Motion — New Jersey v. New York

No. 120, Original

IN THE

Supreme Court, y S.

FILE D

AUG 21 1999

CLERK

SUPREME CourT OF THE UNITED STATES

OCTOBER TERM, 1997

STATE OF NEW JERSEY,

Plainsiff.

v.

STATE OF NEW YORK,

Defendant.

ON EXCEPTIONS TO THE SPECIAL MASTER'S REPORT

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RESPONSE OF PROPOSED HISTORIAN

AMICI TO OBJECTIONS OF THE STATE OF

NEW JERSEY TO MOTION FOR LEAVE TO

FILE BRIEF AS AMICI CURIAE

DENNIS C. O'DONNELL

Counsel of Record

SCHULTE ROTH & ZABEL LLP

900 Third Avenue

New York, New York 10022

(212) 756-2000

Attorneys for Amici Curiae New-

York Historical Society, Society

for New York City History,

Arthur M. Schlesinger, Jr.,

Richard C. Wade, and Kenneth

T. Jackson

'

TABLE OF CONTENTS

Page

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TERE COURT'S BROLE EN CURDGUNAL CAGES incense ecneenevnscocereseneceosesevevesesssesesesseneeune 2

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OBJECTIVE OF HISTORIAN BRIEF

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TABLE OF AUTHORITIES

CASES

Brown-Forman Distillers Corp. v. New York State Liquor Auth.,

SUS SR, one eee

Colorado v. New Mexico,

ORCS RI eee

Delaware v. New York,

SUPE CI iii be eee ee

Elgin, J. & E. Ry. Co. v. Burley,

SET Sele Gk CE GED ccnemsessnsnestocmmnmnstnninnsternsemminceniainmasepnianntons

Freytag v. Commissioner of Internal Revenue,

FOG CE, GEG CHR ED ccnnsevesscresecserenssincansasianaomenemncssecnennnsanssinsusnsinten

Idaho v. Oregon,

ONGTS OR o icici ii ee ea

Mapp v. Ohio,

Se Die GED CRBS ED ccxnscrorecssscssencasencsrsevemanecsnetesnsnssenetntansenevinestionen

Maryland v. Craig,

GF CE, FIG GERD ceccesncesserneesinsnnssanacpnniitatsionmmncctebingiinsial

Maryland v. Louisiana,

ee ee ee

Mississippi v. Arkansas,

GES TD. TE GRD ccormerensenasinsensenasenssaniennaniiatenaioteenpanpindintinun

O'Lone v. Estate of Shabazz,

GES TEE, FE GOD vcenecanseveteyinintnrrentineasnasinninsdnalauninininasitiininnaisistin

Pennsylvania v. New York,

GEE CAID, FE CI OD sesctcennpeteveiciminircecescieianennenintetinmnisuibinatin

Teague v. Lane,

GP TA. TR GAGGED crncnertprtesstnsssesetnisiemninitiiaiinaniinsinenieniiinnen

Texas v. New Mexico,

482 U.S. 124 (1987) asusensinpnndanneseesantonneenensebnecuoveeniasinfmniescnoussetes

Turner v. Safley,

GE a PO GRP GED «. cocrssnctontemitnctnienisnaiepsigncemenntinnnniitnniaininiiitin

United States v. Maine,

GIB FP CSG ceerenencisinitinmemnseniennenmarsnnecnnsaneitasteingetintint

United States v. Texas,

339 U.S. 707, modified, 340 U.S. 848 (1950) ......cccccceseceseseresenensvees

ecsseosnesnnsnsessonnsennasouncnsesnintes 4

RULES PAGE(S)

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a ta hinattesiat nceneteinlinincreepiretemeveservevecezevecuncoevessvanaanannensensenvenececevesenecetecenes l

TREATISES AND OTHER MATERIALS PAGE(S)

Robert L. Stern, er ai., Supreme Court Practice (1993) ......c.cssssesssesessenensesnsnvensnsnsesennennenennenneneens 4

No. 120, Original

IN THE

SUPREME CouRT OF THE UNITED STATES ;

STATE OF NEW JERSEY,

Plainuff,

v

STATE OF NEW YORK,

Defendant

RESPONSE OF PROPOSED HISTORIAN AMICI TO OBJECTIONS

OF THE STATE OF NEW JERSEY TO MOTION FOR LEAVE

TO FILE BRIEF AS AMICI CURIAE

The New-York Historical Society, the Society for New York City History,

Professor Arthur M. Schlesinger, Jr., Professor Richard C. Wade, and Professor Kenneth T.

