Petition for Writ of Certiorari — Delaware River Port Authority v. Fraternal Order of Police

Supreme Court, U.S,

FILED

G

~ 991758 may 94 000

No. QE

IN THE

Supreme Court of the United States

DELAWARE RIVER PORT AUTHORITY,

Petitioner,

FRATERNAL ORDER OF POLICE,

PENN-JERSEY LODGE 30, and JOSEPH VENA,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI

TO THE SUPERIOR COURT OF

NEW JERSEY,

APPELLATE DIVISION

PETITION FOR WRIT OF CERTIORARI

OF COUNSEL: WILLIAM H. ROBERTS

(Counsel of Record)

mount Baows ten A COLD

SAMUEL M. FIRST

Delaware River Port Authority BLANK ROME COMISKY &

One Port Center MCCAULEY LLP

2 Riverside Drive

Camden, NJ 08101 One Logan Square

Philadelphia, PA 19103

(215) 569-5632

Attorneys for Petitioner,

Delaware River

Port Authority

A LLNS ITI TERE EOIN ALPINE LTTE Fl BS IES CEI A

PACKARD PRESS® / APPELLATE DIVISION, 1617 JFK BOULEVARD, PHILA. PA. 19103 (215) 563-9000

QUESTIONS PRESENTED

1. By requiring the Delaware River Port Authority

(“DRPA”) to submit labor disputes over wages and other

issues to binding interest arbitration under a court-created

arbitration procedure before a court-appointed arbitrator, did

the New Jersey court improperly dispense with and miscon-

strue the standard interstate compact amendment require-

ment, in Article IV of the Pennsylvania-New Jersey federal

compact creating the DRPA, of “action of either State con-

curred in by the legislation of the other” when, instead, it sim-

ply “implied” agreement between Pennsylvania and New Jer-

sey to amend the Compact from nothing more than “common

policies” of the states, notwithstanding (a) that the court's

determination is inconsistent with an express Compact provi-

sion that confers on the DRPA’s Commissioners exclusive

power “to fix and determine . . . duties and compensation” of

its employees, and (b) that the Pennsylvania and New Jersey

binding interest arbitration statutes, which the court found to

embody a similar “public policy,” neither mention nor by defi-

nition encompass the DRPA, and, as construed by Pennsylva-

nia and New Jersey courts, concededly do not even otherwise

apply to the DRPA?

2. In determining whether a common similar “policy”

gleaned from respective state statutes of bi-state compact par-

ties that do not by their terms specifically bring a bi-state

compact entity within their scope may nonetheless be imposed

on a bi-state compact entity, is the appropriate legal standard

(a) a legal standard that requires “a painstaking

comparison” of laws of the creator-states to determine

whether the states’ legislative enactments are not only

“substantially similar” and “parallel and complementary,”

but provide reciprocal legislative intent of agreement that

the laws shall apply to the bi-state agency, as the courts of

Pennsylvania and New York, as well as the lower federal

courts in these states, have held, or

(b) the novel “implied amendment” legal standard

adopted by the New Jersey courts, which requires no

more than that a court divine in the respective compact

i

states’ statutes of similar subject matter some common

“basic public policy” — such as one generally “favoring

arbitration,” or one that “public employees are entitled to

engage in collective negotiations with their employer,” as

in this case — as the sole basis for speculating that the

states intend that specific provisions of state statutes

apply to the compact entity, disregarding that (i) there are

important differences in language, in scope, and in spe-

cific public policy of the two states’ legislation, (ii) the

implied amendment is contrary to powers expressly con-

ferred by the compact, and (iii) there is no other direct or

indirect evidence of legislative intent by either state to

apply such statutory provisions to the compact entity?

3. Does the New Jersey court’s determination below, that

mere similarity in general “policy” between respective legisla-

tion of Pennsylvania and of New Jersey is a sufficient basis for

imposing binding interest arbitration procedures on the

DRPA, circumvent the standard compact amendment provi-

sions, Common to many interstate compacts, and violate the

Compact Clause of the Constitution of the United States,

Article I, § 10, cl. 3, by creating a de facto “implied amend-

ment” that lacks the concurrence of the Pennsylvania and

New Jersey legislatures?

4. By engrafting onto the DRPA Compact a hybrid, com-

pulsory binding interest arbitration procedure for labor dis-

putes that destroys the DRPA Commissioners’ exclusive

power thereunder “to fix and determine .. . “ the duties and

compensation of DRPA employees, and circumvents the New

Jersey Governor's control by statutory veto power over DRPA

actions, did the New Jersey court subordinate to state law

express provisions of the DRPA Compact, “a law of the

United States,” under this Court's decisions in Texas v. New

Mexico, 462 U.S. 554, 564 (1983); Cuyler v. Adams, 449 U.S.

433, 438 (1981), and thus violate the Supremacy Clause of the

Constitution of the United States, Art. VI, clause 2, by order-

ing relief inconsistent with the Compact’s express terms?

ii

Pe eee,

Fe ae eT

LISTING OF PARTIES TO THE PROCEEDING

Parties to the proceeding in the Supreme Court of New

Jersey were:

Petitioner, the Delaware River Port Authority, a Congres-

sionally approved bi-state instrumentality of Pennsylvania and

New Jersey.

Respondents, the Fraternal Order of Police Penn-Jersey

Lodge 30 (“FOP”), an unincorporated labor organization,

which purports to represent certain police officers employed

by the DRPA, and Joseph Vena, the FOP’s former First Vice-

President.

RULE 29.6 LISTING

The Delaware River Port Authority does not own any

nonwholly owned subsidiaries. There is no parent or publicly

held company owning 10% or more of Delaware River Port

Authority stock.

ill

TABLE OF CONTENTS

Page

CUTEST IIIS FI ee wai vn eee ecewvecisscaness i

LISTING OF PARTIES TO THE PROCEEDING ..... ill

te mF ES rere Tere rer rere re ery re ill

py be ee Noy 8 gy er rrr er rrr rrr Vii

PETITION FOR WRIT OF CERTIORARI ........... i

to 8 errr te rere err rere Sy oe 1

Pe rere eT rere rrr peererrey 1

CONSTITUTIONAL PROVISIONS, STATUTES AND

APE MEE OPENED sis kde wes keas xen eke Wassads 2

STATEMENT OF THE CASE.............000200000- 4

1. The Delaware River Port Authority ............ 4

2. The Respondents, Fraternal Order of Police

Penn-Jersey Lodge 30 and Vena................ 8

3. The Negotiations Following Expiration of the

1992 DRPA-FOP Collective Bargaining Agree-

REFERS PER IO er oes sre rer errr rere . 8

4. Proceedings in the New Jersey Superior Court,

Fg err ere Te fore re rrr er ree rT 9

5. Proceedings in the New Jersey Superior Court,

PR TD, 5 Ks edi 5 4s re ens 10

REASONS FOR GRANTING THE WRIT............ 13

I. The Court Should Grant Certiorari to Settle an

Important and Frequently Recurring Question of

Federal Law Involving the Appropriate Legal

Standard for Interpreting Compacts on Which the

Courts of Pennsylvania, New Jersey, New York,

and Delaware, and the Federal Courts of

Pennsylvania, New York, and Maryland are

BE kk caebien kd FRNERL ER ORIASEN ESAS A CURR Eeeed 13

a hiihesdidenlaed in ties en Cee

TABLE OF CONTENTS — (Continued)

