Amicus Curiae Brief — Dillon v. Potomac Hospital Corp.

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OCT 8 198

IN THE

JOSEPH F. SPANIOL, JR.

SUPREME COURT OF THE UNITED S

ee a Am om 8

OCTOBER TERM, 1985 ~

No. 85-388

JOSEPHINE A. DILLON, Committee of

HILDA NADINE AMIDON, a legally

incompetent person,

Petitioner,

Vv.

POTOMAC HOSPITAL CORPORATION,

Respondent.

AMICUS CURIAE

MOTION AND BRIEF IN SUPPORT OF

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF VIRGINIA

Robert R. Hatten* Richard S. Glasser

Patten, Wornom & Watkins Glasser & Glasser

739 Thimble Shoals Boulevard 504 Plaza One

Newport News, VA 23606 Norfolk, VA 23510

Counsel for Amicus Curiae Petitioners

*Counsel of Record

BEST AVAILABLE COPY &

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1985

No.

JOSEPHINE A. DILLON, Committee of

HILDA NADINE AMIDON, a legally

incompetent person,

Petitioner,

¥.

POTOMAC HOSPITAL CORPORATION,

Respondent.

MOTION FOR LEAVE TO FILE

AMICUS CURIAE BRIEF IN SUPPORT OF

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF VIRGINIA

Now come 371 individuals (See Appendix), by

counsel, and pursuant to Rule 36.1 of the Rules of

the Supreme Court of the United States, would respect-

fully request leave of this Honorable Court to

file an amicus curiae brief in support of the Peti-

tion for a Writ of Certiorari to the Supreme Court of

Virginia in the above-styled matter. In support of

this motion, the amicus curiae petitioners would

respectfully show the following:

l. Your Petitioners are plaintiffs in asbestos

products liability litigation in the United States

District Court for the Eastern District of Virginia

wherein multiple asbestos products manufacturers are

alleged to be joint tortfeasors whose defective

products are alleged to have caused the plaintiffs to

contract permanently disabling and/or fatal diseases

of asbestosis, lung cancer, and mesothelioma.

y 3 Each Plaintiff has. partially settled his

claim against one or more of those asbestos manufac-

turers, pursuant to the presumed validity and consti-

tutionality of Virginia’s Partial Settlement Statute,

Sec. 8.01-35.1 of the Virginia Code.

3. Multiple non-settling Defendants remain in

each Plaintiff’s personal injury or wrongful death

case.

4. Virginia Code Sec. 8.01-35.1 was enacted by

the Virginia General Assembly in 1979 to permit

partial settlements in complex multi-party tort

litigation and to abolish the anachronistic common law

rule that settlement with one joint tortfeasor

released all non-settling joint tortfeasors.

5. The effect of a covenant not to sue pursuant

to the Virginia Statute is that it discharges the

tortfeasor to whom it is given from all liability for

contribution from any other tortfeasor.

6. In 1982 the statute was expressly amended by

the Virginia Generali Assembly to make it apply to all

pending causes of action, irrespective of when the

cause of action accrued. (Sec. 8.01-35.1D, VA. CODE

ANN.)

a: For five years after its enactment, numerous

State and Federal courts, law review commentators,

and the Virginia Attorney General opined that this

Statute was a legitimate and constitutional exercise

of legislative prerogative because it was "remedial"

and did not adversely affect any "vested rights."

8. In Dillon v. Potomac Hospital Corporation,

229 Va. , 329 S.E. 41 (1985), the Virginia Supreme

Court found that “inchoate causes of action for

contribution" between joint tortfeasors arise at the

time that the joint tortfeasors committed their

negligent acts; that although this inchoate cause of

action for contribution is not a "vested right," it

is nevertheless a "substantive right" that could not

be retroactively impaired without violation of the

constitutional protection of "due _ process." The

Virginia Court then reversed a jury verdict against

the Potomac Hospital for medical malpractice that

occurred in 1977 because in 1983 the Plaintiff (in

reliance upon Sec. 8.01-35.1D) had partially settled

with several joint tortfeasors.

9. As in Dillon, supra, the negligent acts of

the Defendants in your Petitioners’ asbestos products

liability actions occurred prior to the enactment of

Sec. 8.01-35.1 of the Virginia Code. The non-settling

Defendants in these cases, therefore, contend that

your Petitioners’ cases should be dismissed pursuant

to the common law rule that release of one joint

tortfeasor releases all mnon-settling joint tort-

feasors.

10. Application of Dillon’s unique, unprece-

dented, and erroneous interpretation of “due process"

to your Petitioners, all of whose partial settlements

were also made after the enactment of Sec. 8.01-35.1D

of the Virginia Code, would have at least three far-

reaching and tragic effects:

First, it would result in the unjust and

unanticipated dismissal of hundreds of lawsuits

against non-settling Defendants who would receive a

windfall for their recaicitrance.

Secondly, it will effectively foreclose any

reasonable opportunity for hundreds of other asbestos

victims--all of whom have cases pending in the United

States District Court pursuant to diversity

jurisdiction--to settle their claims in the future,

thereby forcing unnecessary, expensive and_ time-

consuming litigation upon the Federal Courts as well

as the parties.

Thirdly, it will eliminate the ability of

the Virginia General Assembly, and possibly other

states, to pass remedial legislation on a variety of

social, economic, judicial, or environmental problems

in which affected parties have “inchoate” or "substan-

tive" but not "vested" rights.

Counsel for the Petitioner, Josephine A. Dillon,

consented to the filing of this Motion for Leave to

File Amicus Curiae Brief in Support of Petition for a

Writ of Certiorari to the Supreme Court of Virginia,

but the attorneys for the Respondent, Potomac Hospital

Corporation, have refused to consent to the filing of

a brief by your amicus curiae Petitioners.

WHEREFORE, your Petitioners hereby request leave

to file an amicus curiae brief in support of the

Petitioner, Josephine A. Dillon, Committee of Hilda

Nadine Amidon, to the opinion of the Virginia Supreme

Court in Dillon v. Potomac Hospital, supra.

Respectfully submitted,

By Lite. —

Obert R. Hatten

Attorney for Amicus Curiae

Petitioners

Attorneys for Amicus Curiae

Petitioners:

Robert R. Hatten, Esq.

Patten, Wornom & Watkins

739 Thimble Shoals Boulevard

Suite 105

Newport News, VA 23606

(804) 873-1881

Richard S. Glasser, Esq.

