AGO 1967 No. 3 - Jan 25 1967
CORONERS - JURISDICTION AS TO NAVY BASE SUBJECT TO CONCURRENT JURISDICTION OF CONGRESS AND STATE OF WASHINGTON.
(1) A county coroner has the same jurisdiction over deaths occurring on a navy base over which Congress and the state of Washington have concurrent legislative jurisdiction as he has with deaths occurring anywhere else in his county; however, the coroner's jurisdiction cannot be exercised on the base if his action will either interfere with the power of the United States to provide for the national defense (or any other federal power), or interfere with an exercise by Congress of its concurrent legislative jurisdiction over the area.
(2) A county coroner has full jurisdiction over deaths of military personnel occurring within his county off such a navy base; however, in exercise of this jurisdiction the coroner cannot interfere with an exercise of the power of the United States to do all things necessary to provide for the national defense, etc.
(3) A county coroner may enter into an agreement with the officials of such navy base to define the relationship of their respective powers over matters within the cognizance of the coroner.
(4) A prosecuting attorney and a sheriff of a county have the same jurisdiction over crimes occurring on a navy base over which Congress and the state of Washington have concurrent legislative jurisdiction as they have elsewhere in their county, subject to the qualification that their jurisdiction cannot be exercised where their action would interfere with the power of the United States to provide for the national defense (or any other federal power) or interfere with an exercise by Congress of its concurrent legislative jurisdiction over the area.
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January 25, 1967
Honorable Richard L. Pitt
County Court House
Coupeville, Washington 98239
Cite as: AGO 1967 No. 3
By letter previously acknowledged you have requested the opinion of this office on questions which we paraphrase as follows:
[[Orig. Op. Page 2]]
(1) What is the jurisdiction of the county coroner over deaths occurring within his county on a navy base over which Congress and the state of Washington have concurrent legislative jurisdiction?
(2) What is the jurisdiction of the coroner over deaths of military personnel which occur within the county off such a navy base?
(3) Does the coroner have the power to enter into an agreement with navy officials to define the relationship of their respective powers over matters within the cognizance of the coroner?
(4) What is the jurisdiction of the prosecuting attorney and sheriff over crimes occurring on the navy base?
We answer your questions in the following analysis.
Your letter refers specifically to Whidbey Island Naval Air Station, a federal reservation within Island County over which the state of Washington and the United States Congress have concurrent legislative jurisdiction.1/
[[Orig. Op. Page 3]]
"Concurrent legislative jurisdiction" is a technical term of the law of legislative jurisdiction. A body of law on legislative jurisdiction has developed in the United States because of a peculiarity of our federal system of government. The general division of powers between the national government and the states is according to subject matter: The states have general powers of government, while the United States has power to do all things necessary and proper in relation to such defined subjects as war and interstate commerce. But Article I, § 8, of the United States Constitution contains a provision which sets out an exception to this general rule. This section provides in pertinent part that:
"The congress shall have power . . .
". . .
"To exercise exclusive legislation in all cases whatsoever, over such district (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dock yards, and other needful buildings; . . ."
This language gives Congress the power to assume all governmental authority over territory which the federal government acquires under the terms of the constitutional provision. In such territory Congress possesses its ordinary powers and, in addition, powers comparable to those of a state legislature. If the state's consent is unqualified, the assumption of legislative jurisdiction by Congress operates to withdraw the federal area from state legislative jurisdiction. See Report of the Interdepartmental Committee for the Study of Jurisdiction over Federal Areas Within the States, Part II, a Text of the Law of Legislative Jurisdiction (1957) (hereinafter cited as "Committee Text"), pages 3-4 and throughout. Perhaps the only place where Congress now exercises truly exclusive legislative jurisdiction is in the District of Columbia, but there are many federal enclaves throughout the country where Congress has a power of legislation that is nearly exclusive, and where state regulatory laws do not apply. For further discussion of the status of areas where Congress has the power of "exclusive" legislation, see AGO 65-66 No. 107, a copy of which is attached.
[[Orig. Op. Page 4]]
However, it is now settled that Congress need not acquire the power of exclusive legislation over federal lands; it may acquire no power of legislation at all, or partial legislative jurisdiction, or concurrent legislative jurisdiction, or, it seems, any amount of legislative jurisdiction it wants and a state is willing to grant. See AGO 65-66 No. 107,supra. As a consequence, since 1940, the United States has not required exclusive legislative jurisdiction over land its agencies use (33 U.S.C. § 733, also codified as 40 U.S.C. § 255, and as 50 U.S.C. § 175), and the recent trend has been toward maintaining state legislative jurisdiction, with or without concurrent legislative jurisdiction in Congress. See Committee Facts and Recommendations (cited in footnote 1), chapter VI;cf. the Washington consent statute, chapter 37.04 RCW.