Page

A. New Jersey Decisions Conflict with Control-

ling Decisions of New York, Pennsylvania and

Delaware State Courts on the Propriety of the

“Implied Amendment” Standard ............ 15

1. New Jersey v. New York Law............. 16

2. New Jersey vs. Pennsylvania Law......... 17

3. New Jersey vs. Delaware Law............ 18

B. The New Jersey Rule Conflicts with Appli-

cable Federal Court Precedent in the Affected

States of New York and Pennsylvania on the

“Implied Amendment” Standard............. 19

I]. The New Jersey Courts’ “Implied Amendment”

to the DRPA Compact, a “Law of the United

States,” Violates the Supremacy Clause by

Erroneously Engrafting Binding Arbitration

Procedures that Conflict with, and Subordinate,

Controlling Powers Conferred by the DRPA

SNE ia 0k Soe ee 21

III. The Questions Are Important And Have Far-

Reaching Practical Consequences ............... 22

8 rh ie Nef tee 24

APPENDIX A:

Opinion of Superior Court of New Jersey, Appellate

Division, filed July 22, 1999....................... la

APPENDIX B:

Order of Superior Court of New Jersey, Law Divi-

sion, filed February 17, 1998...................... l6a

APPENDIX C:

Order of Superior Court of New Jersey, Law Divi-

sion, filed December 19, 1997.................... 18a

TABLE OF CONTENTS — (Continued)

Page

APPENDIX D:

Order of Superior Court of New Jersey, Law Divi-

sion, filed November 21, 1997. .........ccccceceess 20a

APPENDIX E:

Corrected Order of Supreme Court of New Jersey

denying petition for certification, filed December 7,

ROOD vic vinsecdnedéatecsssvanseeeeee 22a

APPENDIX F:

Public Resolution S.J. Res. 41 Chapter 258 - June 14,

BUSZ, SF GUO, SOD x o0.05.5kvetnpensavaseuesaseeees 23a

Public Law 573 Chapter 922 - July 17, 1952, 66 Stat.

POE oid snus cendseceessaausaeenusewnen nee 39a

Public Law 88-320 - June 13, 1964, 78 Stat. 215..... 55a

Public Law 102-544 - October 27, 1992, 106 Stat.

SAPO s 0 vance suns nucinktueae Genesee 66a

APPENDIX G:

Pennsylvania Collective Bargaining by Policemen or

Firemen Act, 43 PS.§§ 217.1 to 10... 2... .cceeee. 8la

APPENDIX H: ‘

New Jersey Police and Fire Public Interest Arbitra-

tion Reform Act, 34:13A-1 to -29 ................. 86a

Da 0 Ee

TABLE OF AUTHORITIES

Cases: Page

FEDERAL CASES

Arizona v. California, 373 U.S. 546 (1963).............. 14

Baron v. Port Authority of New York and New Jersey, 968

Be . SF GON Ss BORER ion oc ck caddccnncacda 16, 20

C.T. Hellmuth & Assocs., Inc. v. Washington Metropolitan

Area Transit Auth., 414 F. Supp. 408 (D. Md. 1976) = 21

Carchman v. Nash, 473 U.S. 716 (1985) ................ 15

ee gk et ee 21

Cuyler v. Adams, 449 U.S. 433 (1981)............. li, 14, 15

Delaware River Joint Toll Bridge Comm’n v. Colburn, 310

2 PP rr rrr mre iran Ne teate 14

Pennsylvania v. Wheeling & Belmont Bridge Co.,

Pe See Pe I os 08 655548 hebd beans cen eden as 14

Pilla v. DRPA, 1999 WL 45918, (E.D. Pa. May 7, 1999).. 19

Seattle Master Builders Ass'n. v. Pacific Northwest Electric

Power & Conservation Planning Council, 786 F.2d

1359 (9th Cir. 1986), cert. denied, 479 U.S. 1059

SUE han kaweedenkiesunltbinescoreeekeerarnans 20

Texas v. New Mexico, 462 U.S. 554 (1983) ......... ii, 14, 22

Texas v. New Mexico, 482 U.S. 124 (1987) .............. 14

United States v. Utah, Nevada & California Stage Co.,

Se ee I Ae Kn dea eka ee eda eked 15

STATE CASES

Bailey v. Port Authority of New York & New Jersey, No.

40149-92 (N.Y. Sup. Ct. May 18, 1994), aff’d, 627

N.Y.S.2d 921(N.Y. App. Div. 1995) ................ 17

City of Clariton v. PLRB, 107 Pa. Commw. 561, 528 A.2d

a SSO RE ney er rare eae 23

Vii

TABLE OF AUTHORITIES — (Continued)

Cases: Page

Delaware River & Bay Auth. v. Carello, 43 Del.Ch. 213,

ee Ge Pe CUR Ck cavoncasavcnad ba nacsdansae> 18

FOP, Penn-Jersey Lodge 30 v. Delaware River Port Auth.,

323 N.J. Super. 444, 733 A.2d 545, cert. denied, 162

fa we Fe greg). eee ererr re erry 1

International Union of Operating Engineers, Local 68 v.

Delaware River and Bay Auth., 147 N.J. 433, 688

A.2d 569, cert. denied, 522 U.S. 861 (1997).... 12, 18, 19

Klickitat County v. State, 71 Wn. App. 760, 862 P.2d 629

SE es hho ie oh SRR OR EGA Waka ae 20

In re Local 195, 88 N.J. 393, 443 A.2d 187 (1992) ....... 23

Malverty v. Waterfront Comm’n of New York Harbor, 71

N.Y.2d 977, 529 N.Y.S.2d 67, 524 N.E.2d 421

Re ee rer eee re ee, ee Spe 16

Nardi v. Delaware River Port Auth., 88 Pa. Commw. 558,

ee ee ee ii hb oes ee ccche kes tee keess 17

Philadelphia Housing Auth. v. PLRB, 508 Pa. 576, 499

ee eo oso th bs bewnd Keb Cds s ewes 12, 18

Salmon for All v. Department of Fisheries, 118 Wn. 2d

as ee Fe I 5 kh ahh bce dd ha eweennduna 20

CONSTITUTIONAL PROVISIONS _

Compact Clause, U.S. Const. art. 1 § 10, cl. 3..... li, 1, 2, 14

Supremacy Clause, U.S. Const. art. VI, cl. 2............ li, 2

FEDERAL STATUTES

Oe Ri Si 4 os is eee ae 1

Act of June 14, 1932, ch. 258, 47 Stat. 308........... 1, 3, 4

Act of July 17, 1952, Pub. L. 573, 66 Stat. 747.......... 4

Act of October 27, 1992, Pub. L. 102-544, 106 Stat.

DUPs ion dusscdsass nee eee 5

Vili

TABLE OF AUTHORITIES — (Continued)

Page

STATE STATUTES

es Ms UII WE UND ik kos kno 'sc dw cwedenacandus 4

See i OI Pc so kk Kad ocd dy Ge ou dade eeveeanca 4

Pay Ns HAI I kk Sdn occa een gacundcacadas 9

ee ms PU OD oe nk one sd es nccdescddcudacus 5

ee ee ee rr nae 5

Pe Te I. SOR on env cave ad iene sdcancad 3,9

Pm ee Pa, GR, Be De oven ccc cd cc vc wmcccnaansce 4,5

Pa. Stet. Amn. tt. 36 § 3908.1, o ate... wo oc cece css 5

oe eo ek Sg en cen 3, 9, 18

OTHER AUTHORITIES

Council of State Governments, Interstate Compacts &

Ne ee a eee ww kx kan 4

Felix Frankfurter & James M. Landis, The Compact

Clause of the Constitution — A Study in Interstate

Adjustments, 34 Yale L.J. 685 (1925)............... 14

Marian E. Ridgeway, Interstate Compacts: A Question of

racy nck kash anuce 14

ix

PETITION FOR WRIT OF CERTIORARI

The Delaware River Port Authority (“DRPA”), a bi-state

compact entity created in 1932 by the Commonwealth of

Pennsylvania and the State of New Jersey, and approved pur-

suant to the Compact Clause of the Constitution of the United

States, Art. I, § 10, cl. 3, by Resolution of Congress, Pub. Res.