Glasser & Glasser

504 Plaza One

Norfolk, VA 23510

(804) 625-6787

CERTIFICATE

I hereby certify that a true copy of the foregoing

Motion for Leave to File Amicus Curiae Brief in

Support of Petition for a Writ of Certiorari to the

Supreme Court of Virginia was mailed by first-class

mail, postage prepaid on the 9th day of October, 1985,

to the following persons: Frank J. Ceresi, Esq., 2300

South 9th Street, Suite 112, Arlington, VA 22204;

Robert Loftus, Esq., Miles & Stockbridge, 4069 Chain

Bridge Road, Fairfax, VA 22030; and The Hon.

William G. Broaddus, Acting Attorney General, 101

N. 8th Street, Richmond, VA 23219.

~Robert R. Hatten

TABLE OF CONTENTS

pp se gy ok ys re ar ee ar il

INTEREST OF THE AMICUS CURIAE

PE Os ka eee ee 6 oe te ae 8s l

SUMMARY OF THE ARGUMENT ........0.000. 3

ARGUMENT

"Inchoate causes of action” are not

entitled to due process protection

from expressly retroactive state laws .. 4

If the Dillon opinion is correct, it

has established a new Constitutional

principle which was not in existence

at the time that the Petitioners relied

upon the presumed validity of Sec.

8.01-35.1D of the Virginia Code; conse-

quently, this new Constitutional

standard should be applied prospectively

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TABLE OF AUTHORITIES

Cases: Page

ARO Manufacturing Co. vy. Convertible Top

Replacement, 377 U.S. 476 (1964)... ... 6

Bain v. Boykin, 180 Va. 259 (1942) ....... 10

Barwick vy. Celotex Corp., 736 F.2d 946 (4th

IE wk kt ke 8

Brown Committee v. Western State, 110 Va. 321, 66

Eg Gg lk wk kw 10

Carickhoff v. Badger Northland, Inc., 562 F.

Supp. 160, 165 (W.D. Va. 1983) ...... 8

Carl v. Bryant Air Conditioning Company, 331

EE 10

Chevron Oil Co. v. Huson, 464 US. 97 (1971)

SE 13

14, 16

Dillon v. Potomac Hospital Corp., Memo. Op.

EE 13

Dillon yv. Potomac Hospital Corporation, 229

va. Saeeaueee Se thoes)... tw 2

noe, oe, Bi, 13, 15, 16

Duke Power Co. vy. Carolina Environmental

Study Group, Inc., 438 U.S. 59, 88 n.32

lk 7

‘

ili

Esco Elevator Company, Inc. v. Barbara Dunn,

(Circuit Court for the City of Richmond,

Virginia, December 1980, Rec. No.

810560) (Petition for Appeal denied

3/12/82, Petition for Rehearing denied

I 1S a a Oe ea ee 8 Sk apt ee

Hayman y. Patio Products, Inc., 226 Va. 482

(1984). Tee See ae 13, 6

Humble Oil v. Copley, 213 Va. 449 (1972) .... 10

In re Twin Parks Limited Partnership, 720 F.2d

1374, 1376 (4th Cir. 1983), cert. denied, 104

EE ag sae na eee toe ca ae

Lydia Cole, Executrix v. Raymark Industries, inc.,

(unreported)(E.D. Va. 1984) ..... are

Northern Pipeline Construction Co. v.

Marathon Pipe Line Co., 102 Sup. Ct. 858

DR ae aera toe Se a ee

Pension Benefit Guaranty Corp. v. R. A. Gary

& Co., US. 104 Sup. Ct. 2709

(1984). Sirehee ker tee leant tet ea 4

Shiflet vy. Eller, 228 Va. 115, 319 S.E.2d 750

eS ee ee ee ee eae Ce

Statzer v. King Kutter Corp., 550 F.2d 1062,

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Town of Danville v. Pace, 25 GRATT 1 (1874). . .10

Usery yv. Turner Elkhorn Mining Corp., 428

U.S. 1 (1976). a eee eae ees Te 4

United States v. Johnson, 102 Sup. Ct. 2579,

eee ee Se a es Gee Varden et

United States v. Locke, US. 105 Sup.

TE. «elie stele 038 4

Zenith Radio Corp. vy. Hazeltine Research,

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Statutes:

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eee. SUI-SS.1A.1 ..... “PS re nee 5

Sec. 8.01-35.1A.2 VA. CODE ANN ....... 5

Sec. 8.01-35.1D VA. CODE ANN. .... 2

3, 5, 6, 8, 9, 15

Other Authorities:

Opinion of Attorney General of Virginia (May 1979)

eae ee bk me dew PE ee a ee

"Release of Joint Tortfeasors--Virginia Code

Section 8.01-35.1 and its Retroactive

« pplication," U. Rich. L. Rev. Vol.

ie re aT ge a ee

"Retrospectivity and Retroactivity of Civil

Legislation Reconsidered," by Gregory J.

DeMars, Ohio N.U.L. Rev., Vol. 10:253-

GS Sg ks oe wf es err a ere,

"Ten Years of Non-Retroactivity: A Critique

and a Proposal," by Francis X. Beytagh,

Va. L. Rev. Vol. 61:1557-1625 (1975). . . . 14

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"The Covenant Not to Sue: Virginia’s Effort

to Bury the Common Law Rule Regarding

the Release of Joint Tortfeasors", Vol.

14 U. Rich. L.R. 809, 829-30 (1980) . .

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IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1985

No. 85-388

JOSEPHINE A. DILLON, Committee of

HILDA NADINE AMIDON, a legally

incompetent person,

Petitioner,

POTOMAC HOSPITAL CORPORATION,

Respondent.

‘MICUS CURIAE BRIEF IN SUPPORT OF

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF VIRGINIA

Your amicus curiae Petitioners adopt the Petition

for Writ of Certiorari to the Supreme Court of

Virginia filed by Josephine A. Dillon. This amicus

curiae brief is submitted in support of and in

addition to the reasons heretofore set forth by the

Petitioner for granting the writ.

