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

Supreme Court, U.S. |

(3) FILED

JUN 5 9000

No. 99-1758

IN THE CLERK

Supreme Court of the Gn

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 AMICUS CURIAE OF THE

DELAWARE RIVER AND BAY AUTHORITY

IN SUPPORT OF PETITIONER

QO. FRANCIS BIONDI

JON E. ABRAMCZYK

COLM F. CONNOLLY*

MorRIS, NICHOLS, ARSHT

& TUNNELL

1201 North Market Street

P.O. Box 1347

Wilmington, Delaware 19899

(302) 658-9200

*Counsel of Record for the Amicus

——

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TABLE OF CONTENTS

Page

TAREE GO AUT TTI es casscidninsacecscscscrceckedeeccoaies ii

INTEREST OF THE AMICUS CURIAE THE

DELAWARE RIVER AND BAY AUTHORITY... ]

SUMMARY OF ARGUMENT ...0......cccccccsccecesscsccesesees

Sa Aadiscinicisithinbentiindsiioseiisiistaniihetictt Dice igs isk

I. THE APPELLATE DIVISION’S DECISION

UNDERMINES THE PRINCIPLE OF

STATE SOVEREIGNTY UNDERLYING

THE COMPACT CLAUSE AND EM-

BODIED IN THE DRPA’S AND DRBA’S

RII diilischatenebhusaccinsohigibicsaimandilantintscaasenes 3

Il. THE APPELLATE DIVISION’S DECISION

ELIMINATES CONGRESS’ CONSTITUT-

IONALLY-MANDATED ROLE IN THE

COMPACT AMENDMENT PROCESG........... 8

Il. THE CONFLICT IN AUTHORITY CAUSED

BY THE APPELLATE DIVISION'S RUL-

ING WARRANTS RESOLUTION BY THIS

SPUN uhishishcienisesveinssshaniatbanaciagiassicidabpinsihénass 10

gE CE Oe ee LL eR SRE 11

(i)

ii

TABLE OF AUTHORITIES ~—

Cases Page

Baron v. Port Auth. of N.Y. & N.J., 968 F. Supp.

GO4 GDANLY.. SOD G pcccencesstiaisnitinaninta pcbiigusicans 5

Cuyler v. Adams, 449 U.S. 433 (1981) ................ 8,9 |

Delaware River & Bay Auth. v. Carello, 222 |

A.28 T94 Bak. Ch. Fiennes 5

Hess v. Port Auth. Trans-Hudson Corp., 513

WEB. SB (RGD acncnensnesnnnnsnnsiniisiigntnantvniiiigassnvciatiiies 4,8

Malverty v. Waterfront Comm'n of New York

Harbor, 524 N.E.2d 421 (N.Y. 1988)............... 4

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

949 (Pa. Commw. Ct. 1985) .........ccccccescceeseeeeee 5

Northeast Bancorp, Inc. v. Board of Governors,

S72 US. ESD CR cenccntincctnininasittagnintiitasien 7

Oklahoma v. New Mexico, 501 U.S. 221 (1991).... 6

Petty v. Tennessee-Missouri Comm'n, 259 U.S.

SES CRP ccxccannnsrustincisnitieschiieiaitiaaiidandabapladadadiisini 3

Pilla v. Del. River Port Auth., 1999 WL 345918

CED. Fa, By FT, CEDDD cnencicentntitennisient tetessinnicies 5

Port Auth. Trans-Hudson Corp. v. Feerey, 495

US. 2G CASBED ccrcrcsncccsnssenesssenepinatnnsnantnsigitivenianne 4

Texas v. New Mexico, 462 U.S. 554 (1983)........... 6,9

Texas v. New Mexico, 482 U.S. 124 (198))........... 6, 9

West Virginia ex rel. Dyer v. Simes, 341U.S. 22

(BBB D ) acencornsesseresnconstenenintnisiniaiiamemanaiceded 6

Constitutional Provisions

tk Re OF RS FY een wee passim

Statutes |

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RGD BIS OE SU, Gli: BO cetsenesnenrieninnivnts | 2

Dal. Cade Agm. GR. 27, G THB ececerscssccssecssss000ss00000 passim

Del. Code Ann. tit. 17, § 17 DD .......cccccccccsscccsccceees 6

ill

TABLE OF AUTHORITIES -- Continued

Del. Code Amn. tit. 17, § 1714...........ccccccccossssesseees 6

Del. Code Amm. 00. 17, § 1716...........cccssssscesssosesnsee 6

EOE. CAS PAM. OH, TF, TFB ain. ccccrscssvcccrcascosesess 7

H.R.J. Res. 657, Pub. L. No. 101-565, 104 Stat.

