Opposition Brief — Guarini v. New York
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Supreme Court, U.S.
eat. E D
MAY 28 1987 |
No. 86-1739
| WJOSEPH F. SPANIOL, JR.
_
CLERK
In The
Supreme Court of the United States
October Term, 1986
ray
FRANK J. GUARINI, GERALD McCANN, IRWIN
SILVERMAN, JOHN M. STILES, NIDIA DAVILA
COLON, HARRY BISHARIAN, AND WALTER
IRWIN,
Petitioners,
V.
THE STATE OF NEW YORK, AND
THE STATE OF NEW JERSEY,
Respondents.
ait
Vv
On Petition For A Writ Of Certiorari To The
Supreme Court Of New Jersey
f).
BRIEF IN OPPOSITION TO PETITION FOR A WRIT
OF CERTIORARI ON BEHALF OF RESPONDENT
STATE OF NEW JERSEY
a
Vv
W. Cary Epwarps
Attorney General of New Jersey
Attorney for Respondent
State of New Jersey
Richard J. Hughes Justice Complex
CN 112
Trenton, New Jersey 08625
(609) 292-8567
James J. CIANCIA
Assistant Attorney General
On the Brief
and
Counsel of Record
COCKLE LAW BRIEF PRINTING CO., (800) 225-6964
or call collect (402) 342-2831
QUESTION PRESENTED
Whether this Court should review a state trial court
dismissal of petitioners’ suit on grounds of lack of juris-
diction, lack of standing, sovereign immunity and comity,
which dismissal was summarily affirmed by the inter-
mediate appellate court and denied review by the New
Jersey Supreme Court, when the nature of the original
complaint sought nothing less than declarations of bor-
der jurisdiction and sovereignty binding on the two states
named as defendants, which defendants have declined to
litigate any such dispute existing between them.
il
TABLE OF CONTENTS
Page
Opinions Below a 1
Statement of the Case neem 1
Reasons for Denying the Writ:
A. The Courts Below Correctly Determined
That Jurisdiction Was Lacking Because
Plaintiffs’ Action Essentially Sought Reso-
lution of a Border Dispute Between Two Sov-
ercign States ee 6
B. The New Jersey Trial Court’s Determination
That Suit Against New York Was Foreclosed
By Reason of Sovereign Immunity and Com-
ity Presents No Basis for a Grant of the Writ 13
C. The New Jersey Trial Court Correctly De-
termined as a Matter of State Law That
Plaintiffs Did Not Have Standing to Litigate
a Border Dispute Against New York and New
FOCUY ss risininricie 15
Paeeienes ... eee 19
Appendix:
Comisint eee la
Answer Filed By State of New Jersey ....cccccccnn lla
Answer Filed By State of New York 000 17a
a is alae een
ili
TABLE OF AUTHORITIES
Page
CasEs:
Ames v. Kansas, 111 U.S. 449 (1884) 8
Arizona v. New Mexico, 425 U.S. 794 (1976) cn 11, 12
Arkansas v. Tennessee, 246 U.S. 158 (1917) ccs 12
Bergen County v. Port of New York Authority,
32 N.J. 303, 160 A. 2d 811 (1960) 15
Cissna v. Tennessee, 246 U.S. 289 (1917) .
Clarke v. Ackerman, 243 App. Div. 446, 278 N.Y.S.
I I MN sda eiietincneanaeinrpcenannnnsnens 16
Cook v. Weigley, 72 N.J. Eq. 221, 65 A. 196 (Ch.
1906) .......... 16
Crescent Park Tenants Assoc. v. Realty Eq. Corp.
of N.Y., 58 N.J. 98, 275 A.2d 433 (1971) 0. 15
Durfee v. Duke, 375 U.S. 106 (1963) 8,11,12
Ferguson v. Ross, 126 N.Y. 459, 27 N.E. 954 (1891) ......... 17
Illinois v. City of Milwaukee, 406 U.S. 91 (1972) 00... 8, 12
Maryland v. Lowisiana, 451 U.S. 725 (1981) oo 9
Missouri v. Illinois, 200 U.S. 496 (1906) 10
Nevada v. Hall, 440 U.S. 410 (1979) 13, 14
North Dakota v. Minnesota, 263 U.S. 496 (1906) ............. 10
Ohio v. Wyandatte Chemicals Corp., 401 U.S. 493
ERS USER SNEE ieee eee 9
Philadelphia v. Austin, 86 N.J. 55, 429 A.2d 568 (1981) 14
Rhode Island v. Massachusetts, 12 Pet. 657 (1838) ........... 7
Salorio v. Glaser, 82 N.J. 482, 414 A.2d 943 (1980),
app. dism., cert. den. 449 U.S. 804 (1980) 15,17
State v. Carlaftes, 24 N.J. 451, 182 A.2d 515 (1957) ..... 7
iv
TABLE OF AUTHORITIES—Continued
Tennant v. State Bd. of Taxes & Assessments, 95
N.J.L. 465, 113 4.254 (E.&A. 1921)
Page
16
Texas v. New Meaico, 462 U.S. 554 (1983)
8, 12
STaTUTEs:
28 U.S.C. § 1251(a)
N.J. Stat. Ann. § 32:32-1 et seq.
N.J. Stat. Ann. § 52:17A-4
N.J. Stat. Ann. § 52:28-3
N.J. Stat. Ann. § 58:28-1 et seq.
Judiciary Act, ch. 20, 1 Stat. 73 (1789)
1987 N.J. Sess. Law Serv. Ch. 57
wm oF OS
U.S. ConstItTuTION :
United States Const., Art. III, $2
7,8
New JERSEY CoNSTITUTION:
N.J. Const. (1947), Art. V, § 1, J 11
OTHER AUTHORITIES:
‘‘Warren, the Supreme Court and Disputes Be-
tween States’’, 34 Bull. of Williams and Mary,
10
No. 4 (1940)
OPINIONS BELOW
The opinion below of the New Jersey Superior Court,
Chancery Division is reported as Guarini v. New York, 215
N.J. Super. 426, 521 A. 2d 1362 (Ch. Div. 1986). The sum-
mary affirmance thereof by the New Jersey Superior
Court, Appellate Division is reported at 215 N.J. Super.
293, 521 A. 2d 1294 (App. Div. 1986). The New Jersey Su-
preme Court’s denial of certification and dismissal of the
appeal is not yet reported but it is contained in petitioner’s
appendix at la -2a.
STATEMENT OF THE CASE
It is undisputed that Ellis and Liberty (formally Bed-
loe’s) Islands are owned exclusively by the federal govern-
ment and that the Islands are located on the New Jersey
side of the New Jersey/New York border, which border
was established by the 1834 Compact entered into between
New Jersey and New York and approved by Congress.
N.J. Stat. Ann. § 58:28-1 et seq. The underlying problem
which formed the basis of plaintiffs’ complaint is New
York’s exercise of sovereignty on Liberty Island by charg-
ing New York sales tax for souvenirs purchased thereon.
The State of New Jersey although disputing New York’s
right to charge sales tax on the Islands has chosen not to
litigate its claims of sovereignty against New York but
rather the Governors of the two states have agreed to pro-
pose to their respective legislatures a bistate agreement
which essentially splits all tax revenue equally between the
states for the exclusive benefit of the homeless. In New
Jersey this legislation has already passed both houses and
been signed into law by Governor Kean. JN.J. Stat. Ann.
§ 32:32-1 et seq.; 1987 N.J. Sess. Law Serv. Chapter 57, at
102-115.