No. 26, ch. 258, 47 Stat. 308 (1932), respectfully requests that

a writ of certiorari be issued to review the decision and judg-

ment of the Superior Court of New Jersey, Appellate Division,

entered on July 22, 1999.

OPINIONS BELOW

The Opinion of the Superior Court of New Jersey, Appel-

late Division, is reported at FOP, Penn-Jersey Lodge 30 v.

Delaware River Port Auth., 323 N.J. Super. 444, 733 A.2d 545,

cert. denied, 162 N.J. 663, 745 A.2d 1213 (1999)(A-1a).! The

Supreme Court of New Jersey denied the DRPA’s petition for

certification and appeal to review the decision of the Appel-

late Division (A-22a) on December 7, 1999.

The decisions of the Superior Court of New Jersey, Law

Division, are unreported and are set forth herein (A-16a, 18a,

20a).

JURISDICTION

. The Order of the Supreme Court of New Jersey denying

the DRPA’s petition for certification and appeal (A-22a) is

dated December 7, 1999. This Court has jurisdiction to review

the judgment of the Superior Court of New Jersey, Appellate

Division, by writ of certiorari pursuant to 28 U.S.C. § 1257(a).

Upon motion, the time for filing this Petition for writ of cer-

tiorari was extended until May 5, 2000, by this Court’s action

taken on February 17, 2000.

1. References to ‘A-’ followed by a page number are to the Appendix

to the Petition.

CONSTITUTIONAL PROVISIONS, STATUTES AND

RULES INVOLVED

The Compact Clause of the Constitution of the United

States, Article I, § 10, clause 3, provides:

No State shall, without the Consent of Congress, . .

enter into any Agreement or Compact with another

State ....

The Supremacy Clause of the Constitution of the United

States, Article VI, clause 2 provides:

This Constitution, and the Laws of the United States

which shall be made in Pursuance thereof; and all

Treaties made, or which shall be made, under the

Authority of the United States, shall be the supreme

Law of the Land; and the Judges in every State shall

be bound thereby, any Thing in the Constitution or

Laws of any State to the Contrary notwithstanding.

The Compact between Pennsylvania and New Jersey cre-

ating the Delaware River Port Authority, as amended (the

“Compact”), is set out in Appendix F, infra, (A-23a-80a).

Article IV(e) of the DRPA Compact provides, in relevant

part:

(A-7la).

For the effectuation of its authorized purposes the

commission is hereby granted the following powers:

* * *

(e) To appoint, hire or employ ... such agents and

employees as it may require for the performance of

its duties, by contract or otherwise, and fix and

determine their qualifications, duties, and compen-

sation.

Article IV provides that additional powers may be

imposed on the DRPA by the action of either State “con-

curred in by the legislation of the other”:

The commission shall also have such additional

powers as may hereafter be delegated to or imposed

upon it from time to time by the action of either

State concurred in by the legislation of the other.

2

(A-73a).

The Resolutions of the Congress of the United States

approving the Compact, Pub. Res. No. 26, ch. 258, 47 Stat. 308

(1932), as amended, are set out at Appendix F, infra, pp.

A-23a-24a, 39a, 55a-S6a, 66a.

Pennsylvania’s Act 111, 43 Pa. Stat. Ann. tit. § 217.1, er

seq. (“Act 111”), applicable only to certain “[pJolicemen or

firemen employed by a political subdivision of the Common-

wealth or by the Commonwealth ...,” is set out at Appendix

G, infra, at A-81a-8S5a.

New Jersey’s binding interest arbitration procedure set

forth in the New Jersey’s Police and Firefighters Interest Arbi-

tration Reform Act (“NJIARA”), N.J. Stat. Ann. 34:13A-14a,

ef Seq., 1S Set Out in Appendix H, infra, at A-86a-103a.

STATEMENT OF THE CASE

1. The Delaware River Port Authority.

The Delaware River Port Authority, originally the Dela-

ware River Joint Commission,” a bi-state compact entity, was

created in 1932 by interstate compact between Pennsylvania

and New Jersey, for the purpose of developing and maintain-

ing bridges and port facilities between the two states. 47 Stat.

308 (A-24a-25a); N.J. Stat. Ann. 32:3-2, et seq.; Pa. Stat. Ann.

tit. 36 § 3503. Congress duly approved the DRPA Compact in

1932. Pub. Res. No. 26, ch. 258, 47 Stat. 308 (1932). (A-23a).

The DRPA is authorized, inter alia, to construct bridges,

to build connecting roads, to provide transportation services

and to engage in various economic development projects

within the Delaware River Port District of Pennsylvania and

New Jersey. The magnitude of its current activities is illus-

trated by the fact that, in 1999, approximately 50 million

vehicles crossed the DRPA’s major interstate bridge facilities,

and bridge tolls approximating $116 million were collected to

support these operations. The DRPA maintains four impor-

tant Pennsylvania-New Jersey interstate bridge facilities (the

Benjamin Franklin Bridge, the Walt Whitman Bridge, the

Commodore Barry Bridge and the Betsy Ross Bridge).

Through a wholly-owned subsidiary, the Port Authority Tran-

sit Corporation, it also operates a high-speed rail line over one

of the bridges between the two states.

Interstate compact entities collectively employ thousands

of persons nationwide. Congress has authorized over 190 such

bi-state or interstate compacts, 34 of which involve as a party

the State of New Jersey.* Many compacts create compact enti-

ties. Compact entities in which New Jersey participates alone

employ nearly 10,000 people, and include (1) the DRPA, itself

(Pennsylvania and New Jersey), (2) the Delaware River &

2. In 1951, New Jersey and Pennsylvania amended the Compact by

enacting joint legislation which, among other things, changed the name to

the “Delaware River Port Authority.” Act of July 17, 1952, Pub. L. 573, 66

Stat. 747 (A-39a); N.J. Stat. Ann. § 32:3-1; Pa. Stat. Ann. tit. 36 § 3503.

3. Council of State Governments, Interstate Compacts & Agencies 134-

156 (1998). ;

narsth a

Bay Authority (“DRBA”) (New Jersey and Delaware), (3)

the Port Authority of New York and New Jersey (New Jersey

and New York), and (4) the Waterfront Commission of New

York Harbor (New Jersey and New York). These important

bi-state compact entities are directly and substantially affected

by the New Jersey decision at issue in this case.

The DRPA is authorized by its Compact, and by specifi-

cally enacted, parallel, and nearly identical legislation of both

Pennsylvania and New Jersey, to appoint and maintain a

police force to patrol bridges, their approaches and other

Authority property. N.J. Stat. Ann. 32:4-6, et seq.; Pa. Stat.

Ann. tit. 36 § 3504.1, et seq. The DRPA is governed by a

Board of Commissioners which is comprised of eight members

from Pennsylvania, six appointed by the Governor of Pennsyl-

vania, in addition to Pennsylvania’s Auditor General and State

Treasurer, and eight members appointed by the Governor of

New Jersey. Article IV(e) of the DRPA Compact grants its

Board of Commissioners the power to “fix and determine

[the] qualifications, duties, and compensation” of its employ-

ees and occupies the field of labor relations between the

DRPA and its employees. Act of October 27, 1992, Pub. L.

102-544, 106 Stat. 3576 (A-71a); N.J. Stat. Ann. 32:3-5(e); Pa.

Stat. Ann. tit. 36 § 3503.

