Opposition Brief — Delaware River Port Authority v. Fraternal Order of Police

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No. 99-1758

IN THE

Supreme Court of the Gnited States

DELAWARE RIVER PORT AUTHORITY,

Petitioner,

Vv.

FRATERNAL ORDER OF POLICE,

PENN-JERSEY LODGE 30, AND JOSEPH VENA,

Respondents.

On Petition for a Writ of Certiorari to the

Superior Court of New Jersey,

Appellate Division

BRIEF OF

FRATERNAL ORDER OF POLICE,

PENN-JERSEY LODGE 30 and JOSEPH VENA

IN OPPOSITION TO THE PETITION

FOR A WRIT OF CERTIORARI

BRUCE E. ENDY*

CHARLES T. JOYCE

BENJAMIN EISNER

SPEAR, WILDERMAN, BORISH, ENDY,

SPEAR AND RUNCKEL, P.C.

230 South Broad Street, Suite 1400

Philadelphia, PA 19102

(215) 732-0101

Counsel for Fraternal Order of Police

Penn-Jersey Lodge 30 and Joseph Vena

* Counsel of Record

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WiLSOn-EPeS PRINTING CO., INC. — (202) 789-0096 - WASHINGTON, D. C. 20001

COUNTERSTATEMENT OF THE QUESTIONS

PRESENTED

Should this Court grant Certiorari to determine whether

complementary and substantially similar public sector labor

legislation enacted by states which are parties to an interstate

compact may be applied to a bi-state agency formed by the

compact, when the compact itself provides that additional

duties may be imposed upon the agency if both states pass

laws having a “substantially similar effect’? Specifically,

should the Court address this question in a case in which the

Appellate Division of the New Jersey Superior Court applied

a settled principle of construction of bi-state compacts shared

by the agency’s creator states, that conflicts with neither the

decisions of this nor other federal or state Courts, and on

which the New Jersey Supreme Court recently relied in a

decision this Court declined to review or disturb?

Moreover, should this Court review a unanimous and self-

described “s:guably interlocutory” decision of a. state

intermediate appellate court, holding only that the parallel

labor policies of New Jersey and Pennsylvania that provide

police officers with the right to negotiate collectively and

which employ mandatory interest arbitration, rather than

strikes, to settle unresolved issues, should be applied to a bi-

State agency of New Jersey and Pennsylvania?

(i)

TABLE OF CONTENTS

COUNTERSTATEMENT OF THE QUESTIONS

COUNTERSTATEMENT OF THE CASE.............0......

A. The Delaware River Port Authority and

the Fraternal Order of Police Penn-Jersey

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B. The Proceedings Below ............c.sccccrsscserrsseesese

REASONS FOR DENYING THE WRIT................000

I. THE APPELLATE DIVISION PROPERTY

APPLIED LONG-SETTLED AND CON-

SISTENT PRINCIPLES OF NEW JERSEY

AND PENNSYLVANIA LAW IN IN-

TERPRETING THE DRPA - COMPACT,

AND THERE IS NO REASON FOR THIS

COURT TO DISTURB THIS RULING.............

I. THE DECISION BELOW DOES NOT

CONFLICT WITH DECISIONS OF OTHER

STATE OR LOWER FEDERAL COURTS ......

Il. THE DECISION BELOW DOES NOT

CONFLICT WITH THE DRPA COMPACT

AND HENCE DOES NOT VIOLATE THE

Re © GRIT acnecescsinsssctsnsccesessrssserese

IV. THE DECISION BELOW IS “ARGUABLY

INTERLOCUTORY” AND THUS NOT FIT

FOR THIS COURT'S REVIEW ..................00004

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TABLE OF AUTHORITIES

Cases: Page

Ampro Fisheries, Inc. v. Yaskin, 127 N.J. 601,

cert. denied, 506 U.S. 952 (1994)... eee 5

Bunk v. Port Authority of New York and New Jersey,

els Oe sisieen inkvsieonsendicebeesaeteceninndenniaic 5,6

Delaware River and Bay Authority v. Carello, 43

Del.Ch. 213, 222 A.2d 794 (1966)..........scccssceseeeees 9

Delaware River and Bay Authority v. International

Org. of Masters, Mates and Pilots, 45 N.J. 138

PERU ox.cehbusadiosedub cnihinsannapaicaed Uetaniiastnenatabaiaaiaaatananias 5, 6

Delaware River Joint Toll Bridge Comm'n. v.