Plaintiffs as private citizens sought to litigate the
sovereignty issue in a manner which would have altered,
indeed voided, a bistate compact and bound both states to
the adjudication. Most essential to an informed deter-
mination on this petition is a correct understanding of the
complaint that was actually dismissed by the New Jersey
trial court. Significantly that complaint is nowhere to be
found in petitioners’ appendix. It is set out in full as an
appendix to this brief in opposition. (la-10a). Petitioners
now characterize their suit as essentially a taxpayer’s
action wherein a declaration of rights under the 1834 Com-
pact was sought. As will be seen, this is a refinement on
the tail wagging the dog epigram—it is the tail in anima-
tion with the dog nowhere in sight. It is elevation of in-
cidental to primary. It is a misleading characterization
of the suit actually attempted.
In the First Count of the complaint plaintiffs recite a
history of Ellis and Liberty Islands leading up to a con-
clusion that the State of New York has deprived the State
of New Jersey of tax revenues. ‘‘The levy and collection
of these tax revenues by the defendant State of New Jer-
sey will lessen the tax burden on plaintiffs by providing
greater revenues to the State of New Jersey.’’ (5a, 717).
The First Count goes on to assert a ‘‘genuine controversy
between the plaintiffs, the defendant State of New Jersey
and the defendant State of New York as to the rights of
the parties into and over the two parcels of property.”’
(5a, 718). Plaintiffs assert that the 1834 Compact be-
a P
3
tween New Jersey and New York did not resolve the con-
troversy. Wherefore plaintiffs sought a declaratory judg-
ment that the State of New York does not possess juris-
diction or sovereignty over Ellis Island, Liberty Island
and their accretions but rather that sovereignty and juris-
diction are in New Jersey. Injunctive relief against New
York was also requested. (6a).
In the Second Count of the complaint plaintiffs assert
that the 1834 Compact, to the extent it can be interpreted
as giving New York jurisdiction or sovereignty over the
Islands, ‘‘is void and ultra vires the powers of the signa-
tories.’’ The relief sought in this count was a declaratory
judgment invalidating any ‘‘purported grant of jurisdic-
tion of sovereignty to the defendant State of New York by
the compact of 1834’’ and declaring the State of New Jer-
sey as the proper sovereign with jurisdiction. Injunctive
relief against New York was again sought. (6a).
In the Third Count plaintiffs note that much of Ellis
Island is landfill and sought a declaratory judgment that
“accretions and fill to Ellis Island are within the exclusive
jurisdiction and sovereignty of the defendant State of New
Jersey.’’ Injunctive relief against New York was sought.
(7a).
In the Fourth Count is the assertion that a specific
individual (Colon) paid $1.35 in taxes to New York for the
purchase of various Liberty Island souvenirs. The relief
sought, however, is somewhat broader than a return of the
$1.35, indeed such relief is nowhere requested. Rather
what is sought is a declaratory judgment, ‘‘that the de-
fendant the State of New York does not possess jurisdic-
tion or sovereignty over Ellis Island and Liberty Island.
.’* (Ta-8a).
4
In the Fifth Count plaintiffs posit that the State of
New York will be unjustly enriched if it is permitted to
retain the tax revenues collected on the Islands and there-
fore a constructive trust should be imposed and future tax
collections enjoined. (8a-9a).
The Sixth (and last) Count of the complaint asserts
that certain plaintiffs are New Jersey union members who
have lost and will continue to lose job opportunities on the
Islands because work has been going to New York unions.
The final relief demanded is a declaratory judgment that
New York does not possess jurisdiction or sovereignty
over Ellis and Liberty Islands and that sovereignty and
jurisdiction are held by the defendant State of New Jersey.
(9a-10a).
The answers to the complaint (1la-24a) highlighted
the border dispute existing between New York and New
Jersey as well as New Jersey’s areas of difference with
the plaintiffs. New Jersey denied plaintiffs’ allegation
that the 1834 Compact did not resolve the historical dis-
pute over the Islands. While admitting its sovereignty
over the Islands New Jersey denied plaintiffs’ claim that
the 1834 Compact was ultra vires. New Jersey agreed
with the contention that New York was wrongfully exer-
cising its taxing power on the Islands. For its part, New
York agreed with New Jersey that the Compact was not
ultra vires but denied New Jersey’s sovereignty while as-
serting its own. It denied any wrongful taxing. By way
of affirmative defenses New Jersey asserted plaintiffs’
lacked standing and the New Jersey trial court lacked jur-
isdiction. New York raised the same defenses and also
asserted it was not amenable to suit by virtue of sovereign
immunity and comity.
eB
qu
In light of the complaint filed by plaintiffs it is not
surprising that the New Jersey trial judge said, ‘‘viewed
precisely, this case involves either (1) a border dispute or
(2) an abrogation or modification of an interstate compact
or (3) a declaration of the rights of the party states under
the compact.’’ (Pet. 13a). The trial court’s conclusion
that the issues present, ‘‘a classic case for the exercise of
original and exclusive jurisdiction of the United States
Supreme Court’’ (Pet. 15a) cannot be seriously disputed.
The complaint was dismissed because the New Jersey
Superior Court has no jurisdiction to resolve border dis-
putes between states or to declare the rights of party states
under such Compacts. Plaintiffs lacked standing to assert
rights or claims which are the prerogatives of sovereign
states. Further it was found that the doctrine of sovereign
immunity and principles of comity between states, required
dismissal of the action.
In the Appellate Division of Superior Court the trial
judge’s decision was summarily affirmed. (Pet. 3a-7a).
In a footnote the Appellate Division added
Our affirmance of the judgment under review is with-
out prejudice to the right of plaintiff Nidia Davila
Colon to seek refund of the $1.35 sales tax paid to the
State of New York or the City of New York, as the
case may be, in connection with the purchase of items
from the concession at Liberty Island in the appropri-
ate New York Court. This issue was not specifically
raised before or decided by the trial court and council
for the State of New York have recognized plaintiff-
Colon’s right as an individual to seek such refund.
See Hill v. Joseph, 205 Misc. 441, 129 N.Y.S.2d 348
(Supp Ct., special term 1954). [Pet. 7a].
The New Jersey Supreme Court subsequently denied
plaintiffs’ petition for certification and dismissed the ap-
peal. (Pet. la-2a).
ty
Ww
REASONS FOR DENYING THE WRIT
The Writ sought here should be denied because the
state courts correctly interpreted and applied the prece-
dents of this Court in light of the plaintiffs’ complaint.
The judgment issued on separate grounds, each of which
supports the result reached and some of which turn pri-
marily, if not exclusively, on state law. Certiorari review
is not warranted because the constitutional issues raised
are frivolous,
A. The Courts Below Correctly Determined That
Jurisdiction Was Lacking Because Plaintiffs’
Action Essentially Sought Resolution Of A
Border Dispute Between Two Sovereign
States.
Plaintiffs’ complaint sought nothing less than a decla-
ration of sovereignty and jurisdiction over islands which
lie in New York Harbor on the New Jersey side of the
border line which divides the states. That border, the
indicia of sovereignty, was established in an 1834 Compact
between New Jersey and New York which agreement was
intended to settle the long-term border dispute between
the states. In that Compact New York was permitted to
‘retain its present jurisdiction of and over Bedloe’s and
Ellis’ Islands....°’’ N.J. Stat. Ann. §52:28-3. There is
no question but that New Jersey and New York disagree
on the proper interpretation of this statutory language in
the Compact. What they do agree on, however, is that
any dispute should be settled by negotiation not litigation.
