1. We have determined that "[i]n order to be entitled to

summary judgment, the moving party must establish

that there are no genuine issues of material fact and

that it is entitled to judgment as a matter of law."

Bethel Utilities Corp. v. City of Bethel, 780 P.2d

1018, 1020 (Alaska 1978) (citing Wickwire v. Mc

Fadden, 576 P.2d 986, 987 (Alaska 1978)). Whether

summary judgment was warranted is a question of law

we will review de novo. Kollodge v. State, 757 P.2d

1028, 1032 (Alaska 1988). We will review the facts

in the light most favorable to the non-moving party. Id.

Farmer v. State, 788 P.2d 43, 46 n.8 (Alaska 1990).

1. The statement of genuine issues of material fact that remained to be determined by a jury is set forth in pages 14 to16 of the Brief of the Appellants. [Br. 14 - 16]. The factual claims set forth in the complaints paragraphs 8, 9 and 12 [Exc. 2, 3, and 15, 16] were denied in the Answer [Exc. 6].

At the hearing held on January 21, 1997, [R. 55] Rudy Voigt and Wolfgang Falke were present for the plaintiffs at said hearing, their names are omitted from the log notes, other than being identified as "Pro se" [R. 55]. If time had

permitted, Mr. Rudy Voigt would have testified that he was assessed in excess of $20,000.00 (twenty thousand dollars) for the installment of sewer main lines in the streets bordering one parcel of his property alone. A reasonable time of only two hours was requested for oral arguments, the trial court permitted only 15 minutes per side. [R. 86]. The other side denied that the plaintiffs have any interest, financial and otherwise, in the main lines [R. 57 at 4190 of the log notes]. Harold Gillam submitted a letter stating that the entire cost of the local share of main line installment was assessed against the property owners affected. [Exc. 35]. The appellants made it a point on appeal that these genuine issues of factual dispute, namely that the appellants have a vested interest in the assets of FMUS, must be tried as a matter of fundamental right by a jury in this case. [Exc. 49, point 16].

Because there remained genuine issues of material fact the City Council is not entitled to summary judgment and it was error for the trial court to enter summary judgment Bethel Utilities Corp., supra. Further, the Supreme Court will only "affirm summary judgment if there are no genuine issues of material fact" In re Estate of Evans, 901 P.2d 1138, 1140 (Alaska 1995).

Further, it was error for the trial court to enter a judgment summarily because a trial by a jury was timely demanded as a matter of law and was not waived, the argument for which is set forth above under paragraph II and is hereby adopted by reference to be part of this argument. Neither the trial court nor this Court "de novo" has the fundamental authority to consider the genuine issues of material fact in this instant matter of law - only a jury can.

2. The City Council did not file a cross-appeal and did not file any cross points on appeal, they failed to establish that there are no genuine issues of material fact and that they are entitled to judgment as a matter of law. The Supreme Court will only consider the issues raised in the Statement of Points on Appeal.

The City Council on page 5 of their Brief of the Appellees frivolously claims that the appellant "argues that the sale of FMUS is an unconstitutional taking of private property." They do not cite any specific place in the record, the complaints, or the points on appeal where precisely the appellant purportedly argues such point. This is not a point before this Court and the Court should not be at liberty to address such a point in order to be consistent with its rules. The appellants claim as a matter of fact that they have a substantial stake and financial and other interest in the assets of FMUS. [Exc. 2 paragraph 8, Exc. 15 paragraph 8, Exc. 48 paragraph 10]; the City Council denies said fact [Exc. 6]; the appellants distrust Judge Steinkruger to be the trier of said disputed facts and request a jury trial as a matter of fundamental right [Exc. 7, and R. 129 - 132] and made it a point on appeal [Exc. 49, paragraph 16]. Because the moving party, namely the City Council, failed to "establish that there are no genuine issues of material fact" they cannot further argue that they are entitled to a judgment of law and to summary judgment because the standard of review mandates that "the moving party must establish that there are no genuine issues of material fact". Bethel Utilities Corp., supra., In re Estate of Evans, supra. Thus, the standard of review requires that the case must be remanded for a jury trial to the lower court.

The following is for the sake of clarification and to show that the courts determined that municipal or public property may justly be considered the private property of those that have a substantial interest therein. ("Although the property held for the municipality is in fact public, as common to all inhabitants of a city, it nevertheless may justly be said to be private property, as being such property being exempt from being taken or applied to any other public use by the state, or by authority of the state, without compensation being made." Coyle, supra. Emphasis added)). The publication Word and Phrases, under Private Property, subheading Municipal property, at pages 456 - 457 pointedly articulate as follows:

In discussing the question of whether or not property

held by a municipal corporation is private property or

public property, the court says: In one sense, the property

is private property; that is, property owned by the corporation

for the public use of the inhabitants of the city. The

inhabitants of a city, who are in fact the corporators

under a charter creating a municipality, are a portion of

that general public which constitute a state. And they are

also that particular public which constitute a municipality.

