Motion — Spendlove v. Anchorage Municipal Zoning Board of Examiners & Appeals

Supreme Court, U.S.

FIEED

oN AUG T2885

j 3 )

No. 85-37 JOSEPH F. SPANIOL, JR, |

CLERK

IN THE

Supreme Court of the United States

October Term, 1985

RODNEY SPENDLOVE and

EMILY SPENDLOVE,

Appellants,

Vv.

ANCHORAGE MUNICIPAL ZONING

BOARD OF EXAMINERS AND APPEALS

and UPPER DeARMOUN AREA HOMEOWNERS

ASSOCIATION, INC.

Appellees.

ON APPEAL FROM THE SUPREME COURT

FOR THE STATE OF ALASKA

MOTION OF APPELLEES TO DISMISS OR AFFIRM

Allan E. Tesche

Deputy Municipal Attorney

Municipality of Anchorage

P.O. Box 6-650

Anchorage, Alaska 99502-0650

Telephone: (907) 264-4545

*Counsel of Record

Gary C. Tucker*

Assistant Municipal Attorney

Municipality of Anchorage

P.O. Box 6-650

Anchorage, Alaska 99502-0650

Telephone: (907) 264-4545

BEST AVAILABLE COPY

i

SUBJECT INDEX

Page

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STATUTES AND RULES OF COURT INVOLVED ........... Vv

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SERINE WUUMEEIU ETE? .0. 0c ccvecnesssccvceveeec:senecsseneecens 4

et Seka cd dace wins u've egdavees ¥siaua co umiveacue'eas 4

1. THE FEDERAL QUESTION WAS NOT TIMELY

RAISED BY APPELLANTS AND WAS NOT CONSID-

ERED BY THE STATE COURTS BELOW ............... +

Il. THE SPENDLOVES’ APPEAL DOES NOT PRESENT A

SUBSTANTIAL FEDERAL QUESTION ................... 6

Hil. THIS COURT SHOULD NOT REVIEW THE SPEND-

LOVES’ APPEAL AS THE APPEAL RESTS SOLELY

ON QUESTIONS OF FACT DECIDED BY THE STATE

STE Se CURED cipicnceeuss ced senineeicccvetsddéned eyes 8

os din aphasia dbad ote nek <imits tvgie saya vaedee A Wied 10

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et rs sian i candivins oebd papay aprneentenenceaskasuanuiaiun a-6

eres cn oa amavkuakariewivieesbiabaasysuelns + sinns a-9

Do, Tans ce otngh edd ah uvinddelecvsastaheneseysacaneienvh- a-12

ES Ln os dudiana sd cenuntineste. geuedeeensvhantedetesnecersys a-15

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ii

TABLE OF AUTHORITIES

CASES PAGE

Beck v. Washington, 369 U.S. 541, 8 L.Ed.2d 98, reh’g. denied,

SFO. U.S. SES, FS ee I osc vec hcerecccitestiaxccctecsn: 5

California Liquor Dealers v. Mid-Cal Aluminum,

445 US. DF, Fe ee ee web ec anesiepnneceiisdes 9

Cardinale v. Louisiana, 394 U.S. 437,

SE 1, Fae. Bk Fe acne ead edn ch oaincensitsse 5

Chemical National Bank of Chicago v. City of Portage,

1GO.U.S. COG, 4B LB Bee Ce Bee Catv dana Hen sac de dcccaceconess 9

Congress of Industrial Organizations v. McAdory,

32S U.S. SF6, FP Ee aac tata htecieeniesss cv eves 5

Dower v. Richards, 151 U.S. 658, 38 L.Ed 305 (1894) ............ 9

Evco v. Franklin Jones, 459 U.S. 91, 34 L.Ed.2d

32S (3GT]) .0<n<cscennencssatiieeee EE Aaigkaubkbtcccsstes 9

Exxon Corp. v. Eagerton, 462 U.S. 176, 76 L.Ed.2d

GIT (1296S) . ... . 0s 4 uckccakidetehiee dee cecdnaaheditas ena vhessass 6

Fry Roofing Co. v. Wood, 344 U.S. 157, 97 L.Ed 168 (1952),

reh’g. denied, 345 U.S. 913, 97 L.Ed. 1237 (1953) ............. 9

Fuller v. Oregon, 417 U.S. 40, 40 L.Ed.2d

G42 C1976) ....000s0aknsncedecuaiee ee een etabetetinnak eee 6

Hanson v. Denckla, 357 U.S. 235, 21 L.Ed.2d 1283,

reh’g. denied, 358 U.S. 858, 3 L.Ed.2d 92 (1958) ............... 6

Harding v. Illinois, 196 U.S. 78, 49 L.Ed 394 (1904) ............. 6

Herndon v. Georgia, 295 U.S. 441, 79 L.Ed 1530 (1935),

reh’ g denied, 296 U.S. 661, 80 L.Ed 471 (1936) ................. 6

Kansas City Southern Railway Co. v. C.H. Albers Commission Co.,

223 U.S. SES, Fi Re ee edn tee sv icncrndcniseneeses 9

Moran v. Holman, 501 P.2d 769 (Alaska 1972) ...................4. 5

Myers v. Sill 497 P.2d 920 (Alaska 1972) ................cceseeeeeeees 5

Oceanview Homeowners Association v. Quadrant Contruction

and Engineering, 680 P.2d 793 (Alaska 1984) .................... 5

iil

Radio Station WOW v. Johnson, 326 U.S. 120,

EID oi hincbeZéuh ChsUhis ps ahah does by ope ntetdn debts Sant 6

Rodney and Emily Spendlove v. Anchorage Municipal Zoning Board

of Examiners and Appeals, 695 P.2d 1074, reh’g. denied, ___ P.2d

, File Nos. 5663, 5680 (Alaska 1985) .............20000005. 2,4

State v. McCracken, 520 P.2d 787 (Alaska 1973),

i ie EE Re eee 5

Street v. New York, 394 U.S. 576, 22 L. Ed.2d

Ne ee eaees ste nwerscrcersaeys ies 6

Tumey v. State of Ohio, 273 U.S. 510,

sc ravantaeepouauinededsave 7

Veal v. Newlin, Inc., 367 P.2d 155 (Alaska 1961) .................. 5

Watts v. Seward School Board, 423 P.2d 678 (Alaska 1967), denying

reh’ g., 421 P.2d 586 (Alaska 1966), vacated and remanded on other

grounds, 391 U.S. 592, 20 L.Ed.2d 842 (1968) .................. 5

Watts v. Seward School Board, 454 P.2d 732, (Alaska 1969),

cert, denied, 397 U.S. 921, 25 L.Ed.2d 101 (1970) ............. 2

Wernberg v. State, 519 P.2d 801 (Alaska 1974) ..................04. 5

Wilson v. Cook, 327 U.S. 474, 90 L.Ed

i ane SU yaa gale lceidcceucsexeceteandasneasss 5

Wren v. State, 577 P.2d 235 (Alaska 1978) ...............cceeeeeeees 5

iV

RELEVANT STATUTES

AND ALASKA RULES OF COURT PAGE

Fog. Bice Eaten Peper eee eer errr errer irre v, 4,5

Alaska Statutes § 22.20.020 (1984) ..................4. ¥; 2,3, 7,89

Alaska Rules of Court, Appellate Rule 210(e) .................... vi, 5

Alaska Rules of Court, Appellate Rule 212 ....................44 vi, 5

Alaska Rules of Court, Appellate Rule 506(a) .....................4: vii

v

STATUTES AND RULES OF COURT INVOLVED

UNITED STATES CODE

28 U.S.C. § 1257 provides:

Final judgments or decrees rendered by the highest court of

a State in which a decision could be had, may be reviewed by

the Supreme Court as follows:

(1) By appeal, where is drawn in question the validity of a

treaty or statute of the United States and the decision is against

its validity.

