Opposition Brief — New York State Thruway Authority v. Mancuso

No. 96-381 > OCT 15 1936

In The

Supreme Court of The United States

October Term, 1996

NEW YORK STATE THRUWAY AUTHORITY,

Petitioner,

FRANK MANCUSO and ELLEN MANCUSO, Individually and

on behalf of their children DEANNA and THERESA MANCUSO;

F. MANCUSO BOATYARD, INC., d/b/a ECHO BAY MARINA,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

COURT OF APPEALS FOR THE SECOND CIRCUIT

BRIEF IN OPPOSITION TO PETITION

FOR A WRIT OF CERTIORARI

JOHN A. TARTAGLIA

Attorney for Respondents

525 North Broadway

White Plains, New York 10603

(914) 289-0800

Appeal Press (914) 761-3600 (212) 267-6602 (516) 872-1110 (4556)

QUESTIONS PRESENTED

Is the Jurisprudence in Hess v. Port Authority Trans-

Hudson Corp. in conflict with the jurisprudence

applied in the Second Circuit?

Is there a legal conflict in the decisions of the other

circuits which have applied Hess and would such

conflict, if such exists, merit the granting of

Certiorari under the circumstances of the present

case?

Does the Court have jurisdiction to hear and decide

the other facts and arguments presented in the petition

if they were not made part of .he record below?

li

TABLE OF CONTENTS

TABLES UF AUTRES 0 eRe AA eae iii

COUNTER-STATEMENT OF THE CASE .......... ]

SUMMARY OF ARGUMENT .............

POINT I

NEITHER THE JURISPRUDENCE IN

HESS NOR THE JURISPRUDENCE

APPLIED BY THE SECOND CIRCUIT

aS ON CAINE oo ei Shaw oe ee eee as 7

POINT II

NO LEGAL "CONFLICT" IN THE

DECISIONS OF THE OTHER CIRCUITS

WHICH HAVE APPLIED HESS EXISTS,

NOR WOULD ANY SUCH "CONFLICT"

MERIT THE GRANTING OF CERTIORARI

UNDER THE CIRCUMSTANCES

PRESENTED IN THIS CASE ............. 13

POINT Ill

THE COURT LACKS JURISDICTION

TO HEAR AND DECIDE THE OTHER

FACTS AND ARGUMENTS PRESENTED

IN THE PETITION BECAUSE THEY

WERE NOT MADE A PART OF THE

TIRANA? MAIO 5 6 x 64 4 SES OES EEE 18

CAAA fab bs aes ee 6 ed ee ee 19

ili

TABLE OF AUTHORITIES

Page

CASES:

Bonaventure v. New York State Thruway Authority,

108 A.D. 2d 1002, 485 N.Y.S. 2d 391

SOD wb OA RR OU eo 3s 12

Christy v. Pennsylvania Turnpike Com’n., 54 F.3d

1140 (3d Cir.) cert. denied, U.S. _,

116 S.Ct. 340, 1330 L.Ed.2d 238 (1995) ...... 14

Cohen v. Beneficial Industrial Loan Corp.,

aa A gle k 6 AW Aw ne ao es 2

Crosetto v. State Bar of Wisconsin, 12 F.3d

a 16

Ex parte Young, 209 U.S.123, 28 S.Ct.

A Ge 2,3,4,13

Feeney v. Port Authority Trans-Hudson Corp..,

873 F.2d 628, 630-631 (2d Cir. 1989),

aff'd on other grounds, 495 U.S. 391 (1979) ..... 9

Gray v. Laws, 51 F.3d 426, 431

TE 6 we kg whe 6 080 8 8 8 9,15

Hadley v. North Arkansas Community Technical

College,76 F.3d 1437, (8th Cir. 1996)

petition for cert. filed 65 U.S.L.W. 3001

(June 24, 1996)(No. 95-2060) ........... 16,17

iv

Hess v. Port Authority Trans-Hudson Corp.,

513 U.S. _, 130 L.Ed.2d 245,

feE tee Fi, | err ee ee eee

Komlosi v. New York State Office of Mental

Retardation & Developmental Diabilities,

64 F.36 610 (20 Cir. 1995)... ww ees

Lake Country Estates, Inc. v. Lake Tahoe

Regional Plainning Agency,

ge ee eee

MacFarland Breakell Bldg. Corp. v. New York

State Thruway Authority, 123 Misc. 2d 307,

472 N.Y.S.2d 1004, aff'd. 104 A.D.2d 139,

484 N.Y.S.2d 166 (3rd Dept. 1984) ......

Mathewson v. New York State Thruway Authority,

22 Misc. 2d 410, 196 N.Y.S. 2d 215,

reversed on other grounds, 11 A.D.2d 782,

204 N.Y.S. 2d 904, aff’d., 9 N.Y. 2d 788,

215 N.Y.S. 2d 86, 174 NE 2d 754 (1961) ..

Mt. Healthy City Sch. Dist. Bd. Of Educ. v.

