Amicus Curiae Brief — Pierce County v. Guillen

No. 01-1229

IN THE

Supreme Court of the United States

PIERCE COUNTY,

Petitioner,

V.

IGNACIO GUILLEN, as Legal Guardian for JENNIFER

GUILLEN and ALMA GUILLEN, minors; and MARIANO

GUILLEN, as Legal Guardian for PAULINA GUILLEN and

FATIMA GUILLEN,

Respondents.

On Writ Of Certiorari to Supreme Court

of the State of Washington

AMICUS CURIAE BRIEF OF THE

ASSOCIATION OF TRIAL LAWYERS OF AMERICA

IN SUPPORT OF THE RESPONDENTS

MARY E. ALEXANDER JEFFREY ROBERT WHITE*

1050 31st St., N.W. 1050 31st. St., N.W.

Washington, DC 20007. Washington, DC 20007

(202) 965-3500 (202) 965-3500

President, * Counsel of Record

The Association of Attorney for Amicus Curiae

Trial Lawyers of America

TABLE OF CONTENTS

Ee Ge A TRC IGRs 0 BiB iD cevecsnssessccsccsseneressessesssesneveneess iii

IDENTITY AND INTEREST OF

FED CI cecnrertesesemssntenessneensseemisnesmenenennn 1

SUMMARY OF THE ARGUMENT.............scsccssssssssseeseees 2

TRE GE FOIEIEIN © ccsesecsssesssassrsalesnsesensnnsesesstsqnsesnsssseesesscessessesnseeste 4

I. THE SUPREMACY CLAUSE DOES NOT

AUTHORIZE CONGRESS TO PRESCRIBE THE

SUBSTANTIVE OR PROCEDURAL RULES TO

BE APPLIED BY STATE COURTS IN ACTIONS

BASED SOLELY ON STATE LAW. ....ccccccsccccccccsccsssceseees 4

A. It is Not the Role of Congress to Regulate

or Supervise State Tort Law. ...........scsscssssseees 6

B. The Supremacy Ciause Does Not Support

a Congressional Demand that State

Courts Exclude Certain Evidence in State

Law Damage Action ............ssssssssssssssessesseees 9

C. The Doctrine of Federal Preemption Does

Not Apply to Congressional Regulation

of State Courts, Rather than Private

CiBSREBINCE, ccnesesssssssncssssssevenssssovevnnssscsessuesecnesseeesees 11

Il. 23 U.S.C. § 409 Is NoT A VALID

EXERCISE OF CONGRESSIONAL

Se cocccntancsintctitaneteiuninneninisticinn 12

A. Sec. 409 Is Not A Condition On Receipt

re 12

B. The Threat of Loss of All Highway Funds

For Noncompliance With § 409 Is

Impermissibly Coercive. ........csesesssseesseeees 15

III. SECTION 409 Is Not A VALID EXERCISE OF

IV.

CONGRESSIONAL POWER UNDER’ THE

8g FS Eee 16

A. Section 409 Does Not Regulate Interstate

Commerce or the Use of Channels of

Commerce, But Regulates State Courts. ..... 16

B. Section 409 Does Not Regulate an

Economic or Commercial Activity That

Substantially Affects Interstate

ESE eT

SECTION 409 Is NOT AUTHORIZED BY THE

NECESSARY AND PROPER CLAUSE, ........ccccceseceeeeeees

A. The Statute is not a “Necessary” Exercise

oe

B. The Statute is Not a “Proper” Exercise of

lial aelineialin ta leiienearnateeeteennteeeereeen

Sec. 409 VIOLATES STATE SOVEREIGNTY

UNDER THE TENTH AMENDMENT. ...ccccssssssseesceseseees

A. This Court’s Decision in Garcia Does Not

Preclude This Court From Enforcing the

Tenth Amendment Protections of State

Authority Over State Law........sssessneenerees

B. The Tenth Amendment Protects the

Sovereign Right of States to Declare and

Apply State Law. .......cesserseereereens eceee

C. The Tenth Amendment Protects the Right

of the People To Organize Their State

Governments and Provide for the

Separation of Powers As They See Fit........ 28

CONCLUSION

18

18

21

woe 29

TABLE OF AUTHORITIES

CASES

Alden v. Maine, 527 U.S. 706 (1999)......19, 20, 21, 22, 25,

Association for Women in Science v. Califano, 566 F.2d

In, (IPE i ctentunnnnnesscsesinsnnmeamessssemecemensccan 7

Atlantic Coast Line R.R. v. Brotherhood of Locomotive

ae 25

Barnes v. Gorman, 122 S. Ct. 2097 (2002).........cccccceeeeeeeee 12

Bernardt v. Polygraphic Co., 350 U.S. 198 (1956)............ 26

Cipollone v. Liggett Group, Inc., 505 U.S. 504 (1992). ....11

City of Fargo v. Ruether, 490 N.W.2d 481 (N.D. 1992)..29

Coniker v. New York, 181 Misc. 2d 801, 695 N.Y.S.2d

SE One RT Ss

Coyle v. Smith, 221 U.S. 559 (1911) ........csccscssssseeseeeseeeees 24

CSX Transp., Inc. v. Easterwood, 507 U.S. 658 (1993)....18

Davis v. Monroe County Bd. of Ed., 526 U.S. 629 (1999) 14

Dice v. Akron, Canton & Youngstown R.R., 342 U.S.

EE 10

Duncan v. Union Pacific. R. Co., 790 P.2d 595 (Utah

ils BEIIIS BPTI cxncacecensrecnstnsescossensensncencssseensscsseneescosnseett 8

Edmonds v. State, 39 S.E.2d 24 (Ga. 1949) ........ccccccceeceeee 27

Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938)......9, 26

Ex Parte Gounis, 263 S.W. 988 (Mo. 1924) ........cccccccceeee 27

F.E.R.C. v. Mississippi, 456 U.S. 742 (1982) ...9, 10, 26, 28

Fay v. Noida, 372 U.S. 391 (1963) ......cccsssssssssssseeseessseesenees 26

Federal Maritime Comm'n v. South Carolina State Ports

— eae 5

iv

Felder v. Casey, 487 U.S. 131 (1988). .........cecceeeeeneneneeees 26

Garcia v. San Antonio Metropolitan Transit Authority,

ee 23, 24

Gregory v. Ashcroft, 501 U.S. 452 (1991)........cccccceseseeereees 5

Griffin v. Breckenridge, 403 U.S. 88 (1971).........-csse+0 26

Hardware Dealers Mutual Fire Ins. Co. v. Glidden Co.,

OES, TS Go ercenccsenssrarmenemesemnmmncennn 26

Hodel v. Virginia Surface Mining & Reclamation Ass'n,

GE EE, BO Ga esrescesncneenenenssennescrmmmenmeeins 11

Howlett v. Rose, 496 U.S. 356 (1990). .....cccssecsessesereeseeeees 10

Johnson v. Fankell, 520 U.S. 911 (1997). .......:cccccccceeseeeees 11

Kitts v. Norfolk & W. Ry. Co., 152 F.R.D. 78 (S.D.

