Opposition — California v. West Virginia

Office - Supreme Court, U.S.

FILED

SEP 25 1981

ALEXANDER L. STEVAS.

NO. 91, Original pags

SUPXEME COURT OF THE UNITED STATES

OCTOBER TERM, 1981

STATE OF CALIFORNIA,

Plaintiff,

Vv.

STATE OF WEST VIRGINIA,

Defendant.

ACTION IN ORIGINAL JURISDICTION

BRIEF IN OPPOSITION TO PLAINTIFF'S

MOTION FOR LEAVE TO FILE COMPLAINT

CHAUNCEY H. BROWNING

Attorney General

DONALD L. DARLING

Assistant Attorney

General

3410 Staunton Avenue,S.E.

Charleston, West Virginia

25304

(304) 348-0390

COUNSEL FOR DEFENDANT,

STATE OF WEST VIRGINIA

NO. 91, Original

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1981

STATE OF CALIFORNIA,

Plaintiff,

Vv.

STATE OF WEST VIRGINIA,

Defendant.

ACTION IN ORIGINAL JURISDICTION

BRIEF IN OPPOSITION TO PLAINTIFF'S

MOTION FOR LEAVE TO FILE COMPLAINT

CHAUNCEY H. BROWNING

Attorney General

DONALD L. DARLING

Assistant Attorney

General

3410 Staunton Avenue,S.E.

Charleston, West Virginia

25304

(304) 348-0390

COUNSEL FOR DEFENDANT,

STATE OF WEST VIRGINIA

TABLE OF CONTENTS

QUESTION PRESENTED .

PARTIES ..

STATEMENT OF THE CASE

SUMMARY OF ARGUMENT.

ARGUMEN1 . .

CONCLUSION .

uu WwW NY fF Ff ID

i

tt)

TABLE OF AUTHORITIES CITED

Page

Alabama v. Arizona,

291 U.S. 286, 78 L. Ed. 798

54 8. Ct. 399 (1934) . « « « © © © 697,9,15

Alfred Dunhill of London, Inc.

v. Cuba, 425 U.S. 682, 48 L. Ed.

2a 301, 96 S. Ct. 1854 (1976) .. 19

Arkansas v. Texas,

346 U.S. 368, 98 L. Ed. 2d

80, 74 S. Ct. 109 (1953) . .... 12

Bank of Kentucky v. Wister,

2 Pet. 318, 7 L. Ed. 437 (1829) . 20 n.2

Colorado v. Kansas,

320 U.S. 383, 88 L. Ed. 116,

64 S. Ct. 176 (1943), reh.

denied, 321 U.S. 803, 88 L. Ed.

1085, 64 S. Ct. 633 (1944) . .. - 7,9,15

Connecticut v. Massachusetts,

282 U.S. 660, 75 L. Ed. 602,

81 8S. Ct. 286 (1931) . « « « © © © 920,15

Delaware River Joint Toll

Bridge Com. v. Colburn,

310 U.S. 419, 84 L. Ed. 1287,

60 S. Ct. 1039 (1940) ...-«-+-. 23

Employees v. Missouri Public

Health Dept., 411 U.S. 279,

316 L. Ed. 2d 251, 93 S. Ct.

1614 (1973) .. « «© «© © © © © © © 18

Kentucky v. Indiana, 281 U.S.

163, 74 L. Ed. 784, 50 S. Ct.

275 (1930) eo & € O36. 6 6 © © 6.88 20,21,22

ii

Massachusetts v. Missouri,

308 U.S. 1, 84 L. Ed. 3, 60

Ss. ct. 39 (1939) vs a 0 Ae. 9618

Missouri v. Illinois,

180 U.S. 208, 45 L. Ed. 497,

21 s. ct. 331 (1901). * *- *«+ # @

Monaco v. Mississippi,

292 U.S. 313, 78 L. Ed. 1282,

54 S. Ct. 745 (1934). . « « we «

National League of Cities v.