The basic characteristics of concurrent legislative jurisdiction were described as follows by the [United States] Interdepartmental Committee for the Study of Jurisdiction Over Federal Areas Within the States (Committee Facts and Recommendations, pages 19-20):
"Under concurrent jurisdiction the two sovereigns, the Federal Government and a State, occupy an area; each having all the rights accorded a sovereign with the broad qualification that such rights run concurrently with those of the other sovereign. Exact equivalence of rights is not present, however, for at all times, under this jurisdictional status as under all others, the Federal Government has the superior right under the supremacy clause of the Constitution to carry out Federal functions unimpeded by State interference.
"State law, including any amendments which may be made by the State from time to time, is applicable in a concurrent jurisdiction area. . . . Federal law appertaining generally to areas under the legislative jurisdiction of the United States also applies. State or local agencies and administrative processes needed to carry out various State laws, such as laws relating to notaries, various licensing boards, etc., can be made available by the State or local government in accordance with normal procedures. State criminal laws are, of course, applicable in the area for enforcement by the State. The same laws apply for enforcement by the Federal Government under the Assimilative Crimes Act, which by its terms is applicable to areas under the concurrent as well as the exclusive legislative jurisdiction of the United States, [[Orig. Op. Page 5]] and other Federal criminal laws also apply. Most crimes fall under both Federal and State sanction, and either the Federal or State Government, or both, may take jurisdiction over a given offense.
"Unlike the situation in exclusive jurisdiction areas, the State and the local governmental subdivisions have the same obligation to furnish their normal governmental services, such as sewage disposal, to and in the area, as they have elsewhere in the State. They also have the compensating right of imposing taxes on persons, property, and activities in the area (but not, of course, directly on the Federal Government or its instrumentalities). . . ."
It is thus clear that state and local officers have the right, in fact, the duty, to serve an area under concurrent legislative jurisdiction, provided always that the service does not interfere with the functions of the United States government. When a state or local officer is unable to perform a particular function in an area of concurrent legislative jurisdiction, he is stopped by the supremacy clause of the United States Constitution,2/ not by lack of jurisdiction. The federal government's freedom from state interference is the same, whether or not the United States is carrying out its functions on its own land, and whether or not it has legislative jurisdiction over the land. Committee Text, page 280.
[[Orig. Op. Page 6]]
Thus, for the purpose of analyzing the powers of state officials, the significance of concurrent legislative jurisdiction is this: Where Congress has power to provide general governmental services, a state official must avoid interfering with this power, as well as with the regular functions of the United States government. On land, including federally owned land, where Congress does not have legislative jurisdiction, the state officer need only avoid conflict with an exercise of the ordinary powers of the United States. In each case the state official must respect federal supremacy.3/ The difference lies in the type of power which the United States is permitted to supremely exercise.
With this orientation, your questions may be readily answered.
"What is the jurisdiction of the county coroner over deaths occurring within his county on a navy base over which Congress and the state of Washington have concurrent legislative jurisdiction?"
The county coroner's jurisdiction over deaths occurring on the navy base is the same as his jurisdiction over deaths occurring anywhere else in the county. However, the coroner's jurisdiction cannot be exercised on the base if his action will either (1) interfere with the power of the United States to provide for the national defense (or with any other federal power) or (2) interfere with an exercise by Congress of its concurrent legislative jurisdiction over the area.
It is easy to think of proper exercises of the war power which would prevent the coroner from carrying out his ordinary duties. For instance, the United States may impose secrecy concerning national defense activities, and it may declare areas off limits to any but federally-classified persons. See Committee Text, pages 280 and 281. The judge [[Orig. Op. Page 7]] Advocate General of the Army has stated in an opinion that, irrespective of the jurisdictional status of a federal reservation, effectuation of federal purposes and the proper administration of the reservation may require total exclusion of state and local officials who ordinarily would be entitled to perform their functions there. Op. J.A.G., Army, 1948/8924 (December 15, 1948), cited in Committee Text, page 280, footnote 34.
On the other hand, it is difficult to visualize how the coroner's duties could interfere with governmental services provided by the United States under Congress' power of concurrent legislative jurisdiction. In the first place, Congress has made no general provision for federal services comparable to those of the coroner. See Committee Facts and Recommendations, page 53. In the second place, where Congress has provided governmental services in areas of concurrent legislative jurisdiction, state jurisdiction has not necessarily been superseded; it is common for the services of both governmental entities to be available. Compare the situation in the area of enforcement of criminal laws, discussed below in answer to your fourth question. Nevertheless the possibility of interference by the coroner with governmental services provided by Congress must be allowed, and in that event, of course, the coroner could not proceed.