Fie Welly EIDE cssnmensesneenensansencnmnnsnesetanesemnenmenasensncentensties 7

Light v. State, 149 Misc. 2d 75, 560 N.Y.S.2d 962

aos Go, Bei rnc ensnccnnsemenssennensnnncensetnscemmnmsnennnsemneceesl 8

Long v. State, Dep't of Transp. & Dev., 743 So. 2d 743

GB. CR, AGM. BOGE cccessnssscnssnsssssssesessrsenscsessssnssesenesnnseens 7

Lusby v. Union Pac. R.R. Co., 4 F.3d 639 (8 Cir. 1993) .7

MCulloch v. Maryland, 17 U.S. (4 Wheat.) 316

alae alata ali cidade 5,19

Mackie v. Grant Trunk Western R. Co., 544 N.W. 709

GEE. C2, Ramp. BEDE cencesesesssssssscscsnsessesenessensseqneensessssaes 8

Manns v. Commonwealth, 2002 WL 1307441

a> BI cassesencsarsesscssssnsneressnapensscensnscnsstnenemmmmeimtennnensens 29

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) ....... 21

Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304

STITT srsiiietbiiiehatiaddleiealiehadiemdthideteaiaitdacartanietiiaiaacainaciabiiien 26

McDougall v. Schanz, 597 N.W.2d 148 (Mich. 1999) ....29

Vv

Missouri Pacific Ry. Co. v. Humes, 115 U.S. 512 (1885).21

Mondou v. New York, N.H. & H.R.Co.,

I 0b Ce ccenernnensecnsnennnatientereneemenmmnemetnnet 10

New York v. United States, 505 U.S. 144 (1992)..... passim

NLRB v. Jones & Laughlin Steel Corp.,

ee ee 0 i rcnnicntcceremenstnnnntnenimnennereeenmcemnniets 18

Pennhurst State School and Hospital v. Halderman, 451

Beh 0 ee endatetaveninecectemsonmnensememnetenninennsiens 12,14

People v. Easley, 152 Ill. App.3d 839, 505 N.E.2d 11,

105 Ill. Dec. 885 (Ct. App. 1987)........cccccseeseseseeeeseens 29

People v. Hollis, 670 P.2d 441 (Colo. App. 1983)........... 28

Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41 (1987) ........... 16

Printz v. United States, 521 U.S. 898 (1997) ...5, 10, 22, 24

Reno v. Condon, 528 U.S. 141 (2000)................... 23, 24, 25

Robertson v. Union Pacific R.R. Co., 954 F.2d 1433

SPREE TIED cecennnsatticcsctenenstintnicniiatienennmetinmsmsunnteds 7

Sackett v. Santilli, 47 P.3d 948, 146 Wash. 2d 498

SEPEEE: SII crrtnncindnenmaneiassiphntentiiatetiiteiaimtatenantetiicenmamees 29

South Carolina v. Baker, 485 U.S. 505 (1988) ............ 23, 24

South Dakota v. Dole, 483 U.S. 203 (1987). ..........0+. 12,15

State v. Ryan, 103 Wash. 2d 165, 691 P.2d 197 (1984) .29

State v. Wallace, 517 S.E.2d 20 (W. Va. 1999) ........ cc 29

Steward Machine Co. v. Davis, 301 U.S. 548 (1937)........ 15

Sulpho-Saline Bath Co. v Allen, 66 Neb. 295,

ee es a ternntentennentenemennnenemennennnenees 27

Testa v. Katt, 330 U.S. 386 (1947) ..........cccccccccesseseceseeceeeees y

Texas v. White, 74 U.S. (7 Wall.) 700 (1869) ................000+- 5

U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995) ..4

vi

United States v. Lopez, 514 U.S. 549 (1995) ....5, 16, 17, 21

United States v. Morrison, 529 U.S. 598

IIT ceiesiceiaienttetttastnlameesiatintsiaieniiitaiamaniaiitibiaes 16, 17, 18, 25

United States v. Wells, 519 U.S. 482 (1997).............ccc0000 19

West Virginia v. U.S. Dept. of Health and Human

Services, 289 F.3d 281 (4 Cir. 2002) ........:ccccceseeeeeeees 15

STATUTES

ee, BOING, i cecnnenessentnncienerminmnne 30

en NE 14

EE 21

RR ee eee 19

a lactacin 33

ease Ui inisearenneintatiensnntiinidnincninpsnecintaimeiidniniaimiasiiinians 16

ee I icrnicnmnemssnatnemsnsemennannnienueiainns 16

A ee 26

Everett i Ul edie tsicichenniciataniinaniatenininiieenietinindmenimmeasensts 17

Sau UUs Ut TEs 16

Si Uae ital Ut tirachiniceseestiprniensieeailabineintiabiniamenininimeatianiaiitinaataaait 17

ies i Uittcnontenerenenscnnseenneennsnsnemmmanesienenmapanneiaiiasatiie 17

Ee 6 & passim

I cll 35

Bah Gs FF Bae cxvsccnentmesensensnseseseremsssmsennneemnsenestmnsnsnesemnan 35

ee TT 35

Ee 36

Ee 34

Oe ne A italiana 36

vii

OTHER AUTHORITIES

Annot., “Liability Of Governmental Entity Or Public

Officer For Personal Injury Or Damages Arising Out

Of Vehicular Accident Due To Negligent Or

Defective Design Of A Highway,” 45 ALR 3d 875

GE ccnescscssavanscanensansqennsnensenensnvsnstusnsaasnesseseneumensosnenesaee 24

H. Conf. Rep. No. 100-27, 104th Cong. 1st Sess. .......... 9

Hart, Henry M., Jr., The Relations Between State and

Federal Law, 54 Colum. L. Rev. 489 (1954). ............... 12

Weinstein, Jack B. & Margaret M. Berger,

WEINSTEIN’S EVIDENCE (1994).........:cccccccccssscsessseeeeeeees 7

Weinstein, Jack B. & Margaret M. Berger,

WEINSTEIN’S EVIDENCE, (2d ed. 1998). ..........cccccee0ee0 24

Wigmore, John Henry, WIGMORE ON EVIDENCE a

RED GU. Bie cccesccenescsnsececszcenscsensnemesnseene 24

? No. 01-1229

IN THE

Supreme Court of the Anited States

PIERCE COUNTY,

Petitioner,

V.

IGNACIO GUILLEN, as Legal Guardian for JENNIFER

GUILLEN and ALMA GUILLEN, minors; and MARIANO

GUILLEN, as Legal Guardian for PAULINA GUILLEN and

FATIMA GUILLEN,

Respondents.

On Writ Of Certiorari to Supreme Court

of the State of Washington

AMICUS CURIAE BRIEF OF THE

ASSOCIATION OF TRIAL LAWYERS OF AMERICA

IN SUPPORT OF THE RESPONDENTS

IDENTITY AND INTEREST OF AMICUS CURIAE

The Association of Trial Lawyers of America

[“ATLA”] respectfully submits this brief as amicus

curiae. Letters granting consent of the parties to the

filing of this brief have been filed with the Court.!

l Pursuant to Rule 37.6, Amicus discloses that no counsel for

a party authored any part of this brief, nor did any person or entity

other than Amicus Curiae, its members, or its counsel make a

monetary contribution to the preparation or submission of this

brief.

