This is a continuation of the interview with Judge Buell Nesbett on July 26, 1982 by Dr. Claus Naske in Solana Beach, California. This is a continuation of tape number Oral History 82-68-04. The interview continues on tape number Oral History 82-68-06. In this part of the interview, Buell Nesbett talks about the decision about the location of the Supreme Court, the use of SoundScriber machines to audio record court proceedings, the Alaska Bar/Court fight, threat to his life, court rules and procedures, challenges in those early years of the Supreme Court, and hearing a fish trap case.
Digital Asset Information
Project: Judges of Alaska
Date of Interview: Jul 26, 1982
Narrator(s): Justice Buell Nesbett
Interviewer(s): Claus Naske
After clicking play, click on a section to navigate the audio or video clip.
Determining where the Supreme Court should be located
Court recording device from SoundScribers
Using the SoundScribers in the courtroom
Chief Justice was an appointed position but now it's an elected position
Bar Association fight and the disbarment of Neil Mackay
Mackay disbarment was revoked
Death threat on Nesbett
Establishing the recording districts
Making copies of records for archival purposes
Issue whether a case was for the state or federal court
Ninth Circuit Court of Appeals paperwork and costs
Feelings about his time as the first Chief Justice
Legislation to pass a judicial qualifications commission
Legality of fish traps in Alaska
Click play, then use Sections or Transcript to navigate the interview.
After clicking play, click a section of the transcript to navigate the audio or video clip.
BUELL NESBETT: -- was Cordova and only five percent of the appellate cases ever originated in Juneau or Ketchikan. Plus the fact that as chief administrator being in Juneau was somewhat of a disadvantage since you could only reach Juneau by water if there was a boat going from Anchorage to Juneau, which there wasn’t.
So it really meant getting there by air. Or driving to Haines and taking a ferry. And on many occasions when I was busy organizing the court system and coming back to Juneau I’d wind up in Ketchikan or Seattle you know, weather would prevent their landing in Juneau
and I could see that office -- that wasn’t a very good arrangement, especially with all the appellate cases coming out of Anchorage and Fairbanks with flying the clients and lawyers on both sides having to fly to Juneau to argue the case. It didn’t sound right.
So I polled all 48 states -- the chief justices to find out how they did it. And then I analyzed that poll and lo and behold the majority of the cases did it like we eventually did it, including California.
Had many, many of those federal appellate courts did the same thing, that is the judges would live in the large communities and take care of the writs and requests for continuance and the local things, emergency matters.
A lot like the Supreme Court allocates those duties to the various justices depending on the area they came from.
Also, I found that most of the Supreme Courts and Appellate Federal Courts carried on the discussion of the various cases before them by memorandum rather than get in a smoked filled room and argue it out and then go write an opinion.
So, I got Judge Dimond’s vote to go with me and I made the decision that we would have a justice in each city. Fairbanks, Anchorage, and Juneau.
CLAUS NASKE: Uh-huh, but Dimond was already in Juneau?
BUELL NESBETT: Dimond was already in Juneau. Hodge was in Fairbanks. Hodge didn’t like it and that was the reason why he went back to the United States District Court.
Hodge was never -- he never did much in trying to help Dimond and I when we were writing up the rules and all that, but we had to put out the whole set of rules of the Supreme Court, you know, before we went into operation. It was very time consuming and --
CLAUS NASKE: Did you like this appointment or --
BUELL NESBETT: Hodge wasn't too good --
CLAUS NASKE: was it a problem --
BUELL NESBETT: -- to begin with and he was more -- he was in favor of waiting two or three years to do it. Well in view of the Ninth Circuit Court of Appeals, we couldn’t do that.
And so he wasn’t in favor or going back to Fairbanks either, although that is the city he lived in most of the time I lived in Nome. So he decided to leave the court and apply for the United States District Judge position and he got it.
And Harry Arend came on. He went along with it very readily because he was from Fairbanks too. The bar was taken a back on it somewhat but the people in Juneau were really bitter. They wouldn’t speak to John Dimond some of them on the streets for months.
Politicians are like -- well, I had one fellow I can’t think of his name, but it was a tough decision to make but to me it seemed logical and it was a lot like one of the members of the Bureau of Land’s said, you know, when they wanted to get out of Juneau.
He says all our land is -- is up north. He says trying to run this thing from down here is like trying manage a baseball from left field. That -- your just not -- you're out of things.
CLAUS NASKE: Well, it turned out to be all right -- quite all right because to go up against the regional variations particularly now that there are five members on the court.
BUELL NESBETT: That is what I thought -- that's what I thought and that's what I said when I made the speech in Juneau, which was pretty well attended.
There wasn’t much applause when I masked it, but that became the rule then. So then my office was in Fairbanks as well as the administrator director.
CLAUS NASKE: In Anchorage, you mean?
BUELL NESBETT: In Anchorage and Arend was in Fairbanks, eventually after Hodge resigned and John Dimond in Juneau.
CLAUS NASKE: What about the -- the court recorders?
BUELL NESBETT: The electronic recording machines?
