Memorandum in Opposition — United States v. California

SUBJECT INDEX

: Page

The State of California has the exclusive right to

‘ represent all of its citizens as parens patriae .......... 2

ro dO ae om

If granted, the requested intervention, in effect, aia

would permit a suit against California by one of -

its citizens sini tesceitakgiceidies bck acsadidsinchaskahapa abana uicienabl ta aaas oo

a

Petitioner improperly. seeks to. broaden the scope of

the HithQation, .22:.-..--..ceseeecsecsseierncsepeenssneseesenssnseneceneee 4

os IV |

Petitioner failed to meet the procedural requirements

for intervention ................. so cahienaninionndionnt ary

V

Permission to appear as amicus curiae should be i

NIE hcsabiintniadstuicutiaien secceccocesssescososseccososeSoncrinpencesossseoss a 7

NII conschctssuchinsnitebicenedetdoicensaepbanciuemonil ss daa 8

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TABLE OF AUTHORITIES CITED

ss Cases . | Page

Cakéornia. v. Southern Pacific Company, 157 U. S.

2, SA aig cache aiaina ican claeldeedahsceadioanacasoesnidsepulbatiane 3

‘Chandler Co. v. Bradtjen, ih. 296 U.S. 53... ae

Commonwealth of Kentucky y. State of Indiana, 281

. Duhne v. State of New Jersey, 251.U. S. 311 ia mes

Garland Co. v. F ilmer, 1-F. Supp. 8 -.......-..:ss-s-icenees 7

Monaco v. Mississippi, 292 U.S. 313 -ecgpeoeereeeevie 4

_ Northern Securities Company v. United States, ‘191

Bs a TR inshsnssdeesirpadinidetinetaligieddcrnseiilbdaasibioanaibeicceananeiinn 7

_Perinsylvania v. Quicksilver Comaeen. 77 U. $. (10

Wall.) 553 ........ scpicsiuendistetasaothesiablbacicadtaiehbeitipiabeants 3

Raabe, Glissman & Co., Inc., In re, 71 F. Supp. 678 .. 3.

Slusarski v. United States Lines Co., 28 F.R.D. 388 5

State of Florida. v. State of Georgia, 58 U. S. (17

ET Re RIOR ae Mab arele ree SIE No ARS Romance » 4

State of New Jersey v. State of ‘New York, 345

Uv. § 3 ..... sss each aceite dearaliiapaapsinleosee 2

State of New York, No. 1, Ex parte, 256 U. S. S, 490 a

Thompson v. Deal, 49 F. Supp. 366 Susna a

United States v. Loew’s Incorporated; 20 F.R.D. 423 7

Rules Page .

Federal Rules of Civil Procedure, Rule 24 a ree

‘Federal Rules of Civil Procedure, Rule 24(a) a «

Federal Rules of Civil Procedure, Rule 24(b) ...2........ .

Federal Rules of Civil Procedure, Rule 24(c) ............

oe of the sapretee Court, Rule 9(2) alae Lecnesnneeneens

) Statutes

67 Statutes at Large, p. 29 ......... DET A A

United States Code, Title 43, Secs. 1301- 1315

UM csi weenie

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the subject matter of this litigation

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IN THE

_Saprene Court of the United 8 Sates

October Term, 1963

~ No. 5, Original —

UNITED STATES OF AMERICA, ; ike

a9 | - Plaintiff,

US.

STATE OF CALIFORNIA,

Defendant.

Memorandum for tht State of California in Opposi-

tion to “Motion for Leave to File Petition in.

Intervention or File Amicus Curiae Brief” Filed

by Carl Whitson . 7

A “Motion for 7 to File Petition in Intervention

u

or File Amicus Cufgae Brief” was reteived by the At-

. _ torney General of ‘California on March 13, 1964. This

motion was filed by “Carl Whitson, Pre se” as a mu-

nicipal taxpayer of the City | of Long Beach, California.

Specifically, petitioner alleged: “That Carl Whitson, is

a taxpayer, citizen, and property owner of said city,

_and- institutes this action on behalf of all other tax-

payers‘of like circumstances.” (Motion, pp. 1-2.) Other

‘than the aforementioned status ‘and interest, t, Mr. Whit- _

son hhs allegdd ho definite and my Wis in

ai | 7 ds oo

——— - ,

The State of California opposes Mr. Whitson’s smo- .

tion for permission to intervene or to file an Amicus

Curiae Brief herein, on the following grounds:

The State of California Has the Exclusive Right to

Represent All of Its Citizens as Parens Patriae

The only interest in this suit alleged by petitioner is

“~that he “is a. taxpayer, citizen, and property owner of

said city [long Beach, California] and institutes this

action on behalf of all other taxpayers of like circum-

stances.” (Motion, pp. 1-2.) While petitioner does not

in so many wards state that he is a citizen of Cali-

fornia, this. conclusion . necessarily follows from his al-

’ legation that he is a citizen of the City of Long Beach

in the State of California, °

A state, when a party’ to a. suit involving a matter

of sovereign interest, niust be ‘deemed to represent all

a of its citizens.