Colburn, 310 U.S. 499 (194O)......cccccccssoscrsscscsssceses 5

Delaware River Port Authority v. Ethics Comm'n.,

< 585 A.2d 537 (Pa. Cmwlth, 1991) ......... eee 8

Eastern Paralyzed Veterans Ass'n v. Camden

(EVA, FET TD, Fa CRD cisencsisicccccsscsssscevesinsnce 5,6

Hamilton-Brown Shoe Company v. Wolf Brothers and

Ca, PUTER, I sien seins cssaisnsccasnennini 14

Hess v. Port Authority Trans-Hudson Corp., 513 U.S.

NE iicisnnitaieenliiinieiliagiinletaminteiiladiiela. 5

International Union of Operating Engineers, Local

68 v. Delaware River and Bay Authority, 147 N.J.

433, cert. denied, 522 U.S. 361 (1997) ........... aa & 7. 13

Klickitat County v. State, 862 P.2d 629 (Wash. Ct.

BI pice libis teciaespcseiciniiastacial lichadiisindialinsihaanaimiabsieien 10

Malverty v. Waterfront Comm'n of New York Harbor,

DOO POTE.20 421 GLY. PDGB) ....ccccevesccsssceccsceccascessss 11

Moore V. Delaware River Port Authority, 80

F.Supp.2d 764 (D. N.J. 1999) ...........scccccssscccssseseees 9

Nardi v. Delaware River Port Authority, 490 A.2d

I rh CR Te wisthctntiictseisnsncciicisaressnctcnicn 7,8

Oklahoma v. New Mexico, 501 U.S. 239 (1991).......... 13, 14

Petty v. Tennessee-Missouri Bridge Comm’n., 359

rs BEI ee ciiiniiiiuaibiciicaniilabnttaseateiicessdachaniamindiiins 4,12

Pilla v. Delaware River Port Authority, 1999 WL

45918 (E.D. Pa. May 7, 1999) 00000... eeeecesseeeees 9

TABLE OF AUTHORITIES—Continued

Page

Redbird Engineering Sales Inc. v. Bi-State

Development Agency of Missouri-Illinois

Metropolitan District, et al., 806 S.W.2d 695

CRD. FID, SA. FEI E Basestesesessststinsnntoietininianin 10

Rice v. Sioux City Memorial Park Cemetery, 349 US.

We Ce sanitnsin titenssenshinianntanideiestinnabinidsmeniasien 8

Salmon for All v. Department of Fisheries, 821

P.2d 1211 (Wash. 1992) (en banc) ......ccccccceceeeeeeees 10

Seattle Master Builders Ass'n v. Pacific Northwest

Electrical Power and Conservation Planning

Council, 786 F.2d 1359 (9th Cir. 1986), cert.

denied, 479 U.S. 1059 (1987).........cccsecseseeeseeeees 10

State ex rel Dyer v. Sims, 341 U.S. 22 (1951) ............. =a

Texas v. New Mexico, 482 U.S. 124 (1987)................. 13

Textar Painting Corp. v. DRPA, 246 N.J. Super. 251

CEO BIG, SID ts icsinanesnsteiiceschinseielansnanteiniinsiids 5

Statutory Provisions:

Delaware River Port Authority Compact

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EDA, BBD i sasiinninciissssissitiiditicalizscnscniaaaiedeanaiahedlaseiatias 2

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COUNTERSTATEMENT OF THE CASE

For the second time in less than three years, petitioner

Delaware River Port Authority (“DRPA”’) urges this Court's

review of a routine application of settled state law principles

shared by the creator states to interpret a bi-state compact.’

Petitioner here presents no reason for the Court to accord this

application any different treatment than that provided to

Petition No. 97-81. The Petition for a Writ of Certiorari

should be denied.