CLAUS NASKE: How --
BUELL NESBETT: They were all installed by the time our superior courts went into operation and we had --
CLAUS NASKE: Can you -- can you tell the story how -- how you got the idea? Where you got the idea?
BUELL NESBETT: Prior to the transition to the state court system, I had talked with Warren Holland Olney, the United States Court Administrator, about recording and he was having a lot of trouble with federal court reporters.
In this respect they were supposed to record -- transcribe all the proceedings in their court for every day, but they couldn’t do it or wouldn’t do it.
And there was hardly any way, he as administrator director could force them to do it unless the judge would cooperate and the judges wouldn’t cooperate.
They were loyal to their recorders and they weren't going overwork them and this and that. So in order to get -- sometimes cases would come up where they'd have to go back three, four, five years and dig out an old transcript made by another court reporter and might have been short hand or it could have been stenographed.
And try and translate it which was totally inconvenient and to him unacceptable, but he had to accept it. He told me about a SoundScriber and how FAA had used it for many years and how trouble free it was and how he had seen one, at one time and he thought that it might be a good thing.
So I went up the SoundScriber’s factory in New Haven and went over the whole situation with them and checked the machines and all of that and the type of paper it used.
And made a deal with the head man there, I forget his name, that he would bring one of the SoundScribers down with an engineer and another man, salesman or technician, and install it in the courtroom in Juneau and we would try it out in the trial.
So they did. He tried everything to find out the weaknesses of that the machine such as two and three people talking at once, being able to go back and repeat questions for the attorneys when they requested and all of that and it performed beyond our expectations.
Anyone who first hears of transcribing court proceedings electronically on tape has visions of a half hour tape and loose ends flapping and the court coming to a stop and then putting in a new tape.
Which wasn't the case with SoundScribers. One tape would run for days at a time. It was slow and it was noiseless and could be easily changed even so.
The tape was two and a half inches wide and very thick compared to the usual transcriber tape. It was -- the FBI had declared it impossible to erase and substitute.
So all of the first offhand objections that anyone would make were totally taken care of by the technology that they employed.
And ideally, the success of that trial use -- usage and -- was Judge Dimond’s acquiescence and Judge Hodge's, at that time, I put in an order for many thousands of dollars worth of equipment to be installed in the various courts -- to be installed by SoundScriber.
After I had done that, then some of the bar associations expressed grave concerns. I think they were advocated by the court reporters in that area but they didn’t know how it was and so we put on demonstrations in Ketchikan, Juneau and Fairbanks and wanted to show them the advantages of it and they all accepted it.
In the meantime, well Judge Hodge changed his mind and wrote a dissent to the Supreme Court order which had established that method of electronic recording as an official record of the Supreme Court and Superior Courts.
But still the vote was 2 to 1 so the equipment was installed. We made a number of refinements on it. Such as the speakers on the wall and a methods of filing the tapes so that you could find the particular part of a particular trial which might have occurred three years before you could find them in five minutes. And bring it out and play it.
CLAUS NASKE: It's a very useful device?
BUELL NESBETT: Very, very useful device and of course the court reporters were opposed to it and the National Court Reporters Association in their publications depicted me as a tyrant and a dictator and ogre and all those things.
I should get somebody to send me those copies. And they'd all say, well we had to send people up to observe the usage of that. We said, fine, come on up.
And they would, and we'd let them sit through it and the odd thing was one of them sat through a whole week observing and the administrative director was -- Tom Stewart was gone and they had another one then -- Reynolds, Bob Reynolds took them around, just anything you want to see, interview these girls. I want to interview them alone. All right, go for it.
But Reynolds had a friend in the office of the Court Reporters Union in Portland and this investigator would send back a daily report and this friend of Reynolds would send him a copy back. He was giving us a good marks.
And the court reporters didn’t know just what to do about that. Well, of course, they couldn’t do anything. The Supreme Court supporters said that was the official record
and believe me it took a lot of thinking before I proposed that order to Dimond and Hodge because I didn't -- it had never been done before and I didn’t know just, usually the official record is written somewhere, this was electronically on tape, you had to draw it off, but that time it was just perfect.
We had trained all our court clerks so that when the lawyer, the prosecutor, the defense, would you repeat that question or something, and the clerk would just snap it right back on the loudspeaker, bring the whole thing right to life.
Talking, two people at once, which was the big objection, was no problem at all, because when you have a court reporter I tried so many cases I know exactly what they’ll do when two people --when attorneys start talking at once they'll throw up their hands, you know and the judge will say now stop arguing and start over.
Alright, that takes care of it. If two people are talking at once and it is being transcribed they can do the same thing and they did do it.
What we found in almost every case we ever checked where when two people were talking at the same time I trained transcribers, as they got training, to run it through once and type it out for one person, run through it again and type it out for the other voice.
You'd be surprised.
CLAUS NASKE: You still -- so you could separate them.
BUELL NESBETT: Right, based on the frequency of the voices.
But then it has an appeals. A long trial might take a court reporter three or four months, to type up a transcript before you could even commence preparing the first brief.
