Amicus Curiae Brief — Delaware River & Bay Authority v. International Union of Operating Engineers, Local 68

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W, AUG 27 {997

No. 97-81

CLERK

In the Supreme Court of the United States :

OCTOBER TERM, 1997

THE DELAWARE RIVER AND BAY AUTHORITY,

Petitioner,

Vv.

INTERNATIONAL UNION OF OPERATING ENGINEERS,

LOCAL 68, et al.,

Respondents.

On Petition for a Writ of Certiorari to the

Supreme Court of New Jersey

BRIEF AMICUS CURIAE OF

THE STATE OF DELAWARE

IN SUPPORT OF PETITIONER

M. JANE BRADY LAWRENCE S. ROBBINS

Attorney General Counsel of Record for the Amicus

State of Delaware PETER C. CHOHARIS

Department of Justice Mayer, Brown & Platt

820 North French Street 2000 Pennsylvania Avenue, N.W.

Wilmington, DE 19801 Washington, D.C. 20006

(302) 577-8400 (202) 463-2000

:

TABLE OF CONTENTS

Page

INTERES! OF AMICUS CURIAE .. 2... ccc ceen ]

INTRODUCTION AND SUMMARY OF ARGUMENT 2

PU Ss oo ro ok ow Ew 8 kn ew oO -

I. THE NEW JERSEY SUPREME COURT’S

DECISION UNDERMINES THE PRINCIPLES OF

STATE SOVEREIGNTY UNDERLYING THE

COMPACT CLAUSE AND EMBODIED IN THE

COMPACT AT ISSUE IN THIS CASE ........ ”

Il. THE NEW JERSEY SUPREME COURT’S

DECISION WORKS AN IMPLIED REPEAL OF A

PROVISION OF THE COMPACT, AND THUS OF

FEDERAL LAW, IN VIOLATION OF THIS

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I So gay Gab amp ae oo ACS oo oe es 12

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TABLE OF AUTHORITIES

Page

Cases

Crawford Fitting Co. v. J.T. Gibbons, Inc.,

Ak 2 SERRE e ey eee 11

Dyer '<. Gat, Fa ak Be Ceo 6 oo oo ot wan pees 6

Hess v. Port Auth. Trans-Hudson Corp.,

PE A a EE beim an eseenre iene ee tare ie 1, 4, 6, 9

Oklahoma v. New Mexico, 501 U.S. 221 (1991) .... 3,9

Pennhurst State Sch. and Hosp. v. Halderman,

ek Se ee ere 5

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

SD Si AE artes s as 6 adage 6 02 Odeo 4 7

Radzanower v. Touche Ross & Co., 426 U.S.

Li ener ay ee ee 9

Randall v. Loftsgaarden, 478 U.S. 647 (1986) ..... 3, 9

Regional Rail Reorganization Act Cases,

Se ee: TE oo seed ok eee es 10

Rodriguez v. United States, 480 U.S. 522 (1987) .... 3,9

Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984) ... 9

Texas v. New Mexico, 462 U.S. 554 (1983) ...... 5-7, 9

Traynor v. Turnage, 485 U.S. 535 (1988) ......... 10

Constitutional provisions:

ee ee AC Ps hs ca eee woes l

Statutes

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ill

TABLE OF AUTHORITIES — Continued

Page

Other Authorities

Delaware-New Jersey Compact,

aM Gikin weaias wo 0s 20-0 6 ee ee © 6

Delaware-New Jersey Compact,

Rg ESS a are er 6, 7

Delaware-New Jersey Compact,

ee al ew a aa yk a8 8 passim

Heron, The Interstate Compact in Transition: From

rative State Action to Congressionally

Goes) Agreements, 60 St. John’s L. Rev. 1 ,

M. Ridgeway, Interstate Compacts: A Question of

F is OS ds CEES 6 ca wd vo os o's 4

INTEREST OF AMICUS CURIAE

The State of Delaware is one of the parties to the

Delaware-New Jersey Compact (“Compact”) establishing the

Delaware River and Bay Authority (“DRBA” or “Authority”).