Having made that determination private citizens should
not be allowed to abrogate it by suing both sovereigns as
defendants in state court. If New Jersey or New York
had wanted a Court to decide their differences, one of
them would have filed a petition directly in this Court
as New Jersey once did prior to the 1834 Compact. (For
a concise description of the Compact and the history which
immediately preceded its enactment see State v. Carlaftes,
24 N.J. 451, 1382 A.2d 515 (1957).)
Clearly a border dispute of this nature, if it is to be
litigated at all, must be brought only in this Court. The
United States Constitution Art. III, §2 provides in part
that, ‘‘in all Cases ...in which a State shall be Party, the
supreme Court shall have original Jurisdiction.’’ Con-
gress has provided that in controversies between two or
more states the jurisdiction of the Supreme Court is both
original and exclusive. 28 U.S.C. § 1251(a).
Border disputes are the classic case for original and
exclusive United States Supreme Court jurisdiction. See
e.g. Rhode Island v. Massachusetts, 12 Pet. 657 (1838).
The statement in petitioners’ brief that, ‘‘the attempt by
Congress to define the original and exclusive jurisdiction
of the United States Supreme Court by statute is con-
trary to the Constitution’’ (p.20) is, at this point in time,
nothing short of amazing. The first version of 28 U.S.C.
1251(a) came into being with the First Congress, within
six months of the inauguration of the Government under
the Constitution. The statute itself was drafted by Oliver
Ellsworth, a member of the Constitutional Convention and
later Chief Justice of this Court.” The legislation was
voted upon by many who were personally aware of the
discussions within the Constitutional Convention. The
statutes stated that the Supreme Court shall have exclu-
sive jurisdiction of all controversies of a civil nature where
a state is a party. Judiciary Act, ch. 20, 1 Stat. 73 (1789) ;
Ames v. Kansas, 111 U.S. 449, 463-465 (1884). This Court’s
approval of 28 U.S.C. 4 1251(a) has remained unchanged.
Essentially the statute honors the original thought beh..d
the constitutional language. J/llinois v. City of Milwaukee,
406 U.S. 91 (1972). In Justice Black’s concurring opinion
in Durfee v. Duke, 375 U.S. 106, 116 (1963), a suit between
private parties concerning border land, he cited to 25
U.S.C. § 1251(a) as well as to U.S. Const. Art. IL, §2 for
the proposition, ‘‘Neither State, of course, has power to
make a determination binding on the other as to which
state the land is in.’’ It appears that 198 years of judicial
endorsement of and acquiescence in 28 U.S.C. 1251(a) is
of no consequence to petitioners.
Plaintiffs’ remarkable assertion that exclusive original
jurisdiction may be unconstitutional is buttressed with a
quote from Justice Brennan in Texas v. New Mexico, 462
U.S. 554 (1983) wherein he noted the Court has discretion
in the application of 28 U.S.C. 1251(a). Certainly these
comments were never intended to authorize the litigation
of a border dispute in a state court which would be bind-
ing on the states by virtue of their status as defendants.
In Texas v. New Mezico the two states had entered into
the Pecos River Compact to govern the allocation of water
from a river which arose in New Mexico and flowed into
Texas. The Compact was approved by Congress and its
provisions created a Commission to administer it. A dis-
pute arose as to how much water Texas was entitled to
and the Commissioners from each state could not agree
on a resolution. Texas then filed an original action against
New Mexico in this Court and a Special Master was ap-
pointed. The Court’s opinion was given in response to
the Master’s report. In the course of the unanimous opin-
ion Justice Brennan acknowledged the Court’s original
jurisdiction over Compact disputes between states. He
further indicated that if it were clear from the Compact
itself that the Commission was to be the exclusive forum
for disputes arising under the Compact (which it was not)
then the Court would honor that provision. 462 U.S. at
569. On the other hand, New Mexico suggested that every
decision by the Commission was reviewable by the dis-
appointed state on an original petition to this Court. It
was in the context of rejecting this suggestion of whole-
sale jurisdiction over routine matters that the Court noted
it had some discretion under 28 U.S.C. 1251(a) and cited
two prior cases, one of which (Maryland v. Louisiana, 451
U.S. 725 (1981)) concerned an attack by the United States
as well as individual states on a use tax as violative of
the Commerce and Supremacy clauses, the other of which
(Ohio v. Wyandatte Chemicals Corp., 401 U.S. 493 (1971) )
concerned a state’s attempt to sue private companys which
had created a pollution nuisance. Understandably this
Court did not want to become the automatic reviewer of
every routine decision issued by the Pecos River Compact
Commission with which one state disagreed. In articu-
lating this obvious reluctance and citing other cases in-
volving specific fact patterns, the Court was doing no more
than defining the statutory phrase ‘‘controversies between
10
> It is clear, however, that once the
two or more states.
litigation comes within that phrase, this Court’s jurisdic-
tion is indeed original and exclusive. Thus in a footnote
Justice Brennan said, ‘‘the model case for invocation of
this Court’s original jurisdiction is a dispute between
states of such seriousness that it would amount to casus
belli if the states were fully sovereign. North Dakota
v. Minnesota, 263 US 365, 372-374, . . . (1923); Missourt
v. Illinois, 200 US 496, 519-521... (1906).’’ 462 U.S. at
o71 n.18.
The North Dakota case involved a claim that Minne-
sota had altered an interstate river in such a way as to
cause flooding and destruction of property in North Da-
kota. The Missouri case concerned an allegation that one
state was discharging pollute’ water into another state
thereby causing typhoid fever. If these situations are
casus belli, then a dispute as to which state may exercise
sovereignty and jurisdiction over land on their common
border must also fall into that category. As a matter of
historical fact when the United States Constitution was
being drafted ten states were in serious disputes concern-
ing boundaries, land and river rights. During the Court’s
first sixty years the few state disputes coming before it
were exclusively boundary disputes. ‘‘Warren, the Su-
preme Court and Disputes Between States,’’ 34 Bull. of
William and Mary, No. 4 at 7-14 (1940).
If petitioners’ legal analysis were correct this Court’s
original and exclusive jurisdiction over significant disputes
between states would become a nullity. While it is possibl«
to come up with any number of cases where this Court has
declined jurisdiction, those cases are not analogous to the
present case. There is no decision to be found where this
11
Court has ever turned away a true boundary dispute be-
tween two states or indicated that state courts were a
viable option. Thus in Durfee v. Duke private parties
sued other private parties over who owned land in the
Missour River which forms the Missouri/Nebraska bound-
ary line. Justice Stewart writing for a virtually unani-
mous court said that if private parties litigate the issue
of whether certain land is located in one state or another,
either state may at any time protect its interest, ‘‘by
initiating independent judicial proceedings here.’’ 375
U.S. at 116. Significantly he did not say that the states
might voluntarily join in the state litigation, much less
the current proposition that two states can be forced to
litigate a border dispute in a state court by naming them
as defendants.
No case cited by petitioners stands for the proposition
that a state court may adjudicate a dispute between two
sovereigns over their exercise of sovereign authority. Re-
liance upon Arizona v. New Mezico, 425 U.S. 794 (1976) is
misplaced. There, Arizona in its proprietary capacity as
a consumer of electrical energy and as parens patriae for
its citizen consumers, sought to invoke this Court’s or-
iginal jurisdiction. It contended that a New Mexico elec-
trical energy tax imposed on Arizona utilities operating
facilities in New Mexico was unconstitutional. This Court
declined jurisdiction because the Arizona utilities had pre-
viously instituted an action in a New Mexico State Court
challenging the New Mexico tax and raising the same con-
stitutional issues that would be presented if Arizona were
allowed to proceed in this Court. The pending state court
action provided an appropriate forum for litigation of the
issues. Certainly, petitioners in the present case are not
12
aided by Arizona v. New Mexico. The state court pro-
ceeding which was found to block Arizona’s efforts at or-
iginal jurisdiction did not involve sovereign versus sov-
ereign but rather public utilities versus a state and there-
fore was properly ongoing in the state court forum. See
e.g., Illinois v. City of Milwaukee, 406 U.S. 91 (1972).