(2) By appeal, where is drawn in question the validity of a

statute of any state on the ground of its being repugnant to the

Constitution, treaties or laws of the United States, and the decision

is in favor of its validity.

(3) By writ of certiorari, where the validity of a treaty or

statute of the United States is drawn in question or where the

validity of a State statute is drawn in question on the ground of

its being repugnant to the Constitution, treaties or laws of the

United States, or where any title, right, privilege or immunity is

specially set up or claimed under the Constitution, treaties or

statutes of, or commission held or authority exercised under, the

United States. June 25, 1948, c. 646, 62 Stat. 929.

For the purposes of this section, the term ‘‘highest court of a

State’’ includes the District of Columbia Court of Appeals. (As

amended July 29, 1970, Pub.L. 91-358, Title I, § 172(a)(1), 84

Stat. 590).

ALASKA STATUTES

Alaska Stat. § 22.20.020 (1984) provides:

Disqualification of judicial officer for cause. (a) A judicial officer

may not act as such in a court of which the judicial officer is a

member in an action in which

(1) the judicial officer is a party or is directly interested;

(2) the judicial officer was not present and sitting as a member

of the court at the hearing of a matter submitted for its decision;

(3) the judicial officer is a material witness;

5 nT

vi

(4) the judicial officer is related to either party by consanguinity

or affinity within the third degree;

(5) either party has retained the judicial officer as their attorney

or has been professionally counseled by him in any matter within

two years preceding the filing of the action;

(6) the judicial officer feels that, for any reason, a fair and impartial

decision cannot be given.

(b) In an action specified in (a) (4) and (5) of this section the

disqualification may be waived by the parties and is waived unless

a party raises the objection.

(c) If a Judicial officer disqualifies himself or herself or consents

to disqualification, the presiding judge of the district shall im-

mediately transfer the action to another judge of that district to

which the objections of the parties do not apply or are least

applicable and if there is no such judge, the chief justice of the

supreme court shall assign a judge for the hearing or trial of the

action. If a judicial officer denies disqualification the question

shall be heard and determined by another judge assigned for the

purpose by the presiding judge of the next higher level of courts

or, if none, by the other members of the supreme court. The

hearing may be ex parte and without notice to the parties or judge.

(§ 54-2-1 ACLA 1949; am § 1 ch 48 SLA 1967)

ALASKA RULES OF COURT

Appellate Rule 210(e) provides:

Rule 210. Record on Appeal.

(e) Statement of Points. At the time of filing his notice of appeal,

the appellant shall serve and file with this designation a concise

statement of the points on which he intends to rely on the appeal.

The appellate court will consider nothing but the points so stated.

On motion in the appellate court, and for cause, the statement of

points may be supplemented subsequent to the filing of the desig-

nation of record.

Appellate Rule 212 provides in relevant part:

Rule 212. Briefs.

(a)

(c)

Vii

Serving and Filing Briefs.

(1) Time for Serving and Filing Briefs. The appellant shall

serve and file his brief within 30 days after notice of certifi-

cation of the record has been served. The appellee shall

serve and file his brief within 30 days after service of the

brief of the appellant. The appellant may serve and file a

reply brief within 20 days after service of the brief of the

appellee. At the time a brief is filed with the appellate court,

it must be accompanied by proof of service on all parties.

Substantive Requirements.

(1) Brief of Appellant. The brief of the appellant shall contain

the following items under appropriate headings and in the

order here indicated:

[f} A statement of the issues presented for re-

[h] Argument. The argument may be preceded by a

summary. The argument shall contain the conten-

tions of the appellant with respect to the issues

presented, and the reasons therefor, with citations

to the authorities, statutes and parts of the record

relied on... ..

Appellate Rule 506(a) provides:

Rule 506. Rehearing.

(a) Grounds for Petition. The court may order a rehearing of a

matter previously decided if, in reaching its decision:

(1) The court has overlooked, misapplied or failed to con-

sider a statute, decision or principle directly controlling; or

(2) The court has overlooked or misconceived some material

fact or proposition of law; or

(3) The court has overlooked or misconceived a material

question in the case.

A rehearing will not be granted if it is sought merely for the

purpose of obtaining a reargument on the reconsideration of mat-

ters which have already been fully considered by the court.

————— 1,

|

No. 85-37

IN THE

Supreme Court of the United States

October Term, 1985

RODNEY SPENDLOVE and

EMILY SPENDLOVE,

Appellants,

Vv.

ANCHORAGE MUNICIPAL ZONING

BOARD OF EXAMINERS AND APPEALS

and UPPER DeARMOUN AREA HOMEOWNERS

ASSOCIATION, INC.

Appellees.

ON APPEAL FROM THE SUPREME COURT

FOR THE STATE OF ALASKA

MOTION OF APPELLEES TO DISMISS OR AFFIRM

Appellee Anchorage Municipal Zoning Board of Examiners and

Appeals' moves to dismiss the above-entitled appeal or affirm the

decision of the Supreme Court of Alaska for the following reasons:

'Hereinafter the ‘‘Municipality of Anchorage’’. The Municipality of Anchorage is the

unit of local government which established the Anchorage Municipal Zoning Board

of Examiners and Appeals pursuant to Anch. Mun. Code 4.40.130.

2

1. The federal question presented was neither timely raised in, nor

considered by the state courts of Alaska.

2. The federal question sought to be reviewed is not substantial.

3. The appeal rests solely on questions of fact decided in the state

courts of Alaska.

INTRODUCTION

This appeal is taken from a decision of the Supreme Court of Alaska,

Rodney and Emily Spendlove v. Anchorage Municipal Zoning Board

of Examiners and Appeals, 695 P.2d 1074, reh’g. denied, ___P.2d

___., File Nos. 5663, 5680 (Alaska 1985), in which that court affirmed

a decision of the Superior Court of the State of Alaska upholding an

administrative zoning enforcement order adverse to Appellants. That

order forbids Appellants from continuing to operate a gravel mine, as

a nonconforming use, within an exclusively residential neighborhood

under the zoning ordinance for the Municipality of Anchorage.

This appeal challenges, on federal constitutional grounds, the appli-

cation of Alaska Stat. § 22.20.020 by the trial court in refusing to

recuse himself at the request of Appellants. Federal issues were first

raised in Appellants’ petition for rehearing before the Supreme Court

of Alaska following that court’s decision in Spendlove v. Anchorage

Municipal Zoning Board of Examiners and Appeals, 695 P2d. 1074.

For the reasons set forth below, the Municipality believes this appeal

has no merit and should be dismissed, or that this Court should affirm

the decision of the Supreme Court of the State of Alaska.

THE PROCEEDINGS BELOW

From an enforcement order issued by the Chief Zoning Inspector

for the Municipality of Anchorage limiting Appellants’ alleged noncon-

forming gravel mining operation to a seven and one-half acre tract,

the Spendloves appealed to the Anchorage Zoning Board of Examiners

and Appeals”. Local residents also appealed that decision, claiming

Appellants could not lawfully mine gravel on any portion of their

property. The Zoning Board, after extensive public hearings, deter-

mined that Appellants were not entitled to mine gravel on their property

and ordered Apyellants to cease such operations altogether. The order

2Hereinafter **Zoning Board.’’ Zoning Board refers tc this body in its role of reviewing

zoning decisions.

we

3

altogether. The order of the Zoning Board was appealed by Appellants

to the State Superior Court.