Not so with the SoundScriber. We created a transcript rooms as time went on, in the large cities Anchorage, Fairbanks and we had transcribers -- expert transcribers and they'd sit there with electric typewriters and transcribe these cases and man they could do it fart too. They could just run those tapes right through.
And instead of having one court reporter in one court responsible for transcribing two or three appeals, you could put three girls on each appeal and have a transcript out in less than a week.
CLAUS NASKE: Uh-huh. But you don’t need the transcript anyway only in case of an appeal, isn’t that right?
BUELL NESBETT: That is right. Yeah. Or, no, oftentimes in important trials and it's a privilege they have lawyers from either side can tell the court reporter, I want a copy of so and so’s testimony today.
And I want it by tomorrow morning in court. Well, we try to get it. Court reporters were driven frantic by that because they'd been in court all day and they'd have to work half the night to get that.
What we did, was take the tape and give it to a transcriber, who was fresh, she'd transcribe it and in cases that were very lengthy and there was a big rush on it we'd cut the tape and give part of it to one and part of it to another and rush it through that way and put the tape back together. You could cut the tape, but it wouldn’t change it.
CLAUS NASKE: You could splice it again then.
BUELL NESBETT: You could cut it right off and give, you know, 10 or 12 feet to one and some to another. And we did that all the time.
All sorts of things we did with it that we had never really envisioned ourself to begin with, which made it a very workable arrangement.
CLAUS NASKE: It certainly has become a precedent that, you know, nobody would think of going back to the old system. What -- the constitution is a little murky, isn’t it, on who was to be chief justice or how this was going to be determined, wasn’t it? It is a rotating position now. It --
BUELL NESBETT: It wasn’t to begin with.
CLAUS NASKE: It wasn’t, that's what I'm -- my question is. You know, how did that change? You were appointed -- you were chief justice for 11 years, right or 12 years, something --
BUELL NESBETT: A little less than 11.
CLAUS NASKE: A little less than 11? Until your retirement anyway?
BUELL NESBETT: That's right, yeah.
What happened was there was a bar fight with the Supreme Court. And a few of the lawyers felt that the chief justice had too much power. The same thing they say about the district attorney there now. It should be elected rather than appointed and things like that and responsibility --
CLAUS NASKE: Attorney general you mean?
BUELL NESBETT: Attorney general, I mean and so some of them got together with some of the legislators and proposed this constitutional amendment, and it was passed, I think when I was in the hospital. I am not sure.
After that airplane wreck that I was in, which provided that it would rotate every three years and the justice -- the justices on the court would get together and decide who was to be chief justice.
That was a departure from the original idea which was -- which we got from New Jersey and it wasn’t a good departure in my opinion because while it gave everybody on the court a chance to say that he was either chief justice or ex-chief justice,
it deprived the court of one strong advantage in my opinion and that is to have a person in there making the tough decisions that he's going to have to live with the whole time of his tenure.
Rather than to handle the big problems that come up and try to handle them in a conciliatory compromising sort of way so that he could go out of office after three years and be loved by everybody and all of that sort of thing.
And experience had shown the New Jersey people that it was better to put one man in, give him a lot of authority and require him to live with his decisions and encourage him to make the decisions because he is going to have to live with them rather than put them off or compromise them
and do the thing that might not always be in the public interest, in order to go out of office a loved person and all that.
CLAUS NASKE: Uh-huh. Where was the fight with the bar association at? You know, still in Alaska today you are quite a controversial figure.
There are people who -- I think you are respected by everyone, but there are a lot of people who don’t like you particularly and said that you had a very nasty personality and I've never talked to anyone who doesn’t say that you were extremely capable and did very well in establishing the court --
BUELL NESBETT: Yes.
CLAUS NASKE: And you know had a vote of tenure, but they -- apparently this business of power. What was the dispute that you had with the Alaska Bar Association?
BUELL NESBETT: The dispute arose over the disbarment of Neil Mackay, a lawyer in Anchorage. Neil Mackay had an undertaking parlor and he used to practice law out of that undertaking parlor and he got a few cases like probate cases and people dying and the divorce cases and whatnot.
And he got one property case, at least, of an elderly Finn lady who lived right out close to where his undertaking parlor was. She drank a lot and she came into him -- came to his office for advice on something in connection with a piece of property that was very valuable. It's right at the corner of Sixth and Gambell, I think, now.
Bank of Alaska has a bank there now. She needed some money and all the facts don’t come clearly to me, but in essence what he did was tell her look I’ll give you $150 a month for the rest of your life if you give me that property.
She did that, but he didn’t live up to his end of and, of course, an attorney has no right to do that anyway with a client and take advantage of them.
Well that became a discipline case before the bar association and he had a number of attorneys on his side, including Stan McCutcheon.
By that time, I was in court then and Wendell Kay and (inaudible) and I don't know who all and they, according to the transcript that we later reviewed in the Supreme Court, they were circulating around amongst the Board of Governors at the time they were considering the recommendation of the trial committee.
The bar trial committee went all through it and held a trial and recommended that he be disbarred.
CLAUS NASKE: Uh-huh. For good or only for a period of time?
