Untitled California Attorney General Opinion ( 1989 )

OFFICE OF THE ATTORNEY GENERAL
State of California
JOHN K. VAN DE KAMP
Attorney General
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OPINION :
: No. 88-903
of :
: MARCH 9, 1989
JOHN K. VAN DE KAMP :
Attorney General :
:
RODNEY O. LILYQUIST :
Deputy Attorney General :
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THE HONORABLE WILLIAM H. IVERS, DIRECTOR, DEPARTMENT
OF BOATING AND WATERWAYS, has requested an opinion on the
following question:
What is the extent of the concurrent jurisdiction
authorized under the Colorado River Crime Enforcement Compact?
CONCLUSION
The extent of the concurrent jurisdiction authorized
under the Colorado River Crime Enforcement Compact is that with
respect to acts taking place on the boundary waters between
California and Arizona, which acts constitute crimes under the
laws of each state, the officers and courts of one state may
apply and enforce the laws of that state without regard to the
actual location of the boundary.
ANALYSIS
Section 2 of article III of the Constitution provides
in part: "The boundaries of the state are those stated in the
Constitution of 1849 as modified pursuant to statute." With
respect to the boundary between California and Arizona, the
Legislature has enacted Government Code sections 175 and 176,
modifying the boundary described in the Constitution of 1849.
(See River Farms, Inc. v. Superior Court (1967) 252 Cal. App. 2d
604, 606.) The statutes ratify and enact the Colorado River
Boundary Compact, which was also adopted in Arizona (Ariz. Rev.
Stats. § 41-522).
Very little of the boundary between California and
Arizona is not covered by water. Most of the boundary is at or
near the center of the Colorado River and its lakes. Because of
the difficulty in sighting the boundary on the water, each state
has encountered problems in enforcing its criminal laws,
principally boating regulations, over activities occurring on the
river. In 1985, California and Arizona adopted the Colorado River
Crime Enforcement Compact ("Compact") to address this mutual
concern.
The question presented for resolution requires an
examination of the provisions of the Compact. What criminal
activities are covered, what geographical areas are covered, and
what is the practical effect of having concurrent jurisdiction
under the Compact? We conclude that concurrent jurisdiction is
authorized under the Compact only with respect to activities
occurring on the boundary waters and which constitute crimes
under the laws of each state. With respect to such activities,
courts and law enforcement officers may treat the boundary
between the states as though it were located at the opposite
shore.
The Compact has been enacted in California as Penal
Code sections 853.1 and 853.2.1/ Section 853.1 states:
"(a) Pursuant to the authority vested in this
state by Section 112 of Title 4 of the United States
Code, the Legislature of the State of California hereby
ratifies the Colorado River Crime Enforcement Compact
as set forth in Section 853.2.
"(b) The purpose of this compact is to promote the
interests of justice with regard to crimes committed on
the Colorado River by avoiding jurisdictional issues as
to whether a criminal act sought to be prosecuted was
committed on one side or the other of the exact
boundary of the channel, and thus avoiding the risk
that an offender may go free on technical grounds
because neither state is able to establish that the
offense was committed within its boundaries.
"(c) The compact shall become operative when
ratified by law in the State of Arizona; and shall
remain in full force and effect so long as the
provisions of this compact, as ratified by the State of
Arizona, remain substantively the same as the
provisions of this compact, as ratified by this
section. This compact may be amended in the same
manner as is required for it to be ratified to become
operative."
1. All references hereafter to the Penal Code are by
section number only.
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Sections 853.2 provides:
"(a) All courts and officers now or hereafter
having and exercising jurisdiction in any county which
is now or may hereafter be formed in any part of this
state bordering upon the Colorado River, or any lake
formed by, or which is part of, the Colorado River,
shall have and exercise jurisdiction in all criminal
cases upon those waters concurrently with the courts of
and officers of the State of Arizona, so far and to the
extent that any of these bodies of water form a common
boundary between this state and the State of Arizona.
"(b) This section applies only to those crimes
which are established in common between the States of
Arizona and California; and an acquittal or conviction
and sentence by one state shall bar prosecution for the
same act or omission by the other.
"(c) This compact shall not be construed to bar
the enforcement of the penal laws of either state not
established in common with the other, provided that the
act or omission proscribed occurs on that state's side
of the river channel boundary."
The Compact has been enacted in Arizona as follows:
"A. If conduct is prohibited by two adjoining
party states, courts and law enforcement officers in
either state who have jurisdiction over criminal
offenses committed in a county where the Colorado river
forms a common interstate boundary have concurrent
jurisdiction to arrest, prosecute and try offenders for
the prohibited conduct committed anywhere on the
boundary water between the two states.