Approximately six months before trial in Superior court but after

rulings on some preliminary motions, Aprellants’ attorney asked the

trial judge, the Honorable James K. Singleton, to recuse himself. This

request was not supported by sworn affidavit or oral testimony from

Appellants or any other person, but instead consisted only of argument

of counsel contained in a letter directed to the trial court on October

12, 1978. That letter is reproduced at page 44 of Appellants’ Jurisdic-

tiona! Statement. Judge Singleton subsequently convened a conference

on October 16, 1978, with counsel and obtained the presence of a city

official, Mitchell Gravo, knowledgeable in the transactions claimed

by Appellants’ attorney to support recusal. At that conference, the

judge offered his candid recollection of past events, answered questions

from counsel, questioned Mr. Gravo and allowed his cross-examina-

tion, and heard extensive argument from all attorneys present. Briefs

and affidavits of several witnesses were subsequently submitted by the

Municipality of Anchorage challenging the factual assertions made in

Appellants’ letter requesting disqualification of the trial judge. (These

materials are contained in Appendices A through E.) After the confer-

ence of October 16, 1978, Judge Singleton denied Appellants’ request

that he be disqualified from hearing the case and, as required by Alaska

Statute 22.20.020(c), referred Appellants’ request to another judge

assigned by the Supreme Court of Alaska for review and decision. On

October 19, 1978, Presiding Superior Court Judge Ralph M. Moody

conducted a hearing on Appellants’ motion to disqualify Judge Single-

ton and heard extensive arguments of counsel. Judge Moody agreed

that Judge Singleton should not have been disqualified, and denied

Appellants’ motion (Appendix F).

On request of the Spendloves, trial de novo was conducted in May

and June of 1979 on all claims and counterclaims made by the parties.

The Spendloves were represented by counsel throughout those proceed-

ings. The trial court subsequently ruled in favor of the Appellees

Municipality of Anchorage and the Upper DeArmoun Homeowner's

Association. The court entered an order which requires the Spendloves

to cease gravel mining operations, abate environmental hazards, and

restore the property in a manner consistent with its residential zoning.

Appellants then appealed the decision of the Superior Court to the

Supreme Court of Alaska.

4

Spendloves’ appeal and briefs of counsel to the Supreme Court of

Alaska challenged the trial court’s decision on many grounds not raised

here and also challenged, on state grounds only, the decisions of Judges

Singleton and Moody regarding the requested disqualification of Judge

Singleton.

On March 29, 1985, after receiving an adverse judgment from the

Supreme Court of Alaska, Spendlove v. Anchorage Municipal Zoning

Board of Examiners and Appeals, 695 P.2d 1074, (Alaska 1985),

Appellants petitioned that court pro se for rehearing. In their petition

for rehearing, Appellants raised for the first time the argument that the

failure of Judge Singleton to disqualify himself violated their rights

under the United States Constitution. Rehearing was denied on April

5, 1985, by the Supreme Court of Alaska, and this appeal to the

Supreme Court under 28 U.S.C. § 1257(2) followed.

QUESTIONS PRESENTED

1. Have Appellants failed to raise and litigate a federal constitutional

question in the courts of Alaska relating to the disqualification

of the trial judge, thereby precluding review of that issue by this

Court?

2. Does Spendloves’ present appeal a substantial federal question

which warrants review by this Court?

3. As the question of whether the state courts erred in refusing to

disqualify the trial judge was entirely factual in nature, is review

by this Court appropriate?

ARGUMENT

I. THE FEDERAL QUESTION WAS NOT TIMELY RAISED

BY APPELLANTS AND WAS NOT CONSIDERED BY THE

STATE COURTS BELOW

This Court should not entertain the appeal of Rodney and Emily

Spendlove because Appellants failed to raise the federal question in

the courts of the State of Alaska before bringing that claim to this

Court. Appellanis first raised the issue of whether refusal of the trial

court to disqualify Judge Singleton violated federal rights in their pet-

ition for rehearing before the Alaska Supreme Court. Appellants’ dis-

satisfaction with Judge Singleton was not identified as a federal constitu-

5

tional issue before the trial court (see letter of Appellants’ counsel

dated October 12, 1978, Appellants’ Jurisdictional Statement, Appen-

dix p. 44) It was not so identified in the Spendlove’s Statement of

Points on Appeal filed with the Alaska Supreme Court (see Appendix

G), and it was not briefed as such to the Supreme Court of Alaska.

This Court will entertain an appeal from the highest court of a state

and decide a federal question raised in that appeal only if that same

question was raised and decided in the state courts below. 28 U.S.C.

§ 1257(2); Cardinale v. Louisiana, 394 U.S. 437, 438-439, 22 L.Ed.2d

398, 400-401 (1969); Wilson v. Cook, 327 U.S. 474, 479-482, 90

L.Ed 793, 799-800 (1946). Whether the federal question was suffi-

ciently raised in the state courts before appeal may be taken to this

Court is determined by resort to law governing practice and procedure

in the state courts. A federal question not properly raised in accordance

with those state procedures cannot, for the first time, be raised and

litigated on appeal to the United States Supreme Court. Beck v.

Washington, 369 U.S. 541, 549-554, 8 L.Ed.2d 98, 107-109, reh’g.

denied, 370 U.S. 965, 8 L.Ed.2d 834 (1962); Congress of Industrial

Organizations v. McAdory, 325 U.S. 472, 477, 89 L.Ed 1741, 1745

(1945).

Rules of the Alaska Supreme Court require that in order for a

question to be properly before that court, the question must be raised

in the Statement of Points on Appeal filed with the court, Alaska Rules

of Court, Appellate Rule 210(e); Oceanview Homeowners Association

v. Quadrant Construction and Engineering, 680 P.2d 793, 797 (Alaska

1984); Moran v. Holman, 501 P.2d 769, 770 (Alaska 1972); Myers

v. Sill, 497 P.2d 920, 923 (Alaska 1972), and that the issue be

adequately briefed. Wren v. State, 577 P.2d 235, 237, n. 2 (Alaska

1978); Myers, supra; Veal v. Newlin, Inc., 367 P.2d 155, 157 (Alaska

1961); Alaska Rules of Court, Appellate Rule 212(c)(1)[f]. The Alaska

Supreme Court properly refuses to consider matters which come before

it for the first time on a petition for rehearing. State v. MckCracken,

520 P.2d 787, 790-791 (Alaska 1973), reh’ g. denied, (1974); Wernberg

v. State, 519 P.2d 801, 804 (Alaska 1974); Watts v. Seward School

Board, 454 P.2d 732, 737 (Alaska 1969); cert. denied, 397 U.S. 921,

25 L.Ed.2d 101 (1970); Watts v. Seward School Board, 423 P .2d 678,

679 (Alaska 1967), denying reh’ g. 421 P.2d 586 (Alaska 1966), vacated

and remanded on other grounds, 391 U.S. 592, 20 L.Ed.2d 842 (1968).

As the Spendloves failed to raise and litigate the federal constitutional

question before the trial court or in full briefing before the Supreme

Court of Alaska, that court properly denied their petition for rehearing.

6

The Spendloves’ Jurisdictional Statement candidly admits the fed-

eral question brought to this Court was first raised only in connection

with their petition for rehearing before the Supreme Court of the State

of Alaska. Appellants’ Jurisdictional Statement, pp. 2-3. Appellants

raised that issue too late, however, because this Court will not assume

appellate jurisdiction over questions raised for the first time in a state’s

highest court on a petition for rehearing. Radio Siation WOW v.

Johnson, 326 U.S. 120, 128, 89 L.Ed 2092, 2099-2100 (1945);

Herndon v. Georgia, 295 U.S. 441, 443, 79 L.Ed 1530, 1532 (1935),

reh’g denied, 296 U.S. 661, 80 L.Ed 471 (1936); Harding v. Illinois,

196 U.S. 78, 84, 49 L.Ed 394, 396 (1904); Hanson v. Denckla, 357

U.S. 235, 244, 21 L.Ed.2d 1283, 1292, reh’g. denied, 358 U.S. 858,

3 L.Ed.2d 92 (1958).

An exception to this rule occurs when the state’s highest court

actually entertained and decided the question. Radio Station WOW,

supra; Herndon, supra. Here, however, the Alaska Supreme Court

did not pass on the due process and equal protection issues as that

court denied the Spendloves’ petition for rehearing without opinion.