INTEREST OF THE AMICUS CURIAE PETIT:ONERS

Your amicus curiae Petitioners are 371 individuals

who are plaintiffs in asbestos products liability

litigation in the United States District Court for

the Eastern District of Virginia wherein multiple

asbestos products manufacturers are alleged to be

joint tortfeasors whose defective products. are

alleged to have caused the plaintiffs to contract

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permanently disabling and/or fatal diseases of

asbestosis, lung cancer, and mesothelioma.

Each amicus curiae Petitioner has _ partially

settled his claim against one or more of _ those

asbestos manufacturers, pursuant to the presumed

validity and OConstitutionality of Virginia’s Joint

Tortfeasor Release Act, Sec. 8.01-35.1 of the Virginia

Code.

This statute was enacted by the Virginia General

Assembly in 1979 to permit partial settlements in

complex multi-party tort litigation and to abolish

the anachronistic common law rule that settlement

with one joint tortfeasor released all non-settling

joint tortfeasors. In 1982 the statute was expressly

amended to make it apply to all ending causes of

action irrespective of when the cause of action

accrued. Sec. 8.01-35.1, VA. CODE ANN.

In Dillon v. Potomac Hospital Corporation, 229

Va. , 329 S.E.2d 41 (1985), the Virginia Supreme

Court found that "inchoate causes of action for

contribution" between joint tortfeasors arise at the

time that the joint tortfeasors committed their

negligent acts; that although this inchoate cause of

action for contribution is not a “vested right," it

is nevertheless a "substantive right" that could not

be retroactively impaired without violation of the

Constitutional protection of “due _ process." The

Court therefore held that Sec. 8.01-35.1D was uncon-

stitutional.

As in Dillon, supra, the negligent acts of the

Defendants in your Petitioners’ asbestos products

liability actions occurred prior to the enactment of

Sec. 8.0i-35.1 of the Virginia Code. The non-settiing

Defendants in these cases, therefore, contend that

your Petitioners’ cases should be dismissed pursuant

to the common law rule that release of one joint

MN ED Nate Cael at

tortfeasor releases all non-settling joint tort-

feasors.

The interpretation of due process as set forth in

the Dillon case, supra, is unprecedented and erroneous

for the reasons that are hereinafter set forth.

Unless this opinion of the Virginia Supreme Court is

overruled, it will result in the unjust and unantici-

pated dismissal of hundreds of lawsuits against non-

settling Defendants who will receive a windfall for

their recalcitrance. Further, unless Dillon is

overruled, it will effectively foreclose any reason-

able opportunity for hundreds of other asbestos

victims, all of whom have cases pending in the United

States District Court to settle their claims in the

future, thereby forcing umnecessary expensive and

time-consuming litigation upon the Federal Courts as

well as the parties.

SUMMARY OF THE ARGUMENT

In Dillon yv. Potomac Hospital Corp., supra, the

Virginia Supreme Court has found that Sec. 8.01-35.1D

of the Virginia Code is unconstitutional as applied to

inchoate causes of action for contribution which pre-

existed the enactment of the statute. This opinion

erroneously fails to apply the “rational basis" test

as set forth in previous decisions of this Court for

evaluation of whether or not retroactive state laws

violate the due process clause of the Fourteenth

Amendment of the United States Constitution. Should

the Virginia Supreme Court be correct in finding Sec.

8.01-35.1D to be unconstitutional, its ruling should

be applied prospectively only so as to avoid severe

prejudice to those parties who relied upon the

presumed Constitutionality of the statute.

i tt lt

ARGUMENT

1. "Inchoate causes of action" are not

entitled to due process. protection

from expressly retroactive state

laws.

The limits of due process protection against

retroactive statutes has been clearly defined by this

Court in numerous recent decisions. See, Usery y.

Turner Elkhorn Mining Corp., 428 US. 1 (1976),

Pension Benefit Guaranty Corp. v. R. A. Gary & Co.,

US. 104 Sup. Ct. 2709 (1984); and United

States v. Locke, US. 105 Sup. Ct. 1785

(1985). These cases have estabiished a "rational

basis” test for determining whether retroactive

legislation is Constitutionally permissible. In

Usery, supra, Justice Marshall explained:

{[Ljegislative Acts . . . come to the Court

with a presumption of Constitutionality and .

. the burden is on one complaining of a due

process violation to establish that the

legislature has acted in an arbitrary and

irrational way.

[Ljegislation readjusting rights and burdens

is not unlawful solely because it upsets

otherwise settled expectations (citations

omitted). This is true even though the

effect of the legislation is to impose a new

duty or liability based on past acts.

428 US. at 15-16. This holding was reiterated in

Pension Benefit Guaranty Corp., supra, where this

court held that:

Lm |

Provided that the retroactive application of

a statute is supported by a_ legitimate

legislative purpose furthered by _ rational

means, judgments about the wisdom of such

legislation remains within the exclusive

province of the legislative and executive

branches.

The retroactive aspects of legislation

must meet the test of due process ... but

that burden is met simply by showing that the

retroactive application of the legislation is

itself justified by a _ rational legislative

purpose.

104 Sup. Ct. at 2718.

Determination of whether new legislation adversely

affects "vested rights", "substantive rights" or

"inchoate rights" is irrelevant, if the “rational

purpose" test is _ satisfied. See, United States y.

Locke, supra.

In 1979 the Virginia General Assembly abolished

the common law rile that release of one joint tort-

feasor released all other joint tortfeasors. Sec.

8.01-35.1 VA. CODE ANN. This statute provided that

the effect of a release or covenant not to sue is

that "it shall discharge the tortfeasor to whom it is

given from all liability for contribution to any

other tortfeasor." Sec. 8.01-35.1A.2 VA. CODE ANN.

The quid pro quo to the non-settling joint tortfeasor

is a reduction of the jury’s verdict in an amount

equal to the sum paid by the settling tortfeasor.

Sec. 8.01-35.1A.1. In 1982 the Virginia General

Assembly amended this statute to make it expressly

retroactive to all covenants not to sue executed

after July 1, 1979 "regardless of the date the causes

of action affected thereby accrued.” Sec. 8.01-35.1D

VA. CODE ANN.

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The legitimate and rational purpose of Sec. 8.01-

35.1D of the Virginia Code is obvious and compelling:

it encourages voluntary’ settlements in complex

litigation. This objective helps to preserve the time

and financial resources of both the litigants and

Courts. As the Virginia Supreme Court observed in

Hayman vy. Patio Products, Inc., 226 Va. 482 (1984),

We believe the General Assembly intended to

change a rule of law which tended to reward a

recalcitrant tortfeasor at the expense of a

joint tortfeasor who was willing to settle

out of Court. . . . The statute facilitates

prompt settlement, payment and discharge of

paying tortfeasors without releasing those

non-paying joint tortfeasors who prefer to

have their liability determined in litigation,

with its attendant delays.

