior to the scheduled sale"); cf S &G Investment, Inc. v. Home Federal Savings & Loan Assc., 505 F.2d 370, 376 (D.C. Cir. 1974) (interpreting former version of D.C. CODE 42 -815 goveming foreclosure notice requirements pursuant to a power of sale provision under a deed of trust or mortgage and concluding that it would be an "absurd interpretation of the law" to require actual notice to a homeowner). Accordingly, Ericksen's argument that he did not receive actual notice is purely academic, as it constitutes a dispute as to a non - material fact — Ericksen cannot defeat Plaintiffs' claims or the instant Motion by arguing that he was entitled to something that the Statute does not require the Association to give. Moreover, the manner set forth in the Statute is reasonably 4 calculated to effect notice and, although Plaintiffs believe that there was actual notice, this Court is not required to so find. See Jones v. Flowers, 547 U.S. 220, 226 (2006) (reiterating that, for purposes of tax foreclosure sale of real property by the government, "due process does not require that a property owner receive actual notice before the government may take his property. Rather, we have stated that due process requires the government to provide notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections" (emphasis supplied) (internal quotations and citations omitted)). The second "defense" is that there was a "misunderstanding ". This is not a meritorious or proper defense. Defendant claims he thought some other entity was paying his condominium fees. This so- called defense is disingenuous at best and intentionally misleading at worst. The material facts not in dispute and the attached Affidavits show a simple and unrebutted truth — the condominium assessments were not paid when due, there was a massive arrearage, this was the third time that foreclosure proceedings had been instituted, and Ericksen's history of non- payment extended to all three of the units he owned in the same building. Indeed, the Affidavits go further to say that, not only was Ericksen aware of earlier foreclosure proceedings, he actively participated in negotiations with the foreclosing attorney, knowing full well that no mysterious benefactor was paying the condominium fees. III. CONCLUSION WHEREFORE, for the foregoing reasons, Plaintiffs Matthew H. Berkowitz and Arianna Berkowitz respectfully move this Court to enter summary judgment against Defendant Charles A. Ericksen and in favor of Plaintiffs Matthew H. Berkowitz and Arianna Berkowitz on Count I of the Complaint. 5 Respectfully Submitted, JACKSON : CA ELL, P.C. Roy L. K 252858) rkaufin,. @jackscamp.com Davis Greenstein( #494223) dgreenstein @j ackscamp.com 1120 20`h Street, N.W. South Tower — Suite 300 Washington, D.C. 20036 T: 202-457-1600 F: 202-457-1678 6 STEVE JONES ATTORNEY -AT -LAW 920 Cliff Street Lander, WY 82520 307 - 349 -6577 tetonsteve@gmail.com Cary Graves City Attorney City of Kenai 210 Fidalgo Ave. Kenai, AK 99611 -7794 RE: City Attorney position Application for employment Dear Mr. Graves: Jan. 30, 2009 I am writing to apply for the position of City Attorney now open with the City of Kenai. Please find attached my reswne, and one writing sample. I would be glad to submit additional writing samples, or other information, upon request. Much of my legal career has been in government employment. I worked for the Wyoming Attorney General's office for a total of ten years, and all of that time was spent representing the Wyoming Department of Environmental Quality I handled both district court trials before judges, and administrative hearings before the Environmental Quality Council, which is the hearing body for administrative appeals of final decisions by the Department of Environmental Quality I was also involved in the drafting of legislation and rules and regulations. For the last three years of my employment there, I was head of the Environmental Section of the Natural Resources Division of the Wyoming Attorney General's office, supervising four other attorneys. In addition, I worked for a year as Deputy County and Prosecuting Attorney for Suhlette County, Wyoming. In that capacity, I handled mostly misdemeanor cases before the local circuit court. For the last seven years, I have been working for Wyoming Outdoor Council and have been handling cases involving water quality and water quantity issues involving rivers, streams and groundwater. This has included both federal and state litigation, as well as administrative hearings. My writing sample was written in July of 2007, and involves a summary judgment motion that was subsequently granted by the Environmental Quality Council. I am also the co- author (with Sharon Buccino) of a law review article discussing the regulation of coal bed methane pollution in Wyoming: Controlling Water Pollution From Coalbed Methane Drilling: An Analysis of Discharge Permit Requirements, 4 Wyo. L. 559, 563 (2004). 1 have never worked as a city attorney. But I believe my extensive experience working with administrative law, and in government, have prepared me well for this position. 1 I have 30 years of experience as a lawyer. I believe I have good writing skills and can handle most courtroom situations. I am a member of the Alaska Bar Association and was admitted in 1985. I am currently on inactive status in Alaska, but I could become an active status attorney on short notice. I would be happy to come to Kenai at any time to interview for this position with the Kenai City Council. Please let me know if you have any questions about my resume or writing sample. Thank you very much for considering my application. Sincerely, Steve .Tones cc: Lee Salisbury 2 STEVE JONES ATTORNEY -AT -LAW 920 Cliff Street Lander, WY 82520 307 - 349 -6577 tetonsteve @gm a il. com RESUME Education Bachelor of Arts; University of Nebraska - Lincoln; May, 1974 . Major: Philosophy Minors: Political Science and Psychology Juris Doctor; University of Oregon School of Law; May, 1977 Honors: Member, Phi Beta Kappa, Nebraska Alpha Chapter Employment August 2001 to the present: Watershed Protection Program Attorney Wyoming Outdoor Council 262 Lincoln St. Lander, WY 82520 307 - 332 -7031 Ext. 12 Duties: Acting as Wyoming Outdoor Council's primary guardian and watchdog to protect water quality and water quantity threats to Wyoming's rivers, streams and groundwater. This includes review of permit applications, rule revisions, and environmental impact statements, as well as engaging in state and federal litigation under the state Environmental Quality Act and the federal Clean Water Act. This position also included supervising summer legal interns. September 1999 to October 2000: Deputy County and Prosecuting Attorney for Sublette County P. O. Box 1010 Pinedale, WY 82941 Duties: Prosecution and criminal litigation, both jury and bench trials, as well as legal counsel in all county government matters, for Sublette County, Wyoming. July, 1992 to August 2001: Law office practice emphasizing environmental law. Cases include NEPA cases, timber sales, Endangered Species Act, coal gasification, roading issues, and FOIA cases. August, 1987 to July, 1992: Senior Assistant Attorney General Wyoming Attorney General's office 123 Capitol Bldg. Cheyenne, WY 82002 307 - 777 -7841 ling and coal Duties: Supervisor of the Environmental Section of the Natural Resources Division of the office; supervising four attorneys, and directing the environmental litigation for the State of Wyoming. August, 1986 to July, 1987 Taylor and Hintze (D. K. Wright, Anchorage partner) Duties: Associate attorney in the field of construction law. January 1986 to July, 1986 Barokas, Martin and Tomlinson 1029 W 3rd Ave # 280 Anchorage, AK 99501 -1969 907 - 276 -8010 Duties: Associate attorney in the field of construction law and construction litigation. September, 1985 to January 1986 Burt Mason Law Offices 11901 Business Blvd Ste 101 Anchorage, AK 99503 Phone: 907-694-5291 Duties: Associate attorney in the field of worker's compensation. July, 1980 to September, 1985 Assistant Attorney General Wyoming Attorney General's office 123 Capitol Bldg. Cheyenne, WY 82002 307 - 777 -7841 Duties: Staff Attorney in the Natural Resources Division in charge of all water pollution litigation for the State of Wyoming, and primary attorney for the Water Quality Division of' the Wyoming Department of Enviromnental Quality. December, 1979 to July, 1980: Southeast Nebraska Legal Services Beatrice, Nebraska Duties: Staff Attorney for legal services organization in Beatrice, NE, doing truth -in- lending, divorce, child custody, and poverty law. April, 1978 to October, 1979 Wind River Legal Services Fort Washakie, WY 82514 Duties: Staff Attorney for legal services organization serving Fremont County, WY, doing divorce, child custody, Indian law and poverty law. References Mary B. Guthrie 2814 Capitol Ave. Cheyenne, WY 82001 307 - 634 -7187 Daniel F. Heilig P. O. Box 714 Lander, WY 82520 307 - 349 -4057 La rence J. Wolfe Holland and Hart 2515 Warren Avenue Suite 450 Cheyenne, WY 82001-3162 Phone: 303-295-8357 or 307-778-4218 Fax: 307-778-8175 lwolfe @hollandhart.com Other references upon request. Health: good Interests: backpacking, cross- country skiing, bicycling BEFORE THE WYOMING ENVIRONMENTAL QUALITY COUNCIL Wyoming Outdoor Council and Powder River Basin Resource Council, Petitioners, vs. Wyoming Department of Environmental Quality, Water Quality Division, Respondent. Docket No. 06 -3804 PETITIONERS' BRIEF I_N SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT ON THE RECLASSIFICATION OF THREE DRAINAGES OF CRAZY WOMAN CREEK AND THEIR TRIBUTARIES Comes now the Petitioners in this matter, Wyoming Outdoor Council and Powder River Basin Resource Council, by and through their attorney, and for their Brief in this matter, hereby present the following: BACKGROUND On February 6, 2006 the DEQ /WQD Administrator, John Wagner, made a final determination of the reclassification of three drainages to Crazy Woman Creek (Kennedy South Area Addition) and their tributaries. The determination was made after consideration of the "Use Attainability Analysis Kennedy Oil South Area Addition Johnson County, August 3, 2005," (attached hereto as Exhibit 2) and related public comments on the proposal. This reclassification decision downgrades each of these tributaries to Crazy Woman Creek, referred to as Unnamed Draw, Short Unnamed Draw and Morris Draw and all of their mapped and unmapped tributaries (hereinafter sometimes referred to collectively as "the three tributaries "), from Class 3B to Class 4B. The proposed Reclassification is attached hereto as Exhibit 1. The Standard for Granting of Summary Judgments Summary judgments may be granted based upon the standard set forth in Rule 56, Wyoming Rules of Civil Procedure ( W.R.C.P.). See Adler v. Wal -Mari Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998). The W.R.C.P. have been made applicable to proceedings before the Environmental Quality Council by The Rules of Practice and Procedure of the Department of Environmental Quality. Summary judgment is appropriate where there is no genuine issue of material fact and the movants (Wyoming Outdoor Council and Powder River Basin Resource Council in this case) are entitled to judgment as a matter of law. Rule 56(c), W.R.C.P.; Treemont, Inc. v. Hawley, 886 P. 2d 589 (Wyo., 1994). The issues presented below do not present a genuine issue of material fact and are matters of the interpretation of laws or regulations applicable to this case, specifically the Wyoming Administrative Procedure Act, the Wyoming Environmental Quality Act, and Chapter 1, Sections 33 and 34, Wyoming Water Quality Rules and Regulations (WWQR &R). ISSUE PRESENTED The Environmental Quality Council must decide in this case whether three tributaries of Crazy Woman Creek in Johnson County, Wyoming, were properly downgraded from Class 3B to Class 4B by the Wyoming Department of Environmental Quality, Water Quality Division. In order for the Department of Environmental Quality to do this, it is a requirement that they conduct a Use Attainability Analysis (a structured 2 scientific study as defined in Chapter 1, Sec. 2(b)(liv), Wyoming Water Quality Rules and Regulations) of the streams in question and determine whether such a downgrade in stream classification is justified pursuant to the requirements for such a downgrade, as set forth in Chapter 1, Sec. 33, Wyoming Water Quality Rules and Regulations (WWQR&R). The issue thus presented for review to the EQC as part of this Motion for Summary Judgment is whether the DEQ /WQD can lower the classification of a stream, and thereby remove a designated use (in this case, an aquatic life use), when that designated use is already an existing and an attainable use present within the drainage in question. If answered in the negative, this matter would be completely resolved, and there would be no need to conduct a hearing in this matter. Aquatic Life is an Existing Use in the Three Tributaries and Therefore the Downgrading of the Three Tributaries to Class 4B Is Not Allowed Under the Rule The decision to reclassify three drainages to Crazy Woman Creek (Kennedy South Area Addition) and their tributaries should be struck by the Environmental Quality Council. There are five wetlands /impoundments that were documented in the Use Attainability Analysis (UAA) that was conducted by RETEC on behalf of Kennedy Oil. Each of these five wetlands /impoundments support aquatic life. In order to reclassify these drainages and their tributaries from Class 3B to 4B, the UAA must show that the drainages do not support aquatic life and that an aquatic life use cannot be attained within the drainage. In this case, it has been shown that the drainages do, in fact, support aquatic life and therefore should not have been reclassified as Class 4B waters. 3 The specific language that dictates the reclassification of waters in Wyoming is found in Wyoming Water Quality Rules and Regulations (WWQR &R), Chapter 1, Sec. 33. The applicable language in this case states: (a) Any person at any time may petition the department or the Environmental Quality Council (Council) to change the classification, add or remove a designated use or establish site specific criteria on any surface water. (b) The Water Quality Administrator may lower a classification, remove a designated use which is not an existing use or an attainable use, establish ambient -based criteria on effluent dependent waters, or make a recommendation to the Environmental Quality Council to establish sub- categories of a use, or establish site - specific criteria if it can be demonstrated through a Use Attainability Analysis (UAA) that the original classification and /or designated use or water quality criteria are not feasible because: (ii) Natural, ephemeral, intermittent or low flow conditions or water levels prevent the attainment of the use, unless these conditions may be compensated for by the discharge of sufficient volume of effluent discharges without violating state water conservation requirements to enable uses to be met; or WWQR &R, Chapter 1 Section 33. The above language plainly states that the Water Quality Administrator may only remove a designated use when it is not an existing use or an attainable use. Id. "Existing use" means "those uses actually attained in the water body on or after November 28, 1975, whether or not they are included in the water quality standards." Chapter 1, Section 2(b)(xx), WWQR &R. In the present case, two of the three drainages, Unnamed Draw and Morris Draw, support aquatic Life according to both RETEC and the DEQ /WQD. These drainages support aquatic life. A Class 3B classification for these tributaries supports that aquatic life use. But by removing that designated use of aquatic life from these three tributaries, the Water Quality Administrator has removed an existing 4 use, and also (obviously) an attainable use. But Section 33(b) specifically prohibits the Administrator from doing this. Therefore, as a matter of law, the DEQ should not have approved Kennedy Oil's proposal for the reclassification of these drainages to 4B waters. The following are the definitions of Class 3B and 4B waters respectively: Class 3B. Class 3B waters are tributary waters including adjacent wetlands that are not known to support fish populations or drinking water supplies and where those uses are not attainable. Class 3B waters are intermittent and ephemeral streams with sufficient hydrology to normally support and sustain communities of aquatic life including invertebrates, amphibians, or other flora and fauna which inhabit waters of the state at some stage of their life cycles. In general, 3B waters are characterized by frequent linear wetland occurrences or impoundments within or adjacent to the stream channel over its entire length. Such characteristics will be a primary indicator used in identifying Class 3B waters. WWQR &R, Chapter 1, Section 4(c)(ii). Class 4B. Class 4B waters are intermittent and ephemeral stream channels that have been determined to lack the hydrologic potential to normally support and sustain aquatic life pursuant to the provisions of Section 33(b)(ii) of these regulations. In general, 4B streams are characterized by only infrequent wetland occurrences or impoundments within or adjacent to the stream channel over its entire length. Such characteristics will be a primary indicator used in identifying Class 4B waters. WWQR &R, Chapter 1, Section 4(d)(ii). The three tributaries meet the definition of Class 3B waters since they contain "sufficient hydrology to normally support and sustain communities of aquatic life including invertebrates, amphibians, or other flora and fauna." There is no dispute about this. As reported in the RETEC UAA, Ex. 2, pp. 2 -4, 2 -7, and as stated by DEQ /WQD in their Response to Interrogatories, Ex. 4, p, 1, #l, there are about nine acres of wetlands within these drainages. It may be, in fact, that these tributaries meet the definition of Class 2B waters, since they may have the capability of supporting fish as well. While 5 DEQ /WQD may be heard to argue that there are infrequent wetlands in these three drainages, it matters little, since an existing use (aquatic life) has already been documented and is admitted. Therefore a downgrade to eliminate that existing use violates the regulations. The three drainages were erroneously downgraded. They meet the standards of Class 3B waters, as stated in WWQR&R, Chapter 1, Section 4(c)(ii) and thus should not have been reclassified to 4B. "Aquatic Life" is defined for these purposes as "fish, invertebrates, amphibians, and other flora and fauna which inhabit waters of the state at some stage of their life cycles." WWQR&R, Chapter 1, Section 2(b)(iv). The RETEC UAA documents the existence of impoundments. See Ex. 2, Appendix B. This implicitly acknowledges the existence of "aquatic life" in those impoundments. The DEQ /WQD has also acknowledged that the five wetlands /impoundments support "aquatic life." Ex. 3, Request for Admissions, #14 -21. Specifically, the DEQ responded in the affirmative when asked the following questions during discovery: Request for admission No. 14: "The four wetlands identified by the UAA as present in the Unnamed drainage support aquatic life." Response: "Affirmative." Ex. 3, p. 3, #14. Request for admission No. 16: "The wetland identified by the UAA as present in the Morris Draw drainage supports aquatic life." Response: "Affirmative." Ex. 3, p. 3 #16. 6 Request for admission No. 18: "The three impoundments identified by the UAA study as present in Unnamed Draw all support aquatic life." Response: "Affirmative." Ex. 3, p. 3, #18. The DEQ's responses to the above requests for admissions plainly show that there is absolutely no confusion as to whether the five wetland/impoundments located in Unnamed Draw and Morris Draw support aquatic life. Since the wetlands /impoundments do support aquatic life, the drainages clearly meet the requirements of 3B waters and should not have been reclassified to 4B waters. As noted above, Class 4B waters, "are intermittent and ephemeral stream channels that have been determined to lack the hydrologic potential to normally support and sustain aquatic life pursuant to the provisions of Section 33(b)(ii) of these regulations." WWQR&R, Chapter 1, Section 4(d)(ii). The field component of the RETEC UAA was completed during a single day in July, 2005. If the five wetlands /impoundments can support aquatic life in the middle of summer, in the midst of a serious multi -year drought, then certainly they can be categorized as capable of having the "hydrologic potential to normally sustain aquatic life...." Id. DEQ Cannot Use "Significance" as a Standard to Justify the Downgrade of a Stream In this case the DEQ is relying on its policy, rather than on the rule itself, to make its determination that the three tributaries to Crazy Woman Creek all qualify for a "downgrade" to Class 4B, -- a stream classification for streams that do not support aquatic life. This is based upon the flawed analysis that within the tributaries there is no "significant" aquatic life present in the streams or wetlands of the drainages. Oddly, 7 neither the DEQ /WQD nor RETEC tested for the presence or absence of aquatic life in the tributaries. They have assumed that there is aquatic life in the drainages, in and around where the reservoirs are located. But such aquatic life is not "significant," according to DEQ /WQD. How do they know if it is significant or not, since they do not know what aquatic life exists in the drainages? More to the point, why is "significance" the criteria for determining the appropriateness of a Class 4B designation? By designating these streams as Class 4, the DEQ /WQD automatically condemns the wetlands and reservoirs that they have identified in the drainages to no protection for the aquatic life uses that they acknowledge exist in the drainages. We are not talking about a few isolated puddles here. There are more than 4.49 acres of wetlands and reservoirs in Unnamed Draw, and another 4.5 acres of wetlands and reservoir in Morris Draw. DEQ /WQD admits this: "The total combined area affected by the impoundments within the 3 drainage areas is approximately 9 acres." Ex. 3, page 1. Yet, inexplicably, the DEQ /WQD rationalizes this substantial presence of wetlands and man -made lakes as being "insignificant' because such wetlands and reservoirs comprise "less than 1% of the total stream length." Ex.1, page 3, # 6. This is an embarrassingly preposterous rationale. DEQ /WQD appears to be basing its decision on percentages. Because those areas that do support aquatic life are less than 1% of the total stream miles, they are somehow not worthy of protection. DEQ /WQD does this despite the clear requirement of Chapter 1, Sec. 33(b), WWQR&R, that they may only remove a designated use which is not an existing use or an attainable use. DEQ /WQD does not produce any evidence of having even looked for the presence of aquatic life. They did not sample for aquatic life. They do not know what 8 lives in these reservoirs or wetlands. Yet they have determined that whatever is there, even though they do not know what is there, is not a "significant aquatic resource." Ex. 4, page 2, question 2. To base a determination of "significance" simply upon a percentage is stultifyingly obtuse, and shows a total lack of study on the part of DEQ /WQD. If the stream had been 100 miles long and there was one mile of flowing stream and wetlands (1 %), could that one mile be condemned to a "no aquatic life" classification simply because the other 99 miles did not show the presence of aquatic life? This flies in the face of reality. Such an approach would condemn a mile of perfectly viable aquatic life habitat, simply because it happens to find itself in an otherwise dry stream channel. This makes no sense. Yellowstone Lake is the largest freshwater lake in North America, for its elevation. It is 136 square miles. North America is 9,355,000 square miles. That makes Yellowstone Lake .00145% of the total aerial extent of North America. That is between 1 /1000th and 2 /1000th of 1 %. Yet who would try to claim that Yellowstone Lake is not a significant aquatic life resource for North America. One look at the photographs of the reservoirs in Morris Draw and Unnamed Draw reveals significant man-made lakes that clearly will support aquatic life. See Ex. 2, Appendix B. Perhaps these reservoirs support endangered species or unique species of interest as defined by the Wyoming Game and Fish Department. But we don't know because DEQ did not even deem it worthy of investigation. Even by its own rather loose standards, the DEQ /WQD admits that the notion of "significance" is rather vague: "Significance is not precisely defined and will be determined on a case -by -case basis after consideration of the ratio of wetland acres to 9 stream length in addition to wetland functions and values." See Implementation Policies for Antidegradation, Mixing Zones, Turbidity and Use Attainability Analysis, at p. 33. (That policy document can be viewed at deq. state. wy. us /wgd/watershed /surfacestandards/ Downloads /Standards /1 1968- doc.pdf). The policy also states that "The extent of wetland occurrence cannot be used to remove aquatic life protections from waterbodies that are known to normally contain water for extended periods even though they do not exhibit a significant amount of wetlands." See Implementation Policies for Antidegradation, Mixing Zones, Turbidity and Use Attainability Analysis, at p. 33. So the DEQ /WQD policy would seem to rule out the downgrading of reservoirs that are present year -round in any event. But the larger point is that DEQ /WQD should not be allowed to use simply a "percentage" calculation to determine significance, without any investigation or evaluation as to whether a wetland or a water body is significant in a qualitative, rather than a quantitative, way. Clean Water Act Regulations Prohibit DEQ/WQD From Eliminating an Existing Use The federal rules regarding Use Attainability Analyses are very similar to the state regulations See 40 CFR 131.10(g), which is very similar to Chapter 1, Sec. 33, WWQR&R. Note that 40 CFR 131.10(g)(2) is almost identical to Chapter 1, Sec. 33(b)(ii) -- the provision chiefly relied on by DEQ /WQD in this case. It is noteworthy that the federal rules, which DEQ has attempted to replicate, are similarly void of any "insignificance" exception to the requirement that no water body may be downgraded if there is an existing use present in the water body and the proposed reclassification is not 10 designed to support that existing use. The wording of Chapter 1, Sec. 33(b), WWQR&R is fairly similar to the wording of the federal regulation. The federal regulation says: (h) States may not remove designated uses if: (1) They are existing uses, as defined in Section 131.3, unless a use requiring more stringent criteria is added; or (2) Such uses will be attained by implementing effluent limits required under Sections 301(b) and 306 of the Act and by implementing cost - effective and reasonable best management practices for nonpoint source control. -- 40 CFR 131.10(h) The federal regulations go on to further require that: (i) Where existing water quality standards specify designated uses less than those which are presently being attained, the State shall revise its standards to reflect the uses actually being attained. -- 40 CFR Sec. 131.10(i) Thus, even if this downgrade of the three tributaries were to be upheld by the EQC, the DEQ /WQD would be required to "revise its standards to reflect the uses actually being attained," since it is already a known fact that these drainages contain nine acres of wetlands and reservoirs. When There is a Conflict Between the Rule and the Policy, the Rule Governs There is also the question of whether the DEQ /WQD can rely on its Implementation Policy for Anti - Degradation, Mixing Zones and Use Attainability Analysis. Considering the fact that the Wyoming Administrative Procedure Act defines a rule as any "agency statement of general applicability that implements, interprets and prescribes law...," W.S. 16 -3 -101 (b)(ix) [emphasis added], perhaps DEQ should have promulgated its "Implementation Policy" and having failed to do so, it should be ignored by the EQC in deciding this matter. 11 This also raises the larger question of whether any policy can modify, rather than simply explain or amplify upon, existing rules and regulations. Clearly, policies cannot modify rules. Rules have the force and effect of law. Policies do not. Where there is a conflict between the two, the rule controls, and the policy must be ignored. "If an administrative policy conflicts with a statute, rule, or court decision, the policy must be repudiated." Davis v. Taylor & Bogus Foundry. 2003 WL 1849172 (Ohio App.. April 10, 2003); Burrows v. Industrial Commission 78 Ohio St.3d 78, 676 N.E.2d 519. In this case the DEQ is relying on its policy, rather than the rule itself, in making its determination that the three tributaries to Crazy Woman Creek all qualify for a "downgrade" to Class 4B, -- stream classifications that do not support aquatic life. But the rule itself, Chapter 1, Sec. 33(b), clearly does not allow for such an action where an existing designated use is present within the stream(s) in question (as it is here for aquatic life), and would be eliminated by the reclassification. Any policy that conflicts with a rule remains invalid. Lorene v. Call, 789 P.2d 46, 49 (Utah App., 1990). Therefore, the EQC should simply ignore the Implementation Policy in this case, and restore the classification of the three tributaries to Class 3B, as the rule dictates. See also Pacific Gas and Electric Co. v Federal Power Commission, 506 F.2d 33, 40 (D.C. Cir., 1974) The UAA conducted by the contractor RE I EC (Ex. 2), on behalf of Kennedy Oil is, without doubt, a biased document written to achieve the pre- determined outcome of supporting the reclassification of the three drainages in question from 3B to 4B waters. The "Purpose" statement of the UAA states, "[t]he purpose of this UAA is to support the petition to reclassify from the current 3B classification to Class 4B the following 12 drainages..." Ex. 2, p. 1 -1. Can such a document truly be considered a "structured scientific study ?" RETEC uses the fact that the three drainages were once categorized as Class 4 waters as a reason why they should once again be classified as Class 4 waters. See Ex. 2, p. 1 -1. This is faulty logic. Regardless of what the drainages were classified as, they are now Class 3B waters (and deservedly so, given the presence of nine acres of wetlands and impoundments) and demand that level of protection. Further, it is important to remember that the classification system has changed and the classification system that was used prior to July, 2001, is no longer applicable. Finally, RETEC zeros right in on the language contained in the "DEQ Implementation Policy for Anti - Degradation, Mixing Zones and Use Attainability Analysis" rather than the language contained in the actual regulation, which is stated in WWQR&R, Chapter 1, Section 33(b). See discussion supra. RETEC bases its reclassification on this language. Because the language contained in the "Implementation Policy" is in direct conflict with the language in the actual law, the language stated in the law is controlling. When the language from WWQR&R, Chapter 1, Section 33(b) is applied to the instant case, the outcome is necessarily that the Environmental Quality Council restore the 3B Classification for the drainages in question. Conclusion This proposal to reclassify the three drainages to Class 4B waters serves no other purpose than to make it cheaper for an oil and gas company to dispose of CBM produced water. This monetary benefit for the oil company comes at a significant detriment to the Wyoming public and this State's environment and natural landscape. The bottom line is that the Class 4B classification would allow significantly more pollutants in discharge 13 water, without appropriate limitations, than the 3B classification. The irony here is that Class 4B waters are not supposed to protect for aquatic life uses, but the DEQ still happily categorizes these same waters as safe for recreational purposes. Even with a Class 3B classification, the oil company will still be able to develop the proposed 128 CBM wells and discharge the produced water associated with those wells into the drainages in question, albeit (perhaps) at a higher disposal or treatment cost to them, but more importantly, without doing unnecessary environmental damage to Wyoming. SUMMARY There being no genuine issue of material fact with respect to the issues set forth above, the Petitioners ask that the EQC reverse and set aside the Reclassification of Morris Draw, Unnamed Draw and Short Unnamed Draw, restore their classification as Class 3B waters, and issue such further orders to the DEQ /WQD as it may deem just and equitable. WHEREFORE, Petitioners move that their Motion for Summary Judgment be granted. Dated this 20th day of July, 2007. Steve Jones Attorney for Petitioners Wyoming Outdoor Council 262 Lincoln St. Lander, WY 82520 307- 332 -7031 ext. 18 307 - 332 -6899 (fax) steve @wyomingoutdoorcouncil.org 14 Lee Salisbury From: Lee Salisbury nq; Monday, February 02, 2009 11:33 AM o: 'tetonsteve @gmail.com' Subject: City Attorney Kenai We are in receipt of, and thank you for submitting, your application for consideration regarding our City Attorney position. We have begun our review process. Please let us know if you have any questions. Lee Salisbury Legal Admin. Asst. City of Kenai 210 Fidalgo Avenue Kenai AK 99611 Tel. 907 283 -8225 Fax 907 283 -3014 CONFIDENTIALITY NOTICE: This electronic mail transmission may contain legally privileged information. The information is intended for the use of the individual or entity named above. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution or taking any action based on the contents of this electronic mail is strictly prohibited. if you have received this electronic mail in error, please contact sender and delete all copies. January 26, 2009 Lee Salisbury Legal Department Administrative Assistant City of Kenai, Alaska 99611 -7794 RE: Job Posting: City Attorney Dear City Co Eric Jorstad 14121 Stonegate Lane Minnetonka, MN 55345 eric.jorstada,,vahoo.com 952- 846 -7488 RECEIVED KENAI LEGAL DEPT, I am applying for your posted position of City Attorney. After sixteen years in private practice at Faegre & Benson LLP, Minneapolis, I have decided to pursue new opportunities devoting my legal skills to a single client with sophisticated needs, I understand that this letter, together with my resume and other submitted materials, will become public information under the state Public Records Act. I have no direct background in city government. What I bring to this position is a wealth of people skills, widely diverse legal skills, and a passion for fairness and the rule of law. My closest direct skills involve public records and open meeting laws, where I have extensive experience representing media entities (on the "other side" from governmental bodies). I am also a skilled public speaker, both from my trial and court hearing experience and from my days preaching as an ordained Lutheran (ELCA) pastor. My pastoral skills have served me well working with all kinds of people, bringing an effective listening ear to dispute resolution. I believe I can provide the City of Kenai with seasoned judgment and leadership in meeting its legal challenges. My diverse resume provides a well - rounded picture of a lawyer passionate about winning cases for "repeat player" clients with an institutional interest in shaping the law. I have studied and/or practiced in the subject matter areas of contracts, property, administrative procedure, civil and criminal procedure, constitutional, employment, natural resources and environmental law. As Kenai City Attorney I would strive to: • enable the City to implement its goals by developing appropriate laws, policies and procedures; • enforce legal standards, both civil and criminal, as to individuals, businesses and nonprofit organizations; • oversee City compliance with legal requirements; and • help the City anticipate and prepare for future legal challenges and interact successfully with borough, state and federal bodies. As a partner in Faegre & Benson's Intellectual Property Group, I have helped various companies protect and defend their trademark, copyright and proprietary assets. I founded the Firm's privacy practice in the mid- 1990s, building a diverse group of attorneys to meet Eric Jorstad cover letter Page 2 emerging legal needs in various privacy fields, including HIPAA, employee benefits, financial, communications and global data transfer practices. Before moving into the IP Group, I was a partner in the firm's General Litigation Group. I have extensive experience litigating a wide variety of matters, including bench and jury trials, in the areas of contract, employment, personal injury, environmental, libel, public records, government contracting and administrative procedure laws. I have also been outside general litigation counsel for a local design and manufacturing company, successfully managing expenses, experts, internal files and company leadership for over a decade. There is a reason why Yale Law School graduates so often succeed in senior positions. We are trained to understand how a client's "presenting problem" is wrapped up in wider social, economic and technical vectors; to assess strategic opportunities; and to implement proactive legal solutions that are ahead of the times. It strikes me that the position of City Attorney would be a natural fit for these abilities. Although I do not have direct experience in Alaskan courts, I have appeared in many different state and federal jurisdictions, as well as tribal court (Turtle Mountain, North Dakota). I realize my background may not look typical for a City Attorney, but I believe I have the skills and ability to learn and adapt to provide effective leadership. I would be delighted to relocate to Kenai, and I understand that there is a reciprocity agreement between Alaska and Minnesota with respect to my (currently Minnesotan) license to practice law. I can be reached any time on my cell phone: 952- 846 -7488, or by email at eric jorstadAvahoo.com. I appreciate your taking the time to evaluate my credentials and experience for this position. Thank you for your consideration. Professional References (I) John Borger, Partner, Faegre & Benson LLP, 2200 Wells Fargo Center, 90 S. 7th St., Minneapolis, Minnesota 55402, 612- 766 -7501 (direct) (2) Brian O'Neill, Partner, Faegre & Benson LLP, 2200 Wells Fargo Center, 90 S. 7`" St., Minneapolis, Minnesota 55402, 612 - 766 -8318 (direct) (3) Peter Ehrhardt, 215 Fidalgo Ave., Suite 100, Kenai, Alaska 99611, 907 -283- 2876 (direct) Writing Sample Attached please find E. Jorstad, The Privacy Paradox, 27 Wm. Mitchell L. Rev. 1503 (2001) ERIC E. JORSTAD 14121 Stonegate Lane Minnetonka, MN 55345 Cell: 952.846.7488 eric.jorstad@vahoo.com PROFESSIONAL EXPERIENCE LEGAL Licensed in Minnesota, 1991 to present, Minn. Bar No. 216987 Faegre & Benson LLP, International full- service law firm, 1992 to 2008 Partner, Minneapolis office, 1999 to 2008 Intellectual Property Group (partner, 2005 to 2008) • Trademark litigation, clearance and advice • Copyright litigation and advice • Media, intemet and privacy law practice • Member of the trade secret legal team General Litigation Group (partner, 1999 to 2005) • Complex civil litigation: tort, contract, employment, environmental • National product liability litigation general counsel • First Amendment practice for media, new media and religious entities • Founded law form's privacy practice; author, The Privacy Paradox, 27 Wm. Mitchell L. Rev. 1503 (2001) • First chair through life cycle of litigation, including appeal • Lead post- conviction attorney for dea* inmate in California, 1993_ d: row California, __ _ pc�cnt Associate, Minneapolis office, 1992 to1998 • General Litigation: trained in all aspect of civil litigation, claim investigation and dispute resolution • Trained in efficient case evaluation and cost- effective case management • Taken and defended hundreds of depositions, including expert witnesses (liability and damages) Law Clerk, The Honorable Diana E. Murphy, U.S. District Court, 11 Minn. Minneapolis, 1990 to 1992 Summer Associate, Cravath, Swaine & Moore, New York City, 1989 • Litigation • Permanent offer extended RECOGNITION • Selected for Best Lawyers in America (2009 edition) for First Amendment Law NON- PROFIT/PASTORAL Ordained and licensed Lutheran pastor, February 1984 (ELCA) Pastor, St. James Lutheran Church (ELCA), Detroit, 1984 to 1987 Solo Pastor in Rosedale Park neighborhood • Helped congregation become active in community with summer and youth programs, hosting community organizations and promoting civic