Amendment of the DRPA Compact is governed by the

Compact Clause of the Constitution and, more specifically, by

Article IV of the DRPA Compact, which provides that the

DRPA “shall also have such additional powers as may hereaf-

ter be delegated to or imposed upon it from time to time by

the action of either State concurred in by legislation of the

other.” (A-73a).4 Provisions identical or nearly identical to this

amendment provision, requiring legislation by one state “con-

curred in” by the other member of the compact, or “concur-

rent legislation” to amend a compact, are standard in numer-

Ous interstate compacts, involving all fifty states and the

District of Columbia.‘

4. Emphasis added throughout unless otherwise noted.

5S. See, e.g., Chesapeake Bay Commission Agreement (“concurrence of

the legislatures” required); Bi-State Development Agency Compact Missouri

(“such additional powers as shall be conferred on it by the legislature of

either state concurred in by the legislature of the other”); Breaks Interstate

5

Pursuant to Article IV, from time to time since the

DRPA’s creation, Pennsylvania and New Jersey have acted by

NOTES (Continued)

Park Compact (“concurrent action” required); Connecticut-New York Rail-

road Passenger Transportation Compact (“concurrent legislation” required);

Connecticut River Flood Control Compact (“action of the legislature of any

of said states, concurred in by the legislation of the other states” required);

Delaware Valley Urban Area Compact (“concurrent legislation” required);

New England Interstate Water Pollution Control Compact (“acts of a signa-

tory state concurred in by the others” required); New York-New Jersey Port

Authority Compact (“action of the legislature of either state concurred in by

the legislature of the other” required); Kansas City Area Transportation

District and Authority Compact (“to exercise such additional powers as shall

be conferred on it by the Legislature of either State concurred in by the

Legislature of the other”); Kansas-Missouri Flood Prevention and Control

Compact (“concurrent legislation” required); Merrimack River (Basin)

Flood Control Compact (“action of the legislature of either of said states,

concurred in by the legislature of the other” required); Mississippi River

Interstate Pollution Phase-Out Compact (“effective when concurred in by all

signatories”); New England Higher Education Compact (“concurrent act or

acts” required); Palisades Interstate Park Compact New Jersey (“concurrent

action” required); Portsmouth-Kittery Bridge Compact (action “concurred in

by the legislature of the other state” required); Tahoe Regional Planning

Compact (same); Thames River Flood Control Compact (same); Tri-State

Agreement on the Chesapeake Bay (“concurrence of the legislatures”

required); Tri-State Lotto Compact (“concurrent legislation” required); Tri-

State Sanitation Compact (“additional powers as shall be conferred upon it

by the act of acts or a signatory state concurred in by the others” required);

Wabash Valley Compact (“concurred in by the legislature of the other”

required); Washington Metropolitan Area Transit Authority Compact (“con-

curred in by all of the others” required); Waterfront Commission Compact

(“concurred in by the Legislature of the other” required); Wheeling Creek

Watershed Protection and Flood Prevention Compact (“concurrent action”

required). See also Arkansas River Compact of 1949 (“unanimous action of

the states” required); Arkansas River Basin Compact of 1970 (same); Bear

River Compact (“ratified by the legislatures of the signatory states”

required); Belle Fourche River Compact (“amended by the action of the leg-

islature of the states” required); Colorado River Compact (“legislative rati-

fication” required); Columbia River Compact (“mutual consent and appro-

bation of both states” required); Delaware River and Bay Authority

Compact (“authorization by the law of both states” required); Gulf States

Marine Fisheries Compact (“acts of their respective legislatures” required);

Interstate Insurance Receivership Compact (“unanimous consent of the Com-

pacting States” required); Midwestern Higher Education Compact (“enact-

ment of the legislatures of all compacting states” required); Interstate Uni-

6

—————

—_——_—_— eI 9

DRPA’s creation, Pennsylvania and New Jersey have acted by

adopting almost identical legislation specifically applicable to

the DRPA, to delegate additional powers and to impose addi-

tional duties on the DRPA. When enacted by one of the

states, such legislation typically provides that it shall not be

effective until the other state enacts identical legislation. Nei-

ther the Pennsylvania legislature nor the New Jersey legisla-

ture has ever enacted legislation specifically applicable to the

DRPA that requires disputes with its police officers, or any

other DRPA employees, to be submitted to binding interest

arbitration. In fact, Pennsylvania’s interest arbitration statute

is not even applicable to all Pennsylvania police departments.

The methods typically employed to amend the terms of a

compact are (i) enactment of legislation by each state legisla-

ture specifically referring to the entity and addressing some

aspect of the operation of the entity in question, or (ii) enact-

ment of legislation of more general application that includes

by specific definitional reference a class of entities that

includes bi-state compact entities to which the legislation is

made applicable. Such amendments, adopted by specific con-

current legislation, may then made be the subject of formal

form Agreement on Detainers (“unless the states concerned shall have

entered into a supplemental agreement” required); Interstate Wildlife Viola-

tor Compact (“endorsement by all participating states” required); Jennings

Randolph Lake Project Compact (ratification required); Kansas-Nebraska

Big Blue River Compact (“unanimous action” required); Maine-New Hamp-

shire School District Compact (approval required); Midwest Interstate Low-

Level Radioactive Waste Compact (amendments effective when “enacted by

all party states”); Missouri and Kansas Metropolitan Culture District Com-

pact (“upon enactment”); Nonresident Violator Compact (“endorsement of

all party jurisdictions” required); Nurse Licensure Compact (“enactment

into the laws of all party states”); Ohio River Valley Water Sanitation Com-

pact (“subsequent action of the respective legislatures of the signatory

states” required); Potomac River Compact of 1958 (“joint enactment”

required); Red River Compact (“appropriate action of the Legislatures of all

Signatory States” required); Rio Grande Interstate Compact (“unanimous

action” required); Southern Regional Education Compact (“legislative enact-

ment of said states” required); Upper Niobrara River Compact (“action of

the Legislatures” required); Washington Metropolitan Area Transit District

“adopt[ion] by each of the signatories” required); Western Regional

(Higher) Education Compact (“subsequent action of the respective legisla-

tures” required).

approval by Resolution of Congress, pursuant to the Compact

Clause. The amendment provisions of many bi-state compacts

generally mirror the amendment provision of Article IV of the

DRPA Compact.

This case involves the question whether “implied amend-

ment” of a compact may be validly recognized by the state

judiciary based solely on state legislation that not only does

not specifically mention the bi-state compact entity, but also is

concededly otherwise inapplicable to the compact entity. The

holding below that a “public policy” of binding interest arbi-

tration legislation applies to the DRPA involves judicial

extrapolation of legislative intent based solely on court-

perceived common “policies” of the two states that dispenses

with the normal requirement of legislative intent of actual

agreement by the two states to make state laws apply to a

bi-state compact entity.

2. The Respondents, Fraternal Order of Police Penn-

Jersey Lodge 30 and Vena.

Respondent Fraternal Order of Police Penn-Jersey Lodge

30 (“FOP”) is the agent for certain of the members of the

DRPA police force with respect to collective bargaining over

terms and conditions of employment. Respondent, Joseph

Vena, is its former First Vice-President. The DRPA voluntar-

ily recognized the FOP as the agent of certain DRPA police

officers after, and notwithstanding that, the public employee

agencies of New Jersey and Pennsylvania, as well as the

National Labor Relations Board, determined that neither

state labor laws nor federal labor laws apply to the DRPA.

3. The Negotiations Following Expiration of the 1992

DRPA-FOP Collective Bargaining Agreement.

Notwithstanding fourteen good faith collective bargaining

sessions, the DRPA and the FOP failed to reach agreement on

terms to replace their 1992 Agreement, which expired by its

terms on December 10, 1995. On August 21, 1996, in accor-

dance with their express Compact powers to set employees’

compensation and terms and conditions of employment and in

order to assure the continuous operation of these important

interstate transportation facilities, the DRPA Board of Com-

missioners passed a resolution (“the Resolution”) fixing the

8

Morb ae eben be MA a bay? es 8. es ~ whe

°F A Xv ne AL GACY Ah BAL reed

terms and conditions of employment for DRPA police offic-

ers, all of which it had previously proposed in negotiations. In

accordance with the Compact, which reserves to both states

the right to submit DRPA actions to their respective Gover-

nors for veto,® the Resolution was submitted to the Governor

of New Jersey, the Honorable Christine Todd Whitman, who

did not veto it, and the Resolution became effective. (A-70a).

