Amicus Curiae Brief — Miller-Wohl Co. v. Commissioner of Labor & Industry

Supreme Court, U.S,

FréivlLEe D®

(\ NOV 27 1eAg

No. 84-1545 JOSEPH &. SPANIGL, JR,

Iu the Supreme Courtof the United States

OCTOBER TERM, 1985

MILLER-WOHL COMPANY, INC., APPELLANT

Vv.

COMMISSIONER OF LABOR AND INDUSTRY OF MONTANA

and TAMARA L. BULEY

ON APPEAL FROM THE SUPREME COURT OF MONTANA

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE

CHARLES FRIED

Solicitor General

WM. BRADFORD REYNOLDS

Assistant Attorney General

BRIAN K. LANDSBERG

DAVID K. FLYNN

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 633-2217

BEST AVAILABLE COPY

QUESTIONS PRESENTED

1. Whether a state law that requires an employer

to provide leave to employees who are pregnant is in-

consistent with 42 U.S.C. 2000e(k), as amended by

the Pregnancy Discrimination Act of 1978.

2. Whether such a state law violates the Equal

Protection Clause of the Fourteenth Amendment of

the Constitution.

(1)

‘te 7

an

a

TABLE OF CONTENTS

Page

EET D a EEE BY PSII A 77 ot ISTE NAS I 1

I eo a abdosamntstedidan nanos 4

Neo csdetvwitcieamibinowes 14

TABLE OF AUTHORITIES

Cases:

Capital Cities Cable, Inc. Vv. Crisp, No. 82-1795

oo ecneamnbmemeuesanse 9

Fidelity Federal Savings & Loan Ass’n Vv. De La

Ne ea usec sabanstnsiacnatabe 9

Florida Lime & Avocado Growers, Inc. V. Paul, 373

Ske sc Snsntinenphanskeomnde 9

ee a OG, WG OE, SOO sic esss 5,12

Gemsco V. Walling, 324 U.S. 244 ....................0...-22... 6

General Electric Co. v. Gilbert, 429 U.S. 1285........ 5

Harrie ¥V. Moae, 448 U.S. 207 ..........-....................... 12

Harrison v. PPG Industries, Inc., 446 U.S. 578........ 6

Heckler v. Mathews, No. 82-1050 (Mar. 5, 1984)... 11

Hines Vv. Davidowittz, 312 U.S. 52 .............................. 9

Jones V. Rath Packing Co., 430 U.S. 519 _............... 9

Matne ¥. Thidoutot, 448 U.S. 1 .................................. 6

Newport News Shipbuilding & Dry Dock Co. Vv.

cca mcsisceenediinsnen 8

Packard Motor Car Co. v. NLRB, 330 U.S. 485........ 6

Shaw Vv. Delta Air Lines, Inc., 463 U.S. 85 -............. 9

a nk ssesemcnsensnnane 6

Wengler v. Druggists Mutual Ins. Co., 446 U.S.

a dicsuaaciencambontin 11

Constitution and statutes:

U.S. Const. :

Art. VI, Cl. 2 (Supremacy Clause) ........ 3, 8, 11, 12, 13

Amend. XIV (Equal Protection Clause) .......... 3, 12

Civil Rights Act of 1964:

ait. Vil, 42 U.S.C. 20000 of sed. ........................ 3

= Jel, 42 U.e.C. 2000e(k) .......................... 4,5, 10

gy glk lok a nee 9

(III)

IV

Constitution and statutes—Continued : Page

Tit. Xi, 42 U.S.C. 2000h et seq.:

§ 1104, 42 U.S.C. 2000h-4 ................ saci 9

Pregnancy Discrimination Act of 1978, Pub. L.

No. 95-555, 92 Stat. 2076 et seq. ......................... 3

is ee I IIE ac ndeciteiccebicnideitnestticansernnanasaved 13

Cal. Gov’t Code § 12945(b) (2) (West 1980)... 13

Mont. Code Ann. § 39-7-203 (1983).......00000000000... 1

Miscellaneous:

123 Cong. Rec. (1977) :

Nahi diatchicenntanacabeicemapiosiinancpuhdaanipicdiaigneaitcheniai 8,12

ee 13

EA RRS Racin i a nen Nese 8

td ace ee Se §;

is ih icics anh ca cnanais pidderstapecinidessitiesaieeonee d

I AIG ncaa occinca Sesapdsiedscopineanegeaeindeciamacanine 8,12

UE SEEN Ba IGA a ade rane ee OP eaten noo ee 13

H.R. Rep. 95-948, 95th Cong., 2d Sess. (1978) ....6, 8, 12, 13

S. Rep. 95-331, 95th Cong., Ist Sess. (1977)...... 7, 8,11, 13

Iu the Supreme Court of the United States

OCTOBER TERM, 1985

No. 84-1545

MILLER-WOHL COMPANY, INC., APPELLANT

Vv.