The municipality may hold property in which all the

inhabitants of a state or of a county may be said to have

an interest in some respect, but not as owners and proprietors.

And it may also hold property in which the inhabitants of

the municipality alone may properly be said to have an

interest. Both classes of property are public - the one, as

to the people of the whole state or county; the other, more

particularly, as to the inhabitants of the municipality. It is

only in this sense that the words ‘public’ and ‘private’ can

with propriety be applied to such property when held by

a municipality. Although the property held for the

municipality is in fact public, as common to all inhabitants

of a city, it nevertheless may justly be said to be private

property, as being such property being exempt from being

taken or applied to any other public use by the state, or

by authority of the state, without compensation being

made." Coyle v. Gray, Del., 30 A. 728, 733, 7 Houst.

44, 40 Am.St.Rep. 109.

Therefore, the City Council is mistaken in their assertion on pages 5 and 6 of their Brief of the Appellees that the assets of FMUS are owned by them the interests the appellants claim in them notwithstanding. They are mistaken in their assertion that the interests the appellants claim in the assets of FMUS may not justly be said to be private property subject to the strict provisions of the Alaska Constitution, Article I, Section 18, and the limitations the Home Rule Charter of the City of Fairbanks, Section 1.2 imposed upon the City Council; and they are mistaken in their assertion that they can apply to any other public use the proceeds from the sale of

FMUS without justly compensating the appellants and all others similarly situated; and they are mistaken in their assertion that they can establish a permanent fund with the proceeds of the FMUS sale the constitutional mandate for just compensation notwithstanding under the guise that it is for a public purpose and that the ordinance therefor was approved by a majority of a proper electorate.

3. The City Council makes numerous misstatements in paragraph IV on page 6 of their Brief of the Appellees: a) The appellants do not argue, or even suggest, "that only property owning registered voters should have been allowed to vote on the FMUS sale question" and referring to page 6 of the Brief of the Appellants. [Br. 6]. (please read it). Page 6 of the Brief of Appellants is part of the Statement of Case setting forth part of the Nature of the Case, namely the fact that the electorate of the October 8, 1996 municipal election was not only comprised of qualified voters that are listed on the on the City of Fairbanks tax assessment roll that have a stake or substantial interest in the assets of the FMUS, but also of members of the military located at Fort Wainwright, and tenants of real property. [Exc. 29]. Nowhere do the appellants argue that the electorate was not qualified or not totally entitled to vote on the question whether to sell FMUS and on the question whether to establish a permanent fund with the proceeds of said sale as long as it does not violate the mandates set forth in the Alaska Constitution - Article I, Section 18, in particular. There are certain procedures precisely set forth that provide for the amendment of the Alaska Constitution, however, a simple majority vote at a municipal election is not one of them. Needless to say, the enforcement of the mandates set forth in Article I of the Alaska Constitution by the judiciary are necessary in this case. With respect to Article I, Section 18 of the Alaska Constitution the Supreme Court determined that "[t]his clause is to be liberally interpreted in favor of the property owner" and that "[p]roperty is ‘taken’ or ‘damaged’ for constitutional purposes when the State deprives the property owner of the economic advantage of that ownership" Bakke v. State, 744 P.2d 655, 657 (Alaska 1987). b) In their statement of disputed facts, paragraph b at page 15 of the Brief of Appellants [Br. 15] the Appellants do not suggest, as the City Council pretends, that the property owners would have refused to pay property taxes, assessments and utility rates over the years in order to accumulate an interest in the assets of FMUS and to receive respective utility services; the genuine issue of material fact is that the property owners will not pay such taxes, assessments and rates for the purpose of establishing a permanent fund. The City Council can put this question easily to a test by introducing an ordinance to increase the mill rate or make special assessments for the purpose of establishing a permanent fund. Until such time, this is a genuine issue of material fact to be determined by a jury in this matter. c) The City Council is mistaken in their assertion that the "privatization" of FMUS by issuing shares of stock of the newprivatized corporation to those that claim an interest in the assets of FMUS "would arguably run afoul of the ‘public purpose’ provision of the Alaska Constitution (article IX, section 6)". Because a substantial portion of the municipal assets of FMUS "can justly be said to be private property" and as such "are exempt from being taken or applied to any other public use by the state, or by authority of the state, without compensation being made" Coyle, supra ., there can be no conflict with Article IX, Section 6 of the Alaska Constitution. This is a genuine issue of material fact as set forth in paragraph (c) on page 15 of the Brief of the Appellants [Br. 15]. Further, the issuance of shares of stock in a newly privatized corporation is an essential means to provide just compensation to those that had an interest in the municipal corporation to accomplish the demands for just compensation as set forth by the Alaska Supreme Court as follows: "Once the state has taken or damaged property, the property owner is entitled to that compensation which will place the owner in, as far as possible, the same position which the owner occupied prior to the taking." Bakke, supra, at 657.