2

ATLA is a voluntary national bar association

whose approximately 50,000 trial lawyer members

primarily represent individual plaintiffs in civil actions.

Many who are wrongfully injured in automobile

accidents seek legal redress in state court civil actions

governed by state law. Fashioning liability rules to best

serve the interests of justice, and procedural rules to

govern such proceedings fairly and _ efficiently,

historically has been the responsibility of the States.

In ATLA’s view, 23 U.S.C. § 409 is a direct

regulation of and unlawful interference in the States’

judicial procedures. The statute far exceeds the

constitutional bounds of Congress’s authority and

violates the principles of federalism that are the

foundation of our form of government.

SUMMARY OF THE ARGUMENT

1. 23 U.S.C. § 409 directs state courts to preclude

discovery and exclude from evidence in state-law

damage actions a variety of documents, underlying

data collected for those documents, and testimony

based on them. The speculation that Congress intended

to foster greater candor by those submitting highway

safety information has no support in the legislative

history. Rather, the statute’s provisions suggest that

Congress intended to make it more difficult for

plaintiffs to pursue actions for death and injury due to

negligent highway design and maintenance.

Congress, however, has no authority to declare

or to supervise state tort law or the procedural rules

governing such state-law actions.

The Supremacy Clause requires state courts to

entertain federal causes of action and enforce the

federal rights of individuals. It does not authorize

3

Congress to override state law with its own substantive

or procedural rules of decision in cases based solely on

state law. Similarly, the doctrine of federal preemption

applies only where those subject to both federal and

state sovereign authorities are faced with conflicting

regulation. It does not permit Congress to regulate the

way state governments regulate their citizens.

2. Section 409 is not a valid exercise of congressional

power under the Spending Clause. Unlike other

provisions in the highway safety statute, § 409 contains

no express language to indicate to the States that

compliance is a condition to receiving federal highway

funds. Moreover, the threatened loss of all federal

highway funding would make such conditional

spending impermissibly coercive.

3. Nor is § 409 a valid exercise of power under the

Commerce Clause. The statute does not regulate

interstate commerce or the use of the channels of

interstate commerce. It does not regulate economic or

commercial activity having a substantial relation to

interstate commerce. Instead, it purports to regulate

state courts in the exercise of their judicial powers. To

allow Congress such authority would create a

completely centralized government.

4. Nor is § 409 supportable under the Necessary and

Proper Clause. Sec. 409, added to the highway safety

statute 17 years after its inception, cannot be deemed

essential to this federally-assisted state program. States

enjoy complete immunity except to the extent they

consent to being sued. For Congress to offer States

some protection against liability is to offer nothing.

Congress could directly punish those who provide false

or misleading information in state applications for

highway funds. However, interference with the judicial

+

functions of state courts cannot be viewed as a proper

means of obtaining accurate safety information.

5. Section 409 violates the Tenth Amendment. Congress

has no authority to declare the substantive or

procedural law applied by state courts in actions not

based on a federal right or cause of action. Where the

Founders deemed it appropriate for Congress to

prescribe rules of evidence for state courts, they did so

explicitly in the Full Faith and Credit Clause. In all

other actions based on state law, this power is reserved

to the States.

In addition, many state constitutions vest the

authority to promulgate procedural rules in the judicial

branch and render conflicting statutory rules invalid.

Sec. 409 purports to empower state legislative or

executive branches, by seeking federal funds, to evade

separation of powers limits imposed by their own

constitutions, violating basic precepts of federalism.

ARGUMENT

I. THE SUPREMACY CLAUSE DOES NOT AUTHORIZE

CONGRESS TO PRESCRIBE THE SUBSTANTIVE OR

PROCEDURAL RULES TO BE APPLIED BY STATE

CourTSs IN ACTIONS BASED SOLELY ON STATE LAW.

We the People have delegated to Congress

broad, but not boundless, powers to govern us. The

Founders did not entrust the liberties of Americans to a

centralized government, however beneficent. The

“genius of their idea” was to “split the atom of

sovereignty’ between national and state authorities,

“each protected from incursion by the other.” U.S. Term

Limits, Inc. v. Thornton, 514 U.S. 779, 838 (1995)

(Kennedy, J., concurring). As the Court has recently

5

observed, “States, upon ratification of the Constitution,

did not consent to become mere appendages of the

Federal Government,” but retained their “inviolable

sovereignty.” Federal Maritime Comm'n v. South Carolina

State Ports Auth., 122 S. Ct. 1864, 1870 (2002). Hence,

ours is “an indestructible union, composed of

indestructible states,” Texas v. White, 74 U.S. (7 Wall.)

700, 725 (1869).

Dual sovereignty is a defining feature of our

Nation’s constitutional blueprint, and its preservation is

essential, “to ensure protection of our fundamental

liberties.” United States v. Lopez, 514 U.S. 549, 552 (1995),

quoting Gregory v. Ashcroft, 501 U.S. 452, 458 (1991)

(internal quotation marks omitted). Chief Justice John

Marshall described this Court’s responsibility in no

uncertain terms:

Should Congress, in the execution of its powers,

adopt measures which are prohibited by the

Constitution; or should Congress, under the pretext

of executing its powers, pass laws for the

accomplishment of objects not intrusted to the

government; it would become the painful duty of

this tribunal, should a case requiring such a

decision come before it, to say that such an act was

not the law of the land.

M’Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 423

(1819).

Accordingly, this Court has been vigilant in

limiting congressional action to its proper

constitutional scope. In New York v. United States, 505

US. 144, 161 (1992), the Court held that Congress may

not “commandeer” state legislatures to serve its own

regulatory ends. Similarly, the Court in Printz v. United

States, 521 U.S. 898 (1997), precluded Congress from

commandeering state executive branch agencies. This

6

case presents the opportunity for the Court to complete

the trilogy by delimiting the extent to which Congress

can commandeer the judicial branch of state

governments to further its own policy views.

A. It is Not the Role of Congress to Regulate or

Supervise State Tort Law.

At issue in this case is 23 U.S.C § 409, which

provides:

Notwithstanding any other provision of law,

reports, surveys, schedules, lists, or data compiled

or collected for the purpose of identifying,

evaluating, or planning the safety enhancement of

potential accident sites, hazardous roadway

conditions, or railway-highway crossings, pursuant

to sections 130, 144, and 152 of this title or for the

purpose of developing any highway safety

construction improvement project which may be

implemented utilizing Federal-aid highway funds

shall not be subject to discovery or admitted into

evidence in a Federal or State court proceeding or

considered for other purposes in any action for

damages arising from any occurrence at a location

mentioned or addressed in such reports, surveys,

schedules, lists, or data.

Sec. 409 is not a statute of general applicability. It

is a direct command to state courts ruling on discovery

and admissibility of evidence in state-law damage

actions. The statute covers a wide variety of materials

beyond those required by the federal government to be

submitted in a State’s application for federal highway

funds.? Sec. 409 is frequently invoked, as in this case, to

2 This case does not involve the discovery or admissibility of

documents within the control of federal agencies, which may be

governed by various statutes mandating nondisclosure, see 2 Jack

7

bar the use of accident reports prepared by state or

local law enforcement personnel, as well as traffic

counts, surveys and diagrams of the accident location.