State of New pean v. State “ New York, 345

‘U.S. 369, 372:373 (1953) ; |

Commonwealth of Kentucky v. State of I ndiana, |

281 U.S. 163; 173- 174 (1930).

As stated by this Court in State of New" Jersey v.

State of New York, supra, 345 USS. at page 373:

“Our original jurisdiction should not be thus ex-

‘panded to the dimensions of ordinary class actions.

An intervenor whose state is already a party should

have’ the burden of showing some compelling in-

terest in his own right, apart from his interest in

a class with all other citizens and creatures of the’

state, which interest is not properly represented by

the state. ‘si if

_ Petitioner herein has not met this burden.

wile

II

If Granted, the Requested Intervention, in Effect,

Would Permit a Suit Against California by One

of Its Citizens :

Petitioner does not specifically ask to. be made a party

- plaintiff or a party defendant. However, the entire

tenor of his motion is adverse to the State of California.

Moreover, as heretofore stated, while petitioner does

‘not expressly allege that he is a citizen of California,

_- he does: allege that he is a citizen of the City of Long

Beach, California (Motion, pp. 1-2). It thus appears

that petitioner seeks to be made an adverse party to the

State in an original proceeding in _which California is

also a party.

Under .Rule 24 of ‘ae Federal Rules of Civil Proce- .

dure, an intervenor in an action or proceeding is, for

all intents’and purposes, an original party. Jn re Raabe,

- Glissman & Co., Inc., 71 F.Supp. 678, 680 (S.D. N.Y.

1947.) If petitioner is allowed to intervene this, in

effect, would permit him to maintain an original suit

against the, State of California. However, it is well .

settled that if petitioner’ is a citizen of the State of

California, this.Court would have no original jurisdic-

tion over a suit in which the State and one of its

citizens were adverse parties. Pennsylvania v. Quick-

silver Company, 77 U.S. (10 Wall.) 553, 556 (1870);

California v. Southern Pacific Company, 157 U.S. 229,

261-262: (1895); Duhne v. State of New Jersey, 251

U.S. 311, 313-314 (1920). Of course, an original

proceeding against California by.a citizen of another

State is barred by the Eleventh Amendment to the

United States Constitution. Ex Parte State of New

York, No. 1, 256 U.S. 490, 497 (1921); Monaco v.

o

a me

Mississippi, 292 U.S. 313, 329 (1934). Whether this

. Court has ‘power to grant an application for leave to

intervene in an original. proceeding, when that right is -

sought by one who could not have been made a party

at the outset, presents a question upon which ‘there ex-

ists considerable doubt. Cf State of Florida’y. State

of Georgia,:58 ies iid How.) 478 (1854).

. Ht

Petitioner Improperly Seeks to ecaten the Scope

of the Litigation

At its inception, the instant sitit was an original pro-

ceeding in this Court, brought by the United States in

1945 against the State of California, to obtain art ad=——~

judication of the ‘respective rights of the sovereign par-:

ties in and to the three mile belt of the Pacific Ocean

adjacent to the Coast of California.

In its present posture, the case presents a contro-

versy between the United States and the State as to the

precise location. of the seaward boundaries of California

under the Submerged Lands~Act. (67 Stat. 29, 43

U.S.C. §§ 1301-1315 (1953).)

Petitioner seeks to inject into this suit a completely

new issue -relating to an alleged title. controversy be-

tween-the City of Long Beach and the State of Cali-

fornia over submerged lands restored to -California by

the Submerged Lands Act, Moreover, petitioner asks

this Court to consider and rule upon the propriety of

the use of tidelands trust income by the City.of Long

_ Beach under California law. In this connection, peti-.

tioner, urges: rae :

“2. The title to said nis is such that the

income therefrom can be used by the City of ras

ig \

‘Beach for any munigipal purpose without trusts or

_restrictions by the State of California. es (Motion, -

p. 3.)

“4, It will be urged that the State of Califoriaih

is wrong in contending .that the. state has legal

_ power to establish trusts on the income by the ,city ©

or has legal power to take from Long: Beach all.

income from such submerged lands.” (Motion, p.