“‘[W]hen . . . the highest state court has failed to pass upon a federal

question, it will be assumed that the omission was due to want of

proper presentation in the state courts, unless the aggrieved party in

this court can affirmatively show the contrary.”’ Street v. New York,

394 U.S. 576, 581-582, 22 L.Ed.2d 572, 579 (1969); Exxon v. Eager-

ton, 462 U.S. 176, 181, n.3, 76 L.Ed.2d 497, 504, n.3 (1983); Fuller

v. Oregon, 417 U.S. 40, 50, n.11, 40 L.Ed.2d 642, 653 n. 11 (1974).

Appellants here have not made and, indeed, cannot make a showing

of proper presentation in the state courts.

Because Appellants failed to raise a federal question relating to the

disqualification of Judge Singleton before the courts of the State of

Alaska, this court should decline to consider the merits of this appeal.

Il. THE SPENDLOVES’ APPEAL DOES NOT PRESENT A

SUBSTANTIAL FEDERAL QUESTION

Even if the factual allegations made by Appellants in this appeal’

are true, a substantial federal question that warrants review by this

Court has not been presented.

3s noted supra, the Municipality challenged Spendlove’s factual allegations with

testimony and sworn affidavits presented to Judges Singleton and Moody in response

to the Spendloves’ motion to disqualify Judge Singleton, and in no way concedes the

truth of Spendloves’ allegations.

7

Although Appellants claim the trial judge served as vice-chairman

of a non-profit civic organization whose program inciuded restricting

gravel operations such as that operated by Appellants, the record totally

lacks any claim or proof indicating that Judge Singleton had any sub-

stantial personal and pecuniary stake in the outcome of this case, or

that Judge Singleton acted in a biased or improper manner. In addressing

the question of whether a challenge to the qualification of a state

judicial officer involves substantial federal questions, this Court wrote:

All questions of judicial qualification may not involve constitu-

tional validity. Thus matters of kinship, personal bias, state pol-

icy, remoteness of interest would seem generally to be matters

merely of legislative discretion. Wheeling v. Black, 25 W. Va.,

266, 270. But it generally violates the Fourteenth Amendment

and deprives the defendant in a criminal case of due process of

law to subject his liberty or property to a judgment of a court,

the judge of which has a direct, personal, substantial pecuniary

interest in reaching a conclusion against him in his case.

Tumey v. State of Ohio, 273 U.S. 510, 523, 71 L.Ed 749, 754 (1927).

The most comprehensive statement of Appellants’ challenge of

Judge Singleton is set forth in a letter sent by Appellants’ attorney on

October 12, 1978 to the trial court. Appellants’ Jurisdictional State-

ment, Appendix p. 44. The allegations in that letter support only the

proposition that Judge Singleton was vice-chairman of a non-profit

organization which sought recognition for Anchorage as an All-America

city by closing down Appellants’ gravel pit and that the non-profit

organization received funds from a business competitor of the

Spendloves. That letter, and Appellants’ other unsupported allegations

fall far short of showing or even alleging that the trial judge had any

direct, personal or pecuniary stake. in the outcome of this litigation.

Matters of judicial qualification in general and questions of judicial

bias in particular are best left to the states. Tumey v. Ohio, supra.

Alaska, like other states, has enacted a statute setting forth grounds

for disqualification of judicial officers. Alaska Stat. § 22.20.020 re-

quired an initial determination by Judge Singleton as to whether he

could hear the case. As noted supra, that determination was made only

after an extensive hearing at which counsel for all parties participated,

were given an opportunity to ask questions of the judge, presented

their own evidence and questioned the city official who was most

8

knowledgeable about the transactions in question. Furthermore, as

required by Alaska Stat. § 22.20.020, Appellants’ motion was sub-

sequently referred to another judge assigned by the Supreme Court for

review after Judge Singleton’s decision not to recuse himself. At the

second hearing, before Judge Moody, attorneys for all parties were

again given opportunities to argue their respective positions. The ques-

tion of Judge Singleton’s qualifications to hear this case was litigated

vigorously in the state courts of Alaska and ultimately decided adversely

to Appellants. This question, however, is not a federal question. It

should remain in the state courts of Alaska.

Iii. THIS COURT SHOULD NOT REVIEW THE SPENDLOVES’

APPEAL AS THE APPEAL RESTS SOLELY ON QUESTIONS

OF FACT DECIDED BY THE STATE COURTS OF ALASKA

Appellants ask this Court to reweigh facts offered to the trial court

and to make its own determination as to whether sufficient factual

grounds have been shown by Appellants to require disqualification of

the trial judge under Alaska Stat. § 22.20.020. As this Court is requested

by Appellants to reweigh facts submitted to the trial court and second-

guess the trial court’s application of a state statute on factual grounds,

review is inappropriate.

The letter of the Spendloves’ attorney of October 12, 1978 sought

disqualification of the trial judge based on a number of unproven and

unsupported factual allegations which were subsequently repeated in

the oral argument before Judge Singleton and later Judge Moody.

Those allegations were squarely contradicted by sworn affidavits of-

fered by the Municipality of Anchorage (see Affidavits of Mitchell

Gravo, Jerry Wertzbaugher and Joe Stimson, Appendices C, D and E

respectively), by testimony of Mitchell Gravo given at a hearing con-

ducted on October 16, 1978, and by comments made by Judge Singleton

himself during that hearing. Nor did Appellants offer any evidence to

support their allegations. Appellants’ subsequent appeal to the Alaska

Supreme Court argued that the facts alleged by Appellants supported

disqualification of Judge Singleton and that Judges Singleton and

Moody erred in denying Appellants’ motion to disqualify Judge Sing-

leton. Treatment of this question, therefore, at both the trial court level

and by the parties on briefing to the Supreme Court of Alaska was

entirely on issues of fact and interpretation of evidence offered by all

parties in support of their positions.

9

This Court is reluctant to entertain appeals taken from decisions of

state courts which rest, as in this case, entirely on factual grounds

litigated by the parties in the state courts. Review by this Court of

decisions of state courts resting on questions of fact is not within the

jurisdiction of this Court. See, Dower v. Richards, 151 U.S. 658, 38

L.Ed 305 (1894); Chemical National Bank of Chicago v. City of Por-

tage, 160 U.S. 646, 40 L.Ed 568, (1896); and Kansas City Southern

Railway Co. v. C.H. Albers Commission Co., 223 U.S. 573, 56

L.Ed.2d 556 (1912).

The Spendloves’ initial motion to disqualify Judge Singleton and

their appeal to the Supreme Court of Alaska relied solely on unsupported

factual allegations made by their attorney which were contested by

affidavits and testimony offered by the Municipality. Unlike the facts

in Kansas City Southern Railway Co. v. Albers supra. those questions

of fact are not so involved with or dependent on questions of federal

law as to require examination of the entire factual record by this Court.

The affidavits submitted by the Municipality in opposition to Appel-

lants’ motion, together with testimony of Mitchell Gravo given during

the hearing conducted on October 16, 1978 by Judge Singleton under-

score the factual nature of the controversy then before the court, and

plainly demonstrate the existence of an ample evidentiary basis for the

trial court’s refusal to disqualify itself under Alaska Stat. § 22.20.020.

Absent a showing of exceptional circumstances (which has not been

made by Appellants) this Court will not reject or otherwise disturb

factual determinations of lower state courts where supported by an

evidentiary foundation. Fry Roofing Co. v. Wood, 344 U.S. 157, 97

L.Ed 168 (1952), reh’g. denied, 345 U.S. 913, 97 L.Ed. 1237 (1953);

Evco v. Franklin Jones, 459 U.S. 91, 34 L.Ed.2d 325 (1972); Califor-

nia Liquor Dealers v. Mid-Cal Aluminum, 445 U.S. 97, 63 L.Ed.2d

233 (1980).