226 Va. at 487.

The rational purpose accomplished by Sec. 8.01-

35.1D of the Virginia Code in the settlement of

complex tort litigation is also confirmed by the fact

that it is identical to the Federal rule that was

first announced by this Court in ARO Manufacturing

Co. v. Convertible Top Replacement, 377 US. 476

(1964).1 There, Justice Brennan observed that the

common law rule which required release of non-settling

joint tortfeasors as a penalty for partial settlement,

"has been repudiated by statute or decision in many,

if not most, states and by the overwhelming weight of

scholarly authority." 388 U.S. at 501. The Court

then abolished the applicability of the anachronistic

common law rule in Federal tort litigation. In so

doing, the Court followed well-settled case law that

laccord, Zenith Radio Corp. v. Hazeltine Research, Inc., 401

U.S. 321, 348 (1971).

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[a] person has not property, no_ vested

interest, in any rule of the common law.

[The] Constitution does not forbid the

creation of new rights or the abolition of

old omnes recognized by the common law, to

attain a permissible legislative object,

despite the fact that “otherwise _ settled

expectations" may be upset thereby. (cita-

tions omitted)

Duke Power Co. vy. Carolina Environmental Study Group,

Inc., 438 U.S. 59, 88 n.32 (1978).

In Dillon v. Potomac Hospital, supra, the Virginia

Supreme Court held that the retroactive application

of Sec. 8.01-35.1 to “inchoate causes of action for

contribution"? which existed prior to the enactment

of the statute violated due process and was, there-

fore, unconstitutional. This unprecedented decision

fails to mention or discuss the "rational basis" test

or any of the pertinent opinions of this Court which

have heretofore defined the limits of due _ process.

Instead, the Virginia Court relied upon a previous

state decision which held that the 1979 version of

Sec. 8.01-35.1 (which was not expressly retroactive)

could not be implicitly applied retroactively if it

affected pre-existing substantive _ rights. See, Sec.

8.01-35.1 VA. CODE ANN.; Shiflet v. Eller 228 Va.

115, 319 S.E.2d 750 (1984). Shiflet involved a

matter of statutory interpretation, not Constitutional

law, but the opinion had cited with approval a United

States District Court opinion that retroactive

application of Sec. 8.01-35.1 constitutes a "violation

of the non-settling Defendants’ guarantee of due

2The Virginia Court found that an inchoate cause of action

for contribution arises at the time of the jointly negligent

acts, not the time that a _ settlement oor verdict results’ in

payment of a disproportionate share of the liability.

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process under the law of the United States Constitu-

tion." Carickhoff v. Badger Northland, Inc., 562 F.

Supp. 160, 165 (W.D. Va. 1983).5 Unfortunately, the

Carickhoff decision also failed to mention. the

"rational basis" test or any of the pertinent opinions

of this Court which have clearly defined the limits

of due process.

The Virginia Supreme Court’s blind acceptance of

the erroneous interpretation of the due_ process

clause of the Fourteenth Amendment as contained in

the Carickhoff decision has led that Court to an

unjust and unnecessary end. Had the Court applied

the proper. standards, ie. the "rational basis"

test, to determine if retroactive application of Sec.

8.01-35.1D was Constitutional, an entirely different

result would have occurred.

As in Dillon, your amicus curiae Petitioner executed

covenants not to sue in reliance upon the presumed

Constitutionality of Sec. 8.01-35.1D, a statute which

served an obviously rational purpose of expediting

complex litigation. Unless Dilloi is overruled,

there will be at least three tragic cud far-reaching

effects:

First, it will result in the unjust and unantici-

pated dismissal of hundreds of lawsuits against non-

settling Defendants who would receive a windfall for

their recalcitrance.

Secondly, it will effectively foreclose any

reasonable opportunity for hundreds of other asbestos

SThe Carickhoff decision is contrary to a previous opinion

of the Virginia Attorney General, contrary to numerous Virginia

Circuit Court opinions, contrary to numerous law review commen-

taries, and contrary to other United States District Court

opinions. See, authorities infra. at p. 9-12. See _ also,

Barwick v. Celotex Corp., 736 F.2d 946 (4th Cir. 1984).

victims--all of whom have cases pending in the United

States District Court pursuant to diversity

jurisdiction--to settle their claims in the future,

thereby forcing ummecessary, expensive and _ time-

consuming litigation upon the Federal Courts as well

as the parties.

Thirdly, it will eliminate the ability of the

Virginia General Assembly, and possibly other states,

to pass remedial legislation on a variety of social,

economic, judicial, or environmental problems in

which affected parties have "inchoate" or

"substantive" but not "vested" rights.

2. If the Dillon opinion is_ correct,

it has established a new Constitu-

tional principle which was not in

existence at the time that’ the

Petitioners relied upon the presumed

validity of Sec. 8.01-35.1D of the

Virginia Code; consequently, this

new Constitutional standard should

be applied prospectively only.

In Dillon yv. Potomac Hospital Corp., supra. the

Virginia Supreme Court conceded that the inchoate

cause of action for contribution among joint tort-

feasors is not a "vested right"; however, the Court

found that this inchoate cause of action for contribu-

tion was a “substantive right" which could not be

retroactively impaired by new legislation without

violation of due process.

This holding was particularly surprising because

when Sec. 8.01-35.1 of the Code of Virginia was

enacted in 1979, the uniform case law in Virginia

regarding the Constitutionality of retroactive

legislation was that such legislation was Constitu-

tional unless it affected "vested rights." See, Town

of Danville v. Pace, 25 GRATT 1 (1874); Humble Oil v.

Copley, 213 Va. 449 (1972); Brown Committee y.

Pn ee

een

Western State, 110 Va. 321, 66 S.E. 49 (1909); Bain

vy. Boykin, 180 Va. 259 (1942); and Eaton yv. Davis,

176 Va. 330 (1940).4 In each of these previous

decisions of the Supreme Court of Virginia, "substan-

tive rights" of the litigants had been altered by

retroactive legislation which abolished rights. or

duties which existed at the time of the transactions

which formed the basis of the litigation.