It has been applied to citizen complaints of hazards to

highway agencies and to letters from public officials

calling attention to dangerous conditions. See, e.g., Long

v. State, Dep’t of Transp. & Dev., 743 So. 2d 743, 747 (La.

Ct. App. 1999).

The statutory bar is not directed at confidential

communications, but encompasses publicly available

documents as well as the underlying data collected to

prepare such documents. It has been applied to exclude

expert testimony based on covered materials, e.g., Lusby

v. Union Pacific R.R. Co., 4 F.3d 639, 641 (8 Cir. 1993),

and even newspaper articles based on information

contained in covered materials. Robertson v. Union

Pacific R.R. Co., 954 F.2d 1433, 1435 (8 Cir. 1992).

In 1987, when Congress added § 409 to the

Highway Safety Act of 1973, it gave little indication of

its purpose. See Kitts v. Norfolk & W. Ry. Co., 152 F.R.D.

78, 82 n.14 (S.D.W. Va. 1993) (“The one respect in which

all the cases interpreting section 409 are in agreement is

that the section, seemingly, has no legislative history.”)

In the absence of a clear statement of legislative intent,

Courts have suggested that Congress enacted section

409 for “at least two purposes: (1) to facilitate candor in

the preparation of documents by protecting them from

use in litigation . . . and (2) to prevent the record

keeping required by federal law from providing ‘an

B. Weinstein & Margaret M. Berger, WEINSTEIN’S EVIDENCE {

501[05] (1994). Such statutes may create a “required reports”

privilege protecting information that must be submitted to a

government agency. See Association for Women in Science v. Califano,

566 F.2d 339 (D.C. Cir. 1977).

8

additional, virtually no-work, tool for direct use in

private litigation.’” Mackie v. Grant Trunk Western R. Co.,

544 N.W. 709, 711 (Mich. App. 1996) (citations omitted).

See also Coniker v. New York, 181 Misc. 2d 801, 804, 695

N.Y.S.2d 492, 495 (Ct. Cl. 1999) (similar).

That Congress was concerned with a lack of

candor in state applications for federal highway funds

was the speculation of a single intermediate state court.

Duncan v. Union Pacific. R. Co., 790 P.2d 595, 597 (Utah

Ct. App. 1990), aff'd on other grounds, 842 P.2d 832

(Utah 1992).3 Neither Petitioner nor the United States

has brought forward any additional direct evidence

that a concern about candor was in fact Congress’s

motivation.

The second purpose imputed to Congress by

some courts is to prevent covered materials from

becoming a “virtually no-work, tool for direct use in

private litigation.” Mackie, supra; Light v. State, 149 Misc.

2d 75, 560 N.Y.S.2d 962, 965 (Ct. Cl. 1990). Congress's

concern, in other words, was that some States make it

too easy for plaintiffs to recover for wrongful injury or

death due to negligent highway design.

Support for this view is found in the statute

itself. Sec. 409 targets only damage actions. In addition,

Congress provided no protection to those who actually

submit information or prepare reports, surveys or lists.

Instead, the benefits of the statute are bestowed on

defendants - governmental and private parties - who

may have had little or nothing to do with compiling or

preparing those materials.

3 The Utah court’s sole cited authority is the conference

report, which merely paraphrases the provision. 790 P.2d at 597

n.2, citing H. Conf. Rep. No. 100-27, 104th Cong. 1st Sess. 172-173.

9

ATLA submits that it is beyond the authority of

Congress to supervise state tort law or to require sté te

courts to replace state law with what Congress views as

a better rule in damage actions. As this Court stated:

Congress has no power to declare substantive rules

of common law applicable in a state whether they be

local in their nature or ‘general,’ be they commercial

law or a part of the law of torts.

Erie Railroad Co. v. Tompkins, 304 U.S. 64, 78 (1938).

B. The Supremacy Clause Does Not Support a

Congressional Demand that State Courts

Exclude Certain Evidence -in State Law

Damage Actions.

Despite this Court’s clear demarcation of the

limits on Congress's authority in Erie, Petitioners argue

that Congress may demand that state courts apply

“federal prescriptions,” Brief for Petitioner at 19, relying

on F.E.R.C. v. Mississippi, 456 U.S. 742 (1982), and this

Court’s decisions upholding federal preemption of state

tort actions. Id. at 20 & 23.

This Court made clear in Testa v. Katt, 330 US.

386 (1947), that the Supremacy Clause requires state

judges to entertain federal causes of action that are

within their jurisdiction. As Justice O'Connor has

pointed out, Testa and similar cases “all involve

congressional regulation of individuals, not

congressional requirements that States regulate.” New

York v. United States, 505 U.S. at 178. The duty of state

courts to enforce the federal rights of individuals flows

from the command of the Supremacy Clause that the

“supreme Law of the Land” be enforceable in every

State. Id.

10

It is one thing for Congress to bestow on

individuals a federal right or cause of action which

state courts must recognize. It is quite another for

Congress to dictate directly to state courts how they

must decide cases. A state court is not “to be treated as

a Federal court deriving its authority not from the State

creating it, but from the United States.” Howlett v. Rose,

496 U.S. 356, 370 n.17 (1990). F.E.R.C. is not to the

contrary. As the majority there stated, “this Court never

has sanctioned explicitly a federal command to the

States to promulgate and enforce laws and

regulations,” 456 U.S. at 761-62; Printz, 521 U.S. at 929.

Hence, even in civil actions to enforce a federal

right, Congress may not prescribe the procedural rules

state courts must apply. Howlett v. Rose, supra at 369-72.

See also Mondou v. New York, N.H. & H.R. Co., 223 US. 1,

56-57 (1912) (state courts must take cognizance of

federal causes of action created by the Federal

Employers Liability Act, where there was no “attempt

by Congress to enlarge or regulate the jurisdiction of

state courts, or to control or affect their modes of

procedure.”). Cf, Dice v. Akron, Canton & Youngstown

R.R., 342 U.S. 359, 363 (1952) (Because trial by jury is “a

basic and fundamental feature of our system of federal

jurisprudence” and “part and parcel of the remedy

afforded railroad workers” by the FELA, a state rule

under which the trial judge determined the validity of a

release could not be deemed a mere rule of procedure.).

Consequently, even where Congress has

established a federal right of action, the general rule,

“bottomed deeply in belief in the importance of state

control of state judicial procedure, is that federal law

takes the state courts as it finds them.” Henry M. Hart,

Jr., The Relations Between State and Federal Law, 54

11

Colum. L. Rev. 489, 508 (1954). See also Johnson v.

Fankell, 520 U.S. 911, 919 (1997).

In this case, there is no federal right at stake.

Congress lacks any authority to dictate to state courts

either the substantive or procedural rules in actions

governed by state law.

C. The Doctrine of Federal Preemption Does Not

Apply to Congressional Regulation of State

Courts, Rather than Private Conduct.

For similar reasons, § 409 cannot be supported

on the basis of the doctrine of federal preemption.