involvement, growing church membership and visibility. Acting Director of Studies, Office of Church in Society, The American Lutheran Church, Minneapolis, 1983 to 1986 • Drafted "The Capital Punishment Debate" congregational study guide; assisted in drafting "The Conscience of Believers" social statement. Director, Michigan Religious Leaders Against The Death Penalty, Detroit, 1985 to 1987 • Led opposition to local prosecutor's attempt to introduce the death penalty in Michigan by ballot initiative; disqualified initiative by challenging signatures. • Led public relations and organizing efforts. Intern Pastor, Holy Family Lutheran Church (ELCA), Cabrini- Greene Housing Project, Chicago, 1980 to 1981 • Led weekly youth programs in projects, worked with congregation's el -hi school, Headstart and afterschool programs, Chaplain (1 day /week) at skid row detox center, participated in Urban Ministry program training for community organizing. EDUCATION Yale Law School, Juris Doctor, 1990 Articles Editor, Yale Law Journal Author, Note, Litigation Ethics: A Niebuhrian Perspective on the Adversarial Legal System, 99 Yale L.J. 1089 (1990) Luther Northwestern Theological Seminary, Master of Theology, 1983 Social ethics concentration Yale Divinity School, Master of Divinity, 1982 First in class, magna cum laude St. Olaf College, Bachelor of Arts, 1978 Philosophy major Phi Beta Kappa Summa cum laude Addendum COMPLEX CIVIL LITIGATION • Complete First Chair Experience: Extensive experience handling cases large and small, from the first receipt of claim or complaint, through factual investigation, pleadings, discovery, dispositive motions, jury or bench trial and appeal. • Taken or Defended Hundreds of Depositions: Expert witnesses (financial, medical, engineering), CEOs, a Presiding Bishop, Director of Medicine for a major public hospital, recalcitrant ex- employees under subpoena, and many more. • Appeared in Various Fora: Federal court, state court, tribal court, military court, arbitration, mediation. Appeared in the United States Supreme Court in Sanders v. Brown, 546 U.S. 212 (2006) (death penalty habeas corpus). • Clients Based Around the Country: Minnesota, New York, California, North Carolina, Pennsylvania, Washington, Ohio, Tennessee and more. Significant matters and clients: • Holidazzie Litigation: Defended Federal Signal Corp., manufacturer of a switch that was improperly installed in a police van by the Minneapolis Police Department, overriding the brake -shift interlock permitting an officer to accelerate into a parade crowd thinking he was pressing the brake After a four - week trial, the jury found Federal Signal 12.5% at fault, under the 15% threshold for joint liability under Minnesota statutes. • Brunswick Boat v. Genmar: Represented Brunswick Boat Group as plaintiff against Genmar, its leading competitor, arising from Genmar's breach of the noncompete clause in an asset purchase agreement for Hatteras Yacht Company. Obtained a preliminary injunction and prevailed on the merits. • Soo Line RR v. Ashland: Defended Ashland's chemical division in a dispute concerning the origin of chlorinated solvent contamination at an urban tank farm, including investigation of the site's prior owner from the 1960s. Resulted in a settlement. • Onvoy v. ICS/UCN: Defended ICS/UCN's newly - awarded contract with the State of Minnesota to build a fiber -optic cable network to link outstate Minnesota to the Internet. After a two -week bench trial, the Court upheld the validity of the contractual process under state administrative procedure law. • Hatch v. Minnesota Public Radio: Defended MPR in a civil action by the Minnesota Attorney General challenging MPR's data privacy practices. After filing a motion to dismiss, the case settled (before opposition briefing) on favorable terms. • Minnesota Forest Products v. Ligna Machine Co.: Defended sawmill design and manufacturing company against product performance (warranty) claim, reached favorable settlement on the eve of trial. Addendum FIRST AMENDMENT FOR REPEAT PLAYERS • Represent media and religious clients with a long-term institutional interest in First Amendment protections. • Provide strategic counsel concerning when to litigate (to make good law) and when not to litigate (to avoid making bad law), assessing long -term strategic goals in relation to each particular case or situation, with a goal to maximize the protected zone of autonomy for media and religious clients. • First chair responsibility for full gamut of media matters: libel, retractions, invasions of privacy and other newsgathering torts, subpoenas to reporters, prior restraints, open meeting law and access to public information. • First chair responsibility for variety of religious matters: suits by pastors against the church (discharge, defamation, discrimination, all dismissed under the Establishment Clause), clergy sexual misconduct investigation and litigation (on behalf of investigating bishops and judicatories), mandatory child abuse reporting, safe haven policies and procedures. Significant matters and clients: • Stock v. Augsburg College: Obtained summary judgment dismissing lawsuit by infamous hate - letter writer seeking return of his $500,000 contribution or to have building wing named in his "honor." Case named lead "Lawsuit of the Year" by Minnesota Law and Politics. • Rayar v. Bjorback et aL: Obtained dismissal of defamation lawsuit brought by a Roman Catholic priest against eleven of his own parishioners, based on a letter they circulated demanding his resignation for having "an inappropriate relationship" with a woman under priestly vows. Court held it lacked subject matter jurisdiction over this inherently churchly dispute under the exeessivc entanglement prong of the Establishment Clause. • Miller v. ELCA, Davis v. ELCA, Salmen v. ELCA: Brought successful motions to dismiss lawsuits brought by pastor against their denomination, based on the "zone of religious autonomy" for churches' personnel decisions under the Establishment Clause. • Bot v. Marshall Independent: Defended small -town regional newspaper in its first ever libel suit, settling on very favorable terms. • Star Tribune v. Minnesota Dept. of Children, Families and Learning: Obtained standardized test results in action under the state Data Practices Act, in an early (1996) case involving access to governmental electronic database information. • Star Tribune v. Minneapolis Board of Education: Obtained access to school board meetings under the state Open Meeting Law. • Motion to Quash Subpoenas to Reporters: Successfully quashed subpoenas for testimony or documents to news reporters in federal, state and military court. • Motions to Vacate Gag Orders: Successfully moved to vacate gag orders in high- profile murder cases in various Minnesota counties. Addendum SOFT IP LITIGATION AND COMPLIANCE • Front to back management of trademark, copyright and privacy matters • "Best practices" training for design departments • Review of proposed design/text under trademark and copyright standards • Prepare and respond to cease & desist letters Significant matters and clients: • Harley Davidson v. Wilsons Leather: Defended nation's largest leather apparel retailer against claim of trademark infringement based on H -D's "orange stripe design" mark. After thorough investigation, resolved early in discovery by settlement. • L &G v. Wilsons Leather: Defended designer /retailer in copyright cease and desist demand involving artwork on leather jackets. Reached an early and favorable resolution. • Lucky 13 v. Zippo Mfg. Co.: Defended Zippo against trademark infringement claim involving artwork on lighters in U.S. and Em-opean markets. • Target v. Targetstar: Represented retail giant Target in obtaining injunction to close down infringing web site. • Payless ShoeSource v. Target: Defended Target in trademark infringement and dilution litigation involving Target's "EXPECT MORE. PAY LESS. ®" mark. • Adobe: Responsible for national copyright enforcement program for software products. • Founded law firm's privacy practice: In late 1990s, strategized, organized and founded major law firm's privacy practice, including EU, employment, employee benefit, financial, medical and media practices. • Transborder Data Flow Agreements: In conjunction with law firm's transactional lawyers, advise multinational companies concerning global privacy compliance. Presented "U.S. Privacy Law" to Data Protection Conference, Brussels (2001) and London (2002). • Author, The Privacy Paradox, William Mitchell. Law Review (2001). Addendum NATIONAL PRODUCT LIABILITY LITIGATION COUNSEL • Represent Mereen - Johnson Machine Company ( "MJ "), a closely -held business that designs, manufactures and sells complex woodworking machinery. • Based on its experience under my counsel, Mereen - Johnson has been self - insured for over 15 years, and in no year have MJ's expenses for counsel and settlements exceeded any one year's insurance premium. • Oversee MJ's initial investigation of every accident report across the country, including site visits, machine history and service records, and engineering analysis. • Oversee MJ's product safety improvement work, including extensive analysis and redesign of state -of -the -art anti - kickback safety fingers for rip saws, a well -known hazard (for design, guards and warnings) in the industry. • Oversee MJ's communications with customers concerning available safety improvements for MJ machines. • Oversee MJ's choice and use of warning labels. • Oversee MJ's file maintenance related to product safety. • Defend MJ in court actions as needed: o Pennsylvania: Worker injured by slipping on sawdust due to employer's faulty vacuum system. Settled favorably. o California: Worker injured by kickback because employer failed to maintain safety system. Settled favorably. o Michigan: Worker injured in first eight minutes working on double -end tenoner, claimed to be unaware that large rotating object was the saw blade and inadequate guarding. Settled favorably. o Virginia: Worker injured when she inserted her hand inside a vacuum hood/guard that employer had replaced and redesigned from MJ's original hood guard. Jury trial in W .D. Virg. (Roanoke), complete defense verdict. o Alabama: Worker injured on door - sizing machine when conveyor belt on which his hand rested while cleaning tooling area unexpectedly started and pulled his hand into blades. Co- worker may have started conveyor as retaliation after physical altercation with worker earlier that day. Settled favorably. o Kansas: Worker injured by kickback past poorly - maintained safety system. Settled favorably. o Wisconsin: Worker injured by kickback past poorly- maintained safety system after MJ had sent letter warning employer about this system. Settled favorably. Addendum LEAD POST - CONVICTION COUNSEL FOR DEATH ROW INMATE • Appointed lead counsel by California Supreme Court for all post- conviction proceedings for Ronald Lee Sanders, an inmate on death row in San Quentin. • Appointed lead counsel for federal habeas corpus proceedings by U.S. District Court, E.D.Cal. (Fresno). • Responsible for investigating and developing claims: o Retained Public Interest Investigations (Los Angeles) and conducted complete pre - petition investigation, including interviews of all jurors, witnesses, police, prosecutor, and locating and interviewing extensive additional guilt and penalty phase witnesses. o Submitted Petition in federal court, subsequently submitted exhaustion petition in state court. • Lead litigator for procedural matters: o Developed, argued and prevailed on novel procedural theory in state proceedings, "abandonment of counsel" based on prior appellate/habeas counsel's failure timely to investigate and submit a petition. In re Ronald Lee Sanders, 21 Ca1.4 697 (1999). • Appeared in United States Supreme Court: o Personally appeared before SCOTUS o Second counsel Nina Rivkind argued, issue focused on California state law and procedures. • Evidentiary hearing: o One claim remains to litigate: Ineffective assistance of trial counsel for failure to investigate and present a penalty defense. We have obtained extensive records concerning Mr. Sanders' background and family, interviewed dozens of family and other witnesses, developed and presented six expert witness declarations (menial health ealth ano Sl7'lCklana legal standards). o Currently conducting post - hearing briefing following four -day evidentiary hearing in E.D. Cal. (Fresno) in October 2008. • Maintain extensive files, over sixty boxes, constituting the complete investigation results, working closely with a dedicated paralegal and case assistants. EMEMREIRERNEM WILLIAM MITCHELL LAW REVIEW ARTICLE Eric Jorstad THE PRIVACY PARADOX THE PRIVACY PARADOX Eric Jorstadt I. INTRODUCTION 1503 II. PRIVACY FEARS 1505 III. PRIVACY REGULATIONS 1511 A. Federal Statutes And Regulations 1514 B. State Statutes And Regulations 1515 C. State Common Law 1516 D. European Union 1517 E. Self-Regulation 1518 IV. PRESERVING THE PRIVACY PARADOX IN PRACTICF 1519 A. Integrity 1520 B. Participation 1523 C. Challenge 1524 I. INTRODUCTION Americans are ambivalent about privacy. On the one hand, we believe in self - creation, and cherish the private space required to plot, plant and nurture our dreams. We recoil at intrusions into that space, whether by government, busi- ness, the media or our neighbors. On the other hand, we believe in enlightened progress through competition, science, technology, the market and ideas. No hypothesis goes untested, a process pow- ered by mind probing beneath every surface, behind every truism, past every "Keep Out" sign, driven by the quest for progressive, pragmatic, ever - changing truths. The law reflects this ambivalence. A property law regime pro- tects the personal identity paradigm inherent in the garden meta- phor for self - creation. The space we own is ours and may not be entered without consent. At the same time, a free market and free t Eric Jorstad is a partner in the law firm of Faegre & Benson LLP. He co- ordinates the firm's Data Privacy practice. He wishes to thank John Borger, Kate Boschee, Michael Carlson, Tom Schroeder, Nan Remus, Ann Kraemer, Jonathan Asner, Kristin Eads and Paul Civello for reviewing earlier drafts of this article; for better or worse, however, he is responsible for what is written here. 1503 1504 WILLIAM MITCHELL LAW REVIEW [Vol. 27:3 speech regime protects the dynamic personal capacities paradigm inherent in the progressive metaphor for competitive transforma- tion. The powers of inquiry should not be thwarted by out -moded barriers and no question, no comment, no product, is out of bounds. The Internet brings this conflict to a head. The current debates about privacy should be understood in the context of our underlying ambivalence, what I call the privacy paradox. We have fashioned, to date, a legal and cultural system which permits both paradigms to flourish (usually). At the dawn of the Cyber Age, however, there are proposals to lop off one side or the other of our core values. The secret of our success has been the ability to maintain both sides of the paradox simultaneously. The challenge now is to refashion legal norms to restructure our vibrant ambivalence, our gloriously conflicted self- understanding, for the New Age. In this article, I will explore the privacy paradox as businesses, government and American culture grapple with the appropriate scope and limit for the regulation of data privacy in the Cyber Age. In Part II, the core fear underlying the privacy debates is described as loss of autonomy. Intrusions on (data) privacy by business, gov- ernment and individuals are feared with respect to "big brother" Internet, harassment, children, medical records, credit history, and loss of face. The core fear is placed alongside the other core value in the privacy debates, the free flow of information in the political and economic spheres. In Part III, the developing regulatory re- gime governing data privacy is described, looking at the process of regulatory development through an analogy to the development of the product safety regulatory regime. "Data" are, in one sense, simply another type of product in the stream of commerce.' Fi- nally, in Part IV, I propose a model for organizations (business, nonprofit and governmental) to move beyond privacy "compli- ance" to the flexible integration of the privacy paradox into fun- damental organizational mission. Ultimately, it is the unresolvable nature of the privacy paradox which gives the issue of privacy its dynamic power to catalyze organizational processes. As the phi- losopher Friederich Nietzsche wrote, "One is fruitful only at the cost of being rich in contradictions. "2 In short: embrace the privacy 1. Reno v. Condon, 528 U.S. 141 (2000) (stating that personal information may be a "thin[g] in interstate commerce ") (alteration in original). 2. FRIEDERJCH NIETZSCHE, Twilight Of The Idols Or How To Philosophize With A 20017 THE PRIVACY PARADOX 1505 paradox. H. PRIVACY FEARS Although the definition of the word, "privacy," is primarily negative or exclusive, the concept of "privacy" includes both a posi- tive and a negative dimension. According to Merriam-Webster's Collegiate Dictionary, privacy is defined as: "(1) (a) the quality or state of being apart from company or observation: seclusion; (b) freedom from unauthorized intrusion <one's right to privacy >; (2) ... a place of seclusion; (3)(a) secrecy; (b) a private matter: se- crecy." This definition emphasizes the negative notion of privacy, that it is a state of not being visible to others, where one is not in- truded upon. As the poet Robert Browning wrote, I give the fight up: let there be an end, A privacy, an obscure nook for me. I want to be forgotten even by God." Privacy is the state of being safe behind a wall which excludes others. But there is a positive dimension implicit in this definition. Privacy includes the power to build and maintain that wall of safety. Privacy includes the power to set a boundary protecting the self — and whatever or whomever else the self chooses to include —from all others. Thus, a core value inherent in the concept of privacy is autonomy or, to use a political term, freedom. Privacy is the freedom to define r cnP and express css one's self as one chooses. Whom do you wel- come in your kitchen? In your bedroom? In the "c: \" drive of your computer? The power to welcome as one chooses, and to exclude as one chooses, is the positive dimension of privacy. In this light, we can see what motivates the current debates over privacy, and understand why these debates are so highly charged. With the growth of cyberspace and increased awareness of the mobility of personally identifiable data ( "PID "), the core fear is loss of autonomy. In the "hierarchy of needs" identified by psy- chologist Abraham Maslow, the most basic need is to not die, with fear of death, then, being the primal fear. The next most basic Hammer, in 'Der—ALIGHT OF THE IDOLS /THE ANTI - CHRIST 54 (RJ. Hollingdale trans., Penguin Books 1968) (emphasis omitted). 3. MERRIAM- WEBSTER 5 COLLEGIATE DICTIONARY 927 (16th ed. 1993), at http: / /www.m -w.com (last visited Nov. 24, 2000). 4. ROBERT BROWNING, Paracelsus, in THE POETICAL WORKS OF ROBERT BROWN- ING 40, 44 (G. Robert Strange ed., Houghton Mifflin Co. 1974) (1895). 1506 WILLIAM MITCHELL LAW REVIEW [Vol. 27:3 need, closely related, is for safety, the need to not be harmed. In Maslow's approach, the higher order needs —for love, productivity, meaning, art and spirituality— cannot be met unless the primal needs are first secured.' Privacy is an element of the nearly -most primal need for safety,' and may even involve fundamental life -and- death fears.' This hits home for me with a simple metaphor. I have two daughters, currently ages eleven and fifteen. I often feel that sit- ting them down, alone, at a personal computer connected to the Internet is the cyberspace equivalent of setting them down by themselves in the middle of Times Square in New York City. What can they see? Who can see them? How can they evaluate the mo- tives of everyone who might approach them? How will they find the fun, safe places that make Times Square a delight? Or will they unwittingly fall prey to ... what? Do I even know what I should really be afraid of, on their behalf? Privacy fears take many forms in cyberspace. One privacy fear is the power of "big brother" Internet. For example, in 1998 GeoCities settled a suit brought by the FTC alleg- ing that GeoCities was collecting extensive PID from Web site visi- tors without the visitors' knowledge." GeoCities was collecting such information as e -mail and postal addresses, gender, interest areas, marital status, income, occupation and education. It collected this from children as well as adults. The privacy fear is that Web sites can function like "big brother" in Orwell's work of "fiction," 1984, seeing all, hearing all, knowing all, and then making decisions af- fecting the quality of your life without your knowledge or consent. 5. See generally ABRAHAM MASLOW, MOTIVATION AND PERSONALITY (3d ed. 1987). 6. According to neuroscientists, the need for safety arises from the most primitive "reptilian" brain inside our skulls, the limbic system at the base of the brain where it meets the spinal cord. This primitive brain asks only six questions of any particular person encountered: whether this is someone to "1) nurture, 2) be nurtured by, 3) have sex with, 4) run away from, 5) submit to, or 6) attack." H. HENDRIX, GETTING THE LOVE You WANT 11 (1998) (citing P. McLean, Man and His Animal Brains, MOD. MED., Feb. 1964). The higher brain, like the higher order needs described by Maslow, rests atop this primitive foundation. 7. The issue of abortion is often cast as a matter of privacy or autonomy. See generally Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992). The intensity of feeling and fears related to abortion, on all sides of the public de- hate, illustrates the kind of response often connected to "privacy" issues. 8. In re GeoCities, FTC File No. 982 3015 (Aug. 13, 1998). Copies of the complaint and the proposed consent order can be found at http: / /www.ftc.gov/ os/1998/9808. 2001] THE PRIVACY PARADOX 1507 let alone participation. Web users may not make the distinction critical to Orwell's vision, between the omniscient totalitarian "eye" of the government and of businesses. It is simply "another" who is watching me, invading my privacy. The core fear is loss of auton- omy. Another privacy fear is personal harassment. Stories of Inter- net "stalking" are common, or at least felt to be common. One re- port illustrates the concern. A direct marketing company con- tracted with the Texas prison system for inmates to enter survey data into computers. One inmate, a sex offender, used informa- tion from the data entry to write a twelve -page threatening letter to a woman who had responded to the company's survey. Because of this case, the Texas legislature barred sex offenders from record - entry work. "We lost some damn good programmers- pedophiles," said the director of state prison industries. "Some of our best com- puter operatives were sex offenders."' A related privacy fear is identity theft. Trans Union, one of the Big Three credit reporting agencies, noted that its credit bureau received more than 45,000 calls a month from people complaining that their credit accounts had been taken over.10 This fear is not limited to cyberspace. My own credit card was stolen and used to purchase more than $1200 in clothing and electronics in one eve- ning." More people are now buying paper shredders for their per- sonal mail, shredding the voluminous credit card offers received by mail which often contain rill. In the cyberworid, we are less confi- dent of our ability to "shred" revealing electronic information about us. Medical information may be particularly sensitive. Last year, University of Michigan medical records were posted on the Inter- net for at least two months before the error was discovered.12 9. Nina Bernstein, Lives on File.: Privacy Devalued in Information Economy, N.Y. TIMES, June 12, 1997, at Al. 10. Id. 11. My experience showed the value of legal protections for credit card hold- ers. I was not aware that the card was even missing (I had left it behind at a su- permarket), until the credit card company called the next morning because of "suspicious" purchases which it wanted to verify were authorized. Local police ac- tively investigated and apprehended the thief based on a store video camera which captured a purchase at the exact time and location noted on the credit card re- cords. The credit card company even waived my payment of the standard $50 de- ductible for theft protection, so I ended up losing nothing in the end (except some peace of mind). 12. Jodi Upton, U -M Medical Records End Up on Web, DETROIT NEWS, Feb, 12, 0 2001] THEPRIVACYPARADOX 1509 ess of democratic self- governance.16 This applies to political ex- pression, to be sure; but it also applies to protect the capacity of businesses to create target audiences for particular commercial so- licitations.ie The Freedom of Information Act and numerous state - law "government in the sunshine" acts create public access to gov- ernment information and give citizens the information they need to scrutinize the operations of government.19 In the political sphere, information flows freely both directions, from the governed to the government and from the government to the governed, at least in principle. In the economic sphere, the free flow of information is critical to the flexibility and power of the market. Consider just one ex- ample. A consumer may feel queasy about the full range of infor- mation available to a credit reporting agency, which may document every loan, bank account, criminal conviction, and asset one has (and could even include reports of interviews with neighbors and coworkers).20 But in a mobile, diverse and large community of po- tential borrowers, who wants to rely on the personal knowledge of a banker the next time one applies for a home loan, car loan, or credit card? Credit makes the (economic) world go around, and in this big world it could not function without credit reports. Furthermore, the commercial capacity for profiling target market audiences is the flip side of the credit evaluation process.21 In a free economy — where customers can choose what to purchase, from whom, and where businesses can choose what to sell, to whom 16. See N.Y. Times Co. v. Sullivan, 376 U.S. 254, 269 (1964). See also Burt Neuborne, Free Expression and the Rehnquist Court, 538 PLI /PAT 1273, 1275 -81 (1998); Cass R. Sunstein, The First Amendment in Cyberspace, 10411,6-8 L. j. 1757, 1760 (1995); Alexander Meiklejohn, Testimony On The Meaning of the First Amendment, FIRST AMENDMENT CYBER- TR1s., at http: / /w3.trib.com /FACT /lscmeikle.html (last updated Oct. 21, 1997). 17. Buckley v. Am. Constitutional Law Found., 525 U.S. 182, 194 (1999). 18. U.S. West, Inc. v. Fed. Communications Comm'n, 182 F.3d 1224, 1232 (10th Cir. 1999), cert. den. sub nom.; Competition Policy Inst. v. U.S. West, Inc., 120 S. Ct. 2215, 2217 (2000). 19. Freedom of Information Act, 5 U.S.G. § 552 (1994 & Supp. 1998); Minne- sota Government Data Practices Act, MINN. SPAT. §13.01 (1997) amended by 2000 Minn. Sess. Law Serv. 468 (H.F. 3501) (West). 20. Fair Credit Reporting Act, 15 U.S.C. § 1681a(e) (1994). 21. For the FTC's report about Web site profiling of customers, see FEDERAL TRADE COMMISSION, Online Profiling Report (June 2000), at http: / /www.ftc.gov/ os /2000 /06 /index.htm #13; Federal Trade Commission, Online Profiling: A Report to Congress (Part 2): Recommendations (July 2000), at http: / /www.ftc.gov /os /2000/ 07/ordineprofiling.htm. 1508 WILLIAM MITCHELL LAW REVIEW [Vol. 27:3 Targeted direct mailing raises the question for consumers: how much do "they" really know about me? I recently received a direct mail political advertisement from a candidate promising to keep our private information private ... addressed to me, person- ally, at my home address. How did he know I lived there? How much personal information is for sale? Who will target us, for what? A skeptic might ask, reasonably, how much of our privacy fear reflected in these anecdotes is grounded in fact. There is a striking paucity of reliable information." The FBI's Uniform Crime Re- porting Program includes subcategories for counterfeiting, forgery, credit card fraud, bad checks and hate crimes but no Internet- specific reports." The FTC will take consumer complaints about Internet fraud, spam, identity theft, and anything else about which one wishes to complain, but its enforcement activities are limited and its publication of Internet privacy resources slim." Creating good public policy about privacy under these circumstances is like drafting anti -crime legislation based on what you read while waiting in the supermarket checkout line. There is more to the story. The privacy fears based on non- consensual intrusion into personal (data) space represent only one side of the privacy paradox. The other side of the paradox does not grab headline attention in the same way, but it is equally critical to understanding data privacy. A free society requires the free flow of information. This is true in both the political and economic spheres. The First Amendment protects the rights protects = =g =.w 5r expression, underlying the proc- 1999, at Al, available at 1999 WL 3915521. 13. A compendium of shockingly unreliable information either about, or transmitted by, the Internet can be found at http: / /www.urbanmyths.com. 14. See FEDERAL, BUREAU OF INVESTIGATION, Uniform Crime Reporting Program, at http: / /www.fbi.gov /ucr.htm (last visited Nov, 24, 2000). 15. The FTC's Web site contains a complaint form, which also contains links to the FTC's identity theft report form and unsolicited commercial e -mail (spam) report form. FEDERAL TRADE COMMISSION, Bureau of Consumer Protection Complaint Form, at http: / /www.ftc.gov /ftc /complaint.htm (last updated Oct. 27, 2000). The FTC's Web site also describes its enforcement activities and publications related to privacy. FEDERAL. TRADE COMMISSION, Privacy Initiatives, at http: / /www.ftc.gov/ privacy /index.html (last updated Oct. 10, 2000). A leading critic of the FTC pri- vacy initiatives is the Electronic Privacy Information Center, or EPIC. E.g., Elec- tronic Privacy Center, Network Advertising Initiative: Principles Not Privacy, (July 2000), at http: / /www.epiaorg /privacy /Internet /NAI_analysis.htm1 (last visited Nov. 13, 2000); http: / /www. epic. org / privacy / Internet /EPIC_testimony_799.pdf (last visited Nov. 13, 2000). 1510 WILLIAM MITCHELL LAW REVIEW (Vol. 27:3 –the exchange of information is critical to finding a mutual "fit" be- tween customer and business so that a sale can be made. When it comes to a small -town hardware store, you feel good getting a call from the owner at home telling you about a new shipment of inno- vative products helpful to your farm, home, or business.22 But "telemarketing" by impersonal behemoths or computer - generated voices is hardly a feel -good enterprise!' Customer profiling is the mass market's attempt to simulate the personal attention of a busi- ness that is known, liked, and trusted. The commercial privacy fear, corresponding to the individual privacy fears discussed above, is loss of trust. To succeed, a business needs to be seen as reliable and responsive. At a minimum, a busi- ness does not want to get "caught" breaching the rules of privacy expected by customers. At the other end of the spectrum, a busi- ness wants to be known as a place customers can count on, a place that cares about what customers think and handles their concerns with respect. In some lines of business involving particularly sensi- tive information — financial, medical, insurance, credit, etc. —the trust relationship is critical to the business's existence and growth!" This is the dilemma for business: how to obtain and use the most helpful information about customers and potential custom- ers, and at the same time show respect for the walls customers have constructed to keep business (among others) out. The simple, small -town answer is to be invited inside for conversation. In the mass markets defining most business today, however, this kind of access is not available. 22. My grandfather ran the local hardware store in Kenyon, Minnesota (population of 1150) for many years. The description above is not a hypothetical. 23. There are exceptions, based in part on the detail of information available to telemarketers. One evening this year, just as I was talking with my older daugh- ter about the exhibit I had seen a few days earlier at the Minneapolis Art Institute, the phone rang and it was a telemarketing solicitation from the Art Institute! Was it ESP, surveillance, luck, or good - targeted marketing information? I recalled en- tering a contest during my visit to win a design consultation at the Art Institute, which was the likely source of my (unlisted) phone number. Needless to say, I am now a proud member of the Minneapolis Art Institute. 24. Another dimension of the commercial regulatory fear is the high cost of litigation in the area, due in part to the legal uncertainties. See infra Part III. Be- cause data privacy is so prominent on the current public radar screen, and be- cause of the inherent sensitivities involved in "privacy,' the high cost of litigation also includes the loss of goodwill and trust. Commercial privacy fears are directly connected to the business bottom line of earnings, as well as the social psychologi- cal factors discussed above. 2001] THE PRIVACY PARADOX III. PRIVACY REGULATIONS 1511 If autonomy and access — freedom as the power to set a wall and freedom as the power to cross every wall —are the competing core values at stake in the concept of privacy, what legal regime should be developed to advance these values? Looking at the big- ger picture in historical context, privacy regulation today is (with a few important exceptions) about where consumer product safety regulation was in about 1965. Indeed, the experience with the de- velopment of consumer product safety regulations is helpful for understanding the current climate for the regulation of privacy.' The mass market for tangible consumer products "took off' in the 1.950s. Although the Industrial Revolution and rise of auto- mated production had been growing for decades, the transforma- tion from a custom -made to a mass - produced economy was not com- plete until after the second world war. At the dawn of the consumer product economy, the governing legal regime could be summarized in the Latin motto, caveat emptor, "let the buyer be- ware." But a regime appropriate to the custom - production econ- omy, characterized by face -to -face interactions between maker and buyer, proved inadequate to the anonymous fungible mass - market "modern" system which came to reign. In California (naturally), in a case involving power tools (of course), the state supreme court espoused a new view of liability for harm to consumers from modern products.' The older view, negli- gence, required some showing of fault on the part of the manufac- turer before a consumer could recover. The California court re- placed the fault system with strict liability in tort. An injured consumer could recover if the product was defective, without re- gard to the fault, or lack of fault, on the part of the manufacturer who made it. Thereafter, in federal and state legislatures, con- sumer product safety regulations came to prescribe standards for product manufacture, and agencies arose to monitor complaints and enforce compliance with the new standards. Industry groups 25. The impetus for this analogy was a line from Marc Rotenberg, Director of the Electronic Privacy Information Center, while testifying at the FTC hearings on electronic consumer privacy in 1996. He stated, "[p]rivacy will be to the informa- tion economy what consumer protection and product safety were to the industrial age." Bernstein, supra note 9, at Al. The development and critique of this analogy in this article is, however, my own creation. 26. Greenman. v. Yuba Power Prods., Inc., 377 P.2d 897, 899 (Cal. 1963) (embracing the concept of strict liability in a tort case involving a power tool). 1512 WILLIAM MITCHELL LAW REVIEW [Vol. 27:3 and trade associations often developed safety standards in conjunc- tion with governmental efforts. The laissez-faire regime of product safety was replaced by the regulated market we take for granted today. One advantage of the commonplace nature of these regulations is that a business may procure insurance for its liability risks. The transaction costs for the regulated market are enormous (insurance premiums, legal departments, compliance officers, training, tax- funded agencies, etc.), but the costs are for the most part predictable. Consumer product safety is just one of the costs of doing business, like labor, equipment and advertising. The world of data privacy regulation today is much like the world of consumer product safety regulation in the mid- 1960s. Just as the universalization of automation replaced a custom -made con- sumer product world with a mass - produced world, the universaliza- tion of electronic data storage and communication is replacing the custom -made consumer information databases with mass- produced and mass - distributed information The market for information "took off' in the 1990s. It is epitomized by the commercialization of cyberspace. At the dawn of the cyber - economy, the governing legal regime can be described by a variant on the old Latin phrase: caveat orator, "let the communicator beware." In other words, communicate about yourself at your own risk. The communicator bears the risk that the information communicated will be misused somewhere in cyberspace —that one's survey results will be entered in a computer by a convicted sex offender in Texas, that one's pur- chasing patterns will be sold to telemarketers, that one's credit identity will be misappropriated by someone else's wild spending spree, that one's children will be stalked by Internet pedophiles, and so on. This "wild west" mentality of free - wheeling Internet data ex- change is being faced with a stagecoach full of sheriffs eager to clean up (or at least be seen cleaning up) the town. Data privacy regulations are proliferating. The patchwork nature of the law is breathtaking. Businesses struggling to meet even minimum goals of compliance with data privacy laws are faced with complex inter- nal data practices audits and development of new compliance strategies —but to comply with ... what? What was /is /will be the data privacy law? What will be the contours of the regulated data privacy market which will, ineluctably, replace the caveat orator world of the late 1990s? 2001] THE PRIVACY PARADOX 1513 Before turning to a brief outline of current data privacy laws, I would like to make three overall comments. First, the First Amendment changes the parameters of the regulation of data privacy, in contrast to the now well - settled regu- lation of consumer product safety. The collection, organization, maintenance and dissemination of "information" is, after all, a form of communication, and the First Amendment places distinct and unique limits on the ability of the government to regulate communication. 27 Second, the cyberworld of information distribution differs sig- nificantly from the geoworld of consumer product distribution. Consumer products "exist" in a world of atoms and molecules and manufacturing plants (in a definable place) and sellers (in a defin- able place) and buyers. Cyber - information "exists" in a different manner. To be sure, it does exist. But its regulation poses prob- lems ofjurisdiction, choice of law, regulatory authority and interna- tional cooperation that are different from the regulation of tangi- ble consumer products ?8 Third, the dynamic power of the privacy paradox makes the regulation of privacy particularly problematic. I will discuss this in more detail in Part IV below. Indeed, I will ask whether it is possi- ble —and desirable —to develop a regulatory scheme for data pri- vacy along the model of consumer product safety regulation, in Light of the critical issues posed by the First Amendment, cyberju- r.gdiCClOn, and the privacy paradox. With these historical and philosophical principles in mind, we can sketch the current law of data privacy with broad brush strokes. There are five areas in which data privacy is regulated: federal stat- utes and regulations, state statutes and regulations, state common 27. E.g., Am. Civil Liberties Union v. Reno, 217 F.3d 162, 173 (3d Cir. 2000). 