A. The Delaware River Port Authority and the

Fraternal Order of Police Penn-Jersey Lodge 30

The powers of the DRPA are framed by its congressionally

approved Compact. As petitioner concedes, the Compact

expressly provides that these powers are subject to

amendment “from time to time by the action of either state

concurred in by legislation of the other.” Pet. at 5;(A-73a).”

The imposition of additional powers or responsibilities upon

the DRPA occurs either when the states agree explicitly to

amend the language of the Compact itself, or when one

creator state passes legislation that becomes applicable to the

DRPA when the other state enacts “legislation having a

substantially similar effect.” See, e.g., N.J.S.A. § 32:4-6,

“Historical and Statutory Notes”; 36 P.S. § 3504.la

“Historical and Statutory Notes”.°

' In No. 97-81, The Delaware River and Bay Authority v. International

Union of Operating Engineers Local 68, et al., the petitioner filed an

amicus brief in support of a Petition for a Writ of Certiorari to the New

Jersey Supreme Court filed by The Delaware River and Bay Authority,

which advanced the same arguments as those contained in the current

application. This petition was denied. 522 U.S. 861 (1997).

> Petitioner's Appendix is referred to as (A-) followed by the relevant

page numbers(s).

> The Compact further and repeatedly provides that legislation passed

in one compact state shall become effective and applicable to the DRPA

The DRPA employs seventy-eight police officers who,

pursuant to the terms of the Compact, enjoy “all the

powers...and all the immunities conferred by law on police

officers or municipal police officers in...the State of New

Jersey and the Commonwealth of Pennsylvania.” (A-2a);

N.J.S.A. § 32:4-6; 36 P.S. § 3504.la. DRPA police officers

patrol in both New Jersey and Pennsylvania, enforce the laws

of each state to protect DRPA property and the over 50

million people who annually transverse the DRPA’s interstate

bridge facilities, and face the same dangers as their brethren

patrol officers working for municipalities in New Jersey and

Pennsylvania. (A-5a); Pet. at 4.

For over 20 years, the DRPA recognized respondent,

Fraternal Order of Police Penn-Jersey Lodge 30 (“Lodge 30"

or “the Union”) as the exclusive bargaining representative of

the DRPA patrol officers, and engaged in good faith

collective negotiations with the Union to jointly craft the

terms of the officers’ employment. (A-2a). In 1996,

however, despite protestations from Lodge 30, the DRPA

ceased negotiations and unilaterally imposed working

conditions upon the DRPA police. Jd. The underlying lawsuit

ensued, with Lodge 30 asking the court to require the DRPA

to return to the bargaining table, to appoint a mediator, and to

effect “such further relief’ as the court might

““deem[]necessary.”’/d.

B. The Proceedings Below

After the trial court denied petitioner's Motion for

Summary Judgment, respondents moved for an order

“requiring the parties to negotiate an impasse resolution

procedure featuring interest arbitration under court

supervision,” arguing that New Jersey and Pennsylvania both

upon the “passage...of a substantially similar act,” or “the enactment of

similar legislation,” or of “legislation substantially similar” by the other

compact state. N.J.S.A. §§ 32:3-2; 32:3-3; 32:3-4a.

provided such a mechanism for settling contract disputes

between their public police and public employers. (A-3a).

The trial judge adopted the expert opinion of University of

Pennsylvania Law School Professor Clyde W. Summers, who

opined that interest arbitration in such a setting “was

appropriate and desirable” and that the DRPA’s creator

states’ legislative enactments in this regard “were

‘substantially the same."” Jd. The trial court also conducted

“an independent review of each statutory scheme” and made

“an independent determination of the[ir] complementary and

parallel nature.” (A-4a., n.3). Although he concluded he

possessed the equitable authority to do so, the trial judge did

not order the parties to proceed to interest arbitration; he

instead required them to attempt to voluntarily craft a system

to resolve their contractual dispute. (A-Sa). If this failed, the

court stated, it would “order binding interest arbitration” to

resolve the matter. Jd.

Although final relief had not been ordered, the court

certified its order as final for purposes of appellate review and

petitioner appealed to the New Jersey Superior Court.