Usery, 426 U.S. 833, 49 L. Ed. 2d

245, 96 S. Ct. 2465 (1976)... .

Nebraska v. Iowa, 406 U.S. 117,

31 L. Ed. 24 733, 92 S. Ct.

1379 (1972) . . . - . 7 . 7 . . *.

Nebraska v. Wyoming,

325 U.S. 589, 89 L. Ed. 1815,

65 Ss. ct. 1332 (1945) . . . . . .

New Jersey v. New York,

5 Pet. 285, 8 L. Ed. 127 (1831) .

New York v. Connecticut,

4 Dall. 3, 1 L. Ed. 715 (1799) .

New York v. New Jersey,

256 U.S. 296, 65 L. Ed. 937,

41 s. ct. 492 (1921) + 7 . . . .

North Dakota v. Minnesota,

263 U.S. 365, 68 L. Ed. 342,

44 8. Ct. 138 (1923) . « eee

Pennsylvania v. New Jersey,

426 U.S. 660, 49 L. Ed. 2d 124,

96 S&S. Ct. 2333 (1976) . . « « « »

iii

Page

11

19

10

10

ll

7,15,17

Page

Pennsylvania v. West Virginia,

262 U.S. 553, 67 L. Ed. 1117,

43 8. Ct. 658 (1923) . . « « « « « 12

Texas v. Florida, 306 U.S.

398, 83 L. Ed. 817, 59 S. Ct.

Si3 (1939) «© eee e eee eee 8 oe

Vermont v. New York,

406 U.S. 186, 31 L. Ed. 2d 785,

92 8. Ct. 1603 (1972). . « « « « e Ld

Washington v. Oregon, 297 U.S.

517, 80 L. Ed. 837, 56 S. Ct. 540

(1936) ° 7 7 . os o . * . . 2 . . 7 9,15

AUTHORITIES

United States Constitution

Article I, Section 3, cl. 2 ...19

United States Constitution

Article I, Section 10, cl. 3... 22

United States Constitution

Article III, Section 2, cl. 2 .. 5

West Virginia Constitution

Article VI, Section 35 ..... . 20n.2

CODES

28 United States Code

section 125l1(a)(1) . . « «© «© © «© « §

West Virginia Code

Chapter 14, Article 2,

Section 1 et seg. . + + + + eo « S

iv

I.

QUESTION PRESENTED

Does a claim for loss of oppor-

tunity for revenue associated with a

dispute as to the terms of an executory

contract entered into by the athletic

departments of two state supported

universities in separate states present

a threat to the interests of the plain-

tiff state in its capacity of quasi

sovereign so that invoking the original

jurisdiction of this Court is appro-

priate?

II.

PARTIES

The plaintiff is the State of

California, and the defendant is the

State of West Virginia.

Itt.

STATEMENT OF THE CASE

The statement of the case made by

the State of California is acquiesced to

generally for its recitation of the

facts as presented. However, exception

is taken to the omission of one crucial

fact.

California has failed to inform the

Court that the alleged contract con-

tained an escape clause:

"8. It is recognized that

neither party can foresee

the exigencies which may

hereafter arise by reason of

emergency, catastrophe or

epidemic aR it necessary

or desirable, in the judg-

ment of West Virginia

nivers or San Jose peate

niversity, to cance

agreement. Any Sheetal.

obligations for the promotion

of this contest made by

either party prior to the

date of cancellation of this

contract shall be shared

equally by the parties of

this agreement. (Emphasis

supplied. )

2.

West Virginia merely exercised its

rights under the contract. There has

been no resort to unilateral rescission

of the agreement.

Iv.

SUMMARY OF ARGUMENT

l. Before a plaintiff state may

invoke the original jurisdiction of this

Court, the plaintiff state must show

there exists a serious and imminent

threat of injury to the interest of the

state in its capacity of quasi sovereign

and the redress of which requires the

action of the United States Supreme

Court as a matter of absolute necessity.