Indeed, in Town of Danville vy. Pace, supra, the

Virginia Supreme Court held:

Even though a statute may take away vested

rights by reason of its retrospective opera-

tion, it cannot for that reason merely be

treated as repugnant to any _ provisions

contained in the Constitution of the Un.ted

States.

The next inquiry is as to the Constitution

of Virginia .. . that the legislature has

the constitutional power to pass retrospective

laws, laws affecting vested rights, no one

will deny who is familiar with the jurispru-

dence of the country.

There is no such thing as a vested right to

do wrong.

‘This general rule was also well-settled in most other

states See, generally, "Retrospectivity and Retroactivity of

Civil Legislation Reconsidered,” by Gregory J. DeMars, Ohio

N.U.L. Rev., Vol. 10:253-275 (1983); See, eg. Carl v._ Bryant

Air Conditioning Company, 331 N.W.2d 456 (1982).

25 GRATT at 10-11, 15. This case has never been

overruled and the Virginia Supreme Court failed to

mention it in the Dillon opinion.

The unprecedented character of the Dillon decision

is also illustrated by the previous reaction of the

Virginia Courts, commentators, and public officials

to the Constitutionality of Sec. 8.01-35.1:

In May 1979, the Attorney General of the State of

Virginia was asked to render an opinion as to whether

Sec. 8.01-35.1 was Constitutional. The Attorney

General opined that the statute did not retroactively

impair any vested rights, that it was remedial, and

that it was Constitutional. He also concluded that

the statute would apply “even where the cause of

action arose before July 1, 1979.". See Appendix D to

Petitioner’s Brief.

In 1980 a law review commentator remarked that

"there is no problem with a retroactive application"

of Sec. 8.01-35.1 because any inchoate right of

contribution that may exist prior to the effective

date of the statute “cannot be a vested right." "The

Covenant Not to Sue: Virginia’s Effort to Bury the

Common Law Rule Regarding the Release of Joint

Tortfeasors", Vol. 14 U. Rich. L.R. 809, 829-30

(1980).

Also in 1980 a Virginia Circuit Court ruled that

Sec. 8.01-35.1 could be properly applied to a cause

of action that arose prior to the effective date of

the statute. The Defendants appealed to the Virginia

Supreme Court and alleged as a primary reason for

reversal that the 1979 statute was unconstitutional

because it retroactively impaired the "substantive

rights” of the Defendants. On March 12, 1982, the

Virginia Supreme Court found no reversible error and

denied the Petition for a Writ of Certiorari, thereby

affirming the Circuit Court opinion. Esco Elevator

Company, Inc. v. Barbara Dunn, (Circuit Court for the

f2.

City of Richmond, Virginia, December 1980, Rec. No.

810560) (Petition for Appeal denied 3/12/82, Petition

for Rehearing denied 4/30/82).

In 1982 a United States District Court for the

Western District of Virginia ruled that "the date of

the release," not the "date that the cause of action

arose" determines whether release of one _ joint

tortfeasor releases all. Statzer v. King Kutter

Corp., 550 F.2d 1062, 1065 (W.D. Va. 1982).

In January 1984, the Virginia Supreme Court

expressly approved Sec. 8.01-35.1 of the Virginia

Code and held:

We will not attribute ... a useless gesture

to the General Assembly. We believe the

General Assembly intended to change a rule of

law which tended to reward a recalcitrant

tortfeasor at the expense of a joint tort-

feasor who was willing to settle out of

Court. We believe the legislature’s intent,

as shown by the statutory language, was to

promote the use of a covenant not to sue by

permitting payment thereunder and discharge

of one joint tortfeasor without causing the

covenant to effect the release of the other

joint tortfeasors. Hayman vy. Patio Products,

Inc., supra.

226 Va. at 487. The Court then proceeded to expressly

apply the 1979 statute to a cause of action that

accrued in i577.

In April 1984, the Circuit Court of Prince

William County expressly approved the retroactive

application of Sec. 8.01-35.1 to a cause of action

that accrued in 1977. Dillon v. Potomac Hospital

Corp., Memo. Op. (4/16/84). (Appendix A to Peti-

tioner’s Brief)

Finally, in May 1984, the United States District

Court for the Eastern District of Virginia expressly

approved the application of Sec. 8.01-35.1 to an

asbestos settlement where the Plaintiff’s exposure

had ended in 1970, but the cause of action had not

been discovered until 1980. Lydia Cole, Executrix vy.

Raymark Industries, Inc., (see transcript on Motion

for Summary Judgment dated May 3, 1984).

Your Petitioners have executed approximately

2,000 separate covenants not to sue® with various

asbestos manufacturers for asbestos-induced injuries

and deaths resulting from negligent acts that occurred

prior to the enactment of Sec. 8.01-35.1 of the

Virginia Code. Each of these covenants was executed

after the 1982 amendment to Sec. 8.01-35.1 by which

the Virginia General Assembly made the _ statute

expressly retroactive. Your Petitioners, therefore,

had no notice that the Constitutional standard of due

process as previously established by both this Court

and the Virginia Supreme Court would be retroactively

changed by the surprising and unprecedented decision

of the Virginia Supreme Court in Dillon.

The retroactive application of ODillon’s new

Constitutional standard to your amicus curiae Petiti-

oners will result in extreme and unfair prejudice,

i.c., the dismissal of all of their lawsuits against

all non-settling Defendants. Where such prejudice

exists from the application of a new Constitutional

standard, the Supreme Court of the United States has

found that the Court which declared the new Constitu-

tional standard has a duty to decide whether retro-

active or prospective application of the new standard

is appropriate. See, Chevron Oil Co. v. Huson, 404

51 iterally hundreds of covenants not to sue were expressly

approved by the United States District Court for the Eastern

District of Virginia in wrongful death cases where Virginia law

requires that the court approve any settlement.

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US. 97 (1971); United Siates v. Johnson, 102 Sup.

Ct. 2579, 2587 n.12 (1982); and Northern Pipeline

Construction Co. v. Marathon Pipe Line Co., 102 Sup.

Ct. 858 (1982)® Chevron pointed to three factors

that should control a decision about whether to apply

a new rule only to future cases.