3.)

‘However, it is dent that petitioner cannot, by the de-

vice of intervention, enlarge the scope of: the litigation

_ framed by the original parties. Chandler Co. v. Brandt-—

jen, Inc., 296 U.S. 53, 58 (1935)-; Thompson v. Deal,

“49 F.Supp. 366, 369 (D.D.C. 1943); Slusarski v.

United States Lines Co,, 28 F.R.D. 388, 390 (E.D.

Pa. 1961). on |

| IV

' Petitioner Failed to Meet the Preceducel

Requirements for Intervention,

Rule 9(2) of the Supreme Court Rules, applicable -

to actions within the original jurisdiction. of the Court,

reads in part as follows:

“The forms of motions ‘in original ac-

tions shall:be governed, so far as may be, by the

Federal Rules of Civil Procedure, 28 U.S.C.A.,.. .”

Petitioner has failed to comply “with Rule 24(c) of

. the Rules of Federal Procedure which provides im part:

“|. . The motion [to intervene] _. ... shall

be accompanied by a pleading setting forth the

claim or defense for which intervention is sought.”

Petitioner has not filed such accompanying pleading:

Furthermore, petitioner has not complied with either

Rule 24(a). of the Federal Rules of. Civil Procedure,

ifiew

which deals with intervention as a matter of. right, or .

~ Rule 24(b), which relates to-permissive intervention.

— Clearly, no statute of thé United States ‘confers on peti- .

tioner an unconditional right to’ intervene., Moreover,

as a prerequisite to intervention under both Rule 24(a)

and Rule 24(b), an application must. be “‘timely”’.

4

‘California contends that Mr. Whitson’ s application is :

not timely. This suit was ‘commenced in October of

1945, a decision was rendered on-June 23, 1947, fol-

lowed by a decree entered October 27, 1947. . 332 U.S.

804. Thereafter, this Court appointed a Special Master

and by a series of references directed him to make rec-

_ ommendations relating to a-line of demarcation between

lands owned by the State and those in which the United

States had been held to have paramount rights. The

., third and. final Report of the Special Master was filed

_in November 1952, and although exceptions thereto were

filed by both parties, no”action-was taken thereon. This

case was reactivated in March 1963 when the United-—

_ States filed a-Motion-for Leave to F ile a a Supplemental

Complaint herein. Subsequently, the United States

was allowed to file its Supplemental Complaint to which.

’ California has filed its Answer. Thus, after this case

_ has been ‘pending for approximately .19 years, petitioner ~

- seeks to inject into the proceedings extraneous issues

unrelated to the basic controversy between the Nation

and the State, which is to fix the seaward boundaries

of California. | It is respectfully submitted that the in-

jection into this suit of an alleged collateral controversy

between the State of California and the City of Long

Beach would undoubtedly delay and prejudice thé ad-

judication of the rights of. the original parties yet to

be determined herein. i.

=

Permission to Appear as Amicus Curiae Should

| | Be Denied

As stated in Garland Co. v. Filmer, 1 F.Supp. 8, 13

" (N.D. Cal. 1932), amici curiae appear by permission

of the court to enlighten it by their assistance.

*

Liate to appear amicus curiae will be denied where

it does not appear that the applicant i is interested in any

. other case which will be affected by the decision and’

the parties are represented by. competent, counsel. Under

_ such- circumstances, the need of assistance will not be

assumed. : .

| Northern Securities Company v. ‘United RY tates,

191 U.S. 555, 556 (1903). :

Moreover, it has been held that the alternative of .

permitting a proposed intervenor to be heard as amicus

‘curiae should be denied where he has made it plain

that he seeks nothing short of the opportunity to con-

duct “a vigorous adversary proceeding” under circum- —

stances which would displace the Attorney General as

vindicator of the public interest. United States v. |

. Loew’s Incorporated, 20 F.R.D. 423, 425 (S.D.N.Y

1957). |

California urges that ‘permission is Mr. -Whitson to

file an amicus curiae brief should be denied, where it

is clear that he intends to use such a brief as a vehicle

- for injecting extraneous issues into this litigation, and.

where the interests of California are represented by its

| Attorney General, 3

- | . . 4 a os *

“er

Conclusion ark ee

“California requests that the Motion for ‘Leave to- File

Petition in Intervention or to File Amicus Curiae Brief

——

Respectfully submitted,

STANLEY Mosk, -s

ys . _ Attorney General,

Howarp S. Gotp1n,

Assistant Attorney General,

: .£ aint ad ‘ni State = ¢ oe, hae

Dated: March 30; 1964. “ vA

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