Doyle, 429 U.S. 274, 50 L.Ed.2d 471,

OF S.Cr. SHOWS ECR

Puerto Rico Aqueduct and Sewer Auth. v.

Metcalf & Eddy, Inc., 506 U.S. 139 (1993) ..

Ristow v. South Carolina Port Authority,

58 F.3d 1051 (4th Cir.), cert. denied U.S. ,

116 S.Ct, 514, 133 L.Ed. 2d 423 (1995) ...

Schulz v. New York, 84 N.Y. 2d 231,

616 N.Y.S. 2d 343, 639 N.E. 2d 1140 (1994) .

rs en I ea tee — <a

passim

ee

Vv

Thiel v. State Bar of Wisconsin, F.3d_,

(3d Cir., September 3, 1996) No. 95-3442,

BEE, ee on b-6:.6. id wie ata Rowrahe ce

United Mine Workers of America v. Gibbs,

86 S.Ct. 1130, 383 U.S. 715,

SD Eades. G0 BEG CAPO vec cus ween ss

STATUTES:

Be Ses BANE REE ER

Federal Water Pollution Control Act,

ee She i OR I ob wine os taser redneck

N.Y.S. Constitution, Art. 10§5&6 .........

N.Y.S. Constitution, Article VI], §11.........

Subchapter IV, Chapter 26 of Title 33 of the

United State Code, and 33 U.S.C. §§ 407, 441,

EBON, BESO SES EUESS bate Pe Ab te

RULES:

Federal Rules of Civil Procedure,

SF S Rf . RA ree peer er

COUNTER-STATEMENT OF THE CASE

The New York State Thruway Authority’s (NYSTA)

North Avenue Drain (“NAD”), which was originally constructed

to drain only storm water from a small section of Interstate 95

through a large concrete culvert into the west branch of Echo

Bay, part of Long Island Sound, is illegally connected to the

City of New Rochelle’s decrepit sanitary and storm sewage

systems, resulting in the seepage, surcharge and discharge into

Long Island Sound of raw, untreated sanitary sewage including

petroleum, medical waste, human fecal matter and other noxious

pollutants in violation, inter alia, of Subchapter IV, Chapter 26

of Title 33 of the United States Code, and 33 U.S.C. §§ 407,

441, 1311 and 1321. Respondents (Plaintiffs below), the

family owners and operators of a small marina in the City of

New Rochelle situated at the outfall of NAD, commenced this

citizen lawsuit for injunctive relief against the Petitioner and the

City of New Rochelle under the Federal Water Pollution Control

Act, 33 U.S.C. 1251, et. seq., popularly referred to as the

“Clean Water Act”. Included in their complaint, pursuant to the

District Court’s supplemental jurisdiction 28 U.S. C. $1367,

were their claims for personal injury and private property

damage. They lost their business and their health and are now

penniless because NAD functions, with the knowledge and

approval of NYSTA, as the overflow channel by which a

decayed urban sanitary system by-passes an over capacitated

treatment plant.

2

Pr ral circumstances which render the Petition moot

In its answer to the complaint, NYSTA never interposed

the Eleventh Amendment as an affirmative defense, but rather

raised it for the first time in a summary judgement motion. The

City of New Rochelle in its pleading interposed a cross claim

against NYSTA, to which NYSTA never replied, objected or

moved. The District Court (Brieant, D.J.), denied the

defendants’ summary judgement motions, and, as to NYSTA,

held that a federal lawsuit could properly be brought for

prospective injunctive relief of a continuing violation of federal

law, despite any claim of Eleventh Amendment immunity, under

the holding of Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52

L.Ed. 714 (1908). The District Court also found that, in any

event, NYSTA was not the State of New York nor an “arm of

the state”, and was therefore not immune from prosecution in

federal Court under the Eleventh Amendment.

NYSTA never appealed from that part of the District

Court’s finding of jurisdiction under Ex Parte Young, nor from

the Court’s exercise of supplemental jurisdiction, but only

appealed so much of the District Court’s ruling which found that

it was not “an arm of the state” and not immune under the

Eleventh Amendment. The Second Circuit (Oakes, Mahoney

, Walker, C.J.), considering NYSTA’s Appeal under the

doctrine of the “collateral order exception”, Cohen v.