Appellate Division. (A-21a). A three judge panel

unanimously affirmed. (A-1a). Parenthetically noting that the

appeal was arguably “interlocutory because the parties have

not been ordered to submit their dispute to public interest

arbitration” (A-7a, n.4), the Appellate Division found the trial

judge’s ruling consistent with the doctrine of “parallel and

complementary state legislation,” a well-established rule of

law used to interpret interstate compacts that had been

embraced by New Jersey and Pennsylvania courts since 1965,

and recently and resoundingly reaffirmed by the New Jersey

Supreme Court. International Union of Operating Engineers,

Local 68 v. Delaware River and Bay Authority, 147 N.J. 433,

cert. denied, 522 U.S. 361 (1997). (“Local 68"). (See A-9a -

12a).

Because the Appellate Division's decision was unanimous,

the DRPA sought Certification of Judgment from the New

Jersey Supreme Court. This Petition was denied. (A-22a).

The DRPA thereupon filed the instant Petition for a Writ of

Certiorari with this Court. Currently, the parties are back

before the trial court to determine whether they will be

ordered to proceed to interest arbitration at this time.

REASONS FOR DENYING THE WRIT

I. THE APPELLATE DIVISION PROPERLY

APPLIED LONG-SETTLED AND CONSISTENT

PRINCIPLES OF NEW JERSEY AND PENN-

SYLVANIA LAW IN INTERPRETING (THE

DRPA COMPACT, AND THERE IS NO

REASON FOR THIS COURT TO DISTURB

THIS RULING. -

This Court's rules caution that a “petition for a Writ of

Certiorari is rarely granted when the asserted error consists

of...the misapplication of a properly stated rule of law.”

Sup.Ct.R. 10. At bottom, petitioner's assault upon the

decision below consists entirely of the unsupportable claim

that the Appellate Division “departed from 75 years of bi-

state compact jurisprudence” when it found that the labor

laws of New Jersey and Pennsylvania providing for interest

arbitration to resolve contract disputes between public police

and their employees constituted “complementary _ state

legislation” which, under the terms of the DRPA Compact,

was therefore applicable to the bi-state agency. Such a

contention, besides being an utter misstatement of law, is

facially insufficient to warrant the exercise of this Court's

discretionary review, because the Appellate Division below

correctly stated the applicable rule of compact interpretation.

Although the interpretation of a compact “presents a

federal question,” Petty v. Tennessee-Missouri Bridge

Comm'n., 359 U.S. 275, 278 (1959), “(the legal

consequences of the terms of a compact are not, as a

generalized proposition, for the originating construction of

this Court.” /d., at 284 (Frankfurter, J., dissenting). Rather,

this Court “show[s] deference to state law in construing a

compact.” Petty, supra, 359 U.S. at 278, n.4. See, e.g., Hess

_v. Port Authority Trans-Hudson Corp., 513 U.S. 30, 46

(1994) (noting that nothing in “the laws of either state”

supports assumption that creator states are responsible under

terms of compact for debts of bi-state agency); Delaware

River Joint Toll Bridge Comm'n. v. Colburn, 310 U.S. 419,

432 (1940) (finding bi-state agency of New Jersey and

Pennsylvania not liable for consequential damages under

compact, as “the settled law” of each state prohibits recovery

of such damages).

Contrary to the hyperbolic claim of petitioner, the court

below applied a doctrine of compact construction -- the

principle that substantially similar state legislation can be

applied to a bi-state agency -- that has been an established

staple of New Jersey and Pennsylvania jurisprudence for over

three decades.

Beginning with Delaware River and Bay Authority v.

International Org. of Masters, Mates and Pilots, 45 N.J. 138

(1965), continuing with Eastern Paralyzed Veterans Ass'n v.

Camden (EPVA), 111 N.J. 389 (1988), Ampro Fisheries, Inc.

v. Yaskin, 127 N.J. 601, cert. denied, 506 U.S. 952 (1994),

Bunk v. Port Authority of New York and New Jersey, 144 N.J.

176 (1996), Textar Painting Corp. v. DRPA, 246 N.J. Super.