Jackson (collectively, “Proposed Historian Amici") respectfully respond to the Objections of the

State of New Jersey to their Motion for leave to file a brief as amici curiae in support of the

Exceptions of the State of New York in this case.' New Jersey attacks the Historian Amici Brief

because (1) it urges the Court "to take whatever measures it deems necessary to ensure that the

record is complete" before deciding this case and (2) it seeks to put before the Court relevant

facts that were “either overlooked or ignored” by both States and the Special Master Objections

at 2. New Jersey's attempt to have leave denied for filing the Historian Brief on these grounds

; New Jersey's contrary insinuations notwithstanding and as previously certified pursuant to Supreme Court

Rule 37 6, the Historian Brief is the work product solely of the Proposed Amici and their counsel New York

played no part in determining the approach, scope or conclusions of the Brief, and New Jersey's unsupported

allegations to the contrary are unwarranted, unfounded, and untrue.

must fail because New Jersey: (1) understates the role and responsibilities of this Court in original

cases, (2) misconstrues the role of amici curiae in proceedings before this Court, and especially in

original cases, and (3) mischaracterizes the stated intent and actual objective of the proposed

THE COURT'S ROLE IN ORIGINAL CASES

New Jersey's attack on the Historian Brief appears to be chiefly premised on a

myopic view of this Court's role in original cases. New Jersey argues as if the reports filed by the

Special Master in this case on March 31 and May 1, 1997 (collectively, the “Report” or "R.")

were final determinations of an Article III court, now on appeal to this Court solely on the basis

of a definitive (and presumptively closed) appellate record. This is not the case. In original cases,

a Special Master's report is merely a recommended ruling which remains subject to full de novo

review by this Court, which, in turn, retains ultimate responsibility for both findings of fact and

conclusions of law. See United States v. Maine, 475 U.S. 89, 97 (1986); Colorado v. New

Mexico, 467 U.S. 310, 317 (1984), Mississippi v. Arkansas, 415 U.S. 289, 294 (1974), United

States v. Texas, 339 U.S. 707, 715, modified, 340 U.S. 848 (1950).

In this context, the “record” is whatever is ultimately before this Court when—

after briefing, argument, and any independent inquiries—the Court issues its final decision. It is

not, as New Jersey would argue, solely what is put before the Court by the Special Master in an

initial report on the merits. To the contrary, this Court has often supplemented the record created

by a Special Master of its own accord, see Colorado v. New Mexico, 467 U.S. 310, 324 (1984),

Maryland v. Louisiana, 451 U.S. 725, 759-60 (1981), or remanded a case for additional fact-

finding on issues overlooked by a Special Master. See Delaware v. New York, 507 U.S. 490, 510

(1993), Texas v. New Mexico, 482 U.S. 124, 135 (1987), Colorado v. New Mexico, 467 US.

310, 314 (1984); Idaho v. Oregon, 444 U.S. 380, 393 (1980), Pennsylvania v. New York, 407

U.S. 206, 215 (1972).

The Court has gone to such lengths because, as even the Special Master

acknowledges, "in original jurisdiction cases, full and liberal factual development is important

because of the lofty historical, territorial, and financial implications of these cases to the states

involved.” (R. at 24 citing United States v. Texas, 339 U.S. 707, 715 (1950).). There can be

little doubt that the future of Ellis Island raises such “lofty” implications, so it is reasonable to

assume, as have the Historian Amici, that the Court will wish to exhaust all viable avenues of

inquiry before deciding this case. (R. at 33 ("Few controversies ever to come before the Supreme

Court have a stronger hold on our history and traditions.")

It is in this context that the Historian Amici urge the Court “to take whatever

measures it deems necessary to ensure that the record is complete" before deciding this case

And, it is for this reason that the Historian Brief undertakes to present the Court with relevant

factual and legal considerations that are not to be found in the Report or the record of

ROLE OF AMICI CURIAE

In so doing, the Proposed Historian Amici furnish to this Court precisely the type

of “help” that is contemplated by Supreme Court Rule 37, which provides that an amicus brief

should “bring to the attention of the Court relevant matter not already brought to its attention by

the parties." Supreme Court Rule 37.1. Under this standard, the scope of an amicus brief is not

limited to the facts relied upon or the arguments made by the party in whose support the brief is

filed. To the contrary, the Court has many times “rel[ied] on factual information, cases or

analytical approaches provided only by an amicus." Robert L. Stern, et al, Supreme Court

Practice 564 (1993), see, e.g., O'Lone v. Estate of Shabazz, 482 U.S. 342, 345 (1987); Turner v.

Safley, 482 U.S. 78, 93, 95 (1987); Maryland v. Craig, 497 U.S. 836, 855-58 (1990); Brown-

Forman Distillers Corp. v. New York State Liquor Auth., 476 U.S. $73, 589 n.3 (1986) (Stevens,

J., dissenting); Elgin, J. & E. Ry. Co. v. Burley, 327 U.S. 661, 669-75 (1946) (Frankfurter, J.,

dissenting). On rare occasions, this Court has even decided cases on a ground “raised only in an

amicus brief" Teague v. Lane, 489 U.S. 288, 300 (1989); Freytag v. Commissioner of Internal

Revenue, 501 U.S. 868 (1991); Mapp v. Ohio, 367 U.S. 643, 646 n.3 (1961).