COMMISSIONER OF LABOR AND INDUSTRY OF MONTANA

and TAMARA L. BULEY

ON APPEAL FROM THE SUPREME COURT OF MONTANA

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE

This brief is filed in response to the Court’s order

inviting the Solicitor General to express the views of

the United States.

STATEMENT

1. Appellant operates a chain of retail stores sell-

ing ladies’ apparel, including several stores in Mon-

tana. The Montana stores are subject to the Mon-

tana Maternity Leave Act (MMLA), which prohibits

private employers from terminating an employee be-

cause of pregnancy and requires them to “grant the

employee a reasonable leave of absence for such preg-

nancy” (Mont. Code Ann. § 39-7-203 (1983) ).

Appellant’s Montana stores operate under a pub-

lished employment policy that provides, inter alia,

(1)

2

that no employee is entitled to sick leave or to a leave

of absence until that employee has worked for appel-

lant for at least one year. This policy applies to

every employee, male or female, and allows no ex-

ception for any disability.

In August 1979, appellee Tamara Buley began em-

ployment as a part-time sales clerk in appellant’s

Great Falls, Montana, store. Almost immediately,

Buley began to miss work because of illness (J.S.

App. 4b-5b). Wiihin two weeks, Buley discovered

she was pregnant and told her supervisor. ‘Morn-

ing sickness” resulting from her pregnancy inter-

fered with her job performance, and caused repeated

absences. She was accordingly dismissed within four

weeks of beginning employment. Buley protested her

termination in a complaint filed with the Montana

Commissioner of Labor and Industry (the Commis-

sioner), in which she claimed that appellant had vio-

lated the MMLA by discharging her because of preg-

nancy. J.S. App. 5b."

2. Appellant brought suit against the Commis-

sioner and Buley in the United States District Court

for the District of Montana, seeking to enjoin en-

forcement of the MMLA by the Commissioner. The

district court initially issued a temporary restraining

order prohibiting entertainment of Buley’s complaint

but, on expiration of the order, allowed the Commis-

sioner to proceed. J.S. App. 5b.

On October 3, 1980, the Commissioner awarded

Buley backpay, ruling that appellant had violated the

‘It is not clear from the record whether Buley was dis-

charged because of her pregnancy per se or because she was

performing her work unsatisfactorily as a result of her preg-

nancy. It also is not clear whether the Commissioner or any

court has made a finding on that issue.

3

MMLA by dismissing her. The Commissioner also

ruled that the MMLA did not violate the Equal Pro-

tection Clause of the Fourteenth Amendment of the

United States Constitution or Title VII of the Civil

Rights Act of 1964 (the Act), 42 U.S.C. 2000e et seq.

(J.S. App. 1d-26d).

The federal district court subsequently concurred

in the Commissioner’s conclusions (J.S. App. 5b; 515

F. Supp. 1264). On appeal, however, the Ninth Cir-

cuit declined to reach the merits and vacated the dis-

trict court’s judgment for want of jurisdiction. 685

F.2d 1088 (1982). The Court reasoned that appel-

lant’s federal claims were simply defenses to Buley’s

state claim, and thus did not provide an independent

basis for federal jurisdiction (id. at 1090).

3. Appellant petitioned in state court for review

of the Commissioner’s decision. On February 8, 1984,

the state district court reversed the Commissioner’s

order, holding that the MMLA violates the Suprem-

acy Clause (Art. VI, Cl. 2) because it is inconsistent

with Title VII, as amended by the Pregnancy Dis-

crimination Act of 1978 (PDA), Pub. L. No. 95-555,

92 Stat. 2076 et seg. (J.S. App. 1e-4c). The Com-

missioner and Buley appealed that decision to the

Montana Supreme Court.

The Montana Supreme Court reversed (J.S. App.