2. The activity in which Cali-

fornia was engaging--the carrying on of

a major intercollegiate football program

with the scheduling of games on opposite

sides of the continent--is not an interest

of the plaintiff state which is of

3.

necessary significance to invoke the

original jurisdiction of the United

States Supreme Court.

3. The interest sought to be

protected by California is not sub-

stantial, and as California seeks to

recover for the loss of opportunity for

revenue it is highly speculative. This

Court need not act as a matter of abso-

lute necessity to protect California.

4. The invoking of the original

jurisdiction of this Court is not man-

dated. The interest of California

sought to be protected is not that of

the quasi sovereign, is of relative

insignificance, and is speculative in

nature. Contrary to the assertions of

California, this Court has not pre-

viously heard a dispute of this nature.

5. A satisfactory alternative

forum exists where the plaintiff state

4.

may seek redress of its grievance. In

light of the existence of this alterna-

tive forum, this Court need not act as

a matter of absolute necessity.

Vv.

ARGUMENT ;

The State of California is at-

tempting to make this Honorable Court

the arbitrator of an agreement to play

an intercollegiate football game.

California claims an interest of the

sovereign is endangered. But the argu-

ments, points and authorities relied on

by California do not disguise the fact

that the transaction at issue deals with

nothing more substantial than the al-

leged loss of revenue associated with

the cancellation of an intercollegiate

sporting event. Does the United States

Constitution, Article III, Section 2,

Clause 2, and 28 U.S.C. § 1251 (a) (1)

5.

which implements it, require this Court

to take jurisdiction of controversies of

this nature?

California, as the plaintiff state,

bears the burden of alleging facts in

its complaint which are clearly suffi-

cient to support a decree in its favor.

Alabama v. Arizona, 291 U.S. 286, 78 L.

Ed. 798, 54 S. Ct. 399 (1934). This

burden goes beyond the mere prima facie

representation that a cause of action

recognized at law is applicable to the

dispute. The plaintiff state must

establish that the injury complained of

is to its sovereign interest.

This prudent limitation over the

extension of original jurisdiction

arises from the recognition of the

special nature of conflicts that may

develop between states in a federal

system. The nature of the disputes

between states contemplated for reso-

lution by the Supreme Court is limited

to those which would arise from an

injury to a state in its capacity of

quasi sovereign, and if occurring

between states entirely independent

would properly be the subject of dip-

lomatic adjustment. North Dakota v.

Minnesota, 263 U.S. 365, 68 L. Ed. 342,

44 S. Ct. 138 (1923). Thus, states are

not free to resort to the Supreme Court

for every controversy for which a pri-

vate individual might be free to seek

judicial intervention. Alabama v.

Arizona, supra; Colorado v. Kansas, 320

U.S. 383, 88 L. Ed. 116, 64 S. Ct. 176

(1943). In respect of the wisdom of the

foregoing limitation, each individual

case must be examined to determine

if, in fact, it presents a serious and

imminent threat of injury to the interest

of one state in its capacity of quasi

sovereign which has been caused by the

action of another state, and the redress

of which requires the action of the

Supreme Court as a matter of absolute

necessity.

Original jurisdiction of the

Supreme Court extends to controversies

between states of the Union. Monaco

v. Mississippi, 292 U.S. 313, 78 L. Ed.

1282, 54 S. Ct. 745 (1934). Before a

state may sustain an action against

another, the plaintiff state must first

demonstrate that the injury for which

redress is sought was directly caused by

the actions of another state. Pennsyl-

vania v. New Jersey, 426 U.S. 660, 49 L.

Ed. 2d 124, 96 S. Ct. 2333 (1976);

Massachusetts v. Missouri, 308 U.S. l,

84 L. Ed. 3, 60 S. Ct. 39 (1939). The

power exerted by the Supreme Court in

such disputes is extraordinary and will

not be exercised unless the threatened

injury is clearly shown to be of serious

magnitude and imminent. Alabama v.