As such, Delaware is vitally interested in the manner in which

the Compact is enforced. In this case, the New Jersey

Supreme Court — in direct conflict with decisions of other

state high courts — imposed on the Authority the duty to

bargain collectively with its employees, even though the

Compact expressly reserves to the Authority (and only the

Authority) the power “to fix and determine * * * all * * *

conditions and terms of employment.” Compact art. VII(e).

The Court imposed that far-reaching obligation because, in its

view, “complementary or parallel legislation” of both states

generally recognizes the right of public sector employees to

bargain collectively with their employers. Although the

relevant legislation of each state is not identical, and did not

purport to alter the terms of the Compact, the New Jersey high

court concluded (Pet. App. 12a) that “[iJn effect, the

legislatures have modified the Compact.”

If allowed to stand, the New Jersey high court’s decision

would vest in the state courts of one contracting state the

power to rewrite the Compact, thereby violating the basic

principle that “bi-state entities created by compact * * * are

not subject to the unilateral control of any one of the States

that compose the federal system” (Hess v. Port Auth. Trans-

Hudson Corp., 513 U.S. 30, 42 (1994)). Although the court

below did not and could not find that Delaware actually

consented to the imposition of collective bargaining rights on

the Authority, the court felt free to infer such consent from

some general legislation concerning public employee

bargaining rights. In fact, the State of Delaware has never

agreed that collective bargaining duties should be imposed on

the DRBA, and the decision below thus represents a direct

infringement of the principles of state sovereignty that

underlie both the Compact itself and, more generally, the

Compact Clause of the United States Constitution (art. I, § 10,

cl. 3). The decision below also works an implied repeal of

2

the Compact, in that it imposes collective bargaining

obligations on the Authority in express contravention of the

text of the bistate agreement. Delaware therefore submits this

brief in support of the Authority’s petition for a writ of

certiorari.

INTRODUCTION AND SUMMARY OF ARGUMENT

Article VII(e) of the Compact unambiguously reserves to

the Authority the power “to fix and determine * * * all * * *

conditions and terms of employment.” Pet. App. 59a. The

court below surmised (id. at 12a), however, that Delaware and

New Jersey have “[i]n effect * * * modified the Compact” by

enacting “complementary and parallel” labor statutes.

Although the statutes concededly are “not identical,” and do

not purport to cover bistate agencies at all (much less the

DRBA in particular), the New Jersey high court concluded

that Article VII(e) has effectively been abrogated.

As petitioner persuasively demonstrates (Pet. 12-20), the

decision of the New Jersey high court cannot be squared with

this Court’s Compact Clause cases and flatly conflicts with

decisions of other state high courts. Moreover, if uncorrected,

the decision will, as petitioner also shows (Pet. 21-29),

significantly disrupt the operation of the DRBA and other

interstate agencies. Beyond those important reasons for

granting review, the decision below also impairs the

sovereignty of the State of Delaware and effects an implied

repeal of federal legislation, in contravention of this Court’s

precedents. For those two reasons as well, as we set out

below, the petition for a writ of certiorari should be granted.

A. This Court’s Compact Clause cases recognize that

contracting states surrender a portion of their sovereignty

when they enter into bistate agreements. In return, however,

states are entitled to insist that the terms of the compact be

strictly enforced. Consistent with that basic premise, this

Court has applied the plain meaning of compact provisions,

even when a modification of the text may have served some

3

practical purpose. Were courts free to depart from the text of

the compact, states might relinquish a part of their sovereignty

only to discover — as Delaware has discovered in this case —

that the bargain they thought they had struck has been altered

without their consent.