BUELL NESBETT: Disbarred.
CLAUS NASKE: Period.
BUELL NESBETT: So the question was would the Board of Governors overturn that or not. Well, they overturned it, so then the matter came to us for consideration and we were of the same opinion the trial committee through the bar --should be disbarred.
And Mackay had a lot of money. He was a very wealthy lawyer. What all did he do?
CLAUS NASKE: Well, there's the Mackay building isn’t there in Anchorage?
BUELL NESBETT: Yeah, 13, 14 story building there and he bought -- it was condemned, but he bought it and some how or another he got approved, big office building.
He rose such a ruckus and the bar raised a big ruckus so actually it wasn’t all a bar doing, it was a feud, but the plaintiff’s trial attorney's that were grouped there against the Supreme Court
and Michael (phonetic) was in it, too, and it was about that time that Harry Arend was due to be confirmed. And they spent thousands of dollars on radio spot ads in Anchorage and whatnot, TV appearances complaining the court was usurping power and this and that.
All we'd done was do the same thing that their own trial committee had recommended in the beginning, you know, disbarred the guy because it was a disgraceful that he did.
A very valuable piece of property. The total price he was to pay for it was nothing compared with the value of it even if he did continue paying her 150 a month. She wound up in the poor house.
She was in the poor house at the time we considered that matter. Saltman (phonetic) they defeated Harry Arend by a thousand or so votes for confirmation.
CLAUS NASKE: If you had -- I mean wasn't actually then the wrath against the court. I mean you took lead -- you were --
BUELL NESBETT: I was the leader so I got all the --
CLAUS NASKE: But you weren’t up for -- you weren’t up for --
BUELL NESBETT: I wasn’t up for -- finish out time, no.
CLAUS NASKE: So all the wrath of the group of Anchorage -- Anchorage-ites who opposed you, really the only one that could focus on them was Arend then?
BUELL NESBETT: At that time, yes, but it was like the Berger court or the Warren court this was the Nesbett court. It all focused on me. Although I voted in it, I was never one to -- I was never one of the old boys.
And even when I ran the Anchorage Bar, I created some animosity because I didn’t go for a lot of things the old time bar did go for because I didn’t view the lawyers were -- I thought it was out of place for a lawyer to act like a bridge -- they knew I'd been quite influential with alot of the elders, like Wendell Kay and some of the others
and Chew (phonetic), Slick (phonetic), Abby (phonetic) would do everything -- anything to win a case and his idea was -- lawyers got to do that and that's what he should do and I never went all the all the way on it and I never was one of the old boys for that reason and I didn't mind sense, though either.
And then, of course, at the time I was the head of the Anchorage Bar I had enough backing it didn’t make any difference. But on a matter like when you're up on a pedestal in the Supreme Court you can’t get down and argue back. You just have to take it that is all and that is what I did.
But hell, I don’t care because I know damn well I did a good job there and --
CLAUS NASKE: The decision stood then and Mackay was debarred -- disbarred rather?
BUELL NESBETT: Not quite.
CLAUS NASKE: No, what happened?
BUELL NESBETT: So, I don’t know the time intervals, but I was knocked out in this airplane wreck.
CLAUS NASKE: When was that, what year?
BUELL NESBETT: I was knocked out in September of ’69.
And I was in traction for three months down there in the Naval Hospital and so on. So the question was -- George Boney was on the court then and so was --
CLAUS NASKE: He had replaced Arend?
BUELL NESBETT: Yeah. And so was Roger Connor. There were five on the court.
CLAUS NASKE: When did it switch to five occur?
BUELL NESBETT: Can’t tell you but it was during Hickel’s term (inaudible).
CLAUS NASKE: Well, ok --
BUELL NESBETT: So, Boney wanted to be chief justice and he was a Republican, thought he had a first chance at it. As it turns out he didn’t. Dimond wanted to be chief justice and they both wanted to be judge of the militant section of the bar.
The only ones you ever hear from in the bar are those that talk loud and, you know, they're going around stomping their feet. They're criticizing, oh what the hell, the fellows who practice law quietly. You don’t hear anything about them.
Alright, I was in the hospital and so in order to get the support of the bar association, somebody and I think it was John Dimond, proposed that they reverse the Mackay disbarment.
And make segments of the bar happy. I have always thought that John thought that he might get the appointment in that case.
So, they got together and wrote an opinion said that it was a mistake that Mackay had been disbarred and therefore, the disbarment order was revoked.
As I say, I was down here in traction, but the odd thing about it was Boney and Connor and Rabinowitz, who were on the court at that time, participated in that decision.
Revoking it. On the other hand, Boney and Connor were not qualified to participate in the decision because they had taken part as planners in the bar suit against the court.
Rabinowitz was not qualified to participate in it because as soon as he came on the court to replace Arend, he absolutely refused to sit in on any of the considerations in the Mackay case.
And so he -- perhaps two or three years had refused to even take part in any of those. He didn’t want to get in that mess with the bar. And we didn’t force him -- I mean we didn’t try to force him, but he took part in this -- thing that revoked the thing.