4. Proceedings in the New Jersey Superior Court, Law

Division.

Plaintiffs filed suit on August 20, 1996, in the Superior

Court, Law Division, for Camden County, New Jersey, seeking

to enjoin the DRPA’s implementation of the Resolution, an

order requiring the DRPA to return to negotiations, and an

order appointing a “mediator or other neutral entity selected

by the court, to assist the parties in the negotiation process.”

The DRPA filed a Motion to Dismiss styled as a Motion

for Summary Judgment, which the trial judge then assigned,

the Honorable Samuel Supnick, denied from the bench on

December 20, 1996. The court determined that Pennsylvania

and New Jersey have parallel and complementary legislation,

albeit “of a different nature,” that gives public employees a

right to freely organize and designate representatives and also

to negotiate in good faith. The issue whether the DRPA could

be required to submit disputes to binding interest arbitration

was not initially presented.

On June 13, 1997, the FOP filed a motion for summary

judgment seeking an order requiring the DRPA to submit to

binding interest arbitration under New Jersey law, and raised

the issue whether Pennsylvania’s Act 111, 43 Pa. Stat. Ann. tit.

§ 217.1, et seq. and New Jersey’s Police and Firefighters Inter-

est Arbitration Reform Act, N.J. Stat. Ann. 34:13A-15, et seq.

were sufficiently similar to constitute an amendment to the

DRPA Compact or were otherwise applicable to the DRPA.

On November 3, 1997, the Honorable Allan P. Vogelson deter-

mined that, although neither the Pennsylvania nor the New

Jersey state statutes providing for binding arbitration apply to

6. New Jersey alone enacted legislation implementing this veto power.

N.J. Stat. Ann. 32:3-4a-c.

the DRPA, the Pennsylvania and New Jersey police interest

arbitration provisions are “parallel and complementary” and,

therefore, constitute, in effect, an “implied amendment” to the

DRPA Compact that requires DRPA police labor disputes to

be submitted to binding arbitration. Judge Vogelson ordered

that “if the Parties remain at impasse the Court ‘can and will’

order binding interest arbitration.” (Appendix D, A-20a-21a).’

By Order dated February 17, 1998 (A-16a-17a), the trial

court denied the DRPA’s Motion for Reconsideration, even

though it acknowledged in its January 23, 1998, bench opinion

that there are many obvious, “specific” material “differences”

between the Pennsylvania and New Jersey statutes in applica-

tion, procedure, and legal standards governing interest arbitra-

tion. However, in construing the Compact and this state legis-

lation to include binding arbitration, the court, in its January

23, 1998, bench opinion, gave controlling weight to its deter-

mination that New Jersey and Pennsylvania share a general

“policy” of “dispute resolution without a strike”:

.. . [S}Jimplistically the policy is dispute resolution with-

out a strike, providing a vehicle by which that can be

done. That’s the stated policy and I so find, and I find

that they are substantially similar for that purpose.

While acknowledging that there are specific, but — I

hesitate to use the word unimportant — recognizing

that they are — there are differences that don’t change

the policy — do not change the policy.

5. Proceedings in the New Jersey Superior Court, Appel-

late Division.

On the DRPA’s timely appeal, the New Jersey Superior

Court, Appellate Division, affirmed, noting “the public impor-

tance of this issue” (A-7a at n. 4). The Appellate Division did

not question that the DRPA Compact “is a law of the Union”

or that its interpretation “is a question of federal law” (A-1a).

The court noted, but did not give effect to, the DRPA Com-

missioners’ express power under the Compact to “hire or

employ” such agents and employees as it may require for the

performance of its duties and to “fix and determine their

7. See Appendix C for Trial Court’s December 19, 1997 Order.

10

to Raa,

qualifications, duties and compensation.” (A-8a). The court

acknowledged that “neither creator state can unilaterally

impose additional duties, powers or responsibilities upon the

DRPA” (A-9a), and that “[flor single state jurisdiction to be

exercised over the DRPA there must be complementary state

legislation” or, in an alternative formulation, “complementary

or parallel state legislation” (A-8a-9a).

The Appellate Division nonetheless departed from 75

years of bi-state compact jurisprudence and applied an unusu-

ally expansive legal standard for determining what constitutes

such “complementary state legislation.” The court held that to

be applicable to a compact entity such as the DRPA, as an

amendment to the Compact, the “parallel or complementary

state legislation” of New Jersey and Pennsylvania “need not be

nearly identical” and need not even “specifically apply to the

agency.” (A-9a). An amendment to an interstate compact may

simply be implied, it held, so long as some common “public

policy” can be discerned in both states’ legislation — even

though the statutory scheme of each is not even applicable to

the bi-state entity in question (A-9a):

This parallel or complementary legislation need not be

nearly identical and specifically apply to the agency.

Rather, the public policy of both states, articulated in

parallel statutes that are substantially similar but do not

specifically include defendant, is applicable to a bi-state

agency, although the statutory scheme of each is not.

The Court dispensed with any requirement of express

Statutory language or legislative history evincing the states’

specific agreement to apply particular corresponding legisla-

tion to the bi-state compact entity. (A-14a). The court held

that, here, a general “policy of dispute resolution without a

strike,” which the courts divined in the two states’ statutes, by

itself sufficed to warrant application of the state “policies” to

a Congressionally approved bi-state compact entity to which,

admittedly, neither state’s law was intended by the respective

state legislatures to apply. In applying the standard, the New

Jersey court also ignored definitive Pennsylvania Supreme

Court authority that Pennsylvania’s Act 111, on which it relied

as the source of Pennsylvania’s assumed “policy,” does not, in

11

fact, guarantee all Pennsylvania public sector police employ-

ees the right to interest arbitration and does not apply to enti-

ties such as the DRPA. For example, binding arbitration has

been held inapplicable to police officers of the Philadelphia

Housing Authority. See Philadelphia Housing Auth. v. PLRB,

508 Pa. 576, 585, 499 A.2d 294, 299-301 (1985). The court

acknowledged, but chose to ignore, “some differences” in

scope, nature and applicability of interest arbitration for

police officers, between the New Jersey and Pennsylvania stat-

utes and relied, instead, on its broad determination that “each

state has made a policy decision in favor of public interest arbi-

tration for police officers.” (A-12a). To characterize the states’

respective statutes as “parallel,” the New Jersey court was

forced to minimize Pennsylvania’s lack of criteria required to

be considered by interest arbitrators and to dismiss New Jer-

sey’s detailed specification of criteria that arbitrators are

required to consider as nothing more than “a codification of

the factors any competent public interest arbitrator would

apply.” (A-13a-14a).

In effect, the court fashioned and applied a doctrine of

“implied” interstate compact amendment, in which a court of

one compact party is authorized to “imply” remedies and pro-

cedures from the general laws of the compact states without

specific warrant in the legislative history and statutes of either

of the creator-states.§ In identifying the common “policy”

required under its newly-fashioned standard for “parallel and

complementary” legislation, the Appellate Division conflated

the right to “negotiate” with the right to interest arbitration,

and, in one passage,° identified as the controlling “common

8. The Appellate Division relied on the New Jersey Supreme Court's

earlier decision in International Union of Operating Engineers, Local 68 v.

Delaware River and Bay Auth., 147 N.J. 433, 688 A.2d 569, cert. denied, 522

U.S. 861 (1997), which addressed the applicability to a New Jersey-Delaware

compact entity of certain state labor legislation of Delaware and New Jer-

sey.