Arizona, supra; Connecticut v. Massachu-

setts, 282 U.S. 660, 75 L. Ed. 602, 51

S. Ct. 286 (1931); Washington v. Oregon,

297 U.S. 517, 80 L. Ed. 837, 56 S. Ct.

540 (1936); Colorado v. Kansas, supra,

reh. denied, 321 U.S. 803, 88 L. Ed.

1089, 64 S. Ct. 633 (1944). And, in

respect of controversies between states,

the jurisdiction of the Court will not

be exerted in the absence of absolute

necessity. Alabama v. Arizona.

The first dispute between states

decided under the United States Supreme

Court's original jurisdiction was New

York v. Connecticut, 4 Dall. 3, 1 L. Ed

715 (1799), a dispute over title to land

Claimed by both states. In a series of

cases from New Jersey v. New York, 5

Pet. 285, 8 L. Ed. 127 (1831), to

Nebraska v. Iowa, 406 U.S. 117, 31 L.

Ed. 2d 733, 92 S. Ct. 1379 (1972),

original jurisdiction has been invoked

for the determination of boundary dis-

putes between states. Concerning as

they do, the territorial sovereignty of

states, cases of this nature represent

the majority of decisions in original

jurisdiction. ;

Resorting to this Court for equi-

table or injunctive relief has been held

a proper instance for the taking of

jurisdiction. Jurisdiction has been

found proper in situations in which

there has been interference with, or

division of, waters flowing from one

state into another, Connecticut v.

Massachusetts, supra; Nebraska v.

Wyoming, 325 U.S. 589, 89 L. Ed. 1815,

10.

65 S. Ct. 1332 (1945); abatement of

interstate pollution Vermont v. New

York, 406 U.S. 186, 31 L. Ed. 2d 785, 92

S. Ct. 1603 (1972); and, sewage disposal

by one state affecting the health of the

citizens of another state. Missouri v.

Illinois, 180 U.S. 208, 45 L. Ed. 497,

21S. Ct. 331 (1901); New York v. New

Jersey, 256 U.S. 296, 65 L. Ed. 937, 41

S. Ct. 492 (1921). In this line of

cases the interest of the sovereign in

protecting the safety and health of its

citizens is readily apparent.

The two areas of controversy just

discussed exemplify the special nature

of the sovereign interest of states

which the original jurisdiction of the

Supreme Court was established to pro-

tect. Although this Court has heard

disputes in other areas, the common

thread throughout has been that an

ll.

interest of the plaintiff state recog-

nized by this Court as sovereign was

exposed to injury unless this Court

exercised its power. Pennsylvania v.

West Virginia, 262 U.S. 553, 67 L. Ed.

1117, 43 S. Ct. 658 (1923); Texas v.

Florida, 306 U.S. 398, 83 L. Ed. 817, 59

S. Ct. 513 (1939). That common thread

is lacking in the California complaint.

The invocation of original jurisdiction

would not be appropriate for the inter-

est in controversy in the instant case.

Representations have been made that

the respective governing bodies charged

with administering the institutions of

higher learning whose athletic depart-

ments entered into the disputed contract

are instrumentalities of their respec-

tive states. This is a conclusion with

which this Court would appear to concur.

Arkansas v. Texas, 346 U.S. 368, 98 L.

12.

Ed. 24 80, 74 S. Ct. 109 (1953). Cali-

fornia is attempting to extend this

proposition to allege that any activity

attributable to these governing bodies,

such as the activity of an intercol-

legiate athletic department is, per se,

of such consequence and importance that

whenever a dispute arises between the

athletic departments of state supported

universities, the dispute must be

resolved in the United States Supreme

Court. This proposition is neither

conclusive nor persuasive that the

instant controversy between the athletic

departments of West Virginia University

and San Jose State University must be

resolved in this Court.