So when I was back in Anchorage I was trying to learn to walk and I was walking around G Street and John Dimond drove up the curb in his car. He says Buell, what's happened today may surprise you, but he says I think it was best for me or something to that affect, but he says the bar will always respect you regardless.
I didn’t know what he was talking about. It wasn’t until I finally got back in the office that I saw this decision. Well, all right you people are human. I retired, but --
CLAUS NASKE: That was tried in ’71 right?
BUELL NESBETT: Yeah, in April and this Sam Mackay is the one who got in a big divorce fight with his wife, you know. And all of sudden Susan of the travel agency she went out and got in her car and the whole thing blew up. Killed her, you know.
They're still trying to find out who instigated that. To go back a ways, the time we disbarred Mackay, he blamed everything on me and there were three of us that did it, but a federal parolee went to his federal parole officer in Anchorage and told the story.
He said I've been -- I was approached in a bar there in Anchorage out on the outskirts to accept a contract on Nesbett. To do away with him.
All he knew I was that some lawyer was in bank of it but the man who was propositioned him ran a bar on the outskirts of Anchorage and it was called the Nevada Club at that time I believe. A rather tough place I guess from what I hear.
So he said well he'd think it over and that he had driven through the alley in back of my house many times casing the place and he decided that $7,500 was not enough to do that kind of a job.
And so he turned it down and went to his parole officer and said I want to tell you all this, but I want you to agree to let me get out of town and go to Chicago or some other place, because I don’t want to stay here.
But in the meantime, so Norquist (phonetic) went to his judge, Ray Plummer I believe it was, and from there the police were brought in and they staked out my house for quite a while because this parolee said he thought someone else had taken the contract.
Nothing ever happened here, I'm still here, but if it was a lawyer it could have been nobody else but Mackay. And a lot of people think that the car that blew up and killed his wife couldn't have been arranged by anyone other than the vindictive husband who was unhappy with the divorce settlement.
CLAUS NASKE: And that case is still going then, huh? New investigations?
BUELL NESBETT: It is. So that was a sidelight on the whole thing.
CLAUS NASKE: Uh-huh. You retired in April of ’71, right?
BUELL NESBETT: Right. No, April of ’70.
CLAUS NASKE: April of ’70.
BUELL NESBETT: Yeah, I was injured in September of ’69, yeah.
CLAUS NASKE: '69.
BUELL NESBETT: So that is the story on the bar fight and the Mackay aspect of it.
CLAUS NASKE: Are there -- you know, I mean certainly you -- your ideas about the court have been enduring ones. The regional distribution of the justices, the recording systems, for instance. Are there any other precedents you set which are still part and parcel of court procedures today?
BUELL NESBETT: Oh yes, lots of them.
CLAUS NASKE: You were (inaudible).
BUELL NESBETT: We read all the rules. In order to get the court system in operation and we set figure -- we set a date of January of 1960 as a transition date just for our own convenience.
Warren Olney in Washington thought that they'd get the order to Eisenhower by that time, so we wanted to be ready. We were, as a set of rules we drew up a little booklet and distributed it far ahead of time, providing that the federal rules of criminal procedures should apply wherever applicable.
The same with the civil rules and certain rules that were extracted from the Alaska code. Up to that time, you know, the legislature had written all the rules for the territorial courts.
And we printed it up in a booklet and distributed in plenty of time so that everybody could have a guide. Supreme Court rules had to be done from scratch and we did that and distributed them.
The act required that the Supreme Court be responsible for establishing and maintaining all the recording districts. Well, the definition of recording districts was very vague and sloppy in many cases and a lot of disputes arose over it, but nobody in the whole territorial system seemed to have enough interest or responsibility to straighten it out.
So I got --
CLAUS NASKE: Recording, meaning births and deaths and vital statistics?
BUELL NESBETT: No, just establishing the boundaries of the recording districts for one thing.
So, I got the head of the Bureau of Lands in Juneau to put a man on it and we put an engineer on it, that was long before the transition,
and he'd do up good legal descriptions of all recording districts and the Supreme Court took over jurisdiction on February 20 of ’60 we established that as an order. In the court.
We -- then later when reviewing some of the areas we combined some of the districts to save money because we never had dissent
-- we didn’t have three or four places to spend.
But for example the one that caused the big furor was Palmer and Wasilla, each had a recording district and a magistry. And they were on salaries, yet they were only 12 miles apart and connected with the paved road.
No where in the state did such a situation exist, you know, and it was quite expensive.
So by Supreme Court order we just abolished the Wasilla one and combined the -- most of it with Wasilla and the rest of Palmer.
Didn't inconvenience anybody as far as we could see when you consider the cost to the state and we did some of the others things like that.
Then there was the question of who the hell has a recorder. I was aligned that the thing to do was the way it was done in the territorial days, let the magistrate in that area to be also the recorder. Which we did.
The presenting Superior Court judge of each district was saddled with the responsibility of appointing all those people in his district and they all did a very good job of it.