"B. This compact does not authorize:
"1. Prosecution of any person for conduct which
is lawful in the state where it was committed.
"2. Any conduct prohibited by any party state."
(Ariz. Rev. Stats. § 37-620.11.)
The Arizona Legislature made the following finding in adopting
the Compact:
"The legislature finds that law enforcement has
been impaired in sections of the Colorado river forming
an interstate boundary because of difficulty in
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determining precisely where a criminal act was
committed." (Ariz. Stats. 1985, ch. 85, § 1.)2/
1. Crimes Established in Common
We first address the issue of the types of criminal
activities covered by the Compact for which concurrent
jurisdiction is authorized. We conclude that the activities must
constitute crimes under the laws of both California and Arizona.
Subdivision (b) of section 853.2 expressly states:
"This section applies only to those crimes which are established
in common between the States of Arizona and California." The
Arizona law similarly is limited to "conduct . . . prohibited by
two adjoining party states" and specifically excludes "conduct
which is lawful in the state where it was committed." (Ariz.
Rev. Stats. § 37.620.11.)
A well-recognized principle of statutory construction
is that "every statute should be construed with reference to the
whole system of law of which it is a part, so that all may be
harmonized and have effect." (Moore v. Panish (1982) 32 Cal. 3d
535, 541.) "Words must be construed in context, and statutes
must be harmonize, both internally and with each other, to the
extent possible." ( California Mfrs. Assn. v. Public Utilities
Com. (1979) 24 Cal. 3d 836, 844.) In determining legislative
intent, "we look first to the words of the statute, giving them
their usual and ordinary meaning." (Committee of Seven Thousand
v. Superior Court (1988) 45 Cal. 3d 491, 501.)
The phrase "in common" ordinarily means "that is
shared, experienced, or possessed together or equally."
(Webster's New Internat. Dict. (3d ed. 1971) p. 458.) Has
California and Arizona "shared equally" by defining a particular
act or omission in question as a crime?
2. For purposes of the question presented, we may assume
that the laws of California and Arizona are substantially the
same with respect to the Compact and that Congress has given its
consent to the Compact. In this latter regard, subdivision (a)
of section 112 of Title 4 of the United States Code provides:
"The consent of Congress is hereby given to any
two or more States to enter into agreements or compacts
for cooperative effort and mutual assistance in the
prevention of crime and in the enforcement of their
respective criminal laws and policies, and to establish
such agencies, joint or otherwise, as they may deem
desirable for making effective such agreements and
compacts."
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Reading section 853.2 in light of the Arizona law, we
believe that the phrase "crimes which are established in common"
refers to any activity that constitutes a crime under the penal
statutes of each state. Minor variations may describe the
elements of the offenses in the statutes of the two states, and
the penalties may not be identical. The key focus is whether the
activity constitutes criminal activity as defined by California
and Arizona law.3/
Such construction of the Compact effectuates its
purpose of "avoiding the risk that an offender may go free on
technical grounds" (§ 853.1, subd. (b)) "because of difficulty in
determining precisely where a criminal act was committed" (Ariz.
Stats. 1985, ch. 85, § 1). It is "fundamental . . . that the
objective of statutory interpretation is to ascertain and
effectuate legislative intent. [Citations.]" ( People v.
Woodhead (1987) 43 Cal. 3d 1002, 1007.)
What is necessary, therefore, is a knowledge of the
criminal statutes of California and Arizona. A violation of a
penal law unique to one state would not be subject to concurrent
jurisdiction under the Compact. If the two states proscribe the
same general conduct but in slightly different ways, it must be
determined that the particular acts in question constitute the
offense prohibited by the laws of each.
Our construction of the Compact is consistent with the
interpretation given to similar agreements of various other
states regarding their boundary waters. (See Nielsen v. Oregon
(1909) 212 U.S. 315, 321 [53 L. Ed. 528, 29 S. Ct. 383]; Smoot v.
Fischer (Mo.App. 1952) 248 S.W.2d 38, 41; Nicoulin v. O'Brien
(Ky.App. 1916) 189 S.W. 724, 728.)
Several situations have been presented to us for
consideration with respect to the phrase "crimes which are
established in common." For example, we are informed that
Arizona law requires life jackets to be worn by children under 12
years of age, while California law does not. The Arizona law
would constitute a statute unique to one state and thus not
subject to concurrent jurisdiction under the Compact.