Preemption is the Framers’ solution to a problem

created by replacing regulation of the states under the

Articles of Confederation with direct regulation of

persons, which is the basis of the Constitution. When

an individual is subject to both federal and state

regulations, the Supremacy Clause mandates that state

law must yield, where that is the clearly expressed

intent of Congress, where a state regulation actually

conflicts with federal law, or where Congress intended

federal regulation to occupy the field. Cipollone v.

Liggett Group, Inc., 505 U.S. 504, 516 (1992).

Hence, the preemption doctrine applies only to

the regulation of activities of private persons and

businesses subject to dual sovereigns actors — not to the

regulation of the States themselves or of state courts.

Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452

U.S. 264, 289 (1981). As this Court has explained:

No matter how powerful the federal interest

involved, the Constitution simply does not give

Congress the authority to require the States to

regulate. The Constitution instead gives Congress

the authority to regulate matters directly and to

pre-empt contrary state regulation. Where a federal

12

interest is sufficiently strong to cause Congress to

legislate, it must do so directly; it may not conscript

state governments as its agents.

New York v. United States, 505 U.S. at 178.

II. 23 U.S.C. § 409 Is NOT A VALID EXERCISE OF

CONGRESSIONAL SPENDING POWER.

A. Sec. 409 Is Not A Condition On Receipt Of

Federal Funds.

The Constitution empowers Congress to

“provide for the common Defence and general Welfare

of the United States.” U.S. Const. art. I, § 8, cl. 1.

Incident to this power, “Congress may attach

conditions on the receipt of federal funds,” including

“compliance by the recipient with federal statutory and

administrative directives.” South Dakota v. Dole, 483 US.

203, 206 (1987).

However, this Court has emphasized, if

Congress wants to attach strings to its spending, it

must announce its conditions clearly so that States can

“exercise their choice knowingly, cognizant of the

consequences of their participation.” Id. at 207. As the

Court recently pointed out, conditional spending is in

the nature of a contract; its validity depends upon

placing the states on clear notice of its terms. Barnes v.

Gorman, 122 S. Ct. 2097, 2100 (2002). “Accordingly, if

Congress intends to impose a condition on the grant of

federal moneys, it must do so unambiguously.” Id. at

2101, quoting Pennhurst State School and Hospital v.

Halderman, 451 U.S. 1, 17 (1981). Sec. 409, however,

gives no indication that compliance is a condition to

receiving highway funds.

13

It is not sufficient that § 409 is part of a larger

spending program that the States are free to accept or

reject. Pennhurst, for example, involved the

Developmentally Disabled Assistance and Bill of Rights

Act of 1975. The Act’s explicit purpose, similar to that

of the federal highway statute, was to assist the States

through the use of federal grants to improve the care

and treatment of those with mental disabilities.

The Court held that a provision in the statute

setting forth a “Bill of Rights” of the mentally disabled

did not require the States to recognize substantive

individual rights to care as a condition of receiving

federal funds. That section of the statute, this Court

pointed out, contained no conditional language. By

contrast, in other sections of the Act where Congress

intended to impose conditions, it did so explicitly. Id. at

23.

Similarly, Congress used no _ conditional

language in the text of § 409. Indeed, as the Association

of American Railroads observes, the plain text of the

statute indicates that it is not conditional at all. Rather,

Ҥ 409 limits the use of this information in all courts,

whether or not the forum State accepts federal highway

funds.” Brief of the Association of American Railroads

at 14-15 (emphasis in original). Contrary to Petitioner's

assertion, a State’s citizens who view § 409 as contrary

to their interests cannot simply decline the federal

grant. Brief for Petitioner at 24. If the residents of

Washington were to reject federal highway money

today, their decision would not remove the bar to use

of evidence that has been collected. Nor would it allow

use of future collections or compilations made for

developing highway safety projects that might

someday be eligible for federal funds.

14

As in Pennhurst, other sections of the same

statute demonstrate that Congress knew how to attach

conditions to the receipt of federal highway funds. For

example, 23 U.S.C. § 158, the requirement that States

establish a minimum drinking age of 21, which this

Court upheld as a valid spending condition in Dole,

spells out precisely what the states must do to fulfill the

condition and describes the penalties for non-

compliance. Other provisions are similarly detailed. See

23 U.S.C. § 131 (States that do not control outdoor

advertising near interstate highways will lose 10% of

federal highway funds); 23 U.S.C § 141 (States that do

not adequately enforce state laws respecting maximum

vehicle size and weights lose 10% of funds); 23 U.S.C. §

141(b) (States that permit heavy vehicles to be

regi ‘ered without proof of payment of federal taxes

lose 25% of funds); 23 U.S.C. § 154 (States that do not

enact open-container laws will be penalized by transfer

of 1.5% to 3% of funds to alcohol-impaired driving

programs); 23 U.S.C. § 159 (States that do not revoke or

suspend licenses of those convicted of drug offenses

will lose 5%, then 10% of funds); 23 U.S.C. § 161 (States

that do not enact and enforce laws respecting driving

by intoxicated minors lose 5%, then 10% of funds).

Sec. 409 contains no similar indication that

funding is conditional on compliance, how compliance

shall be determined, or the consequences of non-

compliance. Even if Congress intended to make § 409 a

condition for receipt of federal funds, the statute does

not comply with this Court’s repeated insistence that

“Congress speak with a clear voice.” Davis v. Monroe

County Bd. of Ed., 526 U.S. 629, 640 (1999), quoting

Pennhurst, supra at 17.

15

B. The Threat of Loss of All Highway Funds For

Noncompliance With § 409 Is Impermissibly

Coercive.

Even if § 409 is deemed an exercise of the

Spending Power, the Court in Dole made clear there is a

limit to the pressure Congress may exert on States to

obtain their acceptance of spending conditions. “[I]n

some circumstances,” the Court stated, “the financial

inducement offered by Congress might be so coercive

as to pass the point at which ‘pressure turns into

compulsion.” Dole, supra at 211, quoting Steward

Machine Co. v. Davis, 301 U.S. 548, 590 (1937). Dole

involved 23 U.S.C. § 158, under which a State that

established a minimum drinking age below 21 would

lose 5% of its allotment of federal highway funds. The

Court concluded that the threatened loss of this

“relatively small percentage” of funds did not amount

to coercion. Id.

Petitioner and the Solicitor General suggest that

a State seeking to retain its own rules in its own courts

must decline to participate in the highway-aid program

altogether. Brief for Petitioner at 26; Brief for the United

States at 43. Clearly, a State’s loss of 100% of its share of

highway funds would be a severe blow to the state

budget and would place the lives and safety of those

who use its highways at risk. By any standard, this

degree of pressure amounts to compulsion. As the

Fourth Circuit had occasion recently to observe, if the

federal government were to withhold the entirety of a

State’s Medicaid funds for failure to satisfy a statutory

condition, “then serious Tenth Amendment questions

would be raised.” West Virginia v. U.S. Dept. of Health

and Human Services, 289 F.3d 281, 291 (4 Cir. 2002).

16

Ill. SECTION 409 Is Not A VALID EXERCISE OF

CONGRESSIONAL POWER UNDER THE COMMERCE

CLAUSE.

A. Section 409 Does Not Regulate Interstate

Commerce or the Use of Channels of

Commerce, But Regulates State Courts.