To turn Arizona v. New Mexico on its head and assert that
its supports a claim that a border dispute may be brought
in state court is, to say the least, inappropriate.
So too, in Cissna v. Tennessee, 246 U.S. 289 (1917),
another case relied on by petitioners, this Court’s review
of a state court’s interpretation of a Compact as it affects
the title rights of private parties does not stand for the
proposition that a state court may hear suits involving the
su-ereign disputes of two states. Note that this Court’s
reversal in Cussna steius from its decision in Arkansas v.
Tennessee, 246 U.S. 158 (1917), a suit within the original
jurisdiction of this Court to settle the same boundary at
issue in Cissna.
The complaint filed by plaintiffs and dismissed by
the New Jersey trial court set forth the elements of a clas-
sic border dispute. That New Jersey was named as a
‘‘necessary defendant’’ confirms plaintiffs’ grand scheme
to litigate not a tax question but a boundary question in
such a way that both states would be held to the result.
New Jersey’s answer to the complaint establishes the con-
troversy between sovereign states. The controversy stems
from issues of sovereignty that are casus belli. This Court.
has frequently urged negotiations between states rather
than litigation. See e.g., Texas v. New Mexico, 462 U.S.
at 575 and Durfee v. Duke, 375 U.S. at 116 n. 15. This is
exactly what New Jersey and New York have attempted to
do through the good faith efforts of their respective gover-
nors but plaintiffs feel it is their right to bring both sov-
ereigns before a state court judge to litigate the border
between those states. This they cannot do.
B. The New Jersey Trial Court’s Determination
That Suit Against New York Was Foreclosed
By Reason Of Sovereign Immunity And Co-
mity Presents No Basis For A Grant Of The
Writ.
Although the absence of jurisdiction was the primary
basis for dismissal of the complaint, tht trial court also
concluded that principles of sovereign immunity and com-
ity prevented private New Jersey citizens from suing New
York State in a New Jersey court, under the particular
circumstances of this case. In the intermediate appellate
court and in the brief presented to the New Jersey Su-
preme Court,-New Jersey took the position that it would
not comment on these issues because they primarily con-
cerned New York. Except for the following limited com-
ments directed only at the propriety of this Court’s grant
of certiorari, New Jersey will continue to leave New York
with the laboring oar.
It is apparent from the trial judge’s opinion that he
drew heavily from Nevada v. Hall, 440 U.S. 410 (1979) in
applying New Jersey law and concluding New York was
entitled to the protective mantle of sovereign immunity.
To the extent reliance was placed on the majority opinion
in Nevada v. Hall, the trial court’s determination presents
no question of constitutional dimension or interpretation
of federal law. What is clear from the majority in Nevada
v. Hall, is that the acceptance of a sister state’s claim of
sovereign immunity is a matter of state law, not constitu-
14
tional compulsion. Jd. at 418-419, 425-427. Accordingly,
there is no basis to grant review of this application of New
Jersey law and policy.
To the extent that the trial court’s opinion can be
read as relying on the dissents in Nevada v. Hall and im-
plying thereby that something implicit in the United States
Constitution requires acceptance of New York’s claims of
sovereign immunity, there is also no impetus for a grant
of certiorari. The present case does not arise from a run-
of-the-mill tort action which happened to involve a vehicle
owned by a sister state. Rather it concerns New York’s
exercise of an attribute of sovereignty, the taxing power,
under a claim of right grounded in a bistate Compact.*
Given this context, it is not at all clear that a constitutional
analysis reaching a conclusion that sovereign immunity
should prevail would in any way be at odds with the ma-
jority opinion in Nevada v. Hall. Id. at 424, n. 24. In light
of the result in this case and absent any indication that
the calamitous consequences envisioned by the dissenters
in Nevada v. Hall (id. at 443) have actually occurred, this
case is a poor vehicle to reconsider the footings of sov-
ereign immunity.
So too, the trial court’s reliance on principles of com-
ity present no basis for review by this Court. By defini-
tion comity is a courtesy extended by a forum state to an-
other state. Philadelphia v. Austin, 86 N.J. 55, 64, 429 A.2d
568, 572 (1981). Even an erroneous application of comity
in favor of the non-forum state can hardly be said to rise
* New Jersey’s strong disagreement with New York’s interpre-
tation of the Compact is not germane to this specific question of
sovereign immunity.
~-
2
above a breach of forum-state policy. It does not implicate
constitutional considerations and should not be the subject
of review by this Court.
C. The New Jersey Trial Court Correctly Deter-
mined As A Matter Of State Law That Plain-
tiffs Did Not Have Standing To Litigate A
Border Dispute Against New York And New
Jersey. .
The final prong of the trial court’s analysis was a de-
termination that plaintiffs had no standing to sue in New
Jersey. Although that analysis, of necessity, requires an
evaluation of the true nature of the litigation and thus
in this case a reaffirmation of the previous conclusion that
plaintiffs were seeking declarations of sovereignty, at bot-
tom is the undisputable fact that standing, vel non, turns
on state law. Salorio v. Glaser, 82 N.J. 482, 490-491, 414
A.2d 943, 947 (1980), app. dism., cert. den. 449 U.S. 804
(1980). While New Jersey has historically taken a liberal
approach to standing, Crescent Park Tenants Assoc. v.
Realty Eq. Corp of N.J., 58 N.J. 98, 107, 275 A.2d 483,
437-438 (1971), even liberality has its limitations. See e..,
Bergen County v. Port of New York Authority, 32 NJ.
303, 160 A.2d 811 (1960).
It cannot be seriously argued that the involvement of
a bistate compact in the underlying litigation somehow
transforms the standing issue into a matter of federal law
or constitutional imperative. Whatever else may be ar-
gued over in the 1834 Compact, it certainly does not invite
private parties to sue its signatories over its interpreta-
tion. In a Republic, as opposed to a pure democracy,
some contentions simply cannot be litigated by private
citizens. In New Jersey the Governor is constitutionally
16
charged with enforcement of legislation, V.J. Const. (1947),
Art. V, $1, 7 11, and the New Jersey Attorney General is
exclusively authorized to litigate on behalf of the state.
N.J. Stat. Ann. §52:17A-4. Moreover petitioners’ current
contention that New York’s taxing authority on the Is-
lands contravenes both the Commerce Clause and the Due
Process Clause of the Fourteenth Amendment is nowhere
to be found in their complaint. The action that was dis-
missed contended only that the tax levy was ultra vires
New York’s sovereign and jurisdictional power.
Petitioners’ present efforts to focus on plaintiff Colon
and her payment of $1.35 in sales tax to New York, ignores
what was found to be the primary thrust of the complaint
and completely fails to deal with the fact New Jersey was
named as a ‘‘necessary defendant.’’ New Jersey was a
necessary defendant because plaintiffs wished to bind New
Jersey to a declaration of sovereignty concerning Ellis and
Liberty Islands, not because plaintiff Colon wanted redress
for a personal expenditure. Were this merely litigation
by private parties to vindicate private interests, which in-
cidentally involved a bistate agreement, there would be
little argument over jurisdiction and standing. Such suits
have been brought over the years in both New Jersey and
New York State Courts. See e.g. Tennant v. State Bad.