Unlike the cases discussed in the

foregoing recital of the history of this

Court's invoking of its original juris-

diction, the instant case is in comparison

13.

a triviality. Giving rise to the dis-

pute is a contract to play two football

games on opposite sides of the continent.

The contract has a cancellation clause

which one of the parties invoked and to

which act the other objects.

Since the cancellation of the con-

tract, San Jose State University has

obtained a substitute opponent for one

of the terminated games. Otherwise, San

Jose State University made demand on 7

West Virginia University for the sum of

One Hundred Thousand ($100,000.00)

Dollars. But of this amount, less than

Five Thousand ($5,000.00) Dollars has

been designated by California to be

actual out-of-pocket expense.

Other than this insignificant sum,

for which West Virgnia has tendered

compensation = the claim of California

1. West Virginia University made a

public offer to San Jose State Univer-

sity to pay the sum of Twenty-eight

Thousand Fifty ($28,050.00) Dollars in

settlement of this dispute.

14.

is for loss of potential revenue. And

as it pertains to perceived loss of op-

portunity for revenue, the claim has its

foundation in estimate and speculation.

The injury alleged by California,

based primarily on speculation and

estimate and to only a minimum extent on

actual cost, is neither in amount prayed

for nor in its alleged impact serious in

magnitude or imminent in occurrence.

Alabama v. Arizona, supra; Connecticut

v. Massachusetts, supra; Washington v.

Oregon, supra; Colorado v. Kansas,

supra. Unlike disputes of the nature

contemplated in North Dakota v. Minnesota,

supra, the instant case would be a

doubtful candidate for settlement by

diplomatic adjustment. The rule set

forth in that case was in recognition of

the fact that this nation is a federa-

tion of states which, even in forming

15.

the Union, retained a great deal of

independent authority. In exercising

this authority states may come into

conflict. But with the growth and

development of this nation, the several

states have embarked on activities not

contemplated at the formation of the

Union. The carrying on of an intercol-

legiate athletic program is such an

activity.

The contracting for football games

is not an activity which is within the

sole province of the states’ authority.

Neither is it an activity which must be

engaged in by two states. Both West

Virginia University and San Jose State

University contract for the playing of

football games with privately chartered

institutions of higher learning. It is

only by an accident of the marketplace

in the making of the contract that the

16.

parties are construed as states, thus

allowing the plaintiff to seek to invoke

the jurisdiction of this Court.

If the present dispute arose

between San Jose State University and

Stanford University, a private institu-

tion of higher learning now on San

Jose's schedule, there is no question

that resort to this Court would be inap-

propriate. The instant dispute, al-

though involving two state supported

universities, is of no greater magnitude

than the preceding example. Neither San

Jose State University nor West Virginia

University in entering into the contract

was exercising the independent authority

of their respective states in a manner

contemplated by North Dakota v. Minnesota,

supra.

California, in asking the Court to

take jurisdiction in this dispute is, by

17.

implication, asking the Court to throw

open its doors and become a tribunal for

the resolution of every dispute, no

matter how trivial or insignificant,

that may in some remote manner arise

between states of the Union. With the

ever increasing expansion of states into

more and more activities, both within

and without territorial boundaries, the

number of conflicts which could come

before this Court may be great.

The history of the extension of the

original jurisdiction of this Court con-

sists of a case by case evaluation of

the necessity and propriety of the

exercise of that jurisdiction. Indeed,

this Court in other circumstances has

not hesitated to distinguish the ac-

tivities of both states of the Union,

Employees v. Missouri Public Health

Dept., 411 U.S. 279, 316 L. Ed. 2d 251,

18.

93 S. Ct. 1614 (1973); National League

of Cities v. Usery, 426 U.S. 833, 49 L.