As Appellants’ motion to disqualify the trial court was litigated

before the courts of Alaska on factual rather than legal grounds, and

because the decisions of the trial court were supported by a substantial

evidentiary foundation of affidavits and testimony offered in opposition

to that motion, this Court should not reweigh the evidence or redecide

the factual questions litigated.

10

CONCLUSION

For all the “oregoing reasons, this appeal should be dismissed, or,

alternatively the decision of the Supreme Court of Alaska should be

affirmed.

Respectfully submitted, this Z/._day of August, 1985.

ANCHORAGE MUNICIPAL

ZONING BOARD OF

EXAMINERS AND APPEALS

By: BL

Gary C. Tucker*

Assistant Municipal Attorney

By: VGA

Allen E. Tesche

Deputy Municipal Attorney

*Counsel of Record

APPENDICES

APPENDIX A

IN THE SUPERIOR COURT FOR THE STATE OF ALASKA

THIRD JUDICIAL DISTRICT

RODNEY SPENDLOVE,

Appellant,

VS.

ANCHORAGE MUNICIPAL ZONING

BOARD OF EXAMINERS AND

APPEALS,

i

Appellee.

No. 3AN-78-3303 CIV.

MEMORANDUM IN OPPOSITION TO APPLICATION

FOR DISQUALIFICATION OF JUDGE

STATEMENT OF FACTS

This matter is an appeal from a decision of the Anchorage Municipal

Zoning Board of Examiners and Appeals, dated March 30, 1978, who

ordered Rodney Spendlove to refrain from using his Hillside property

for gravel extraction operations. In addition to this appeal, Mr.

Spendlove also filed a separate action in Superior Court seeking an

injunction against enforcement of the Board’s Order. The two cases

have never been consolidated although they raise identical legal and

factual issues. The injunction matter, captioned Rodney and Emily

Spendlove v. Municipality of Anchorage, (3AN-78-2860 CIV.) remains

assigned to the Honorable Mark C. Rowland. The administrative ap-

peal, captioned as Splendleve v. Anchorage Municipal Zoning Board

of Examiners and Appeals, |3AN-78-3303 CIV.], is assigned to the

Honorable James K. Singleton.

In challenging the Board’s order, Mr. Spendlove first sought a

preliminary injunction from Judge Rowland in Spendlove v. Municipal-

ity. After extensive briefing and oral argument, Judge Rowland denied

Spendlove’s motion for preliminary injunction on July 13, 1978.

a-2

Spendlove then sought an order shortening time on July 19, 1978,

from Judge Singleton, on what was previously a motion for preliminary

injunction, in Civil Action 3AN-78-2860, but later restyled as an ap-

plication for stay in the administrative appeal assigned to Judge Single-

ton, 3AN-78-3303. Judge Singleton heard oral argument from the

parties on August 10 and 11, 1978, and received extensive briefing.

On October 3, 1978, Judge Singleton issued a written opinion which

denied Spendlove’s application for stay pending this administrative

appeal.

Counsel for Mr. Spendlove then, on October 12, 1978, requested

that Judge Singleton disqualify himself from further proceedings in

Spendlove v. Anchorage Municipal Zoning Board, (3AN-78-3303),

and that his application for stay be reopened before another judge. On

October 16, 1978, Judge Singleton declined to disqualify himself for

cause and, pursuant to AS 22.20.020(c) this matter has been assigned

to the Honorable Ralph Moody for hearing on whether Judge Singleton

should be disqualified.

APPELLANT HAS NOT DEMONSTRATED

SUFFICIENT GROUNDS TO DISQUALIFY

JUDGE SINGLETON

AS 22.20.020 provides in pertinent part:

.. . A judicial officer may not act as such in a court of which

he is a member in any action in which. . .

(6) The judicial officer feels that, for any reason, he cannot give

a luir and impartial decision . . .

While a matter of this kind rests with the sound discretion of the judge

to whom the application for disqualification is first made, Superior

Court Judges should not lightly disqualify themselves from cases they

are assigned. Our Supreme Court has indicated that ‘‘a [Superior Court

Judge] should do so only for the most compelling reasons’’. Nelson

v. Fitzgerald, 403 P.2d 667, 679, (Alaska 1965), emphasis added.

Moreover, the Supreme Court requires judges who disqualify them-

selves to set forth the specific reasons for the disqualification in writing

to the presiding judge. [Supreme Court Order 315, August 1, 1978.]

The kind of bias which must be shown before disqualification is

proper is not a judicial predisposition on the merits of the case or the

subject matter of the litigation, but rather ‘‘a hostile feeling or spirit

of ill will — or undue friendship or favoritism, towards one of the

a-3

litigants.’’ In Re Guardianship of Styer, 536 P.2d 717 (Ariz. App.

1975) [appeal from decision surcharging guardian of estate]. In a crim-

inal prosecution arising from a realty sale transaction, wherein the trial

judge was challenged for cause because the judge was familiar with

certain real estate transactions, the Supreme Court of Arizona wrote:

. . even if the trial judge were biased in favor of escrowing

such transactions through title companies he would not be disqual-

ified as a matter of law. For it is generally held that ‘‘bias or

prejudice does not refer to any views a judge may entertain toward

the subject matter involved in the case.”’

State v. Mills, 370 P.2d 946 (Ariz. 1962) citing 30A Am.Jur. 171.

See also, People v. McCullough, 223 P.2d 37 (Cal. App. 1950) [attemp-

ted disqualification of judge following trial of eminent domain action

denied.] Finally our own Supreme Court, in a disciplinary proceeding

invo!ving an Anchorage attorney, disclaimed hostile feelings or ill will

towards the respondent and refused to disqualify itself saying:

As to the respondent’s assertion that this court is objectively

disqualified to give him a fair and impartial hearing because it

is biased or prejudiced against him on account of his participation

in the pending federal court case mentioned earlier, we disclaim

any such hostile feeling or spirit of ill will towards the respondent

as would render us unfit to judge his case. The fact that we may

have an opinion as to the merits of the case or how it should be

decided different from that of the respondent is not enough to

make us biased or prejudiced.

In Re MacKay, 416 P.2d 823 (Alaska 1964).

Mr. Hedland asks us to infer that because Judge Singleton is a

representative of Breakthrough’ helped the Municipal Manager’s Office

in preparing part of an All American City application which application

also contains a reference to activities of neighborhood community

councils in ‘‘prohibiting gravel pit operations in certain areas’’ that

Judge Singleton must be personally biased against Mr. Spendlove or

in favor of appelee. A review of the remarks made by Judge Singleton

in chambers on October 16, 1978, and the attached affidavits indicates

that Spendlove’s fears are pure illusion.

‘A fact counsel for Mr. Spendiove readily admits he knew at ‘‘all pertinent times’’.

Letter of John Hedland to the Honorable James K. Singleton dated October 12, 1978,

pe

a-4

Judge Singleton is not a member of the Hillside East Community

Council, or for that matter, any community council. He does not recall

ever meeting with or discussing matters relating to community councils,

or Breakthrough with the executive director of the Federation of Com-

munity Councils, Ms. Jean Buchanan, who prepared the Community

Councils’ portion of the All American City application.