9. The New Jersey courts variously formulated this “common public

policy.” The appellate court formulated the supposed “common policy” as

(a) “public interest-arbitration for police officers,” or (b) that “public

employees are entitled to engage in collective bargaining.” The trial court

identified the “common policy” as simply “dispute resolution without a

i strike.”

12

a eee ee eee ee ae 2 Sa

Sew

policy” the “basic public policy of each state that their public

employees are entitled to engage in collective negotiations with

their employer” (A-14a).:

Although we discern some differences in each state’s

legislation governing public employer-employee labor

disputes, we conclude that these differences do not

negate the basic public policy of each state that their

public employees are entitled to engage in collective

negotiations with their employer. The discrepancies are

not so significant to render the two statutory schemes

substantially dissimilar. Thus, the New Jersey statutes

and the Pennsylvania statutes are complementary and

parallel.

The court gave no weight to the fact that neither Pennsyl-

vania’s nor New Jersey’s statute specifically applied to the

DRPA and likewise gave no effect to the express Compact

provision that confers on DRPA Commissioners the power to

set employees’ compensation. Instead, the court concluded

that New Jersey courts are free to substitute for the decisions

of the appointed DRPA Commissioners, exercising express

Compact powers, the decisions of New Jersey court-appointed

arbitrators operating under a hybrid arbitration procedure and

standard to be fashioned by a state court from the two states’

statutes, neither of which, admittedly, was ever intended by

the respective state legislatures to apply to the DRPA.

The Supreme Court of New Jersey denied the DRPA’s

petition for certification without opinion by Order dated

December 7, 1999 (A-22a).

REASONS FOR GRANTING THE WRIT

I. The Court Should Grant Certiorari to Settle an Important

and Frequently Recurring Question of Federal Law

Involving the Appropriate Legai Standard for Interpreting

Compacts on Which the Courts of Pennsylvania, New Jer-

sey, New York, and Delaware, and the Federal Courts of

Pennsylvania, New York, and Maryland are Split.

This case involves the appropriate legal standard for

determining when states have agreed to amend an interstate

13

compact by enacting parallel legislation, an important and

frequently recurring question of federal law at the intersection

of state and federal sovereignties.

The Compact Clause provides that “[n]o State shall, with-

out the Consent of Congress .. . enter into any Agreement or

Compact with another State... .” U.S. Const. art. I, § 10, cl.

3. The Court has said that “congressional consent transforms

an interstate compact within [the Compact] Clause into a law

of the United States.” Cuyler v. Adams, 449 U.S. 433, 438

(1981); Pennsylvania v. Wheeling & Belmont Bridge Co., 54

U.S. 518, 566 (1852) (“This compact, by the sanction of Con-

gress, has become the law of the Union”). The interpretation

of an interstate compact thus presents a federal question. See

Delaware River Joint Toll Bridge Comm'n v. Colburn, 310 U.S.

419, 427-28 (1940).

“A compact entered is an obligation which as long as it

exists, diminishes the freedom of the state to act indepen-

dently in a particular sphere of interest. .. .” Marian E. Ridge-

way, Interstate Compacts, A Question of Federalism 298 (1971).

To the extent that this Court has federalized the interpretation

of inter-state compacts it recognizes a further derogation of

State sovereignty under the Compact Clause. The Court has

observed that “by vesting in Congress the power to grant or

withhold consent .. . the Framers sought to ensure that Con-

gress would maintain ultimate supervisory power over coop-

erative State action that might otherwise interfere with the full

and free exercise of federal authority.” Cuyler, 449 US. at

439-40 (citing Felix Frankfurter & James M. Landis, The Com-

pact Clause of the Constitution — A Study in Interstate Adjust-

ments, 34 Yale L.J. 685, 694-95 (1925). Thus, this Court has

noted that “unless the compact to which Congress has con-

sented is somehow unconstitutional, no court may order relief

inconsistent with its express terms.” Texas v. New Mexico, 462

U.S. 554, 564 (1983); see also Texas v. New Mexico, 482 U.S.

124, 128 (1987); Arizona v. California, 373 U.S. 546, 565

(1963).

These cases treat an interstate compact as a federal stat-

ute, and thus employ ordinary rules of statutory construction

in its interpretation. The most important and well-established

14

of those rules is that, if possible, the Court will undertake a

plain-language reading of the terms of a compact. See Cuyler,

449 U.S. at 446-447; see also Carchman v. Nash, 473 U.S. 716,

724-26 (1985); United States v. Utah, Nevada & California

Stage Co., 199 U.S. 414, 423 (1905). The need for a uniform

federal standard for determining when states have acted to

amend a compact is particularly acute, because state courts (as

well as federal courts) in co-creator states are routinely called

upon to apply a variety of state legislation to bi-state compact

entities, and, short of corrective state legislation which is dou- -

bly difficult to enact and problematic, only this Court has the

power to resolve the conflicts that result.

In interpreting the requirement of Article IV of the

Compact for “action of either state . . . concurred in by the

legislation of the other” — the standard compact amendment

provision that is employed in numerous existing interstate

compacts!° — and in adopting a standard of “amendment by

implication” for bi-state compact interpretation, the New Jer-

sey courts below have departed from well-established federal

principles of statutory construction, have all but dispensed

with the requirement of agreement by compact partners for

amendment, and have devised a recipe for dangerous discord

between compacting states that is potentially destructive of

the utility of bi-state compacts. The New Jersey courts have

not only fashioned and applied the wrong standard, but also

have ordered relief that is plainly inconsistent with the express

terms of the Compact.

The Court should grant the petition to resolve a conflict

on the appropriate legal standard, among the state and federal

courts of New Jersey, Pennsylvania, New York and Delaware,

and to establish a uniform federal standard in this important

field of federal compact interpretation.

A. New Jersey Decisions Conflict with Controlling Deci-

sions of New York, Pennsylvania and Delaware State

Courts on the Propriety of the “Implied Amend-

ment” Standard.

In adopting a free-wheeling “implication” standard for

defining the “parallel and complementary” state legislation

10. See footnote 5, supra.

15

requirement (“New Jersey Implied Amendment Rule”), the

New Jersey courts have misconstrued and dispensed with the

requirement of Article IV of the Compact, which requires

“action of either State concurred in by the legislation of the

other,” and have cemented the direct conflict of New Jersey

decisions with decisions of New York, Pennsylvania, and Dela-

ware, New Jersey’s sovereign partners in other important

bi-state compact entities.

1. New Jersey v. New York Law.

In sharp contrast with the New Jersey court’s standard,

which dispenses with the central requirement of evidence

of legislative “agreement,” New York has held that the fact

that “two States have evinced the same, or similar, public

policy ... by enacting similar .. . laws . . . is not sufficient .. .

to render [a compact] properly amended or supplemented .. .”

Malverty v. Waterfront Comm’n of New York Harbor, 71

N.Y.2d 977, 529 N.Y.S.2d 67, 524 N.E. 2d 421 (1988). In that

case, a former licensed dockworker sought to compel the

Waterfront Commission of New York Harbor to restore him

to the Longshoreman'’s register, contending that similar legis-

lation enacted by the two compact states, New York and New

Jersey, entitled convicted state offenders such as Malverty to

certain public employment opportunities. As in this case, the

“parallel” New York and New Jersey employment discrimina-

tion legislation in Malverty did not “refer . . . to the Water-

front Commission” and contained no express statement that

the state legislature intended to amend or supplement the

Waterfront Commission Compact. Malverty, 71 N.Y.2d at 980.

The New York Court refused to apply the state legislation to

the Waterfront Commission solely on the basis of “the same,

or similar, public policy regarding employment opportunities

for former inmates. . .” Jd.

