*1 467 (S.D.N.Y.1983) superior court (attempt to The decision of the dis- F.Supp. 886 legal missing the disregard corporate form is “a Estate REVERSED this own recep- entry judgment a case REMANDED for of theory has not met with warm states”).11 against Crowley. most tion in courts of Crowley quite legitimately chose to Crowley payroll and
put on the Morrison and Fife put
chose Croxton on the PST to B to payroll.
& It chose establish aviation
operations support large of number
incorporated making the entities without part of of activity
aviation either one separate entity legal those entities or KIM, Petitioner, Byong Hak staffing opera these itself. aviation “employees” tions used of apparently it v. corporations. Crowley’s two own different Alaska, Respondent. STATE of orga conceded that this form of witness nization served various business interests MOON, Petitioner, Hyo J. Crowley ad Crowley. Because attained vantage operating manner from v. other, simple rather fairness and than some Alaska, Respondent. STATE of analogous precedent require weight accept disadvantage it to the incidental S-3741, Nos. S-3744. liability employee’s negligence. for its Supreme Alaska. Court of Given Morrison must be considered employee and Croxton a & Crowley PST Sept. B employee, remedy provision the exclusive Compensation inap- of Workers’ Act is RABINOWITZ, C.J., and Before plicable. There seems no doubt that Morri- BURKE, MATTHEWS, COMPTON and acting scope son within of his MOORE, JJ. assigning Fife employment to command superior flight, an act which the ORDER already negligent
has
determined was
proximate
Ruth
cause of
Croxton’s death.
IT IS ORDERED:
Thus,
entering
further barrier exists
no
5,1990,
Crowley,
September
granting
judgment against
on its
The order of
based
acts,
cases,
hearing in these
liability for
vicarious
Morrison’s
already
granted.
pe-
damages
improvidently
vacated
amount of
determined
tition is
superior
court.
denied.
284;
Co.,
O’Brien,
reality”);
F.Supp. at
McDaniel
Atlantic
475
See also Smith v.
Richfield
Cir.1987) (court
(10th
“disap
F.Supp,
Corp.,
F.2d
Sales
v. Johns-Manville
proved
any attempt”
consequences
to avoid
(N.D.Ill.1978) ("[d]efendants have uniform
structure);
corporate
Love v. Flour Mills
pierce
ly
opportunity
been
their
denied
America,
(10th Cir.1981); Boggs,
In early Anchorage Army Investiga- United States Police Criminal (APD) Church, Department tion Virginia, became concerned Command Falls joint drug dealing investiga- to undertake a criminal about Palace Hotel Depart- Anchorage, Anchorage located on 4th Avenue in with the Police city Alaska. The ment. filed civil suit close Palace public
down the Hotel as a nui- early Anthony Henry, March Anchorage Lee, sance. v. Yon-Hong special agent in the United States began 3AN-86-1424CIV. The also Investigation Criminal Command was as- investigation a criminal of the Palace Ho- signed to travel from base in his Colora- A tel. search was conducted Pal- Anchorage do to to assist with inves- per in February, ace Hotel a search war- tigation of Agent the Palace Hotel. Hen- scope rant. The search involved ry was briefed other drugs Noting property. stolen investigators. He quickly be- drug dealing at the Palace Hotel seemed came the center of the target military personnel, enlisted charges which led to this case. 20,1986, February Lt. Thomas Walker undercover, Working Agent Henry posed Anchorage Department Police Crisis buy- as an enlisted soldier interested in (CIRT) Response ap- Intervention Team ing drugs expressly resale on Fort proached the United States Crimi- Wainwright Richardson and Fort (CID) Investigation nal Division at Fort Fairbanks, is located outside of Alaska. Richardson, seeking assistance. He ad- Throughout investiga- Hotel the Palace vised authorities that cocaine tions, Agent Henry primarily assist- marijuana being regularly were sold ed three offi- other law enforcement to soldiers at Fort Richardson dealers cers, (DST), Investigator Brady Investi- operating out the Palace Hotel. (DST), gator Elskamp and Officer Deck- February 21, (APD). special agents On roughly er From March 13 until Army Drug Sup- May Agent Henry with the United States made numerous underlying purposes my 1. The facts Kim’s cal identi- review. Palace Hotel. The at the state contend that cocaine