The judge did receive a blank ‘‘All American City’’ application

from Mitch Gravo, special assistant to the Municipal Manager, and

was asked to supply information for that application relating solely to

Breakthrough. The Judge and Mr. Gravo did not discuss community

councils, gravel pits or this litigation, and does not recall even seeing

or signing the final application. Mr. Gravo’s affidavit indicates he

never spoke with the Judge about gravel pits, pending litigation concern-

ing gravel pits, or any of the material that was included in the applica-

tion. [Affidavit of Mitch Gravo, p. 2.] Neither Mr. Gravo nor Judge

Singleton have any recollection that the Judge was ever aware of the

full content of the portion of the All American City application relating

to community councils until after that application was submitted. [See

Mitch Gravo’s statements on page 3 of his affidavit.)

The All American City application itself [attached to the affidavit

of Mitch Gravo] does not, contrary to Mr. Hedland’s assertions, refer

to Mr. Spendlove’s gravel pit. The final application [attached as Exhibit

A to the Gravo affidavit] refers only to the 28 community councils in

general, whose activities include ‘‘prohibiting gravel operations in

certain areas’’ and does not specify which community council or gravel

pits are involved. An earlier draft of the application [attached as Exhibit

B to the Gravo affidavit] recites only that the Hillside East Community

Council had *‘closed down gravel pit operation [sic] in their area which

most members found offensive.’’ Which gravel pit we will never know,

because contrary to Mr. Hedland’s argument, there have been at least

three other occasions on which Hillside residents and members of the

Hillside East Community Council have sought prohibition of gravel

operations in that area. Writes the Municipality’s Chief Zoning Inspec-

tor:

In addition to the Spendlove matter, I recall at least three other

occasions in which Hillside residents and member of the Hillside

East Community Council have contacted my office regarding

cessation of illegal gravel operations in their neighborhood. Spec-

ifically, I recall:

a-5

a. Kasilof Hills, Summer, 1977, illegal removal of gravel

in commercial quantities from residential subdivision.

b. Rockhill Gravel Pit, summer, 1977, complaints by

residents regarding enforcement of terms and condi-

tions of special exception for mineral resource opera-

tion.

c. Nettleton Subdivision, Summer, 1978, illegal mineral

resource extraction operation in residential neighbor-

hood.

The Spendlove matter is only one of a series of incidents brought

to my attention by residents of the Hillside area and members of

the Hillside East Community Council in which those persons

have expressed a desire to seek the prohibition of gravel extraction

operations in their community.

[Affidavit of Joe Stimson, p. 2.]

The factual record simply indicates that Judge Singleton was asked

by the Manager’s assistant to provide information about Breakthrough

for the application for All American City Designation, but that he did

not participate in drafting or was even aware that some drafts of the

application made vague reference to gravel pits. The Judge told counsel

for all parties on October 16, 1978, that he harbored no ill will or

prejudice toward Mr. Spendlove or favoritism to the appellee and felt

qualified to continue with the assignment. Given the Judge’s forthright

statements regarding his ability to hear this matter without bias toward

any party, and the total lack of hard facts supporting bias, there is no

‘‘compelling reason’’ within the meaning of Nelson v. Fitzgerald,

supra, to reassign the Spendlove matter to a third Superior Court Judge

for relitigation of issues already decided by Judges Rowland and Sing-

leton.

For the above reasons, the Municipality respectfully requests that

Judge Singleton not be disqualified from this matter.

DATED this 17th day of October, 1978.

THEODORE D. BERNS

Municipal Attorney

By: /s/

Allen E. Tesche

Deputy Municipal Attorney

a-6

APPENDIX B

IN THE SUPERIOR COURT FOR THE STATE OF ALASKA

THIRD JUDICIAL DISTRICT

RODNEY SPENDLOVE,

Appellant,

VS.

)

)

)

)

ANCHORAGE MUNICIPAL ZONING )

BOARD OF EXAMINERS AND )

APPEALS, )

)

)

Appellee.

No. 3AN-78-3303 Civ.

COMMENTS FILED PURSUANT

TO LEAVE OF COURT

GRANTED OCTOBER 19, 1978

I

JUDGE SINGLETON SHOULD

NOT BE DISQUALIFIED.

The primary issue raised by Mr. Hedland is whether Judge Singleton

was biased. The only purported evidence offered by Mr. Hedland on

this issue is contained in the affidavit of John Hedland, dated October

17, 1978. In paragraph 5, Mr. Hedland reveals that the substance of

his allegtion of bias is based upon Judge Singleton’s alleged review

of the final All-American City application. That application does not

specifically refer to either the Spendlove gravel pit in issue in the case

at bar or the Hillside East Community Council. Rather, the application

only refers to the shutting down of gravel pits, generally, as one of

numerous accomplishments of community councils in general. The

only evidence that Judge Singleton ever even saw the final All-Amer-

ican City application is Mr. Hedland’s assertion that Mr. Gravo told

Mr. Hedland that Judge Singleton had reviewed the final draft of the

application. First, Mr. Heldand’s affidavit is not admissible as proof

a-7

of the fact that Judge Singleton saw the final draft application because

Mr. Hedland’s testimony respecting that which Mr. Gravo purportedly

said is heresay. Also, Mr. Hedland’s affidavit is directly contradicted

by the sworn testimony of Mr. Gravo himself. In his affidavit dated

October 16, 1978, at the top of page 3, Mr. Gravo states that:

‘*the final All-American City application was not forwarded to

Judge Singleton for review.”’

Judge Singleton himself, in an one-the-record in-chambers conference

with counsel, said that he couldn’t remember seeing the final applica-

tion, but if he did, he only reviewed it in order to be sure that the

Breakthrough volunteers’ names were correctly spelled. Accordingly,

there is no evidence that Judge Singleton ever saw the final All-America

City application. Even if he did, there is no evidence that Judge Sing-

leton ever saw that part of the application which mentioned gravel pits.

Even if he did, there is no evidence that Judge Singleton knew that

the vague reference contained in the application had any connection

with the gravel pit at issue in the case at bar. Judge Singleton has

twice reviewed Mr. Hedland’s allegations and affidavits, and has twice

decided not to disqualify himself. Judge Singleton’s decision should

not lightly be put aside. Mr. Hedland’s request for a disqualification

should be denied. Il

MR. HEDLAND’S AFFIDAVITS

SHOULD BE STRICKEN.

The affidavits filed by John Hedland on October 17, 1978, and

October 19, 1978, are not made from personal knowledge and are

heresay respecting the issues of whether Judge Singleton saw the final

draft All-America City application and what the vague reference to

gravel pits contained in that application meant. Further, by submitting

affidavits respecting contested matter, Mr. Hedland appears to be in

danger of violating disciplinary Rule 5-102(a). Accordingly, Mr. Hed-

land’s affidavits should be stricken and not considered by the court.

Ill.

THE ISSUE OF JUDGE SINGLETON’S

DISQUALIFICATION IS NOT FORMALLY

BEFORE THE COURT.

Rule 77(b)(2), Alaska Rules of Civil Procedure, provides:

There shall be filed with the motion . . . a brief, complete state-

a-8

ment of the reasons in support of the motion, which shall include

a memorandum of the points and auhorities upon which the mov-

ing party will rely elipsus.

Mr. Hedland submitted a letter, not a motion. The letter contains no

citation of points and authorities upon which Mr. Hedland relies in

requesting the extraordinary relief sought. The allegations contained

in the letter are not supported by any evidenciary [sic] material what-

soever. In fact, Mr. Hedland’s letter contains numerous misstatements

of fact and wholly unfounded allegations. Since Mr. Hedland is appa-

rently unable to cite any points and authorities in support of his allega-

tion of judicial misconduct and request for relief, and since Mr. Hedland

is apparently unable to present admissable evidence in support of his

allegations, Mr. Hedland’s request for disqualification should be sum-

marily denied.

DATED at Anchorage, Alaska this 20th day of October, 1978.

BURR, PEASE & KURTZ, INC.

Attorneys for Upper

De Armoun Area

Homeowners Association, Inc.

