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.

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