BE TE sai tentabicptcniniianeikdatasticissnicaviiienssieesess 2

H.R.J. Res. 783, Pub. L. No. 87-678, 76 Stat. 560

Ry Se 2) nee

ey Ny OF EC NE chcreekcesiansscccbanncanenatdecssoses

Other Authorities “

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SOU II, BIE. Visite nccsnserncsessonssesestssosceses 4

Felix M. Frankfurter_& James M. Landis, The

Compact Clause of the Constitution A Study in

Interstate Adjustments, 34 Yale LJ. 685

IN THE

Supreme Court of the Hnited States

No. 99-1758

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 AMICUS CURIAE OF THE

DELAWARE RIVER AND BAY AUTHORITY

IN SUPPORT OF PETITIONER

INTEREST OF THE AMICUS CURIAE

THE DELAWARE RIVER AND BAY AUTHORITY’

The Delaware River and Bay Authority (““DRBA”), like the

Delaware River Port Authority (“DRPA”), is the creature of a

compact entered into by two states, by and with the consent

' Counsel for both the Petitioner and Respondents have consented to

the filing of this brief. Letters of consent will be filed with the Clerk of

the Supreme Court simultaneously with the filing of this brief. Counsel

for the Delaware River and Bay Authority authored this brief in whole and

no person or entity, other than the Delaware River and Bay Authority and

its counsel, made a monetary contribution to the preparation or

submission of this brief.

2

of Congress as required by Article I, Section 10, Clause 3 of

the-Constitution (the “Compact Clause”). In 1961, in order to

facilitate interstate transportation across the Delaware River

and Bay and promote economic growth, Delaware and New

Jersey formed a Compact and enacted virtually identical

enabling legislation to create the DRBA. See Del. Code Ann.

tit. 17, § 1701 et seq.; N.J. Stat. Ann. § 32:11E-1 et seq.

Congress formally gave its consent to the Compact a year

later when it passed a Joint Resolution which incorporated the

terms of the Compact and thereby established the DRBA as

“as an agency of government” of both states and empowered

it with the “essential government functions” necessary to

effectuate the purposes of the Compact. H.R.J. Res. 783,

Pub. L. No. 87-678, 76 Stat. 560 (1962). In 1990, Congress

approved amendments to the Compact that expanded the -

DRBA’s_ authority to undertake certain economic

development projects. See H.R.J. Res. 657, Pub. L. No. 101-

565, 104 Stat. 2784 (1990); 67 Laws of Del., ch. 252; 192

Laws of NJ, ch. 192.

The DRBA today employs more than 500 people in New

Jersey and Delaware. Its facilities include the Delaware

Memorial Twin Bridges, four airports, two passenger ferry

terminals, berthing docks, five ferries, a business center, and

administrative buildings. Each year, more than 15 million

vehicles cross the Delaware Memorial Twin Bridges and

almost 1.3 million passengers ride on the ferry service

operated by the DRBA between Cape May, New Jersey and

Lewes, Delaware. To protect its passengers, facilities, and

employees, the DRBA has an accredited police force, with 60

officers and its own police training academy.

The DRBA respectfully urges the Court to grant the

DRPA’s Petition for a Writ of Certiorari to review the

decision of the New Jersey Superior Court’s Appellate

Division. That decision ignores the explicit and carefully

considered provisions of a compact formed by two sovereign

3

states and approved by Congress and establishes a precedent

harmful to all Compact Clause entities with operations in

New Jersey.

SUMMARY OF ARGUMENT

The Appellate Division’s decision undermines the

principles underlying this Court’s Compact Clause cases and

directly conflicts with the decisions of other federal and state —

courts, including the courts of Delaware, Pennsylvania, and

New York, all of which participate in Compact Clause

entities with operations in New Jersey. If allowed to stand,

the Appellate Division’s decision will subject interstate

agencies, like the DRBA, to the prospect of a single state

court judge unilaterally imposing on them obligations and

duties never agreed to by their creator states and never

approved by Congress. That prospect creates enormous

confusion and uncertainty as to what laws apply to interstate

agencies and has profound and disruptive consequences on

the daily operations of those agencies. This Court should

therefore grant the petition for a writ of certiorari.