By /s/

Robert A. Mintz

APPENDIX C

IN THE DISTRICT [sic] COURT FOR THE

STATE OF ALASKA

THIRD JUDICIAL DISTRICT

AT ANCHORAGE

RODNEY SPENDLOVE,

Appellant,

vs.

ANCHORAGE MUNICIPAL ZONING

BOARD OF EXAMINERS AND

APPEALS,

Appellee.

Nee eee eee

No. 3AN-78-3303 Civil

AFFIDAVIT OF MITCHELL D. GRAVO

Mitchell D. Gravo being first duly sworn, deposes and says; [sic]

1. I am employed as the Administrative Assistant to the Municipal

Manager of Anchorage and have been so employed since March 13,

1978. I was responsible for coordinating the preparation of the Munic-

ipality of Anchorage’s application for an All-America City Award

which was submitted to the National Municipal League on September

5, 1978. In coordinating that application, I performed the following:

(a) I contacted Ms. Jean Buchanan, Director of the Federation of

Community Councils, and explained the All-America City application

to her. The Federation of Community Councils is the governing body

for the 28 existing Community Councils in the Municipality of Anchor-

age. As the governing body of these 28 Community Councils, the

Federation represents the interests of all the. councils throughout the

Municipality. And in her role as Director of Community Councils,

Ms. Buchanan represents the interests of all 28 Community Councils

throughout the Municipality. I chose Ms. Buchanan as my contact with

Community Councils because I believed she was one of the few people

a-10

in our community who had a broad overview of the activities of the

28 Community Councils. I then asked if she would study the application

and prepare the Community Councils’ story for the application. She

agreed to this request and I then forwarded a copy of the application

to her for completion. Ms. Buchannan’s work on the application was

limited to her area of expertise, Community Councils.

(b) I contacted Sharon Snelling, Executive Director of Break-

through, a broad-based citizen effort identifying Anchorage’s problems,

and working to resolve them, and explained the All-America City

application to her.

She indicated Judge James K. Singleton, Vice-Chairman of Break-

through, was the person in their organization most knowledgeable

about their programs. [ contacted Judge Singleton and explained the

All-America City application to him. I then asked if he would study

the application and prepare the Breakthrough story for the application.

He agreed to this request, and I then forwarded a copy of the application

to him for completion. To the best of my knowledge, Judge Singleton

is not involved in the Federation of Community Councils, and I asked

him to work solely on the Breakthrough section of the application. I

never asked him any questions concerning Community Council activity

in our community.

(c) Ms. Buchanan and Judge Singleton then prepared their respective

material on Community Councils and Breakthrough. They reviewed

only their respective material and then forwarded it to me. When I

received their material, I edited and combined the material into a single

application. During this editing process, I had several questions which

were directed to the Community Council office, Ms. Buchanan, the

Breakthrough Office, and Judge Singleton. Questions concerning Com-

munity Councils were directed to the Community Council Office or

Ms. Buchanan, and questions concerning Breakthrough were directed

to the Breakthrough Office or Judge Singleton. Contrary to what Mr.

Hedland indicates on Page 4 of his letter of October 12, 1978 to Judge

Sing!eton, I did not meet with Judge Singleton and Jean Buchanan as

a group, but dealt separately with Breakthrough and Community Coun-

cils concerning their individual contributions to the application.

Throughout the editing process, I never met together with Ms. Bucha-

nan and Judge Singleton.

(d) My discussions with Judge Singleton were limited to Break-

through. Judge Singleton and I never discussed the matters relating to

a-11

the material Ms. Buchanan prepared for me. I initially contacted Judge

Singleton solely because he was an expert on Breakthrough, not Com-

munity Councils. I had a preliminary discussion with Judge Singleton

as referred to in paragraph b) above and to the best of my recollection

I made one or two phone calls to Judge Singleton concerning the

material that he presented to me on Breakthrough. Judge Singleton

and I never discussed gravel pits, or pending litigation concerning

- gravel pits, and we did not discuss any of the Community Council

material that was included in the application.

(e) The final All-America City application was reviewed by myself,

Douglas G. Weiford, Municipal Manager, Beverly Isenson, Public

Information Officer, and Ms. Jean Buchanan. The final All-America

City application was not forwarded to Judge Singleton for review.

2. To the best of my knowledge, Judge Singleton had no knowledge

of or involvement in the Community Council segment of our All-

America City application, and did not have any reason to know what

was contained in that portion of our application.

3. The attached documents, labeled exhibits A-K, [documents not

attached here] are true and correct copies of the working papers, draft

application and final application documents prepared by me in connec-

tion with the Municipality’s application to the National Municipal

League for designation as an All-America City.

_ Further your affiant saith not.

/s/ as

Mitchell D. Gravo

SUBSCRIBED AND SWORN to before me this 16 day of October,

1978.

/s/

Notary Public in and for Alaska

My commission expires: | 1-26-81

a-12

APPENDIX D

IN THE SUPERIOR COURT FOR THE STATE OF ALASKA

THIRD JUDICIAL DISTRICT

RODNEY SPENDLOVE,

Appellant,

VS.

ANCHORAGE MUNICIPAL ZONING

BOARD OF EXAMINERS AND

APPEALS,

Appellee.

Nee eee eee eee ee”

No. 3AN-78-3303 CIV.

AFFIDAVIT OF JERRY WERTZBAUGHER

STATE OF ALASKA )

)ss:

THIRD JUDICIAL DISTRICT )

JERRY WERTZBAUGHER, being first duly sworn, on oath, de-

poses and says:

1. I am an attorney employed by the Municipality of Anchorage.

I am assigned to the Civil Division of the Office of the Municipal

Attorney, and in that capacity my duties include the representation of

the Municipality in general civil litigation.

2. In the course of my employment as set forth above, I have had

the occasion to represent the Municipality in the cases of Rodney and

Emily Spendlove v. Municipality of Anchorage, No. 3AN-78-2860 and

Rodney Spendlove v. Anchorage Municipal Zoning Board of Examiners

and Appeals, No. 3AN-78-3303. My representation in the referenced

cases has included the drafting and filing of briefs, appearances at bar,

discovery proceedings and communications and COpptaions with all

counsel of record.

a-13

3. The two referenced cases stem from the same factual circumstance

and involves similar if not common issues of law although they have

been assigned to separate divisions of the Superior Court. On the basis

of that circumstance, I have on several occasions (more than 3) dis-

cussed with Mr. John Hedland, counsel for Rodney Spendlove, the

issue of whether Case No. 3AN-78-3303 should be assigned to the

Honorable James K. Singleton. On each of the occasions I have dis-

cussed the matter with Mr. Hedland, he has informed me that he had

no objection to the said case being heard and determined by Judge

Singieton, nor any objection to Case No. 3AN-78-2860 being reas-

signed to Judge Singleton.

4. On August 1, 1978, I represented the Municipality of Anchorage

in an informal conference between myself, Mr. Hedland, and Mr.

Robert Mintz in the chambers of the Honorable James K. Singleton.

During the course of the said conference and in the presence of all

counsel, it was suggested by Judge Singleton that Case No. 3AN-78-

3303 be reassigned to the Honorable Mark W. Rowland because of a

contention of the Municipality that pending proceedings in Case No.

3AN-78-3303 had been previously disposed of by Judge Rowland in

Case No. 3AN-78-2860. Judge Singleton, in the presence of all counsel,

spoke with Judge Rowland by telephone and discussed with him the

reassignment of Case No. 3AN-78-3303 to Judge Rowland. Following

that discussion, and in the presence of all counsel, Judge Singleton

stated that he would retain case No. 3AN-78-3303 unless objection

was raised by any of the parties present. There being no objection

raised to Judge Singleton’s continued handling of the case, the scope

and timing of further proceedings was discussed and the meeting was

thereafter adjourned.