1b-27b). The court ruled that the MMLA does not

conflict with Title VII, as amended by the PDA, be-

cause the “policy and purpose of the MMLA is to

protect equal job opportunities for women as com-

pared to others by removing a female disability job

risk not faced by men and non-pregnant females”

(J.S. App. 4b). Assuming that appellant’s no-leave

policy has a disparate impact on women and violates

Title VII for this reason (J.S. App. 20b), the court

4

agreed with the federal district court (515 F. Supp.

at 1266) that the MMLA’s requirement for special

treatment of the pregnant “places men and women

on more equal terms” and therefore satisfies Title

VII (J.S. App. 24b). Thus, the Montana Supreme

Court ruled that the MMLA is consistent with the

PDA precisely because it provides special treatment

for disabilities associated with pregnancy.

DISCUSSION

This case raises a difficult conflict between two sets

of broad and significant concerns: on the one hand,

there is the nondiscrimination principle, in particu-

lar as it applies in the employment area to open to

all persons the full range of economic opportunities;

on the other hand, there is the recognition of the

traditional role of the states in promoting family life,

particularly in protecting maternal and infant health.

The United States responds to the Court’s invitation

against the background of these concerns, which are

shared by Congress, whose intent ultimately it is our

duty to discern.

We conclude that Congress in the PDA adopted a

form of words that clearly committed it to the non-

discrimination principle, mandating that “women af-

fected by pregnancy [or] childbirth * * * shall be

treated the same for all employment-related pur-

poses * * * as other persons not so affected but sim-

ilar in their ability or inability to work * * *” (42

U.S.C. 2000e(k)). But Montana has regulated in

such a way that if employers complied without more,

they would indeed be discriminating on grounds of

pregnancy, by favoring, not disadvantaging, the sub-

ject class. If federal law were silent, state legislation

so favoring this class would, in our view, plainly pass

5

constitutional muster. Because such favoring legis-

lation is not permitted by Title VII, however, the

decision of the Supreme Court of Montana cannot

stand.

1. In General Electric Co. v. Gilbert, 429 U.S. 125

(1976), this Court considered the legality of an em-

ployer’s disability benefit plan that excluded disabili-

ties arising from pregnancy. Relying on Geduldig v.

Aiello, 417 U.S. 484 (1974), which rejected an at-

tack on a similar program on constitutional grounds,

the Court held that the G.E. plan did not violate

Title VII. “Since it is a finding of sex-based dis-

crimination that must trigger * * * the finding of an

unlawful employment practice under § 703(a) (1),”

the Court held that “Geduldig is precisely in point in

its holding that an exclusion of pregnancy from a

disability-benefits plan providing general coverage is

not a gender-based discrimination at all” (429 U.S.

at 136).

In response to the Gilbert ruling, Congress enacted

the PDA, which amended Section 701 of Title VII.

The first clause of the new subsection made clear

that Title VII’s prohibition of discrimination “ ‘be-

cause of sex’” or “‘on the basis of sex’” was in-

tended to include discrimination “because of or 6a

the basis of pregnancy, childbirth, or related medical

conditions” (42 U.S.C. 2000e(k) ). The second clause

declared that (emphasis added) :

[W]Jomen affected by pregnancy, childbirth, or

related medical conditions shall be treated the

same for all employment-related purposes, in-

cluding receipt of benefits under fringe benefit

programs, as other persons not so affected but

similar in their ability or inability to work * * *.

6

The language of Title VII, as amended by the

PDA, is thus clear and unqualified in its sweep: it is

as ringing an affirmation of the nondiscrimination

principle as could be imagined. Here, as in Maine v.

Thiboutot, 448 U.S. 1, 8 (1980) (footnote omitted) :

Congress was aware of what it was doing, and

the legislative history does not demonstrate that

the plain language was not intended. [Appel-

lees’] arguments amount to the claim that had

Congress been more careful, and had it fully

thought out the relationship [between state and

federal laws], it might have acted differently.

That argument, however, can best be addressed

to Congress * * *.

See Harrison v. PPG Industries, Inc., 446 U.S. 578,

589 (1980) (language used by Congress normally

“must be construed to mean exactly what it says’’) ;

United States v. Oregon, 366 U.S. 648, 648 (1961) ;

Packard Motor Car Co. v. NLRB, 330 U.S. 485, 492

(1947); Gemsco v. Walling, 324 U.S. 244, 260

(1945).