ARGUMENT

I. THE APPELLATE DIVISION’S DECISION

UNDERMINES THE PRINCIPLE OF STATE

SOVEREIGNTY UNDERLYING THE COM-

PACT CLAUSE AND EMBODIED IN THE

DRPA’S AND DRBA’S COMPACTS

Compact Clause entities play a unique and significant role

in resolving regional problems through cooperation by states.

In enacting the Compact Clause, ““[t]he framers * * * astutely

created a mechanism of legal control over affairs that are

projected beyond State lines and yet may not call for, nor be

capable of, national treatment.” Petty v. Tennessee-Missouri

Comm’n, 359 U.S. 275, 282 n. 7 (1959) (quoting Felix M.

Frankfurter & James M. Landis, The Compact Clause of the

4

Constitution—A Study in Interstate Adjustments, 34 Yale L.J.

685, 695 (1925)). Fundamental to this “mechanism of legal

control” is the principle that a single state cannot regulate or

control a Compact Clause entity. This principle animates this

Court’s Compact Clause decisions. See Hess v. Port Auth.

Trans-Hudson Corp., 513 U.S. 30, 42 (1994) (“bi-state

entities created by compact . . . are not subject to unilateral

control of any one of the [compact] States”); id. at 47 (“no

one State can control the course of a Compact Clause

entity”); Northeast Bancorp, Inc. v. Board of Governors, 472

U.S. 159, 172 (1985) (“classic indicia of a compact are

missing” where “each State is free to modify or repeal its law

unilaterally”); Port Auth. Trans-Hudson Corp. v. Feeney, 495

U.S. 299, 315 (1990) (Brennan, J. concurring in part and

concurring in judgment) (“it is not within the autonomous

power of any State to create and regulate an interstate

agency”). It is also incorporated as a standard provision in

more than 50 interstate compacts approved by Congress. See

Pet. 5 n. 5. Article VIII of the DRBA Compact, for example,

explicitly prevents either Delaware or New Jersey from

imposing upon the DRBA “additional duties or obli-

gations . . . without authorization by the law of both States.”

(Emphasis added.)

The Appellate Division’s decision ignores this fundamental

precept. Its holding subjects interstate entities like the DRBA

to any number of obligations and duties inferred by a single

state court from the “policies” of the compact states which

created the entities, even where those putative policies are not

specifically made applicable to the interstate entities by the

compact states or Congress. That holding directly conflicts

with the decisions of the federal and state courts in New

York, Pennsylvania, and Delaware, all of which have formed

with New Jersey Compact Clause entities. See Malverty v.

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

422 (N.Y. 1988) (recognizing fact that “two [compact] States

have evinced the same, or similar, public policy . . . by

5

enacting similar . . . laws is not sufficient . . . to render [a

compact] properly amended or supplemented” and refusing to

subject Port Authority of New York and New Jersey to states'

laws prohibiting employment discrimination against

convicted felons) (emphasis added); Nardi v. Delaware River

Port Auth., 490 A.2d 949, 950 (Pa. Commw. Ct. 1985)

(recognizing that “neither creator state can unilaterally

impose additional duties, powers or responsibilities upon the

[DRPA],” and refusing to subject DRPA to states’ employee

disability benefits laws); Delaware River & Bay Auth. v.

Carello, 222 A.2d 794, 799 (Del. Ch. 1966) (recognizing that

“[t]he power over [DRBA] employees thus placed in the

hands of the [DRBA] Commissioners may not be impaired or

diluted by the unilateral action of one member to the

compact” and refusing to subject DRBA to state collective

bargaining obligation); Baron v. Port Auth. of N.Y. & N.J.,

968 F. Supp. 924, 928-30 (S.D.N.Y. 1997) (recognizing that

Compact Clause entities “are not subject to the unilateral

control of any one of the [compact] states” and refusing to

subject Port Authority of New York and New Jersey to

jurisdiction of states’ anti-discrimination agencies); Pilla v.

Del. River Port Auth., 1999 WL 345918, at *3 (E.D. Pa. May

7, 1999) (rejecting “New Jersey's more permissive view” that

court can infer an intent to amend compact from “some

showing of agreement in the [compact states’] laws involving

and regulating a bi-state agency” and refusing to subject

DRPA to states’ disability and sexual anti-discrimination

laws). The Appellate Division’s decision thus contravenes

this Court’s Compact Clause precedents, directly conflicts

with the holdings of other federal and state courts, and

undermines the sovereignty principle essential to the

existence and utility of Compact Clause entities.