The New Jersey Supreme Court’s decision in this case

violates this basic principle of state sovereignty. In place of

the unambiguous text of the Compact, the court below

substituted a highly debatable inference that it derived, not

from the Compact itself, but from “complementary and

parallel” legislation in the contracting states. It did so

notwithstanding the fact that the legislation in question does

not purport to cover the DRBA, much less modify the

Compact. In the process, the court effectively circumvented

the procedures prescribed by the Compact for imposing new

obligations on the Authority — procedures that are designed

to promote, not undermine, principles of state sovereignty. As

a consequence the State of Delaware — which has never

consented to the imposition of collective bargaining

obligations on the Authority — has been deprived of its right,

as a separate sovereign, to exercise its own views as to how

the affairs of a bistate entity should be conducted.

B. “[A] congressionally approved compact is both a

contract and a statute.” Oklahoma v. New Mexico, 501 U.S.

221, 235 n.5 (1991). As federal statutes, compacts are subject

to the well-settled principle that “repeals by implication are

not favored.” Randall v. Loftsgaarden, 478 U.S. 647, 661

(1986). Only where the “intent to repeal is ‘clear and

manifest’” (Rodriguez v. United States, 480 U.S. 522, 524

(1987)), may a court infer that a compact (or any other federal

statute) has been impliedly repealed by some later legislation.

In substance, the court below held that New Jersey and

Delaware labor laws have impliedly repealed the crucial

portion of the Compact reserving to the Authority the power

“to fix and determine * * * all * * * conditions and terms of

4

employment” (art. VII(e)). But there is no evidence, much

less “clear and manifest” evidence, that the state legislation in

question was intended to “modify” (Pet. App. 12a) the

Compact. In this respect as well, the decision below cannot

be squared with this Court’s precedents. The petition for a

writ of certiorari should be granted.

ARGUMENT

I. THE NEW JERSEY SUPREME COURT’S

DECISION UNDERMINES THE PRINCIPLES

OF STATE SOVEREIGNTY UNDERLYING

THE COMPACT CLAUSE AND EMBODIED IN

THE COMPACT AT ISSUE IN THIS CASE

1. “The States, as separate sovereigns, are the

constituent elements of the Union. Bistate entities, in contrast,

typically are creations of three distinct sovereigns: two States

and the Federal government.” Hess, 513 U.S. at 40. As this

Court pointed out in Hess, “‘[a]n interstate compact, by its

very nature, shifts a part of a state’s authority to another state

or states, or to the agency the several states jointly create to

run the compact.’” Jd. at 42 (quoting M. Ridgeway, Interstate

Compacts: A Question of Federalism 300 (1971)). In essence,

“[{a] state, in entering into a compact, surrenders a portion of

its Own sovereignty to the other compact states and the federal

government, and agrees to be bound by the compact terms and

conditions, absent the concerted action of the compact states

to alter them with the consent of Congress.” Pet. 13.

In return for this partial surrender of sovereignty,

however, states are entitled to insist that the terms of the

compact be strictly enforced. “Because each state relinquishes

a portion of its sovereignty to enter into an interstate compact,

the resulting bi-state agency is established with precisely

limited powers over which the states may only exercise joint

control.” Pet. App. 25a (emphasis added). Once established,

these “precisely limited powers” should not be subject to

modification without the consent of each of the contracting

~e

5

states. To paraphrase this Court’s decision in Pennhurst State

Sch. and Hosp. v. Halderman, 451 U.S. 1, 17, 25 (1981) —

involving legislation enacted under Congress’s spending power

— “[t]he legitimacy” of a State’s surrender of partial

sovereignty “rests on whether the State voluntarily and

knowingly accepts the terms of the ‘contract,’” and it is

inconsistent with that premise to construe such agreements in

a manner that “surpris[es] participating States with

postacceptance or ‘retroactive’ conditions.”