251 (Law Div. 1996), and culminating with Operating

Engineers Local 68, supra, New Jersey courts have

consistently applied the doctrine of “parallelism” to various

bi-state compact agencies, including petitioner. Under this

principle, a single state may not unilaterally impose its will

on a bi-state agency, but the creator states together may

subject the agency to complementary or parallel state

legislation. Local 68, 147 N.J. at 447; Bunk, 144 N.J. at 185;

EPVA, 111 N.J. 401. Such legislative enactments need not be

“identical” to be given parallel effect; all that is necessary is

that the laws be “substantially similar,” EPVA, supra, or even

“somewhat similar’, if they espouse a “central” or “dominant

theme” in the respective public policies of the states. Bunk,

supra. Finally, there is no need for the laws to specifically

provide that they apply to a bi-state agency; all that is

required by courts is “some showing of agreement in the laws

involving and regulating a bi-state agency.” Local 68, 147

N.J. at 445; Masters, Mates and Pilots, supra, Bunk, supra,

144 N.J. at 189.

Local 68, supra, a decision relied upon by the court below,

features a pattern of fact and law that nearly mirrors the

instant case. There, as here, a labor organization representing

employees of a bi-state agency (in that case, The Delaware

River and Bay Authority (“DRBA”), formed pursuant to an

interstate compact between New Jersey and Delaware) sought

judicial recognition of its members’ mghts to organize and

negotiate collectively, arguing that the labor law policies of

the agency's creator states, as reflected in respective state

labor statutes, provided public employees with such rights.

There, as here, the agency's governing compact featured a

provision empowering it to “fix and determine” the

“compensation...and all other conditions and terms of

employment” of its employees, along with a clause specifying

that the agency may be subject to obligations other than those

articulated in the compact if authorized under “the law of

both states.” 147 N.J. at 438, 446."

Broadiy canvassing the respective state laws, the New

Jersey Supreme Court held that the statutes, “although not

* “Implicit in that provision,” held the New Jersey Supreme Court, “is

the premise that the two states may subject the DRBA to complementary

or parallel legislation.” Operating Engineers Local 68 v. The Delaware

River and Bay Authority, 147 N.J. 433, 446, cert. denied, 522 U.S. 861

(1997).

identical, are complementary and parallel. As a matter of

public policy, 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.” Id., at 447. “In effect’, the court concluded, “the

legislatures have modified the Compact.” /d. Explaining its

reasoning further, the Local 68 court stated:

...we merely recognize that the New Jersey and

Delaware legislatures have adopted a_ substantially

similar policy concerning collective negotiations by

public employees. Anomalous indeed would be the

failure to apply so important a policy to an entity

created by both states for their mutual benefit.

Id., (emphasis added).

The Local 68 court thus confirmed that the labor codes of

two creator states which are “not identical”, but which

nevertheless are “complementary and parallel”, in that they

express, “[a]s a matter of public policy’, a shared legislative

intent to provide certain classes of public employees with

certain labor rights, should be applied to employees of a bi-

State agency. 147 N.J. at 447.

Despite Petitioner's completely erroneous protestations to

the contrary, Pennsylvania courts likewise have entirely

adopted the principles of parallelism. In Nardi v. Delaware

River Port Authority, 490 A.2d 949 (Pa. Cmwilth. 1985), the

Pennsylvania Commonwealth Court held that its state’s

police disability statute did not cover DRPA police officers,

but only because New Jersey's assertedly equivalent law was

“not substantially similar.” 490 A.2d at 952. Indeed, the

court in Nardi emphasized that “identical legislation would

{not} be required”’ to render the law applicable to the bi-state

agency, Jd. at n.10, and invited the New Jersey legislature to

“amend its statute to reflect agreement with the clearly stated

intention of the Pennsylvania legislature.” /d. at n.11 (em-

phasis added).°

Thus, well before the Appellate Division applied what

petitioner terms “the implied amendment” rule in the case

below, courts in the two compact states had fully and

routinely embraced this doctrine. The decision below is

therefore not, as petitioner intones, the product of a “new and

radical technique” of judicial interpretation, but a rather

mundane application of settled principles of compact

construction shared by the creator states and undeserving of

this Court's attention.