28. E.g., Maritz, Inc. v. Cybergold, Inc., 947 F. Supp. 1328, 1329 (E.D. Mo. 1996) (involving personal jurisdiction over the California operator of an Internet site that provided information on a forthcoming service); State by Humphrey v. Granite Gate Resorts, Inc., 568 N.W.2d 715 (Minn. Ct. App. 1997), affd, 576 N.W.2d 747 (Minn. 1998) (involving personal jurisdiction over Nevada operator of forthcoming online gambling service advertised to Minnesota residents); see also Inset Sys., Inc. v. Instruction Set, Inc., 937 F. Supp. 161, 165 (D. Conn. 1996) (holding that Massachusetts corporation purposefully availed itself of privilege of doing business in Connecticut by advertising its activities and its toll -free number on Internet on a continuing basis); Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119, 1124 (W.D. Pa. 1997) (concluding "likelihood that personal jurisdic- tion can be constitutionally exercised is directly proportionate to the nature and quality of commercial activity that an entity conducts over the Internet "). 1514 WILLIAM MITCHELL LAW REVIEW [Vol. 27:3 law, the European Union, and self - regulation. A. Federal Statutes And Regulations The main federal statutes governing data privacy have been developed to address specific sub -areas of privacy, according to the kind of data at issue. The Fair Credit Reporting Act ( "FCRA ") gov- erns credit reporting agencies and certain employment- related data.29 The new Financial Services Modernization Act, or Gramm - Leach- Bliley Act, governs data practices of "financial institutions," broadly defined.s0 The Health Insurance Portability and Account- ability Act governs data use by health care institutions.41 In addition to these broad laws governing certain categories of data, other federal statutes regulate data based on the age of the data subject, type of data recipient, or means of data collection. The Children's Online Privacy Protection Act governs Web site col- 29. 15 U.S.C. §§ 1681, 1681a -u (1994 & Supp. 1998). The FTC has published formal commentary on the FCRA. See Federal Trade Commission, Fair Credit Reporting Act, at http: / /www.ftc.gov /os /statutes /fcrajumphtm (last updated Oct. 17, 2000), as well as extensive letter opinions concerning specific FORA issues, at http: / /www.ftc.gov /os /statutes /fcra /index.htm (last updated Aug. 22, 2000) and guidelines for compliance, at http: / /www.ftc.gov /os /statutes /2- fedreg.htm. 30. Financial Services Modernization Act of 1.999 ( "FSMA "), Pub. L. No. 106- 102, 113 Stat. 1338 (1999) (codified in scattered sections of 12 U.S.G. & 15 U.S.C.). The FTC published its final rule implementing the FSMA on May 24, 2000, with full compliance required by July 1, 2001. Privacy of Consumer Finan- cial Information, 65 Fed. Reg. 33, 677 (May 24, 2000) (to be codified at 16 C.F.R. pt. 313). See afro Electronic Fund Transfer Act, 15 U.S.C. §§ 1693, 1693a -r (1994 & Supp. 1998) (establishing rights, liabilities, and responsibilities of participants in electronic fund transfer systems for the provision of individual consumer rights); Fair Credit Billing Act, 15 U.S.C. §§ 1666, 1666a-j (1994 & Supp. 1998) (establish- ing a consumer's rights and a creditor's duties in resolving alleged errors in an open -end credit (e.g. credit card) account and applying generally to disputes about goods or services that are not accepted or delivered as agreed, but not cov- ering disputes relating to quality of goods or services a consumer accepts); Right to Financial Privacy Act of 1978, 12 U.S.C. §§ 3401 -3420, 3422 (1994 & Supp. 1998) (specifying what a bank must receive before it can release customer infor- mation to a federal agency; this applies to disclosure of financial records and re- sponse to customer authorization, administrative summons, subpoenas, search warrants, formal written requests or judicial subpoenas. Contrary to the Act's title, it does not establish a general right of financial privacy); Computer Fraud and Abuse Act of 1986, 18 U.S.C. § 1030 (1994 & Supp. 1998) (criminalizing hacking if hackers gain unauthorized access to computer systems, whether they intend to damage the system or not). 31. 42 U.S.C. § 1320a -7e (Supp. 1998). For the complete Act, see Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104 -191, 110 Stat. 1936 (codified as amended in scattered sections of 18, 26, 29 and 42 U.S.C.). 2001] THE PRIVACY PARADOX 1515 lection and use of data from children age thirteen and under. "2 The Electronic Communications Privacy Act governs the means of turning over information from electronic databases to law en- forcement agencies. " Federal anti - eavesdropping and wiretapping laws prohibit the third -party interception of electronic communica- tions, except under very limited circumstances." The statutes creating and defining certain federal agencies have been interpreted by those agencies to create jurisdiction over data privacy regulation. The Federal Trade Commission has been particularly active with respect to domestic data privacy matters, and the Department of Commerce has been active with respect to international data privacy matters. "5 Previous federal efforts to regulate the content of Internet communications, particularly with respect to indecent or offensive speech, have been invalidated under the First Amendment. "6 B. State Statutes And Regulations It is beyond the scope of this article to delineate the full pano- ply of state statutes and regulations governing data privacy. " Rele- vant state statutes may include a deceptive trade practices act, "e electronic eavesdropping act,"' and- harassment and /or anti- stalking act, and industry- specific statutes covering data practices in 32. 15 U.S.G. §§ 6501 -6506 (Supp. 1998). 33. 18 U.S.C. §§ 2510 -2513, 2515 -2522 (1994 & Supp. 1998). 34. Id. 35. See Federal Trade Commission Act, 15 U.S.C. §§ 41 -57, 57a -c, 58 (1994 & Supp. 1998). 36. Am. Civil Liberties Union v. Reno, 217 F.3d 162, 163 (3d Cir. 2000). Restrictions on obscene speech have been upheld under criminal jurisdiction. See, e.g., United States v. Hilton, 167 F.3d 61, 67 (1st Cir. 1999); United States v. Thomas, 74 F.3d 701, 701 (6th Cir. 1996). 37. I asked an associate in our firm to go through just the Minnesota statutes to determine every law which addresses data privacy. She dropped on my desk two large binders of laws, all in addition to the data privacy laws catalogued by the Revi- sor of Statutes at MINN. STAT. § 13.99 (1998). Unlike the law of product liability, such as Products Liability by Louis R. Frumer and Melvin L Friedman, there is no single reporter or looseleaf service yet compiling and organizing the law of data privacy for the fifty states, or even at the federal level. LOUIS R. FRUMER Sc MELVIN I. FRIEDMAN, PRODUCTS LIABILrIY (Supp. 2000). 38. National Conference of Commissioners on Uniform State Laws, Uniform Deceptive Trade Practices Act (1966), enacted in Minnesota at MINN. STAT. §§ 325D.43- 325D.48 (1998). 39. See Reporters Committee for Freedom of the Press, Can We Tape ?: A Prac- tical Guide to Taping Phone Galls and In Person Conversations in the 50 States and D. C, at http: / /www.rcfp.org /taping /index.html. 1516 WILLIAM MITCHELL LAW REVIEW [Vol. 27:3 insurance, health care, banking, human relations departments, and elsewhere. 0 States also attempt to regulate the content of Internet com- munications, but similarly run afoul of the First Amendment`' or the dormant Commerce Clause.92 C. State Common Law Most of the fifty states recognize some part of the common law of privacy.' The high court of the most recent state to recognize invasion of privacy torts, Minnesota, described the privacy interest protected by the common law: Today we join the majority of jurisdictions and recognize the tort of invasion of privacy. The right to privacy is an integral part of our humanity; one has a public persona, exposed and active, and a private persona, guarded and preserved. The heart of our liberty is choosing which parts of our lives shall become public and which parts we shall hold close. Here [plaintiffs] Lake and Weber allege in their com- plaint that a photograph of their nude bodies has been publicized. One's naked body is a very private part of one's person and generally known to others only by choice. This is a type of privacy interest worthy of protec- tion. Therefore, without consideration of the merits of Lake and Weber's claims, we recognize the torts of intru- sion upon seclusion, appropriation, and publication of private facts.`` It is an oversimplification to describe "invasion of privacy" as one tort. In actuality, "invasion of privacy" has been employed as the general rubric to subsume four separate privacy torts: (a) intru- sion upon seclusion; (b) misappropriation; (c) publication of pri- vate facts; and (d) false light publicity.I' The first and third of these 40. Lawyers, of all people, should be sensitive to data privacy issues, in that lawyers routinely work with confidential client information, under strict ethical and evidentiary rules limiting (or requiring) disclosure. See MODEL RULES OF PROF'LCoNDUCT R. 1.6 (1983) (amended 1998). 41. State v. Weidner, 611 N.W.2d 684, 694 (Wis. 2000). 42. Am. Libraries Ass'n v. Pataki, 969 F. Supp. 160, 167 (S.D.N.Y. 1997). 43. Eric Jorstad & John Borger, Invasion of Privacy: Minnesota's New Torts, 55 MINN. BENCH & B. 38, 38 -41 (Oct. 1998); BRUCE W. SANFORD, LIBEL AND PRIVACY § 11.2.1, at 525 & n.4 (2d ed. 1991 & Supp. 1994). 44. Lake v. Wal -Mart Stores, Inc., 582 N.W.2d 231, 235 (Minn. 1998). 45. Id.; see also RESTATEMENT (SECOND) OF TORTS § 652 (B) -(E) (1976). 20011 THE PRIVACY PARADOX 1517 torts are particularly apt to be applied to data privacy, as it has been discussed in this article. Although tortious intrusion upon seclu- sion developed in the geo -world context of physical intrusion upon physical seclusion, it may be applied to intrusion upon data seclu- sion in the cyberworld where one has a reasonable expectation of privacy in the data and the other essential elements of the tort are met 46 Similarly, tortious publication of private facts may be espe- cially appropriate in the context of the Internet, where everyone with a computer and a modem may be a "publisher" of erstwhile private data to the entire cyberworld.47 Where the information published in cyberspace is false (not true, as presupposed for the above variants of tortious invasion of privacy), there may also be a remedy in the state common law of defamation. e D. European Union In the late 1990s, the European Union took the initiative to regulate the creation, maintenance and transborder transmission of data involving European data subjects with the adoption of the Data Privacy Directive.49 The Directive regulates the free move- ment of data containing personal information. After considerable diplomatic and commercial consternation about differences be- tween the Directive and data privacy practices in the United States —and the impact of those differences on trans - national businesses— the U.S. Department of Commerce and the European Union agreed to "Safe Harbor" provisions which now effectively govern the European data practices of U.S. enterprises.'° There are seven basic principles to the European Union Data Privacy Directive, as implemented for U.S. businesses through the Safe Harbor provisions: •notice to data subjects of data practices; choice by data subjects to opt -out of those practices; onward transfer of data consistent with described practices; 46. See Eric Jorstad, Invasion of Privacy in Minnesota (Jan. 1999), at http: // www.faegre.com/articles/article_208.asp.htm. 47. Am. Civil Liberties Union v. Reno, 217 F.3d 162, 169 (2000); cf. David Phelps, Judge Limits Salary Data in Web Case, STAR'RdIB., Mar. 29, 2000, at 1D, avail- able at 2000 WL 6966479 (posting certain sensitive information permitted). 48. Eric Jorstad, Online Business Defamation: How to Respond to "Cybersmearing" (July 2000), at http: / /www.faegre.com /articles /article_414.asp. 49. Data Privacy Directive, 95/46 EC, I995 O.J. (L 281). 50. Dep't of Commerce, SafeHarbor, at http: / /www.exportgov /safeharbor. 1518 WIT 1.IAM MITCHELL LAW REVIEW [Vol. 27:3 .security of data protected by prescribed protocols; .integrity of data use consistent with the purposes for which data were collected; •access to personally- identifiable data, with the opportunity to correct it; and a enforcement through national administrative agencies,51 These principles may come to guide general data privacy prac- tices in the United States, although there is hot debate concerning the nature of access, the kind of choice, whether notice should be mandatory, the adequacy of various security measures, and federal agency versus state agency versus judicial enforcement of alleged privacy violations.52 R. Self - Regulation Pre- existent industry and trade associations have taken a keen interest in data privacy regulation, and various ad hoc groups have formed to create voluntary guidelines and certifications. The Na- tional Association of Insurance Commissioners, for example, has published model statutes concerning privacy of insurance, health, financial and other personal information.'$ The Online Privacy Al- liance is an organization of cyber- companies determined to de- velop voluntary privacy compliance principles and to stave off gov- ernmental privacy regulation.54 The Individual Reference Service Group ( "IRSG ") is an association of data research companies information tombs which information—for _for afee— investigating individual or business assets, location, criminal history, judgments, UCC filings, and so on. The IRSG has developed an extensive and detailed set of vol- untary privacy principles for its members' compliance, together with a system of independent third -party certification (like an au- dit) of compliance.''' The Better Business Bureau has developed an online version of its consumer - friendly voluntary reporting system;'6 51. Id. 52. Federal Trade Commission, Privacy Initiatives, Final Report of the Federal Trade Commission Advisory Committee on Online Access and Security (May 15, 2000), at http://wwwitc.gov/acoas/papers/finalreport. htm. 53. See Health Information Privacy Model Act (1998), Privacy of Consumer Financial and Health Information Regulation (2000), and Insurance Information and Privacy Protection Model Act (1980), at http: / /www.naic.org /lpapers. 54. http: / /www.privacyalliance.org. 55. Individual Reference Service Group, Industry Principles (Dec. 1997), at http: / /www.irsg.org /html/ industry _principles_principles.htm. 56. http: / /www.bbbonline.org /privacy /index.asp. 2001] THE PRIVACY PARADOX 1.519 and the "TrustE" certification logo has appeared on many Web sites indicating participation in that organization's voluntary data pri- vacy program. IV. PRESERVING THE PRIVACY PARADOX IN PRACTICE Watching the sheriffs come swaggering into cybertown, it is tempting to adopt the view of Henry David Thoreau who once wrote, "If I knew for a certainty that a man was coming to my house with the conscious design of doing me good, I should run for my life. "'7 Thoreau's worldview is also tempting in his attempt to cre- ate "Walden Pond," a utopian community set apart from commer- cial culture. That is an extreme answer to privacy fears, however, in the age of caveat orator. There is always one solution to the fear of misuse of one's personal information: stop communicating with others. Create your own "Walden Pond" retreat. At the other extreme, cyber dreamers envision a united, wired world of free and universal communication, an electronic utopia that welcomes everyone in a new Republic of Silicon. Our lan- guage encourages this vision, expressed most powerfully in the metaphor driving the Gyber Age: "World Wide Web." We are uni- fied in the emerging multicultural, transnational, democratic, in- terconnected, synergistic web metaphysic. Reasonable skeptics (and unreasonable conspiracy theorists) may note that the heart of the metaphor, "web," necessarily includes a spider who does t he weaving and whose goals are neither aesthetic nor altruistic. We are united in a single reality by the web: we are prey, Most of us inhabit the space on the continuum between the utopian /paranoid retreatists and the utopian /paranoid ecumeni- cists. The extremes illustrate the conflicting tendencies facing businesses and policy makers trying to address privacy concerns re- sponsibly. How can we develop reasonable privacy policies which provide both safety and free communication? Trying to craft privacy policy in these transformative times is like trying to write a jazz mass in Latin. It can be done. But there is something fundamentally grating, some basic, clashing cultural and linguistic forms that don't (yet) feel like they belong together. For lawyers, this clash is particularly awkward, because legal norms de- velop and mature at a slower pace than business and cultural 57. HENRY DAVID THOREAU, Walden, in WALDEN AND OTHER WRITINGS 70 (B. Atkinson ed., 1937). 1520 WILLIAM MITCHELL LAW REVIEW [Vol, 27:3 norms. Some courts are starting to "get" the Internet, and what it means for jurisdiction, the First Amendment, and the like. But judges still wear robes, after all. Most courts still don't even allow cameras in the courtroom. Having resisted the video age, and pre - siding amidst the trappings of eighteenth century England, courts are not at the leading edge of the regulation of the caveat orator cy- ber world. Lawyers habituated to the judicial culture are also ill - equipped to structure privacy policy in the new Age. But there is something important lawyers can preserve and, ideally, adapt for the cyber world. Good lawyers have good judg- ment, with flexibility to apply basic norms in changing contexts and to predict what courts will, eventually, do. It is precisely that kind of leadership which is needed to create workable privacy policies. It is impossible to prescribe one "privacy program" to guide privacy policy development in every situation. Nevertheless, certain factors and dynamics may be helpful to identify. My audience is particular entities, be they business or nonprofit, with some side glances toward governmental legislators and regulators. I propose a three -part privacy policy paradigm to structure the privacy proc- ess: integrity, participation and challenge ?' This is an ongoing process that builds in the dynamic tension of the privacy paradox. A. Integrity As recent lawsuits attest, perhaps the most important part of any organization's privacy policy is to "practice what you preach. "i9 State Attorney Generals and federal regulators scrutinize the pri- vacy practices of organizations under consumer, charitable, and other fraud standards, to ensure that the practices comport with the stated privacy policies. The issue for organizations, however, goes deeper than avoid- ing embarrassing lawsuits and bad press. The prerequisite to integ- rity is to know who you are and to know what you are doing. It may be quite a challenge to meet these prerequisites, especially for large or multi - faceted organizations. To understand the potential enormity, ask this preliminary question: Where is data maintained within the organization that might be subject to privacy concerns? 58. Or, if I modify the third part to read, "overhaul" instead of "challenge," we have a privacy policy acronym tailor -made for the dot -com world: IPO. 59. See, e.g., State of Minnesota v. Minn. Pub. Radio, No. C5 -99 -11388 (arising out of the Minnesota Public Radio's donor list-sharing practices; settled August 4, 2000) (complaint on file with author); In re GeoCities, supra note 8. 2001] THE PRIVACY PARADOX 1521 The thorough way to meet these prerequisites is to conduct a data privacy inventory ( "DPI "). The organization should know every situation and place where any person or system in the organi- zation collects, maintains, discloses or transmits PID. There should be a map or flowchart showing the dynamics of collection, mainte- nance and transmission of PID. This inventory should include: -type of data; -source of data; .purpose (s) for which data were collected; -software format of database; -physical location of database; -security of data (firewalls, passwords, etc.); who has the ability/authority to enter data, access data, transmit data in bulk, and /or transmit data as to one data subject — and for what purposes; =who provides and oversees that authority to enter, access and /or transmit data; and -how collection, maintenance, and disclosure of data are documented. In addition, the inventory should identify what vendors or ser- vice providers have access to PID maintained by the organization; then review all contracts with vendors and service providers for lev- els of compliance currently required. Do these contracts include non - disclosure provisions at least as strict as the organization's own commitments to privacy? The inventory should identify all inter- nal, affiliated', and non - affiliated third parties with which PID are shared. This is just the prerequisite to integrity. You cannot operate with integrity unless you know, first, how you are in fact operating. The next step is to understand how priva.cy is integrated with your fundamental organizational mission. This depends on who you are as an organization. Assuming the organization has a "mission statement" or some equivalent, the goal is to analyze mission in terms of privacy issues. A medical device manufacturer, for exam- ple, may see its basic mission, in part, in terms of patient and physi- cian trust in both the scientific prowess and complete candor of the company. It may want to take an extremely proactive approach to privacy to be (and be seen as) a leader in privacy protection. A re- tail company, on the other hand, which relies on mass marketing tailored by every available piece of consumer data, may see its basic mission, in part, in terms of expanding customer interest in its 1522 WILLIAM MITCHELL LAW REVIEW [Vol. 27:3 many products. It may want to work chiefly through trade associa- tions to limit or influence governmental regulation of cross - marketing and its use and acquisition of PID for targeted market- ing, and be seen as valuing customer choice through complying with industry - standard privacy policies. The analysis will be differ - ent for every organization. Once an organization knows what data it has, and knows how its data privacy policies fit with its basic mission, the organization can take the final step toward integrity: implement data use prac- tices to ensure consistent compliance with privacy goals (and laws). Implementation should be reviewed with the following matters in mind, in addition to the simple question, are we doing what we say we are doing? -Know who is in charge of privacy policy. Formalize implementation controls and testing. .Document all compliance procedures developed including the rationale for the procedures. Assess whether training in privacy compliance is far- sighted, practical and adequate for the future. product, =Anticipate short and long term data, technology, p channel and geography plans of the organization, including future acquisitions. =Build into the privacy policies a "responsible flexibility" to be able to adapt and change and respond as the market, technology, laws, attitudes, etc., change. The goal is to maximum business flexibility consistent with compliance. =Integrate privacy policy into future or lo tiioonal plan s. oow does the privacy policy help to meet ng goals? eBrainstorm ocedures to onitordlaw and media for needed ad- justments. ®Consider an annual third -party independent certification (as in a financial audit) that organizational practices comply with or- ganizational procedures and all relevant law. John Kennedy, as president- elect, spoke to the Massachusetts legislature about the characteristics of leadership. He spoke of the historical qualities of public service, but his comments are appro- priate to any organization and apropos to decisions about privacy: When at some future date the high court of history sits in judgment on each one of us— recording whether in our brief span of service we fulfilled our responsibilities to the 2001] THE PRIVACY PARADOX 1523 state -our success or failure, in whatever office we may hold, will be measured by the answers to four questions - Were we truly men of courage? Were we truly men of judgment? Were we truly men of integrity? Were we truly men of dedication? e Inspiring words. But of course integrity is not the only goal. As the "Mayflower Madam" told the Boston Globe. "I ran the wrong kind of business, but I did it with integrity." B. Participation The second part of the privacy policy paradigm for particular entities relates not to the goal, integrity, but to the process of work- ing toward that goal. Because "privacy" has become a current "hot button" issue, it is tempting simply to slap together a nice - sounding privacy program, announce it to the world, hope one doesn't get sued, and then move on to the next issue. But, as I have tried to show in Part II of this article, the underlying issues run deeper than today's hot topics. Integrity in privacy policies should go hand -in- hand with integration of privacy concerns into the organization's various processes and structures. The development and implemen- tation of privacy policies should involve the participation of all af- fected. "Participation" requires an understanding of who should be involved. During the course of conducting a data privacy inven- tory, data subjects and data holders should be identified. In addition, there are other possible constituents of the organization who may have a stake in privacy policies. Certain processes should be con- sidered in privacy policy development: "understand the organizational culture with respect to privacy issues; 'research and understand customer privacy concerns, and be able to show how the organization has responded appropriately; "involve all organizational stakeholders, including investors, prospective investors (or donors and prospective donors), commu- nities, etc.; 'integrate legal and business considerations with respect to pri- vacy; 60. SIMPSON'S QUOTATIONS, at http:// www.bartleby.com /63/59/159.html (citing N.Y. TIMES, Jan. 10, 1961). 61. SIMPSON'S QUOTATIONS, at http: / /www.bartleby.com /63/76/ 1876.html (citing BOSTON GLOBE, Sept. 10, 1986) . 1524 WILLIAM MITCHELL LAW REVIEW [Vol. 27 :3 •develop a detailed public relations plan for privacy; .consider whether to develop an advocacy plan on privacy is- sues before legislatures, state and federal regulators, and courts, perhaps through a trade association; and .know what competitors or counterparts are doing. Organizational structure may be affected by this participatory process. Someone "high up" in the organization should take the lead in organizing and running the process, but the person or group in charge at the beginning should be flexible to adapt as is- sues develop. In some cases, a "Chief Privacy Officer" on the level of a Chief Financial Officer or Chief Operating Officer may be ap- pointed. In other cases, an ad hoc committee or task force may be the best approach. In all cases, assertive leadership is needed along with an openness to the genuine participation and concerns of all affected by privacy issues. C. Challenge Because the privacy paradox is inherently unresolvable, no pri- vacy policy will ever be adequate. It is impossible to provide com- plete safety for individual autonomy and complete openness in the exchange of information at the same time. The best an organiza- tion can accomplish is to reach a balance appropriate for a given or- ganizational structure, mission, data inventory, and political con- text ... and then be ready to change. In the Cyber Information Age ( "CIA "), the value of data to an organization will only increase crease over lime. The possibilities for data mining, data applications and data value enhancement are still only emerging,62 as are information technologies. The global nature of the nascent CIA not only increases the quantity of available data and the number of potential markets, but also increases the volatil- ity of data acquisition and use because there are so many different actors involved with so many different agendas and bases of power in so many jurisdictions. If an organization's privacy policy is not already obsolete by the time it is implemented, then the organiza- tion is out of touch with the CIA. Every privacy policy is temporary. This complexity and volatility is compounded, in the United States and other countries committed to free expression, by the 62. For example, in journalism there is an organization dedicated to the dis- covery and use of cyberdata in reporting. See National Institute for Computer As- sisted Reporting, at http: / /www.nicad.org.h.tm. 2001] THE PRIVACY PARADOX 1525 protections for communication like those provided by the First Amendment. Governmental restrictions on data use are problem- atic. In this light, as well as in light of the global flow of informa- tion technology and data, the kind of predictability achieved in the regulated consumer product economy may elude the CIA. To be sure, high -tech and database insurance products are already on the market, and more can be expected. The Safe Harbor reached be- rween the E.U. and U.S. shows the potential for global develop- ment of some (possibly) effective data privacy regulatory principles. But the privacy paradox cannot be avoided. There will be calls to scale back First Amendment protections in the name of protecting the safety of data subjects. There will be calls to sacrifice the values of free communication for a safety "fix." There will also be calls to get used to the surveillance society of lots of big brothers and big sisters. There will be calls to sacrifice the values of personal autonomy at stake in the ability to restrict access to unwanted intrusions. And there will be calls to limit state or even national jurisdiction over data use in order to develop effec- tive international regulatory bodies or tribunals. The cyber sheriffs are pretty good at what they do. I would not pretend to predict the long -term effect of current trends in the CIA or its erstwhile regulation. I can only note the critical importance of both sides of the privacy paradox, the dyna- mism of its inherent tension, and suggest possible effects of pro- posals to lop off one side or the other. This is why I call the third part of the privacy policy paradigm challenge. As one newspaper editor said to a conference of col- leagues: "Let there be a fresh breeze of new honesty, new idealism, new integrity. You have 2'pewriters, presses and a huge audience. How about raising hell ?" 3 Computers have replaced typewriters, and the number of "presses" has multiplied with the speed of the expansion of the Internet. But the advice is the same. A fresh breeze is needed. In the CIA, the irony of privacy policy develop- ment is that every policy and every regulation will always miscarry. The only way that organizational integrity and participation can be effective is to continually challenge organizational integrity and participation. Ultimately, it is the unresolvable nature of the priv- 63. SIMPSON'S QUOTATIONS, at http: / /www.bartleby.com /63/ 32/8032.html (citing Jenkin Lloyd Jones, Editor, Tulsa Tribune, speaking to Inland Daily Press Association, as reported in U.S. NEWS & WORLD REP., May 28, 1962). 1526 WILLIAM MITCHELL LAW REVIEW [Vol. 27:3 acy paradox which gives the issue its dynamic power to catalyze or- ganizational processes. the u'yof KENAASKA January 29, 2009 Eric Jorstad 14121 Stonegate Lane Minnetonka MN 55345 "Village with a Past, Gc with a Future" 210 Fidalgo Avenue, Kenai, Alaska 99611 -7794 Telephone: (907) 283 -7535 / Fax: (907) 283 -3014 www.ci.kenai.ak.us RE: City Attorney position — City of Kenai Dear Mr. Jorstad: We are in receipt of and thank you for submitting, your application for consideration regarding our City Attorney position. We will begin our review process in February. Please let us know if you have any questions. CITY 0 KENAI y1 Graves C Attorney Lee Salisbury crom: Cary Graves :nt: Wednesday, January 28, 2009 4:16 PM J: Lee Salisbury Subject: FW: Application for Asst. City Attorney position Attachments: Anne Mariecorrect.doc; scottmotion.doc; newarrington.doc From: Anne Marshall [mailto:emptortexas @yahoo.com] Sent: Wednesday, January 28, 2009 4:17 PM To: Cary Graves Subject: Application for Asst. City Attorney position Dear Sir Attached is my resume' for the above position. You may note that 1 have been an Assistant City Attorney for the City of Corpus Christi and have been practicing law for 20 years in Texas and four years in Alaska, with 49 jury trials as first chair, both State and Federal Court. I have experience in ordinance drafting and responses to city staff in memorandum, as well as prosecution and criminal law. I look forward to meeting with you. My resume' is in WORD format. incerely, Anne M. Marshall att: resume', writing samples Anne M. Marshall Law Office of Anne M. Marshall 733 West 4m Avenue, Suite 308 Anchorage, AK 99501 (907) 884 -0460 E -mail: emptortexas(ayahoo.com Education: Doctor Jurisprudence, University of Texas School of Law, 1983. Master of Science, Ok. State University, Stillwater, OK, 1977 (Sociology) GPA 4.0 Bachelor of Arts, California State University at Turlock, CA 1972 (English Lit.) Admissions: All Federal Court, Texas. Federal Court, Anchorage; Fifth Circuit Court of Appeals, New Orleans; Alaska Bar 2005. WORK EXPERIENCE, ATTORNEY Private Practice, Anchorage, 6/28/06 to present. Felony and misdemeanor defense, CINA, family law, admitted to CJA Panel for Federal appointments. Assistant Public Advocate, State of Alaska, Bethel Division, Attorney IV, 1/04/05 to 6/28/06. Felony and misdemeanor defense, juvenile defense, CINA defense, guardianship and probate cases for indigents. Hearings Officer II, Texas Workforce Commission, 11/03 to 11/04. Administrative law judge, appeals hearings re. Ul benefits. Conducted hearings and wrote opinions, approx. 28 /week. Private Practice, 11/02/02 - 11/03/03. Court appointments in Federal and State District Courts, retained cases, misdemeanors and felonies, some civil practice with trial. Assistant Attorney General IV, Postconviction Writs, 7/01/02 - 11/01/02.. Wrote responses to postconviction writs of habeas corpus filed federally. Trained attorneys in conducting hearings. Attorney IV, Program Attorney, for Texas Workers= Compensation Appellate Judges, 2/01/02 to 7/01/02. Wrote opinions for appealed Workers= Compensation cases for administrative judges. Self employed, Private Practice: 9/91 to 2/01/02. Criminal practice and employment law. President, Coastal Bend Criminal Defense Lawyers Association, 1995. AOutstanding Criminal Defense Lawyer of the Year -, 1995. Tried cases in State and Federal courts; did appeals for both State and Federal courts. Panel attorney for Fraternal Order of Police (administrative defense of disciplinary actions). Paintiff and defense of employment law cases, through jury trial. Capital Murder qualified for Nueces County Judicial district appointment list. Assistant District Attorney, Nueces County D.A. office, Texas. 7/89 -9/91. First chair prosecution of felonies, hearings, motions to revoke. Etc.. Also intake, indictment drafting, grand jury presentation, special assignments such as Capital Murder, white - collar theft, etc.. Assisted in training new prosecutors. Chief Prosecutor and Prosecutor, City of Corpus Christi Municipal Court. (11/86 to 7/89, see below) Trying cases, drafting complaints, writing opinions as requested on ordinances, etc.; management and supervision of other prosecutors, training new attorneys, memo drafting, etc. Trial of all appeals (de novo in County Courts of Law). Assistant City Attorney, Collections. Transferred from Municipal Court., collections, memos, ordinance drafting, etc.. Transferred back to Municipal Court as Chief Prosecutor. Other Professional Experience: Research Assistant II, for Southwest Educational Development Laboratory, Austin, TX. Designed and executed research in children and television for Federal grant. Wrote and published children =s books on critical thinking, Federal grant. College Instructor, Ms. Gulf Coast Junior College. Instructor in Sociology part -time. Publication: AThe Perjurious Defendant; ethical issues Corpus Christi Lawyer magazine, 1996. Candidate for District Court Judge, 1996, Democratic primary. Alaska references: Lance Wells, Attorney 733 W. 4`h Ave Suite 308 Anchorage, AK 99501 (907) 274-9696 John Pharr, Attorney 733 W. 4"' Ave. Suite 308 Anchorage, AK 99501 (907) 272-2525 Angela Greene Public Defender =s Office, Barrow PO Box 429 Barrow, AK 99723 (907)8512 -2520 IN THE SUPERIOR COURT FOR THE STATE OF ALASKA AT ANCHORAGE STATE OF ALASKA 3 3 Plaintiff, 3 3 VS. 3 3 RAUF SCOTT 3 Defendant. 3 CASE NO. 3AN S07 -8334 MOTION TO DISMISS INDICTMENT Now comes Defendant Rauf Scott by his Attorney Anne Marshall, and would show the Court that the indictment should be dismissed for the following reasons: Summary of the Case: Defendant is charged by indictment with two counts of Assault 3, one count of Robbery with a deadly weapon, one count of felon in possession of a firearm, one count of tampering with physical evidence, and one count of firing a gun at a dwelling. The facts out by the State are that three people were involved in the robbery; that two black as set owe ,,,� people men, an unknown and Defendant Scott, knocked at the door of Vasquez; that they attempted to rob him; that his wife fired at them after they fired at the front door; that the tires were shot out in the fleeing vehicle by Vasquez; that the driver Dowl of the car was found near the vehicle and that Scott was found several blocks away. A show -up resulted in the arrest of both. There were three major errors made in the grand jury session: I. The prosecutor falsely stated that the Defendant had been apprehended walking away IIaye 1 o6 6 from the escape vehicle, and that the Defendant confessed.. On page 4, line 111, the State alleges that the Defendant was caught where he was not. In line 14, however, he states that the Defendant was caught later. Actual evidence was offered on P. 85, lines 3 through 22, describing the location where he was found and the show -up identification. Within the same sentences, he states Scott confessed; however, it was Dowl who confessed. (See section below on post - arrest silence of Scott). II. The State tainted the grand jury by eliciting testimony regarding Defendant =s invocation of his right to counsel and post - arrest silence. It is well established that comment on post - Miranda silence (with attendant invocation of right to an attorney) is inadmissible at trial. This is because it is a violation of Fourteenth Amendment rights, according to the Supreme Court. Doyle v. Ohio 426 U.S. 610, 616 -620, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). Additionally, in Green v. State, 810 P.2d 1023, (AA 1991) Aonly evidence which would be legally admissible at trial shall be admissible before the grand jury =_ Alaska R. Crim.P.6(r)(1). In Green, the issue as to whether the defendant =s post - Miranda silence should have been offered before the grand jury resulted in a dismissal. Such is impermissible. In Green, the prosecutor emphasized the post - arrest silence of the defendant as to the cause of death of his infant daughter. Although the State put forth various theories as 'No copy of the transcript is included, as the Court has had submitted by the co- defendant Dowl the entire transcript of the grand jury testimony. Bays 2 oQ 6 to the admissibility of that evidence, nevertheless the Court ruled that evidence impermissibly tainted the grand jury proceedings. Here, the prosecutor elicited the testimony, having already erred in stating that Scott had made a confession, by asking the officer testifying whether Scott had confessed.(Tr. P.89 1. 15 -25) The officer answered, A...I believe he requested a lawyer but...-a- Id. While the prosecutor did cut off his testimony and assert that Scott had a right to have an attorney and that could not be held against him, nevertheless, such an instruction cannot cure the officer =s testimony. An instruction to disregard from a prosecutor does not carry the same weight as a jury instruction from a judge.. Such testimony, added to the fact that the State had already (falsely) stated that Scott had confessed, and the fact that the State had proved that the defendant was a convicted felon NOT in a bifurcated proceeding, impermissibly tainted the grand jury. III. The State =s offering of a felony conviction and the lack of a bifurcated trial There is little doubt that a prior felony conviction is not admissible at trial except under very limited conditions. The Court of Appeals has confirmed that the District Attomey is permitted to present evidence to the Grand Jury of a defendant =s prior felony in a felon in possession case. Martin v. State, 797 P.2d 1209 (AA 1990). Bifurcation was not discussed. However,the necessity of bifurcation has been discussed in Felony DUI and the logic of the necessity for bifurcation applies here. A(A)bsent the bifurcated process, the jury is directly confronted with evidence of Hays 3 oW 6 the defendant =s prior criminal activity and the presumption of innocence is destroyed and...if the presumption of {innocence} is destroyed by proof of an unrelated offense, it is {all the} more easily destroyed by proof of a similar offense._ Ostlund v. State, 51 P.3d 938 , 942 (Alaska Appeal, 2002) , citing State v Harbaugh, 754 So.2d 691, 693 (Fla. 2000) (original citation and quotation marks omitted); see also State v. Nichols, 541 S.E.2d 310, 322 n.20 & 324 (W.Va. 1999) (quoting our decision in Ross with approval). In this case, the defendant is charged with Robbery. At the very least, the proof of his prior felony should not have been presented during the evidence of the charge of robbery. Rather, the proof of his prior felony would have been far less prejudicial if only offered for the proof of the ELEMENT of felon in possesion charges. But here, Tr. Page.l 8, line 14, et. Seq., the prosecutor says almost as aside, A..you may not consider that [the prior felony conviction] to prove that he =s just a bad guy or he has a tendency to commit crimes because he =s been convicted previously. Olcay ?