As the district court correctly stated in Baron v. Port

Authority of New York and New Jersey, 968 F. Supp. 924, 928

(S.D.N.Y. 1997), quoting Malverty, “. . . in New York it has

been established that in order for a law to be applicable to

[the Port Authority], the statute must expressly state that ‘the

legislation is amending a certain portion of the ‘Compact’ and

16

that the new law would take effect upon the enactment into

law by New Jersey of legislation having an effect identical to

New York’s legislation.’” Jd. Other New York state decisions

are to the same effect. Bailey v. Port Auth. of New York &

New Jersey, No. 40149-92 (N.Y. Sup. Ct. May 18, 1994), aff'd,

627 N.Y.S.2d 921 (N.Y. App. Div. 1995).

2. New Jersey vs. Pennsylvania Law.

New Jersey’s “Implied Amendment” Rule also conflicts

with applicable Pennsylvania decisions on this point. In Nardi

v. Delaware River Port Auth., 88 Pa. Commw. 558, 490 A.2d

949 (1985), a DRPA police officer sued the DRPA for supple-

mentary disability benefits under Pennsylvania law. Although

both the Pennsylvania law and its New Jersey counterpart

were designed for a “similar purpose”, i.e. providing disability

benefits to the DRPA’s police officers, the Commonwealth

Court of Pennsylvania ruled that neither state’s statute could

be applied to the DRPA because New Jersey’s and Pennsylva-

nia’s legislatures had not enacted substantially similar laws.

The Pennsylvania Commonwealth Court held that even state

Statutes of compact states that are premised on the same pub-

lic policy, and that were both made specifically applicable to

the DRPA, were not substantially similar and could not be

imposed on the bi-state entity because Pennsylvania’s statute

required that the DRPA “shall” provide the disability benefits,

while the New Jersey statute provided that the DRPA “may”

provide such benefits. As the Court said, comparing the two

statutes, “[t]he Pennsylvania legislature has demonstrated that

it does not concur” with the New Jersey legislature. Nardi, 88

Pa. Commw. at 564, 490 A.2d at 952. In contrast with New

Jersey, Pennsylvania also requires precise evidence of agree-

ment between the states on the application of specific statutory

measures.

The conflict between Pennsylvania and New Jersey law is

further aggravated in this case by the New Jersey court’s mis-

interpretation of Pennsylvania law. New Jersey not only

defines differently the applicable legal standard for “comple-

mentary or parallel” state legislation for compact amendment,

it also misconstrued the scope of Pennsylvania’s Act 111, the

17

Pennsylvania statute it found “parallel and complementary.”

Under Pennsylvania law, Act 111 is clearly inapplicable to the

DRPA. In Philadelphia Housing Auth. v. PLRB, 508 Pa. 576,

499 A.2d 294 (1985) (“PHA”), the Pennsylvania Supreme

Court squarely held that Act 111, Pennsylvania’s police interest

arbitration law, does not even apply to all Pennsylvania domes-

tic police departments and authorities. Act 111 covers only

“{p]olicemen or firemen employed by a political subdivision of

the Commonwealth or by the Commonwealth . . .” 43 Pa. Stat.

Ann. tit. § 217.1. A “political subdivision” for this purpose is

“any county, city, borough, incorporated town, township,

school district, vocational school district and county institution

district.” The Pennsylvania Supreme Court there held that the

Philadelphia Housing Authority was not a “political subdivi-

sion of the Commonwealth,” and that PHA police are not

within the scope of Act 111.

Under the same definition, the DRPA is neither the

“Commonwealth” nor a “political subdivision of the Com-

monwealth” and its police are clearly outside the scope of Act

111. The New Jersey court thus misidentified and mischarac-

terized Pennsylvania’s “policy,” an error that exposes the

danger of New Jersey’s implied amendment rule that state

“policies” will be misdefined by the other state’s courts. As

construed definitively by Pennsylvania courts, Pennsylvania

legislation does not reflect an unambiguous intent universally

to require binding interest arbitration for all Pennsylvania

police authorities. Pennsylvania’s “parallel” legislation

_Teflects, instead, a discriminating resort to binding interest

arbitration that the New Jersey courts missed.

3. New Jersey vs. Delaware Law.

The New Jersey “Implied Amendment” Rule also con-

flicts with the standard applied by Delaware, which is a party

with New Jersey in the Delaware River & Bay Authority. In

Delaware River & Bay Auth. v. Carello, 43 Del. Ch. 213, 222

A.2d 794 (1966), which antedated New Jersey’s enactment of

legislation that entitled New Jersey public employees to col-

lective bargaining rights, the court held that “power over

Authority employees . . . may not be impaired or diluted by

18

the unilateral action of one member to the compact.” Carello,

222 A.2d at 799. The recent conflict between Delaware and

New Jersey relating to the applicability of the states’ respec-

tive laws is, once again, the result of the very decision relied

by the court below, J/nternational Union of Operating Eng’rs

Local 68 v. Delaware River Bay Auth., 147 N.J. 433, 688 A.2d

569 (1997), cert. denied, 522 U.S. 861 (1997), in which the New

Jersey Supreme Court, using the same new and radical tech-

nique of “implied common policy,” found that the DRBA is

bound by “parallel” New Jersey anc Delaware law relating to

the right to representation in collective bargaining negotia-

tions. The decision below and the relatively recent Local 68

decision illustrate the recurring nature and seriousness of the

issue and the conflict.

B. The New Jersey Rule Conflicts with Applicable Fed-

eral Court Precedent in the Affected States of New

York and Pennsylvania on the “Implied Amendment”

Standard.

Every lower federal court that has considered New Jer-

sey’s “Implied Amendment” Rule has rejected it.

The United States District Court for the Eastern District

of Pennsylvania in Pilla v. DRPA, 1999 WL 45918, (Newcom-

er J.) (E.D. Pa. May 7, 1999), recently rejected the contention

that Pennsylvania’s Human Relations Act and New Jersey’s

Law Against Discrimination are “substantially similar.” The

Court observed: “Plaintiff tries to salvage his claim by arguing

for the more permissive “substantial similarity” test applied by

some New Jersey courts,“ Jd. at *4, but wisely declined to

adopt the “Implied Amendment” Rule of Jnternational Oper-

ating Eng’rs Local 68 v. Delaware River and Bay Auth., supra:

[P]laintiff can point to no federal court that has

adopted New Jersey’s more permissive view, and this

Court has not been persuaded to become the first.

Pilla, at 4.

Because of these conflicts, future litigation in the Pennsyl-

vania federal courts on labor and employment and other

issues may subject the DRPA to one set of rules, while litiga-

tion in New Jersey state courts threatens to subject the DRPA

19

to another, with the prospect of forum-shopping, potential

State-state and state-federal conflicts, and contradictory judi-

cial directives with respect to the same subjects. On this fed-

eral issue, the lower federal courts are not bound by state

court determinations. The state courts are not bound by deci-

sions of the lower federal courts. Only this Court can resolve

the conflict and establish a uniform federal standard.

Nor is the federal-state conflict limited to New Jersey and

Pennsylvania. New York federal courts have also rejected New

Jersey’s “Implied Amendment” approach in favor of the con-

ventional approach that requires “identical” legislation —

with equally serious consequences for important New Jersey-

New York bi-state entities such as the Port Authority of New

York and New Jersey and the Waterfront Commission of New

York Harbor. As the district court correctly pointed out in

Baron v. Port Authority, 968 F. Supp. 924, 929 (S.D.N.Y. 1997),

“[t]hat the two states have evinced the same, or similar, pub-

lic policy regarding employment opportunities . . . by enacting

similar . . . laws is not sufficient under the express terms of the

Compact” to make the bi-state entity subject to the law of

either state.