Petitioner seek to bring § 409 within Congress's

delegated power to “regulate Commerce . . . among the

several States.” U.S. Const. art. I, § 8, cl. 3, because it

“favorably effect[s] the instrumentalities of interstate

commerce.” Brief for Petitioner at 32. The Solicitor

General characterizes § 409 as “designed to protect and

regulate transportation” by ameliorating hazards, thus

protecting both the channels and the instrumentalities

of interstate commerce. Brief for the United States at 42.

Undeniably, “Congress may regulate the use of

the channels of interstate commerce” as well as “the

instrumentalities of interstate commerce, Or persons or

things in interstate commerce.” United States v. Lopez,

514 U.S. 549, 558 (1995); United States v. Morrison, 529

U.S. 598, 609 (2000) (emphasis added). However, the

plain text of 23 U.S.C. § 409 does not regulate interstate

commerce, nor its instrumentalities nor the use of its

channels. This Court has defined the word “regulate”

more narrowly than simply than “to have an effect on.”

A statute that “regulates” must explicitly address the

object of regulation. For example, the “common-sense

view of the word ‘regulates’ would lead to the

conclusion that in order to regulate insurance, a law

must not just have an impact on the insurance industry,

but must be specifically directed toward that industry.”

Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 50 (1987).

Section 409, on its face, regulates state courts in

their conduct of civil actions under state law. Even if

17

state-law damage suits could be construed as a

regulation of interstate commerce, the Commerce

Clause “does not authcrize Congress to regulate state

governments regulation of interstate commerce.” New

York v. United States, 505 U.S. at 167.

B. Section 409 Does Not Regulate an Economic or

Commercial Activity That Substantially

Affects Interstate Commerce

Petitioner also relies on this Court’s recognition

that Congress may regulate activities having “a

substantial relation to interstate commerce.” Brief for

Petitioner at 32.

That authority, however, extends only to the

regulation of “economic activity [that] substantially

affects interstate commerce.” United States v. Lopez, 514

U.S. at 560. (emphasis added) Indeed, limiting the

Commerce Power to regulating economic activity “was

central” to the Court’s decision in Lopez. United States v.

Morrison, 529 U.S. at 610. The Court added that, in

every case “where we have sustained federal regulation

of intrastate activity based upon the activity’s

substantial effects on interstate commerce,” the

“regulated activity was of an apparent commercial

character.” Id. at 611 & n.4.

Court rulings on the discoverability of evidence

and its admissibility in civil actions clearly are not an ~

economic or commercial activity.

Much of the work of state courts — ranging from

the abatement of nuisances to zoning appeals — can be

seen to have an impact on interstate commerce. To

allow Congress to prescribe the legal rules to be

applied in such state-law actions would give Congress

plenary authority over state courts as an attribute of the

18

Commerce Power. Such an unprecedented expansion of

authority “would effectually obliterate the distinction

between what is national and what is local and create a

completely centralized government.” Morrison, 529 U.S.

at 615; NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1,

37 (1937).

IV. SECTION 409 1s Not AUTHORIZED BY THE

NECESSARY AND PROPER CLAUSE.

A. The Statute is not a “Necessary” Exercise of

Power.

Petitioner argues that § 409 should be upheld

under U.S. Const. art. I, § 8, cl. 18, which allows

Congress “to make all laws which shall be necessary

and proper for carrying into Execution the foregoing

Powers.” Brief for Petitioner at 35-36.

It is difficult to credit Petitioner’s claim that § 409

is “essential” to the operation of the federal highway

safety program. Id at 35. The program had been in

operation for 14 years, growing at a healthy rate with

participation of all States.

-Nor is it self-evident that shielding defendants

from liability results in obtaining more complete

information. To the contrary, this Court has suggested:

In fact, the scheme of negligence liability could just

as easily complement these regulations by

encouraging railroads -- the entities arguably most

familiar with crossing conditions -- to provide

current and complete information to the state

agency responsible for determining priorities for

improvement projects

CSX Transportation, Inc. v. Easterwood, 507 U.S. 658, 668

(1993).

19

Had Congress been concerned that state officials

or other persons were being less than candid, it could

have imposed penalties for submission of false or

misleading information in connection with applications

for highway aid as it has in other areas. See United

States v. Wells, 519 U.S. 482, 505-06 & nn. 9 & 10 (1997)

(Stevens, J., dissenting) (listing statutes).

The latitude accorded to Congress in selecting

the means to carry out its program is limited by the

Commerce Clause itself “by empowering Congress to

regulate that trade directly, not by authorizing

Congress to issue trade-related orders to state

governments.” New York v. United States, 505 US. at

180.

As this Court has stated, quoting Chief Justice

John Marshall:

No trace is to be found in the constitution of an

intention to create a dependence of the government

of the Union on those of the States, for the

execution of the great powers assigned to it. Its

means are adequate to its ends; and on those means

alone was it expected to rely for the

accomplishment of its ends.

Alden v. Maine, 527 U.S. 706, 753 (1999), quoting

MCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 424

(1819).

Petitioner insists that § 409 furthers federal

interests by offering the States something they want - a

shield against the use of evidence in state court damage

actions — as incentive to give the federal government

what it needs, accurate hazard information. Brief for

Petitioner at 28; Brief for the United States at 42.

In fact, § 409 offers the States no incentive at all

that they could not provide for themselves.

20

The States are clothed with immunity from suit

as “a fundamental aspect of [their] sovereignty.” Alden

v. Maine, supra at 713, and so can insulate themselves

completely from liability actions. Most States, have

adopted tort claim statutes, reflecting “a sense of justice

which has continually expanded by consent the

suability of the sovereign.” Id. at 755. See generally,

Annot., “Liability Of Governmental Entity Or Public

Officer For Personal Injury Or Damages Arising Out Of

Vehicular Accident Due To Negligent Or Defective

Design Of A Highway,” 45 ALR 3d 875 (1972). Some

have enacted “defective highway” statutes specifically

to provide recourse for those injured by negligent

roadway maintenance or design. Id. at § 9.

The power to consent to suit obviously includes

the power to limit or permit the use of state-generated

reports and other evidence in such actions. In addition,

of course, every State establishes the rules governing

discovery and admissibility of evidence in its own

courts. Most states, for example, have enacted

provisions making industrial or vehicle accident

reports inadmissible in defined circumstances. John

Henry Wigmore, WIGMORE ON EVIDENCE § 2377(3)

(McNaughton rev. 1940); 2 Jack B. Weinstein &

Margaret M. Berger, WEINSTEIN’S EVIDENCE, { 502.04[2]

(2d ed. 1998).

Absent federal intervention, then, States can

choose to allow the use of such evidence, bar it

completely, or limit its use in a manner calibrated to

best serve the interests of the State and its people. Sec.

409 adds nothing to a State’s ability to protect itself

from liability in state courts. Instead, it “forecloses the

States from experimenting and exercising their own

judgment in an area to which States lay claim by right

21

of history and expertise.” Lopez at 583 (Kennedy, J.,

concurring).