= ID. Such a comment hardly amounts to an erasure of Rule 404(b) violation. Further, to prove the prior felony, at p. 91, line 7, Grand Jury Exhibit 7 is apparently the full judgment convicting the defendant of Amisconduct involving a controlled substance in the fourth degree =. Since the exhibit appears to contain all conditions of probation, such an exhibit further violates the rule that only the FACT of the felony conviction should be shown, not the details. 111 The standard for review of grand jury testimony. Criminal Rule 6(r) addresses what evidence a grand jury may hear: Admissibility of Evidence. Evidence which would be legally admissible at trial shall be Hays 4 o4 6 admissible before the grand jury. In appropriate cases, however, witnesses may be presented to summarize admissible evidence if the admissible evidence will be available at trial. Hearsay evidence shall not be presented to the grand jury absent compelling justification for its introduction. If hearsay evidence is presented to the grand jury, the reasons for its use shall be stated on the record. State v. Frink, 597 P.2d 154, (Alaska 1979) Although the rule has changed since the day of Frink, the point remains valid that evidence must be admissible at trial, with a very few exceptions. Here, not only misstatements but tainted comment, was presented to the grand jury. The step of examining the remaining evidence once the improper evidence is struck by the Court will demonstrate that the sole evidence to indict Scott comes from the complaining witness, who stated Scott was the gun wielder. The sole evidence that the gun was found in the weeds was linked to Scott purely by the testimony of the complaining witness. The evidence, once the the offending evidence is stricken, is insufficient for the grand jury to have indicted the Defendant. The indictment should be dismissed. Wherefore, 7 Dcf nd ' __ the Court dismiss the indictment. the tic.tcituaiii prays tiic Court dismiss tii�. iu tiiiv.it. Respectfully submitted Anne M. Marshall Attorney for the Defendant 0511086 733 W. 4th Avenue Suite 308 Anchorage, AK 99501 CERTIFICATE OF SERVICE 1, Anne Marshall, counsel for the defendant, hereby certify that a copy of this Hays 5 o4i 6 Motion to Dismiss was faxed this day to the office of the District Attorney in Anchorage, , AK 99501, and to counsel for the co- defendant, Joseph van der mark, OPA attorney Anne Marshall, ABN 0511086 Days 6 o4 6 IN THE SUPERIOR COURT FOR THE STATE OF ALASKA STATE OF ALASKA Plaintiff, vs. DIANA D. ARRINGTON Defendant. AT ANCHORAGE ) ) CASE NO. 3AN 05- 7123CR MOTION TO DISMISS INDICTMENT Now comes DIANA ARRINGTON by her counsel Anne Marshall, and moves to dismiss the indictment against her on the following basis: A. The State cannot prove the element of two prior required convictions Defendant is charged with felony driving under the influence, AS 28.35.030(n), on 9/22/95, with the statute reading as it then existed that the defendant has more than two prior convictions for driving while intoxicated.: A person is guilty of a class C felony if the person is convicted of driving while intoxicated and has b een previously convicted two or more times. Fnr p ..rY n-: ces of determining if a person has been previously convicted, the provisions of Q(4) of this section apply, except that only convictions occurring within five years preceding the date of the present offense may be included.... AS 28.35.030(n)1995 2. Defendant denies that her prior convictions, if any', are indeed ,for Aoperating a motor vehicle...in violation of this section or in violation of another law or ordinance with similar elements, .._ Defendant does not admit, yet demands strict proof, that the prior convictions alleged by the State to belong to her from Georgia, are indeed her convictions. For the ease in discussion in this section of this motion, however, defendant assumes arguendo the State - alleged convictions are hers. flays 1 o4 4 4. It is the State =s burden to prove beyond a reasonable doubt that prior convictions for a statutory violation are 1) the defendant =s; and 2) are for another law with similar elements. In Ross v. State, 950 P.2d 587, 589 (Alaska App. 12/26/97) the Court, in construing the 1995 version of the statute at issue, found that the prior convictions are elements of the offense of felony DUI, and therefore, must be proved beyond a reasonable doubt. In this case, the State presented a judgment purporting to be that of the defendant =s, from Georgia, case number 91- CR 213. (See Attachment A) Aside from the fact that this judgment is in the name of Diana Wilson, it also shows that the defendant pled nolo contendere to reckless driving, and the dui and no insurance charges were dismissed. Reckless driving, under current Georgia law, reads: 40 -6 -390 (a) Any person who drives any vehicle in reckless disregard for the safety of persons or property commits the offense of reckless driving. (b) Every person convicted of reckless driving shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine not to exceed $1000.00 or imprisonment not to exceed 12 months, or by both such fine and imprisonment... Contrast the language of DUI in the current pertinent Georgia law: 40 -6 -391 Driving under the influence of alcohol, drugs, or other intoxicating substances, penalties; publication of notice of conviction for persons convicted for second time; endangering a child. (A) A person shall not drive or be in actual physical control of any moving vehicle while: (1) Under the influence of alcohol to the extent that it is less safe for the person to drive; (2) Under the influence of any drug to the extent that it is less safe for the person to drive... (5) The person =s alcohol concentration is 0.08 grams or more at any time within three hours after such driving... Additionally, the Georgia dui penalty is : Aupon a first or second conviction thereof, be guilty of a misdemeanor and, upon a third or subsequent conviction thereof, be guilty of a high and aggravated misdemeanor ...a- Clearly reckless driving is a different offense from dui. Therefore, the conviction in Exhibit A is Uayc 2 oil) 4 not for dui. Reckless driving in Georgia, as in Alaska, appears to be a lesser included offense of DUI. The State additionally appears to rely upon what purports to be a Georgia Criminal History, which indicates a supposed disposition on 1/9/92 for DUI and a 5/8/95 disposition for DUI. However, such is insufficient to prove either A) the identity or B) that the conviction was in fact as reflected in a judgment, for DUI and not a lesser offense. 13: The state cannot prove that the prior convictions are, in fact, the defendant =s, As an element of the offense, prior convictions must be proved beyond a reasonable doubt to be those of the defendant. Under AS 12.55.145(b), A...prior convictions not expressly admitted by the defendant must be proved by authenticated copies of court records... = In Stewart v. State, 763 P2d 515, 518 (AA 1998), the court ruled that a certified copy of a driving record was not sufficient proof of a prior DUI, and the above statute governed sufficiency of proof of prior convictions. Clearly identity simply by similarity of name is insufficient. Proof beyond a reasonable doubt should require a finger print match with any judgment. 3. The indictment fails to plead, in violation of Cr. Rule 78) and AS 12.40.100, the element of the prior convictions In an earlier hearing in the cause, it appears the matter was raised of the insufficiency of the evidence presented to the Grand Jury as to the prior convietions.2 At that time, the Court did not have the benefit of more recent case law, including Blakely.3 In Dague v State, the Alaska Court of Appeals ruled that Blakely did not extinguish the distinction between aggravating and 2 Tape 11 -3218, log 1217 et.seq., 2/6/96. 3Blakely v. Washington, 542 U.S. 296, 124 S.Ct.2531, 159 L.E$d.2d 403 (2004). Xi. Ely. 3 mitigating factors and elements. That is to say, the State =s obligation is still to plead and prove ELEMENTS .4 The Alaska Constitution requires pleading of all elements. In addition, Adkins v. State makes clear that elements must be pled and proved beyond a reasonable doubt. That rule has never been overruled.5 Therefore, elements are matters of substance, not form. Id., at 916. As such, the indictment herein is fatally defective, as it does not allege WHICH prior convictions the State relies upon to make a misdemeanor into a felony. Clear issues of jeopardy are involved in such specific pleading, in that if the State should fail to prove a prior conviction, it cannot be used again as an element in the future, should another case arise. Here, since the State clearly did not indicate to the Grand Jury which convictions it relied upon, the indictment was based on insufficient evidence. The indictment should be dismissed additionally since the printouts of the Georgia Motor Vehicle records was clearly hearsay. Under Criminal Rule 6(r), the grand jury may generally hear only "evidence which would be legally admissible at trial;" in the absence of compelling justification, hearsay evidence is expressly forbidden. 6 4Dague v. State, 143 P.3d 988, (Alaska 2006.) 5Adkins v. State, 389 P.2d 915 (Alaska 1964) 6Marion v. State 806 P.2d 857, 859 (Alaska 1991), citing X. fiy.4 Lee Salisbury From: Lee Salisbury ant: Wednesday, January 28, 2009 4:45 PM is 'emptortexas @yahoo.com' Subject: application to City of Kenai Attachments: marshall app.pdf Ms. Marshall, In downloading and printing the attachments to your e-mail in your application for the City Attorney position, it comes to our attention that there may be some conversion problems with your documents. I have scanned and attached what we received upon opening the documents. You may wish to review them and consider resending them. Lee Salisbury Legal Admin. Asst. City of Kenai 210 Fidalgo Avenue Kenai AK 99611 Tel. 907 283 -8225 Fax 907 283 -3014 CONFIDENTIALITY NOTICE: This electronic mail transmission may contain legally privileged information. The information is intended for the use of the individual or entity named above. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution or taking any action based on the contents of this electronic mail is strictly prohibited. If you have received this electronic mail in error, please contact sender and delete all copies. 30 January 2009 City Attorney, Kenai Matthew Meyer 1222 Browning Ave SLC, UT 84105 (801) 633-7670 Dear Mr. Graves, I enjoyed speaking with you by phone today, I am responding to the advertisement for the position of City Attorney, Kenai, Alaska. I will qualify for this position as a member of the Utah State Bar, able to waive into the Alaska Bar by a motion of reciprocity. As the City Attorney of Kenai I will bring years of litigation experience as a US Air Force JAG officer and criminal prosecutor. Preparing, researching and litigating 10 trials on issues like sex crimes and drug trafficking, I have demonstrated skills in the courtroom, working with investigators, police, judges, juries, and victims. Additionally, as an AF legal advisor, counseling senior commanders on legal issues involved in prosecutions and /or any topic of necessity, 1 have proven success giving accurate legal recommendations with tact and professionalism. This experience will be invaluable with city officials and the city council, when divergent viewpoints need a practiced legal advisor. Working as a manager and officer in the USAF, with duties including managing five paralegals and a multi - million dollar claims program, 1 have demonstrated abilities in program management, meeting deadlines, budgets, supervisory rating and ensuring program goals are met. During my tenure, our office ranked number one in program goals in 8th Air Force group for a full year. In addition to my experience as a litigator and legal advisor, I am strongly interested in using my legal skills for the benefit of the disadvantaged. As a volunteer with the United Nations Volunteers in Kosovo, 1 researched and wrote opinions for international judges, on issues like political corruption and bribery, issues so crucial to seeking justice in a war torn country. As a 6 month live - volunteer at the Dorothy Day House for the Homeless in San Antonio Texas, I worked with women and their children fleeing abuse and representing the shelter by speaking to area churches and schools. Finally, as a grant writer with Somali Community Development of Utah, 1 successfully obtained two grants to fund English classes so badly needed in the Somali and Sudanese refugee community. I look forward to working on Kenai's legal issues and working with city officials and citizens. Thank you for your time and consideration, Sincerely, Matthew Meyer 1) 223 wain An Salt : 1 M 46 W IL MEYER GOAL: Obtain the position of City Attorney, Kenai, AK. EDUCATION: Juris Doctor University of South Dakota Member, Utah Bar Licensed Realtor, Utah Former Member, Colorado Bar WORK EXPERIENCE: B.A. History University of Minnesota May 2000 October 2006 - present June 2006 - present April 2001 - October 2006 May 1996 Real Estate Investor /Agent July 2006 - Present Custom Real Estate • Successfully accumulated three rental properties and built a real estate business in a falling market with over 30 transactions in 2 years. Legal Officer /Pristina Kosovo September 2005 -May 2006 United Nations Volunteers • Volunteer legal officer responsible for researching and writing legal opinions and managing case progression for international judges. Attorney January 2002 -May 2005 U.S. Air Force • Worked as a trial attorney prosecuting a variety of crimes, conducted over 10 trials, including illegal drugs and sex crimes, and numerous pretrial confinement hearings. Extensive experience in research and writing motions and legal briefs. • Chief of Claims, supervised multi - million dollar medical and personnel claims program. Responsible for maintaining budgetary goals and as supervisor to five paralegals. • Legal advisor to the medical group. Gave legal advice to senior medical staff on issues ranging from consent of minors to mental health protections. • Legal advisor to the environmental group. Recommended legal strategies on a variety of environmental remediation projects, wrote advisory paper used by higher headquarters in the cleanup of a retired nuclear reactor site. • Trainer, provided bi- monthly trainings to flying squadrons and the medical group on the Law of Armed Conflict and medical /legal issues respectively. • Officer in charge of base tax office 2002 & 03. Recruited and managed 80 military "volunteers" for six weeks each tax season who completed, free of charge, nearly 2000 returns for active duty personnel and retirees. Participated in training volunteers, hiring two on sight supervisors, and providing weekly reports to higher headquarters. Adjunct Professor January 2004 -May 2005 National American University • Developed lesson plans, instructed and gave examinations in Business Law to 25 working adults. Contract Defense Attorney - Juvenile Court January- December 2001 Colorado State Municipal Court • Represented juveniles charged with criminal activity, from aggravated assault to drug possession and sales. • Guardian Ad -Litem representing the best interests of juveniles deemed to have inadequate parental care. Foothills Gateway September 2000 - October 2001 Residential home supervisor • Worked with developmentally disabled adults in a residential home preparing meals, distributing medication, helping with dressing and bathing, doing household chores and other duties as necessary. Gateway Computer October 1998 -April 1999 Telephone Representative • Worked for the Gateway Computer call center in Vermillion, South Dakota during law school. OTHER EXPERIENCE: Volunteer /Interests /Skills • Intermediate level Spanish speaker • Volunteer grant writer for Somali Community Development of Utah - Successfully obtained two $10,000 grants. • Member- Toastmasters International— Imagemasters Chapter- 2006 - present • Six month live -in volunteer at the Catholic Worker House, a San Antonio, Texas homeless shelter. Assisted homeless families in finding work, prepared and served meals and spoke at area schools and churches. • Studied Spanish- Summer in La Ceiba, Honduras. • Travel in Mexico, Central America, Colombia, Southeast Asia and Eastern Europe. • Attended Air Force Captain level leadership course, Squadron Officer School, five weeks in residence. • Trained and competent in the latest computer tools, including Lexis, Word, Westlaw, Excel, Photoshop and PowerPoint. • Avid outdoor enthusiast Matthew Meyer Professional /Personal References Brock Cima 101 Heritage Dr. Scott AFB, IL 62225 618- 210 -8048 brockcima@gmail.com Attorney Jason Keen 2903 Swanee Lane Fairfax, VA 22031 605- 786 -3382 keenj @dodgc. osd. mil Attorney Hank Kennedy 2274 South 1300 East Salt Lake City, UT 84106 801 -599 -6299 Hank @Hankkennedy. com Realtor /Broker MEMORANDUM FOR 28 MXG /CC FROM: 28 BW /JA SUBJECT: Line of Duty Determination (LOD), Airman Robert L. Thomas (Names have been changed to protect the privacy of those concerned.) 1. On 2 Sep 03, Airman Robert L Thomas was involved in a traffic accident on Hwy 18 at mile marker 171.07, Niobrara County, Wyoming. The Investigating Officer (10) found that the injuries sustained by Aiuuan Thomas were "Not in Line of Duty — Due to Own Misconduct." I agree. 2. STATEMENT OF FACTS: a. Airman Thomas left Denver, Colorado at approximately 2330 on 1 September 2003, having slept for 5 — 6 hours during the day, waking at approximately 2130 and proceeding to load his vehicle in preparation for departure. He collided with the rear end of a semi tractor - trailer in Niobrara County, Wyoming at approximately 0630 on 2 September. b. Airman Thomas, as a member of the 372 TRS squadron, initialed an AETC form 703 acknowledging his attendance at a safety briefing on Thursday 28 August, 2003, prior to his departure for Denver. The briefing discussed, among other issues, the need for personnel to remain within a 60 mile radius over the weekend. The accident occurred in the vicinity of Lusk, Wyoming, approximately 155 miles away from Ellsworth and clearly beyond the prescribed radius. The Wyoming Highway Patrol accident report describes the accident as occurring on a dry, two lane blacktop asphalt road with clear visibility and no unusual road conditions or visual obstructions; there were no indications of any braking action from Airman Thomas' vehicle and no noted mechanical defects. Airman Thomas' rate of speed is estimated by witness Mr. Carnes at 100 mph one minute prior to the accident, when Airman Thomas passed Mr. Carnes. Airman Thomas had been traveling for approximately 7 hours prior to the accident with only 5 -6 hours of sleep the day before. According to the investigating medical officer, Lt Col Christopher Lewandowski, Amn Thomas had seizures on the accident scene. Amn Thomas stated that he has no history of seizures. Subsequent tests lead Dr Lewandowski to believe that it is more likely than not that the seizures occurred after rather than before the accident. c. Due to injuries incurred as a result of this incident, a Line of Duty investigation was initiated. On 20 Nov 02, Captain Mark Sotallaro was appointed as the Investigating Officer (I0). After a formal investigation, the I0 determined that Airman Thomas was "Not in Line of Duty — Due to Own Misconduct." 3. LAW: a. AFI 36- 2910, Line of Duty (Misconduct) Determination, 4 Oct 2002, establishes the guidelines for Line of Duty and Misconduct Determinations. It provides that an injury is presumed in the line of duty unless the preponderance of the evidence shows that the injury occurred while the member was "absent without authority" or "was proximately caused by the member's own misconduct." AFI 36 -2910, para. 1.7.2. b. A preponderance of the evidence is defined as the greater weight of credible evidence. AFI 36 -2910, para. 1.8.1. "It is evidence that, when fairly considered, produces the stronger impression and is more convincing as to its truth when weighed against the opposing evidence." c. Proximate cause is defined as the cause that, in a natural and continuous sequence unbroken by an independent and unforeseeable new cause, results in the injury and without which the injury would not have occurred. AFI 36 -2910, Attachment 1. d. Misconduct is defined as intentional conduct that is wrongful or improper, including willful neglect or gross negligence. Willful neglect or gross negligence is conduct that indicates a member exhibited a reckless or wanton disregard for his or her own personal well -being or for the well -being of another, AFI 36 -2910, Attachment 1. 4. DISCUSSION: a. An LOD determination looks to answer two questions: 1) was the member AWOL when the injury occurred, and 2) was the injury due to the member's misconduct. b. Airman Thomas was ordered to retum from leave and attend a class at Ellsworth AFB at 0700 on 2 September. The accident occurred at 0630 on 2 September, approximately 155 miles from his duty station. Leaving himself inadequate travel time, Airman Thomas had to choose between returning late and traveling at an unreasonably dangerous and illegal rate of travel. Insufficient time, coupled with minimal sleep likely influenced Airman Thomas' judgment and ability to control his vehicle. Airman Thomas pled guilty at a summary court martial to disobeying an order by disregarding travel restrictions. Civilian witness' testimony and physical evidence indicate reckless driving by Amn. Thomas in the moments prior to impact. Mr. Carnes' estimates Amn Thomas was traveling at around 100 mph and Wyoming Highway Patrol Trooper Jay Gruwell estimates that at the time of impact the tractor trailer was traveling at about 30 mph. There was no evidence Amn Thomas applied his brakes before hitting the truck from behind. Consequently, we find Amn Thomas' actions show a reckless or wanton disregard for personal safety or for the safety of others, and are the primary cause of this accident. c. Captain Sotallaro's concluded that Airman Thomas was AWOL at the time of the accident. Because Amn Thomas was 155 miles from his duty station at the time of his accident with only 30 minutes prior to the start of his duty, we concur. 5. CONCLUSION: Captain Sotallaro's conclusion that the preponderance of evidence shows Airman Thomas's accident was due to his own misconduct and while AWOL, and therefore not in the line of duty follows the rationale set forth in AFI 36 -2910 and is legally sufficient. 6. RECOMMENDATION: I recommend you concur with the IO's finding of " Not In Line of Duty — Due to Own Misconduct" by marking APPROVED in block c of section 13 on DD Form 261 and complete block 19, indicating that you believe the preponderance of evidence shows that the injuries sustained by Airman Thomas were due to his own misconduct. Once you have completed your portions of DD Form 261, please return it to 28 BW/JA. MATTHEW H. MEYER, Capt, USAF Assistant Staff Judge Advocate Lee Salisbury irom: Lee Salisbury Sent: Friday, January 30, 2009 11:51 AM o: 'matthewmeyer123 @yahoo.com' Subject: City of Kenai - City Attorney We are in receipt of, and thank you for submitting, your application for consideration regarding our City Attorney position. We will begin our review process in February. Please let us know if you have any questions. Lee Salisbury Legal Admin. Asst. City of Kenai 210 Fidalgo Avenue Kenai AK 99611 Tel. 907 283 -8225 Fax 907 283 -3014 CONFIDENTIALITY NOTICE: This electronic mail transmission may contain legally privileged information. The information is intended for the use of the individual or entity named above. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution or taking any action based on the contents of this electronic mail Is strictly prohibited. if you have received this electronic mail in error, please contact sender and delete all copies. SUPPLEMENTAL FROM MATTHEW MEYER Lee Salisbury From: matt meyer [matthewmeyer123 @yahoo.com] Sent: Thursday, February 26, 2009 6:17 AM To: Lee Salisbury Subject: Re: Kenai City Attorney Dear Mr. Salisbury, While I have extensive trial experience, I have not yet had an appellate opportunity. Thank you Sincerely, Matt Meyer From: Lee Salisbury <Isalisbury@ci.kenai.ak.us> To: matthewmeyer123 @yahoo.com Sent: Wednesday, February 25, 2009 6:31:43 PM Subject: Kenai City Attorney Mr. Meyer, We are in the process of reviewing resumes for the position of Kenai City Attorney. Could you please let us know regarding your civil or criminal appellate experience. Thank you in advance for your assistance with this request. Lee Salisbury Legal Admin. Asst. City of Kenai 210 Fidalgo Avenue Kenai AV OCH 11 Tel 907 283 -8225 Fax 907 283 -3014 CONFIDENTIALITY NOTICE: This electronic mail transmission may contain legally privileged information. The information is intended for the use of the individual or entity named above. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution or taking any action based on the contents of this electronic mail is strictly prohibited. if you have received this electronic mail in error, please contact sender and delete all copies. MARK D. OSTERMAN January 25, 2009 Lee Salisbury Legal Department Administrative Assistant 210 FideIgo Kenai, Alaska 99611 Dear Ms. Salisbury; P.O. Box 1027 • Kasilof. AK 99610 Cell: 907 -394 -1400 • Email: mosterman @alaska.com RECEIVED ENUU- LEGAL DEPT. I am very interested in your City Attorney position. With several years of experience as both a municipal lawyer and many more years in the private sector, I believe I have the background and skills necessary to meet the challenges of the City of Kenai. As the attached resume will attest, my capabilities include: More than 20 years of legal experience including 16 years owning successful private practices in Michigan and Alaska. • Experience as an attorney for two Michigan townships • Advised many corporations in Alaska and Michigan. • Transactional experience • A proven track record as a team player. • Appellate experience in Alaska and Michigan. • A highly organized attitude with the "Do it right the first time!" point of view. I have handled hundreds of cases on the state, local and federal levels including; real estate, corporation negotiations and mergers, contracts, criminal, white collar crime, environmental contamination and accounting fraud. Finally, in addition to gaining an intensely professional employee, by hiring me you would also gain a person who thoroughly enjoys the practice of law, is well organized and is a self - starter. Please contact me at the number above to further discuss how I can best put my skills to work for you. I would like nothing more than to begin making those contributions at your earliest convenience. Mark D. Osterman MARK D. OSTERMAN P.O. Box 1027 • Kasilof, AK 99610 Cell: 907 - 394 -1400 • Email: mosterman@alaska.com BAR ADMISSIONS State of Alaska Bar; State of Michigan Bar; U.S. District Court for the Western and Eastern District of Michigan, Western District of Missouri, Northern District of Indiana, and District of Alaska; U.S. Tax Court; U.S. Ninth Circuit Court of Appeals; U.S. Bankruptcy Court Northern District of Illinois; U.S. Supreme Court. PROFESSIONAL EXPERIENCE Osterman Law Office, Kenai, AK & Ithaca, MI Practice Owner, 1990 Present Practice with a focus commercial, real estate, right of way, transportation, federal tax, oil & gas matters, money laundering, misdemeanor, felony, family, civil, environmental, personal injury, harassment. The practice is well- rounded with research, writing, discovery, motion practice, and negotiations, with the main thrust on proceeding to trial. Draft agreements to purchase /sell businesses, appeal taxes and assessments, and work with municipalities for collection of jeopardy tax assessment. Employ associates, paralegals, office staff, and investigators. • Acted as Special Prosecutor and Township Attorney for two Michigan townships. • Served as a member of the Criminal Justice Act's panel for federal appointments; hold Alaska Office of Public Advocacy contract for Kenai Peninsula criminal docket. • Worked as Right -of -Way Agent; and the Alaska Public Defender Agency for a year with while preparing to open practice in Alaska. Michigan's 30th and 42nd Judicial Circuits, Nielsen, Skronek & Brown, P.0 Law Clerk 1986 -1989 • Draftediopinions and orders; reviewed pleadings. • Handled administrative appeals from contested cases filed against Michigan State agencies. • Criminal Defense and. General Civil EDUCATION University of Alaska Anchorage, Anchorage, AK (Masters T evel Courses) Thomas M. Cooky Law School, Lansing, MI Specialization: Oil and Gas; Admiralty; Civil Procedure; Alternate Dispute Resolution St. Louis University, St. Louis, MO Areas of Study: Ena'1_ish; History; Classical Languages; Humanities 2004 furls Doctor, 1988 Bachelors of Arts, 1986 ADDITIONAL INFORMATION TRAINING • National Criminal Defense College, Macon, GA (A level) • Diploma from Hillman's Advocacy Academy /U.S. District Court, Western District of Michigan CLE Seminars: Environmental Claims and Tanks Contamination, Ethics, Advanced Legal Writing, Real Property Law, Oil and Gas, Guardianship, Municipal Contracting, Contracting Support, Alaska Right - of-Way law and Municipal Grant Writing, Cross - Examination Techniques, among others AWARDS • Army Commendation Medal (2nd Award); Good Conduct (2nd Award), Army Achievement Medal; Top of the World Communicator's Club Gold Pan for services to Northern Villages of Alaska PROFESSIONAL ACTIVITIES Member. American Bar Association; Kenai Bar Association; Alaska Bar Association; Alaska Academy of Trial Lawyers, National Association of Criminal Defense Lawyers; • Judge Kenai Peninsula Debate Teams • Elected. to Central Peninsula Emergency Services Board (3 -year term) • Appointed to Peninsula Board of Adjustment (Appointed as Alternate, 3 year term) • Teacher for Alaska Youth Court and Mock Trial Competitions • Lecturer at multiple seminars across the U.S. on Constitutional Law and Administrative Procedures • Member of the Law Related Education Committee, Alaska Bar Association • Member of the Unlawful Practice of Law Committee, Alaska Bar Association List individuals who are familiar with my legal abilities. Name: Terry MacCarthy (Federal Defender) Address: 55 E Monroe St. Ste 2800, Chicago, IL 60603 Telephone: 312 -621 -8300 Name: Bill LeBarre (Public Defender) Address: PO Box 23029, Jackson, MS Telephone: 601 - 981 -8249 Name: Michael Corey Address: 701 West 8th Avenue Suite 1100; Anchorage, AK 99501 Telephone: (907) 276 -6363 Name: Frances Neville (Homer District Judge — retired) Address: PO Box 1015, Homer, AK 99603 Telephone: 907 -235 -2693 Name: John Lobur (Private Practice) Address: 223 W. Grand River, Howell, MI 48843 -2238 Telephone: 517- 546 -7623 FACTUAL STATEMENT The matter before the court deals with the statements of Military Police officers conceming consent to allow a vehicle search. Defendant Kelda Hull denies giving Military Police Officers authority or permission to search. The Defendant, Kelda Hull, was operating a motor vehicle when she exited at the Arctic Valley exit from the north -bound Glen Highway late at night on September 28, 2003. Ms. Hull was unfamiliar with the area and exited the highway hoping that she could reverse direction. When she got off the highway, she did not know where she was, and was disoriented as to her direction. She pulled her vehicle off the side of the road and began looking for maps in an unfamiliar vehicle. A rnilitary police officer (believed to be Private First Class Robert Trehern) approached her while she was already stopped, smelled alcohol, and decided to further investigate. The odor of alcohol was coming from the passenger, Chris Steik, who was sleeping in the reclined front - passenger seat. Ms. Hull was removed from the car and PFC Trehern awakened Chris Steik, handcuffed him, and put him in a patrol vehicle. The search was then commenced. The facts of the remainder of this matter appear to be in dispute in that a military police officer will likely allege that Kelda Hull gave permission to military police to search the vehicle. This allegation appears in the statement of SPC Steven Maiorano. Ms. Hull denies this and states that at no time did she give consent to search. DISCUSSION The United States Constitution, Fourth Amendment, finds that warrantless search and seizures are per se unconstitutional unless the search falls within well- defined criteria. As seen here, without a warrant, and without probable cause, a search is invalid. Schneckloth v. Bustamonte 412 US 218, 36 L. Ed. 2d 854, 93 5. Ct. 2041 (1973). The burden of establishing the validity of consent to search is a "heavy burden" that rests upon the Government. The consent to search cannot merely be inferred from the facts, PAomn Cnnnnrfinn Nlntinn to Qnnnrncc _ but requires that the court determine whether the search was voluntary "by the totality of the circumstances." Bustamonte , supra at 227. The voluntariness of consent to search is reviewed for clear error. United States v. Iglesias, 881 F.2d 1519 (9th Cir. 1989), cert. denied, U.S., 110 S. Ct. 1154 (1990). The court determines the voluntariness by considering the totality of the surrounding circumstances. Bustamonte, supra. Consent to a search may be given by a third party who possesses common authority over, or other sufficient relationship to, the premises to be inspected. United States v. Matlock, 415 U.S. 164, 171; 39 L. Ed. 2d 242; 94 S. Ct. 988 (1974). United States v. Yarbrough, 852 F.2d 1522, 1534 (9th Cir.), cert. denied, 488 U.S. 866, 102 L. Ed. 2d 140, 109 S. Ct. 171 (1988). The common authority justifying the consent need only rest "on the mutual use of the property by persons having joint access or control for most purposes ...." United States v. Seeley, 830 F.2d 1028, 1031 (9th Cir. 1987), citing United States v. Matlock, 415 U.S. 164, 171 n. 7, 39 L. Ed. 2d 242, 94 S. Ct. 988. Here, Kelda Hull's authority rests on her control of the vehicle as its driver. Determining whether the consent was voluntary depends upon the totality of the circumstances, and is a question of fact reviewed under the "clearly erroneous" standard United States v. Licata, 761 F.2d 537, 544 -45 (9th Cir. 1985). To determine these circumstances, the Court must conduct a hearing where the burden rests on the Government to establish a proper exception to the warrant requirement. The courts have stated that "Evidentiary hearings need not be set as a matter of course, but if the moving papers are sufficiently definite, specific, detailed, and non - conjectural to enable the court to conclude that contested issues of fact going to the validity of the search are in question, an evidentiary hearing is required." Cohen v. United States, 378 F.2d 751, 760 -61 (9th Cir.), cert. denied, 389 U.S. 897, 19 L. Ed. 2d 215, 88 S. Ct. 217 (1967). CONCLUSION Under the circumstances, there are material facts which are clearly in dispute, those kAamn es nnnrtinn RAn #inn to Runnrccc - facts are definite, specific, and sufficiently detailed, and the court should hear those statements to determine the contested issues of fact about the validity of a search. See United States v. Dixon, 558 F.2d 919, 223 (9th Cir. 1977). WHEREFORE, the Defendant asks the court to hold a hearing to determine the conduct of Military Police officers in the search of the vehicle where issues of probable cause is in dispute and to determine whether permission /consent to conduct such a search was granted as the Government indicates. RESPECTFULLY SUBMITTED: Mark D. Osterman Mark D. Osterman Law Office, P.C. Attorney for Kelda Hull .Aaron Cnnnnrfinn MMnfinn to Cnnnrace _ the cify a� KENAI, ALASKA January 28, 2009 Mark D. Osterman PO Box 1027 Kasilof AK 99610 "I/illaye with a Past, Gi y with a Future" 210 Fidalgo Avenue, Kenai, Alaska 99611 -7794 Telephone: (907) 283 -75351 Fax: (907) 283 -3014 www.ci.kenai.ak.us RE: City Attorney position — City of Kenai Dear Mr. Osterman: We are in receipt of, and thank you for submitting, your application for consideration regarding our City Attorney position. We will begin our review process in February. Please let us know if you have any questions. CITY CAF KENAI ary ' . Graves Attomey Lee Salisbury Administrative Assistant Legal Department City of Kenai 210 Fidalgo Avenue Kenai, AK 99611 -7794 Re: City Attorney Application LEGAL DEPT, Dear Ms. Salisbury, Please accept my application for the City Attorney position. One of the great assets that I bring to this position is my eight years of experience in tribal government. As you may know, the Sitka Tribe of Alaska (STA) has an enrollment of over 4,000 citizens, manages a $7.5 million annual budget, and exercises jurisdiction. over 1,500 acres of Indian owned land within the City and Borough of Sitka. As Tribal Attorney, I work closely with our local municipal government on projects of mutual concern. In the Sitka Indian Village, these projects entail street paving, building rehabilitation, fire and safety issues, resolving zoning conflicts and historic preservation efforts. I also manage a tribal youth diversion effort (TYDE) in Tribal Court for first time offenses referred from the City and Borough of Sitka attorney. In support of the Sitka Tribal Council and City and Borough of Sitka Assembly, I provided counsel through the Federal Subsistence Board's decennial review process of Sitka's rural status under ANILCA. My enthusiasm for this position is not only professional but personal as well. True, I would relish the opportunity to utilize my legal skills and knowledge in a municipal setting. In addition, a move to the Kenai would provide invaluable opportunities for my family. As the mother of a gifted 2nd grader and special -needs 4 year -old, who will be entering kindergarten next year, I am committed to doing my part to help develop strong, safe, and responsible communities. For the past year, my husband and I have researched seven localities and their Montessori schools as places to educate our two daughters. One of the schools is the Soldotna Montessori Charter School. We have close family ties in Soldotna, Homer, Girdwood, and Anchorage. Thus the Kenai area is high on our list of possible locations to move. These experiences and my personal dedication to public service make me an outstanding municipal attorney candidate. I have enclosed my resume and a writing sample for you review. I look forward to meeting you to discuss this opportunity in more detail. Jessica G. Perkins 110 Rands Drive Sitka, Alaska 99835 (907) 747 7468 greatrex1976@gmail.com Experience Tribal Attorney & Legal Director Sitka Tribe of Alaska, July 2006- Present • Serve as general legal counsel to Tribal Council, Tribal Court, committee, commissions, General Manager and department directors for tribal government with $7.5 million annual. budget; • Responsible for wide range of legal matters: drafting contracts and council resolutions, policies, procedures, regulations and ordinances for all aspects of tribal government; providing legal analysis on questions of property law, subsistence hunting, fishing rights, environmental protection, employment, grants and contract compliance; and collaborating with local and Federal governments as part of government to government relationship; • Actively manage tribal court and tribal realty programs. Resources Protection Director Sitka Tribe of Alaska, july 2002 -July 2006 • Managed annual department budget of $500,000- $800,000; • Supervised 5 -15 tribal staff working under federal compact funds from Department of Interior, and grants from United States Forest Service, Department of Defense, Environmental Protection Agency, National Park Service, Bureau of Indian Affairs, United States Fish and Wildlife Service and University of Alaska - Fairbanks; • Coordinated, developed and implemented tribal policy on environmental, natural and cultural resources matters, working collaboratively with staff, committees and Tribal Council; • Advocacy, negotiation and resolution work on a number of property issues related to restricted deed townsite lots and native allotments, including trespass, leases, sales, wills, probates, condemnation, subdivisions, easements, and zoning. Law and Trust Director & Tribal Attorney Sitka Tribe of Alaska, November 2000 -June 2002 • Provided legal advice and advocacy on natural and cultural resources protection, land rights, tribal sovereignty and tribal economic development; • Conducted legal research, drafted legal opinions, and represented Sitka Tribe in administrative proceedings and State court; • Managed tribal realty, tribal court and domestic violence prevention programs. Trust Resources Coordinator Sitka Tribe of Alaska, June 2000 - October 2000 • Assisted restricted property land owners with property ownership including acquiring, leasing, selling and probating properties. Law Clerk • Native American Program Oregon Legal Services, February - December 1999 • Lewis and Clark Legal Clinic, January -May 1999 Office Assistant Northwestern School of Law at Lewis & Clark College, July 1998 - January 2000 Education Juris Doctorate: Environmental Law and Natural Resources Certificate Northwestern School of Law at Lewis (Sr Clark College, 1997 -2000 • Cornelius Honors Society, Dean's Fellowship & Steven Manas Memorial Scholarship • Associate Editor, Animal Law Journal • Second place best brief, National NALSA moot court competition • Best brief and third overall, school NALSA moot court competition • Best brief, first year legal writing class • Co- coordinator, 10th Annual Auction, Public Interest Law Project • Co- chair, Environmental Law Caucus Bachelor of Arts: Major in Sociology, Minor in Justice Studies University of New Hampshire, 1993 -1997 • Graduated cum laude • Member, National Honors Society • Teacher's Assistant, Philosophy of Logic and Introduction to Sociology Licenses, Affiliations and Interests Alaska Bar Association #0107046 Sitka Tribal Court, Bar Member Sitka Bar Association Member Betty Eliason Child Care Center, Board of Directors (2005- 2009), President (2006 -2008) Al's Rentals, Manager /Bookkeeper (family business) Professional References Theresa. Hillhouse, City and Borough of Sitka Attorney, 7474810 David Avraham Voluck, attorney at law and Tribal Court Judge, 747 -2814 Sandie Johnson, Sitka Tribe of Alaska Accountant, 738 -1278 IN THE SUPERIOR COURT FOR THE STATE OF ALASKA FIRST JUDICIAL DISTRICT AT SITKA SITKKTRIBE OF ALASKA APPELLANT ALCOHOL BEVERAGE CONTROL BOARD, DOUGLAS B. GRIFFIN, AND THE STATE OF ALASKA APPELLEE -Filed in the Trial Courts- STATE OF ALASKA, FIRST DISTRICT Siiks DEC 31 2001 Clerk of the Trial Courts 81 g Deputy CASE NO.1SI- 01486Ci BRIEF OF APPELLANT Appeal from the Alcohol Beverage Control Board JESSICA GREATREX BROWN ATTORNEY FOR SITKA TRIBE OF ALASKA 456 KATLIAN STREET SITKA, ALASKA 99835 (907) 747 -3207 ALASKA BAR # 0107046 TABLE OF CONTENTS TABLE OF AUTHORITIES III RELEVANT PROVISIONS V URISDICTIONAL STATEMENT 1 PARTIES TO THE CASE 1 STATEMENT OF ISSUES FOR REVIEW 1 STATEMENT OF THE CASE 2 STANDARD OF REVIEW 10 SUMMARY OF ARGUMENT 10 ARGUMENT I1 I. THE BOARD FAILED ITS ADMINISTRATIVE DUTIES BY NOT ADEQUATELY DOCUMENTING ITS DECISION 11 II. THE BOARD ABUSED ITS DISCRETION BY NOT FULFILLING ITS Dur✓ TO MAKE A FINDING REGARDING WHETHER APPROVING THE RELOCATION APPLICATION WAS IN THE BEST INTERESTS OF THE PUBLIC 15 M. THE BOARD ABUSED ITS DISCRETION BY NOT BASING ITS ULTIMATE DECISION ON THE WEIGHT OF THE EVIDENCE BEFORE IT 17 IV. THE BOARD FAILED TO HOLD A FAIR HEARING. 