Both states require vessel registration, although in
California it is necessary only for boats that are "using the
waters or on the waters of this state." (Veh. Code, § 9850.) If
a vessel is operated on the Colorado River without being
registered, the lack of registration would be a criminal offense
3. Once it is determined that the act or omission is
defined as a crime in each state, "an acquittal or conviction and
sentence by one state shall bar prosecution for the same act or
omission by the other." (§ 853.2, subd. (b).)
5. 88-903
under both California and Arizona law and subject to concurrent
jurisdiction.
On the other hand, the registration number for certain
vessels must be placed in one location under California law and
in a different location under Arizona law. Because of this
difference, the same activity (placement of the number) may
constitute a criminal offense in one state but not in the other.
In such situation the actual location of the boundary between the
two states must be observed in enforcing the laws of each state.
2. Geographical Areas
The second issue presented by the question concerns the
geographical areas covered by the Compact. We conclude that
concurrent jurisdiction is authorized only for criminal
activities occurring on the boundary waters between the two
states.
Subdivision (b) of section 853.1 declares that the
purpose of the Legislature "is to promote the interests of
justice with regard to crimes committed on the Colorado River."
Subdivision (a) of section 853.2 grants concurrent jurisdiction
with respect to "the Colorado River, or any lake formed by, or
which is a part of, the Colorado River . . . so far and to the
extent that any of these bodies of water form a common boundary
between this state and the State of Arizona."
Arizona law is similar to California law in requiring
that the criminal conduct occur on the waters of the Colorado
River for concurrent jurisdiction to apply. It confers
"jurisdiction on the Colorado River" with respect to "prohibited
conduct committed . . . on the boundary water between the two
states" (Ariz. Rev. Stats. § 37-620.11) and was adopted to
facilitate law enforcement "in sections of the Colorado River
because of difficulty in determining precisely where a criminal
act was committed" (Ariz. Stats. 1985, ch. 85, § 1).
We find support for our construction of the Compact
from the judicial interpretations given to similar agreements of
other states. For example, in Smoot v. Fischer, supra, 248
S.W.2d 38, 42, the court recognized and applied:
" . . . the well-settled rule as announced in
numerous authorities that the grant of concurrent
jurisdiction relates only to things which are in some
legitimate sense to be regarded as on the water (a
distinction we have already pointed out), and does not
extend to permanent structures attached to the river
bed or the banks, and therefore within the boundaries
of one or the other of the adjoining states. In other
words, it is the water itself, and the use of it for
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navigation, interstate traffic, and the like, with
which the doctrine of concurrent jurisdiction is
concerned, and not the land under the water, or things
of a permanent nature erected in or over the water.
Whenever such physical objects themselves, or rights
incident thereto, are directly involved in the
controversy, they are under the exclusive jurisdiction
of the state within whose boundaries the objects are
located."
As Justice Holmes stated in Wedding v. Meyler (1904)
192 U.S. 573, 585 [48 L. Ed. 570, 24 S. Ct. 322]: " . . . the
concurrent jurisdiction given is jurisdiction 'on' the river, and
does not extend to permanent structures attached to the river bed
and within the boundary of one or the other state." (See also
State v. Moyers (Iowa 1912) 136 N.W. 897, 899; Roberts v.
Fullerton (Wis. 1903) 93 N.W. 1111, 1113; State v. Faudre (W.Va.
1903) 46 S.E. 269, 273.)
Accordingly, the Compact has no application to acts
taking place beyond the boundary waters between California and
Arizona. It is not concerned with conduct occurring on the banks
of the river or shores of the lakes. Its scope is limited to
activities taking place on the boundary waters due to the
difficulties of determining where precisely the boundary is
located on the river.
3. Concurrent Jurisdiction
The third issue presented by the question concerns the
effect of having "concurrent jurisdiction" as authorized by the
Compact. How is this type of jurisdiction distinguished from the
situation where the Compact is inapplicable?
The term "concurrent" ordinarily means "occurring,
arising, or operating at the same time often in relationship,
conjunction, association, or cooperation" and "joint and equal in
authority . . . having authority over the same subject matters .
. . operating simultaneously." (Webster's, supra, p. 472.) The
term "jurisdiction" normally refers to "the legal power, right,
or authority to hear and determine a cause" and "the limits or
territory within which any particular power may be exercised."
(Webster's, supra, p. 1227.)
Subdivision (a) of section 853.2 grants concurrent
jurisdiction to "courts and officers . . . exercising
jurisdiction in any county . . . bordering upon the Colorado
River . . . in all criminal cases upon those waters . . . ."
Subdivision (b) of section 853.1 describes the purpose of the
Compact as "avoiding jurisdictional issues as to whether a
criminal act sought to be prosecuted was committed on one side or
the other of the exact boundary of the channel."