Il. THE DECISION BELOW DOES’ NOT

CONFLICT WITH DECISIONS OF OTHER

STATE OR LOWER FEDERAL COURTS

This Court deems it “very important that [it] be consistent

in not granting the Wnit of Certiorari except in cases...where

there is a real and embarrassing conflict of opinion and

authority” between lower courts. Rice v. Sioux City Memorial

Park Cemetery, 349 U.S. 70, 79 (1955). Petitioner boldly

asserts that New Jersey's application of parallelism to bi-state

compact interpretation conflicts with the jurisprudence of

Pennsylvania, Delaware, New York, and with applicable

federal court decisions. Once again, petitioner's contention is

grounded upon a profound misstatement of the case law.

As already demonstrated supra, Pennsylvania‘s in-

terpretation of the DRPA compact is completely congruent

with New Jersey's. See Nardi, supra, Delaware River Port

Authority v. Ethics Comm’'n., supra, 585 A.2d at 588.

> Following Nardi, the Pennsylvania courts have expressly declared

that the DRPA “dojes] not exist in a vacuum and [is] not immune from

regulation. Such regulation can take several forms. First, the member

states can pass substantially similar legislation, as contemplated by the

compact.” Delaware River Port Authority v. Ethics Comm’'n., 585 A.2d

587, 588 (Pa. Cmwith. 1991).

Petitioner's claim that Pennsylvania “requires precise

evidence of agreement between the states on the application

of specific statutory measures,” to the Compact, Pet. at 17,

(emphasis in original) is not supported by citation to any

Pennsylvania authority. Petitioner simply cannot escape the

signal fact that the DRPA’s creator states equally endorse and

embrace the applicability of “substantially similar” legislation

to the DRPA.

Contrary to the DRPA’s contention, Delaware courts are

also entirely in accord with the concept of parallel legislation,

as noted in Local 68, supra, 147 N.J. at 446, citing Delaware

River and Bay Authority v. Carello, 43 Del.Ch. 213, 222 A.2d

794, 797 (1966)(“The Delaware courts follow a similar

practice” endorsing the imposition of additional duties upon a

bi-state agency if both creator states feature legislation “of a

similar nature”). Similarly, petitioner's assertion that “[e]very

lower federal court that has considered” the doctrine of

parallel legislation “has rejected it,” relies upon an erroneous

reading of a single, unpublished federal decision, Pilla y.

Delaware River Port Authority, 1999 WL 45918 (Newcomer,

J.) (E.D.Pa. May 7, 1999).° The DRPA fails, however, to

mention Moore v. Delaware River Port Authority, 80 F.Supp

2d 264 (D.N.J. 1999), where the federal court held that the

DRPA may be subject to legal duties beyond those specified

in the Compact if “the applicable...law of New Jersey is

‘substantially similar in nature’ to that of Pennsylvania.” 80

F.Supp. 2d at 269.

° In Pilla, the federal court actually acknowledged that the DRPA is

subject to the imposition of additional duties if its creator states feature

“complimentary or parallel state legislation.” 1999 WL 345918 at *3.

The court simply held that the specific differences in the respective state

anti-discrimination statutes were so significant that the two laws were

“not complementary and parallel, and therefore [could] not be

constitutionally applied to the DRPA.” Jd. at *4.

Petitioner's contention that Washington state courts and the

Ninth Circuit Court of Appeals reject the doctrine of parallel

legislation likewise finds no support whatever in the cases

cited. In Salmon for All v. Department of Fisheries, 821 P.2d

1211 (Wash. 1992) (en banc), for example, there was no

attempt to apply bi-lateral state laws to an interstate agency;

the plaintiff there argued that Washington law unilaterally

bound the proceedings of a Washington-Oregon bi-state

agency, without referencing Oregon law. The theory of

complementary legislation was not even mentioned, much

less advanced as a basis for the plaintiff's claim. See also

Klickitat County v. State, 862 P.2d 629 (Wash. Ct. App.