24 V. THE BOARD ABUSED ITS DISCRETION BY FAILING UNDER TITLE FOUR TO RECOGNIZE SITKA TRIBE OF ALASKA AS A LOCAL GOVERNING BODY AS DEFINED BY AS 04.21.080(3)(16) 26 CONCLUSION 32 APPENDIXES 34 ii TABLE OF AUTHORITIES CASES Alaska Alcoholic Beverage Control Board v. Malcolm, 391 P2d 441 (Alaska 1964) 16 City of Nome v. Catholic Bishop of N. Alaska, 707 P2d 870, 875 (Alaska 1985) 13 ,Fields v. Kodiak City Council, 628 P.2d 927, 933 (Alaska 1981) 12, 13 Horwitz v. Alaska Bar Association, 609 P.2d 39, 41 (Alaska 1980) 27 Interior Paint v Rodgers, 522 P.2d 164, 170 (Alaska 1974) 19 Kelly v. Zamarello, 486 P.2d 906, 916 (Alaska 1971) 10, 26 .- 4 Kenai Peninsula Borough v. Ryehard, 628 P.2d 557, 562 (Alaska 1981) 12, 14 Kirby v. Alcoholic Beverage Control Appeals Board,498 P.2d 1105, 1110 1972) 22 Messerli v. Dep't. of Natural Resources, 768 P.2d 1112, 1118(Alaska 1989) 12 "Mobil Oil Corp. v. Local Boundary Comm., 518 P.2d 92, 97 (Alaska 1974) 12 Municipality of Anchorage v. Sisters of Providence in Washington, Inc., 628 P.2d 22, 27 (Alaska 1981) . 27 Smith v. State, 872 P.2d 1218, 1224 (Alaska 1994) 12 South Anchorage Coalition v. Coffey 862 P.2d 1168, 175 (Alaska 1993) 13 Southeast Alaska Conservation Council, Inc. v. State of Alaska, 665 P.2d 544 (Alaska 1983) 13 State, Alcoholic Bev. Control Bd. v. Decker, 700 P.2d 483, 484 -85 (Alaska 1985).. 16, 19, 21, 22 Thompson v. United Parcel Serv., 975 P.2d 684, 688 (Alaska 1999) 10, 19, 26 University of Alaska v. Geistauts, 666 P.2d 424, 428 n.5 (Alaska 1983) 27 Usibelli Coal Mine v. State, 921 P.2d 1134, 1149 (Alaska 1996) 12 Ward v. State, 758 P.2d 87, 89 n.5 (Alaska 1988) 27 STATE STATUTES AS 04.11.340 15, 16, 17 AS 04.11.470 30 AS 04.11.480 30 31 AS 04:11.5-60(b). .... . ........ . ....................... . . AS 04.21.080(b)(16) 27 AS 44.62.570 passim FEDERAL STATUTES Indian Reorganization Act of June 18, 1934, 25 USC 461 et. seq., as amended, 25. USC 464 (2000) 28 Townsite Act of May 25, 1926, 43 U.S.C. 733 -36, as amended February 26, 1948, 43 U.S.C. 737 29 STATE REGULATIONS �z JJ 15 AAC 104.145 FEDERAL REGULATIONS 25 CFR §1.4 31 TREATISES K. Davis Administrative Law Treatise § 14.14 (1958) 17 OTHER AUTHORITIES Black's Law Dictionary, 1594, 6th ed. (1999) 21 iv JURISDICTIONAL STATEMENT The Alcohol Beverage Control Board issued an oral decision on July 18, 2001, approving an application relocate the Pilot House's beverage dispensary. license Tr 59 -60. Pursuant to AS 04.11.560(b), "[a] decision by the [Alcohol Beverage Control] board relating to the ...relocation ...of a license under this title may be appealed to the superior court under AS 44.62.560." Id. PARTIES TO THE CASE The appellant is Sitka Tribe of Alaska (STA), a federally recognized Indian Tribe. The appellees are the Alcohol Beverage Control Board, Douglas Griffin, and the State of Alaska. STATEMENT OF ISSUES FOR REVIEW STA presents five issues on appeal 1 First, the Board failed its administrative duties by not adequately documenting its decision. Second, the Board bused its discretion by failing to make a finding that approving the relocation application was in the best interests of the public. Third, the Board abused its discretion by not basing its ultimate decision to approve license on th eight of the evidence efore it. Fourth, the 1 To the extent the statement of issues for review stated here differ from the statement of points on appeal filed with the court on August 24, 2001, the statement of issues presented herein represent all of STA's issues for review by the court. 1 Board failed to hold a fair hearing. Fifth, the Board abused its discretion by failing to recognize STA as a local governing body under AS 04.21.080(b)(16). STATEMENT OF THE CASE The Alcohol Beverage Control Board (the Board) received an application to relocate a dispensary license (application) from Ronald Bellows, Kenneth Bellows and Marlys Dee Hanson, doing business as Pilot House Inc. (Pilot House) on April 23, 2001. Exc. 66 -68. The application seeks relocation from 713 Katlian Street to 485 Katlian Street2. Exc. 67. The location of the original license, 713 Katlian Street, is close to the corner of Katlian Street and Halibut Point Road, outside the Sitka Indian Village. The proposed new location, however is within the Sitka Indian Village. See 65. The legal description of the proposed property is Lot 36(B), Block 5, United States Survey 2542, Sitka Indian Village. The Sitka Indian Village was established as a federal townslte in 1946. When the federal trustee handed out deeds to the Sitka townsite, many of those deeds were given to Sitka tribal citizens in restricted status. STA is recognized as a government and as having governing authority over a range of matters within the Sitka Indian Village by the City, State and Federal government. The Federal government has approved STA's Tribal Constitution which notes that STA has jurisdiction over lands within the Sitka Indian Village. The State of Alaska entered into 2 There is some inconsistency about the exact address of the proposed relocation site in the record. On the application the address is listed as 485 Katlian Street. See Exc. 86. However at the hearing Mr. Bellows noted the relocation address was 483 Katlian Street. See Tr. 5. Regardless of which address is 2 the Millenium agreement with the 227 federally recognized tribes in Alaska, recognizing their sovereign status. The City of Sitka has entered into a memorandum of understanding with STA recognizing STA's governmental nature over matters important to tribal citizens, deferred to STA regarding matters within the Sitka Indian Village such as repaving roads with the`SitkaTndian Village, and`: entered into a payment for services agreement with STA over properties owned by STA within the Sitka Indian n Village. The proposed site is approximately 500 feet from the STA Healing House, where STA's domestic violence prevention and social services departments are located. See Appendix F. These programs aim to help tribal citizens with social problems, including the disease of alcoholism and related ills. The proposed site is also within 500 feet of STA's main - tribal offices the center of STA's tribal government. The proposed site is directly across the street from a restricted property owned by STA tribal citizens. This property along with forty one other properties within the Indian Village have been owned in restricted fee status since 1946, when the federal townsite trustee declared Sitka Indian Village a federal townsite and handed out deeds to all of the properties in the Village. Since 1946, none of the City and. Borough of Sitka's ordinances have applied to these properties. Upon receiving Pilot House's relocation application, the Board sent a letter to the City of Sitka (City) notifying them of application. Exc. 82. The City Assembly correct, STA's arguments regarding the relocation application remain the same because the physical 3 discussed the relocation application at its May 22, 2001meeting. Exc. 4. The Assembly discussed the relocation application for approximately two hours, receiving testimony from six people who opposed the application and three people who supported the application. Exc 4 -5. _Among those testifying were two members of STA's Tribal Council who discussed STA 's concerns regarding the application" Exc. 4 -5. During the meeting, Ron Bellows objected to one assembly member voting on his application, which resulted in the assembly member recusing herself from voting on the application. Exc. 4. Assembly members noted concerns about the integrity of the Indian Village, traffic congestion and noise. Exc. 6. However, at the conclusion of the testimony, the Assembly voted to take "no . action" on the application. Exc. 6. At that meeting, Ron Bellows assured the Tribal Council that he would continue to work with the Council on issues of concern, but never contacted the Tribal Council again. Exc. 6. Although STA did not receive a notice from the ABC Board regarding the application, STA held a public meeting on the relocation application on June 19, 2001. app.... g Exc. 70. STA publicized the meeting in the local paper and invited all members of the public to attend. Ron Bellows was personally notified of the meeting and that STA was acting as a local governing body, but he did not attend. Exc. 80 -81. STA heard testimony from six members of the public. Exc. 61. All six persons were opposed to the application as proposed. Exc. 61. Based on the testimony it received and the concern location of the relocation remains the same. 4 the Tribal Council had regarding the application, STA protested and objected to the application to the Board on June 28, 2001. Exc. 61 -64. In its protest and objection, STA set out its reasons for opposing the application. Exc. 70 -81. First, STA noted that the proposed location is too close to the Tribal Offices and the Healing House. The proposed- location is wrtivn 500 feet-of STA's Healing House and Tribal Offices. As the native citizens of Sitka have faced a long history of problem with alcohol, STA has many programs devoted to eliminating or reducing the use of alcohol by its native people. By locating a bar in such close proximity to STA's programs related to remedying the effects of alcohol on STA's tribal citizens and within the Sitka Indian Village where many tribal citizens reside, STA pointed out it is concerned about increased use of alcohol by its citizens. The second reasons STA opposed the application was because the proposed application will compound the already congested pedestrian and vehicular traffic along Katlian Street. Although the original license was along Katlian, it was close to its intersection with Halibut Point Road, with most of its traffic reaching the establishment from that end of the street. At its proposed location, patrons from the Pilot House, after having a drink, will enter Katlian Street along an already narrow and unsafe traffic area. Third, STA explained its concerns about increased vandalism from the proposed location. With one bar located at one end of the Indian Village already, STA is concerned about increased traffic between the two locations, and increased incidences of vandalism. Of particular concern is an important native gravesite located directly across the street from the proposed location. The fourth point STA noted was that the 5 Pilot House will bring increased noise to this predominately residential area, with late night patrons. STA's fifth reason for objecting to the relocation was that Seafood Producer's Cooperative, which is located directly next door to the proposed location, recently built a_bunkhouse to house its summer workers. The old location is no longer available because Stka Sound Seafoods purchased the-property for housing its summer - -- - workers and terminated Pilot House's lease. The proposed location of Pilot House will create a similar undesirable condition, with transient workers living directly next door to the proposed location of the Pilot House. Sixth, STA's opposition was based upon its trust responsibility to the forty -two restricted property owners in the Sitka Indian Village who object to the proposed location. Via a contract with the federal government, STA has a responsibility to protect their property interests. The seventh reason STA opposed the relocation was that two schools and one place of worship are located in close proximity to the proposed relocated site. STA believes that locating a bar within such close proximity to these important pillars of the community will negatively impact their existence. The Board also received eight letters of objection from citizens of Sitka. Exc. 37- 48, 51 -59. These letters echo the concerns of STA and added several further concerns erns regarding the impact on Mt. ater from the proposed location, regarding the relocation. These letters highlight cone Edgecumbe high school, located directly across the w vandalism, noise, and late night traffic in such close proximity to the residential neighborhood, the bunkhouse, mistrust of the applicant's representations regarding the 6 nature of the proposed business, and proximity to STA's Healing House. Exc. 37 -48, 51- 59. On July 18, 2001, the Board held a public hearing on the application in Fairbanks. Tr. 1-61. The Board was not introduced at the beginning of the testimony and it was difficult to determine when members of Board were speaking or who the Board was comprised of. See Tr. 1-59; 45, 46, 52, 55, 57. The hearing was well attended by the public. Thirteen people attended via tele - conference from Sitka, one person attended via teleconference from Juneau and four people attended the meeting in person. Exc. 1- 2; Tr. 4. The Board received testimony from representatives of Pilot House, STA, the city assembly and members of the general public with eight persons speaking in opposition to the application and four persons speaking in favor of the application. Tr. 1 -61. Those speaking against the relocation had numerous concerns. Mr. Baxter, representing Mr. Shaeffer, who operates an accounting business next door to the proposed location, spoke to the applicant's "incomplete disclosure" regarding the relocation application, the lack of real inquiry made by the city assembly and asked the Board to make an in depth probe into the application to determine whether approving the application is in the public interest. Tr. 6 -10. Ms. Will spoke against the application, noting concerns about foot and vehicular traffic, the lack of adequate parking at the proposed site, asking the Board to give weight to STA's concerns, and the lack of fairness at the city assembly meeting. Tr. 20 -22. Ms. Seepey spoke about past experiences living next to Pilot House and her concerns regarding noise, relating to 7 loud music being played at the Pilot House during the week, and the impact on Mt. Edgecumbe students living across the water from the proposed location. Tr. 22 -24. Ms. Fritz spoke against the relocation because of her concerns relating to noise, safety, trafffic on the narrow portion of Katlian Street and the effects on the Mt. Edgecumbe students relating to the proposed relocation. Tr. 28 -32. Mr. Burdick, City Assembly member, spoke to the effects on the integrity of the Indian Village, the proximity to STA's Healing House and the public interest. Tr. 32 -33. Mr. Burdick noted, "[i]t seems fairly clear that the public has spoken and that this is not in their best interest." Tr. 33. Ms. Campen3 testified regarding the proximity to the bunkhouse and the residential neighborhood, increased traffic, noise, music and safety concerns relating to late night operation of the Pilot House, diminished property values, and respect for STA's position. Tr. 34 -38. Ms. Campen also discussed her lack of trust in Ron Bellows regarding his plan to operate an "upscale restaurant" rather than a bar, and Ron Bellows' lack of forthright communication with the neighbors. Tr. 38. Mr. Shaeffer asked the Board to consider limiting the hours of operation to 11:00 p.m. and other limitations to reduce the effects of noise on the neighborhood. Tr. 39 -41. At the hearing, STA's attorney, Ms. Brown, reiterated STA's concerns as they were expressed in its protest and again asked the Board to deny the relocation application based on STA's inquiry into the matter. Tr. 10 -14. 3 Ms. Campen s name is misspelled in the franc and Exc. 2. p as Ms. Camp, and Ms. Campbell. Compare Tr. 34, 39 8 At the conclusion of the public testimony, the Board briefly discussed its options. First, the chairman of the Board noted "the most onerous" option would be to hold a public meeting in Sitka. Tr. 57. The chairman determined that that option was not "appropriate" in this case. Tr. 57. Second, the chairman said, "...we could deny the application for whatever cause. Public interest or whatever it is that we -- choose." In deciding not deny the application, the chairman said, "it looks like what we have here is a -- a very serious applicant and we ought to discuss whether we'll approve it." Tr: 58. Next, Ms. Kesterson4, assistant attorney general, informed the Board that in her opinion STA should not be considered a local governing body. Tr. 58 -59. Without any further discussion of its options, the public interest, or whether STA should be considered a local governing body, Ellen (presumably a member of the Board) made a motion to approve the relocation application with two conditions: "that there be no live music, except in the case where live snusic-is approved by the Director... the second would be that more than 50 percent of the gross revenues be from food." Tr. 59. After asking Ron Bellows, the applicant, how he felt about the motion, the Board approved the motion and ended the hearing. Tr. 60. After the hearing, the Board did not issue a decisional document, but did send Ron Bellows a letter apprising him of its action on July 24, 2001. Exc. 69. 4 Ms. Kesterson's name is misspelled as Ms. Guessterson in the transcript. Tr. 58. 9 STANDARD OF REVIEW This court reviews agency actions for an abuse of discretion. Under AS 44.62.570, inquiry into an appeal [of a final agency decision] extends to the following questions: (1) whether the agency has proceeded without, or in excess of jurisdiction; (2) whether there was a fair hearing; and (3) whether there was a prejudicial abuse of discretion. Abuse of discretion is established if the agency has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence. AS 44.62.570. However, this court can substitute its judgement for agency interpretations of law: Substitution of judgement is appropriate in cases involving "statutory interpretation or other analysis of legal relationships about which courts have specialized knowledge and experience." Thompson v. United Parcel Serv., 975 P.2d 684, 688 (Alaska 1999) quoting Kelly v. Zamarello, 486 P.2d 906, 916 (Alaska 1971). SUMMARY OF ARGUMENT The Board failed its administrative duties in five ways by approving Pilot House's relocation application. First, the Board failed to adequately document its decision, thus avoiding its responsibility to enter careful and reasoned deliberation and precluding meaningful judicial review. See discussion infra Part I. Second, the Board abused its discretion by failing to make a finding regarding whether approving the _ application was in the best interests of the public. See discussion infra Part II. This constitutes an abuse of discretion in two ways: by failing to make a decision based on 10 findings, and by failing to proceed according to law. Third, the Board abused its discretion by making a decision which is not supported by the weight of the evidence. See discussion infra Part III. In fact the weight of the evidence supports denying the relocation. Fourth, the Board failed to hold a fair hearing because it ignored much of the evidence presented arid- failed to make findings cvhen-it- decided- to-approve - P-ilot -- House's relocation application. See discussion infra Part IV. Fifth, the Board erroneously concluded that STA does not qualify as a localgovernig body undei Title Four of the Alaska Statutes. See discussion infra Part V. In fact, STA should be recognized as a local governing body because it is the only appropriate local government in this case. Because the Board failed these administrative duties, this court should overturn the Board's decision to approve Pilot House's application or in the alternative remand this proceeding to the Board with directions to proceed according to law. ARGUMENT I. The Board failed its administrative duties by not adequately documenting its, decision. The Board was required to make a record that adequately reflects the findings or reasons underlying its decision to approve Pilot House's relocation application. The Board could satisfy this requirement by recording careful deliberation at the hearing or via an adequate decisional document. However, the Board did not create a record which reflects why it approved the relocation application. 11 The basic requirement is that the Board must create a record that "... clearly reflects the reasoning underlying [its] decisions." Usibelli Coal Mine v. State, 921 P.2d 1134, 1149 (Alaska 1996). The Alaska Supreme Court has determined that even absent a statutory duty, an agency must create a record: that = reflects its findings or the reasoning underlying its - decision:- Mobi3- Oil -Corn. vLocal-Bou- ndar -y- Comm:,518 _ (Alaska 1974) (requiring findings of fact even absent a statutory mandate); Smith v. State, 872 P.2d 1218, 1224 (Alaska 1994) (requiring reasons to be articulated even absent a statutory duty). The Alaska Supreme Court has required "in a broad variety of administrative adjudications that the decision maker should identify the reasons for his decision." Smith, at 1224. In adjudicative decisions, an agency is required to issue written findings and a decisional document. Usibelli, 921 P.2d at 1149 citing Messerli v. Dep't. of Natural Resources, 768 P.2d 1112, 1118(Alaska 1989); Kenai Peninsula Borough v. Ryehard, 628 P.2d 557, 562 (Alaska 1981) (requiring findings in formal adjudications), Fields v. Kodiak City Council, 628 P.2d 927, 933 (Alaska 1981)(requiring findings in informal adjudications.) Whereas in non - adjudicative settings, the court strongly suggested that agencies issue decisional documents reflecting the reasoning underlying their decisions. Usibelli, 921 P.2d at 1149. Thus, the basic requirement, even in non - adjudicative settings, is that the agency creates a record that "clearly reflects the reasoning underlying the agency's decisions." Id. The Alaska Supreme Court has found that this requirement serves several purposes Mainly, without a record that "sufficiently reflects the basis for the [agency's] 12 decision," it is impossible to ensure meaningful judicial review. Fields, 628 P.2d at 932. Furthermore, "such findings facilitate judicial review, insure careful administrative deliberation, assist the parties in preparing for review, and restrain agencies within the bounds of their jurisdiction." South Anchorage Coalition-v. Coffey 862 P.2d 1168,175 —__ (Alaska 1-993) citing City of Nome-v Catholic. Bishop -of -N: Alaska; 707 -1' 2d 870, -875 (Alaska 1985). "A decisional document, done carefully and in good faith, serves several salutary purposes. It facilitates judicial review by demonstrating those factors which were considered. It tends to ensure careful and reasoned administrative < deliberation." Southeast Alaska Conservation Council, Inc. v. State of Alaska, 665 P.2d 544 (Alaska 1983). Thus the main reasons why courts require agencies to create a record reflecting their reasoning is to ensure agencies are providing careful and reasoned administrative deliberation, ensure courts are able to provide meaningful judicial review, and to restrain agencies within the bounds of their jurisdiction. Here there is no record that reflects the reasoning underlying the Board's decision to approve the application. The Board's discussion of the license is, at best, slim. See Tr, 58 -60. The only findings or reasoning contained in the record are the Chairman's comments that they had a "very serious applicant" before the Board, and that therefore the Board ought to approve the application. Tr. 58. Because the Board failed to provide a record that reflected its reasoning at the hearing, the Board should have at least issued a decisional document reflecting its reasoning. However, the Board also failed to issue a decisional document reflecting its reasoning. The Board did issue a letter to Mr. Bellows approximately a week after its 13 meeting. Exc. 69. However, this letter only notifies Mr. Bellows of its decision, and does not provide any reasoning for the Board's decision. Id. By failing to create a record that reflects why the Board approved Pilot House's relocation application, the Board failed to fulfill the three main purposes of creating art __. adequate administrative record. First, the Board did not provide a- careful and reasoned administrative deliberation. In fact, the Board entered into no careful and reasoned deliberation, and instead just casually state dlthat they had a serious applicant before, — them. See Tr. 58. Second, the Board's record does not allow for meaningful judicial review of the Board's decision because there is no documentation of why the Board approved the application. Lastly, the Board was not restrained within the bounds of its jurisdiction because it failed to issue a decision based on its findings or the evidence before it. See discussion infra Parts II and III. When an agency has failed to make adequate findings, a reviewing court should remand the matter to the agency for additional proceedings before the agency. Kenai, 682 P.2d at 563. In approving Pilot House's relocation application, the Board failed to create a record documenting its reasons for approving the application. Thus, this court should remand this proceeding to the Board with directions to create an adequate record reflecting its reasons for approving the relocation lica apption. 14 II. The Board abused its discretion by not fulfilling its duty to make a finding regarding whether approving the relocation application was in the best interests of the public. By not making a finding regarding the best interests of the public, the Board abused its discretion by not making a decision according to law and not issuing a decision supported -by its findings. The law requires the-Board make a- finding in two places. First, AS 44.62.570 requires the Board to make decisions supported by its findings. Id. Second, AS 04.11.340(1) requires the Board to make a decision based on a finding that it is in the public interest. Id. By failing to make a determination regarding whether approving the application was in the best interests of the public, the Board abused its discretion by not proceeding in the manner required by law and failing to make a decision that is supported by its findings. First, the Board abused its discretion by failing to base its decision on its findings. AS 44.62.570 states that "[a]buse of discretion is established if the agency has not proceeded in the manner required by law, the order or decision is not supported by the findings, the findings are not supported by the evidence." Id. Under this statute, the Board is required to make decisions based on findings and findings based on evidence. However, the Board failed to make the most crucial finding in this case, whether the Lapplication was in the best interests of the public, and as such abused its discretion. AS 44.62.570. Second, the Board abused its discretion by not proceeding according to law. The Board has an affirmative duty to make a finding that relocation was in the best interest of the public. The law requires, "[a]n application requesting approval for the relocation 15 of licensed premises shall be denied if (1) the board finds, after review of all relevant information, that relocation of the license would not be in the best interest of the public." AS 0411.340. Thus, when considering an application, the Board has an affirmative_ duty to determine if denial or approval of a license application is in the best interests of the public. In State, Alcoholic Bev. Control Bd. v. Decker, the Alaska Supreme Court discussed who has the burden of proof in the liquor licensing context. 700 P.2d 483, 484- 85 (Alaska 1985). The court announced that the party seeking a change in the status quo had the burden of proof. Id. at 485 citing K. Davis Administrative Law Treatise § 14.14 (1958). Thus, where Mr. Decker was applying for a new liquor license, he, as the applicant had the burden to prove that the issuance of such license was in the public interest. Id. In Alaska Alcoholic Beverage Control Board v, Malcolm, the court found that the State had the burden to prove the reissuance of a liquor license was not in the public interest. 391 P.2d 441, 444 (Alaska 1964). Thus, it is the proponent of a change in the status quo who bears the burden to prove the change is in the best interests of the public, regardless of whether the proponent is the applicant, or the Board. It logically follows that in this case the Board has the burden of proof. The Board must prove that approving the relocation was in the public interest, as relocating a license is a change in the status quo, which the Board supported. After receiving a large amount of public testimony, the Board made one remark about why it was deciding to approve the,application. The Chairman determined that because they had "a very serious applicant" that the Board should approve the 16 application. Tr. 58. Then, without any further discussion by the Board, a motion was made to approve the application with two conditions. Tr. 59. Rather than making any inquiry into whether this decision was in the public interest, the Chairman asked Mr. Ron Bellows, the applicant, whether he agreed with the action. Tr. 59. Upon Mr. Bellows agreement, the Board voted to approve the motion with no further discussion. Tr. 60. A determination that the applicant before them was "serious" is hardly a finding, and it is definitely not a finding regarding what was in the best interests of the public. In fact, that statement is more like a statement of what was in the best interests of the Mr. Bellows, the applicant. By not making any real findings, the Board abused its discretion under AS 44.62.570 to make a decision based on its findings, and failed to follow the law as provided by 04.11.340(1) to make a finding that approving the application was in the best interests of the public. See AS 44.62.570, AS 04.11.340. Furthermore, the Board failed to meet its burden to prove that approving the relocation was in the best interests of the public. As such, this court should remand this proceeding to the Board with directions that the Board issue a decision based on a finding of what is in the best interests of the public. III The Board abused its discretion by not basing its ultimate decision on the weight of the evidence before it. Even if this court finds that the Board made a finding that approving the application was in the best interests of the public and that finding is adequately reflected in the record, this court should re- evaluate the evidence before the Board to 17 determine if the evidence before the Board supports that finding. Although the Board failed to make any findings, the evidence before it must at least support its decision. However, the weight of the evidence before the Board does not support the Board's decision to approve the application. Thus, the Board abused its discretion. Two similar standards of review apply to cases where a court is- etermiiung whether the evidence before an agency is adequate to support a finding. Under AS 44.62.570(b), abuse of discretion exists if the "decision [of the Board] is not supported by the findings, or the findings [of the Board] are not supported by the evidence." Id. Because the Board failed to make many findings, this standard at a minimum requires that the evidence before the Board supports its decision. Furthermore, under 44.62.570(c), the court may exercise its independent judgement on the evidence. If it is claimed that the findings are not supported by the evidence, abuse of discretion is established if the court determines that the findings are not supported by (1) the weight of the evidence; or (2) substantial evidence in the light of the whole record.,, Id. Thus, this court can independently review the evidence before the Board to determine if either substantial evidence or the weight of the evidence supports its decision. Pursuant to AS 44.62.570(c), STA asks this court to independently review the evidence before the Board. See id. This court should review the evidence before the Board independently because the Board failed its basic administrative duties to make a decision based on findings and to make findings based on the evidence before it. Furthermore, the Board failed to make a finding regarding what was in the best 18 interests of the public based on the evidence before it. Moreover, the Board ignored almost all of the evidence before it in approving the application. See Tr. 57 -60. The Board's only finding based on the evidence before it was that Mr. Bellows was a "serious applicant" Tr. 58. They made no mention of the concerns of STA, or the twelve people who testified regarding the application. As such, STA believes this court is better suited than the Board to analyze the relevant evidence in this case. In previous cases, the Alaska Supreme Court has applied the substantial evidence standard when reviewing findings of fact in quasi - judicial proceedings, such as proceedings regarding liquor license applications. Decker, 700 P.2d at 486. In that case, the court concluded that in reviewing findings of fact, a reviewing court should look to the record as a whole to determine if substantial evidence exists to support the Board's findings. Id. Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Thompson, 975 P.2d at 688 quoting Interior Paint v. Rodgers, 522 P.2d 164, 170 (Alaska 1974). "Application of the substantial evidence test prevents a dislocation of the respective functions of administrative agencies and the courts." Decker, 700 P.2d at 486. However, STA asks this court to determine if t11e weight of the evidence1hupports the Board's decisions. This standard requires more than just the existence of substantial evidence, but in fact requires that more evidence supports the Board's decision than 5 STA acknowledges that it may be more appropriate to state that the weight of the evidence should support the Board's finding regarding whether approving the application is in the public interest, but this court is reviewing what the Board actually did, which was to make a decision based on the evidence, rather than on what was in the best interests of the public. 19 not. In other words, the weight of the evidence standard requires an inquiry into whether "the balance or preponderance of evidence" supports the Board's decision. Black's Law Dictionary, 1594, 6th ed. (1990). By placing two standards in AS 44.62.570, the substantial evidence standard and the weight of the evidence standard, the Legislature meant r` or each of these standards to be appropriate in different- situations. This situation demands the weight of the evidence standard be applied for three reasons. First, while it is true that in previous cases the courts have applied the substantial evidence test to determine if substantial evidence supports an agency's findings, here the Board made no findings. Thus, the substantial evidence test which grants the agency more deference may be appropriate where an agency actually makes findings based on the evidence before it. But the substantial evidence test is not appropriate under the facts of this case where the Board failed to make any findings regarding the public interest and ignored almost all of the evidence before it in making its decision. Second, substantial evidence may be the appropriate standard where there is little evidence before an agency, but the weight of the evidence standard is appropriate where an agency has extensive evidence before it. In other words, substantial evidence seems like a minimum requirement: in order for an agency to make a decision it must have at least substantial evidence before it to ultimately support its decision. But under the facts of this case, the Board had extensive evidence before it. Thus, rather than determining whether the Board had substantial evidence before it to support its 20 decision, it is more appropriate to determine if the weight of the evidence supports the Board's decision. Third, the weight of the evidence standard is appropriate because the Board's decision should be based on a finding of what is in the best interests of the public. To determine what is in the best interests of the public, the Board and this court ghould look to what benefits the public, or the community. In order to deter e what benefits the public , it is necessary to evaluate what benefits most of the people, or public. It does not entail considering only what is in the best interests of, or benefits the applicant, Mr. Bellows, as the Board originally did. See Tr. 58 -59. Determining what is in the best interests of the public entails more than determining if a lot of people support the application or oppose the application, which is whether substantial evidence exists to support the application. Determining what is in the best interests of the public entails weighing the evidence before the Board to determine what the will of the people is. Thus it is appropriate for this court to independently review the evidence before the Board to determine if theeight of the evidence support p finding that approving the application is in the best interest of the public .6 An example of the Board issuing a decision based on the public interest occurred in Decker. See 700 P.2d 483 -87. In Decker, the Alaska Supreme Court upheld the Board's denial of a liquor license based on the public interest. 700 P.2d at 487. The 6 if this court finds that under AS 44.62.570 the substantial evidence test is more appropriate than the weight of the evidence standard, STA still urges this court to independently review the evidence before the Board. 