Interstate entities would neither exist nor function properly

if a single state could impose unilaterally obligations and

duties on and thereby control such entities. Because a state

necessarily surrenders a portion of its sovereignty when it

6

joins an interstate compact, it would not agree to form a

compact without a precise delineation in the compact of the

areas over which it has yielded its authority and a guarantee

that the terms of the compact could not be modified without

its consent. “It requires no elaborate argument to reject the

suggestion that an agreement solemnly entered into between

States by those who alone have political authority to speak for

a State can be unilaterally nullified, or given final meaning by

an organ of one of the contracting States.” West Virginia ex

rel. Dyer v. Simes, 341 U.S. 22, 28 (1951). Simply put, “{a]

State cannot be its own ultimate judge in a controversy with a

sister State.” Id.

Consistent with this basic sovereignty principle, this Court

has required strict enforcement of the terms of interstate

compacts. See Texas v. New Mexico, 482 U.S. 124, 128

(1987) (interstate compact “must be construed and applied in

accordance with its terms”); Texas v. New Mexico, 462 U.S.

554 (1983) (“no court may order relief inconsistent with [an

interstate compact’s] express terms”); Oklahoma v. New

Mexico, 501 U.S. 221, 245 (1991) (Rehnquist, C.J., joined by

O'Connor, Scalia, and Kennedy, J.J., concurring in part and

dissenting in part) (“where the terms of the compact are

unambiguous, this Court must give effect to the express

mandates of the signatory States”). As noted above,

cognizant of this Court’s precedents, states have uniformly

insisted that their compacts contain provisions which require

the consent of all of the compacting states to modify the

terms of a compact. See Pet. 5 n.5. The states have also

carefully structured their compacts to account fully for their

interests in any action taken pursuant to the compacts. Under

the terms of the DRBA's Compact, for example, twelve

commissioners, six selected by each State, govern the DRBA.

See DRBA Compact art. V; Del. Code Ann. tit. 17, §§ 1701,

1711, 1714; NJ. Stat. Ann. §§ 32:11E-1, 32:11E-2. Each

state may remove the commissioners it appoints. See DRBA

Compact art. V; Del. Code Ann. tit. 17, §§ 1701, 1716; N.J.

7

Stat. Ann. §§ 32:11E-1, 32:11E-4. Any action taken by the

DRBA must be approved by at least four commissioners from

each state and the governor of either state may cancel the vote

of any one or more of its own commissioners. DRBA

Compact art. VI; Del. Code Ann. tit. 17, §§ 1701, 1720; N.J.

Stat. Ann. §§ 32:11E-1, 32:11E-6. Thus, each governor can

effectively veto any action taken by the DRBA. These

provisions were intended to ensure that neither New Jersey

nor Delaware would be in a position to foist its will on the

DRBA or the other compact state. The DRPA Compact

contains similar provisions to protect and balance the interests

of Pennsylvania and New Jersey. See Pet. 5.

The Appellate Division’s decision to compel a bi-state

agency to submit to binding interest arbitration-disrupts the

carefully balanced structures embodied in the DRPA

Compact and the other interstate compacts to which New

Jersey is a partner. The DRPA compact explicitly requires

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

the other” to impose additional powers on the DRPA and it

unambiguously reserves to the DRPA commissioners the

power to “fix and determine” the terms of their police

officers’ employment. See DRPA Compact art. IV(e)

(vesting DRPA commission with power “to... employ. . .

such agents and employees as it may require .. . and fix and

determine their qualifications, duties, and compensation”).

The Appellate Division’s decision effectively eviscerated

these provisions from the DRPA Compact. Citing “policies”

it inferred from Pennsylvania and New Jersey statutes, which

the court itself conceded had “discrepancies” and were not

directly applicable to the DRPA, the Appellate Division

transferred the power to establish the employment conditions

of DRPA’s police officers from the DRPA’s commissioners

to a court-appointed arbitrator.

Under the reasoning of the Appellate Division, the

sovereignty of the compact states and the intent of the those

8

States to apply particular statutes to a Compact Clause entity

are of no moment so long as a single state court discerns a

common “public policy” in the states’ general legislation.

The Appellate Division’s holding constitutes an affront to the

sovereignty of the states which have formed interstate

compacts with New Jersey and threatens the very integrity

and viability of all Compact Clause entities with operations in

New Jersey. This Court should grant the DRPA’s petition to

free those entities from “the unilateral control,” see Hess, 513

U.S. at 42, of New Jersey’s courts.

Il. THE APPELLATE DIVISION’S DECISION

ELIMINATES CONGRESS’ CONSTITUTION-

ALLY-MANDATED ROLE IN THE COMPACT

AMENDMENT PROCESS

The Compact Clause permits a state to “enter into any

Agreement or Compact with another State,” but only with

“the consent of Congress.” U.S. Const. art. I, § 10, cl. 3.