Beneficial Industrial Loan Corp. 337 U.S. 541 (1946); Puerto

Rico Aqueduct and Sewer Auth. V. Metcalf & Eddy, Inc. 506

U.S. 139 (1993); Komlosi v. New York State Office of Mental

Retardation & Developmental Diabilities, 64 F.3d 810 (2d Cir.

1995), carefully considered the legislative scheme by which

NYSTA was engendered, as well as the New York State

Constitution, which prohibited debts of NYSTA from becoming

debts of the State of New York, and found that: (1) NYSTA,

was a public corporation independent of the state both fiscally

and in terms of state oversight and control, (2) NYSTA was not

an “arm of the state”, and (3) the “dignity of the state” was not

implicated in a federal lawsuit which sought injunctive relief and

money damages from NYSTA for its admitted poisoning of the

Long Island Sound.

In this Petition, the Attorney General again seeks the

shield of Eleventh Amendment immunity, twice denied, to

protect NYSTA from its admitted pollution, and attempts to

create a conflict amongst Circuits, other than the Second

Circuit, which have interpreted Hess v.- Port Authority Trans-

Hudson Corp., 513 U.S.___, 130 L.Ed.2d 245, 115 S.Ct. 394

(1994). However, the Attorney General’s “Statement of the

Case” fails to alert the Court to the hopeless procedural

dilemma which requires summary denial of the Petition: (1) no

decision by this Court concerning Eleventh Amendment

immunity will reverse the District Court’s jurisdiction under Ex

Parte Young; (2) no decision by this Court concerning Eleventh

Amendment immunity will affect the District Court’s exercise of

supplemental jurisdiction under 28 U.S.C. $1367, to which

NYSTA neither imposed timely objection and from which it

never appealed, and (3) no decision by this Court concerning

Eleventh Amendment immunity will divest the District Court of

its jurisdiction of the cross claims interposed without objection

by the City of New Rochelle against NYSTA, jurisdiction to

which NYSTA has submitted without any reservation in its

pleading and from which it likewise never appealed. The full

procedural circumstances of this case, which have been omitted

from the Petition and which, due to NYSTA’s failure to object

and/or Appeal, would render any decision by this Court on the

Petition moot or ineffectual, constitute misstatements which are

hereby corrected pursuant to Rule 15 (2) of the Rules of this

honorable Court.

4

The logical consequence of NYSTA’s failure to object

to the jurisdiction of the cross-claim, and its failure to Appeal

the District Court’s sustaining of supplemental jurisdiction under

the authority of Ex Parte Young, will be that, despite any

decision which this Court might wish to render concerning

NYSTA’s claim of Eleventh Amendment immunity from suit

in federal Court, the District Court will continue to have

jurisdiction over the Clean Water Act action. At most, a

holding which finds that NYSTA is immune in this case would

do nothing more than allow for the “splitting off” of the private

causes of action, which would allow for the removal of the

personal injury and property damage claims to New York’s

Court of Claims. This would not only require the same case to

be tried twice in two different courts, but would also permit the

New York Court of Claims to pass simultaneously upon matters

of federal environmental law, matters more appropriately

addressed in one proceeding in the District Court.

In the District Court, NYSTA also admitted, via its local

Rule 3 (g) statements and/or its failure to respond to Requests

For Admissions, that: (a) NYSTA owns NAD; (b) City has

connections to NAD; (c ) NAD isa “point source” within the

meaning of the Clean Water Act; (d) the discharge from NAD

contains “pollutants” within the meaning of the Clean Water

Act; (€) there is garbage, fecal waste, offal, medical waste being

discharged through NAD; (f) that all point source discharges of

pollutants are regulated and require a permit under the Clean

Water Act; (g) none of the connections to NAD have permits,

and (h) the unpermitted discharge of sanitary sewage pollutants

from a point source is expressly prohibited under the Clean

Water Act. The meek gloss which the Petition makes over the

facts which led to this lawsuit does no justice in describing the

filth and foul scum discharged each day from NAD, nor does it

fairly depict the heinous nature of NYSTA’s conduct in allowing

such pollution to continue to the point where it ruined the

5

Plaintiffs’ livelihood, rendered them destitute, caused personal

and emotional injury and significantly degrades, even now, an

ecologically fragile body of water used by millions of People in

the northeastern United States.