21 Board found approving the package store license application was not in the public interest because the application was too close to a nearby high school which would add to the problem of teenage drinking, and that the area was adequately served by package liquor stores. Id,at 485, 486. Faced with differing testimony regarding whether a new liquor store would add to the problem of teenage drinking, the court found that the testimony of the school officials was more probative than the testimony of others who thought that the new store would not have an effect on teenage drinking. Decker, 700 P.2d at 487. Although the school was more than 200 feet away from the proposed liquor store (which under 04.11.410 would require the Board to deny the application because the license is within 200 feet of s school ground or church), the court found that the proximity to the school coupled with "some additional evidence disclosing a potential threat to the public interest will justify the denial of a license." Id. citing Kirby_ v. Alcoholic Beverage Control Appeals Board,498 P.2d 1105, 1110 (Cal. 1972). Thus in reviewing the Board's findings regarding whatwas in the public interest, the Court evaluated the evidence to determine what facts were most persuasive as to the public benefit. The weight of the evidence before the Board does not support a finding that it is in the best interests of the public to approve the application. In fact, a review of the evidence shows that relocation is in fact noc in the best interests of the public. Public opposition to the relocation application was extensive, well substantiated, and addressed many different concerns of the public. Eight letters of objection from citizens of Sitka discussed proximity to Mt. Edgecumbe high school, a native boarding school 22 located across the water from the proposed site, safety, vandalism, noise effects on the residential neighborhood including the addition of late night traffic and noise along the street, distrust of the applicant's representations and dealings with the neighbors, and e effect on STA's Healing House where alcohol related social problems are addressed.. Exc 55 -66; 69 -77. Public testimony echoed the concerns outlined in the letters, and also addressed concerns about the inquiry given the matter by the city assembly, and the lack of deference given to STA. Tr. 6 -15, 20 -24, 28-41. Public testimony before the Board even contained testimony by a city assembly member who urged the Board to deny the application, because it was not in the public interest. Tr. 32 -33. Public opposition also included both written and oral testimony from STA, the tribal government of over 3,000 tribal citizens, many of whom live in Sitka. STA opposed the application because of its proximity to the STA Healing House and Tribal Offices, and because the relocation will be within the Sitka Indian Village among other reasons. See Tr. 10 -15; Exc. 70-81. However, the Board did not give any deference to or ' apparent consideration of STA's position. Although only four people testified in favor of the application at the hearing and nine people, including two representatives from STA, teistified against the application, the Board approved the application. Tr. 1-59. Furthermore, becauef,the Board so clearly disregarded its obligation to consider the evidence before it in this case, STA asks this court to "augment the agency record, in whole or in part, or hold a hearing de novo" as allowed under AS 44.62.570(d). Id. This is appropriate under the facts of this case because the Board failed to consider any of the evidence before it except for that Mr. Bellows was a serious 23 applicant. See Tr. 57. Thus, the only way all of the relevant ervidence before the Board can be properly considered is for this court to hold a hearing de novo or remand this proceeding with instructions to consider all the relevant evidence before it in making its decision. This court should apply the vweight of the evidence standard in this casebecause the Board failed to make a finding regarding the public interest, the Board had extensive amounts of evidence before it and making a finding regarding the public interest demands such a searching inquiry. Based on the weight of the evidence before the Board in this case, the best interests of the public supports denying the application. Based on the egregious nature of the Board's failure to make any real inquiry into whether approving the application was in the best interests of the public, this court should review the evidence before the Board independently. 1V. The Board failed to hold a fair hearing, Pursuant to AS 44.11.570, "inquiry into an appeal [of a final agency decision] extends to... (2) whether there was a fair hearing." Id. The Board failed to hold a fair hearing regarding Pilot House's relocation application. Many persons speaking at the hearing were unidentified or unidentifiable, thus making it difficult to determine who was speaking and whether they were a decision maker or a public participant. Throughout the hearing, the members of the Board were never identified Tr. 1 -59. Thus, no one participating via teleconference from Sitka or Juneau was aware of who they were appearing before or who was making the ultimate 24 decision. Furthermore, before speaking, many of the speakers from Fairbanks failed to introduce themselves and several comments are indiscernible in the transcript. See Tr. 45, 46, 52, 55, 57. Furthermore, the Board failed to fulfill many of its administrative duties at the hearing. First, the Board failed to either enter into a careful afi reasoned de1ibeiafion or issue a decisional document which reflected its reasoning. See discussion infra Part I. Second, the Board failed to create an adequate record of its reasoning for approving the application. See discussion infra Part I. Third, the Board failed to make its decision based on the evidence before it. See discussion infra Part III. Fourth, the Board failed to make its decision based on what was in the best interests of the public. See discussion infra Part II. Rather, in approving the application the Board made its decision based on what was in the best interests of the applicant, Mr. Bellows, and utterly failed to discuss any of the other evidence before it. See Tr. 57 -60. For these reasons, the Board failed to hold a fair hearing. Thus, this court should remand this proceeding to the Board with directions to fulfill its administrative duties by clearly identifying the speakers before the Board and the Board members, considering all of the evidence before it, making a decision based on what is in the public interest, and creating an administrative record that adequately reflects the Board's reasoning. 25 V. The Board abused its discretion by failing under Title Four to recognize Sitka Tribe of Alaska as a local governing body as defined by AS 04.21.080(b)(16). In determining that STA was not a local governing body, the Board erred in interpreting AS 04.21.080(b)(16). That erroneous interpretation constitutes an abuse of discretion under AS 44.62.570(b)(3) ( "the agency has not proceeded according to law" Id. In reviewing administrative agency's interpretation of law, the Alaska Supreme Court recognizes two types of review. When reviewing questions of law "in which the particularized experience and knowledge of the administrative personnel goes into the determination," this court should give deference to the agency's interpretation. Kelly, 486 P.2d at 916. However, when this court reviews questions of law "in which knowledge and experience in the industry affords little guidance toward a proper consideration of the legal issues," this court is not bound by the agency's interpretation and can substitute its judgement for that of the agency. Kelly at 916. In Kelly, the Supreme Court noted that this second type of review, substitution of judgement, is appropriate in cases involving "statutory interpretation or other analysis of legal relationships about which courts have specialized knowledge and experience." Thompson, 975 P.2d at 688 quoting Kelly, at 916. Therefore, because it involves a question of statutory interpretation, this court can and ought to independently determine whether STA qualifies as a local governing body. That determination involves a legal question in which courts have specialized knowledge and the Board does not. 26 In determining whether STA qualifies as a local governing body, this court must interpret AS 04.21.080(b)(16). When interpreting statutes, a reviewing court should look first to the language of the statute. University of Alaska v. Geistauts, 666 P.2d 424, 428 n.5 (Alaska 1983); Ward v. State, 758 P.2d 87, 89 n.5 (Alaska 1988): Furthermore, "if the meaning of a statute is plain, it should be enforced as it reads without judicial modification or construction." Municipality of Anchorage v. Sisters of Providence in Washington, Inc., 628 P.2d 22, 27 (Alaska 1981) 21_,Lot_ing Horwitz v. Alaska Bar Association, 609 P.2d 39, 41 (Alaska 1980). In this situation, STA qualifies as a local governing body under the plain meaning of the statute. The statute defining local :governing body says "a local governing body means, as appropriate, a city council, borough, assembly, or .a traditional village council, but does not include a corporation established under the Alaska Native Claims Settlement Act." AS 04.21.080(b)(16). Thus for STA to qualify as a local governing body, STA must be a traditional village council, and must be considered appropriate under the facts of this case. STA is a traditional village council, as that term is used in Title Four. The term traditional village council is not referenced anywhere else in Title Four other than in the definition of local governing body under AS 04.21..080(b)(16). See 04.06.010- 04.21.080. In determining what constitutes a traditional village council, this court should look first to its ordinary meaning. The statute notes that ANSCA corporations do not qualify as a local governing body. See AS 04.21.080(b)(16). This signifies that the Legislature contemplated that only native governments can qualify as local governing bodies. 27 STA is a native government. In 1934, Congress passed the Indian Reorganization Act (IRA). Indian Reorganization Act of June 18, 1934, 25 USC 461 et. seq., as amended, 25 USC 464 (2000). Under this Act, Alaska villages could organize as governments and receive federal recognition as tribal governments. See id. STA organized itself a tribal government under this statute in 1938, as the Sitka Community Association. See Appendix A. Furthermore, STA is the appropriate local governing body under the facts of this case. The qualifying language "as appropriate" in the definition of local governing body indicates that different local governing bodies may appropriate 'in different situations. Here, STA is the appropriate local governing body because it is the government responsible for matters within the Sitka Indian Village where Pilot House seeks to relocate.. First, STA is a federally recognized tribal government in Sitka which has the responsibility to oversee matters within the Sitka Indian Village. As such it has the responsibility to represent its more than 3,000 citizens. Furthermore, STA's tribal constitution, which has been approved by the federal government, contains several provisions related to STA's oversight responsibility toward the Indian Village. Article II of the Sitka Tribal Constitution states that the jurisdiction of STA shall extend to all lands constituting the Indian Village of Sitka; article VII § 1(h) empowers the Sitka Tribal Council to manage, lease and otherwise deal with Tribal or other property, and 28 protect and preserve the tribal property under the jurisdiction of the tribe; subsection (m) to provide for the maintenance of law and order including through the establishment of an appropriate Tribal judicial system; subsection (q) to zone, exercise the power of eminent_ domain and otherwise regulate land use within those areas under___ the jurisdiction of the tribe; and subsection (r) to regulate inheritance among citizens and their children. See Appendix A. Second, the federal government recognizes STA's authority over matters within the Sitka Indian Village. Since time immemorial STA tribal citizens have inhabited the Sitka Indian Village. In 1946, the Sitka Indian Village was established as a federal townsite. When the federal trustee handed out deeds to the Sitka townsite, many of those deeds were given to Sitka tribal citizens in restricted status. Today, 42 properties within the Sitka Indian Village remain in restricted status under the Townsite Act. Townsite Act of May 25, 1926, 43 U.S.C. 733 -36, as amended February 26, 1948, 43 U.S.C. 737. Since 1995, STA has assumed governmental oversight over these properties within the Sitka Indian Village through a Self- Governance compact with the federal government. These restricted properties within the Sitka Indian Village are not "governed" in any manner by the City of Sitka. By virtue of their restricted status, local taxing, zoning and other city ordinances do not apply to them. See 25 CFR §1.4. Furthermore, the City of Sitka and the State of Alaska recognize STA as a government. The City of Sitka has entered into a memorandum of understanding with 7 In this argument, STA is no g that the Sitka Indian Village is Indian Country under 18 U.S.C. 29 STA recognizing STA's governmental nature over matters important to tribal citizens. See Appendix 13. The city of Sitka has deferred to STA regarding matters within the Sitka Indian Village such as repaving roads with the Sitka Indian Village. See Appendix C. The city of Sitka has also recently recognized STA's governmental status by entering into a payment for services agreement with STA over properties owned by STA within the Sitka Indian Village. See Appendix D. Just last year, the State of Alaska entered into the Millenium agreement with the 227 federally recognized tribes in Alaska, recognizing their sovereign status. See Appendix E. STA is the appropriate local governing body under the facts of this case because Pilot House seeks to relocate from outside the Sitka Indian Village to inside the Sitka Indian Village. As STA is recognized by the federal government, the State of Alaska and the City of Sitka as a government and STA has responsibility over most matters within the Sitka Indian Village, STA is the only appropriate local governing body under the plain meaning of that term in the statute. The statutory context of Title Four also supports STA being treated as a local governing body under the facts of this case. AS 04.11.480 allows a local governing body to protest the relocation of a beverage dispensary license. See id. If the board receives a protest, "the board shall deny the application or continued operation unless the board finds that the protest is arbitrary, capricious, and unreasonable." AS 04.11.480(a). §1151. 30 In addition to protests by appropriate local governing bodies, the statute provides that any person can object to the transfer of a license and the Board is only required to consider these objections. AS 04.11.470. However, if a local governing body protests a relocation application, the Board is required to deny the relocation unless such protest is arbitrary, capricious and unreasonable. AS 04.11480(a). No similar requirement applies to objections filed by citizens. Thus recognizing STA as the appropriate local governing body in this situation is the difference between treating STA as any citizen and treating STA as a government. As STA is a tribal government representing over 3,000 tribal citizens, its statement should be given more weight than that of an individual. Thus, under the statutory context, the only way STA can be treated as the federally recognized tribal government responsible for protecting the health, welfare and interests of over 3,000 tribal citizens is to be considered a local governing body. Furthermore, while the City of Sitka has not acted as a local governing body in this case, STA has acted as a local governing body and has followed the procedures for a local governing body protest under 15 AAC 104145. See 15 AAC 104145. Although the City heard public testimony regarding the relocation application, it failed to take any action regarding the application. See Exc. 3 -6. STA heard public testimony on the relocation application at a public meeting, which was advertised in the local newspaper. See Exc. 61. At the meeting, six members of the public testified and all six opposed the relocation application. See Exc. 61. Although Mr. Bellows was provided notice of STA's meeting, and thus was afforded a reasonable opportunity to defend his 31 application as required by 15 AAC 104.145(d), he chose not to attend. See 15 AAC 104.145(d), Exc. 80 -81. After receiving testimony, the STA Tribal Council voted to protest the application based on logical grounds that have a reasonable basis in facts which include both public policy and facts that render this particular application _ objectionable. See Exc. 70 -79,15 AAC 104.145(a), (e). STA then drafted a written protest noting its concerns, filed it with the Board and sent a copy to the applicant as required by 15 AAC 104.145(a). See Exc. 70 -80,15 AAC 104.145(a). However, the Board failed to even consider whether STA is a local governing body. See Tr. 59. Under the substitution of judgement test, this court can interpret AS 04.21.080(b)(16) independently of the Board. As such, this court should determine that STA qualifies as a local governing body under AS 04.21.080(b)(16) because STA is the only appropriate local governing body under the facts of this case. First, STA is a local governing body, because it qualifies as a traditional village council under the law. Second, STA is appropriate because Pilot House seeks to relocate within the Sitka Indian Village, and STA is the only government responsible for most matters within the Sitka Indian Village, and STA is the only local governing body to act in this case. As such, this proceeding should be remanded with directions for the Board to recognize STA as a local governing body and to proceed as such. CONCLUSION For the foregoing reasons, the Sitka Tribe of Alaska respectfully requests that this court reverse the Board's decision to approve the relocation of the Pilot House's 32 beverage dispensary license based on the evidence before the Board, or in the alternative remand the case back to the Board with directions that the Board proceed according to the law. Respectfully Submitted this 31st day of December, 2001 33 ESSICA GREATREX BROWN 1 ORNEY FOR SITKA TRIBE OF ALASKA 456 KATLIAN STREET SITKA, ALASKA 99835 ALASKA BAR # 0107046 the of KENAI, ALASKA January 29, 2009 Jessica G. Perkins 110 Rands Drive Sitka AK 99835 l Village with a Past, Gi with a Future 210 Fidaigo Avenue, Kenai, Alaska 99611 -7794 Telephone: (907) 283 -7535 / Fax: (907) 283 -3014 www.ci.kenai.ak.us RE: City Attomey position — City of Kenai Dear Ms Perkins: We are in receipt of, and thank you for submitting, your application for consideration regarding our City Attorney position. We will begin our review process in February. Please let us know if you have any questions. CITY OF KEN i Graves Ci y . Attorney SUPPLEMENTAL FROM JESSICA PERKINS Lee Salisbury From: Jessica Perkins igreatrex1976 @gmail.com] Sent: Thursday, February 26, 2009 8:50 AM To: Lee Salisbury Subject: Re: Kenai City Attorney Ms. Salisbury: I have limited experience with civil and criminal trials in the state courts. My experience in this area has been focused on • administrative proceedings (before various Boards, Commissions and local government bodies- tike the Board of Fisheries, the local planning commission, City Assembly) • tribal court: I clerk and provide legal advice to tribal citizens and Tribal judges regarding cases in our tribal court. Cases include our minor consuming diversion program, guardianships, adoptions and domestic violence protective orders. • native allotment adjudication and federal probates before a federal administrative law judge Jessica. On Wed, Feb 25, 2009 at 4:33 PM, Lee Salisbury <Isalisbury@ei.kenai.ak.us> wrote: Ms. Perkins, We are in the process of reviewing resumes for the position of Kenai City Attorney. Could you please let us know regarding your experience in civil or criminal trials. Thank you in advance for your assistance with this request. Lee Salisbury Legal Admin. Asst. City of Kenai 210 F idalgo Avenue Kenai AK 99611 Tel. 907 283 -8225 Fax 907 283 -3014 CONFIDENTIALITY NOTICE: This electronic mail transmission may contain legally privileged information, The information • intended for the use of the individual or entity named above. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution or taking any action based on the contents of this electronic mail is strictly prohibited, if you have received this electronic mail in error, please contact sender and delete all copies. Gary L. Poorman Attorney at Law 609 Laurel Drive Kenai, Alaska 99611 (907)395 -4066 Cary Graves, City Attorney 210 Fidalgo Avenue Kenai, Alaska 99611 Re: City Attorney Position Dear Mr. Graves: RECEIVED KENAI LEGAL DEPT January 30, 2009 Enclosed please find my resume for consideration of the position of Attorney for the City of Kenai. I purchased the residence on 609 Laurel Drive after relocating to the City of Kenai in October 2007. I have been an attorney for Twenty -five (25) years and enjoy working with people to solve problems on a daily basis. I have always enjoyed drafting contracts and legal documents to reflect the agreements of parties. I believe my legal experience has enabled me to become a very good negotiator and valued employee for the State of Alaska. I have previously been a member of council and been assigned to the police committee for the Village of Metamora, Ohio and found both positions to be very rewarding I would be honored to be the Attorney for the City of Kenai and believe the position would be a great opportunity for me to demonstrate my ability to communicate and work with not only members of city government but the general public. If the City of Kenai is interested in me as a potential candidate for this position, ¶ would be pleased to accommodate you in arranging for a time to meet for an interview. Since ly t — }- Gary L. Poorman Encl: resume Gary L. Poorman 609 Laurel Dr. Kenai, Alaska 99611 907 - 395 -4066 gl pestplan@ fulton -n et. com Education: THOMAS M. COOLEY LAW SCHOOL Lansing, Mich. Juris Doctor, January, 1984 UNIVERSITY OF TOLEDO Toledo, Ohio B. Ed. Degree, June, 1977 Major: Speech- Communication EVERGREEN HIGH SCHOOL Metamora, Ohio Employment: ASSISTANT DISTRICT ATTORNEY 2007- PRESENT State of Alaska, Department of Law Kenai, Alaska Responsible for prosecuting felonies, misdemeanors for The City of Kenai and Seward, Alaska ASSISTANT MUNICIPAL PROSECUTOR 2006 -2007 Municipality of Anchorage Anchorage, Alaska Prosecute misdemeanors and Domestic Assault cases PRIVATE LAW PRACTICE 1992 -2006 Gary L. Poorman, Esq. Wauseon, Ohio Estate Planning Services, Real Estate, Family Law, Adoption, Guardian ASSISTANT PROSECUTING ATTORNEY 1986 -1992 Fulton County Prosecutors Office (full -time) Wauseon, Ohio Prosecute felonies, misdemeanor, abuse, neglect and dependant children, conduct Grand Jury proceedings, serve as special. prosecutor PRIVATE LAW PRACTICE Gary L. Poorman, Esq. Wauseon, Ohio General Practice including criminal, traffic, felony, misdemeanor cases 1985 -1986 Gary L. Poorman 609 Laurel Dr. Kenai, Alaska 99611 907- 395 -4066 glpestplan@fulton-net.com Employment: PRIVATE LAW PRACTICE (cont.) Gregory W. Grover, Attorney at Law Morenci, Michigan General Practice of Law 1.984 -1985 Military: United State Air Force 555th Air Force Band 1972 -1981 Ohio Air National Guard Rank: Staff Sergeant Licenses: Pilot, single engine Ham Radio References: Available upon request Lee Salisbury fom: Cary Graves ent: Monday, February 02, 2009 8:01 AM o: Lee Salisbury Subject: FW: Emailing: Writing Sample Keith opp to suppress (PBT FST refusal) and 3 ref. Attachments: Writing Sample Keith opp to suppress (PBT FST refusal).doc Original Message From: Poorman, Gary L (LAW) [ mailto:gary.poorman @alaska.gov] Sent: Saturday, January 31, 2009 2:18 PM To: Cary Graves Subject: Emailing: Writing Sample Keith opp to suppress (PBT FST refusal) and 3 ref. «Writing Sample Keith opp to suppress (PBT FST refusal).doc » Dear Mr. Graves; I have enclosed a copy of a writing sample as an attachment for your review. I would also like to report that the following three people as references: (1) J. Patrick Hanley, District Court Judge (907)264 -0643 825 W. 4th Ave. Anchorage, Alaska 99501 2) Nancy 3. Nolan, District Court Judge (907)264 -0643 825 W. 4th Ave. Anchorage, Alaska 99501 (3) Daniel B. Lord, M Psychology, PhD Education, Public Defender /OPA (907) 274 -4504 4710 Sportsman Dr. Anchorage, Alaska 99502 Thank you, Gary L. Poorman The message is ready to be sent with the following file or link attachments: Writing Sample Keith opp to suppress (PBT FST refusal) Note: To protect against computer viruses, e -mail programs may prevent sending or receiving certain types of file attachments. Check your e -mail security settings to determine how attachments are handled. IN THE DISTRICT COURT FOR THE STATE OF ALASKA THIRD JUDICIAL DISTRICT AT SEWARD STATE OF ALASKA, ) ) Plaintiff, ) ) VS. ) ) JAMES W. KEITH JR., ) Defendant. ) ) Case No. 3SW -08 -359 CR. ORDER DENYING DEFENDANTS MOTION TO SUPPRESS VRA CERTIFICATION I certify that this document and its attachments do not contain (I) the name of a victim of a sexual offense listed in AS 12.61.140 or (2) a. residence or business address or telephone number of a victim of or witness to any crime unless it is an address used to identify the place of a crime or it is an address or telephone number in a transcript of a court proceeding and disclosure of the information was ordered by the court. Based upon the State's Opposition to Defendant's Motion to Suppress, and the Court having been fully appraised of the merits of the Defendant's Motion, finds the same without merit and IT IS HEREBY ORDERED that the Defendant's Motion is DENIED. DATED at Seward, Alaska this day of , 2009. DISTRICT COURT JUDGE IN THE DISTRICT COURT FOR THE STATE OF ALASKA THIRD JUDICIAL DISTRICT AT SEWARD STATE OF ALASKA, ) ) Plaintiff, ) ) vs. ) ) JAMES W. KEITH JR., ) ) Defendant. ) ) Case No. 3SW-08-359 Cr. STATE'S OPPOSITION TO MOTION TO SUPPRESS VRA CERTIFICATION I certify that this document and its attachments do not contain (1) the name of a victim of a sexual offense listed in AS 12,61.140 or (2) a residence or business address or telephone number of a victim of or witness to any crime unless it is an address used to identify the place of a crime or it is an address or telephone number in a transcript of a court proceeding and disclosure of the information was ordered by the court. The State of Alaska, through undersigned counsel, hereby enters an Opposition to Defendant's Motion to Suppress. An Evidentiary Hearing is necessary to develop the facts surrounding Defendant's Motion. The State believes that the facts will show the officer obtained the evidence in this case pursuant to a lawful traffic stop. Facts: On September 11, 2008 at 1:10 am, Officer Armstrong of the Seward Police Department observed a vehicle southbound on 4th Avenue in Seward, Alaska. The vehicle turned right onto Washington Street without using a turn signal and the passenger side brake light was inoperative and failed to illuminate when the vehicle slowed prior to the turn. The vehicle turned into an alley between 3rd and 4th Avenue and then proceeded west on Adams street. The vehicle turned north on 2nd Street and again failed to use the turn signal or have the passenger side brake light illuminated prior to the turn. The vehicle was stopped by Officer Armstrong at 2 "d and Jefferson Street for the traffic violations. The driver was identified as James Williams Keith Jr. and after being advised that his brake light was out, Officer Annstrong detected an order of alcoholic beverage coining from the vehicle. The Defendant exhibited poor manual dexterity when he almost dropped his operator license while handing it to the officer and when he exited the vehicle to view the inoperative lights, he swayed back and forth while standing, exhibited slurred speech, glassy bloodshot eyes and had a strong odor of alcoholic beverage emitting from his person. The Defendant first stated he had only drank 2 beers then stated, "1 sat there for three of four hours, I had a few beers." The Defendant refused to do any field sobriety tests or a PBT stating, "No, I just drank a beer and so you'll take me to jail." Officer Armstrong and CPL Messmer concluded that the Defendant appeared to be under the influence but Officer Armstrong offered to wait 15 minutes before offering the PBT to the Defendant again to determine whether he could safely operate the vehicle. The Defendant refused the PBT again so he was arrested for DUI and cited for the PBT refusal. The Defendant also refused to submit to the Datamaster and was cited for refusal to provide a sample for the Datamaster. ARGUMENT The Defendant contends that Officer Armstrong lacked probable cause to arrest, therefore, he was not entitled to require the Defendant to submit to a preliminary breath test. The Defendant seems to suggest that the Officer was not constitutionally justified in requiring him to submit to a PBT because he did not witness the Defendant driving in an impaired manner. That is not the law. The courts have ruled that the temporary detention of an individual during the stop of an automobile by the police, even if for only a brief period and a limited purpose constitutes a seizure of the person within the meaning of the Fourth Amendment. See Delaware v. Prouse 440 U.S.648, 653; 99 S.Ct.1391, 1395; 59 Led. rd 660 (1979) United States v. Martinez - Fuerte 428 U.S. 543, 556; 96 S.Ct. 3074,3082; 49 Led. 2°d.1116 (1976). The Forth Amendment of the U.S. Constitution protects persons from unreasonable searches and seizures. Therefore, the question is, whether the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred? The answer is yes. see Prouse, Supra @ 659, 99SCt. @ 1399; Pennsylvania v. Mimms 434 U.S. 106, 109; 98 S.Ct. 330, 332; 54 Led.2"d 331 (1977) The Supreme Court of the United States has affirmed this ruling in Whren v. United States 517 U.S. 806; 116S.Ct. 1769 0996) The only remaining question is, whether Officer Armstrong had probable cause to believe that a traffic violation had occurred at the time he stopped the Defendant on September 11, 2008? A Traffic Violation Legally Justified the Stop The Defendant's vehicle was stopped based on a violation of the Alaska Administrative Code, 13 AAC 02.215 "Turning movements and required signals ", 13AAC 04.025 (a) "Taillights." and 13AAC 04.035 "Stop lights ". Under Alaska law, a police officer may legally stop a vehicle for violation of traffic laws so long as the stop is not a pretext for a search or investigatory stop that would not otherwise be permissible under the circumstances. Brown v. State, 580 P.2d 1174, 1176 (Alaska 1978). Failure to signal prior to turning and failure to signal prior to stopping or suddenly decreasing speed are traffic violations. The Alaska Administrative Code requires, via 13AAC 02.215 Turning movements and required signals, that: "(a) No person may turn a vehicle or move right or left upon, onto or off a roadway without giving an appropriate signal in the manner provided in this section and it otherwise appears reasonably safe to make the movement. (b) A signal of intention to turn or move right or left when required must be given continuously during the last 100 feet traveled by the vehicle before turning, except as provided in 13 AAC 02.400(0 and must be discontinued as soon as practicable after completing the turn. (c) No person may stop or suddenly decrease the speed of a vehicle without first giving an appropriate signal in the manner falsely reported that he lived at the location of the stop when in fact he lived several blocks from that location on Vista Drive in Seward, Alaska. It was not until this point, that Officer Armstrong requested the Defendant to submit to a PBT. The Defendant was advised of the consequences of the refusal before he refused stating, "No, I just drank a beer and so you'll take me to jail." Officer Armstrong offered to wait 15 minutes before administering the PBT but the Defendant still refused advising, he didn't want to incriminate himself by giving a breath sample for the PBT or Datamaster. I f the observations of Officer Armstrong do not give rise to probable cause to believe that a persons ability to operate a motor vehicle is impaired by ingestion of an alcohol beverage then, the standard for probable cause must require the intoxicated driver to either drive off the road or crash his vehicle into the person or property of another before an officer is justified in requesting a driver to submit to a PBT. That would also mean that if an officer observed a person who was falling down drunk, stumble over to their car and start the engine, the officer would not have probable cause to stop the person from driving off or request the person to submit to a PBT., but would be required to follow the car until the driver demonstrated they could not safely drive the car before having probable cause to require submission to a PBT. The State submits that Officer Armstrong had probable cause to believe the Defendants ability to operate a motor vehicle was impaired for the 7 reasons specified above and was not required to wait until the Defendant and or the public was put in jeopardy before requiring submission to a PBT. The privilege to drive on the Alaska highways is granted by the State of Alaska. One of the conditions of exercising that privilege is that a driver shall be considered to have given implied consent to submit to a preliminary breath test to determine the alcohol content of the persons blood or breath whenever an officer has probable cause to believe the drivers ability to operate the motor vehicle in a safe manner is in question. The seven (7) observations of Officer Armstrong are the reasons why this Officer had probable cause to believe that this Defendants ability to safely operate this motor vehicle were in question. Officer Armstrong, didn't "jump the gun ", as stated by the Defendant, when the officer requested him to submit to a PBT. He had probable cause to believe this Defendants ability to operate a motor vehicle was impaired because of his ingestion of alcoholic beverage and probably saved someone from being injured or killed by removing this Defendant from the Alaska Highways that morning. The Alaska Implied consent law states at AS 28.35.031(b) "a person who operates or drives a motor vehicle in this state or who operates an aircraft or watercraft shall be considered to have given consent to a preliminary breath test for the purpose of determining the alcoholic content of the person's blood or breath. A law enforcement officer may administer a preliminary breath test at the scene of the incident if the officer has probable cause to believe that a person's ability to operate a motor vehicle, aircraft, or watercraft is impaired by the ingestion of alcoholic beverages and that the person (I) was operating or driving a motor vehicle, aircraft, or watercraft that is involved in an accident.; (2) committed a moving traffic violation or unlawfully operated an aircraft or watercraft;* * * .at -1,) was operating or driving a motor vehicle in violation of AS 28.35.029 (a)." (Note: open container) The seven (7) observations specified above led this Officer to believe that this Defendant may not be capable of driving safely due to his ingestion of alcoholic beverages and as a result requested him to submit to a PBT. The Defendant chose not to confirm his ability to safely drive this motor vehicle by refusing to submit to the PBT. which resulted eventually in his arrest for DUI and Refusal to submit to a chemical test. CONCLUSION The Defendant contends the Officer had no probable cause to arrest him for DUI or to require submission to a PBT. The Officer had probable cause to stop the Defendant for violating traffic laws and the Seven (7) observations of the officer which resulted from the contact with the Defendant during the stop led the Officer to have probable cause to believe the Defendant was driving under the influence of an alcoholic beverage. After The Defendants' refusal to perform FST's he was presented with the option of submitting to a PBT. When the Defendant refused to submit to the PST he was arrested for DUI and Refusal to submit to a chemical test because he also refused to provide a sample for the Datarnaster. It is the States contention that when an officer observes a traffic violation and upon contact with the driver becomes aware that the driver is probably under the influence of alcoholic beverage based upon such things as specified in this case, that there is pro'ba'ble cause to require the driver to submit to a PBT before allowing his to continue driving on the highway. The Court has no facts other that the Officers' affidavit to determine the question of law presented therefore, the State moves the Court to set this case for an evidentiary hearing or in the alternative, deny the Defendant's Motion to Suppress. DATED at Kenai, Alaska this day of JANUARY, 2009. This is to certify that a copy of the foregoing is being delivered via courier service to the following attorneys or parties of record: Robinson & Associates office. Name Date TALIS J. COLBERG ATTORNEY GENERAL By: Gary L. Poaman, ABA #0609054 Assistant District Attorney IN THE DISTRICT COURT FOR THE STATE OF ALASKA THIRD JUDICIAL DISTRICT AT SEWARD STATE OF ALASKA, ) ) Plaintiff, ) ) VS. ) ) JAMES W. KEITH JR., ) ) Defendant. ) ) Case No. 3SW -08 -359 CR. ORDER DENYING DEFENDANTS MOTION TO SUPPRESS VRA CERTIFICATION certify that this document and its attachments do not contain (1) the name of a victim of a sexual offense listed in AS 12.61.140 or (2) a residence or business address or telephone number of a victim of or witness to any crime unless it is an address used to identify the place of a crime or it is an address or telephone number in a transcript of a court proceeding and disclosure of the information was ordered by the court. Based upon the State's Opposition to Defendant's Motion to Suppress, and the Court having been fully appraised of the merits of the Defendant's Motion, finds that the issue of probable cause for the stop can only be determined by evidentiary hearing therefore, IT IS HEREBY ORDERED that an Evidentiary Hearing be set by the Court for 2009 at DATED at Kenai, Alaska this day of , 2009. DISTRICT COURT JUDGE Ronald P. Ringel 1940 N. Finger Cove Dr. Palmer, AK 99645 (907) , 822 -5566 KEL�?,,L L_ DEPT„ ringel.pauison @gmail.com January 15, 2009 Lee Salisbury Legal Department Administrative Assistant City of Kenai 210 Fidalgo Avenue Kenai, AK 99611 -7794 Re: City Attomey Position Dear Mr. Salisbury: Please consider me a candidate for the City Attorney position. I believe my past employment and experiences would make me a significant asset to the City in the position. While in Idaho, I engaged in a general civil practice, with a municipal focus. The firm represented several local govemment entities, and I was closely involved in advising them on a wide array of issues, including planning, land use, and employment. I drafted ordinances and resolutions, and interfaced with outside counsel. For some of our municipal clients, the work included litigation as well. I also engaged in litigation and appellate work relating to business law, real estate, and bankruptcy. Additionally, I was active in municipal bond law, and, at one point, was listed in the 'Red Book" as a municipal finance attorney. While clerking for an appellate court judge, I researched and wrote memoranda to the court recommending the outcome on a wide variety of cases, including a large multi -party case involving a petroleum spill, and local govemment taxation of property on the Hanford Nuclear Reservation. Virtually the entire job consisted of legal research and writing. While attending law school, I worked for two years as a teaching assistant for the legal research and writing class. Besides the teaching experience, helping others with their writing improved my own writing skills. I would be happy to provide further information to assist you in your decision. I would like to further discuss the position, and am available to meet at your convenience. Sincerely yours; 7 Ronald P. Ringel RONALD P. RINGEL 1940 N. Finger Cove Dr. Palmer, AK 99645 (907) 982-2326 ringel.paulson ©gmail.com PROFESSIONAL EXPERIENCE: Innkeeper August 2004 — Present The Point Lodge, LLC, Lake Louise, Alaska. Engaged in virtually every facet of running a lodge, from legal and accounting to diesel engine repair. Attorney July 1996 — July 2004 Wetzel & Wetzel, P L L C , Coeur d'Alene, Idaho. General civil practice emphasizing, local