1993) (issue only whether Washington law applied to

Washington-Oregon interstate agency; no discussion of

whether Oregon had similar law). Similarly, in Seattle

Master Builders Ass'n v. Pacific Northwest Electrical Power

and Conservation Planning Council, 786 F.2d 1359 (9" Cir.

1986), cert. denied, 479 U.S. 1059 (1987), the plaintiff

unsuccessfully argued that the environmental laws of

Montana and Washington should be applicable to a multi-

State compact, composed of those two sovereigns as well as

Oregon and Idaho. 786 F.2d at 1362, 1370-71. There was no

contention that the latter two states likewise featured such

legislation, and the doctrine of parallelism was never raised.’

The decision below plainly does not conflict, in any

conceivable manner, with any of these cases. Indeed, for all

petitioner's efforts to portray the principle of complementary

legislation as a renegade legal doctrine, the only case that

Significantly, the petitioner fails to cite a decision from another

jurisdiction, Redbird Engineering Sales, Inc. v. Bi-State Development

Agency of Missouri-Illinois Metropolitan District, et al., 806 S.W. 2d 695

(Mo. App. Ct. 1991) which, quoting the New Jersey Supreme Court's

EPVA decision, fully adopted and applied the doctrine of complementary

state legislation to a Missouri-Illinois bi-state compact. 806 S.W. 2d at

701-702.

arguably displays displeasure with this theory is Malverty v.

Waterfront Comm’n. of New York Harbor, 524 N.E.2d 421

(N.Y. 1988). That decision, however, contains distinguishing

elements that make its “conflict” with the New Jersey courts

far less than petitioner posits, and does not, in the context of

our federal system, warrant this Court’s exercise of its

certiorari jurisdiction.

In Malverty, the New York court's ostensible rejection of

the doctrine of complementary legislation appears in dicta:

the appellant there contended that New York law appliee

unilaterally to the Waterfront Commission, a bi-state agency

of New York and New Jersey. More importantly, Malverty

was premised upon a unique practice of the New York

legislature. As the court noted, that body, unlike New

Jersey's and Pennsylvania’s, “expressly stated that certain

legislation” was meant specifically to govern the Waterfront

Commission when it enacted law, and in the absence of such

definitive legislative expression, no statute was deemed

applicable to that compact. Jd. at 422. Malverty is simply an

acknowledgment of a discrete legislative determination

regarding how obligations are to be imposed on entities

established by compacts between New York and other states:

it does not conflict with New Jersey and Pennsylvania's

shared view that their bi-state compacts may be subject to

parallel legislation, even if such laws do not necessarily state

that they are applicable to such entities.

Grounded in the New York legislature's particular

approach to amending a bi-state compact, Malverty hardly

heralds a reason to grant this Writ; instead, the case

demonstrates the wisdom of this Court staying its hand.

Petitioner assumes a need for this Court to craft a uniform

federal approach to interpreting the terms and conditions of

each discrete interstate compact. Putting aside the now

demonstrated fact that the vast weight of judicial authority

supports the means of construction employed by the court

below, petitioner's argument ignores the essential fact that

interstate compacts are created primarily to effectuate and

foster local interests. As individual creations of the creator

states, compacts are ill-suited to uniform principles of legal

construction beyond those applied by the courts of the

respective compact states. State ex rel Dyer v. Sims, 341 U.S.

22, 27 (1951) (“inherent limitations upon this Court's ability

to deal with multifarious local problems” encountered in

construing interstate compacts “have inhibited the

formulation of a code for dealing with such controversies.”’)

As Justice Frankfurter observed in Petty, supra,

Since a Compact comes into being through an Act of

Congress, its construction gives rise to a federal

question....But a federal question does not require a

federal answer by way of a blanket, nationwide

substantive doctrine where essentially local interests are

at stake....[T]he meaning parties attribute to the words

governs the obligations assumed in the agree-

ment....[T]he language they employed in the Compact,

not modified by Congress, should be limited to the legal

significance that these States have placed upon such

language, not to avoid the obligations they undertook,

but to enforce the meaning of conventional language

used in their law.

359 U.S. at 285 (Frankfurter, J., dissenting) (citations

Omitted).