The adoption of New Jersey’s “Implied Amendment”

Rule places New Jersey in direct, recurring, and vexing con-

flict with both the state and federal courts in each of its neigh-

boring states - New York, Pennsylvania and Delaware — with

which New Jersey has longstanding, significant interstate com-

pacts for interstate transportation and port facilities.

New Jersey’s “Implied Amendment” Rule, moreover, cre-

ates a broader national conflict among the state courts on an

important issue of federal and state relations that warrants

review by this Court."!

ll. The New Jersey “Implied Amendment” Rule conflicts with the

legal standard adopted by state and federal courts in other jurisdictions.

For example the Washington Supreme Court, in Salmon for All v.

Department of Fisheries, 118 Wn. 2d 270, 821 P.2d 1211, 1215-16 (1992), -

rejected the applicability to the Columbia River Compact of state statutes

requiring open public meetings, holding that “interstate compact affairs are

only subject to state law if the compact's terms agree so.” See also Klickitat

County v. State, 71 Wn. App. 760, 862 P. 2d 629, 732-33 (1993) (rejecting

20

IOS Che BPA

II. The New Jersey Courts’ “Implied Amendment” to

the DRPA Compact, a “Law of the United States,”

Violates the Supremacy Clause by Erroneously

Engrafting Binding Arbitration Procedures that Con-

flict with, and Subordinate, Controlling Powers Con-

ferred by the DRPA Compact.

By adopting an “implied amendment” to the Compact,

that requires the DRPA to submit labor disputes to binding

arbitration, the New Jersey courts have engrafted onto the

DRPA Compact arbitration provisions that directly conflict

with the Compact’s provision that confers exclusive power to

fix employees’ compensation on the DRPA’s Commissioners.

As a “law of the United States” and the legal charter of the

DRPA, the Compact enjoys the status of a “supreme law of

the land.” Judges of the State of New Jersey are bound by it.

They are not free loosely to infer “amendments” to it based

on mere state policy similarities, or to substitute for express

Compact provisions hybrid provisions that have no conven-

tional support in the legislative intent of the respective state

legislatures short of agreement to amend it.

A strong showing of specific intent by the respective leg-

islatures to amend the Compact should be required before

binding provisions of a federal law may be ignored and under-

mined. Particularly where, as in this case, such an implied

“amendment” actually conflicts with an express provision of

the Compact, a uniform federal standard should require (i)

applicability to interstate compact entity of state land use requirements).

Federal courts have generally refused to impose additional state-law

duties on bi-state compact entities merely because the co-creators states

have passed laws on the general subject that are similar. Seattle Master

Builders Ass'n. v. Pacific Northwest Electric Power & Conservation Planning

Council, 786 F.2d 1359, 1371 (9th Cir. 1986), cert. denied, 479 U.S. 1059

(1987) (“environmental impact assessment” requirement of parallel Wash-

ington and Montana environmental statutes held inapplicable to compact

entity); C.7: Hellmuth & Assocs., Inc. v. Washington Metro. Area Transit

Auth., 414 F. Supp. 408, 409-410 (D. Md. 1976) (generally comparable stat-

ute makes information laws inapplicable to Compact entity because of

settled rule that “one party may not enact legislation that would impose

burdens on the compact entity absent the concurrence of the other signato-

ries”).

21

concurrent state legislation identifying the compact, and (ii)

clear evidence of specific legislative intent and agreement on

the part of both states to amend it, consistent with the stan-

dard governing compact amendment provisions. Only by

requiring such conventional indicia of legislative intent can

courts facing this question be certain that the states have

“agreed.” Cf. Cort v. Ash, 422 U.S. 66 (1975).

New Jersey’s action in this case, judicially requiring bind-

ing interest arbitration, subordinates an express provision of

federal law to state laws and constitutes a classic violation of

the Supremacy Clause of the Constitution of the United States

by ordering “relief inconsistent with its express terms.” See

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

III. The Questions Are Important And Have Far-

Reaching Practical Consequences.

This case raises a substantial, frequently recurring ques-

tion under the United States Constitution and federal law,

involving the proper method of amending interstate compacts

and altering the basic powers of bi-state compact entities. The

New Jersey courts below commented on the “public impor-

tance” of the case (A-7a), and the New Jersey decision casts a

long shadow over major New Jersey, New York, Pennsylvania

and Delaware bi-state compact agencies that operate impor-

tant interstate transportation facilities. In one stroke, without

support in legislative intent, the New Jersey courts below have

removed from the DRPA Commissioners (who by Compact

have this express power), and from the Governor of New Jer-

sey (who by veto power exercises control over all such issues),

control over an important component of cost and a significant

segment of the budget of important interstate bridge and com-

muter rail facilities, and has substituted an arbitrator.

New Jersey’s “implied amendment” standard invites a

tide of litigation against the DRPA and other similar compact

entities in the New Jersey state courts that Pennsylvania, New

York, Delaware, and New Jersey legislatures never autho-

rized. On the basis of the New Jersey “Implied Amendment”

Rule, forum-shopping plaintiffs are now free to contend that

several additional volumes of state statutes are applicable to

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GABLE in le AR RAD eee

Yeas 5

New Jersey’s important bi-state entities. Potentially at stake in

this case are questions of the applicability to the DRPA and

other bi-state compact entities of other state laws, such as

domestic zoning laws, environmental laws, navigation laws,

laws governing the height, design and construction of bridges

and like state legislation.

The New Jersey “Implied Amendment” Rule is funda-

mentally unsound. It involves the state judiciary in a drifting

legislative enterprise that is not anchored in conventional leg-

islative intent. With nothing but “public policy” for guidance,

courts applying New Jersey’s rule are required to fashion

detailed new hybrid legislative schemes that steer through two

states’ statutory frameworks totally without the aid of — and

even contrary to — specific legislative intent of both states.

The New Jersey court’s mistake in misidentifying “Pennsylva-

nia public policy” in this case points up another flaw in the

rule, which requires state court judges of one compact partner

to review unfamiliar state legislation and provide a sure-

footed reading of the “policy” of the other compact state.

This case provides another excellent example of the

unworkability of this rule. In attempting to apply its ruling, the

trial court must synthesize from conflicting statutory elements

a hybrid binding arbitration procedure that, at a minimum,

answers the following questions: (1) What are the subjects of

arbitration? (2) What specific factors or criteria is the arbitra-

tor(s) required to consider? (3) Must the arbitrator(s) analyze

and explain in writing the evidence in terms of the relevant

factors? (4) Must an arbitrator consider public policy issues

such as the effect on interstate commerce. By way of example,

will the issue of subcontracting be a proper subject of binding

interest arbitration? Compare Jn re Local 195, 88 N.J. 393, 443

A.2d 187 (1992) (subcontracting not subject to arbitration in

New Jersey) with City of Clariton v. PLRB, 107 Pa. Commw.

561, 528 A.2d 1048 (1987) (subcontracting held subject to arbi-

tration in Pennsylvania). Without legislative intent from either

state to point the way, which state’s law will control?

_ New: Jersey’s legal standard is a substantial departure

from established principles of interstate compact interpreta-

tion. It is respectfully submitted that the Court should grant

23.

review to resolve the conflict in standards and to establish a

uniform federal standard that is anchored in the legislative

intent in this sensitive area of state sovereign relations.

CONCLUSION

The petition for writ of certiorari should be granted.

OF COUNSEL:

RICHARD L. BROWN

General Counsel

Delaware River Port

Authority

One Port Center

2 Riverside Drive

Camden, NJ 08101

Respectfully submitted,

WILLIAM H. ROBERTS

Counsel of Record

PETER A. GOLD

SAMUEL M. FIRST

BLANK ROME COMISKY

& McCAULEY LLP

One Logan Square

Philadelphia, PA 19103

(215) 569-5632

Attorneys for Petitioner,

Delaware River

Port Authority

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