government, municipal bond law, real estate, real estate development, construction, business, and bankruptcy. Law Clerk August 1993 — June 1996 Judge Ray E. Munson, Washington Court of Appeal, Div. III, Spokane Washington. Researched and analyzed issues on appeal. Drafted memoranda for panel of judges. Recommended outcome. Consulted with judges. Drafted opinions. Certified Public Accountant May 1985 — August 1990 D.R. Burnett & Associates, P.S., Spokane, Washington. Stockholder. Emphasis in auditing and Securities and Exchange Commission filings. Clients included mining, waste -to- energy, engineering services, retail, governmental, and non -profit entities. Deep Sea Diver, Underwater Welder, Life Support Technician 1971 -1982 Taylor Diving & Salvage Co., Inc. New Orleans, Louisiana. World -wide travel, customer relations, and supervisory experience. EDUCATION: University of Idaho College of Law J.D., May 1993. Eastern Washington University B.A. Accounting and Management Information Systems, 1986. AFFILIATIONS: Alaska Bar Association, Idaho State Bar Association, Greater Copper Valley Chamber of Commerce, Mat -Su Convention and Visitors Bureau. Emergency Trauma Technician with the Lake Louise First Responders. RONALD P. RINGEL 194014. Finger Cove Dr. Palmer, AK 99645 (907) 982-2326 ringel,paulson ©gmail.cm PROFESSIONAL REFERENCES: Steven C. Wetzel Wetzel, Wetzel, Bredeson & Holt, PLLC 1322 W. Kathleen Ave., Ste 2 Coeur d'Alene, ID 83815 (208) 667 -3400 Monica Wassen Washington Court of Appeals, Div. 111 500 N. Cedar Spokane, WA 99201 (509) 456 -3082 Kevin Holt Wetzel, Wetzel, Bredeson & Holt, PLLC 1322 W. Kathleen Ave., Ste 2 Coeur d'Alene, ID 83815 (208) 667 -3400 James W. Henley, CPA 2140 Lawrence Street Port Townsend, WA 98368. (360) 385 -3993 RONALD P. RINGEL 1940 N. Finger Cove Dr. Palmer, AK 99645 (907) 982 -2326 ringel.paulson @gmail.cm PROFESSIONAL REFERENCES: Steven C. Wetzel Wetzel, Wetzel, Bredeson & Holt, PLLC 1322 W. Kathleen Ave., Ste 2 Coeur d'Alene, ID 83815 (208) 667 -3400 Monica Wassen Washington Court of Appeals, Div. III 500 N. Cedar Spokane, WA 99201 (509) 456 -3082 Kevin Holt Wetzel, Wetzel, Bredeson & Holt, PLLC 1322 W. Kathleen Ave., Ste 2 Coeur d'Alene, ID 83815 (208) 667 -3400 James W. Henley, CPA 2140 Lawrence Street Port Townsend, WA 95368. (360) 385 -3993 Steven C. Wetzel, ISB #2988 Ronald P. Ringel, ISB #4797 WETZEL & WETZEL, RL.L.C. 1322 Kathleen Ave., Suite 2 Coeur d'Alene, Idaho 83815 -8339 Telephone: (208) 667 -3400 Facsimile: (208) 664 -6741 Attorneys for Susan Dredge IN THE DISTRICT COURT OF THE FIRST JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF KOOTENAI ) ) in The Matter Of The Estate Of VERNON ) Case No. CV 03-434 NEIL DREDGE, ) ) Deceased. ) ) ) MEMORANDUM IN SUPPORT OF MOTION TO COMPEL Susan Dredge propounded written discovery to the Personal Representative in this case on April 3, 2003 and on July 2, 2003. Responses were propounded on or about April 23, 2003 and July 31, 2003, respectively. The Personal Representative has failed to adequately respond to certain of the written discovery, through responses that are evasive or incomplete, or has inappropriately objected to the requests. MEMORANDUM IN SUPPORT OF MOTION TO COMPEL - 1 ARGUMENT The Idaho Rules of Civil Procedure are essentially identical to the Federal Rules of the same subject, although Federal Rules are different in regards to timing and limitations. The case law on discovery has been in a rapid development, especially at the Federal level, over the last twenty years. It is now clear that a party must provide answers to written discovery which, as a whole, disclose a conscientious endeavor to understand the questions submitted and to answer those questions as fully as possible. Parrott v. Wilson, 707 F.2d 1262 (CA 11th 1983); Maddox V. Wright, 11 F.R.D. 170 (D.C. 1851). See generally. Wright and Miller, Federal Practice and Procedure, §2177. If a party objects to an Interrogatory that is overly broad or burdensome, such objection must make specific showing of the reasons why the Interrogatory should not be answered and the burden of proof is on the party who raises the objection. Sherman Park Community Association v. Wauwatosa Realty Co., 486 F.Supp. 838 (D.C. Wis. 1980). When designating documents to be produced under the Rule 34, a party need only to do so with 'reasonable particularity". See Wright and Miller, Federal Practice and Procedure §2211. A generalized designation is sufficient where the party from whom the discovery is sought and should have no difficulty in understanding what is wanted. Rick v. Dominion Mortgage and Realty Trust 442 F. Supp. 283 (D.C. N.Y. 1977). Items may be described by category, as long as the category itself is described with reasonable particularity. In Re Folding Carton Anti -Trust Litigation 75 F.R.D. 420 (D.C. III. 1977). In the present case, the Personal Representative has taken MEMORANDUM IN SUPPORT OF MOTION TO COMPEL - 2 considerable latitude in attempting to avoid answering properly brought written discovery. INTERROGATORIES INTERROGATORY NO. 4: Please identify all persons who had custody of the Vernon Neil Dredge's will dated December 31, 2002 from the time the will was executed until the will was lodged with the Court. Please also identify the time period that each person had possession of the will. ANSWER: The law offices of Lisa Holmes at Holmes Law Office, P.A., and the law office of Scot D. Nass at Paine, Hamblen, Coffin, Brooke & Miller LLP. The time frames are unknown. This answer is incomplete and, in fact, is an intentional refusal to answer. When the Personal Representative says "The time frames are unknown ", we find this impossible to believe. Even if the exact dates are unknown, a conscientious endeavor to answer would at least require approximate dates. Although the transcript of his deposition is currently sealed, Mr. Nass was able to state approximately when he received the will. Certainly, Ms. Hagen could ask Mr. Nass when he received the will. . The refusal to fully respond to this question is unacceptable and in violation of the Rules of Civil Procedure. INTERROGATORY NO. 5: Please explain all actions taken by the estate to obtain estimates of the estate tax liability of the estate under either or both wills filed with the court in this matter? ANSWER: Objection. This information is protected by the attorney /client privilege. INTERROGATORY NO. 6: Please explain in detail the results of any actions taken by the estate to obtain estimates of the estate tax liability of the estate under either or both wills filed with the court in this matter? ANSWER: Please see response to Interrogatory No. 5. Angela Dredge is a beneficiary of the Vernon Neil Dredge Estate, regardless of MEMORANDUM IN SUPPORT OF MOTION TO COMPEL - 3 which will is found to be effective. Susan Dredge is a beneficiary if the December 31, 2002 is invalid, and, under either will, she retains a community interest in most of the assets of the Estate. Anything done by the Personal Representative in regard to the estate tax liability of the Estate relates to all beneficiaries, not just the Personal Representative. Hiding the information is a breach of fiduciary duty, as the Personal Representative is obligated to act in the utmost good faith for all beneficiaries of the estate. Anyone interested in the will that may be affected by the estate tax has the right to know the results of that research. The attempt to cloak this information in attorney /client privilege, so that the beneficiaries do not know the results is clearly inappropriate. Further, the question is not limited to communications Mrs. Hagen may have had with Mr. Nass; instead, it asks about all actions taken to obtain to obtain an estimate of the estate tax liability. The interrogatory is proper, and the Personal Representative should be directed to answer. REQUESTS FOR ADMISSION REOUTE.ST FnR ADMISSION NO. 1: Admit that the will, attached hereto as Exhibit 1 was the valid will of Vernon Neil Dredge prior to December 31, 2002. RESPONSE: The Personal Representative objects to Request for Admission No. 1 as it calls for a legal conclusion. Further, Request for Admission No. 1 calls for privileged information. Further, the Personal Representative Lacks sufficient information to either admit or deny the request and therefore denies the same and leaves Contestant to her proof. The Personal Representative cannot make reasonable inquiry into the subject matter requested in Request for Admission No. 1 as that information is privileged between the decedent and whoever drafted Exhibit 1. The Personal Representative was not involved with the creation of Exhibit 1. REQUEST FOR ADMISSION NO. 2: Admit that the will attached hereto as Exhibit 1 was made with Vernon Neil Dredge's proper testamentary intent. MEMORANDUM IN SUPPORT OF MOTION TO COMPEL - 4 RESPONSE: The Personal Representative objects to Request for Admission No. 2 as it calls for a legal conclusion. Further, Request for Admission No. 2 calls for privileged information. Further the Personal Representative lacks sufficient information to either admit or deny the request and therefore denies the same and leaves Contestant to her proof. The Personal Representative cannot make reasonable inquiry into the subject matter requested in Request for Admission No. 2 as that information is privileged between the decedent and whoever drafted Exhibit 1. The Personal Representative was not involved with the creation of Exhibit 1. REQUEST FOR ADMISSION NO. 3: Admit that the will attached hereto as Exhibit 1 was made by Vernon Neil Dredge without undue influence. RESPONSE: The Personal Representative objects to Request for Admission No. 3 as it calls for a legal conclusion. Further, Request for Admission No. 3 calls for privileged information. Further, the Personal Representative lacks sufficient information to either admit or deny the request and therefore denies the same and leaves Contestant to her proof. The Personal Representative cannot make reasonable inquiry into the subject matter requested in Request for Admission No. 3 as that information is privileged between the decedent and whoever drafted Exhibit 1. The Personal Representative was not involved with the creation of Exhibit 1. REQUEST FOR,. ADMISSION NOT ° e mit that the will attached hereto as Exhibit 1 was made at a date and time in which Vernon Neil Dredge was competent to make such a will. RESPONSE: The Personal Representative objects to Request for Admission No. 4 as it calls for legal conclusion. Further Request for Admission No. 4 calls for privileged information. Further, the Personal Representative lacks sufficient information to either admit or deny the request and therefore denies the same and leaves Contestant to her proof. The Personal Representative cannot make reasonable inquiry into the subject matter requested in Request for Admission No. 4 as that information is privileged between the decedent and whoever drafted Exhibit 1. The Personal Representative was not involved with the creation of Exhibit 1. Rule 36(a) states that a party may request admissions on matters "that relate to statements or opinions of fact or of the application of law to fact." (emphasis added). The Requests require that Ms. Hagen apply the law to the stated facts, and she cannot object upon the grounds that they call for legal conclusions. Ms. Hagen also states that the requests call for privileged information, but does MEMORANDUM IN SUPPORT OF MOTION TO COMPEL - 5 not state the nature of the purported privilege. The attorney- client privilege is inapplicable because the requests do not ask about communications between Ms. Hagen and her attorney, and no other privilege would appear to be even remotely relevant. Finally, under Rule 36(a), a party "may not give lack of information or knowledge as a reason for failure to admit or deny unless the party states that the party has made reasonable inquiry ...." Clearly, Ms. Hagen did not do that. She states only that she "cannot" make reasonable inquiry. Susan Dredge suggests that most attorneys are aware of the testamentary exception to the attorney - client privilege, and would respond to a request from the personal representative of a deceased client. Ms. Hagen cannot claim lack of knowledge when she has not made any inquiry whatsoever. Further, to claim that she cannot admit whether Mr. Dredge was competent or free from undue influence because she was not "involved" in the creation of the 1992 will is preposterous. She was not involved in the creation of the December 31, 2002 will either hurt she is adamant that Mr. Dredge was competent and free due ..., .. Dredge was ....���N�.���. a. a ree frCm undue influence when that will was made. The requests for admission are proper, and Mrs. Hagen should be compelled to respond. REQUESTS FOR PRODUCTION It appears that the Personal Representative is engaged in a game of hide -the- ball as to documents that Susan Dredge has requested. Susan Thomas deposed Arman Farmanian on May 21, 2003, Jane Kuetemeyer on May 27, 2003, Ms. Hagen on June 12, 2003, and National Associated Properties, Inc. (NAP) on June 13, 2003. After trying to obtain documents, or information on the documents at the depositions, with MEMORANDUM IN SUPPORT OF MOTION TO COMPEL - 6 only limited success, Mrs. Dredge requested the documents from Mrs. Hagen by requests for production. It appears that the documents are at least conveniently, if not intentionally, being shuffled around to avoid disclosure. REOUEST FOR PRODUCTION NO. 13: Please produce copies of the 1998 and 1999 individual income tax filings for Vernon Neil Dredge and Susan Dredge. RESPONSE: These tax returns (two boxes of materials) were delivered by the Personal Representative to the offices of Jane Kuetemeyer on July 9, 2003. the Personal Representative does not have copies in her possession. In her deposition, on June 12, 2003, Ms. Hagen stated that she never had the documents, and did not have clue where they would be. Q. I'm going to hand you now what's been marked as Deposition Exhibit 3. Do you recognize that document? A. Yes. Q. Okay. It requested that you bring some documents today. A. Yes. Q. Did you bring any of those documents? A. No. Q. Okay. And why not? A. I never had them in my possession. Q. Okay. Where are those documents? A. I have no idea. Q. Okay. So the State and Federal Income Tax Returns for Neil and Susan Dredge for the year 1998, you don't know where that is? A. No. Q. Okay. Have you searched for it? A. I don't have a clue where they would even be. Q. Okay. Where are those kinds of records? Do you have them under your possession or are they in some storage unit? A. They were never at the house, at the Packsaddle house I never saw any tax MEMORANDUM IN SUPPORT OF MOTION TO COMPEL - 7 documents. Lee Hagen 6/12/2003 Depo. p. 102, I. 6—p. 103, I. 3. Apparently, Ms. Hagen discovered the requested tax returns some time between her deposition on June 12th and when she delivered them to Mrs. Kuetemeyer on July 9th. Further, under Rule 34(a), it is not enough refuse to produce documents merely because they are not in your possession. The Rule requires production of documents that are in a party's "possession, custody. or control." Susan Dredge suggests that given the relationship between the personal representative and the special administrator, the documents in the possession of the special administrator are under the custody or control of the personal representative. (That is not necessarily the case between Mrs. Dredge and the special administrator. In addition to the assets of the Estate, the special administrator is collecting approximately $16,000 per month in escrow payments that belong equally to the Estate and to Mrs. Dredge. Despite repeated requests, Mrs. Dredge has been unable to get periodic accountings for that money. The last such accounting was as of it 18, 20032 ) The documents �. The G�°ti`rv.+uu uy was as v April 1 V, 2003.) 1 hGC requested UUGt1IlIe116D are under the control of Mrs. Hagen, and she should be compelled to produce them. REQUEST FOR PRODUCTION NO. 15: Please produce copies of all bank statements, canceled checks, check and deposit registers, for any bank account maintained by Vernon Neil Dredge after February 22, 2002, and on which Susan. E. Dredge was not a named party. RESPONSE: Objection. These materials are not reasonably calculated to lead to the discovery of admissible evidence. See Temporary Orders entered in the divorce matter on June 3, 2003. A copy has previously been provided. First, no objection was raised to the request when it was made in connection with Ms. Hagen's deposition: Q. Okay. Then we asked also for copies of all the bank statements, canceled checks, et cetera, on which Susan E. Dredge was not a named party. Do you have those MEMORANDUM IN SUPPORT OF MOTION TO COMPEL - 8 documents? A. No. Q. Okay. And they weren't at the Packsaddle house? A. No. Q. Have you checked at NAP to see if they're there? A. No. Lee Hagen 6/12/2003 Depo. p. 103, I. 7 -15. Second, the request is reasonably calculated to lead to the discovery of admissible evidence. The Temporary Order provided that $3,854.00 per month was to be distributed to each of the parties and was to become separate property, as well as any property purchased with that money. The Order did not say that any account that the parties maintained in their own name only was to become separate property. Mrs. Dredge is entitled to learn what accounts Mr. Dredge maintained in his name alone, and what funds were deposited into those accounts. Also, the parties are disputing whether various property is separate or community. The requested check registers and cancelled checks may very well resolve some of those disputes. The request is groper, and the Personal Representative should be compelled to respond. REQUEST FOR PRODUCTION NO. 16: Please produce copies of any written partnership, joint venture, or other agreements between Vernon Neil Dredge and Arman Farmanian. RESPONSE: These materials are the property of NAP and /or Amman Farmanian. It is the belief of the Personal Representative that Mr. Farmanian would have control of any such documents. If Mr. Dredge was party to any written partnership, joint venture, or other agreements with Mr. Farmanian, he, and consequently the Estate, would have rights in the agreements equal to those of Mr. Farmanian. As to any partnership agreements, MEMORANDUM IN SUPPORT OF MOTION TO COMPEL - 9 under Idaho Code § 53 -3 -403, Mr. Farmanian is obligated by law to provide the Personal Representative with access to such information. Mrs. Dredge is unable to discern how any agreement between Mr. Dredge and Mr. Farmanian would be the property of NAP, but as the Estate currently holds 50% of the stock in NAP, Mrs. Dredge suggests that the agreements would be under the control of the personal representative. Q. Okay. Partnership, joint venture, and other agreements between Vernon Neil Dredge and Arman Farmanian. Did you find any of those? A. No. Q. They weren't at the Packsaddle house? A. No. Q. And have you asked if they are at NAP? A. No. Lee Hagen 6/12/2003 Depo. p. 103, I. 16 -23. The request is proper, and the Personal Representative should be compelled to respond. REQUEST FOR PRODUCTION NO. 17: Please produce copies of all tax returns for tax years ending in or after 1993 for any partnership in which Vernon Neil Dredge or Susan E. Dredge has a partnership interest. RESPONSE: This information is included in the parties' joint tax returns which have been previously disclosed by Jane Kuetemeyer pursuant to her deposition. Neither partnership tax returns nor all of the information in a partnership tax return are included in a partner's individual income tax return. At her deposition, Mrs. Kuetemeyer did produce a number of tax retums for various partnerships in which the Dredges had been partners. None of those returns were for years prior to 1999, however. Further, it is entirely possible that the Dredges may have had an interest in a MEMORANDUM IN SUPPORT OF MOTION TO COMPEL - 10 partnership that had its tax return done by someone other than Mrs. Kuetemeyer. The request is proper, and the Personal Representative should be compelled to respond. REQUEST FOR PRODUCTION NO. 18: Please produce copies of all executory purchase or sales contracts, including installment sales contracts, to which Vernon Neil Dredge or Susan E. Dredge are parties. RESPONSE: To the best of Personal Representatives's knowledge, these materials were previously produced by Kootenai Title Company and /or may be obtained by Contestant directly. Kootenai Title Company did produce a summary of over 100 escrow accounts in which the Dredges had an interest. It produced a computer printout of information on each account and a spreadsheet summarizing all of the accounts. It did not produce the underlying contracts, which is what the request asks for. Additionally, the request asks for more than just escrow accounts at Kootenai Title; it asks for copies of all executory purchase and sale contracts. The mere fact that Mrs.. Dredge might be able to obtain copies of some of the contracts directly does not excuse the Personal Representative's failure to produce them. Further, by failing to even identify the contracts, Mrs. Dredge is unable determine fact, ....y., is vbi� t� deice vTiiivc if she %aii, in 1 la(a, obraiil the contracts or who she might obtain the contracts from. The request was proper, and the Personal Representative should be compelled to respond. REQUEST FOR PRODUCTION NO. 21: Please produce any and all business and financial records, not previously produced, of Neil Dredge or Susan Dredge. These records should be made available for inspection prior to copying. RESPONSE: All records located by the Personal Representative have been turned over to Jane Kuetemeyer or Arman Farmanian and are no longer in her possession, custody, or control. REQUEST FOR PRODUCTION NO. 25: Please produce a copy, or allow inspection of, all corporate minutes of NAP in the control of Neil Dredge at his death. MEMORANDUM IN SUPPORT OF MOTION TO COMPEL - 11 RESPONSE: Any such records have been returned to NAP and are not in the control or possession of the Personal Representative. Again, Mrs. Dredge contends that any documents that Mrs. Hagen gave to Jane Kuetemeyer are still in Mrs. Hagen's custody or control. One can only wonder why Mrs. Hagen would have given any of the Dredges' business and financial records to Mr. Farmanian as Mr. Farmanian has not been appointed by the Court to any position of authority and he is not a party to the probate. If Mr. Farmanian was given the Dredges' financial records, it certainly raises the issue of spoliation of evidence. Ms. Hagen is not entitled to voluntarily put evidence beyond her control to avoid having to produce it in discovery. In response to a subpoena duce tecum, NAP produced copies of incomplete copies of corporate records. Counsel for NAP indicated that the original corporate record book was missing, but they had copied what records they could locate. In their depositions, both NAP and Jane Kuetemeyer essentially accused Mrs. Dredge of stealing NAP corporate records, including corporate minutes. Consequently, Mrs. Dredge is most interested in identifying any corporate records that the Mr. Dredge and the Personal Representative possessed. Further, there is a question as to whether the buy -sell agreement being used to value NAP is the current agreement. If a new buy -sell agreement was signed, there is a very good chance that it would have been mentioned in the corporate minutes. While the Estate disputes Mrs. Dredge's claim to ownership in NAP, it is undisputed that Mr. Dredge was a shareholder in NAP. As such, he, and consequently the Estate, has a statutory right to inspect and copy corporate records, including corporate minutes. Idaho Code § 30 -3 -1602. Any NAP corporate minutes that Mr. MEMORANDUM IN SUPPORT OF MOTION TO COMPEL - 12 Dredge may have possessed at the time of his death are still in the control of the Personal Representative. The Personal Representative's objection is improper, and she should be compelled to respond. DATED THIS day of May 2003. Wetzel & Wetzel, P.L.L.C. Ronald P. Ringel Attorneys for Susan Dredge MEMORANDUM IN SUPPORT OF MOTION TO COMPEL - 13 he cifr o( K NAL ALASKA January 28, 2009 Ronald Ringel 1940 N. Finger Cove Dr. Palmer AK 99645 'Village with a Past, City with a Future" 210 Fidalgo Avenue, Kenai, Alaska 99611 -7794 Telephone: (907) 283 -7535 / Fax: (907) 283 -3014 www.ci.kenai.ak.us RE: City Attorney position — City of Kenai Dear Mr. Ringel: We are in receipt of, and thank you for submitting, your application for consideration regarding -our City Attorney position: We will begin our review process in February. Please let us know if you have any questions. CITY OF a K raves Cit. ttomey SUPPLEMENTAL FROM RONALD RINGEL Ronald P. Ringel 1940 N. Finger Cove Dr. Palmer, AK 99645 (907) 822-5566 ringel.paulson @gmail.com February 26, 2009 Lee Salisbury Legal Department Administrative Assistant City of Kenai 210 Fidalgo Avenue Kenai, AK 99611 -7794 Re: City Attorney Position Dear Mr. Salisbury: Thank you for your email. The firm I worked with in Idaho did not do criminal work, consequently, I do not have any direct experience in criminal trials. For the same reason, I do not have any direct criminal experience at the appellate level. However, as a law clerk at the appellate level approximately half of all the appeals I dealt with were criminal. During my three years at the court, I reviewed, researched, and wrote bench memos on approximately ninety criminal appeals. The appeals ranged from Anders appeals to matters of first impression in Washington. I do have substantial civil experience. In addition to the municipal work, I engaged in business work, real estate, land use, probate, and bankruptcy, a significant portion of which was litigation. As is typicai of civil litigation, most cases settled prior to trial, but i did do trial work as well; I would estimate that half of my time in private practice was devoted to litigation. The litigation involved cases in state, federal, and bankruptcy courts. My first appearance in court for a client was at a summary judgment hearing that the principals in the firm thought was a lost cause —I returned with not only a judgment against the other client, but opposing counsel as well for frivolous litigation. The largest judgment I won was just under 4.5 million dollars for a business client. I was also involved in several appeals. The issues involved real estate, contract, foreclosure, zoning and land use. With my appellate exposure to criminal law and my civil experience, I do not anticipate any significant problems with criminal work. Sincerely yours, Ronald P. Ringel January 10, 2009 Scott A Schillinger 3531 Nova Circle Anchorage, AK 99517 (907) 346 - 2885 Ms. Lee Salisbury Legal Department City of Kenai 210 Fidalgo Avenue Kenai, AK 99611-7794 Dear Ms. Salisbury: RECE!v D KE1 LEGAL DEPT. 1 arn. interested in applying for the position of City Attorney. I am uniquely qualified for a position in your organization based upon my legal experience, education and my work experience prior to law school. I have experience working as an attorney in the corporate environment, civil litigation and contract drafting and dispute resolution. I am trained as a tax attorney, but my work experience has been primarily as a defense lawyer in civil litigation. Additionally, I have extensive experience with negotiating, drafting and litigating contract law matters. Further, my work experience prior to becoming an attorney includes over two years as a Claims Representative for Nationwide Insurance in Anchorage, AK and six years as a Special Agent for the U.S. Department of Defense. 1 also earned the Master of Laws (LL.M.) degree in Taxation from the University of Washington after obtaining the Juris Doctor from Gonzaga University. Additionally, I was on Law Review at Gonzaga. My education and work experience would make me a valuable asset to your organization. 1 look forward to meeting with the City Council to further discuss my qualifications for this position. 1 have included supporting materials for your consideration. Please let me know if 1 can provide any further information. Sincerely, Scott A. Schillinger REFERENCES Dan Quinn 907 - 276 -5727 Attorney Richmond & Quinn Joe Pollock 907 -563 -6555 Attorney Davison & Davison, Inc Kenneth Emerson 520- 825 -9206 Asst. Special Agent -in- Charge (Ret'd) Department of Defense Seattle, WA Ann Murphy Tax Professor Gonzaga University Spokane, WA Robert Taylor Vice President - Unicom United Companies, Inc. Anchorage, AK Heather Grahame Attorney Dorsey & Whitney Anchorage, AK 509- 456 -7789 907- 273 -5200 907- 276 -4557 Admissions Memberships Education Scott A. Schillinger 3531 Nova Circle Anchorage, AK 99517 schillinger @alaska. com home (907) 346 -2885 cellular (907) 830 -3700 Alaska Supreme Court, 2004 U.S. District Court District of Alaska, 2004 U.S. Tax Court, Washington, D.C., 2004 U.S. Court of Appeals for the Ninth Circuit, 2004 Alaska Bar Association, 2004 Alaska Bar Sections: Corporate, Business, Taxation and Employment Master of Laws in Taxation, University of Washington, 2003 Juris Doctor cum laude, Gonzaga University, 2002 Associate Editor, Gonzaga Law Review, 2002 Bachelor of Arts, University of Washington, 1988 Legal Law Office of Scott A. Schillinger, LLC Experience Anchorage, AK Oct 2007- Present I performed legal work for local attorneys on a contract basis. Contract work, disputes, litigation, motions C practice and commercial iai lil gafi i on are the principal focus of my practice. Manager, Legal and Financial Affairs, United Companies, Inc. Anchorage, AK March 2007 -Sep 2007 I served in the capacity of General. Counsel for the organization and all subsidiaries. This included providing legal counsel and guidance to ensure maximum protection of UCI's interests including, but not limited to, employment law issues, real estate matters, easements and rights of way, negotiating and drafting contracts, regulatory matters, and managing litigation. Additionally, I supervised the Manager of Regulatory Affairs and the Controller in this position. Attorney, Richmond & Quinn, P.C. Anchorage, AK January 2006 -Feb 2007 Civil litigation practice with an emphasis on insurance defense. Investigation, settlement and management of litigation files, and trial preparation was a routine part of this position. Prior Significant Employment Activities Attorney, Davison & Davison, Inc. Anchorage, AK July 2004 - December 2005 This position included business and commercial litigation with an emphasis on construction litigation. I was principally responsible for legal research, drafting motions, settlement proposals, discovery letters as well as preparing and responding to discovery, appearance at hearings, coordination of case experts and expert reports and counseling clients. Contract analysis and dispute resolution were a routine part of this position. Legal Intern, Kain, Snow and Staeheli, LLP, Attorneys -at -Law Spokane, WA May 2000-August 2000 I served as a legal intem for the summer between my first and second year of law school. I perfo,uned legal research and prepared cases for trial in this position. This practice focused on personal injury litigation. Claims Representative, Nationwide Insurance Company Anchorage, AK Responsible for the investigation, evaluation, negotiation and settlement of personal injury claims arising from automobile and homeowner accidents. Additionally, I was responsible for the investigation and settlement of theft claims. Management of litigation files was a routine part of this position. Special Agent, U.S. Department of Defense Seattle, WA ar.0 Spokane, WA Conducted security and background investigations of individuals for government security clearances. Investigations included interviewing subjects and references. Comprehensive review of medical, employment, law enforcement, court, financial, bankruptcy and other documents was required. Reports were prepared in a concise and comprehensive manner. I served as the acting supervisor in the absence of the Senior Resident Agent. Reading, hunting, fishing and studying German German Club of Anchorage 1995- Present Vice President 2007 Director 1998 World Affairs Council of Alaska 2007 - Present Anchorage Chamber of Commerce 2008 - Present References Available upon request Bruce E. Davison, ABA #8211111 Scott A. Schillinger, ABA #0405026 DAVISON & DAVISON, INC. 3351 Arctic Boulevard Anchorage, AK 99503 Phone: (907) 563 -6555 Fax: (907) 562 -7873 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT R.J. KENNEY ASSOCIATES, INC., a ) Massachusetts corporation; ) ) Appellant, ) ) v. ) ) SEWARD ASSOCIATION FOR THE ) Case No. 05 -35741 ADVANCEMENT OF MARINE ) D.C. No. A03 -0119 CV (JWS) SCIENCE, ) ) nNNcucc. ) ) APPELLANT'S BRIEF DATED at Anchorage, Alaska this 16th day of September 2005. DAVISON & DAVISON, INC. Attorneys for Appellant R.J. Kenney Associates, Inc. By: Bruce E. Davison, ABA #8211111 Scott A. Schillinger, ABA #0405026 TABLE OF CONTENTS Eau_ L JURISDICTIONAL STATEMENT 1 II. STATEMENT OF ISSUES 2 III. STATEMENT OF THE CASE 2 IV. STATEMENT OF FACTS............... ........ ........ ........ 4 V. SUMMARY OF ARGUMENT 9 VI. STANDARD OF REVIEW 10 VII. ARC.T_ MENT 13 A. The Lower Court Failed to Recognize That R.J. Kenney's Role As Architect, Engineer, and Construction Manager In The Alaska Sea Life Center Project Raised Genuine Issues Of Material Fact As To Whether Contractor Registration Was Statutorily Required Thus Making Summary Judgment Inappropriate 13 R.J. Kenney's Contract Required It To Perform v iiy As An Architect/Engineer And Construction Manager, Not A Contractor 14 2. R.J. Kenney Did Not "Undertake" Or "Offer" To "Construct, Alter, Repair, Move Or Demolish A Building...." 18 B. The District Court Erred in Dismissing R.J. Kenney's Contract Claims Because It Incorrectly Applied Alaska Law on Contractor Registration to R.J. Kenney's Testing, Design, Consulting and Construction Management Work on the Alaska Seal. ife Center Remediation Project. 23 VIII. CONCLUSION 29 IX. CERTIFICATE OF COMPLIANCE 30 TABLE OF AUTHORITIES Cases Page Alaska Protection Services, Inc. v. Frontier Colorcable, Inc., 680 P.2d 11.19 (Alaska 1984) 29 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) 14, 19 Buono v. Norton, 371 F.3d 543, 545 (9th Cir. 2004) 12 Carson Harbor Village, Ltd. v. Unocal Corp., 270 F.3d 863, 870 (9th Cir. 2001) 12 Casey v. Semco Energy, Inc., 92 P.3d 379, 383 (Alaska 2004) 21 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) 13, 28 Craig Taylor Equip. Co. v. Pettibone Corp., 659 P.2d 594, 597 (Alaska 1983) . 19 Far Out Products v. Oskar, 247 F.3d 986, 992 (9`h Cir. 2001) 12 Gibson v. Heiman, 547 S.W.2d 111, 113 (Ark. 1977) 19 Gross v. The Bayshore Land Company, 710 P.2d 1007, 1010 (Alaska 1985) 26, 28 Harman v. Apfel, 211 F.3d 1172, 1174 (9th Cir. 2000) 11 Harper v. U.S. Seafoods, L.P., 278 F.3d 971, 973 (9`h Cir. 2002) 12 Industrial Power and Lighting Corp. v. Western Modular Corp., 623 P.2d 291, 296 (Alaska 1981) 24, 26, 29 Kassbaum v. Stepnenwolf Prods.. Inc., 236 F.3d 487, 490 (9th Cir. 2000) 11 Milenbach v. Commissioner of Internal Revenue, 318 F.3d 924, 930 (9th Cir. 2003) 11 Native Village of Eklutna v. Alaska R.R. Corp., 87 P.3d 41 (Alaska 2004) 27 Neal & Co. v. The Assoc. of Village Council Presidents Regional Housing Authority, 895 P.2d 497, 502 (Alaska 1995) 19 Nielsen - Dillingham Builders, J.V. v. United States, 43 Fed. Cl. 5, 8 -9 (1999) . 19 Norville v. Carr- Gottstein. Foods Co., 84 P.3d 996, 1004 (Alaska 2004) 19 Olsen v. Idaho State Bd. Of Medicine, 363 F.3d 916, 922 (9th Cir. 2004) 12 Smith v. Tyonek Timber, Inc., 680 P.2d 1148 (Alaska 1984) 25 Stordahl v. Gov't Employees Ins. Co., 564 P.2d 63, 66 (Alaska 1977) 22 Sumner Development Corp. v. Shivers, 517 P.2d 757, 760 (Alaska 1974) 26 United States v. Mateo - Mendez, 215 F.3d 1039, 1042 (9th Cir. 2000) 11 Wessells v. Dept. of Highways, 562 P.2d 1042, 1049 (Alaska 1977) 20 11 Statutes 28 U.S.C. §1291 1 28 U.S.C. §1294 1 28 U.S.C. §1332 1 28 U.S.C. §1367 1 AS 08.18.011 3, 10, 13, 20, 22, 23, 27, 29 AS 08.18.151 9, 10, 13, 25, 27, 29 AS 08.18.171(4) 17, 24 Other Authorities Construction Law, G. M. Stein, Vo1.1 § 1.02[1][b] (2004) 9, 26 Rules Federal Rules of Civil Procedure 56(c) 12 iv I. JURISDICTIONAL STATEMENT This case arises out of a contract between R.J. Kenney and SAAMS wherein SAAMS has refused to pay contact proceeds to R.J. Kenney because R.J. Kenney, a design and construction management firm, was not licensed as a construction contractor pursuant to AS 08.18.011.. The Court has jurisdiction pursuant to 28 U.S.C. §1332 because the plaintiff and defendant are citizens of different states and the amount in controversy exceeds $75,000. The Court also has supplemental jurisdiction pursuant to 28 U.S.C. § 1367. Plaintiff Belfor USA Group, Inc. (`Belfor ") is a Colorado corporation with its principal place of business in Michigan. R.J. Kenney & Associates, Inc. ( "R.J. Kenney ") is a Massachusetts corporation with its principal place of business in Massachusetts, and the Seward Association for the Advancement of Marine Science ( "SAAMS ") is an Alaskan non - profit corporation with its principal place of business in Alaska. Appellate jurisdiction is conferred by 28 U.S.C. §1291. ( "The Courts of Appeal shall have jurisdiction of appeals from all final decisions of the district courts of the United States... "), and by 28 U.S.C. §1.294. This appeal is from a final order dismissing R.J. Kenney's contract claims against SAAMS, owner of the Alaska Sea Life Center. Notice of Appeal was timely filed on July 20, 2005. 1 II. STATEMENT OF ISSUES A. Whether the District Court erred in its February 14, 2005, order dismissing R.J. Kenney's contract claims against SAAMS by incorrectly ruling R.J. Kenney was a construction contractor under AS 08.18.011 and failing to recognize that there are genuine issues of material fact conceming R.J. Kenney's role and scope of work as a designer and construction manager in the Alaska Sea Life Center ( "ASLC ") project thus making summary judgment inappropriate? B. Whether the District Court erred in dismissing R.J. Kenney's contract claims because it incorrectly applied Alaska law on contractor registration to R.J. Kenney's testing, design, consulting and construction management work on the ASLC remediation project? III. STATEMENT OF THE CASE This case began as multi -parry litigation arising out of massive repairs to the ASLC and involving the Owner, SAAMS; Belfor, a general contractor; and R.J. Kenney, a designer and construction manager. Belfor initiated this lawsuit on June 3, 2003, when it filed a complaint against R.J. Kenney and SAAMS seeking to recover approximately $1 million for alleged cost overruns incurred during Phases 2 and 3 of the multi - phased remedial repairs at the ASLC. (Exc. 0001.) R.J. Kenney filed a Third -Party Complaint against SAAMS after the Court dismissed Belfor's claims against SAAMS. (Exc. 0009.) 2 R.J. Kenney's Third -Party Complaint, as amended on June 17, 2004, alleges four theories of relief against SAAMS: (1) contract claims, (2) indemnity, (3) quantum meruit, and (4) breach of contract. SAAMS' counterclaim against R.J. Kenney, as amended, alleges: (1) breach of contract, (2) professional negligence, and (3) negligence. (Exc. 0026.)' SAAMS moved for summary judgment on Third Party Plaintiff R.J. Kenney's Complaint on the grounds that R.J. Kenney failed to comply with Alaska's contractor registration statutes.2 (Exc. 0064.) On November 29, 2004, R.J. Kenney filed its Opposition to SAAMS' Motion for Summary Judgment. (Exc. 0125.) On February 14, 2005, the District Court granted SAAMS' summary judgment motion and ordered R.J. Kenney's claims dismissed. (Exc. 0205.) On February 24, 2005, R.J. Kenney filed a Motion for Reconsideration of the February 14, 2005 order. (Exc. 0216.) After the Court ordered SAAMS to file a 'Belfor's complaint against R.J. Kenney, as amended on July 7, 2004, alleges: (1) breach of contract; (2) breach of implied contract; (3) promissory estoppel; (4) intentional interference with prospective economic advantage and (5) defamation. (Exc. 0034.) R.J. Kenney's counterclaim against Belfor was dismissed by the court on August 25, 2004. (Exc. 0057.) However, Belfor is not a party to this appeal. 