Although “it would be a strange canon of statu-

tory construction that would require Congress to

state in committee reports or elsewhere in its delib-

erations that which is obvious on the face of a stat-

ute” (Harrison v. PPG Industries, Inc., 446 U.S. at

592), here the legislative history of the PDA is fully

consistent with the broad language Congress em-

ployed. The House Report (H.R. Rep. 95-948, 95th

Cong., 2d Sess. 4 (1978) ), for example, emphasized

that the legislation would require equal rather than

preferential treatment of pregnant employees:

This legislation would clearly establish that

the prohibition against sex discrimination in

Title VII of the Civil Rights Act of 1964 in-

7

cludes a prohibition against employment-related

discrimination on the basis of pregnancy, child-

birth, or related medical conditions. * * * -

It must be emphasized that this legislation,

operating as part of Title VII, prohibits only dis-

criminatory treatment. Therefore, it does not

require employers to treat pregnant employees in

any particular manner with respect to hiring,

permitting them to continue working, providing

sick leave, furnishing medical and hospital bene-

fits, providing disability benefits, or any other

matter. [The PDA] in no way requires the in-

stitution of any new programs where none cur-

rently exist. The bill would simply require that

pregnant women be treated the same as other

employees on the basis of their ability or in-

ability to work.

See also id. at 3, 5, 6. The Senate Report reflects the

same intent (S. Rep. 95-331, 95th Cong., 1st Sess. 4

(1977) ):

[T]he bill, because it would operate as part of

title VII, prohibits only discriminatory treat-

ment. Therefore, the bill does net require em-

ployers to treat pregnant women in any partic-

ular manner with respect to hiring, permitting

them to continue working, providing sick leave,

furnishing medical and hospital benefits, provid-

ing disability benefits, or any other matter. The

bill would simply require that pregnant women

be treated the same as other employees on the

basis of their ability or inability to work.

The great bulk of the floor statements speak in

similarly unqualified terms.’ Although the context

2 For example, when the PDA was being debated on the

Senate floor, Senator Brooke stated: “I would emphasize

8

of these pronouncements and of the legislative effort

as a whole was to eliminate pregnancy as an occasion

for disadvantaging discrimination, and the question

of prohibiting advantaging discrimination was not

directly considered, Congress nonetheless announced

a general principle outlawing any difference in

treatment, for any employment-related purpose, on

grounds of pregnancy. Absent some clear indication

in the legislative history to the contrary (and we

have found none),* it is that principle which should

be applied according to its terms. See Newport News

Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669,

681 (1983) (the PDA was “intended to protect all

individuals from sex discrimination in employment—

including pregnant women workers”) (emphasis in

original).

2.a. In determining whether a federal law pre-

empts a state statute, and thus renders it invalid

under the Supremacy Clause (Art. VI, Cl. 2), a

court’s task is to ascertain Congress’s intent in en-

most strongly that S. 995 in no way provides special dis-

ability benefits for working women. They have not de-

manded, nor asked, for such benefits. They have asked only

to be treated with fairness, to be accorded the same employ-

ment rights as men” (123 Cong. Ree. 29664 (1977) ). See also

123 Cong. Rec. 7541 (1977) (remarks of Senator Mathias) ;

123 Cong. Rec. 29659 (1977) (remarks of Senator Williams) ;

123 Cong. Rec. 29661 (1977) (remarks of Senator Biden) ;

123 Cong. Rec. 29663 (1977) (remarks of Senator Cranston).

* The favorable references to “[state] laws which specifi-

cally refer to pregnancy” (S. Rep. 95-331, 95th Cong., Ist

Sess. 3 (1977)) and particularly to the Montana statute as

an example of such a law (H.R. Rep. 95-948, 95th Cong., 2d

Sess. 11 (1978)) do not demonstrate that Congress was

aware of the terms of these statutes, still less that Congress

had determined that they were consistent with the PDA.

9

acting the federal statute at issue. Shaw v. Delta

Air Lines, Inc., 463 U.S. 85, 95 (1983). ‘“Pre-emp-

tion may be either express or implied, and ‘is com-

pelled whether Congress’ command is explicitly stated

in the statute’s language or implicitly contained in

its structure and purpose,’ ” Fidelity Federal Savings

& Loan Ass’n v. De La Cuesta, 458 U.S. 141, 152-158

(1982), quoting Jones v. Rath Packing Co., 480 U.S.