The Historian Brief fully satisfies the Rule 37 standard| As New Jersey several

times points out, neither New Jersey nor New York had previously brought to the Court's

attention the existence of (what New Jersey now concedes to be) the plainly relevant factual

information proffered in the Historian Brief. Regardless of how this came to be the case, such

information, together with the potential sources for additional information pointed to by the

Amici, need to be before this Court in order for it to reach an informed resolution of this dispute.

The Historian Brief, if leave is granted for its filing, will ensure that it is.

OBJECTIVE OF HISTORIAN BRIEF

While all of the foregoing suggests that an amicus brief in an original case could

play a significant role in the Court's decisionmaking process, the Historian Brief is hardly this

ambitious. Its simple objective is twofold—{1) to present the Court with facts that support

conclusions as to several significant issues that differ from those in the Report and (2) to point out

to the Court that various, relatively obvious avenues of inquiry exist that have not yet been

pursued New Jersey's contrary contentions notwithstanding, the Historian Brief does not seek to

undermine the adversarial process by (a) asking this Court to rely on evidence that New Jersey

has not had to opportunity to controvert or (b) seeking a remedy that neither State has requested.

The limited efforts of the Amici in the short time between filing of the Report and

the filing of its proposed Brief uncovered several, previously-unexplored sources of relevant

information. Much of this information is derived from published sources (the more than 25 books

and articles cited in the Briefs Table of Authorities) of which this Court can plainly take judicial

notice. Also located, however, was a variety of contemporaneous letters and memoranda that

shed new light on the activities, motives and mindsets of the Compact's drafters. Proposed

Historian Amici believe that these documents (most of which have been cited in published

sources) should be before the Court, but, out of an abundance of caution, Proposed Amici

proffered these documents with a clearly-stated caveat: either the Court could take judicial notice

of these “historical” documents, as otherwise incontrovertible, and thus consider them for the

propositions they support, or "if the Court [was] not so inclined, it [could], at the very least, look

to such documents as evidence that avenues of inquiry exist that have not yet been pursued."

Brief at 7 n5. New Jersey's mischaracterization of Proposed Amici's stated intent aside, the

Court should look to any "new evidence" in the Historian Brief for what it is—a good faith

proffer of information that any reasonable person would have expected to have been dealt with in

the Report.

Finally, Proposed Amici do not in any way purport to seek a remedy that neither

State has requested. To the contrary, Proposed Amici seek the same remedy sought by the State

of New York—the continued exercise by New York of sovereignty over Ellis Island. New York

and the Historian Amici simply propose different routes for the Court to reach this outcome

New York points the Court to the plain meaning of Article II and record evidence of prescription

and acquiescence, while the Historian Amici focus on the historical context of Article III The

chief difference between the two approaches is that for purposes of New York's arguments, the

record is inarguably complete, whereas for purposes of the Historican Amici's arguments, it may

not be. However—New Jersey's contentions to the contrary notwithstanding—whether or not the

record is complete is for this Court, and not New Jersey, New York or the Historian Amici, to

decide. Hence, Proposed Amici properly urge the Court to take whatever measures are necessary

to satisfy itself that all valid avenues of inquiry have been exhausted before finally resolving the

factually complex and politically sensitive issues raised by this case.

WHEREFORE, Proposed Historian Amici respectfully request that the Objections

of the State of New Jersey be overruled and leave be granted to file the Historian Brief

Dated: New York, New York

August 20, 1997

DENNIS C. O'DONNELL

lof

TE ROTH &

900 Third Avenue

New York, New York 10022

(212) 756-2000

Attorneys for Amici Curiae New-York

Historical Society, Society for New York

City History, Arthur M. Schlesinger, Jr,

Richard C. Wade, and Kenneth T. Jackson

a a

CERTIFICATE OF SERVICE

I hereby certify that the annexed Response of Amici Curiae New-York

Historical Society, Society for New York City History, Arthur M. Schlesinger, Jr.,

Richard C. Wade, and Kenneth T. Jackson to Objections of The State of New Jersey to

Motion For Leave to File Brief as Amici Curiae was served via U.S. Mail on August 20,

1997, upon the following counsel of record:

Joseph L. Yannotti, Esq.

Assistant Attorney General

State of New Jersey

Richard J. Hughes Justice Complex

25 Market Street CN112

Trenton, New Jersey 08625-0112

Kristin M. Helmers, Esq.

Assistant Chief, Appeals Division

New York City Law Department

100 Church Street, Room 6F9

New York, New York 10007

Barbara G. Billett, Esq.

Solicitor General

The Capitol, Room 220

Albany, New York 12224

Carol Zylbert, Esq.

Assistant Corporation Counsel

City of Jersey City

Law Department

280 Grove Street

Jersey City, New Jersey 07302

PIS

Stephen P. Davidson