This principle has particular force because interstate

compacts routinely govern areas of public life in which the

authority of individual states would otherwise be plenary. See

Heron, The Interstate Compact in Transition: From

Cooperative State Action to Congressionally Coerced

Agreements, 60 St. John’s L. Rev. 1, 2 (1985) (among the

approximately 176 operative compacts are those governing

“flood control, corrections, and mass transit”). States yield

their authority in these and other areas only on the premise

that the terms of their agreements will be scrupulously

honored. They don’t expect surprises.

Indeed, consistent with this basic sovereignty principle,

this Court has strictly enforced compact terms — even where

altering the compact may have made practical sense. Texas v.

New Mexico, 462 U.S. 554 (1983), which construed the Pecos

River Compact, illustrates the point. The Compact sought to

resolve certain disputes between Texas and New Mexico

regarding the allocation of waters of the Pecos River. Toward

that end, the Compact established a Commission consisting of

one voting member from each state and a nonvoting

representative of the United States. Unfortunately, however,

the two voting members could not agree on a particular

matter, and the Special Master, sensing a stalemate in the

making, sensibly recommended that the United States

representative, or some third party, be empowered to break the

tie.

6

This Court sustained an exception to the Special Master’s

recommendation. True, the Court observed (462 U.S. at 565),

“the structural likelihood of impasse on the Pecos River

Commission is a serious matter,” and the parties “might well

consider amending their Compact to provide for some

mutually acceptable method for resolving paralyzing impasses

such as the une that gave rise to this suit.” Nevertheless, the

Court added (id. at 564-565), “[t]o provide a third, tie-

breaking vote on regular Commission business would be to

alter fundamentally the structure of the Commission.” That

result, the Court held, however practical it may be, was simply

impermissible: “[N]o court may order relief inconsistent with

[the] express terms” of the Compact. Id. at 564-565.

This Court’s cases also recognize that, if the terms of a

compact are to be altered, such an alteration may not be

effected through the actions of only one of the contracting

states. “[B]istate entities created by compact * * * are not

subject to the unilateral control of any one of the States that

compose the federal system.” Hess, 513 U.S. at 42. “It

requires no elaborate argument to reject the suggestion that an

agreement solemnly entered into between States by those who

alone have political authority to speak for a State can be

unilaterally nullified, or given final meaning by an organ of

one of the contracting States.” Dyer v. Sims, 341 U.S. 22, 28

(1951). After all, “[a] State cannot be its own ultimate judge

in a controversy with a sister State.” Ibid.

2. The Compact at issue in this case embodies these

important sovereignty principles, ensuring that each

contracting state’s interests will be fully accounted for in any

action taken by the Authority. Pursuant to the terms of the

Compact, the DRBA is governed by a twelve-member board

of commissioners, consisting of six residents of each state,

appointed by the governor of their respective states. Compact

art. V. Moreover, any action taken by the Board must be

approved by at least four commissioners from each state. Id.

art. VI. And even then, the governor of either state may

7

cancel the vote of one or more of that state’s commissioners,

effectively giving each state the ability to veto the Authority’s

actions. Ibid.

These careful, structural protections of each state’s

sovereignty reflect the same premise that animates this Court’s

Compact Clause cases. Although “the creation of an interstate

agency requires each State to relinquish to one or more sister

States a part of its sovereignty” (Port Auth. Trans-Hudson

Corp. v. Feeney, 495 U.S. 299, 314 (1990) (Brennan, J.,

concurring in part and concurring in the judgment)), that

surrender of sovereignty is only partial. In return for their

cession of some measure of sovereignty, the contracting states

are entitled to a strict enforcement of their compact and an

assurance that neither state can unilaterally alter the terms of

the deal.

3. The decision below violates these fundamental

sovereignty principles. The New Jersey high court explained

(Pet. App. 10a) that New Jersey and Delaware have

“substantially similar” legislation regarding the bargaining

rights of public employees. True, the court noted, the two

states’ laws are “not identical” (id. at 12a). Nor do the laws

in question actually purport to amend the Compact, and the

court did not suggest otherwise. Nonetheless, the court held

(ibid.), because “the legislatures of both states have concluded

that public employees should have the right of collective

negotiation and that employers should not interfere with that

right,” it follows that “[iJn effect, the legislatures have

modified the Compact.”