Ironically, "'YSTA is represented by the New York

Attorney General’s Environmental Protection Bureau, the very

state agency designated by Federal Law to pursue and punish

polluters. In ignoring the questionable procedural posture of

this case, in failing to advise the Court of the full implication of

his client’s own admissions of guilt, and in attempting to create

a non-existent and irrelevant “conflict” amongst the Circuits,

the “People’s Lawyer” wraps the wolf of a bogus argument in

the fleece of a dumb sheep, and insidiously conceals the only

real “conflict” in this case: that of an Attorney General who, in

defending an independent public corporation and admitted

polluter, has refused to take any action to protect the People

and stop the spewing of the filth and scum discharged every day

from NAD. It is in this factual context, one either ignored or

not fully elucidated by the Attorney General in his “Statement of

the Case”, that this disingenuous and ill reasoned Petition

should be judged.

SUMMARY OF ARGUMENT

Besides the procedural circumstances, described above,

which virtually render NYSTA’s claim of Eleventh Amendment

immunity moot, the petition for a writ of certiorari should also

be denied for the following additional reasons:

The Eleventh Amendment jurisprudence applied by the

Second Circuit to this case is neither “unsettled” nor

“confused”, and has been clearly established by the Court in

6

Hess v. Port Authority Trans-Hudson Corp. aa 4 A8S

S.Ct. 394, 130 LEd 2d 245 (1994) and Lake Country

Estates, Inc. v. Lake Tahoe Regional Planning Agency, 440

U.S. 391 (1979) and Mz. Healthy City Sch. Dist. Bd Of

Educ. v. Doyle, 429 U.S. 274, 50 L.Ed.2d 471, 97 S.Ct. 568

(1974),

There is no “conflict” among the Circuits concerning the

Eleventh Amendment jurisprudence applied in this case. Any

“difference of approach” that NYSTA urges this Court to find

between that taken by the Second Circuit in this case, and that

taken by the Fourth Circuit in Thiel vy. State Bar of

Wisconsin, F.3d __, No. 95-3442, 1996 WL 496629 and/or

that taken by the Fourth Circuit in Ristow v. South Carolina

Port Authority, 58 F.3d 1051 (4th Cir.), cert. denied

—US._, 116 S.Ct. 514, 133 L.Ed 24 423 (1995), is

attributable solely to the unique fact patterns in each case, and

is not based on any irreconcilable legal conflict in the Eleventh

Amendment jurisprudence applied in this case.

The Court lacks jurisdiction to consider or decide the

arguments and facts relating to “changes in state government

Structure”, and “autonomy of organizing and financing public

undertakings” because these matters were not made a part of

the record below.

7

NEITHER THE JURISPRUDENCE IN HESS NOR THE

JURISPRUDENCE APPLIED BY THE SECOND

CIRCUIT IS IN CONFLICT

The Court’s decision in Hess, which applied existing

Eleventh Amendment jurisprudence to the New York/New

Jersey Port Authority and found that it was not an “arm of the

state” and not immune, is neither confusing nor unsettling. The

Court first examined established jurisprudence with respect to

the history and purpose of the Eleventh Amendment and

restated the long accepted general principle that “(t)he

Amendment is rooted in a recognition that the States, although

a union, maintain certain attributes of sovereignty, including

sovereign immunity...It thus accords the States the respect owed

them as members of the federation...”, supra., 513 U.S.__, 130

L.Ed.245, 255, 115 S.Ct... After reviewing the jurisprudence

relating to Compact Clause entities, the Court reviewed the

indicators for applying Eleventh Amendment immunity to a

bistate entity which were established in Lake Country, and found

that, where the indicators of immunity point in different

directions, the Eleventh Amendment’s twin reasons for being

(i.e. state sovereignty and state dignity) are to remain the prime

guide. The Court held that it was not at all disrespectful to call

upon Compact Clause agencies to answer complaints in federal

Court. Finding no threat to the states’ dignity in a federal

lawsuit, the Court, continued its inquiry and asked “...as Lake

Country instructed, whether there is here ‘good reason to

believe’ the States and Congress designed the Port Authority to

enjoy Eleventh Amendment Immunity...”

CC —

In applying the “good reason to believe” standard the

Court considered the “arm of the state” doctrine set forth in M1.

Healthy and examined the fundamental goal of the Eleventh

Amendment, which is to shield the States’ treasuries. The

Court concluded, as New York State conceded in its amicus

curiae brief, that the “vast majority of Circuits...have concluded

that the state treasury factor is the most important factor to be

considered. ..and, in practice, have generally accorded this factor

dispositive weight...” Hess, supra. 130 L.Ed. 2d, 261. Hess

therefore presented nothing new or unsettled, but rather

considered the decisions of various Circuits and found that the

“state treasury factor” was the most decisive element in

determining whether or not an independent public corporation

might still be considered as “an arm of the state” for the

purposes of conferring Eleventh Amendment immunity.