"What is the jurisdiction of the coroner over deaths of military personnel which occur within the county off such a navy base?"
The coroner has full jurisdiction over deaths of military personnel occurring off the navy base. Exercise of this jurisdiction is subject only to the first qualification set out in our answer to question (1). The coroner cannot interfere with the power of the United States to do all things necessary to provide for the national defense, etc.
Thus, if it would endanger national security for the coroner to hold an inquest, or take jurisdiction of bodies, when navy personnel are killed in an airplane crash or other accident occurring off the federal reservation, then the coroner could not exercise his powers with respect to that event and those bodies.
"Does the coroner have the power to enter into an agreement with navy officials to define the relationship of their respective powers over matters within the cognizance of the coroner?"
[[Orig. Op. Page 8]]
We understand that the contemplated agreement is not a contract, with offer, acceptance consideration, and enforceability in court, but rather a working understanding concerning the relative roles of the two authorities where the boundaries of power are indistinct.
The statutes are silent on the authority of the coroner to so proceed, but we do not feel that he needs to cite specific authority to justify the contemplated action. We are not concerned here with the law of public contracts, or the expenditure of public funds.
The respective areas where the coroner and naval authorities may exercise their power are undefined. The dividing line depends on what the federal government is doing, and this varies from time to time, as well as from place to place. The problems of power which will inevitably arise can be left to be worked out as they occur, or they can be anticipated and planned for in advance.
No law prevents the coroner from foreseeing a problem and thinking out a solution in advance. When the foreseen problem is a blurry boundary between state and federal power over a naval base and related operations, nothing ought to prevent the coroner from thinking together with naval officials and coming to a working understanding with them. The resulting understanding would not modify the legal rights or duties of either the coroner or the federal government. It would merely define them, so that when official action is needed there will not be a delay while the two authorities decide which should act.
Accordingly, we answer your third question, as paraphrased, in the affirmative.
"What is the jurisdiction of the prosecuting attorney and sheriff over crimes occurring on the navy base?"
The authority of the prosecuting attorney and sheriff to carry out their powers on the navy base is the same as that of the coroner, discussed above under question (1).
We need only add that there has been considerable experience in federal and state law enforcement in areas under concurrent legislative jurisdiction. The Assimilative Crimes Act, 18 U.S.C. § 13, adopts state criminal law as federal criminal law on lands where the United States has concurrent legislative jurisdiction. The result has not been an ouster of state law enforcement officials, but concurrent enforcement [[Orig. Op. Page 9]] of both laws, even to the point of duplication. See Committee Text, pages 109-111. This fact bears mention for the light it throws on the general subject of the relative power of state and local officers when the federal government has concurrent legislative jurisdiction.
We trust that the foregoing will be of assistance to you.
Very truly yours,
JOHN J. O'CONNELL
MORTON M. TYTLER
Assistant Attorney General
*** FOOTNOTES ***
1/You state in your letter that you have been informed that the Air Station is under concurrent legislative jurisdiction. Our files indicate that your information is correct. See letter of Attorney General to Honorable Henry M. Jackson, Member of Congress, July 24, 1944. However, we have not confirmed that every part of Whidbey Island Naval Air Station is under concurrent legislative jurisdiction at the present time. Typically, land for a federal reservation is not acquired in a single transaction, or at a single time. Changes of law and policy over the years have caused variations in the amount of legislative jurisdiction the federal government has required. It is not unusual for a federal reservation to be a crazy quilt of jurisdictional variations, with no explanation for the diversity beyond the history of land acquisition. See Report of the Interdepartmental Committee for the Study of Jurisdiction over Federal Areas Within the States, Part I, The Facts and Committee Recommendations (hereinafter cited as "Committee Facts and Recommendations"), especially at pages 25-26. Therefore, if state jurisdiction is critical in a particular case, it ought to be checked out by tracing the history of the particular tract of land within the Air Station where the events occurred. For the purpose of this opinion, however, we do not deem it necessary to establish the current jurisdictional status of every part of Whidbey Island Naval Air Station. We assume that some, if not all, of it is under concurrent legislative jurisdiction.
2/The supremacy clause of the United States Constitution is Article VI, paragraph 2:
"This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the Constitution or laws of any state to the contrary notwithstanding."
3/Following the supremacy clause, the United States Constitution goes on to say:
"The senators and representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution; . . ."