'AS 08.18.011(a) states that "[a] person may not submit a bid or work as a contractor until that person has been issued a certificate of regulation as a contractor by the department." AS 08.18.151 states that "a person acting in the capacity of a contractor or home inspector may not bring an action in a court of this state for the collection of compensation for the performance of work or for a breach of contract for which registration is required under this chapter without 3 response, the District Court denied R.J. Kenney's Motion for Reconsideration on April 6, 2005. (Exc. 0313.) The District Court ordered Entry of Judgment on June 22, 2005, in favor of SAAMS with an award of costs, fees and attorneys' fees. (Exc. 0317.) IV. STATEMENT OF FACTS SAAMS is the owner and operator of the Alaska Sea Life Center (ASLC) in Seward, Alaska. The ASLC opened in May 1998. However, the facility suffered from substantial and numerous defects attributed to poor workmanship by the prime contractor, Strand Hunt Construction, during the facility's initial construction. The $20 million "Jewel of Seward" was on the verge of collapse due to disintegrating concrete, corroded steel and leaky animal tanks containing pathogenic organisms from diseased animals. Following Strand Hunt's "completion," complex multi -party litigation ensued between Strand Hunt, SAAMS' and various insurance companies. In January 2000, SAAMS engaged R.J. Kenney as a consultant and expert in methods of concrete repair and concrete coatings to assist in the resolution of the litigation resulting from the Strand Hunt Construction disaster. (Exc. 0149.) R.J. Kenney is design, testing and consulting film located in Plainville, MA. (Exc. 0149.) The firm specializes in providing engineering and alleging and proving that the contractor or home inspector was a registered 4 architectural services, construction consulting, testing, design work, construction management and administration. R.J. Kenney has extensive experience with analysis and design of exterior insulation and finish systems as well as experience with analysis and design of masonry and concrete failures. The fiuin has expertise in construction quality control, testing and forensic investigations of failed brick, concrete and stone masonry systems of many types. (Exc. 0149.) After being retained by SAAMS, R.J. Kenney monitored the tests of other experts, conducted extensive investigations of the ASLC, presented findings, and provided expert testimony for SAAMS3 as to the costs of repairs. After R.J. Kenney satisfactorily and successfully completed its consulting contract for expert witness services, SAAMS retained R.J. Kenney to provide engineering and architectural' services to conduct prototype testing and provide design documents to be used for repairs of the many defects and deficiencies remaining after the initial construction of the ASLC. SAAMS entered contractor registered home inspector, as applicable, at the time." During the Strand Hunt litigation, the law firm of Birch, Horton, Bittner & Cherot provided legal representation to SAAMS. R.J. Kenney, SAAMS and Birch Horton worked closely together to effectuate the final multi - million dollar settlement with Strand Hunt. R.J. Kenney also performed work as an consultant and expert for Birch Horton on other projects. 4The architects and engineers providing services were properly licensed and registered in Alaska. 5 into series of phased contracts5 with R.J. Kenney for the purpose of designing fixes, to the extent possible, for the problems with leaking tanks, cracks, corroded rebar, and other similar defects left uncorrected by Strand Hunt. The primary task for R.J. Kenney was to figure out a solution to remedy the cracking, corroding concrete sea life tanks so they would not leak and would provide a safe, hygienic environment for the various types of large marine mammals (e.g., sealings) to be kept at the ASLC. In its first design contract6, R.J. Kenney analyzed and quantified the various problems. Also under the Prototype Contract, it designed and prepared plans and specifications to allow contractors to bid to construct the repairs to the ASLC that would put the ASLC back in working order. Attempting to limit its liability after the Strand Hunt litigation, SAAMS insisted that R.J. Kenney act as its construction manager as well as the design engineer and architect. (Exc. 0150.) Darryl Schaefeinieyer, the general manager of the ASLC with many years of construction experience, required R.J. Kenney to hire the necessary construction contractors to perform the repairs. (Exc. 0150.) After the Strand Hunt disaster, Mr. Schaefermeyer was afraid of being caught in the middle of a dispute between 5Th.ere were five separate contracts: (1) Prototype, (2) Phase 1, (3) Phase 2/3, (4) Phase 4, and (5) Phase 5. 6Referred to as the Prototype Contract. 6 the designer and the contractor over design responsibility for the plans and specifications. In the second contract, the Phase 1 contract, R.J. Kenney's scope of work was to: (1) identify the scope of work required to repair construction and design defects at the ASLC, (2) prepare specifications and drawings necessary for contractors to bid from which contractors could bid on future repairs, and (3) perform limited testing of certain repair methods. (Exc. 0150.) Following successful completion of the first two contracts by R.J. Kenney, SAAMS entered into a third contract with R.J. Kenney, which resulted in selection of process designed to repair the failed, cracked and unusable concrete structures at the ASLC. The Phase 2/3 contract between SAAMS and. R.J. Kenney dated May 29, 2001, detailed the objectives, responsibilities of the parties, terms and conditions, changes in the work, specific services to be performed and compensation agreed to by the parties. (Exc. 0187.) The Phase 2/3 contract between SAAMS and R.J. Kenney in the amount of $2,607,565 also required R.J. Kenney to contract directly with the general contractor. (Exc. 0152.) R.J. Kenney solicited competitive bids from contractors to perform the work. SAAMS stayed intimately involved in the overall process of contractor selection. (Exc. 0153.) SAAMS was involved in the 7 selection of the general contractor, Belfor. (Exc. 0152.) SAAMS and R.J. Kenney agreed that R.J. Kenney would award the contract for repairs to Belfor. R.J. Kenney and Belfor entered a contract (Exc. 0359) whereby Belfor would be paid $2,200,000 out of R.J. Kenney's $2,607,565 for construction of Phase 2/3 remedial repairs to the ASLC. Belfor agreed to perform its work in accordance with the contract and plans and specifications prepared by R.J. Kenney and pursuant to R.J. Kenney's contract with SAAMS. R.J. Kenney monitored the construction and performed project administration as SAAMS' construction manager.7 Belfor was responsible for the selection and oversight of its subcontractors and performance of the actual construction work on the project. The actual construction work on the ASLC was performed by the general contractor Belfor and its subcontractors. (Exc. 0151.) Mier Belfor began work, Change Orders 2 and 3 were agreed to by Belfor and R.J. Kenney and approved by SAAMS. (Exc. 0390.) Belfor's total approved contract amount reached $2,204,224. Belfor also sought a Change Order 7 R.J. Kenney's own scope of work under the Phase 2/3 contract was expressly limited to inspection, design of repairs, and oversight and management of the construction contractors needed to construct the remedial repairs at the ASLC. (Exc. 0087.) 8 4, but SAAMS would not consent to the amount of the Change Order so it remained unresolved.8 This project was substantially completed in September 2001. (Exc. 0407.) Substantial completion is based upon the work being 95% complete under the contract.9 Notwithstanding substantial completion, SAAMS refused to make further payments and continued to hold contract proceeds in the amount of at least $225,000 based upon Belfor's alleged uncompleted "punch list" work. (Exc. 0154.) The parties were unable to coordinate access to the ASLC to complete the remaining punchlist, warranty work and unfinished contract work on the project. Ultimately, SAAMS refused to allow any access to R.J. Kenney or Belfor to perform the minor amount of remaining work. (Exc. 0154.) V. SUMMARY OF ARGUMENT Al__ n .J8 Liner A. Kenney filed its third -party claim against SAAMS to recover the money that R.J. Kenney was owed and the money owed to Belfor, SAAMS raised the affirmative defense against R.J. Kenney that under AS 08.18.151, R.J. Kenney's failure to register as a construction contractor in Alaska 'The only unresolved change order is Change Order 4.8 (Exc. 0337.) The Owner, SAAMS, had retained the authority to approve or disapprove any and all changes to the contract between R.J. Kenney and Belfor. (Exc. 0098.) 9 "Substantial completion is the point at which the project is ready for occupancy and can be used for its intended purpose, notwithstanding minor items to be completed or corrected." Construction Law, G. M. Stein, Vol.], § 3.01[2][e] (2004). 9 precluded suit for recovery of contract proceeds. SAAMS then moved for summary judgment to enforce its affirmative defense. R.J. Kenney admitted it was not a licensed construction contractor, but denied such licensing was required since it was properly licensed for the design and construction management services it provided to SAAMS. The District Court granted SAAMS' motion. The District Court erroneously dismissed R.J. Kenney's claim for contract proceeds due to lack of registration under Alaska's contractor registration law. AS 08.18.011. The District Court should have found that genuine issues of material fact exist as to whether R.J. Kenney's testing, design, engineering, and construction management activities at the ASLC constituted "construction" as intended by AS 08.18.011. The District Court also inappropriately concluded that Alaska's Contractor Registration Statutes applied to R.J. Kenney's work at the ASLC witlOii fully considering the neailig and scope of tiiask a 'a Contractor i Registration statutes. AS 08.18.011 and AS 08.18.151. A de novo standard of review should be used in reviewing the District Court's decision. VI. STANDARD OF REVIEW This Court must apply a de novo standard of review to the issue of whether Alaska's contractor registration statutes require contractor registration for R.J. Kenney's testing, design, consulting and oversight work at the Alaska Sea Life 10 Center. The de novo standard of review is appropriate because this case turns upon questions of law. Harman v. Apfel, 211 F.3d 1172, 1174 (9th Cir. 2000). Initially, de novo review of the facts including the contract in question is appropriate. The selection of the appropriate standard of review is always contextual. United States v. Mateo - Mendez, 215 F.3d 1039, 1042 (9th Cir. 2000). The Court must look at the District Court's dismissal of R.J. Kenney's contract claims within the context of R.J. Kenney's testing, design, consulting and oversight work at the ASLC. Ultimately, the de novo standard of review applies because questions of law predominate in the District Court's decision. Id. Even if the Court determines that the District Court's February 14, 2005, Order was a mixed question of fact and law, the Court should utilize the de novo standard of review because questions of law predominate in this matter. Id. Further, this Court has ruied that de novo review is appropriate for matters of contract interpretation. Milenbach v. Commissioner of Internal Revenue, 318 F.3d 924, 930 (9"' Cir. 2003) (citing Kassbaum v. Steppenwolf Prods., Inc., 236 F.3d 487, 490 (9th Cir. 2000)). Because the District Court engaged in contract interpretation when it applied the language of the Phase 2/3 contract between R.J. Kenney and SAAMS (Exc. 0205), de novo review is appropriate. The District Court seized upon selective clauses in the contract to determine that R.J. Kenney "undertook or offered to perform a project to construct, alter and/or repair parts of the ASLC." (Exc. 0208.) Therefore, de novo review is appropriate because the District Court engaged in contract interpretation. This Court has also consistently held that a review of a district court's grant of summary judgment is reviewed de novo. Buono v. Norton, 371 F.3d 543, 545 (9th Cir. 2004). The Court's standard of review is governed by the same standard as found in Federal Rules of Civil Procedure 56(c). Far Out Products v. Oskar, 247 F.3d 986, 992 (9th Cir. 2001). Viewing the evidence in a light most favorable to nonmoving party, this Court must first determine if there are any genuine issues of material fact, then this Court must determine whether the District Court applied the relevant substantive law. Olsen v. Idaho State Bd. Of Medicine, 363 F.3d 916, 922 (9`h Cir. 2004). If, after viewing R.J. Kenney's evidence, the Court decides genuine issues of material fact exist, the District Court decision must be re V ie /u and 11.111CL11U,U. Second, de novo review of the law is appropriate for matters involving statutory interpretation. Carson Harbor Village, Ltd. v. Unocal Corp., 270 F.3d 863, 870 (9th Cir. 2001)(en banc); Harper v. U.S. Seafoods, L.P., 278 F.3d 971, 973 (9th Cir. 2002). De novo review is appropriate in this case because the District Court incorrectly interpreted Alaska's contractor registration statutes as barring R.J. Kenney's contract claims. Specifically, the District Court engaged in statutory interpretation in its February 14, 2004, Order when it determined that AS 12 08.18.011 applied to R.J. Kenney's role at the ASLC. (Exc. 0205.) If, after reviewing Alaska's contractor registration statutes, this Court decides they were improperly applied, the District Court decision must be reversed and remanded. VII. ARGUMENT A. The Lower Court Failed to Recognize That R.J. Kenney's Role As Architect, Engineer, and Construction Manager In The Alaska Sea Life Center Project Raised Genuine Issues Of Material Fact As To Whether Contractor Registration Was Statutorily Required Thus Making Summary Judgment Inappropriate. The District Court held R.J. Kenney was a "construction contractor" within the meaning of AS 08.18.151.10 The consequences of the District Court's decision are that R.J. Kenney has liability to Belfor due to SAAMS' refusal to release earned funds and yet R.J. Kenney is barred from collecting these funds from SAAMS. SAAMS' Motion for Summary Judgment should have been denied because genuine issues of materials fact exist as demonstrated by `l affidavits d c . vrditr aLG y � ie aiilua °v'i�S ariu contract language. The moving party has the burden of showing that there is no genuine issue as to a material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). SAAMS failed to demonstrate that there were no genuine issues of material fact. As discussed, infra, the District Court failed to take into account the disputed facts of this case in deciding that Alaska's contractor registration statute applied to R.J. AS 08.18.151 states, see footnote 1, page 3, supra. 13 Kenney whose work consisted of testing, design, engineering and construction oversight at the ASLC project, not construction. All evidence presented by the non - moving party must be believed for the purposes of summary judgment Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). All justifiable inferences must be drawn in favor of the non- moving party. Id. Viewing the evidence in a light most favorable to R.J. Kenney and drawing all inferences in favor of the nonmoving party, R.J. Kenney's evidence that it only performed design and construction management services, summary judgment is inappropriate as a matter of law because genuine issues of material fact exist as to R.J. Kenney's role and work at the ASLC. Id. 1. R.J. Kenney's Contract Required It To Perform Only As An Architect/Engineer And Construction Manager, Not A Contractor. R.J. Kenney, as the Architect/Engineer for the Project, acted as the Construction Manager for SAAMS pursuant to its contract with SAAMS." SAAMS requested R.J. Kenney to hire the construction contractors in order that SAAMS would not have liability for ensuring that the construction contractors followed the plans and specifications for repairs. R.J. Kenney's work on the ASLC was limited to inspection, design, engineering and construction management "See Exc. 0089, which required that the Architect /Engineer shall be responsible for entering into contracts for labor, materials, general conditions and environmental controls required for the Project. Architect/Engineer shall be 14 for remedial repairs. (Exc. 01.50.) Mr. Kenney's sworn statement was never refuted by SAAMS. SAAMS was involved with all aspects of the Phases 2/3 project at the ASLC. Darryl Schaefermeyer was closely involved in all phases of the work on the ASLC on almost a daily basis. (Exc. 0153.) Mr. Schaefenmeyer was involved in every change order on this project. (Exc. 0153.) R.J. Kenney fully advised Darryl Schaefermeyer of the negotiations with the general contractor, Belfor. (Exc. 0151.) Ms. Kenney further stated that "[a]11 construction work on the project was performed, at the insistence of SAAMS, by registered contractors." (Exc. 0151.) Mr. Kenney further stated under oath that " SAAMS was responsible for the separation of the various phases of the remediation work at the ASLC and set limits on the amount of money to be spent on each phase." (Exc. 0152.) SAAlv1S was involved in the overall process of subcontractor selection. Darryl Schaefermeyer asked to see pricing from Belfor's subcontractors. (Exc. 0153.) Belfor's contract amount for its construction work under its contract with R.J. Kenney totaled approximately $2,200,000 or 84% of the value of the contract between R.J. Kenney and SAAMS. R.J. Kenney's fees totaled $407,565 for inspection, contract administration, and construction oversight costs resulting in a total contract price with SAAMS in the amount of $2,607,565. (Exc. 0088.) responsible for monitoring all contractor personnel who are performing on -site 15 The Phases 2/3 contract between SAAMS and R.J. Kenney dated May 29, 2001, detailed the objectives, responsibilities of the parties, terns and conditions, changes in the work, specific services to be performed and compensation agreed to by the parties. (Exc. 0087.) This agreement identified SAAMS as the "Owner" and R.J. Kenney as the "Architect/Engineer." (Exc. 0087.) The overall objective of the SAAMS /R.J. Kenney Contract dated May 29, 2001, is described as follows: Objective. This Agreement is for exterior coating and crack repairs, and related facility improvements, which will be made at the ASLC by Architect/Engineer between April 30 and September 21, 2001 (the "Project "). The objectives of the Project include (a) the repair of coatings which have cracked or otherwise failed in the outdoor lab ( "ODL ") and quarantine areas of the ASLC; (b) the repair of cracked, spallings and otherwise defective exterior concrete; and (c) improvements to tanks, skimmers and animal holding areas which improve usability, reduce maintenance demands and extend service life. Architect/Engineer shall provide all specifications and drawings necessary for the completion of the Project, and shall enter into agreements with qualified contractors who will provide construction services, materials and related general conditions. This work shall be perfoiuied on a "design/build" basis, with Architect/Engineer assuming all design, construction and Project management responsibilities. (Emphasis added.) (Exc. 0087.) The above contract provision makes it clear that there was more to this contract than R.J. Kenney simply "assuming all design, construction and Project management responsibilities" as found by the District Court. (Exc. 0205.) The terms and conditions of the May 29, 2001., contract between SAAMS and R.J. work at the ASLC, and coordinating contractor activities with the ASLC staff. 16 Kenney do not require R.J. Kenney to perform construction work. Whether R.J. Kenney agreed to perform or offered to perfoi in "construction work" is a genuine issue of material fact. The language contained in the "Objective" of the Contract expressly states that R.J. Kenney, for its scope of work, "shall provide specifications and drawings necessary for the completion of the project." (Exc. 0087.) The contract directs R.J. Kenney to have others perform construction and to "enter into agreements with qualified contractors who will provide construction services ...." This division of work product creates a genuine issue of material fact as to whether the scope of work and design deliverables required by R.J. Kenney, the Architect/Engineer, is work requiring licensure as a contractor. (Exc. 0089.) The requirement that R.J. Kenney "enter into agreements with qualified contractors" m ust be as no more than a responsibility' u eiegatec to R.J. Kenney to simply manage construction contractors on a "design/build" basis. R.J. Kenney performed the "design" portion, Belfor perfoinied the "build" portion. The contract language does not transform R.J. Kenney into a "contractor" under AS 08.18.171(4).12 The evidence13 taken in the light most favorable to R.J. Kenney14 12 AS 08.18.171(4) defines "contractor" as "a person who, in the pursuit of an independent business, undertakes, or offers to perform, or claims to perform, or claims to have the capacity to perform, or submits a bid for a project to construct, alter, repair, move or demolish a building, highway, road, railroad, or any type of fixed structure, including excavation and site development and erection of 17 shows it did not undertake to perfoian the construction work itself but merely acted as a conduit for SAAMS to obtain construction services. 2. R.J. Kenney Did Not "Undertake" Or "Offer" To "Construct, Alter, Repair, Move Or Demolish A Building...." The Court found "as a matter of law that R.J. Kenney undertook or offered to perform a project to construct, alter and/or repair parts of the ASLC." (Exc. 0208.) However, under the May 29, 2001 contract, (Exc. 0087) R.J. Kenney and SAAMS agreed that R.J. Kenney was required to enter into agreements with "qualified contractors who will provide construction services." (Exc. 0087.) R.J. Kenney's role was expressly limited to preparing "specifications and drawings necessary for contractors to bid upon future work and remediation work" or providing construction management. (Exc. 0087.) The Court relies upon the Contract, paragraph 1.1.1 (Exc. 0087), which does say that repairs "will be made at the ASLC by Architect/Engineer...." (Exc. 0087.) However, when read in conjunction with the third sentence in the same paragraph, where the parties agreed that R.J. Kenney "shall enter into separate agreements with qualified contractors who would provide construction services to undertake the repairs," a genuine issue of material fact arises as to scaffolding; "contractor" includes a general subcontractor, builder, mechanical contractor, specialty contractor, and subcontractor." (Emphasis added.) L3Russ Kenney's affidavit establishes that R.J. Kenney did not undertake or offer to undertake construction. (Exc. 0149.) 18 which of the two provisions control. Even if R.J. Kenney's sole role as Architect/Engineer and Construction Manager are not clear from these clauses read in context, when construed in the light most favorable to R.J. Kenney, they create a genuine issue of material fact. Even if this language creates an ambiguity, it must be construed against the drafter of a document,15 and result in a genuine issue of material fact. SAAMS' counsel, Max Gamer, drafted the contract in this matter.16 By definition "ambiguity" creates a genuine issue of material fact. See Nielsen - Dillingham Builders, J.V. v. united States, 43 Fed. Cl. 5, 8 -9 (1999). The goal in interpreting any contract is to give effect to the reasonable expectations of the parties. "'18 If the reasonable expectations of R.J. Kenney were different from those of SAAMS and cannot be objectively determined from the contract, then SAAMS cannot prevail on summary judgment. 14Anderson v. Liberty Lobby, Inc., 477 US 242, 248 -49 (1986). 15Gibson v. Heiman, 547 S.W.2d 111, 113 (Ark. 1977). 16 ambiguity in the Contract should be construed against SAAMS. Craig Taylor Equip. Co. v. Pettibone Corp., 659 P.2d 594, 597 (Alaska 1983). "Neal & Co. v. The Assoc. of Village Council Presidents Regional Housing Authority, 895 P.2d 497, 502 (Alaska 1995) (intemal citations omitted); Norville v. Carr- Gottstein Foods Co., 84 P.3d 996, 1004 (Alaska 2004). 18The Contract also required R.J. Kenney to provide design, preparation of specifications and drawings, contract management after entering "into agreements with qualified contractors" and specifically "project management responsibilities." (Exc. 0087.) A genuine issue of material fact exits when deciding which part of the contract proceeds withheld by SAAMS applies to the "non- contractor" work R.J. Kenney performed. 19 The Architect/Engineer, R. J. Kenney, was required to furnish tests, inspections and reports necessary for the perfoi ance of the project. (Exc. 0101.) This provision is consistent with R. J. Kenney's inspection, design and oversight responsibilities on the entire project, its qualifications, its experience, and its course of dealing with SAAMS throughout the four years of work performed for SAAMS and its attorneys. This established "course of dealing" also establishes that SAAMS did not expect nor did. AS 08.18.011 require that R.J. Kenney be registered as a construction contractor. The District Court failed to fully scrutinize the contract in question and could not have properly construed the entire contract because only a selective reading of the contract would result in a ruling that R.J. Kenney "undertook or offered to perform a project to construct, alter and /or repair parts of the ASLC. "`9 �n n ,nsz VLVV.) hn 111V ntent of the panes Was that R.J. Kenney have engineering and architectural licensing and that no contractor licensing was required. The Alaska Supreme Court has held that "the goal of contractual interpretation is to give effect to the reasonable expectation of the parties. We consider disputed language in its context in the contract as a whole and look to the purposes of the contract, the 19Alaska law is clear that contracts should be construed within the context of the entire instrument. Wessells v. Dept. of Highways, 562 P.2d 1042, 1049 (Alaska 1977). Contracts should not be interpreted in a manner which creates conflict among various provisions and, if possible, courts should give effect to all parts of 20 circumstances surrounding its formation, and the case law on similar contractual provisions." Casey v. Semco Energy, Inc., 92 P.3d 379, 383 (Alaska 2004). The contract does not require R.J. Kenney to register as a construction contractor. (Exc. 0087.) Contractor registration for the Architect/Engineer, R.J. Kenney, was not mentioned in the contract. In fact, it would be so unusual for an Architect/Engineer to be licensed as a construction contractor, it would be reasonable to expect that SAAMS, the Owner, represented by experienced construction counsel, Birch Horton, who drafted the contract, would expressly require contractor registration had it so intended. However, the contract does expressly note that all of R.J. Kenney's "contractors and consultants" were required to submit sales tax resale exemption cards, contractor licenses and business licenses. (Exc. 0090.) R.J. Kenney did not, in fact, perform or undertake to perform "construction" work on the ASLC. (Exc. 0149.) SAAMS did not at any time require R.J. Kenney to register as a contractor. (Exc. 0151.) The construction work was, in fact performed by registered contractors on this project. (Exc. 0151.) Belfor served as the registered general contractor on this part of the project. (Exc. 0153.) Additional construction work was performed by other registered contractors and subcontractors. (Exc. 0151.) the instrument. Stordahl v. Gov't Employees Ins. Co., 564 P.2d 63, 66 (Alaska 21 The District Court placed undue emphasis on contract provisions between SAAMS and R.J. Kenney taken out of context. (Exc. 0208.) However, disputed facts in this case, as supported by the affidavit of Mr. Russell J. Kenney, include the following: R.J. Kenney did not perfoiui or undertake construction work on the ASLC (Exc. 0149); "R.J. Kenney did not hold itself out to be a contractor;" R.J. Kenney did not otherwise perform any work or undertake any action requiring it to be a licensed contractor under AS 08.18.011 (Exc. 0149); "R.J. Kenney did not submit a bid to perform construction work" (Exc. 0149); "[a]11 construction work on the project was performed by registered contractors" as a requirement by the ASLC. (Exc. 0151.) SAAMS did not at any time before, during or immediately after completion of the remediation work require or demand R.J. Kenney to become a registered contractor in the State of Alaska (Exc. 0151); and "R.J. Kenney does not pursue an independent business undertaking rg construction work." (Exc. 0151.) The affidavit of Darryl Schaeferrneyer, the General Manager of the ASLC, even if true, at best creates contested issues of fact which must be resolved at trial. For example, he avers: "RJK wanted to undertake all construction related activities during Phases 2 and 3 utilizing the services of subcontractors that would be supervised and managed at all times by RJK personnel;" "SAAMS was not 1977). 22 made a party to the negotiations or discussions that RJK had with prospective subcontractors." "SAAMS had no input regarding the scope, price or amount of work that RJK performed using its own employees, or that which was assigned to subcontractors." (Exc. 0084.) Each and every statement is disputed by R.J. Kenney. The District Court's decision dismissing R.J. Kenney's contract claims based upon SAAMS' Motion for Summary Judgment must be reversed. There are genuine issues of material fact as to whether SAAMS can establish that R.J. Kenney was required to be a registered contractor under AS 08.18.011. B. The District Court Erred in Dismissing R.J. Kenney's Contract Claims Because It Incorrectly Applied Alaska Law on Contractor Registration to R.J. Kenney's Testing, Design, Consulting and Construction Management Work on the Alaska SeaLife Center Remediation Project. The District Court inappropriately applied Alaska's contractor registration statutes to R.J. Kenney's testing, design, inspection and construction management work at the Alaska Sea Life Center. SAAMS' Motion for Summary Judgment should have been denied by the District Court because SAAMS was not entitled to judgment as a matter of law. Alaska law is clear that "[a] person may not submit a bid or work as a contractor until that person has been issued a certificate of registration as a contractor by the department." AS 08.18.011. R.J. Kenney never acted in the 23 capacity of a contractor or submitted a bid for construction at the ASLC. (Exc. 0149.) The District Court further misapplied the definition of a contractor under AS 08.18.171(4). By ruling that R.J. Kenney should have been a licensed and registered contractor, the Court has effectively barred R.J. Kenney from presenting its own claims for design and construction management services and those payments due the general contractor, Belfor. R.J. Kenney did not submit a bid or act as a contractor or perforrn any actual construction work on the ASLC for which registration was required. (Exc. 0149.) A contractor is defined under Alaska law as: ... a person who, in the pursuit of an independent business, undertakes or offers to perform, or claims to have the capacity to perform, or submits a bid for a project to construct, alter, repair, move of demolish a building, highway, road, railroad, or any type of fixed structure, including excavation and site development ent and erection of scaffolding; "contractor" includes a general subcontractor, builder, mechanical contractor, specialty contractor, and subcontractor. (Emphasis added.) AS 08.18.171(4). The Alaska Supreme Court has noted that the term "undertake" as used in AS 08.18.171(4) "is not limited to a contractual undertaking, but must be understood in the more general sense of setting about, engaging in, or entering upon an activity described by the statute." (Emphasis added.) Industrial Power and Lighting Corp. v. Western Modular Corp., 623 P.2d 291, 296 (Alaska 1981). 24 In this light, it is important to look not only to the contract and the history of R.J. Kenney's involvement with the ASLC remediation work, but also the actual work performed by R.J. Kenney. R.J. Kenney is a design, testing and consulting firm and did not undertake or offer to perform any construction work on the ASLC. (Exc. 0149.) R.J. Kenney at the behest of SAAMS, "engaged" registered contractors including Belfor, the prime contractor, for construction at the ASLC facilities. Belfor and its subcontractors "set about" and "entered" into the actual construction work on the ASLC project. The contract expressly anticipates this work will be performed by registered contractors and it was. In the Phase 2/3 contract, R.J. Kenney participated only as the construction manager acting on behalf of SAAMS for the ASLC remediation work by overseeing the work of contractors at the direction of and for the benefit of SAAMS. (Exc. 0150.) The seminal Alaska case on contractor registration is Smith v. Tyonek Timber, Inc., 680 P.2d 1148 (Alaska 1984). This case involved a suit between a subcontractor that performed concrete work at a school and a concrete manufacturer. (Id. at 1149.) The Court held that AS 08.18.151 means that a contractor is barred from filing suit in state court if it has not registered as a contractor. (Id. at 1155.) However, the case at bar is distinguished from Tyonek 25 because R.J. Kenney did not perform or undertake to perform the construction work at issue in this case. Further, cases in Alaska have denied unregistered contractors who performed construction work the right to pursue contract claims. In Gross v. The Bayshore Land Company20, an unlicensed contractor/builder developed and sold the lots. In Industrial Power, 623 P.2d at 295 (Alaska 1981), an unlicensed contractor fabricated and constructed modular homes. In Sumner,21 an unlicensed subcontractor doing site development work was barred from presenting its claims. These cases are distinguishable because R.J. Kenney did not actually perform construction work for SAAMS at the A.SLC. Rather, R.J. Kenney is seeking recovery of fees for construction management services and contract proceeds for the prime contractor, Belfor. Steven G.lY1. Stein has noted In construction that "...statutes ^ regulations governing whether a contractor needs to be licensed are fairly straight- forward," but that "licensing requirements for construction management are less clear, since construction management is a relatively new outgrowth of the construction trade. "22 Few states have addressed the issue of whether a "Gross v. Bayshore Land Co., 710 P.2d 1007, 1010 (Alaska 1985). 21Sumner Development Corp. v. Shivers, 517 P.2d 757, 760 (Alaska 1974). 22Construction Law, G. M. Stein, Vol. 1 § 1.02[1][b] (2004). 26 construction manager is required to be licensed.23 Stein reports that in Califomia a construction manager need not be licensed.24 However, Stein notes that other jurisdictions have required construction managers to be licensed.25 Absent an express statutory requirement that construction managers be licensed, the Alaska Legislature must be presumed to have decided no such licensing is necessary. See generally Native Village of Eklutna v. Alaska R.R. Corp., 87 P.3d 41 (Alaska 2004). R.J. Kenney's claims should not be barred because Alaska law does not require the registration of a construction manager under AS 08.18.011 and AS 08.18.151 does not prohibit or bar claims by a construction manager. 26 The claims made by R.J. Kenney do not involve compensation for work for which registration is required. R.J. Kenney's claims involve compensation for design, consulting and construction managennent ervirPC and for rnntrnrt proceeds owed to Bellor as the licensed general contractor on this project. 231d. 241d. 25Id. (noting that Alabama and Arkansas require licensure of construction managers) 26Certification to the Alaska Supreme Court may be appropriate because the issue of whether a construction manager is required to register as a construction contractor is an unsettled area of Alaska law and not been addressed by the Alaska Supreme Court. The Alaska statutes at issue in this case, AS 08.18.011, AS 08. 18.171(4) and AS 08.18.151 do not reference or define the term construction manager and there is no Alaska case law requiring the registration of a construction 27 The District Court erred in simply applying selected contract language to determine that R.J. Kenney acted in the capacity of a contractor. (Exc. 0208.) Labels and titles are not the key to interpreting Alaska's contractor registration statutes. Despite isolated contractual language27 that could be construed out of context to mean that R.J. Kenney acted as a construction contractor, the substance of R. J. Kenney's work did not involve actually perfoi,ning construction work or undertaking to perfoi in construction work. The key to analyzing this issue is to look at the substance of the work performed by R.J. Kenney and not the titles or labels attached to that work. The substance of R.J. Kenney's work was the inspection of failed concrete systems, designing of repairs, testing of repairs as well as serving as the construction manager28 for SAAMS. See Gross, 710 P.2d at 1010 (Alaska 1986). Alaska's Contractor Registration Statute should not be applied to R.J. Kenney's testing, design, consulting, and construction management work because manager. The Court has the authority to certify a question to a state's highest court. See generally White v. Celotex Corp., 907 F.2d 104, 106 (9 th Cir. 1990). 27See e.g. Exc. 0087, Introductory remarks that the agreement is to provide design, construction and repair services, which required that the Architect/Engineer shall be responsible for entering into contracts for labor, materials, general conditions and environmental controls required for the Project. 28A "construction manager assists the owner in arranging for the contractors and the architects who will actually do the work, seeing to it that their efforts are coordinated from the very start of the design process to the final delivery of the completed facility." Sagamore Group, Inc. v. Commissioner of Transportation, 614 A.2d 1255, 1259 (Conn App. 1992). 28 these statutes are strictly construed. AS 08.18.151 imposes a harsh penalty on contractors and thus has not been given a broad or liberal construction. Alaska Protection Services, Inc. v. Frontier Colorcable, Inc., 680 P.2d 1119 (Alaska 1984). R.J. Kenney should be allowed to present its claims in court because as an engineer, architect, and construction manager, its activities and work at the ASLC do not fall within the literal meaning of Alaska's contractor registration statutes. Because AS 08.18.151 causes the forfeiture of an otherwise valid claim, it should not be given a broad or liberal construction. Industrial Power, 623 P.2d at 293 (Alaska 1981). Public policy precludes giving this statute anything but a literal reading. It would be unfair to prevent R.J. Kenney from recovering damages from SAAMS simply because his contract is unenforceable. Id. The District Court erred because it based its decision to dismiss R.J. i `c lai5 s upon die coiitrau1 n applying S 08 9 n 011 . 1 to Skein_ i contrail ian upon a u AS uo. i c.0 1. f to isolated contract clauses and deciding those clauses mandated R.J. Kenney's registration as a contractor. R.J. Kenney's role at the ASLC never included acting as a contractor or undertaking construction. (Exc. 0150.) VIII. CONCLUSION Summary judgment against R.J. Kenney's contract claims based upon its failure to register as construction contractor under Alaska law should not have been granted because there are genuine issues of material facts. SAAMS is not 29 the n'yof KENAI. ALASKA January 14, 2009 Scott A. Schillinger 3531 Nova Circle Anchorage AK 99517 Tillage with a Past, Ci with a Future 210 Fidalgo Avenue, Kenai, Alaska 99611 -7794 Telephone: (907) 283 -7535 / Fax: (907) 283 -3014 www.ci.kenai.ak.us RE: City Attorney position — City of Kenai Dear Mr. Schillinger: We are in receipt of, and thank you for submitting, your application for consideration regarding our City Attorney position. We will begin our review process in February. Please let us know if you have any questions. CITY OF KENAI C,aiy,,R. Graves (City' Attorney SUPPLEMENTAL FROM SCOTT SCHILLINGER Lee Salisbu From: Sent: To: Subject: Dear Ms. Salisbury: Scott Schillinger [schillinger @alaska.comj Thursday, February 26, 2009 6:12 AM Lee Salisbury RE: Kenai City Attorney I have tried one traffic court case. Most of my career has been spent in trial preparation and motions practice. I have, of course, appeared in court many times for hearings. Please let me know if I can provide any further information. Scott From: Lee Salisbury [mailto:lsalisbury@ci , kenai.ak.us] Sent: Wednesday, February 25, 2009 4:38 PM To: schillinger @alaska.com Subject: Kenai City Attorney Mr. Schillinger, We are in the process of reviewing resumes for the position of Kenai City Attorney. Could you please let us know regarding your experience in civil or criminal trials. Thank you in advance for your assistance with this request. Lee Salisbury Legal Admin. Asst. 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