519, 525 (1977). In the absence of express congres-

sional intent to occupy a field, state legislation cannot

stand when it is impossible to comply with both state

and federal law, see Florida Lime & Avocado Grow-

ers, Inc. v. Paul, 373 U.S. 182, 142-148 (1968), or

when state law frustrates accomplishment of the full

purposes of Congress. See Capital Cities Cable, Inc.

v. Crisp, No. 82-1795 (June 18, 1984), slip op. 5-6;

Hines v. Davidowitz, 312 U.S. 52, 67-68 (1941).

The Civil Rights Act of 1964 includes specific pro-

visions regarding its preemptive effect on state legis-

lation. Section 1104 of the Act, 42 U.S.C. 2000h-4

provides:

Nothing contained in any title of this Act shall

be construed as indicating an intent on the part

of Congress to occupy the field in which any such

title operates to the exclusion of State laws on

the same subject matter, nor shall any provision

of this Act be construed as invalidating any pro-

vision of State law unless such provision is in-

consistent with any of the purposes of this Act,

or any provisions thereof.

In addition, Section 708 of the Act, 42 U.S.C. 2000e-7

provides:

Nothing in this subchapter shall be deemed to ex-

empt or relieve any person from any liability,

10

duty, penalty, or punishment provided by any

present or future law of any State or political

subdivision of a State, other than any such law

which purports to require or permit the doing

of any act which would be an unlawful employ-

ment practice under this subchapter.

In light of the purposes of the PDA, discussed

above, and this clear statement of preemptive intent,

we conclude that the Montana statute must be invali-

dated. The MMLA announces the policy of the State

of Montana that an employer must grant benefits to

pregnant women that it need not grant to other em-

ployees. An employer that abides by that state policy

would run afoul of the requirement imposed by Title

VII, as amended by the PDA, that pregnant women

“be treated the same” as other persons not so affected

“for all employment-related purposes” (42 U.S.C.

2000e(k)). Thus, Montana law is “inconsistent

with” one of the purposes of Title VII and “re-

quire[s] or permit[s] the doing of an[] act which

would be an unlawful employment practice under”

Title VII.

We do not believe that this conflict between state

and federal law may be eliminated by construing the

MMLA to require employers within the State to ex-

tend the benefits mandated for pregnant women to all

members of the workforce. To be sure, such a con-

struction of state law would allow an employer to

comply with both the MMLA and Title VII. But it

would be most inappropriate for a federal court to

save a state statute by mandating, in the name of

Title VII, a general program of unpaid disability

leave for all employees, when there is no indication

that the State intended to impose such a burden on

its employers. See Heckler v. Mathews, No. 82-1050

11

(Mar. 5, 1984), slip op. 9 n.5. If Montana’s family

protective purposes are to be served by a radically

more extensive scheme, the courts or legislature of

the State should make that judgment. Indeed, the

Montana Supreme Court had the opportunity to in-

terpret its statute in this way and declined to do so,

referring the question to the state legislature for con-

sideration (J.S. App. 26b).

Given this authoritative state court construction of

the MMLA, this Court should invalidate the Montana

statute under the Supremacy Clause because it re-

quires in terms what Congress has forbidden. On re-

mand, the Montana court may then consider whether,

in view of this Court’s construction of Title VII, the

MMLA should be interpreted so as to generalize its

benefits and thus to bring the state statute into con-

formance with federal law. See Wengler v. Druggists

Mutual Ins. Co., 446 U.S. 142, 152-153 (1980)

(‘‘[b]ecause state legislation is at issue, and because

a remedial outcome consonant with the state legisla-

ture’s overall purpose is preferable, we believe that

state judges are better positioned to choose an appro-

priate method of remedying the constitutional viola-

tion”). But that is a decision that should not be

aiticipated here.*

* To solve the discrepancy between state law and Title VII

by requiring employers in Montana to extend-MMLA benefits

to all employees as a matter of federal law—rather than pur-

suant to a possible later reconsideration by the State of its

own policies—might well be inconsistent with the clearly ex-

pressed intent of Congress in enacting the PDA. Congress

repeatedly emphasized that it intended that employers be

free to provide any level of benefits they wished—or none at

all—so long as they did not use pregnancy as a criterion for

allocating those benefits. See, e.g., S. Rep. 95-331, supra, at

12

b. In addition to its argument based on the Su-

premacy Clause, appellant claims that, by requiring

special benefits for pregnant women, the MMLA vio-

lates the Equal Protection Clause of the Fourteenth

Amendment (J.S. 17-19). The Court need not reach

the constitutional question in this case, because

the MMLA is inconsistent with the PDA. In any

event, Geduldig v. Aiello, 417 U.S. 484 (1974), fore-

closes appellant’s constitutional claim. Geduldig held

that state classifications based on pregnancy are not

gender classifications under the Equal Protection

Clause. That ruling is dispositive here. It cannot be

contended that the State lacks a rational basis for

singling out pregnant women for special protections.