7. 88-903
As previously discussed, we are to interpret statutory
language by adopting the ordinary and usual definitions of the
words used with the primary goal of effectuating the
Legislature's intent. It is apparent that the Compact uses the
term "concurrent jurisdiction" in the sense that the power of
both states is extended over the entire limits of the boundary
waters.
California courts and officers have equal authority
with Arizona courts and officers to administer justice with
respect to certain criminal activities occurring on the boundary
waters. A California peace officer, for example, may exercise
whatever "right, power, or authority" he or she has under
California law to arrest and take into custody a person whose act
or omission occurring on the water constitutes a crime in both
California and Arizona -- without regard to where the boundary
between the two states is located. A California officer would
enforce California law, using California procedures and the
California court system to administer justice.
An Arizona peace officer would similarly enforce
Arizona law, using Arizona procedures and the Arizona court
system to administer justice, acting "side by side" and "having
equal authority" with California officers over the boundary
waters.
Under the provisions of the Compact, then, one state is
not attempting to enforce the statutes enacted by the other
state. The officers do not wear two uniforms. Concurrent
jurisdiction grants joint and equal authority to the courts and
officers of both states to exercise whatever powers they have
under their own laws without regard to where the boundary is
precisely located. The Compact does not confer additional
powers; the peace officers, for example, are not given greater
powers of arrest than they have within their own state. The
Compact only seeks to preclude the criminal offender from
claiming that the offense took place in the other state.
The provisions of the Compact do not authorize the
officers of one state to enter upon the lands of the other state.
All references to the territory covered by the terms of the
Compact concern the boundary waters. Arizona officers enforcing
Arizona law in the courts of California would not serve the
express purposes of the Compact. Similarly California officers
are not empowered by the Compact to enter upon the lands of
Arizona to arrest or take into custody a person even where the
person has violated a law in common upon the boundary waters.
We recognize that it may be difficult at times to
enforce "on the waters" the criminal laws of one state without
pursuing an offender onto the lands of the other state. Although
the Compact does not address this particular enforcement problem,
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other agreements do. Both California and Arizona, for example,
have adopted the Uniform Act on Fresh Pursuit (§§ 852-852.4;
Ariz. Rev. Stats. §§ 13-3831 - 13-3834) which allows a peace
officer to go into another state to pursue a criminal offender
under specified conditions and procedures. Accordingly, just as
any other criminal offense committed near the boundary between
California and Arizona might produce enforcement difficulties, a
criminal act occurring on the Colorado River would be subject to
such enforcement agreements entered into by the two states.
Concurrent jurisdiction as authorized by the Compact is
limited to crimes established in common taking place on the
boundary waters. Such circumstances are to be distinguished from
the situation where the criminal acts are violating the penal
laws of only one state. In the latter situation, the precise
boundary between California and Arizona must be treated as
governing the jurisdiction to act -- just as it is on land. The
rights, powers and authority of the courts and officers of one
state do not extend in such circumstances beyond its legal
boundaries under the Compact's provisions. The Compact does not
authorize the officers of one state to enter upon the lands or
waters (even the waters of the Colorado River) of the other state
when dealing with crimes not established in common. As
previously indicated, however, other agreements would cover and
control whether officers observing a criminal offence under their
own laws on their side of the river may go onto the other side of
the river to make the arrest and take the person into custody.
Our construction of the Compact adopts the approach
taken by courts interpreting similar agreements of other states.
(See Nicoulin v. O'Brien, supra, 189 S.W. 724, 727; Ex Parte
Desjeiro (C.C.D.Ore. 1907) 152 F. 1004, 1006; Roberts v.
Fullerton, supra, 93 N.W. 1111, 1113; J. S. Keator Lumber Co. v.
St. Croix Boom Corp. (1888) 72 Wis. 62 [38 N.W. 529, 542].) In
Wedding v. Meyler, supra, 192 U.S. 573, 584, the court stated
with respect to the concurrent jurisdiction authorized on the
Ohio River:
"Concurrent jurisdiction, properly so called, on
rivers, is familiar to our legislation, and means the
jurisdiction of two powers over one and the same place.
There is no reason to give an unusual meaning to the
phrase. [Citations.]
" . . . But jurisdiction, whatever else or more it
may mean, is jurisdictio, in its popular sense of
authority to apply the law to the acts of men.
[Citations.] What the Virginia compact most certainly
conferred on the states north of the Ohio was the right
to administer the law below low-water mark on the river
. . . ."