The only thing new and unsettling is the Attorney

General’s mendacious attempt to back away from the

concession made by his office in the amicus curiae brief in Hess,

which confirmed the Attorney General’s concurrence with the

“state treasury” proposition. Besides this concession, the

Attorney General has, in numerous state Court proceedings

involving NYSTA, consistently argued that NYSTA is not the

State of New York, but rather an independent corporation. The

Environmental Protection Bureau does nothing to reconcile this

hypocrisy in legal argument.

B- The Second Circuit's decision is also based on

traditional Eleventh Amendment jurisprudence and is

n nd ji

not in conflict with Hess

The Second Circuit’s decision in this case carefully

reviewed the statutory scheme by which NYSTA was created,

and NYSTA’s relationship to the State. The Court applied non-

controversial Eleventh Amendment jurisprudence in an

LM aT

9

appropriate manner and is not in conflict with Hess. Although

Hess involved a bi-state compact entity, the Court observed that

it nevertheless was the proper starting place for an Eleventh

Amendment inquiry, citing: Gray v. Laws, 51 F.3d 426, 431

(4th Cir. 1995). The Court first examined the six factors

identified in Lake Country Estates, Inc. v. Lake Tahoe

Regional Planning Agency, 440 U.S. 391 (1979), as derived

from Feeney v. Port Authority Trans-Hudson Corp. 873 F.2d

628, 630-631 (2d Cir. 1989), aff'd on other grounds, 495 U.S.

391 (1979) and found them to be equally balanced in favor of

and against a finding of immunity. The sixth factor considered,

i.e. whether a judgement against NYSTA would place the

state’s treasury at risk, was found to weigh against immunity

because of New York State’s constitutional prohibition and

statutes which specifically provided that NYSTA’s debts were

not the State’s.

But the Second Circuit’s inquiry did not end there. The

Court then asked, as Hess requires, whether or not a judgement

against NYSTA “would have the practical effect of requiring

payments from the State”, citing: Ristow v. South Carolina

Ports Auth., 58 F.3d 1051, 1053 (4th Cir. 1995). The Court

held that:

“(t)he Thruway Authority has provided no

evidence that it would have any difficulty in

satisfying a judgement in this case, or in any

other. Instead, the Thruway Authority simply

speculates that if the plaintiffs were to receive all

the damages they claim ($105 million), its

financial stability would be threatened. But this

differs little from the Port Authority’s

unsubstantiated claim in Hess that a judgement

against it would adversely impact the treasuries

of New York and New Jersey... The reality is

- ee Pe

ee ee -

10

that the Thruway Authority is “structured

[like] the Port Authority is, to be self

sustaining”...Thus, we have no difficulty in

concluding that any judgment against the

Thruway Authority in this case poses no threat

to the finances of New York.”

With the six Feeney factors in equipose, the Court then

tured, as Hess requires, to the two long established purposes

underlying the Eleventh Amendment-protection against state

liability and respect for state sovereignty. Finding that the state

treasury was “not even minimally at risk” the Court found that

the sole question remaining was, as required by Hess, whether

suit in federal Court would be an affront to the dignity of New

York State. Contrary to NYSTA’s assertion (Petition, p.9) that

the Second Circuit “devalued” the Eleventh Amendment's

concern with the “dignity of the state”, the Second Circuit

properly considered the issue and found that: (1) NYSTA had

an existence quite independent from New York State and (2)

New York State exercised, at most, minimal control over

NYSTA, thus justifying the legal conclusion that the Eleventh

Amendment’s concerns of state sovereignty and dignity were

not implicated. The Court then held that:

“ the state sovereignty concern weighs neither in

favor of nor against Eleventh Amendment

immunity...Although the Thruway Authority may

be identified closely with the state, New York

State has given the Thruway Authority an

existence quite independent from the state and

exercises minimal control over the Thruway

Authority. We are unable to conclude that

subjecting the Thruway Authority to suit in

Federal Court would be an affront to the dignity

of New York. Because the concern for state

1]

liability weighs against the finding of immunity

and because the concerns of state sovereignty

and dignity are not fully implicated, we hold

that the Thruway Authority is not entitled to

Eleventh Amendment immunity.”

Therefore, any claim that either the ruling in Hess or the

decision in this case sows “conflict” by not properly addressing

or “devaluing” established jurisprudence concerning the states

“sovereign dignity” is belied by a specific negative finding.