The statute takes away every State’s ability to

balance the competing interests of budgetary

constraints, accountability of governmental and private

entities, and “the duty of every State to provide, in the

administration of justice, for the redress of private

wrongs.” Missouri Pacific Ry. Co. v. Humes, 115 US. 512,

521 (1885), which this Court has deemed “[o]ne of the

first duties of government” and “the very essence of

civil liberty” Marbury v. Madison, 5 U.S. (1 Cranch) 137,

163 (1803). As this Court recently emphasized:

If the principle of representative government is to

be preserved to the States, the balance between

competing interests must be reached after

deliberation by the political process established by

the citizens of the State, not by judicial decree

mandated by the Federal Government. . .

Alden v. Maine, 527 U.S. 706, 751 (1999).

B. The Statute is Not a “Proper” Exercise of Power.

The federal government of course has an interest

in the effectiveness of its spending programs. It is

worth noting, however, that the highway safety

program does not pursue a uniquely federal objective,

overriding state interests. Congress explicitly

established a “federally assisted state program” based

on the preservation of State sovereign rights. The

statute itself provides:

Protection of State sovereignty.--The authorization

of the appropriation of Federal funds or their

availability for expenditure under this chapter shall

in no way infringe on the sovereign rights of the

States to determine which projects shall be

22

federally financed. The provisions of this chapter

provide for a federally assisted State program.

23 U.S.C. § 145(a).

This Court held in Alden v. Maine that Congress

cannot disregard state sovereignty to subject a State to

liability suits in its own courts without its consent. Nor

can Congress properly set aside state sovereignty, as

Petitioner argues, to shield a State “from the threat of

future tort actions” to which it has consented. Brief for

Petitioner at 7.

“No matter how powerful the federal interest

involved,” this Court has declared, the Constitution

simply does not give Congress the authority to treat the

States as mere subdepartments of the federal

government. New York v. United States, 505 U.S. at 188

Rather, “the Constitution protects us from our own best

intentions: it divides power among sovereigns and

among branches of government precisely so that we

may resist the temptation to concentrate power in one

location as an expedient solution to the crisis of the

day.” Id. at 187.

When an Act of Congress “violates the principle of

state sovereignty reflected in the various constitutional

provisions . . . it is not a ‘La[w] . . . proper for carrying

into Execution the Commerce Clause.” Alden v. Maine,

supra, at 732-33, quoting Printz, supra, at 923-924.

V. Sec. 409 VIOLATES STATE SOVEREIGNTY UNDER THE

TENTH AMENDMENT.

Even if § 409 were deemed to be within

Congress’s authority under the Commerce Clause, the

Tenth Amendment stands as an independent check on

congressional intrusion into the sovereignty of States:

23

In New York and Printz, we held federal statutes

invalid, not because Congress lacked legislative

authority over the subject matter, but because those

statutes violated the principles of federalism

contained in the Tenth Amendment.

Reno v. Condon, 528 U.S. 141, 149 (2000).

A. This Court’s Decision in Garcia Does Not

Preclude This Court From Enforcing the Tenth

Amendment Protections of State Authority

Over State Law.

Petitioner summarily dismisses any Tenth

Amendment objection to the statute, relying heavily on

Garcia v. San Antonio Metropolitan Transit Authority, 469

U.S. 528 (1985), and South Carolina v. Baker, 485 U.S. 505

(1988). Pet. Br. at 17-19. Those decisions, involving

generally applicable congressional regulations, do not

extend to this case.

In those cased, this Court addressed “the extent

to which state sovereignty shields the States from

generally applicable federal regulations.” Baker, supra,

at 514. In directing the States to look to the

“effectiveness of the federal political process” rather

than “judicially created limitations on federal power,”

the Garcia Court did not reject constitutional protection

of the sovereignty of the States. 469 U.S. at 552. Rather,

the Court concluded that it was impossible to discern a

principles line between “traditional state functions,”

exempt from valid Commerce Clause regulations, and

other activities which should be subject to regulations

applicable to any other employer, landowner or

business enterprise. /d. at 538-39. The Court therefore

found no Tenth Amendment violation where the

Congress imposed “nothing more than the same

minimum-wage and_ overtime obligations _ that

24

hundreds of thousands of other employers, public as

well as private, have to meet.” Id. at 554.

Similarly, in South Carolina v. Baker, supra, the

Court upheld a requirement in the Tax Equity and

Fiscal Responsibility Act of 1982, that publicly-offered

long-term bonds be issued in registered form, whether

issued by state or local governments or private

corporations. 485 U.S. at 527. More recently, in Reno v.

Condon, 528 U.S. 141 ‘2 ), the Court held that a Tenth

Amendment challenge would not lie against the Driver

Privacy Protection Act precisely because it was a

statute of general applicability and “does not require

the States in their sovereign capacity to regulate their

own citizens.” Id. at 151.

It is a different matter where Congress has itself

drawn the line that proved so elusive to the Court in

Garcia by enacting legislation directed solely at the

States’ exercise of their sovereign powers. Indeed, the

Garcia Court indicated that there are “affirmative

limits” to federal actions affecting the States. Id. at 556.

Significantly, the Court there cited Coyle v. Smith, 221

US. 559 (1911), holding that Congress may not dictate

to a State the location of its capital, an “essentially and

peculiarly state power[].” Id. at 565.

Sec. 409, like the legislation in New York v. United

States and in Printz, is an explicit federal command to a

branch of state government in the exercise of the States’

sovereign power. In neither case was the Court obliged

to entrust the protection of state sovereignty to the

federal political process. Rather, the Court invalidated

congressional commandeering as overstepping the

bounds set by the Tenth Amendment. As the Court

recently reaffirmed:

25

[T]he Constitution has never been understood to

confer upon Congress the ability to the require the

States to govern according to Congress’

instructions.

Reno v. Condon, 528 US. at 149. The constitutional

protection of state courts from such congressional

interference “is not solely a matter of legislative grace.”

United States v. Morrison, 529 U.S. 528, 616 (2000).

B. The Tenth Amendment Protects the Sovereign

Right of States to Declare and Apply State

Law.

The Founders framed the Constitution to

provide for a strong national government, but they

were equally concerned with limiting its power and

preserving the sovereign states. “Any doubt regarding

the constitutional role of the States as sovereign entities

is removed by the Tenth Amendment, which, like the

other provisions of the Bill of Rights, was enacted to

allay lingering concerns about the extent of the national

power.” Alden v. Maine, 527 U.S. 706, 713-14 (1999).

The Tenth Amendment provides:

The powers not delegated to the United States by

the Constitution, nor prohibited by it to the States,

are reserved to the States respectively, or to the

people.

U.S. Const. amend. X

Most assuredly, “[o]ne of the reserved powers was

the maintenance of state judicial systems for the

decision of legal controversies.” Atlantic Coast Line R.R.

v. Brotherhood of Locomotive Eng’rs, 398 U.S. 281, 285

(1970). State “courts have always been recognized as a

coequal part of the State’s sovereign decision-making

apparatus,” exercising “perhaps the quintessential

26

attribute of sovereignty.” F.E.R.C. v. Mississippi, 456

U.S. 742, 761 & 762 n.27 (1982).

No delegated power authorizes Congress to

prescribe the rule of decision in controversies governed

by state law. It is elemental that, “Congress cannot vest

any portion of the judicial power of the United States,

except in courts ordained and established by itself.”

Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304, 330-31

(1816). It flows from this principle that:

Congress has no power to declare substantive rules

of common law applicable in a State, whether they

be local in their nature or “general,” be they

commercial law or a part of the law of torts.

Erie Railroad Co. v. Tompkins, 304 U.S. 64, 78 (1938). That

power, Justice Brandeis added, is “reserved by the

Constitution to the several States.” Id. at 80. Cf. Bernardt

v. Polygraphic Co., 350 U.S. 198, 202 (1956) (under Erie,

“Congress does not have the constitutional authority to

make the law that is applicable to controversies in

diversity of citizenship cases.”); Griffin v. Breckenridge,

403 U.S. 88, 102 (1971) (suggesting that an attempt by

Congress to establish “a general federal tort law” would

founder on “constitutional shoals.”).

Nor does the Constitution delegate to Congress

any general authority to prescribe the procedural rules

for state courts. The right of the States to establish the

rules of procedure governing litigation in their own

courts is “unassailable.” Felder v. Casey, 487 U.S. 131, 138

(1988). See also Hardware Dealers Mutual Fire Ins. Co. v.

Glidden Co., 284 U.S. 151, 158 (1931) (“the procedure by

which rights may be enforced and wrongs remedied is

peculiarly a subject of state regulation and control”);

Fay v. Noia, 372 U.S. 391, 466-67 (1963) (Harlan, J.,

dissenting) (“The right of the State to regulate its own

27

procedures governing the conduct of litigants in its

courts, and its interest in supervision of those

procedures, stand on the same constitutional plane as

its right and interest in framing ‘substantive’ laws

governing other aspects of the conduct of those within

its borders.”).

Where the drafters of the Constitution deemed it

appropriate for Congress to prescribe rules concerning

the admissibility of evidence in state courts, they

delegated that power to Congress explicitly. The Full

Faith and Credit Clause provides:

Full Faith and Credit shall be given in each State to

the public Acts, Records and Judicial Proceedings

of every other State. And the Congress may by

general Laws prescribe the Manner in which such Acts,

Records and Proceedings shall be proved, and the Effect

thereof.

U.S. Const., Art. IV, § 1 (emphasis added).

If Congress possessed a general authority to

prescribe rules of evidence in state court proceedings,

the second sentence of this provision would be

superfluous. The drafters, however, determined that

Congress could exercise such power only pursuant to

an express grant of authority. See Edmonds v. State, 39

S.E.2d 24 (Ga. 1949) (apart from the Full Faith and

Credit Clause, Congress has no power to prescribe

rules of evidence in state courts).

That Congress cannot dictate the rules of

evidence and procedure in state courts has long been

“accepted as settled constitutional law.” Ex Parte

Gounis, 263 S.W. 988, 990 (Mo. 1924) (in banc); see also

Sulpho-Saline Bath Co. v Allen, 66 Neb. 295, 92 N.W. 354,

356 (1902) (“Congress has no authority to make rules

28

governing the admission of evidence in the courts of

this state”).4

C. The Tenth Amendment Protects the Right of

the People To Organize Their State

Governments and Provide for the Separation

of Powers As They See Fit.

In many state constitutions, the people have

organized their governments and defined the powers

of the constitutionally separate branches to provide

that the judicial authority to promulgate rules of

procedure is paramount over conflicting statutes. The

Ohio Constitution, for example, declares that the

“supreme court shall prescribe rules governing practice

and procedure in all courts of the state,” and that “[a]ll

laws in conflict with such rules shall be of no further

force or effect after such rules have taken effect.” Ohio

Const. art. IV, § 5(B).

Other States have organized their governments

and apportioned authority between the legislative and

judicial branches in similar fashion. See People v. Hollis,

670 P.2d 441 (Colo. App. 1983) (under Colo. Const. art.

VI, § 21, statutes governing procedural matters which

conflict with rule promulgated by the Supreme Court

are invalid as a legislative invasion of the court's.

rulemaking powers); People v. Easley, 152 Ill. App.3d

4 This Court has not squarely addressed the issue of

Congress's power to command state courts to apply a

congressionally formulated rule in state law cases. Justice Powell

warned that to grant Congress “the power to pre-empt state-court

rules of civil procedure and judicial review in classes of cases

found to affect commerce” would “obliterate” the States by

allowing Congress to “nibble away at state sovereignty bit by bit.”

F.E.R.C. v. Mississippi, 456 US. 742, 774 (1982) (Powell, J.,

dissenting in part).

—

29

839, 842, 505 N.E.2d 11, 12, 105 Ill. Dec. 885, 886 (Ct.

App. 1987) (“[I]f a statute conflicts with a rule of the

supreme court adopted pursuant to constitutional

authority, the Supreme Court Rule must prevail.”);

Manns v. Commonwealth, 2002 WL 1307441 at *4 (Ky.

2002) (statute providing for admissibility of juvenile

records “is a legislative attempt to invade the

rulemaking prerogative of the Supreme Court by

legislatively prescribing rules of practice and

procedure, [and] violates the separation of powers

doctrine enunciated in Section 28 of the Kentucky

Constitution.”); McDougall v. Schanz, 597 N.W.2d 148,

154 (Mich. 1999) (“the authority to determine rules of

practice and procedure rests exclusively with this

Court” under Mich. Const. art. 6, § 5 and the doctrine of

separation of powers); City of Fargo v. Ruether, 490

N.W.2d 481, 483 (N.D. 1992) (under N.D. Const. art. VI,

§ 3, “[t]he legislature cannot repeal the Rules of

Evidence or the Rules of Civil Procedure made

pursuant to the power provided us in the

Constitution.”); State v. Wallace, 517 $.E.2d 20, 25 (W.

Va. 1999) (under W. Va. Const. art. 8, § 8 the “West

Virginia Rules of Evidence remain the paramount

authority in determining the admissibility of evidence .

- - any statutory or common-law procedural rule that

conflicts with these Rules is presumptively without

force or effect.”).

Similarly, in the State of Washington, “[iJt is a

well-established principle that the Supreme Court has

implied authority to dictate its own rules, ‘even if they

contradict rules established by the Legislature.” Sackett

v. Santilli, 47 P.3d 948, 951, 146 Wash. 2d 498, 506

(Wash. 2002) (citations omitted); State v. Ryan, 103

Wash. 2d 165, 178, 691 P.2d 197, 206 (1984) (“Where a

30

rule of court is inconsistent with a procedural statute,

the court’s rulemaking power Is supreme. ”).

Section 409 effects a structural change in state

government that is inconsistent with state sovereignty.

By its terms, Congress authorizes a State’s legislative or

executive branch, by agreeing to accept highway funds,

to evade the constitutional limits separating their

powers from those of the co-equal judicial branch.

The statute makes Congress complicit in the

abrogation of the constitutional covenant by which the

people brought their State government into being, and

violates the precepts of “Our Federalism,” which this

Court has enunciated with undeniable clarity.

CONCLUSION

For the above reasons, the decision of the court of

appeals should be affirmed.

Respectfully submitted,

Jeffrey Robert White

1050 31st St., N.W.

Washington, DC 20007

(202) 965-3500

ATLA Senior Amicus Counsel

Counsel of Record

August 16, 2002