It was an error for the trial court to deny the plaintiffs’ timely request for a jury trial as a matter of law pursuant to the Alaska Constitution, Article I, Section 16. [Exc.9]. Article I, section 16 of the Alaska Constitution requires a jury trial in civil cases where the amount in controversy exceeds $250 "to the same extent as it existed at common law."

"Common law" consists of those principles, usage and

rules of action applicable to government and security of

persons and property which do not rest for their authority

upon any express and positive declaration of the will of

the legislature. Bishop v. U.S., 334 F.Supp. 415, 418

(S.D.Tex. 1971); also see Black’s Law Dictionary,

Fifth Edition, West Publ., 1971, page 251.

No statutory or equitable relief of any kind is requested in this action; the sole basis for relief is set forth in Article I, Section 18 of the Alaska Constitution: "Private property shall not be taken or damaged for a public use without just compensation." Thus, the remedy sought in this action is strictly legal in nature and based upon fundamental law only.

"[I]n determining whether a jury right exists in a particular case, the crucial inquiry is whether the remedy sought is appropriately regarded as "legal" or "equitable" in nature." Loomis Electronic Protection, Inc. v. Schaefer, 549 P.2d 1341 (Alaska 1976). In this instant case, the real property owners within the City of Fairbanks have a substantial stake or vested interest in the assets of the Fairbanks Municipal Utilities System [Exc. 2, 6 and 15 paragraphs 8; also Exc. 35, 36; 19 and 23; 26 to 32]. (see Statement of Relevant Facts, 2. Disputed Facts, or Issues of Genuine Material Fact); said assets are taken from them without just compensation in violation of the Alaska Constitution, Article I, Section 18, by the Council of the City of Fairbanks and a majority of the electorate and used for a different public purpose, namely a permanent fund. [Enc. 2, 3; 6; 15, 16;] (see Appendix A 1 to 3).

All issues of factual legal dispute, such as whether in fact the plaintiffs and all others similarly situated have a stake or interest in the assets of the Fairbanks Municipal Utility System, whether such assets are taken from them without just compensation by the sale, and whether and to what extent they are damaged by the unlawful taking and use for a different public purpose of said assets, are, as a matter of fundamental right, to be determined by a jury in this instant case. As stated in North American Provision Company v. Kinman, 6 N.E. 2d. 235, 237 (Ill. 1937): "(I)t has long been held, in both Appellate and Supreme Courts of this State, that the right of trial by jury in cases at law is a constitutional right and in any case where there are issues of fact to be determined a jury must be called to assess the damages unless it was expressly waived."

The right to a jury trial was not waived in this case and was timely demanded pursuant to Alaska R. Civ. P. 38.

    Further, as stated in People v. Kelly, 179 N.E. 898, 902 (Ill. 1931): "The provision of our Constitution that the right of trial by jury as heretofore enjoyed shall remain inviolate means that all substantial incidents and consequences, which

pertain to the right of trial by jury at common law are beyond the reach of hostile legislation and are preserved in their substantial extent as they existed at common law." Thus, it was error for the trial court to deny the requested trial by jury as a matter of fundamental right in this case and the trial court exceeded its jurisdiction when it attempted to determine the facts without a jury.

[W]here either the constitution or statute gives right to

a trial by jury and the jury is demanded and not waived,

the jury constitutes an essential part of the tribunal authorized

to determine the facts, and that the court in attempting to determine

facts without a jury exceeds its jurisdiction. Mahan v. Hardland,

410 P.2d 156, 160 (Mont. 1966).

Appellant respectfully requests that the Trial Court’s denial of the Request for a Trial by Jury be reversed and the matter be remanded.

Appellant hereby incorporates by reference the facts and arguments set forth in ARGUMENT I above as facts and arguments in this ARGUMENT II, specifically as they relate to the lack of jurisdiction of the Trial Court as a trier of facts.

Appellant further argues as follows:

1. A motion for Judgment on the Pleading pursuant to Fed. R. Civ. P. 12(c) addresses the legal sufficiency of a party's allegations. Judgment should be granted when there are no questions of material fact, and the moving party is entitled to

judgment as a matter of law. General Conference Corp. v. Seventh Day Adventist Church, 887 F.2d 228, 230 (9th Cir. 1989), cert. denied, 493 U.S. 1079 (1990).