The dignity of any state is derived from the dignity of the

People of that state. It is the People who, in constituting the

state, in consenting to be taxed and to be governed by

representatives which they elect, confer the state with dignity

and sovereignty. NYSTA is not the State of New York. It is a

completely separate and independent public corporation whose

officers are not elected by the People. Elected officials exercise

the most minimal control over it. It has no authority to tax the

People. Its treasury is independent of the State’s and outside of

the People’s control. State constitutional provisions prevent the

raising of the debt ceiling except by public referendum (N.Y.S.

Constitution, Article VII, §11), and absolutely prohibit the debts

of NYSTA (except the initial funding, which has long since been

retired) from becoming the debts of the State (N.Y.S.

Constitution, Art. 10, §5 & 6). NYSTA therefore derives no

dignity or sovereignty from the People of the State of New

York. No dignity of the State can be implicated where there is

no legal or factual basis to hold that NYSTA is an “arm of the

state”. This is especially true where, under identical

circumstances, the New York-New Jersey Port Authority,

admittedly a bi-state compact agency, yet created under a

statutory scheme almost identical to NYSTA, has already been

found by this Court in Hess not to be an “arm of the state” and

unable to partake in Eleventh Amendment immunity.

12

The Attorney Generai’s nice recitation of past legislative

enactments concerning NYSTA’s independent financing of state

infrastructure projects demonstrates nothing more than a cute

pattern of legislative convenience. While NYSTA may be

utilized as a discretionary vehicle to raise funds at the whimsy of

the State’s Legislature, its funding and liability have never been,

and is prohibited from becoming, the legal responsibility of the

State of New York. In choosing to create NYSTA as a separate

public corporation the Legislature cut NYSTA free from the

umbilical of the State and Eleventh Amendment immunity,

which could have easily been retained by constituting it as a

department of state government.

The arguments advanced in this Petition are diametrically

opposed to the position which Attorney General has taken in

all other recent lawsuits against NYSTA, in which the Attorney

General has consistently argued that NYSTA is an independent

entity and not an “arm of the state”, [ See: Schulz v. New York,

84 N.Y. 2d 231, 616 N.Y.S. 2d 343, 639 NE. 2d 1140 (1994);

Mathewson v. New York State Thruway Authority, 22 Misc.

2d 410, 196 N.Y.S. 2d 215, reversed on other grounds, 11 A.D.

2d 782, 204 N.Y.S. 2d 904, aff'd. 9 N.Y. 2d 788, 215 N.Y‘S.

2d 86, 174 NE 2d 754 (1961); Bonaventure v. New York State

Thruway Authority, 108 A.D. 2d 1002, 485 N.Y.S. 2d 391 (3rd

Dept. 1985); MacFarland Breakell Bldg. Corp. v. New York

State Thruway Authority, 123 Misc. 2d 307, 472 N.Y.S. 2d

1004, aff'd. 104 A.D. 2d 139, 484 N.Y.S. 2d 166 (3rd Dept.

1984)]. Now that a completely opposite tack is expedient, the

Attorney General takes a position completely controverted by

prior admissions and contentions without so much as an

intellectual blush. Such hypocrisy in legal argument, when

considered in the light of an egregious conflict of interest,

should lead this Court to deny the petition.

13

ll

NO LEGAL “CONFLICT” IN THE DECISIONS OF THE

OTHER CIRCUITS WHICH HAVE APPLIED HESS

EXISTS, NOR WOULD ANY SUCH “CONFLICT”

MERIT THE GRANTING OF CERTIORARI UNDER

THE CIRCUMSTANCES PRESENTED IN THIS CASE

A- The Eleventh Amendment claim of immunity is moot in

the procedural context of this case

The “conflict” between the circuits that the Attorney

General would have his Court find do not merit the granting of

certiorari here, because, assuming, arguendo, that NYSTA is

immune, jurisdiction in the federal courts is still proper under the

holding of Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52

L.Ed. 714 (1908) and the unobjected to supplemental

jurisdiction of the District Court, 28 U.S.C. § 1367. Therefore,

despite any claim of immunity, the federal Clean Water Act

lawsuit will proceed on the basis of injunctive relief. Therefore,

the District Court, under Federal Rules of Civil Procedure, §§

18, 19, 20 and 42, and pursuant to the authority of United Mine

Workers of America v. Gibbs, 86 §.Ct. 1130, 383 U.S. 715, 16

L.Ed. 2d 218 (1966), will have in any event properly exercised

its supplemental jurisdiction over the private property damage

and personal injury claims. Moreover, since NYSTA, in its

pleadings, never responded to the cross-claim of the City of

New Rochelle nor objected to the District Court’s jurisdiction

thereof, its Eleventh Amendment immunity claim is moot

because such cross claim must now be decided in the context of

the pending federal case. While the procedural circumstances

alone merit the denial of this Petition, the Court will also find no

real “conflict” in the jurisprudence applied by the various

Circuits that relates to the facts in this case.