5. On the basis of my personal observations and knowledge, I am

aware that Mr. Hedland had at least four, and possibly more, oppor-

tunities to inform counsel for the Municipality of any objection to the

assignment of Case No. 3AN-78-3303 to the Honorable James K.

Singleton prior to Judge Singleton’s consideration of the merits of said

case. On each of those occasions Mr. Hedland either failed to inform

the Municipality of any objections or indicated affirmatively that he

was in agreement with the assignment. I remain unaware of any objec-

tion raised by Mr. Hedland to the assignment of the case to Judge

Singleton until after the issuance of a ruling on the merits of the case

adverse to the interests of Mr. Spendlove.

a-14

Further your affiant sayeth naught.

/s/

Jerry Wertzbaugher

SUBSCRIBED AND SWORN to before me, this 6th day of October,

1978.

/s/

Notary Public in and for Alaska

My Commission Expires: 12-4-80

a-15

APPENDIX E

IN THE SUPERIOR COURT FOR THE STATE OF ALASKA

THIRD JUDICIAL DISTRICT

RODNEY SPENDLOVE,

Appellant,

vs.

ANCHORAGE MUNICIPAL ZONING

BOARD OF EXAMINERS AND

APPEALS,

ee i a a a a

Appellee.

No. 3AN-78-3303 CIV.

AFFIDAVIT OF JOE STIMSON

JOE STIMSON, being first duly sworn, on oath, deposes and says:

1. ! am currently employed by the Municipality of Anchorage and

have been so employed by the Municipality since September 15, 1975.

As Chief Zoning Inspector, my duties include the investigation of

citizens’ complaints relating to alleged zoning violations, inspection

of land uses, presentation of appeals cases before the Zoning Board

of Examiners & Appeals, representation of the Department of Public

Works before the Municipal Planning & Zoning Commission, and

similar activities relating to the enforcement of the zoning ordinance

and land use regulations. As Chief Zoning Inspector, I am usually the

first person in the Municipality to whom private citizens concerned

about alleged zoning violations turn and register complaints about those

violations. I am personally involved in virtually every investigation

and action taken by the Municipality of alleged zoning violations.

2. As Chief Zoning Inspector, I have been contacted on numerous

occasions by Hillside residents and persons representing or associated

with the Hillside East Community Council concerning prohibition of

gravel pit operations in the Hillside area. At their request, I have

investigated these alleged violations and have sought administrative or

a-16

legal relief for prohibition of illegal gravel pit operations in that area.

In addition t the Spendlove matter, I recall at least three other occasions

in which Hillside residents and members of the Hillside East Commu-

nity council have contacted my office regarding cessation of illegal

gravel operations in their neighborhood. Specifically, I recall:

a. Kasilof Hills, Summer, 1977, illegal removal of gravel in

commercial quantities from residential subdivision.

b. Rockhill Gravel Pit, summer, 1977, complaints by residents

regarding enforcement of terms and conditions of special excep-

tion for mineral resource operation.

c. Nettleton Subdivision, Summer, 1978, illegal mineral re-

source extraciion operation in residential neighborhood.

The Spendlove matter is only one of a series of incidents brought to

my attention by residents of the Hillside area and members of the

Hillside East Community Council in which those persons have expres-

sed a desire to seek the prohibition of gravel extraction operations in

their community. The Spendlove matter, therefore, was not the first,

and regretably will not be the last gravel pit problem zoning inspectors

for this Municipality will face.

Further your affiant sayeth naught.

/s/

Joe Stimson

SUBSCRIBED AND SWORN to before me, this 16th day of Oc-

tober, 1978.

/s/

Notary Public in and for Alaska

My Commission Expires: 12-4-80

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a-17

APPENDIX F

IN THE SUPERIOR COURT FOR THE STATE OF ALASKA

THIRD JUDICIAL DISTRICT AT ANCHORAGE

RODNEY SPENDLOVE,

Appellant,

VS.

ANCHORAGE MUNICIPAL ZONING

BOARD OF EXAMINERS AND

APPEALS,

ee ee ee ae a

Appellee.

No. 3AN-78-3303 Civil

ORDER DENYING DISQUALIFICATION FOR CAUSE

The Chief Justice has appointed the undersigned to hear the disqual-

ification for cause of the Honorable James Singleton.

This court, having heard oral argument and considered the affidavits

filed by counsel, finds no basis for the disqualification of Judge Sing-

leton and, therefore,

IT IS ORDERED that the disqualification for cause of Judge Sing-

leton is denied.

DONE at Anchorage, Alaska, this 24th day of October, 1978.

/s/

I certify that on 10-25-78, Ralph E. Moody, Presiding

a copy of the above Order was Superior Court Judge

forwarded to the following at

their addresses of record:

Allen Tesche, Esq.

- Robert Mintz, Esq.

John S. Hedland, Esq.

/s/

Secretary to Judge Moody

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APPENDIX G

IN THE SUPERIOR COURT FOR THE STATE OF ALASKA

THIRD JUDICIAL DISTRICT

RODNEY SPENDLOVE and

EMILY SPENDLOVE,

Appellants,

v.

ANCHORAGE MUNICIPAL ZONING

BOARD OF EXAMINERS AND

APPEALS and UPPER DeARMOUN

AREA HOMEOWNERS

ASSOCIATION, INC.,

Appellees.

Nee Nee eee eee ee”

CASE No. 3AN-78-3303 Civil

STATEMENT OF POINTS ON APPEAL

RODNEY SPENDLOVE and EMILY SPENDLOVE, appellants

from the Final Judgment of this Court in this case, state that they

intend to rely on the following points in the appeal:

1. That the court erred in failing to reverse the Board of Appeals’

ruling that appellants had lost their grandfather rights in 1969.

2. That the court erred in finding that the appellants did not have

grandfather rights at any time.

3. That the court erred in finding that appellants did not intend to

use their property as a gravel pit, since the overwhelming weight of

evidence established that appellants did in fact intend to use their

property for gravel pit purposes.

4. That the court erred in holding that the small amount of usage

in years prior to 1978 was evidence of non-gravel pit activity.

5. That the court erred in permitting the Upper DeArmoun Area

Homeowners Association, Inc., to intervene in the case, since this

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organization was non-existent at the time of the proceedings before

the Municipal Administrative Boards.

6. That the court erred in failing to keep Hugh Gellert in as a party

in the Superior Court in that the appeal to the Anchorage Municipal

Zoning Board of Examiners and Appeals was by Hugh Gellert, and

not the Upper DeArmoun Area Homeowners Association, [sic].

7. That the court erred in failing to limit the trial de novo to issues

arising after 1969.

8. That the court erred in refusing to proceed with a jury trial herein

when demanded by plaintiffs.

9. That the court erred in holding that appellants did not intend to

use their property as a gravel pit because they planned to subdivide it,

since the property being used for the gravel pit was not subdivided.

10. That the court erred in failing to hold that the Board of Examiners

and Appeals did not have jurisdiction.

11. That the court erred in failing to find that there was not an

enforcement order appealable to the Board of Examiners [sic] and

Appeals of the Anchorage Municipal Zoning Board of Examiners’

Appeals, when the appeal was first taken by Hugh Gellert, and the

Board of Examiners’ Appeals [sic] had no jurisdiction.

12. That the court erred in refusing to disqualify himself, when

requested, upon the ground that he had been co-chairman of an Anchor- |

age Commission, which commission had represented itself publicly as

having accomplished the shutting down of appellants’ gravel pit, prior

to the trial herein.

13. That the court erred by not ruling on the extent or amount of

activity which would be necessary for the continued existence of a

mineral or natural resource extraction or operation under grandfather

rights.

Dated at Anchorage, Alaska, this 23rd day of January, 1981.

/s/

Rodney Spendlove, pro per

/s/

Emily Spendlove, pro per

P.O. Box 144

Anchorage, Alaska 99510

Tel: 274-7775