In their Answer [Exc.6] the defendants denied the key allegation of material fact set forth in paragraph 8 of the Complaint [Exc. 2, 3], that was amended [Exc. 15, 16], namely that the property owners within the City of Fairbanks have a vested interest - financial and otherwise - or substantial stake, in the assets of the Fairbanks Municipal Utility System. It is most obvious that a stock holder owned utility corporation acquires its assets in substantial part through the issuance of shares of stock that is generally privately owned while a municipal utility corporation acquires its assets in substantial part from the rate payers that are property owners within that municipality. [Exc. 28,29] It is also most obvious that the risk taker in a stock holder owned utility corporation is the stock holder with the value of the stock at risk, while in a municipal utility corporation the property owner within that municipality is, as a general rule, at risk with the value of the property affected. [Exc. 28, 29] Because the defendants questioned these material facts in their Answer [Exc. 6] they are not entitled to a Judgment on the Pleadings. General Conference Corp., supra.

2. In spite of the above stated, the defendants filed simultaneously with their

Answer a Motion for Judgment on the Pleadings. [R.139].

"In deciding a motion under Rule 12(c), the Court must

accept all material allegations of fact alleged in the

Complaint as true, and resolve all doubts in favor of the

non-moving party, but need not accept as true conclusory

allegations or legal characterizations." Religious

Technology Center v. Netcom-On-Line Commun. Serv.,

Inc., 907 F. Supp. 1361 (N.D. Ca. 1995).

In other words, the trial court must accept as true the material allegations of fact as stated in paragraphs 8, 9 and 12 of the Complaint, the defendants’ denial thereof in their Answer notwithstanding; but the trial court may scrutinize the legal allegations set forth in paragraphs 10 and 11 of the Complaint, that claim that the defendants have no fundamental right - that is the Alaska Constitution enumerates no specific provision that would exempt the City Council from complying with the mandates of Article I, Section 18, of the Alaska Constitution - to take the private assets invested in the public corporation without just compensation, and to sell the municipally operated corporation to a third party and deprive the true owner-investors, that are the property owners within the City of Fairbanks, of their interests therein without just compensation.

The defendants are not entitled to a Judgment on the Pleadings because they

failed to cite any specific constitutional provision that would exempt them from

complying with the strict requirements of Article I, Section 18, of the Alaska Constitution and the plaintiffs stated a claim upon which relief can be granted.

1. The Home Rule Charter for the City of Fairbanks, Sec. 1.2., in pertinent

part requires as follows: "Subject only to the limitations imposed by the State Constitution and by this charter, all powers of the city shall be vested in the council."

2. The Alaska Constitution, Article I, Section 18, imposes upon the city

council a limitation, namely not to take private property for a public use without

just compensation.

c) There is no fundamental law, that is there is no constitutional provision, that will exempt the city council from complying with the Alaska Constitution, Article I, Section 18.

4. The Home Rule Charter for the City of Fairbanks, Section 8.4. requires

as follows: "An entire public utility owned by the city shall not be sold or leased except by authority of an ordinance ratified by a majority of the qualified voters voting on the question."

5. The Home Rule Charter for the City of Fairbanks, Section 8.4. does not

exempt the city council from complying with the strict limitations of Section 1.2

of the City Charter and the strict mandates of the Alaska Constitution, Art.I,Sec.18.

6. The Home Rule Charter for the City of Fairbanks, Section 8.4. provides

for the sale of the Fairbanks Municipal Utility System; it does not provide for the taking of the proceeds from the sale and using the same for a different public purpose, namely a permanent fund, without justly compensating those that claim an interest in the assets of the Fairbanks Municipal Utility System.

Therefore, the plaintiffs stated a valid or proper claim upon which the relief prayed for in the Complaint can be granted and the defendants are not entitled to a Judgment on the Pleadings.

3. The trial court did hand-write that it treated the Motion for Judgment on Pleadings as a Motion for Summary Judgment. [Exc. 34]. The trial court failed to set forth a finding of facts and a conclusion of law upon which it based its entering of Summary Judgment. [Exc. 34; 50]. There a numerous triable genuine issues of material fact remaining that are set forth above in the Statement of Relevant Facts, 2. Disputed Facts - Genuine Issues of Material Fact, and that do not permit the entering of summary judgment pursuant to Rule 56. The trial court has no jurisdiction to enter summary judgment and to determine the issues of material fact because the plaintiffs timely requested a trial by jury as a matter of right and they did not waive their right to a jury as the trier of all material facts in this case. The argument therefor is set forth above.

Appellant respectfully requests that the Trial Court’s entry of Summary Judgment be reversed and the matter be remanded .