’

8° sat hha ean set i hit My

14

B- Any “conflict” am he Circuits con ing the

n nt juri ence i t ific an

The alleged “conflict” between the Second Circuit’s

ruling in this case and Hess is at least partially belied by this

Court’s recent denial of certiorari in the Third Circuit decision

in Christy v. Pennsylvania Turnpike Com’n., 54 F.3d 1140 (3d

Cir.) cert.denied, U.S._,116S.Ct. 340, 133 L.Ed.2d 238

(1995). The factors considered by the Third Circuit are the

same as those established in Lake Country. The Third Circuit

found that “prevention of federal Court judgements ... be paid

out of the state’s treasury” and “the vulnerability of the State’s

purse” to be the most salient factor in Eleventh Amendment

determinations...” supra., 1145, a finding in complete accord

with Hess, Lake Country and the Second Circuit’s opinion in

this case. The Court having denied certiorari in Christy, under

legal circumstances almost identical to this case and those in

Hess, is not now presented with any cogent new basis to grant

certiorari here.

Reliance on a “conflict” asserted to exist as a result of

the Seventh Circuit’s decision in Thiel v. State Bar of

Wisconsin, _F.3d _, (3d Cir., September 3, 1996) No. 95-

3442, 1996 WL 496629 or the Fourth Circuit’s decision in

Ristow v. South Carolina Port Authority, 58 F.3d 1051 (4th

Cir.), cert. denied U.S._,116S.Ct. 514, 133 L.Ed. 2d 423

(1995) is also illusory since, the decisions in each case were

based on unique facts, not conflicting principles of constitutional

law. These unique facts distinguish the reasoning and

approaches applied by these two Circuits from the reasoning

applied by the Second Circuit in this case.

In Ristow the Fourth Circuit found that the South

Carolina legislature heavily supported its Ports Authority

15

through direct annual appropriations for the first seventeen

years of its existence. South Carolina also issued general

obligation bonds totaling $132 million and deposited the

proceeds from those bond offerings in the Ports Authority’s

bank accounts. South Carolina also had the power to withdraw

surplus revenues from the Ports Authority’s account and deposit

them in the general treasury. In addition, in connection with the

establishment of a new BMW manufacturing plant, South

Carolina transferred over $40 million from its treasury to the

Ports Authority so that it could acquire the land on which to

build the facility. The Court’s holding in Ristow was based upon

a specific factual finding of financial dependence: “All of this

convinces us that, unlike Port Authority Trans-Hudson, the

entity considered in Hess, the (South Carolina) Ports Authority

is not self sufficient” (Ristow, supra., at 1053). Moreover,

nothing in the Fourth Circuit’s decision in Ristow overruled its

holding in Gray v. Laws, 51 F.3d 426 (4th Cir. 1995) which

ruled that the same factors identified in Hess as being relevant

in a multistate agency context, i.e., treasury and sovereignty

concerns, extent of state control, state characterization of the

entity and entity functions, are applicable to single state entities.

Unlike the Ports Authority in Ristow, NYSTA is financially

independent of the State of New York. Given the Fourth

Circuit’s holding in Gray, and the distinct factual finding of

financial dependence made in Ristow, the “conflict” in the

Fourth Circuit is bogus and no genuine basis to grant certiorari

here.

Similarly, the “conflict” which NYSTA would have this

Court find in the Seventh Circuit’s decision in Thiel v. State

Bar of Wisconsin, F.3d __, No. 95-3442, 1996 WL 496629

(7th Cir. September 3, 1996) is also factually distinguishable. In

Thiel, the Court considered whether or not the Wisconsin State

Bar, which governed the conduct of lawyers and collected dues

for purposes relating to their judicial supervision, and which was

16

iPad Wane ninemsn

administered and controlled by the Wisconsin Supreme Court,

was immune under the Eleventh Amendment in a suit which was

chalienging Bar rules which had been approved by the Court.

The Court, citing its earlier decision in Crosetto v. State Bar of

Wisconsin, 12 F.3d 1396 (7th Cir. 1993) considered the

question of “whether the State Bar ...is vested with sufficient

state characteristics to qualify for sovereign immunity”. The

Seventh Circuit found that, because the Wisconsin Supreme

Court exercised direct control over the State Bar, and because

Wisconsin lawyers were officers of the Court subject to the

supervision of the Wisconsin Supreme Court, the State Bar was

an agent of the Wisconsin Supreme Court, an “arm of the state”,

and any “impact on the state treasury” was not a primary

concern.

