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Falke v. Fairbanks City Council (6/12/98), 960 P 2d 589
Notice: This opinion is subject to correction before publication in
the Pacific Reporter. Readers are requested to bring errors to the attention of
the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone
(907) 264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
WOLFGANG FALKE, )
) Supreme Court No. S-8021
) Superior Court No.
v. ) 4FA-96-2423 CI
THE COUNCIL OF THE CITY OF )
FAIRBANKS, ALASKA, in parti- )
cular MAYOR JAMES C. HAYES, )
COUNCILMEN BILLIE RAY ALLEN, ) O P I N I O N
JERRY CLEWORTH, JOHN IMMEL, )
ROMAR SWARNER, JIM WHITAKER, )
and BOB WOLTING, )
Appellees. ) [No. 5002 - June 12, 1998]
Appeal from the Superior Court of the State of
Alaska, Fourth Judicial District, Fairbanks,
Niesje J. Steinkruger, Judge.
Appearances: Wolfgang Falke, Fairbanks, pro
se. Paul J. Ewers, Deputy City Attorney, Office of the City
Attorney, Fairbanks, for Appellees.
Before: Matthews, Chief Justice, Compton,
Eastaugh, Fabe, and Bryner, Justices.
The City of Fairbanks operated the Fairbanks Municipal
Utilities System (FMUS) for many years. FMUS provides telecommuni-
cation, electric, water, wastewater, and heating services to
Fairbanks residents. In 1996 the City received an unsolicited
proposal for the sale of FMUS. The city council passed a
resolution providing a procedure for review of the initial
proposal, as well as other proposals. The public participated in
council meetings throughout 1996. After public hearings on the
issue, the city council passed an ordinance providing for the sale
of FMUS if approved by voters at the October 1996 general election.
The voters approved the sale.
Wolfgang Falke and twelve other Fairbanks property owners
filed the instant action against the city council, alleging that
Fairbanks property owners are de facto owners of FMUS and that the
sale constitutes a taking under article I, section 18 of the Alaska
Constitution. The City moved for judgment on the pleadings for
failure to state a claim upon which relief may be granted. Falke
requested a trial by jury.
At the hearing on the City's motion, the trial court
indicated that it was treating the City's motion for judgment on
the pleadings as a motion for summary judgment. The trial court
granted the City's motion, and dismissed Falke's action. This
Falke argues two issues on appeal. First, he claims that
he has a right to a jury trial under article I, section 16 of the
Alaska Constitution. Second, he contends that the court erred in
granting summary judgment for the City. Neither argument has
Article I, section 18 of the Alaska Constitution provides
that "[p]rivate property shall not be taken or damaged for public
use without just compensation." This clause does not apply to this
case because, among other reasons, FMUS was public rather than
private property. The fact that property owners funded the
construction and operation of FMUS through tax assessments does not
make the property owners de facto owners of FMUS. As no genuine
issues of material fact were presented, summary judgment was
proper. A proper grant of summary judgment does not infringe jury
trial rights. See Plaisance v. Phelps, 845 F.2d 107, 108 (5th Cir.
1988); Sengupta v. Morrison-Knudsen Co., 804 F.2d 1072, 1077-78 n.3
(9th Cir. 1986).
The judgment is AFFIRMED.