The New Jersey high court may or may not be correct as

a matter of social policy, but it is surely mistaken as a matter

of Compact law. As this Court made clear in Texas v. New

Mexico, 462 U.S. 554, courts are not free to rewrite the terms

of a Compact. Yet that is exactly what the court below has

done. Drawing inferences from some general legislation in

the two contracting states, the court vitiated the plain language

of Article VII(e), which unambiguously reserves to the

Authority, in its exclusive discretion, the power “to fix and

determine * * * all * * * conditions and terms of

employment.”

The court simply had no warrant for acting as it did.

Merely because the two states may have separately enacted

“complementary” or “parallel” legislation regarding public

employee bargaining cannot, standing alone, give rise to an

inference that the two states intended to modify the Compact.

Indeed, such an inference is unusually ill-founded in this case,

as the laws in question are “similar” (Pet. App. 10a) only

when considered at a high level of generality; the devil, as

always, is in the details. As Justice Garibaldi explained in |

dissent (Pet. App. 20a-21a), the two states’ laws differ in a

variety of important respects. See also 19 Del. C. § 1302(m)

(excluding various categories of employees from the scope of

public employee bargaining rights).

In short, it makes no sense to infer an intent to modify

the Compact from legislation that does not purport to do so.

In fact, as petitioner explains (Pet. 5, 16), when New Jersey |

and Delaware intended to modify the Compact — to subject |

the DRBA to their parallel environmental laws — they did so |

by enacting nearly identical legislation and stated in express

terms that the legislation was intended to cover the Authority

and amend the Compact. See Pet. 16 n.13. Plainly, the two

states knew how to modify the Compact when they wanted to

do so. By contrast, the State of Delaware did not seek to

make the modification at issue in this case and has not

consented to it. Under the reasoning of the New Jersey

Supreme Court, however, Delaware’s intent is of no moment,

so long as a single state court — reasoning from very general,

“complementary and parallel” legislation — infers an intent to

alter the bistate agreement.

The New Jersey high court’s basic alteration of the

Compact constitutes a direct affront to Delaware’s sovereignty.

™

9

Had the commissioners themselves adopted this change in the

agreement, their decision to do so would have been subject to

the Governor’s veto. By judicial fiat, however, the New

Jersey high court deprived the Governor, and thus th. State,

of their basic prerogatives. The petition should be granted so

that Delaware’s rights are not heid hostage to “the unilateral

control” (Hess, 513 U.S. at 42) of a New Jersey state court.

Il. THE NEW JERSEY SUPREME COURT’S

DECISION WORKS AN IMPLIED REPEAL OF

A PROVISION OF THE COMPACT, AND THUS

OF FEDERAL LAW, IN VIOLATION OF THIS

COURT’S CASES

1. “[Ojnce given, congressional consent transforms an

interstate compact * * * into a law of the United States.”

Texas v. New Mexico, 462 U.S. 554, 564 (1983). Indeed, as

this Court explained in Oklahoma v. New Mexico, 501 U.S.

221, 235 n.5 (1991), “a congressionally approved compact is

both a contract and a statute.” As such, bistate compacts are

therefore subject to the principles in this Court’s cases

governing the construction of federal statutes.

Among those is the “cardinal principle * * * that repeals

by implication are not favored.” Randall v. Loftsgaarden, 478

U.S. 647, 661 (1986). Accord, Ruckelshaus v. Monsanto Co.,

467 U.S. 986, 1017 (1984); Radzanower v. Touche Ross &

Co., 426 U.S. 148, 154 (1976). Only where there is an

“irreconcilable conflict” between an earlier and later statute

(Randall, 478 U.S. at 661), and the “intent to repeal is ‘clear

and manifest” (Rodriguez v. United States, 480 U.S. 522, 524

(1987)), may a court infer that the latter statute works an

implied repeal of the former. And that is true even where the

latter statute is said to effect only a “partial,” not a wholesale,

repeal of the former. Randall, 478 U.S. at 661.