Taxes & Assessments, 95 N.J.L. 465, 113 A.254 (E.&A.
1921) (Jersey City may tax personal property moored in
tidewaters of New York Bay within the territorial limits
of New Jersey); Cook v. Weigley, 72 N.J. Eq. 221, 65 A.196
(Ch. 1906) (New Jersey Court has jurisdiction to enforce
inortgage foreclosure of islands in New York Harbor on
New Jersey side of boundary); Clarke v. Ackerman, 243
App. Div. 446, 278 N.Y.S. 75 (App. Div. 1935) (automobile
17
negligence action arising out of accident on New Jersey’s
side of George Washington Bridge where plaintiff made
service of process according to New York law); Ferguson
v. Ross, 126 N.Y. 459, 27 N.E. 954 (1891) (penalty action
brought by New York shore inspector to recover penalty
for depositing dredging on New Jersey’s side of boundary
line).
Perhaps petitioners cling so tenaciously to plaintiff
Colon because the other individuals named as plaintiffs,
with the possible exception of the union members, show
no more relationship to Ellis and Liberty Islands than any
other citizen of New Jersey. Thus the plaintiffs have in-
sufficient interest to bring a conventional taxpayer suit
much less a full scale attack on a bistate compact and the
sovereign rights of New Jersey and New York. Under
New Jersey law these plaintiffs do not have even the
‘slight additional private interest’’ necessary to afford
standing to litigate questions of great public importance.
Salorio v. Glaser, 82 N.J. at 491, 414 A.2d at 947.
As to Colon herself, the relief sought in plaintiffs’
complaint was not a refund of taxes improperly paid but
rather ‘‘judgment declaring that the defendant State of
New York does not possess jurisdiction or sovereignty over
Ellis Island and Liberty Island and the accretions thereto
and enjoining ... New York and its political subdivisions
from collecting and levying taxes on Ellis Island and Lib-
erty Island.’’ (8a). A taxpayer should not be permitted
standing to sue two sovereign states and seek a declara-
tion of sovereignty binding upon both under the claim that
such is the right of anyone who has paid New York sales
tax on the islands. As the New Jersey Appellate Division
indicated in a footnote, Colon may very well have a legiti-
18
mate lawsuit against New York taxing authorities but the
complaint must be recast without New Jersey as a neces-
sary party and should be brought in a New York State
Court.
Finally, as to the New Jersey union members who
claim a loss of work because New York union members are
employed instead of New Jersey union members, one can
only wonder how this purported problem is necessitated
by New Jersey and New York’s dispute over the Islands
or indeed how such a problem may be litigated in the ab-
sence of the unions as parties. Private labor unions are
free to allocate territorial work on any bases they choose.
Exactly how conflicting sovereignty claims between New
Jersey and New York resulted in a situation favoring
New York unions is not explained. At first blush it would
seem a border dispute between New Jersey and New York
would leave the unions in equipoise or perhaps urge them
to look further for resolution of their territorial dispute.
If a certain union chooses to ignore the boundary line
which indisputably puts the Islands within New Jersey’s
territory, in favor of New York’s claim of extraterritorial
jurisdiction, it would seem that is a matter for debate be-
tween unions and employers in light of the respective con-
tracts and rules which govern their relationship. Because
private entities cannot agree on private rights is no reason
to seek declarations of sovereignty binding upon both
states. It is a basis for private litigation which will settle
private rights without also implicating the sovereignty of
adjacent states.
°
19
CONCLUSION
For the foregoing reasons the petition for a writ of
Certiorari in this case should be denied.
Dated: May 26, 1987
Respectfully submitted,
W. Cary Epwarps
Attorney General of New Jersey
By: James J. Ciancia
Assistant Attorney General
Counsel of Record
le
APPENDIX
SUPERIOR COURT OF NEW JERSEY
YHANCERY DIVISION : HUDSON COUNTY
MARGULIES, MARGULIES & WIND
A Professional Corporation
921 Bergen Avenue
Jersey City, New Jersey 0730€
(201) 963-0700
Attorneys for plaintiffs
MAURICE C. BRIGADIER, ESQ.
921 Bergen Avenue
Jersey City, N. J. 07306
Of counsel for plaintiffs
FRANK J. GUARINI, Member of
the House of Representatives,
GERALD MeCANN, Mayor of the
City of Jersey City, DR. IRWIN
SILVERMAN, ROBERT J. DEL
TUFO, DR. LENA EDWARDS,
JOHN M. STILES, REV. RAY-
MOND J. KUPKE, NIDIA
DAVILA COLON, DR. SANG JIN
KIM, HARRY BISHARIAN and
WALTER IRWIN,
Docket No.
Civil Action
Plaintiffs,
COMPLAINT
vs.
THE STATE OF NEW YORK,
Defendant,
- and -
THE STATE OF NEW JERSEY,
a necessary defendant.
ee ee a ee ee ee eee ee ee ee ee ee”
ye re I
2a
Plaintiffs, Frank J. Guarini, residing at 201 St. Pauls
Avenue, Jersey City, New Jersey 07306; Gerald McCann, }
residing at 210 Gates Avenue, Jersey City, New Jersey
07305; Dr. Irwin Silverman, residing at 911 Boulevard :
East, Weehawken, New Jersey; Robert J. Del Tufo,. re-
siding at 35 Colles Avenue, Morristown, New Jersey
07960; Dr. Lena Edwards, residing at 821 Woodland Drive,
Lakewood, New Jersey 08701; John M. Stiles, residing
at 5 Kaufman Drive, Westwood, New Jersey 07675; Rev.
Raymond J. Kupke, residing at 18 Changebridge Road,
Montville, New Jersey 07047; Nidia Davila Colon, resid-
ing at 338 Second Street, Jersey City, New Jersey 07302;
Dr. Sang Jin Kim, residing at 108 Eagle Ridge Drive
West Orange, New Jersey 07052, Harry Bisharian, re-
siding at 337 Lucy Drive, New Milford, New Jersey 07646
and Walter Irwin, residing at 8 Hilltop Lane, Succasunna,
New Jersey 07876, by way of complaint against defendant,
say:
FIRST COUNT
1. Plaintiffs are residents, citizens und taxpayers
of the defendant State of New Jersey.
2. On or about March 12, 1664 Charles Il granted
territory to James, Duke of York, that extended along
the Atlantic coast and included the territory that is today
the State of New Jersey and the State of New York.
3. On or about June 24, 1664 James, Duk: of York,
conveyed by a deed of release to Lord Berkeley and Sir
George Carteret proprietorship in New Jersey which was
described as the area between the sea and the Hudson
River on the east and the Delaware River on the west.
3a
4. The territory granted to the Duke of York was
recognized by the Dutch in 1673. After the rule of Great
Britain was restored, Charles II in 1674 granted the
same domain to the Duke of York as was granted in the
Charter of 1664.
5. In 1674 the Duke of York reconveyed the eastern
parts of New Jersey to Sir George Carteret and later the
western parts to the grantees of Lord Berkeley on the
same terms as the previous grant.
6. Following the partition of East Jersey and West
Jersey and the death of Sir George Carteret, a conveyance
of East Jersey was made to twenty-four proprietors in
1682. In 1683 the Duke of York made a confirmatory
grant to the twenty-four proprietors of Kast Jersey.
7. In 1685 James, Duke of York, succeeded to the
British Crown and any and all rights to the Hudson River
and the islands therein then held by the Duke of York
were reannexed to the Crown.