purchases express he and the testi- record an procured presents Congressional evidence gave, exception to the conviction mony he led Constitutional Act. Moon. state the use Hyo J. does the assert that *3 Drug Suppression of the either Army Team emphasize this criminal Petitioners by Anchorage police Army the by or the was local law en- initiated 2 Furthermore, itself was not “wilful.” the authorities, and that Anchor- forcement Army state does not contend that the sought military assistance as age Police not posse used “as a comitatus or other- notes, the state of convenience. As matter 3 (Emphasis wise.” 18 add- U.S.C. § Army wanted assistance to ob- ed). Rather, argues the state that the mili- agent who looked like a tain an undercover tary “regu- in assistance this case was not G.I., department’s and also because latory, proscriptive, compulsory or in na- already well in officers were known covert ture” and therefore not of the violative the area. Act. Further, court of con- while the inept. This contention is of mili- use were “a market” for cluded soldiers tary personnel find, or as under- drugs, that did not surveillance illegal concede, “direct agents participation” cover petitioners do soldiers neither Act, (1988), Appar- sole at the Hotel. violation of the U.S.C. 375 were the market § (1990). 213.10(a)(3) ently “only prosecuted were as a § 375, investigation,” “spe- corollary and no com- posse result of this U.S.C. “a § by military act,”4 has requires cific action” been taken itatus against military personnel as a authorities Secretary prescribe of Defense [t]he [to] P.2d at 48. result. such regulations ... ensure that DISCUSSION activity (including assignment ... or chap- detail any personnel) under this I. The the Posse Violation Comita- par- ter include or permit direct tus Act. ticipation by Army a member ... The Posse Comitatus 18 U.S.C. search, seizure, arrest, or other sim- (1979) (“the Act”) provides: activity participation ilar unless such Whoever, except in cases au- activity by such member is otherwise expressly circumstances authorized thorized law. Congress, the Constitution or Act will- Secretary statute has Pursuant to this any part fully uses or 213.- specifically prescribed 32 C.F.R. § posse as a Air Force comitatus or other- 10(a)(3): to execute laws shall fined wise be $10,000 (3) imprisoned
not more
not
on Direct Assistance.
Restrictions
Except
provided
en-
years,
than two
as otherwise
in this
more
both.
required,
violate
2. A will to
the Act is not
but
statute.
Hildebrandt
1323,
(de
military personnel.
(Okla.Crim.App.1973)
the wilful use of
Ac
507 P.2d
373,
Walden,
comitatus”);
fining only "posse
United States v.
Hubert
cord
denied,
(4th Cir.),
(Okla.Crim.App.1972)
cert.
U.S.
94 S.Ct.
504 P.2d
376
2385,
(same). Similarly,
r'hng
limited to
40 L.Ed.2d
Act is not
(1974)
apparently
(Navy
latory, proscriptive, compulsory na- ture”). (ii) A search or seizure. may military’s partic- direct (iv) military personnel for sur- Use of excused, contends, ipation be as the state individuals, pursuit or as veillance strong because “the has interest *4 informants, agents, undercover investi- preventing illegal drugs the introduction of gators, interrogators. or military onto Act installations.”6 The re- The Posse Comitatus its related quires more or “strong” “valid”7 mo- regulations and do re- statutes thus not specific tivations: absent the authorization quire that civilians be “coerced or intimi- Congress, of military execution of civil- force,” of military dated a show as the only ian laws is excused if such actions are contends; state neither the Act ab- does purpose “taken for the primary of further- military stops participation solve a ing military foreign affairs function of “permeating” of “pervading” short the United States.” 32 C.F.R. 213.- § Rather, operation.5 applies equally Act 10(a)(2)(i) added). (emphasis The state does
by its terms to cases where civilian authori-
here allege,
superior
not
nor did the
court
military
as mat-
ties use elements
a
conclude,
appeals
court of
pri-
that the
convenience,
play
ter of
or to
bit-roles
mary
of
purpose
was to
investigations.
state
military
further a
function. The state thus
misconstrues,
sum,
superior
and the
court and
Army personnel may
provide
In
of appeals
misapplied,
have
prohibited
direct assistance as
the law
10 U.S.C.
213.10(a)(3)
upon these
simply
375 and 32
facts.8 It
is not
“mili-
unless
tary function” to
otherwise authorized
law. The state
enforce state criminal
against
no such
city
cites
authorization here. The
statutes
hotel.
implicit
valid,
upon
regulation
significant,
state’s
reliance
That the
has a
and
expressly
“independent”9
limited
indirect
of course
interest
in the
Contra,
Bacon,
State,
e.g.,
(Alaska
5.
F.2d
App.
United States v.