First, "the decision to be applied nonretro-

actively must establish a new principle of law,

either by overruling clear past precedents on which

litigants may have relied, . .. or by deciding an

issue of first impression whose resolution was not

clearly foreshadowed .. ." Id. at 355 (citation

omitted). Second, the Court must consider whether

retroactive application will "further retard" the

operation of the new rule. /d. Finally, the Court

must weigh any "inequity" that would be imposed by

retroactive application. Jd. Applying these factors,

a court may elect one of several options, ranging

from complete retroactivity, to application only to

cases still pending, to a rule of "pure" prospectivity

that "denies the benefits of the new rule even to the

parties before the court.” In re Twin Parks Limited

Partnership, 720 F.2d 1374, 1376 (4th Cir. 1983),

cert. denied, 104 Sup. Ct. 1602 (1984) (quoting

United States v. Johnson, 457 U.S. 537, 544 (1982).

All three of the criteria for prospective applica-

tion oof new Constitutional interpretations as

described in the Chevron case are applicable to the

Petitioners. First, the Constitutional protection

afforded to substantive rights from the _ retroactive

application of laws that has been announced in the

SSee generally, "Ten Years of Non-Retroactivity: A Critique

and a Proposal,” by Francis X. Beytagh, Va. L. Rev. Vol. 61:1557-

1625 (1975).

Dillon decision is a new principle of law whose

resolution was not clearly foreshadowed.’

Secondly, the prospective application of Dillon’s

Constitutional protection of substantive rights from

the retroactive interpretation of statutes will not

retard the operation of the new rule. By determining

that the General Assembly did not have the legislative

authority to retroactively affect substantive rights

of litigants by application of retroactive laws, the

Virginia Court set a legislative standard. It would

not retard the General Assembly from the passage of

unconstitutional legislation to punish litigants who

justifiably rely on the presumed _ Constitutional

validity of laws enacted by the General Assembly.

Indeed, prospectivity will provide practitioners and

litigants with notice of the new standard so that the

severe prejudice of unexpected dismissals can be

avoided.

Finally, the mnon-retroactivity of Dillon’s ruling

will eliminate the severe inequity that would be

created by the application of the new standard to

parties who have justifiably relied upon the presumed

validity of Sec. §8.01-35.1D and previous Virginia

case law. This inequity is obvious and severe, i.e.,

the umexpected dismissal non-settling tortfeasors

whose liability would otherwise have required payment

of compensation to the Petitioners. As between the

litigants, the unconstitutionality of Sec. 8.01-35.1D

is an unexpected ffortuity for the non-settling

Defendants that creates an unfair windfall for the

non-settling Defendants and rewards the non-settling

TSee, "Release of Joint Tortfeasors--Virginia Code Section

8.01-35.1 and its Retroactive Application,” U. Rich. L. Rev. Vol.

18:829-849 (1984); "The Covenant Not to Sue: Virginia’s Effort

to Bury the Common Law Rule Regarding the Release of Joint

Tortfeasors”, U. Rich. L. R. Vol. 14:809 at 830 (1980).

Defendants for recalcitrant attitudes toward settle-

ment.

For the foregoing reasons, it is respectfully

submitted that the three-pronged criteria of Chevron

have been met and that the Virginia Court’s holding

in the Dillon case should be applied prospectively

only.

CONCLUSION

A Writ of Certiorari should be issued to review

the judgment and opinion of the Virginia Supreme

Court.

Respectfully submitted,

By gibicttt hss...

Robert R. Hatten

Attorney for Amicus Curiae

Petitioners

)

Attorneys for Amicus Curiae

Petitioners:

Robert R. Hatten, Esq.

Patten, Wornom & Watkins

739 Thimble Shoals Boulevard

Suite 105

Newport News, VA 23606

(804) 873-1881

Richard S. Glasser, Esq.

Glasser & Glasser

504 Plaza One

Norfolk, VA 23510

(804) 625-6787

CERTIFICATE

I hereby certify that = true copy of the foregoing

Motion for Leave to File Amicus Curiae Brief in

Support of Petition for a Writ of Certiorari to the

Supreme Court of Virginia was mailed by first-class

mail, postage prepaid on the 9th day of October, 1985,

to the following persons: Frank J. Ceresi, Esq., 2300

South 9th Street, Suite 112, Arlington, VA 22204;

Robert Loftus, Esq., Miles & Stockbridge, 4069 Chain

Bridge Road, Fairfax, VA 22030; and The Hon.

William G. Broaddus, Acting Attorney General, 101

N. 8th Street, Richmond, VA 23219.

Bit

~ Robert R. Hatten

APPENDIX

INDIVIDUAL AMICUS CURIAE PETITIONERS

REPRESENTED BY ROBERT R. HATTEN

Virginia Brown, Executrix of the Estate of Wilbur

Brown

Lydia Cole, Executrix of the Estate of William Cole

Carole Thomas, Executrix of the Estate of Bennie

Cunningham :

Thelma Day, Executrix of the Estate of Naaman Day

Elsie Ellis, Executrix of the Estate of Robert Ellis

Laura Farmer, Executrix of the Estate of Melvin

Farmer

Joyce Fleetwood, Executrix of the Estate of John

Fleetwood

Dixie Folds, Executrix of the Estate of Guy Folds

Virginia Gregory, Executrix of the Estate of Richard

Gregory

Bessie Holloway, Executrix of the Estate of Norman

Holloway

Hazel Jamerson, Executrix of the Estate of Berkley

Jamerson

Maydell Kilpatrick, Executrix of the Estate of Thomas

Kilpatrick

Esselle Lambert, Executrix of the Estate of Ben

Lambert

Rodney Llewellyn, Executrix of the Estate of Robert

Llewellyn

Eleanor Patrick, Executrix of the Estate of William

Patrick

Ruby Phillips, Executrix of the Estate of Valdoie

Phillips

Frances Rountree, Executrix of the Estate of Charles

Rountree

Emmet Steveson, Jr.. Executrix of the Estate of Emmet

Stevenson, Sr.

Robert Van Dyke, Jr. Executor of the Estate of

Robert Van Dyke, Sr.