Ed. 2d 245, 96 S. Ct. 2465 (1976),

(distinguishing activities of a state

which are or are not subject to federal

control under the Commerce Clause,

United States Constitution, Article I,

§ 3, cl. 2), and foreign states. Alfred

Dunhill of London, Inc. v. Cuba, 425 U.

S. 682, 48 L. Ed. 2d 301, 96 S. Ct. 1854

(1976), (distinguishing ciscentibnee:

for proper application of "act of state”

doctrine). Continuing in that tradition

by refusing to invoke original jurisdic-

tion in the instant case would be appro-

priate and would not prejudice the rights

of California.

San Jose State University would not

be denied a tribunal if this Court

declined jurisdiction, but would merely

be placed in the circumstances of a

19.

private institution of higher learning

that has entered into a similar agree-

ment .2/ Although California argues

that an appropriate state tribunal is

foreclosed by virtue of language in

Kentucky v. Indiana, 281 U.S. 163 at

165, 74 L. Ed. 784, 50 S. Ct. 275 (1930),

the issue in that case involved a third

2. Although recognizing complete

immunity from suit in its own courts by

virtue of West Virginia Constitution,

Article VI, § 35, West Virginia provides

a tribunal for determination and payment

of claims against the State. This

tribunal is the West Virginia Court of

Claims. The establishment, jurisdic-

tion, authority and procedure of this

tribunal is set forth in West Virginia

Code 14-2-1 et seq. The West Virginia

Court of Cla s accessible to Cali-

fornia in the same manner that it would

be to a private institution of higher

learning. Long ago this Court recog-

nized that there are circumstances in

which a state would take on the charac-

ter of a private citizen to seek judi-

cial determination of a claim. Bank

of Kentucky v. Wister, 2 Pet. 318, 7 L.

Ed. 437 ‘+LyL)F This circumstance, a

Claim for the payment of money, is

appropriate for that determination.

20.

party suit by citizens of Indiana, in

the courts of that state, challenging

Indiana's authority to enter into the

contract with Kentucky. Unlike the

question here, which is purely one of

monetary compensation, the issue in

Kentucky v. Indiana, supra, dealt with a

determination of state law and statutory

authority. The impropriety of having

the validity of a contract subject to

conflicting decisions in the courts of

two states is readily apparent. But,

when the issue is restricted to what, if

anything, is the measure of monetary

compensation, seeking a determination in

a state tribunal is appropriate and not

prejudicial to either party.

Additionally, California cites

Kentucky v. Indiana, supra, for the

proposition that a contractual dispute

between states is a proper area for

21.

granting jurisdiction. But this inter-

pretation of the case is incorrect to

the extent that it is suggested as

authority for granting original juris-

diction in the instant case.

The contract at issue in Kentucky

v. Indiana, supra, was of a kind and

character so far removed from the one

entered into in the instant case that

comparison is difficult. Kentucky end

Indiana had entered into an interstate

compact to build a bridge between cities

of the two states. The United States

Constitution, Article 1, § 10, cl. 3, in

explicit terms, forbids any state of the

Union from entering into any agreement

or compact with another state without

the consent of Congress. But with the

consent of Congress, states as sovereigns,

may enter into any compact or agreement

as they deem necessary. The construction

22.

and maintenance of bridges is among the

Class of interstate compacts to which

Congress has consented. Delaware River

Joint Toll Bridge Com. v. Colburn, 310

U.S. 419, 84 L. Ed. 1287, 60 S. Ct. 1039

(1940).

The differences between an inter-

state compact and the instant case are

obvious. A compact presupposes an

important interest of the quasi sover-

eign, but the agreement in the inetant

case is granted no such presumption.

Compacts by definition may be entered

into only between states of the Union.

Conversely, both West Virginia Univer-

sity and San Jose State University are

free to, and do enter into agreements to

play football games with privately

chartered institutions. Additional

distinctions would only belabor the

self-evident. The fact that this Court

23.

has granted original jurisdiction for a

dispute with respect to an interstate

compact is not precedent for extending

the same opportunity for the dispute in

the instant case.