But what concerned us -- of concern to the administrative director and I was that without exception, except in the large cities, all those with recording offices were in framed buildings, could easily be destroyed by fire and the records would be gone forever. Unless they were moved out.
So, it was Edward Harris, practices law in Anchorage now, I hired him to assist the administrative director of courts to be a traveling magistrate and to go around in all these districts with a big machine and camera that we bought, and copy every one of their records.
And the magistrate in the area would be notified ahead of time, if they hadn't already and it would make it as expeditious a job as they could out of it.
Bring the film back and store it in the fireproof vault in Anchorage.
We set about systematically reproducing everything that existed in the state. Then in the new recordings, we set up a system -- and this wasn’t original to us I got it from some other state, I forget who it was.
So in Nome, I have -- take (inaudible) on, somebody brings in a deed, all right, he charges him a fee for recording that deed and sends it in the mail postage to -- sends it by registered postage to Fairbanks.
And then the recorder there makes copies of it and puts them in the Fort Yukon Recording District file and sends it back. And that way we've kept a continuing of everything that was being recorded in a standard and that was the first time it has ever been done.
And I thought it was a very important thing to do. And it became obvious right away when they saddled the court with the responsibility of establishing and maintaining those recording districts that -- easily not allow any of the records to be burned.
Mining district records, you know, an important mining claim and filing claims and whatnot. Big corporations were always bitching about the boundaries because there were places where the boundary wasn’t definitely described legally.
And they have huge copper claims over in the Wrangell Mountains and they didn’t know which recording districts they were in. And things like that. Well, we straightened all that out.
CLAUS NASKE: Did you make any provisions for custody of state court records, for instance, in both the Supreme Court and the Superior Courts, you know, what is going to be done with the records that are generated, you had to face that too, didn’t you?
I mean it comes to a point when the office can't hold the day-to-day kind of material that accumulates. Did you have any solutions for that?
BUELL NESBETT: I don’t think that it had become such a pressing problem by the time I left. I don't -- I can’t recall doing anything, I think we just maintained them.
CLAUS NASKE: You have the state archives now --
BUELL NESBETT: I know --
CLAUS NASKE: -- and I would think that it would go there.
BUELL NESBETT: -- it was bound to come, of course.
One thing that seemed to be almost an insurmountable problem during the transition was to sort out the cases in every one of the courts in the state, that belonged in the state court system and then turn the other cases over to the federal courts.
And lawyers can get in to Wrangell and argue it for three months over which court has jurisdiction of this and that. So it appeared to be almost insurmountable. Without, you know, years and years of wrangling neck and neck.
CLAUS NASKE: How did you handle that?
BUELL NESBETT: Well I had a -- had a dream I guess. I said to myself that's no problem at all. There are certain guidelines if the case originates there, you know and federal game reserve and somebody charges it. It is a federal case. If it's interstate commerce, it's a federal case. If it's in between, then you don’t know.
So this is the way we handled it, we told -- had courtroom clerk, with the assistance of one or two lawyers -- but first you call the lawyers in or he, the clerk, sort out all the cases that he thought were federal cases and all the others would be state cases.
Some of them, it was quite obvious and no problem at all, just switch them over, but, you know, if they had 3,000 cases pending like Anchorage, you know it can often get, you know, touchy. Because obviously you couldn’t have a State Superior Court trying to decide a federal question.
Then after the initial preliminary rough idea had been viewed in sorting these cases to call in the help and get more technical advice on what it was.
After that had been done, simply take the cases that you decided were federal over to the federal court, take the state cases and give them to your own judge.
I remember Dimond said, Jesus -- oh, I said, the lawyers would have to argue it out in court if they don’t agree with it. There's no reason for us to spend two or three years wrangling over the thing because no matter what we did the lawyers could decide that wasn’t right this is a federal case or this is a state case.
We never had a squabble or anything that I knew of, ever. And yet, for weeks, the problem that frightened me, how are we ever going to get all those cases separated in the right courts? Easy. Arbitrarily, if the lawyers don’t like it, they will bring it in on a motion and transfer it, both sides.
You asked me about reading cases. Immediately after February 20, 1960, of course, they commenced to file appeals with the Supreme Court, we had to make arrangements to hear all of that and we had to access the SoundScribers too, of course, for our hearing, transcribers to transcribe the record.
And so while we were busy with all these important matters such as trying to draw up rules, permanent rules, after the transition. We had to start handling those cases right away and writing opinions and all of that. Well, the question was, how to print the base and the courts opinions.
Traditionally, if you did a Ninth Circuit Court of Appeals, you had to send all the court (inaudible) to a printer in San Francisco and he'd -- for a dollar sixty or two dollars a word,
CLAUS NASKE: Oh my god.
BUELL NESBETT: I think it was, would print your briefs up in the ninth district form.
CLAUS NASKE: And it had to be a certain color paper, too I think.
BUELL NESBETT: Yeah, I know and a certain size. I don’t know.
So, I called in the address of Raif Montibraff (phonetic) a salesman in Anchorage, yeah that was it, and asked him about it. I said we want to do it up here and avoid all that expense and time.