Maude White, Executrix of the Estate of John White

Frances Williams, Executrix of the Estate of George

Williams

Jeanette Zoumplis, Executrix of the Estate of Chris

Zoumplis

Elizabeth Timberlake, Executrix of the Estate of

Waverly Timberlake

Dorothy King, Executrix of the Estate of Thomas King

Esmond Harding, Executrix of the Estate of John

Harding

Sylvia Boykin, Executrix of the Estate of Jeddy

Boykin

Willie Mae Crawley, Executrix of the Estate of Irby

Crawley

Dora Oman, Executrix of the Estate of Shirley Oman

Doris Folk, Executrix of the Estate of John Folk

Lucille Treblic, Executrix of the Estate of John

Treblic

Clara Long, Executrix of the Estate of James N. Long

Eleanor Adams, Executrix of the Estate of Edward

Adams

Areathea Burke, Executrix of the Estate of Johnnie

Burke

Louise Coiner, Executrix of the Estate of William

Coiner

Matilene Shank, Executrix of the Estate of Charles

Shank

Mary Alice Turner, Executrix of the Estate of Richard

Turner

Esther Washington, Executrix of the Estate of Ivory

Washington

Keziabelle Faircloth, Executrix of the Estate of John

Faircloth

Kathryn Furlough, Executrix of the Estate of Isaac

Furlough

Harvey Peck, Jr., Executor of the Estate of Harvey

Peck, Sr.

Mary Strayer, Executrix of the Estate of Harvey Peck,

Sr.

Vennie Davenport, Executrix of the Estate of Gregory

Davenport

Mary Nicholson, Executrix of the Estate of Jerrell

Nicholson

Mary Staton, Executrix of the Estate of Clyde Staton

Jacqueline Haskins, Executrix of the Estate of Verner

Truitt

Joanne Lewis, Executrix of the Estate of Harry Lewis

Lois Montgomery, Executrix of the Estate of James

Montgonery

Florence Estes, Executrix of the Estate of Walter

Estes ;

Mary K. Smith, Executrix of the Estate of Woodrow

Smith

Geraldine Thrower, Executrix of the Estate of Jesse

Thrower

4 Helen Sawyer, Executrix of the Estate of Hubert

Sawyer

joyce Bradley, Executrix of the Estate of John

Bradley

Katie Catron, Executrix of the Estate of Frank Catron

Beatrice Eley, Executrix of the Estate of Francis

Eley

Juanita Gilbert, Executrix of the Estate of Roy

Gilbert

June Cash, Executrix of the Estate of Ronald Cash

Evelyn Stacey, Executrix of the Estate of Milton

: Stacey

| Hazel Watson, Executrix of the Estate of Homer Watson

Nonie White, Executrix of the Estate of Walter J.

White

Joyce Tignor, Executrix of the Estate of Robert

Barlow

Mary Barnette, Executrix of the Estate of Alexander

Barnette

Elsie §. Barnes, Executrix of the Estate of Edwin ££.

Barnes

Jerry Michael Cale, Administratcr of the Estate of

William F. Caie

Irene Coggins, Executrix of the Estate of William H.

Coggins

Mary J. Dennis, Executrix of the Estate of Russell A.

Dennis

Clara M. Deshields, Administratrix of the Estate of

Norman Willoughby Deshields

Yvonne P. Ellington, Administratrix of the Estate of

Wayland C. Ellington

Sarah M. Ferris, Administratrix of the Estate of

James H. Ferris

Guy Campbell, Administrator of the Estate of Joseph

| a Hart

7 Michael L. Hill, Sr., Administrator of the Estate of

1a George M. Hill, Sr.

ie Thelma P. Jones, Administratrix of the Estate of

Elbert W. Jones

Charles Wesley Menn, Administrator of the Estate of

Elizabeth Frances Mann

Lawrence J. Wiser, Administrator of the Estate of

George R. Passaro :

H Gertrude Rideout, Executrix of the Estate of John

Andrew Rideout

: Sarah L. Ross, Administratrix of the Estate of

Stanley Ernest Ross

: Nancy Stack, Administratrix of the Estate of Warren O.

Stack

Mildred W. Taylor, Administratrix of the Estate of

Richard C. Taylor

C. Belle Louthian, Executrix of the Estate of Fafael

Ware

J. James Basgier, Jr., Administrator of the Estate of

Milton M. White

Mary Louis T. Archer, Administratrix of the Estate of

Raymond B. Archer

Carolyn H. Burrow and William A. Bagley, Jr., Co-

Administrators for William A. Bagley, Sr.

Louise Greene Duke, Administrator of the Estate of

John Elton Duke, Jr.

William C. Feamster, III, Administrator of the Estate

of William C. Feamster, Jr.

Kathryn Ann Gravitt, Administratrix d. b. n. of the

Estate of Barksdale E. Gravitt

Pearlene T. Miles, Administratrix of the Estate of

Jesse Miles

jo hiiiaenehiniiee iene

poet woe

Alma Steber Reutlinger, Executrix of the Estate of

Clarence Reutlinger

Doris Coates, Executrix of the Estate of James P.

Coates

Cora Lee Hardy and Stephen C. Hardy, Co-Administrators

of the Estate of Carl C. Hardy, Jr.

Doris F. Isenhower, Administratrix of the Estate of

Max H. Isenhower

Rachel E. Knick, Administratrix of the Estate of

Eari B. Knick

Ida L. Miltier, Executrix of the Estate of Joseph

Miltier

Martha W. Morris, Executrix of the Estate of Rufus

Hamilton Morris III

James R. Revell, Administrator of the Estate of

Charles E. Ravell, Sr.

John C. Lumpkin, Administrator of the Estate of

George H. Riddick

Nancy Cook Robertson, Executrix of the Estate of

James H. Robertson

Ellen Ann Rooney, Executrix of the Estate of Henry

Francis Rooney

Thelma R. Harts, Executrix of the Estate of Cephus

Roscoe

Hattie S. Thornton, Administratrix of the Estate of

Cedric W. Thornton

Marylin C. Tolson, Administratrix of the Estate of

John T. Tolson, Jr.

Louella Vess, Administratrix of the Estate of James A.

Vess

Evelena Wells, Executrix of the Estate of Jessie

Wells

Edith D. White, Executrix of the Estate of Linwood

Erle White, Jr.