It is thus simply not material what construction the New

York courts may put upon the Waterfront Commission

Compact; what matters here are the rules of law employed by

the courts of New Jersey and Pennsylvania to interpret the

DRPA Compact. And these are entirely consistent: both

creator states attribute the same meaning “to the words

govern[ing] the obligations assumed in the agreement”; both

have held that complementary expressions of policy, enacted

by their respective legislatures, are applicable to the bi-state

agency they have formed, with the consent of Congress.

Indeed, in the many years during which the courts of each

State have applied parallel legislation to bi-state agencies

without requiring explicit amendment of the compact, the

respective legislatures have voiced no disapproval of such

judicial interpretation. Where the legislatures of the creator

States have not disturbed the actions of their courts, those

actions need not be reviewed by this Court.

Iii. THE DECISION BELOW DOES NOT

CONFLICT WITH THE DRPA COMPACT, AND

HENCE DOES NOT VIOLATE THE SU-

PREMACY CLAUSE

Since a congressionally approved compact is, “after all, a

contract” between its signatory states, Texas v. New Mexico,

482 U.S. 124, 128 (1987), it is subject to “the ordinary rule”

of contract interpretation “that all provisions of a compact

must be read together in a meaningful manner.” Oklahoma

v. New Mexico, 501 U.S. 239, 245 (1991) (Rehnquist, C.J.,

concurring in part ‘and dissenting in part). The decision

below does precisely that. Faithful to the New Jersey

Supreme Court’s treatment in Local 68, supra, of near

identical language contained in the Delaware River and Bay

Authority Compact, See 147 N.J. at 446, the lower court held

that the petitioner's generalized power to “fix and determine”

wages and working conditions as set forth in the Compact

was modified by the express amendatory clause, which

allows for additional obligations to be imposed upon the

DRPA if the creator states each enact legislation having a

“substantially similar effect.” (A-73a); N.J.S.A. § 32:4-6

“Historical and Statutory Notes”; 36 PS. § 3504.1la

“Historical and Statutory Notes.” Finding that New Jersey's

and Pennsylvania’s interest arbitration statutes for police

officers were “complementary and parallel”, the court below

held that they “imposed” upon the petitioner the duty to

“mediate and, if necessary, submit to public interest

arbitration its contract dispute with Lodge 30.” (A-14a, 15a).

Premised upon a reading of the entire Compact, the decision

below is wholly consistent not only with relevant state law,

but also this Court's teachings. Oklahoma yv. New Mexico,

supra, 501 U.S. at 245. It therefore does no violence to the

Supremacy Clause.

IV. THE DECISION BELOW IS “ARGUABLY IN-

TERLOCUTORY” AND THUS NOT FIT FOR

THIS COURT’S REVIEW

As the Appellate Division emphasized, the trial court has

not yet ordered the parties to proceed to interest arbitration;

indeed, at the hearing on Lodge 30's Motion, the trial judge

mused, “at this juncture, we don’t even know whether there

will be interest arbitration.” (A-6a). The court below thus

conceded that the ruling was at least arguably “interlocutory”,

but proceeded to pass on the merits to provide “guidance to

the parties involved in this dispute.” Jd. at 7a, n.4.

Even when it is “treated as settling ‘the law of the case’ so

as to furnish the rule of the guidance” for the litigants, the

interlocutory nature of a decision is “a fact that of itself alone

furnishe[s] sufficient ground for the denial of the application”

for certiorari. Hamilton-Brown Shoe Company v. Wolf

Brothers and Co., 240 U.S. 251, 258 (1916). Here, all the

New Jersey courts have done thus far is to order the parties to

attempt to mediate their dispute and, “if necessary, submit [it]

to public interest arbitration.” (A-15a) (emphasis added).

Even if this Court believed it should opine on such minutia as

whether “the issue of subcontracting [will] be a proper

subject of arbitration,” between the litigants in this matter,

Pet. at 23, such issues are simply not ripe for this Court's

consideration, a fact that alone provides abundant reason to

deny the Writ.

CONCLUSION

For all the above stated reasons, the Petition for a Writ of

Certiorari should be denied.

Respectfully submitted,

BRUCE E. ENDy*