So he showed me a machine, big thing about this high and about as wide as this table and I saw one in operation and so, to cut a long story short all we did is buy the machine and John Dimond went down to Juneau where the clerk of the court was.
I said fine then, just put it down there, you know keep everyone happy.
Clerk of Court Randy Rooner (phonetic). So we said, the court ruled to provide that the appellate attorney would send his brief typed in a certain fashion, on a certain size paper with certain notes all (inaudible), and so we took the machine and then fly it down with the Clerk of Court by the time the brief was supposed to be filed.
And this gal was quite the clerk down there she was an expert with that machine. Later, we had to hire someone else to do it, it became so burdensome, but she had that brief out in no time at all and stapled it and bind it and it was just as good as the Ninth Circuit of Appeal brief that might cost you four, five hundred dollars, you know.
And our costs might have run thirty or fifty dollars at the most. And we charged them for that, we had to in those days, we didn't have money, you know. Same way with the court opinions. They'd be typed up on Xerox sheets and they'd run off, stapled and mail them.
It solved a problem that could have been it was quite burdensome on the people appealing. Suppose you had to send all the briefs down to, yeah, send all the briefs to be printed down in San Francisco.
Then all the attorneys and trial clerks would travel to Juneau to argue the appeal. My God the cost of the thing would be astronomical.
CLAUS NASKE: Actually having little money was a virtue in the beginning because it had to use your ingenuity to simplify the system and make it as inexpensive and accessible.
BUELL NESBETT: The challenges in those days, yeah.
CLAUS NASKE: Looking back, you know, you served as the first chief justice, you managed the position from territorially to statehood and you've been retired for a decade, a little more than a decade now. In retrospect, how satisfied are you with the -- with your handiwork and its continued development?
BUELL NESBETT: I am almost as proud of them as I am my naval record.
CLAUS NASKE: You say almost?
BUELL NESBETT: Well, I mean, just as proud. I went in the Navy as a bad ass ensign and came out in five years as a full commander with three commendations and a bronze star. That’s pretty good. I went in there as a chief justice and I am real proud of what I did.
And I realize there's lawyers, especially some of them in Fairbanks hate my guts but -- people like Chargall (phonetic) and Ingram (phonetic) and punks like that, did a lot of time in the Supreme Court, Fairbanks appeals. He said so.
Four terms as the (inaudible) courts, you know, language. We tried to run it like, you know, classic court and a lot of them disagreed.
Doesn't effect me anyways because I know that we did a good job, a damn good job. At the time a good job needed to be done. And I am proud of it.
CLAUS NASKE: What it is, I mean, you know how it is, one more intermediate court has been created in the meantime and Alaska is supposed to have more lawyers per a thousand population, in fact, than any other state.
BUELL NESBETT: Well, I know, Larry (phonetic) told me in Anchorage, that they didn't know (inaudible) all the time.
CLAUS NASKE: Well everyone seems to be making a living.
BUELL NESBETT: I don’t know. Of course, after the summer I went to Anchorage (inaudible). I don’t know if you can make it buddy and they seemed to make it. (Inaudible) I, of course had a lot to do with it.
CLAUS NASKE: So you've seen a tremendous change, I mean from September '45, you arrive in Alaska to your leave taking in 1970?
BUELL NESBETT: Yeah.
CLAUS NASKE: It was really a crucial, crucial period. The people -- the New Jersey model was a good one to adopt.
BUELL NESBETT: I think so. I think it was a mistake to -- to abridge the chief justice responsibility and turn that office, for the reasons that I mentioned, it's just a -- (inaudible) everybody to be chief justice at some time or other.
CLAUS NASKE: But Boney was a very, very ambitious man, wasn't he?
BUELL NESBETT: Quite right and he was the one that spearheaded that and I had said I am retiring in June of ’70 anyway, my ten years was up and I was 60 and I had a right to retire, there were other things I wanted to do.
I said, I'm retiring anyway and he wanted to get that job as chief justice and that -- and he spearheaded that constitutional movement amongst some of the legislators
and (inaudible) and I was not going to tell them about the judicial qualifications commission. Anyway, then when he got the appointment of chief justice, after I retired anyway, he went down to Juneau and tried to kill the bill (inaudible) and he failed again.
At some point, maybe three or four or five years after the court system had been organized and commenced to function fairly well, complaints would come in from time to time on the judges.
So I checked around the various states and I found that California had a pretty good deal, and all the other states had it, so I wrote up a proposed piece of legislation to start a judicial qualifications commission.
And this qualifications commission would hear, as a matter of fact, try these charges that were tried against superior court judges and magistrates.
CLAUS NASKE: Laymen or professional or a mix of both?
BUELL NESBETT: A mix of both -- mix of both. And make a recommendation to the Supreme Court as what to do.
By that time I got a legislator to introduce it for me out of Anchorage (inaudible) plumbing contractor there but anyway --
CLAUS NASKE: Lewis, C.L. Lewis.
BUELL NESBETT: C.L. Lewis. And it had a rough time in the legislation. All I wanted to do hear these cases and have them decided by a group and then make a recommendation in the court.