Reliance by the Attorney General on Hadley v. North

Arkansas Community Technical College, 76 F.3d 1437, (8th

Cir. 1996) petition for cert. filed 65 U.S.L.W. 3001 (June 24,

1996) (No. 95-2060), is also misplaced. There, the Eighth

Circuit, confronted with the question of the immunity of local

community college, with local political and financial

involvement, held that “the resulting Eleventh amendment

immunity questions tend to be difficult and very fact specific”

(emphasis added). The Eighth Circuit found nothing

inconsistent with the Court’s reasoning in Hess and the test

which it applied, viz. “(to) examine the particular entity in

question and its power and characteristics as created by state

law, to determine whether the suit in reality is a suit against the

state”, supra. 1438. Examining the Arkansas law which

engendered and sustained the state’s community college system,

The Eighth Circuxt found direct involvement by the voters of the

State, direct state supervision, direct state funding and a statute

which included this state institution in the state’s obligation of

financial support. Thus, the Eighth Circuit concluded that the

community college in question was an “arm of the state” under

+

A ee

17

the traditional analysis required by Mt. Healthy. This analysis

is identical to that applied by the Second Circuit in this case.

Unlike the Wisconsin State Bar in Thiel, NYSTA is

clearly not an agent or arm of the state. Unlike the Ports

Authority in Ristow, NYSTA is not financially dependent on the

State’s treasury. Unlike the community technical college in

Hadley, NYSTA is neither directly supervised or funded by the

State. Similar to the Port Authority of New York and New

Jersey in Hess, NYSTA is neither controlled nor funded by the

State, and its debts are not the debts of the State. The Court’s

rulings in Hess, Lake Country and Mt. Healthy inexorably led to

the Second Circuit’s finding that NYSTA was not an “arm of

the state” but rather had an existence quite separate and apart

from the state. Yet, even after the Second Circuit made this

finding, it continued with the inquiry to determine whether or

not the two purposes underlying the Eleventh Amendment, i.e.

protection of the state’s treasury and sovereignty, were

implicated. The Court determined that: (t)he Thruway

Authontty ...is not a traditional state agency, but a public entity

that is generally self-funded and, except for the appointment of

its members to nine-year terms, it is not under significant state

control.” Because the Second Circuit specifically found that

“concerns of state sovereignty and dignity are not fully

implicated” , its decision was rationally based on both

examination of the “state treasury factor” and examination of

the “state dignity” factor. The decision is therefore not in

conflict with Hess nor with the decisions of the Third, Fourth or

Seventh Circuits, nor with the Eighth Circuit’s decision in

Hadley.

18

Il

THE COURT LACKS JURISDICTION TO HEAR AND

DECIDE THE OTHER FACTS AND ARGUMENTS

PRESENTED IN THE PETITION BECAUSE THEY

WERE NOT MADE A PART OF THE RECORD BELOW

Besides the procedural circumstances described in the

Respondent’s Counter-Statement of the Case, which render this

Petition and the Court’s jurisdiction most dubious, and to the

extent that NYSTA argues that “accelerating changes in state

governmental structure” or considerations of “autonomy of in

organizing and financing” mandate granting of this writ, the

Court also lacks jurisdiction to consider these issues because no

record of these matters was made below. To the extent that

NYSTA argues that “the State relies on NYSTA as an integral

component in the planning, financing and implementing of state-

wide transportation facilities” such argument is not based on any

matter in the record and, in any event, is specifically

contradicted by the lower courts’ finding that the State’s dignity

was not affronted by subjecting NYSTA, an independent public

corporation not controlled by the State, not bound to the State’s

treasury, to a lawsuit in federal Court. The District Court’s

factual determination that NYSTA was not an “arm of the

state”, and the Second Circuit’s affirmance, were based on a

record devoid of the arguments and facts now advanced in the

Petition. Factors not part of the record below are not properly

before this Court and should not be considered in deciding this

Petition.

19

CONCLUSION

The dignity and sovereignty of each state derives from

the dignity of the People of that state. NYSTA is

constitutionally and statutorily independent of that dignity and

sovereignty. NYSTA’s admitted pollution in this case, now

unchecked as a result of an irreconcilable conflict of interest,

unconscionable inaction and illogical arguments, offends the

People’s dignity beyond any shield of immunity and creates an

injustice so great that must surely make the United States

Constitution weep. NYSTA should be permitted to stand trial

in federal Court before the People and answer for its admitted

injustice to the People. The petition for a writ of certiorari

should be denied.

Respectfully Submitted,

John A. Tartaglia

525 North Broadway

White Plains, New York 10603