8. In 1702 the proprietors surrendered all govern-
mental powers to Queen Anne, acknowledging that all fu-
ture governmental powers belonged to the Crown. The
proprietors did not relinquish title to private property,
incuding title to Ellis Island and Liberty Island.
9. From 1702 until the independence of the State of
New Jersey and State of New York from British rule
all sovereignty, jurisdiction and jura regalia over the
Hudson River belonged to the British crown.
10. When the State of New Jersey and the State of
New York became independent States, the sovereignty,
jurisdiction and rights to that part of the Hudson River
4a
that forms the boundary between the two States was di-
vided under the precepts of international law such that
all territory east of the middle of the river falls within
the State of New York and all territory west of the middle
of the river falls within the State of New Jersey.
11. Two parcels of property, Ellis Island and Liberty
Island (formerly known as Bedloe’s Island), were at the
time of the formation of the defendant State of New York
and the defendant State of New Jersey located on the
New Jersey side of the Hudson River and fell under the
territorial jurisdiction and sovereignty of the defendant
State of New Jersey.
12. In 1834 a compact was entered into between the
defendants (N.J.S.A. 52:28-1, et seq.; 56 McKinney’s State
Laws, section 7), pertaining to jurisdiction over Ellis Is-
land and Liberty Island.
13. At the time the compact was entered into between
defendants, Ellis Island was approximately 3 acres in
size. Subsequent to the compact, landfill to the island
below the water line has increased the size of Ellis Island
by approximately 24.5 acres.
14. The defendant State of New York has wrong-
fully exercised and continues to exercise jurisdiction and
sovereignty over Ellis Island and Liberty Island pur-
portedly pursuant to the compact of 1834 by engaging
in the following activities: (a) levying sales taxes on the
islands and collecting those taxes; (b) levying state in-
come tax on persons residing or working on the islands
and collecting those taxes; and (c) exercising police powers
over the islands and the persons who live and work on
the islands or visit the islands.
da
15. The compact entered into between defendant
States in 1834 did not vest the defendant State of New
York with jurisdiction or sovereignty over Ellis Island
and Liberty Island.
16. The levy and collection of taxes on Ellis Island
and Liberty Island, ineluding the taxation of sales and
business transactions on those islands by the defendant
State of New York and its political subdivisions, has de-
prived and will continue to deprive the defendant State
of New Jersey of tax revenues.
17. The levy and collection of these tax revenues by
the defendant State of New Jersey will lessen the tax
burden on plaintiffs by providing greater revenues to the
State of New Jersey.
18. There is a genuine controversy between the plain-
tiffs, the defendant State of New Jersey and the defendant
State of New York as to the rights of the parties in, to and
over the two parcels of property.
19. The controversy was not resolved when litigation
was instituted in the United States Supreme Court by the
defendant State of New Jersey in 1829.
20. The controversy was not resolved by the 1834
compact which, among other things, provided in Article II
that New York should “retain its present jurisdiction,’’
whatever that may have been, if any, over the two parcels.
21. There are presently proposals under considera-
tion for the development of the two parcels warranting
that a determination be made fixing and declaring the
rights of the State of New York, if any, in, to and over the
two parcels.
6a
WHEREFORE, plaintiffs seek a judgment declaring
that pursuant to the compact of 1834 or independent there-
of the defendant State of New York does not possess jur-
isdiction or sovereignty over Ellis Island and Liberty Is-
land and the accretions thereto and that sovereignty and
jurisdiction are within the defendant State of New Jersey
and enjoining the State of New York and its political sub-
divisions from collecting and levying taxes on Ellis Island
and Liberty Island or exercising police power.
SECOND COUNT
1. Plaintiff adopt the paragraphs set forth in the
First Count.
2. The lands under the sovereignty of the defendant
State of New Jersey have at all times, pursuant to the
laws of New Jersey, been held in trust by the sovereign
for the benefit of the people of the State of New Jersy, and
plaintiffs are among the direct beneficiaries of this trust.
3. The compact of 1834 entered into by the defen-
dants, to the extent that it can be interpreted and con-
strued as giving the defendant State of New York jurisdic-
tion or sovereignty over Ellis Island and Liberty Island
and the accretions thereto, is void and ultra vires the pow-
ers of the signatories.
WHEREFORE, plaintiffs seek judgment declaring in-
valid the purported grant of jurisdiction or sovereignty to
the defendant State of New York by the compact of 1834
and .that sovereignty and jurisdiction are within the de-
fendant State of New Jersey and enjoining the defendant
State of New York and its political subdivisions from col-
lecting and levying taxes on Ellis Island and Liberty Is-
land or exercising police power.
THIRD COUNT
1. Plaintiffs adopt the paragraphs set forth in the
first and second counts.
2. The landfill and accretions to Ellis Island, consist-
ing of approximately 24.5 acres, fall within the territorial
jurisdiction and the sovereignty of the defendant State of
New Jersey under the terms of the compact of 1834.
WHEREFORE, the plaintiffs seek a judgment declar-
ing that the accretions and fill to Ellis Island are within
the exclusive jurisdiction and sovereignty of the defendant
State of New Jersey and enjoining the defendant State of
New York and its political subdivisions from collecting and
levying taxes on that portion of Ellis Island or exercising
police power.
FOURTH COUNT
1. Plaintiffs adopt the paragraphs set forth in the
first, second and third counts.
2. On November 8, 1984 plaintiff Nidia Davila Colon
purchased the following items on Liberty Island, a replica
of the Statute of Liberty, a banner and a souvenir plate.
3. Incident to the purchase of said item, plaintiff
was required to pay $1.35 sales tax to the State of New
York and its political subdivisions pursuant to the asserted
sovereignty and jurisdiction over Liberty Island by the
defendant State of New York.
4. The collection and levy of these taxes by the de-
fendant State of New York and its political subdivisions
was ultra vires its sovereign and jurisdictional power.
8a
). Plaintiff was injured in that she was compelled to
pay taxes that were due to the defendant State of New
Jersey to the defendant State of New York and its political
subdivisions. The amount paid by plaintiff to the defen-
dant State of New York and its political subdivisions was
greater than that which she would have been required to
pay to the defendant State of New Jersey.
WHEREFORE, plaintiff seeks judgment declaring
that the defendant State of New York does not possess
jurisdiction or sovereignty over Ellis Island and Liberty
Island and the accretions thereto and enjoining the defen-
dant State of New York and its political subdivisions from
collecting and levying taxes on Ellis Island and Liberty
Island.
FIFTH COUNT
1. Plaintiffs adopt the paragraphs set forth in the
first, second, third and fourth counts. :
2. The defendant State of New York has acquired tax
revenues from Ellis Island and Liberty Island and from
persons who live or work on Liberty Island and Ellis
Island that rightfully belong to the defendant State of New
Jersey.
3. Retention of those tax revenues by the State of
New York will result in unjust enrichment of that defen-
dant.
WHEREFORE, plaintiffs-demand judgment imposing
a constructive trust on all tax revenues heretofore and
hereafter collected by the defendant State of New York
that were or are collected on Liberty Island and Ellis
Island and that were or are collected from persons who
9a
live or work on Liberty Island and Ellis Island and a re-
straint from future collection of such taxes.
SIXTH COUNT
1. Plaintiffs adopt the paragraphs set forth in the
first, second, third, fourth and fifth counts.
2. Plaintiffs Harry Bisharian and Walter Irwin are
members of the United Association of Plumbers, Pipe Fit-
ters and Sprinkler Fitters, Local 274, AFL-CIO, located
in Ridgefield, New Jersey.