2. In effect, the court below held that New Jersey and

Delaware repealed a key portion of the Compact by enacting

“substantially similar” statutes governing public employee

10

bargaining. By its terms, the Compact reserves only to the

Authority the power to “fix and determine” the terms and

conditions of employment. Compact art. VII(e). According

to the New Jersey Supreme Court, however, the contracting

states “modified the Compact” (Pet. App. 12a) by enacting

general labor law provisions governing public employees. The

court so held despite the fact that neither state’s legislation

even alluded to the Compact or to the Authority.

That ruling cannot be squared with this Court’s cases.

There is no conflict at all, much less an “irreconcilable

conflict,” between the Compact and the two states’ labor laws.

Nor is there any language, much less “clear and manifest”

language, which suggests that the labor provisions were

intended to repeal a crucial provision of the Compact.

Because the state labor laws make no mention of the Compact,

and do not purport to apply to bistate agencies, they should

not be applied to the Authority. Put another way, since the

statutes are “capable of co-existence,” it was “the duty of the

courts * * * to regard each as effective.” Regional Rail

Reorganization Act Cases, 419 U.S. 102, 133 (1974)

(quotation marks and citation omitted).

That is especially true in light of the generality of the

state labor provisions on which the court below relied. In

contrast to Article VII(e) of the Compact — which deals

narrowly and specifically with the labor law duties of the

DRBA — the Delaware and New Jersey statutes invoked by

the New Jersey high court purport to deal with public

employees generally, making no mention of bistate agencies

like the Authority in particular. Yet “[i]t is a basic principle

of statutory construction that a statute dealing with a narrow,

precise, and specific subject is not submerged by a later

enacted statute covering a more generalized spectrum, * * *

unless the later statute expressly contradict[s] the original act

or unless such a construction is absolutely necessary .

order that [the] words [of the later statute] shall have re

meaning at all.” Traynor v. Turnage, 485 U.S. 535, 547-548

11

(1988) (internal quotation marks deleted; bracketed text in the

original). “As always, ‘[w]here there is no clear intention

otherwise, a specific statute will not be controlled or nullified

by a general one, regardless of the priority of enactment.’”

Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437,

445 (1987) (emphasis in the original). Surely there was no

“clear” intention to cover the Authority in the two states’

public employee statutes. To the contrary, the state statutes

dealt generically with public employees, but did not address

the Compact in any way.

In the New Jersey Supreme Court’s view, however, the

absence of any such explicit intent to modify the Compact was

beside the point. For the court below, it sufficed that the state

labor laws were “substantially similar” (Pet. App. 10a) and

generally provided “that public employees should have the

right of collective negotiation and that employers should not

interfere with that right” (id. at 12a). Without any more

explicit evidence than that, the court below surmised that

Delaware and New Jersey had elected to “modif[y] the

Compact.” Ibid.

That ruling is plainly mistaken. As Justice Garibaldi

correctly observed in dissent below, “such legislation cannot

and should not be used to repeal the Compact.” Pet. App.

14a. For that reason as well, the petition should be granted

and the judgment of the New Jersey Supreme Court reversed.

12

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

M. JANE BRADY LAWRENCE S. ROBBINS

Attorney General Counsel of Record for the Amicus

State of Delaware PETER C. CHOHARIS

Department of Justice Mayer, Brown & Platt

820 North French Street 2000 Pennsylvania Avenue, N.W.

Wilmington, DE 19801 Washington, D.C. 20006

(302) 577-8400 (202) 463-2000

August 1997