9. 88-903
In Nielsen v. Oregon, supra, 212 U.S. 315, 320-321, the
court declared with respect to the concurrent jurisdiction of
Oregon and Washington over the Columbia River:
"Undoubtedly, one purpose, perhaps the primary
purpose, in the grant of concurrent jurisdiction, was
to avoid any nice question as to whether a criminal act
sought to be prosecuted was committed on one side or
the other of the exact boundary in the channel, that
boundary sometimes changing by reason of the shifting
of the channel. Where an act is malum in se,
prohibited and punishable by the laws of both states,
the one first acquiring jurisdiction of the person may
prosecute the offense, and its judgment is a finality
in both states, so that one convicted or acquitted in
the courts of the one state cannot be prosecuted for
the same offense in the courts of the other. . . .
"The present case is not one of the prosecution
for an offense malum in se, but for one simply malum
prohibitum. Doubtless the same rule would apply if the
act were prohibited by each state separately; but
where, as here, the act is prohibited by one state and
in terms authorized by the other, can the one state
which prohibits prosecute and punish for the act done
within the territorial limits of the other? Obviously,
the grant of concurrent jurisdiction may bring up, from
time to time, many and some curious and difficult
questions, so we promptly confine ourselves to the
precise question presented. The plaintiff in error was
within the limits of the state of Washington, doing an
act which that state in terms authorized and gave him
a license to do. Can the state of Oregon, by virtue of
its concurrent jurisdiction, disregard that authority,
practically override the legislation of Washington, and
punish a man for doing within the territorial limits of
Washington an act which that state had specially
authorized him to do? We are of opinion that it
cannot. It is not at all impossible that, in some
instances, the interests of the two states may be
different. Certainly, as appears in the present case,
the opinion of the legislatures of the two states is
different, and the one state cannot enforce its opinion
against that of the other; at least, as to an act done
within the limits of that other state."
In State v. Moyers, supra, 136 N.W. 897, 898-899, the
court noted that the purpose of authorizing concurrent
jurisdiction with respect to a river boundary was "to avoid the
difficult question of whether a criminal act was committed on one
side or the other of the boundary line," and concluded that:
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" . . . an officer of the state bounded by such
river may make such arrests for such criminal acts on
any portion of the river so far as it constitutes the
common boundary, that the courts in which such
offenders are brought may try them for the offenses
committed as though committed within the limits of the
state regardless of whether the place of commission was
on one side or the other of the boundary line, and that
they may be punished in accordance with the laws of the
state in which they are thus put on trial."
InSmoot v. Fischer, supra, 248 S.W.2d 38, 41, the court
declared:
"In situations where a watercourse forms a common
boundary between two states, the question of
jurisdiction over such watercourse and things
transpiring upon it has always been a matter of
considerable concern. Generally speaking, the
jurisdiction of a state is merely coextensive with its
boundaries, so that where a stream forms the boundary
between two states, neither would have jurisdiction
beyond the center of the stream, or beyond whatever may
constitute the actual dividing line, in the absence of
some lawful agreement or provision extending each
states's jurisdiction over the entire stream. But
because of the practical difficulty to be encountered
in determining whether a particular thing in
controversy occurred on one side or the other of the
exact dividing line between the two states, it has been
found expedient to extend each states's jurisdiction
over the whole of such a stream; and out of all this
has evolved the concept of concurrent jurisdiction on
the part of adjoining states with respect to a stream
or watercourse which forms the common boundary between
them.
" . . . . . . . . . . . . . . . . . . . . . .
"It is to be understood that in conferring
concurrent jurisdiction on this state as to acts or
transactions occurring on the Mississippi, it was not
intended that there should be concurrent sovereignty or
dominion on the river. On the contrary, in the case of
matters not included in the proper concept of
concurrent jurisdiction, each of the adjoining states
retains its exclusive control up to the limit of its
actual boundary, entirely free from interference by the
other. The term 'jurisdiction' relates to matters at
least in some way connected with the use of the water
for navigable purposes or in some legitimate sense to
be regarded as on the water; and what is meant by the
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grant of concurrent jurisdiction is merely that
transactions occurring anywhere on the water, which are
the proper subject of concurrent jurisdiction, may
lawfully be dealt with by the courts of either of the
adjoining states according to its own laws as fully and
completely as those occurring elsewhere within its
borders. In other words, the state acquiring
jurisdiction acts by, and is limited to the enforcement
of, its own laws and not the laws of the adjoining
state . . . ."
In answer to the question presented, therefore, we
conclude that the extent of the concurrent jurisdiction
authorized under the Compact is that with respect to acts taking
place on the boundary waters of the Colorado River and its lakes,
which acts constitute crimes under the laws of both California
and Arizona, the officers and courts of one state may apply and
enforce the laws of that state without regard to the actual
location of the boundary.
* * * * *
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