3. Two Hundred and Fifty Million Dollars -($250,-
000,000.00) is anticipated to be spent on the renovation of
the Statue of Liberty and Ellis Island. Jobs related to
the restoration of Liberty Island and Ellis Island have
been awarded to New York Unions pursuant to the terri-
torial and jurisdictional claims of the defendant State of
New York.
4. The award of labor contracts to unions located in
the defendant State of New York has resulted in the loss
of job opportunities for plaintiffs Harry Bisharian and
Walter Irwin.
=
5. Future construction and restoration of Liberty
Island and Ellis Island will require the employment of
members of labor unions, and the decision of which local
union will be employed will be based on the sovereignty
and jurisdiction of defendants over Ellis Island and Lib-
erty Island.
WHEREFORE, plaintiffs demand judgment declaring
that the defendant State of New York does not possess
jurisdiction or sovereignty over Ellis Island and Liberty
2 |
10a
Island and the accretions thereto and that sovereignty
and jurisdiction are held by the defendant State of New
Jersey. :
MARGULIES, MARGULIES & WIND
A Professional Corporation .
/s/ Seymour Margulies
By: Seymour Margulies
Attorney for plaintiffs
MAURICE C. BRIGADIER, ESQ.
/s/ Maurice C. Brigadier
By: Maurice C. Brigadier
Of counsel
On the pleading:
Clifford A. Herrington
DATED:
CERTIFICATION PURSUANT TO RULE 4:5-1
It is hereby certified that this matter is not the sub-
ject of any other action pending in any Court or of a pend-
ing arbitration proceeding and no such other action or ar-
bitration is presently contemplated. Plaintiffs are un-
aware of any other party who should be joined in the
action.
I certify that the foregoing statc..ents made by me are
true. I am aware that if any of the foregoing statements
made by me are willfully false, I am subject to punish-
ment.
/s/ Seymour Margulies
Dated ;
CAH/sr
11/09/84
elis islecom
abel: octob84
lla
FRANK J. GUARINI, GERALD
McCANN, DR. IRWIN
SILVERMAN, ROBERT J.
DEL TUFO, DR. LENA
EDWARDS, JOHN M. STILES,
REV. RAYMOND J. KUPKE,
NIDIA DAVILA COLON,
DR. SANG JIN KIM,
HARRY BASHARIAN and
WALTER IRWIN,
New Jersey
Superior Court of
Chancery Division
)
)
)
)
)
)
)
)
)
)
)
Plaintiffs, ) Hudson County
) Docket No.
v. )
) ANSWER
THE STATE OF NEW YORK, )
)
)
)
)
)
)
)
)
)
Filed 10/18/85
Defendant,
and
THE STATE OF NEW
JERSEY,
A Necessary Defendant.
Defendant, the State of New Jersey, by way of
swer to the complaint, says:
FIRST COUNT
1. On information and belief the State admits
allegations of paragraph 1 of the First Count of
Complaint.
2. On information and belief the State admits
allegations of paragraph 2.
3. On information and belief the State admits
allegations of paragraph 3.
an-
the
the
the
the
is aes |
12a
4. On information and belief the State admits the
allegations of paragraph 4. ;
5. On information and belief the State admits the
allegations of paragraph 5.
6. On information and belief the State admits the
allegations of paragraph 6.
7. On information and belief the State admits the
allegations of paragraph 7.
See)
8. On information and belief the State admits the
allegations of paragraph 8.
9. On information and belief the State admits the
allegations of paragraph 9.
10. On information and belief the State admits the
allegations of paragraph 10.
11. On information and belief the State admits the
allegations of paragraph 11.
12. On information and belief the State admits the
allegations of paragraph 12.
13. On information and belief the State admits the
allegations of paragraph 13.
14. The State joins in the allegations contained in
paragraph 14, except it denies information and knowl-
edge that the State of New York has wrongfully exer-
cised police powers over the islands and the persons who
live on, work on, or visit the islands.
15. The State neither admits nor denies the allega-
tions of paragraph 15, but relies upon the terms of the
1834 compact.
13a
16. The State joins in the allegations contained in
paragraph 16 of the First Count of the Complaint.
17. The State joins in the allegations contained in
paragraph 17 of the First Count of the Complaint.
18. The State admits the allegations contained in
paragraph 18.
19. The State admits that a bill filed against the
State of New York in the United States Supreme Court
in 1829 was dismissed and that the issues raised by that
bill were not resolved by the Supreme Court as stated
in the allegations of paragraph 19.
20. The State asserts that the 1834 compact did
resolve and settle the respective rights of New York and
New Jersey to the islands in question and denies the al-
legations of paragraph 20.
21. The State admits the allegations of paragraph
21 of the First Count of the Complaint.
SECOND COUNT
1. The State repeats its responses to the First Count.
2. The State admits the allegations of paragraph 2
of the Second Count of the Complaint.
3. The State neither admits nor denies plaintiffs’
interpretation of the 1834 compact, but denies that the
compact is void and ultra vires of the powers of the sig-
natories as stated in the allegations of paragraph 3.
THIRD COUNT
1. The State repeats its response to the First and
Second Counts as if set forth at length herein.
l4a
2. The State admits the allegations of paragraph 2
of the Third Count of the Complaint.
FOURTH COUNT
1. The State repeats its responses to the First, See-
ond and Third Counts.
2. The State is without knowledge or information
sufficient to form a belief as to the truth of the allega-
tions of paragraph 2.
3. The State is without knowledge or information
sufficient to form a belief as to the truth of the allega-
tions of paragraph 3.
4. While having no knowledge as to the collection
of the specific taxes as alleged in paragraph 4, the State
adopts the position that the collection and levy of taxes
by defendant New York and its political subdivisions is
ultra vires its sovereign and jurisdictional powers.
5. The State lacks knowledge or information suf-
ficient to form an opinion as to the allegations of para-
graph 5 of the Fourth Count of the Complaint.
FIFTH COUNT
l. The State repeats its responses to the First, Sec-
and, Third and Fourth Counts.
2. The State adopts the allegations of paragraph 2
of the Fifth Count of the Complaint.
3. The State adopts the allegations of paragraph 3
of the Fifth Count of the Complaint.
Ll5a
SIXTH COUNT
1. The State repeats its responses to the First, Sec-
ond, Third, Fourth and Fifth Counts.
2. The State is without knowledge or information
sufficient to form an opinion as to the allegations of
paragraph 2 of the Sixth Count.
3. The State admits that renovations and altera-
tions to the Statue of Liberty are underway and that de-
velopments on the two islands are being considered, but
lacks knowledge or information sufficient to form a® opin-
ion as to the remaining allegations of paragraph 3.
4. The State lacks knowledge or information suf-
ficient to form an opinion as to the allegations of para-
graph 4 of the Sixth Count of the Complaint.
-
5. The State lacks knowledge or information suf-
ficient to form an opinion as to the allegations of para-
graph 5 of the Sixth Count of the Complaint.
FIRST DEFENSE
The complaint raises a boundary dispute and a dis-
pute as to the respective sovereignty of defendants the
State of New York and the State of New Jersey and
jurisdiction properly lies in the United States Supreme
Court.
SECOND DEFENSE
The Complaint fails to state a cause of action upon
which relief may be granted.
l6a
THIRD DEFENSE
This action is barred by the Eleventh Amendment to
the United States Constitution.
FOURTH DEFENSE
Plaintiffs lack standing to raise the issues specified
in their complaint.
WHEREFORE defendant, the Stat: of New Jersey,
demands judgment dismissing the complaint, together with
costs of suit and such other relief as the Court deems just
and proper.