Boy, oh boy, behind the scenes the things that went on and this is after the five dist -- after they got five members of the court, Connor and Boney came on and Dimond agreed to go with it and I don’t know if Rabinowitz had ever committed himself or not.
He lost track of committing himself anymore. He liked to be loved by the bar.
I don’t mind telling you that, and so he wouldn’t do anything which offend the bar, especially those Fairbanks boys who liked him.
So I had Dimond on my side and we met with the legislators and C.L. Lewis in particular and we convinced them. So when Connor and Boney came on I asked them if they would support it.
Yeah, they would. Oh, I had a statewide committee, first of all, approve the bill if they wanted it and they had people from all the cities take part in it.
CLAUS NASKE: All the bars members?
BUELL NESBETT: No, just and we had a panel of lay people on the committee too and we had it in Juneau and so I wanted to get the vote and get to C.L. Lewis and so on so he could use in his argument in the legislature.
My God we took the vote of the statewide committee and what do you know -- oh, in the meantime the Superior Court judges, on the other hand, you knew, had gone around to the legislators trying to stop it, too.
They didn’t want anybody, you know, any committee checking up on them -- I didn’t expect that but it became so formidable -- the court -- we had a courtroom in Juneau to get the vote from the statewide committee.
Connor and Boney had both promised me and they spoke against it. I was chairing the committee, well we got the votes through anyway but it sure didn't help to have that happen.
CLAUS NASKE: Uh-huh. Did the legis --
BUELL NESBETT: Some of the Superior Court judges had gone through them. They were brand new on the court and they wanted to get along with everybody. Rabinowitz, he wasn't there, I don’t think he would have voted anyway.
So, worse thought (inaudible) the Superior Court judges calling their friends in the legislature but we got it through.
So it's been the law ever since, didn't want to fight a little but there it is. Someone complains about a judge who got a procedure to handle it right off.
CLAUS NASKE: Uh-huh. What about personalities, maybe I should turn this off for a minute?
BUELL NESBETT: Well, one important case we handled early in the court system existence involved the legality of fish traps and during the territorial days that had always been a burning question. The fishermen in Alaska were all against the fish traps, but the Alaska or rather the Seattle people who controlled most of the fish traps were for them, of course.
And Alaska fisherman claimed that killed fish, which they did do and they robbed fish that individual fishermen should be allowed to catch.
And they killed with a trap all other types of fish in addition to catching the salmon. The Alaska law prior to statehood laws that the first person to timely commence setting a net or a trap -- no commence setting a net was entitled to that set net site for that season.
He had to be timely. In other words, he had to commence at some time in the late winter or early spring so it wasn’t a ridiculous effort, but it was an effort that could be carried through and result in a fish trap in time to catch fish or nets to catch fish.
Any effort to cause Congress to outlaw fish traps always failed. There was too much money supporting them and pressure in the east, but in the Alaska constitution it was provided that fish traps were not to be used.
So in order to test the case some of the big companies immediately got their traps operating in 1959 or '60, 59 or 60. And Bill Egan immediately sent down his deputies and arrested them.
So the question was really about the issue and it resulted in three cases. One against Egan as governor and another against Metlakatla Village and so on and they came before the Supreme Court for decisions.
When I was practicing law in Anchorage, however, some years previous to that, I had represented a neighbor who had king set sites down the Cook Inlet, which were in the exact location where a big cannery had always set a fish trap later in the season to catch reds.
For some reason this cannery superintendent went down one year, early, and beat my friend out of his king set. He did it by setting his nets first and establishing his (inaudible) hole and all the things that had a legal significance.
We sued them and we went before Anthony Dimond and lost the case on the ground that first the timely commence this first (inaudible).
So I told Bill Markle (phonetic) my neighbor I said all right what's good for them should be good for you. I said it is still long before they are going to build a trap.
I said let’s go down and build a trap and that was (inaudible) and took thousands of fish away from them if he succeeded. So he didn’t know if we could do it.
And I got so interested in the thing and John Rader was in my office at that time helping me and John and I went down to Tyonek. We arranged for the poles, some native to cut them and lashed them down to just around Granite Point to this site.
And we kept an accurate log with every hour of the day that something significant was done towards building that trap. And we had Markel (phonetic) down there driving the stakes and all those things.
Then along comes General Fish Company with a big piledriver and these big telephone poles, you know, and everything they put in their usual trap and they drove it right up alongside Markle’s (phonetic) fish trap.
Ten thousand dollars expense, as it turned out in the trial and so we had our trap there and they sued Markle --
Ray Forbes (phonetic) represented the fish company, so we went to trial. They had him cold. The same law applies to traps that are applied to set nets.
And so we won the case and that was the first time a trap had been jumped in Alaska. They call it jumping the trap line -- jumping the set net site (inaudible). We jumped it to set a precedent.
And when Mackay came along later and borrowed my boots and he jumped one in Kenai. They were jumping them all around, you know. Well, all right, so this case came to issue before the Supreme Court and I couldn’t resist. I signed a (inaudible) to myself and we held that fish traps were illegal by six to nine.