See Harris v. McRae, 448 U.S. 297, 325 (1980).

3. For these reasons, we believe that appellants

have presented a substantial federal question that

warrants the Court’s review. We note, however, that

this case contains certain complexities and ambigui-

ties that may make it a less convenient vehicle for

exploring this issue than California Federal Savings

& Loan Ass’n v. Guerra (Cal Fed), petition for cert.

pending, No. 85-494.

Cal Fed was decided on cross motions for summary

judgment on the basis of stipulated facts. In that

case, it was stipulated that the employer grants un-

paid disability leave of up to six months to all em-

ployees who have completed a three-month probation-

ary period, but reserves the right to discharge the

4; H.R. Rep. 95-948, supra, at 5: 123 Cong. Rec. 29664 (1977)

(remarks of Senator Biden) ; id. at 7541 (remarks of Senator

Brooke). To reconcile the PDA with the MMLA, therefore,

it would be necessary to interpret the PDA as requiring in

this context exactly what Congress deliberately eschewed,

i.e., extension of benefits by a nondiscriminating employer.

13

employee if no suitable position is available when the

employee recovers from the disability. The State of

California interprets this policy as inconsistent with

Cal. Gov’t Code § 12945(b) (2) (West 1980), which

requires reinstatement of employees after maternity

leave unless the employer shows a business necessity

for its refusal to do so. 85-494 Pet. App. E6-E12.

In Cal Fed, the court of appeals expressly declined

to rely on any disparate impact that the empleyer’s

policy might have on pregnant women (85-494

_ Pet. App. A6-A7); there is, accordingly, no sugges-

tion in the Cal Fed opinion that the employer’s policy

violated Title VII as well as the state statute, as there

is in this case (see J.S. App. 3b, 18b-20b). Moreover,

in the instant case, there is the possibility that ap-

pellant engaged in disparate treatment of Buley. It

is not entirely clear from the opinion or the record

whether she was discharged because of her pregnancy

per se or because she was performing her work un-

satisfactorily (compare J.S. App. 15b, 18b with 16b-

17b). If she were dismissed simply because she was

pregnant, appellant would have violated both state

and federal law, and Buley would be entitled to relief

without regard to the validity of the MMLA. Conduct

that violates both federal and state law provides a

poor basis for a Supremacy Clause challenge.’

5 An additional complication in this case is the fact that it

arose within one year of enactment of the PDA and therefore

might be subject to the PDA’s prohibition against reducing

benefits to any employee. See ACLU Am. Br. 33-45. We.

disagree with the ACLU’s submission, because Section 3 of

‘ the PDA (92 Stat. 2076-2077) does not apply where, as here,

an employer was not providing any benefits on the effective

date of the Act. See 123 Cong. Rec. 10581 (1977) (remarks

of Rep. Hawkins). See also S. Rep. 95-331, supra, at 8; H.R.

Rep. 95-948, supra, at 154; 123 Cong. Rec. 75411 (1977) (re-

14

To be sure, this case has certain attractive fea-

tures not present in Cal Fed. Principal among. these

is the fact that the case comes from the Montana Su-

preme Court, which has provided an authoritative

interpretation of the state statute. In these circum-

stances, the Court may wish to note probable juris-

diction in this case, grant certiorari in Cal Fed, and

either hear the cases in tandem or consolidate them

for purposes of oral argument.

CONCLUSION

Probable jurisdiction should be noted, and the case

should be considered with California Federal Savings

& Loan Ass’n v. Guerra, No. 85-494.

Respectfully submitted.

CHARLES FRIED

Solicitor General

WM. BRADFORD REYNOLDS

Assistant Attorney General

BRIAN K. LANDSBERG

DAVID K. FLYNN

Attorneys

NOVEMBER 1985

marks of Senator Brooke). Nevertheless, Cal Fed does not

contain this complication.

Ww U. S. GOVERNMENT PRINTING OFFICE; 1985 491507 20066