See McNeil v.
ty to enforce terms Here, precluding interests admission [the Nevertheless, apparent an violation act. more societal *5 evidence] in a remedy potential the Act is not without strictly individual in governmental remedy proceeding. That state court They special character. concern illegally evidence. exclusion obtained in- government to constitutional threats State, military herent in enforcement of civilian Harker v. in As noted 932, (Alaska 1983), exclusionary law.... non-military military cannot ex at 47 n. 1. That the “was consider- diers' activities off-base P.2d military’s power to execute ing making tend the limited the Palace Hotel off limits to mili- Contra, e.g., People civilian laws the Act. tary personnel got when it involved” 696, 861, Taliferro, Ill.App.3d 117 Ill.Dec. v. 699, primary purpose that the demonstrate 1047, 1050, appeal 520 N.E.2d military investigation towas further a function. 584, 445, N.E.2d 838 Ill.2d 122 Ill.Dec. assuming report upon that Even House 56, Burden, (1988); People v. 411 Mich. the state relies indeed creates such an 444, Hubert, 446-47 P.2d at N.W.2d exception, exception must "official action" Accord, e.g., Taylor v. P.2d 1246-47. military narrowly prevent construed to intru- be 522, 1982). (Okla.Crim.App. enforce- into the domain of civilian law sions military's are not ment which essential 213.10(a)(2)(i) provides
10. 32
mission.
"primary purpose
furthering
foreign
exception "must be
military per
affairs function”
may the
willful use
caution,
include actions
used with
and does not
excused
to execute civilian law be
sonnel
aiding
primary purpose
civilian
taken for
describing the soldier as a civilian.
serving
otherwise
law enforcement officials or
125, 126, (Okla.Crim.App.1973),
Lee v.
subterfuge to
as a
avoid the restrictions
932,
1445,
denied, 415
rt.
U.S.
ce
regulation
Act."
thus re-
Posse Comitatus
(1974).
39 L.Ed.2d
identify
single primary
quires
this court
Army’s
purpose
to "fur-
actions—either
provides that
Alaska Rule of Evidence 412
foreign
affairs function"
ther[ ]
illegally
not be used
obtained shall
"evidence
con-
civilian law enforcement.”
]
to "aid[
objection
proper
defendant
over
trast, by failing
prioritize competing
any
except”
prosecution
purpose
criminal
military purposes,
pur-
“valid
prosecutions
perjury.
appropriate in
where
applied
pose"
endorsed
test
the state
"indepen-
assigns
the court of
the label
696,
Hayes,
People
Ill.App.3d
13. Contra
place
"primary,”
preordain-
dent" in the
thus
494 N.E.2d
Ill.Dec.
ing
civilian authorities"
"benefits to
Harker).
(misciting
in
C.F.R. 213.-
will be "incidental”
nature. 32
10(a)(2)(i).
weigh in
exclusion if the
favor of
14. It would
ci-
to enforce
solicitation
Army’s partic-
The state’s contention that the
common or con-
laws were shown to be
vilian
ipation was "intended to lead to
official
[an]
Compare
tinuing practice.
490 F.2d
beyond
and is
the ambit of the
action"
therefore
Bacon,
(implicitly
government.... D. James limiting military involve- The interest long tradi- ment in civilian affairs has Alaska, STATE PUBLIC EM- beginning the Declaration with RETIREMENT PLOYEES’ Independence.... BOARD, Appellee. Haig,
Bissonette No. S-3559. Cir.1985), rehearing, aff'd Supreme of Alaska. Court (7th Cir.1986)(en banc), aff'd, (1988). L.Ed.2d 288 S.Ct. Sept. in which evi- Counsel cite one case of the Act was
dence obtained violation
excluded.15 No case has been cited prosecution.16
which violation resulted growing plethora of
Research reveals a
exceptions condoning partic- direct
ipation in of civilian laws the enforcement
against nonmilitary targets nonmilitary Nevertheless, tar-
areas. where sole civilian; investigation
gets of entirely place
where the takes installation; any military
off base where *6 serves at the behest and admit- authorities; mere
ted convenience civil general
and where no function less efficiency the health justify is advanced to direct mili-
tary participation, exception no appropriate,
Posse Comitatus Act exclusionary rule should “to re- governmental
move incentives for intru- areas,” protected
sions into Alaska R.Evid.
Commentary at if not “to also breathe guaran- into the federal
life” constitutional underly which
tees and the state guarantees protect
constitutional
Alaskans from unreasonable searches
seizures. See