“The requirement of congressional consent is at the heart of

the Compact Clause.” Cuyler v. Adams, 449 U.S. 433, 439

(1981). “By vesting in Congress the power to grant or

withhold consent, or to condition consent on the States’

compliance with specified conditions, the Framers sought to

ensure that Congress would maintain ultimate supervisory

power over cooperative state action that might otherwise

interfere with the full and free exercise of federal authority.”

Id. at 439-40 (emphasis added). The Appellate Division’s

decision ignores Congress’ constitutionally-mandated role in

the Compact amendment process by permitting a single state

court to alter the terms of an interstate compact without the

consent of Congress. As a result, this Court, either through

the exercise of its certiorari jurisdiction, or, in the case of

direct disputes between compact states, its original

jurisdiction, now retains the “ultimate supervisory power”

- over Compact Clause entities with operations in New Jersey.

9

That result, however, conflicts with Cuyler and the explicit

text of the Constitution.

The Appellate Division’s usurpation of Congressional

authority is especially troubling because its decision affects

federal, not state, law. “[An] [interstate] compact when

approved by Congress becomes a law of the United States.”

Texas v. New Mexico, 482 U.S. at 128. In amending the

DRPA’s Compact, the New Jersey court has in effect made

federal law. This anomalous result underscores the

impropriety of the Appellate Division’s holding. Federal law

—Article IV(e) of the DRPA Compact and Article I, § 10,

cl. 3 of the U.S. Constitution— establishes a legislative

process for amending the DRPA’s Compact and imposing

additional obligations on the DRPA. For this reason, this

Court has recognized that it lacks the power to amend an

interstate compact:

Under the Compact Clause, two States may not conclude

an agreement . . . without the consent of the United

States Congress. However, once given, congressional

consent transforms an interstate compact within this

clause into a law of the United States. One consequence

of this metamorphosis is that, unless the compact to

which Congress has consented is somehow

unconstitutional, no court may order relief inconsistent

with its express terms.

Texas v. New Mexico, 462 U.S. at 564 (internal quotation

marks and citations omitted) (emphasis added). Thus, in

altering the terms of the DRPA’s compact, the Appellate

Division exercised a power which this Court has deemed

beyond the scope of its own judicial authority, let alone the

authority of a state court.

10

Ill. THE CONFLICT IN AUTHORITY CAUSED

BY THE APPELLATE DIVISION'S RULING

WARRANTS RESOLUTION BY THIS COURT

The Appellate Division’s ruling has profound implications

for the DRPA, the DRBA, and numerous other Compact

Clause entities with operations in New Jersey. These

interstate agencies now face the prospect that a New Jersey

court will unilaterally conclude that they are subject to a host

of additional obligations and duties never contemplated by

their creator states and never approved by Congress.

Moreover, until New Jersey’s courts determine which public

policies inferred from the creator states’ legislative schemes

actually give rise to additional obligations and duties, the

interstate entities must operate under a cloud of uncertainty.

The entities are left guessing what these particular obligations

and duties are until a New Jersey court infers them from time

to time in the context of an ongoing dispute. Even the

general nature of the obligations and duties is unclear.

Although the Appellate Division's decision specifically

addresses the applicability of.a labor relations law to a

Compact Clause entity, its reasoning extends to laws and

regulations relating to any area of an interstate agency’s

operations, including public bidding for contracts, workers’

safety, anti-discrimination efforts, and environmental issues.

At the end of the day, the Compact Clause entities with

operations in New Jersey will be subjected to one set of rules

by the New Jersey courts, which are willing to infer new

obligations and duties from the policies of compact states,

and another set of rules by the courts of either Pennsylvania,

Delaware, or New York, all of which refuse to amend

compacts by policy implication. Because of the conflict and

‘confusion caused by the Appellate Division's ruling, this

Court should grant the petition for a writ of certiorari.

11

CONCLUSION

For the foregoing reasons, Amicus Curiae, the Delaware

River and Bay Authority, respectfully requests that the Court

grant the DRPA's Petition for a Writ of Certiorari.

Respectfully submitted,

O. FRANCIS BIONDI

JON E. ABRAMCZYK

COLM F. CONNOLLY*

MorkRIS, NICHOLS, ARSHT

& TUNNELL

1201 North Market Street

P.O. Box 1347

Wilmington, Delaware 19899

(302) 658-9200

*Counsel of Record for the Amicus