Peggy Lawrence, Administratrix of the Estate of

Edward Delaware Lawrence

Betty Hobbs, Executrix of the Estate of William

Staley Hobbs

Linda Ann Oliver, Administratrix of the Estate of

William Lewis

- wean codeine Mian

Esther Bailey, Executrix of

Bailey

Estate of Samuel

Dorothy Coday, Executrix of the Estate of Jack Coday

Sadie V. Cooke, Executrix of the

Cooke

Estate of Walter

Mae Kellis, Executrix of the Estate of Fred F 1s

Ruth Martin, Executrix of the Estate of Elme viartin

Lucille Mixon, Executrix of the Estate of Heniy Mixon

Bessie L. Ryan, Executrix of the Estate of William

Ryan

Louis Bagley

Clyde Baity

Perry Barclift

Robert Barnes

Edgar C. Barrett

Robert H. Bass

Chester Bellamy

Perceil Beverly

John H. Bobbitt

George G. Bosher

Bobby Brady

Horace Brinson

Jesse L. Britton

Clarence C. Brock

Otha B. Brodnax

Frederick Brown

Arthur C. Burris

Henry O. Byrd

James L. Canady

Reginald C. Cannon

William T. Carmines, Jr.

Robert Carter

John L. Charity

William Clark

Hillard Coffie

Ellis R. Colbert

Walter I. Cooper

William Cooper

Benjamin Craddock

Nelson U. Crosby

Alvin Davidson

Jesse O. Davis

Percy O. Davis

Robert Dudley

Wcodrow Duncan

Edward C. Dunn

Jesse C. Dunning

Anthony J. Dusseau

Thomas Elliott

Donahue Ellis

William J. Embler

Jerry Evans

William Evans

David J. Evers

Wallace Fairfield

James Favre

Joseph L. Firth

William Firman

Richard B. Fiora

Charles I. Floyd

Charles Forrester

Hobert L. Furr

Shirley A. Garris

Willie Gibbons

William F. Glazier

Gerald Gorde

John Gould

James Groome

David Guthrie

Lacy Hall

laine

Arthur Croxton

Dallas P. Cutler

Arthur M. Daniel

Elliott Gupton

Orian I. Leonard

Billy Ray Lockard

Woody London

Roscoe D. Loyd

John Luter

James A. Mahady

Major T. Manning

Edward A. Mason

Robert Massengill

Hugh McCain

Walter D. McCloud

Samuel Midyette

Joseph N. Moody

Irving T. Moore

Wilton Moore

James Morant

Jesse V. Myers

James R. Neeley

John F. Newton

Delbert Nicholas

James T. Oman

Hardy Osborne

Ray T. Outland

George C. Overman

Garland C. Parrish

David F. Peele

Bernis Pierce

Dorsey Pittman

Clyde Powell

Clarence Pruitt

Dallas Pruitt

Frank Randolph

James R. Raynor

Hugh V. Reynolds

Margie Thomas

Emory L. Thompson

Fred Thompson

Joseph Haymore

Ralph F. Henderson

Thomas E. Henderson

James H. Hershman

Garland R. Hess

John Gill

Jesse E. Hitt

M. J. Hobgood

James Hogge

Thomas J. Hogge

Maurice Holloway

Wilbur Holt, Sr.

George S. Hopkins

Alexander Howard

Floyd A. Hudgins

Jay P. Huneycutt

Colden Hyman

Linwood Illich

Roy E. Jackson

Jesse E. James

Gaston B. Jamison

Albert Johnson

Colonel D. Jones, Jr.

Herman F. Jones

Wilson W. Jones

Charlie Keatts

Raymond Kerr

Woodrow Kincaid

John O. Kirby

Claude E. Lane

Eugene Langley

Garnett LaPrade

Albert Lawrence

Ernest H. Lawson

Paul Lee, Sr.

Bruce T. Leggett

Cecil B. Leigh

Robert P. Riggs

William K. Roach

Robert Roane

Henderson Roberts

Robert Thompson

Walter Thon

William Thrasher

Jesse Topping

Clinton A. Townsend

Ted Treadway

Leon Treadwell

Compton Turner

John B. Tweedy

Arthur Volhein

Fred Walker

Claude R. Watts

Ethell C. West

James West

James White

Otis White

Conley C. Wilds

James H. Williams

James M. Williams

William Williams

Raymond D. Wilson, Jr.

Thomas Woodard

James Worsley

James R. Wright

Melvin Wright

B. C. Young, Jr.

Herbert Yow

Robert A. Burke, Jr.

Tommy Nelson Hare

George Harrison, Jr.

Joe Ned Moore

James F. White

Clyde D. Braswell

Columbus T. Butler

Herbert R. Dupree, Sr.

David C. Durham

Joseph J. Eardley

Willie J. Frame

Linwood L. Groves

George E. Harcum

Evangle Hendricks

Thaddeus M. Robins

Eldridge Robinson

Curtis F. Rogers

Roy L. Roper

Norman Rosson

Herbert Roughton

George Sanders

Charles Saunders

Edker Saunders

Melvin Saunders

Thomas R. Sawyer

William Sawyer

Henry Schaffer

Robert Schaffer

Edward Scott

John C. Scruggs

Rudolph Shearin

Carter Sibley

Jeremiah Silver

Cleveland Slade

Woodrow Slate

Forrest Smith

Roy Snead

Steve Sokol

John H. Speight

James M. Spruill

Albert J. Stancill

Joseph Sullivan

Edward S. Taylor

James Thomas

Frank J. Nagy, Sr.

John R. Winborne

Robert L. Aldridge, Jr.

Curtis R. Allison

Vincent Barresi

Thomas G. Bashara

William L. Bazemore

James Beacham

Carlton B. Bell

William E. Broaddus

James M. Bruce

Wallace L. Hobbs

Maurice H. Lane

Edward N. Lutz

Burrell M. Patillo

George R. Waymack, Jr.

James E. West

Hayes L. Whiddon

Leone Maxine Sheffer (deceased)

Arthur J. Golden (deceased)

Homer C. Crane (deceased)

Moses Lee Johnson

Albert Ray Long

Ray W. McClung

Horace F. Nichols

Esker Eddie Reed, Jr.

Irvin B. Slayton

Clyde K. Tysor

Rufus H. Buffaloe

Francis Marion Cave

Silver J. Ciccone

Earl Clow, Jr.

William E. Cross

James M. Doby

Grant Ensley

Bobby A. Felts

Robert A. Harrell

Willie M. Hudson

Robert P. Kucharski

Charles Wesley Mann

Lemuel Lee Newsom

James L. Pigg

Benny J. Sessions

Weeks Smith

Robert H. Weaver

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.