IRWIN I. KIMMELMAN
Attorney General of New Jersey
By: /s/ Dorothy Donnelly
Dorothy Donnelly
Deputy Attorney General
Division of Law
Richard J. Hughes Justice
Complex
CN 112
Trenton, New Jersey 08625
(609) 292-8572
DATED:
oe Coreen ee. a ae eee Oar
l7a
CLEMENTE, STRENK & KIERNAN
13 Pine Street
P. O. Box 1127R
Morristown, New Jersey 07960
(201) 898-9191
ROBERT ABRAMS, ESQ.
Attorney General of the
State of New York
JUDITH T. KRAMER, ESQ.
Assistant Attorney General
Two World Trade Center
New York, New York 10047
(212) 488-5745
Attorneys for Defendant
State of New York
FRANK J. GUARINI, )
Member of the House of ) SUPERIOR COURT
Representatives, et al., ) OF NEW JERSEY
) CHANCERY
Plaintiffs, ) DIVISION:
) HUDSON COUNTY
vs, ) DOCKET NO.
) C-4776-84
THE STATE OF NEW )
YORK and THE STATE ) ANSWER
OF NEW JERSEY, )
) Filed 10/16/85
Defendants. )
Defendant, State of New Vork, by its attorneys, Rob-
ert Abrams, Attorney General of the State of New York,
and Clemente, Strenk & Kiernan, in answer to the Com-
plaint herein alleges as follows:
AS TO THE FIRST COUNT
1. It is without knowledge or information sufficient
to form a belief as to the truth of the allegations con-
tained in this Paragraph.
18a
2. It is without knowledge or information sufficient
to form a belief as to the truth of the allegations con-
tained in this Paragraph.
3. It is without knowledge or information sufficient
to form a belief as to the truth of the allegations con-
tained in this Paragraph.
4. It is without knowledge or information sufficient
to form a belief as to the truth of the allegations con-
tained in this Paragraph.
5. It is without knowledge or information sufficient
to form a belief as to the truth of the allegations con-
tained in this Paragraph.
6. It is without knowledge or information sufficient
to form a belief as to the truth of the allegations con-
tained in this Paragraph.
7. It is without knowledge or information sufficient
to form a belief as to the truth of the allegations con-
tained in this Paragraph.
8. It is without knowledge or information sufficient
to form a belief as to the truth of the allegations con-
tained in this Paragraph.
9. It is without knowledge or information sufficient
to form a belief as to the truth of the allegations con-
tained in this Paragraph.
10. Denied.
11. Denied.
12. It denies each and every allegation contained
in this paragraph and respectfully refers the Court to
9 cette ein mn ennanent
2 ahd eae oa al
19a
Twenty-third Congress, Act of June 28, 1834 (4 U.S.
Stat. 708, Ch. 126).
13. Admitted.
14. Denied.
15. Denied.
16. Denied.
17. Denied.
18. Denied.
19. Denied.
20. Denied.
21. It is without knowledge or information sufficient
to form a belief as to the truth of the allegations con-
tained in this Paragraph.
WHEREFORE, defendant State of New York de-
mands judgment dismissing the Complaint against it with
costs and fees.
AS TO THE SECOND COUNT
1. It repeats and realleges each and every answer
to the allegations of the previous Count as if set forth
at length herein.
2. It is without knowledge or information sufficient
to form a belief as to the truth of the allegations con-
tained in this Paragraph.
3. Denied.
WHEREFORE, defendant State of New York de-
mands judgment dismissing the Complaint against it with
costs and fees.
20a
AS TO THE THIRD COUNT
1. It repeats and realleges each and every answer
to the allegations of the previous Counts as if set forth
at length herein.
2. Denied.
WHEREFORE, defendant State of New York de-
mands judgment dismissing the Complaint against it with
costs and fees. |
AS TO THE FOURTH COUNT
1. It repeats and realleges each and every answer
to the allegations of the previous Counts as if set forth
at length herein.
2. It is without knowledge or information sufficient
to form a belief as to the truth of the allegations con-
tained in this Paragraph.
3. it is without knowledge or information sufficient
to form a belief as to the truth of the allegations con-
tained in this Paragraph.
4. Denied.
5. Except to state that it is without knowledge or
information sufficient to form a belief as to the truth
of the allegations that plaintiff Nidia Davila Colon paid
any taxes at all to the State of New York and that the
State of New Jersey would have required her to pay an
amount of taxes that was less than she allegedly paid
to the State of New York, it denies each and every re-
maining allegation contained in this Paragraph.
|
2la
WHEREFORE, defendant State of New York de-
mands judgment dismissing the Complaint against it with
costs and fees.
AS TO THE FIFTH COUNT
1. It repeats and realleges each and every answer
to the allegations of the previous Counts as if set forth
at length herein.
2. Denied.
3. Denied.
WHEREFORE, defendant State of New York de-
mands judgment dismissing the Complaint against it with
costs and fees.
AS TO THE SIXTH COUNT
1. It repeats and realleges each and every answer
to the allegations of the previous Counts as if set forth
at length herein.
2. It is without knowledge or information sufficient
to form a belief as to the truth of the allegations con-
tained in this Paragraph.
3. Except to deny any implication that the defen-
dant, State of New York, has awarded any contract to
‘‘New York Unions,’’ it is without knowledge or informa-
tion sufficient to form a belief as to the truth of the re-
maining allegations in this Paragraph.
4. Denied.
5. Denied.
22a
WHEREFORE, defendant State of New York de-
mands judgment dismissing the Complaint against it with
costs and fees.
FIRST DEFENSE
The Complaint fails to state a claim upon which: re-
lief can be granted.
SECOND DEFENSE
Service of process is insufficient.
THIRD DEFENSE
This Court lacks personal jurisdiction over the de-
fendant, State of New York.
FOURTH DEFENSE
This Court lacks subject matter jurisdiction over this
action.
FIFTH DEFENSE
Plaintiffs lack proper standing to sue.
SIXTH DEFENSE
The Complaint fails to set forth a ripe case or con-
troversy.
SEVENTH DEFENSE
This action is barred by the statutes of limitations.
EIGHTH DEFENSE
This action is barred by the doctrine of laches.
23a
NINTH DEFENSE
This action is barred by the doctrine of sovereign
immunity.
TENTH DEFENSE
This action is barred by the doctrine of ‘‘full, faith
and credit.’’
ELEVENTH DEFENSE
This action is barred by the doctrine of ‘‘comity.”’
TWELFTH DEFENSE
This action is barred by collateral estoppel.
THIRTEENTH DEFENSE
This action is barred by the doctrine of prescription
and acquiescence.
WHEREFORE, defendant State of New York de-
mands judgment dismissing the Complaint against it with
costs and fees.
CLEMENTE, STRENK & KIERNAN
Attorneys for Defendant
State of New York
By: /s/ Jeffrey P. Clemente
Jeffrey P. Clemente
ROBERT ABRAMS
Attorney General of the
State of New York
By: /s/ Judith T. Kramer
Judith T. Kramer
Assistant Attorney General
DATED: October 15, 1985
24a
R.4:5-1 CERTIFICATION
The undersigned does hereby certify that the matter
in controversy is not the subject of any other action pend-
ing or presently contemplated in any other court or of a
pending or presently contemplated arbitration proceeding.
/s/ Jeffrey P. Clemente
Jeffrey P. Clemente
CERTIFICATION
The undersigned does hereby certify that the within
pleading has been duly filed and served within the time
prescribed by the New Jersey Rules of Court.
/s/ Jeffrey P. Clemente
Jeffrey P. Clemente
DATED: October 15, 1985
BK14:T
i we La Te ”
Le Te ee ee
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.