Perhaps in recognition of this

fact, California attempts to elevate the

nature of the dispute by characterizing

it as a question of whether or not one

state may unilaterally rescind or break

an agreement with another. Such a

characterization is overbroad and con-

trary to the facts.

California has failed to inform the

Court that the original agreement

included an escape clause that allowed

either party to withdraw from the agree-

ment upon the occurrence of prescribed

circumstarces. West Virginia chose to

invoke the escape clause upon the

determination that in the six-year

24.

interval since the agreement was entered

into, and while the agreement was still

entirely executory, various factors had

arisen which made the invocation of the

escape clause a justified and proper

act.

Rather than a resort by West

Virginia to unilateral breach as an

instrument of policy for dealing with a

sister state, the controversy is a

mundane disagreement over the somewhat

ambiguous language of perfunctory agree-

ment for a sporting event. Even in the

most elaborately drafted contract, dis-

putes as to interpretation can arise and

such is the situation presented here.

Contrary to the contention of California,

this case does not involve a real threat

to the area of harmonious relationship

between the states.

5

CONCLUSION

This Court has not previously

exercised original jurisdiction for an

action of this nature. The plaintiff

state has failed to show that this Court

must, as a matter of absolute necessity,

act to protect its interest, and that

the interest sought to be protected is

a significant interest of the quasi

sovereign. An alternative forum is

available in which California may seek

redress of its claim.

It is respectfully requested that

this Court deny California's motion for

leave to file its complaint.

DATED: September 23, 1981

Respectfully submitted,

CHAUNCEY H. BROWNING

Attorney General

GS, Vv

Assistant Attorney

General

96.

3410 Staunton Avenue, S.E.

Charleston, West Virginia

25304

(304) 348-0390

Counsel for Defendant

State of West Virginia

27.

CERTIFICATE OF SERVICE

I, Donald L. Darling, a member of

the Bar of the Supreme Court of the

United States, do hereby certify that I

served the within Brief in Opposition

to Plaintiff's Motion for Leave to File

Complaint upon the State of California

by depositing a true copy thereof in

the United States Mail, first-class

postage prepaid this 244\ day of

September, 1981, addressed to:

Honorable Edmund G. Brown, Jr.

Governor of the State of

California

State Capitol

Sacramento, California 95814

Honorable George Deukmejian

Attorney General of the

State of California

555 Capitol Mall, Suite 350

Sacramento, California 95814

RURes

SUPREME COURT OF THE UNITED STATES

NO. 91, ORIGINAL

Statement setting forth the

details of filing by deposit-

ing in the United States mail

with first-class postage

prepaid, Brief in Opposition

To Plaintiff's Motion For

Leave to File Complaint.

I, Donald L. Darling, a member of

the Bar of the United States Supreme

Court, hereby make this statement in

accordance with Rule 28.2 of the Rules

of the United States Supreme Court.

I do hereby state and certify that

the foregoing Brief in Opposition To

Plaintiff's Motion For Leave to File

Complaint, in Action No. 91, Original,

State of California v. State of West

Virginia, was filed pursuant to Rule 28

of the Rules of the United States

Supreme Court, by depositing sixty (60)

copies in the United States Mail, first-

Class postage prepaid, and addressed to:

Alexander L. Stevas, Clerk

United States Supreme Court

Washington, D. C. 20543

on the QUjL, day of September, 1981.

STATE OF WEST VIRGINIA

COUNTY OF KANAWHA, to-wit

and County, do hereby certify that

Donald L. Dariing, whose name is signed

to the foregoing document, dated the 27

day of September, 1981, has acknowledged

the same before me on this Ped day of

September, 1981.

' My commission expires Ober 5S

r

L757 .

otary iW