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

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i Supreme Court, U.S.

4) FILE D

No. 99 - 1758 UN 5

IN THE

Supreme Court of the Ani

DELAWARE RIVER PORT AUTHORITY,

Petitioner,

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

WASHINGTON METROPOLITAN AREA TRANSIT

AUTHORITY IN SUPPORT OF PETITIONER’S

PETITION FOR WRIT OF CERTIORARI

CHERYL C. BURKE

General Counsel

(Counsel of Record)

CAROL B. KEEFFE

Principal Deputy General Counsel

DAVID R. KEYSER

Assistant General Counsel

600 Fifth Street, N.W.

Washington, D.C. 20001

202-962-2531

Attorneys for

Washington Metropolitan Area

Transit Authority

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

TABLE OF CONTENTS

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Un nn Net © OMRPIRESSES SHARORGRGRDSERS DA RpAaDOE ERAS Es AaAeOSEd‘ES

I. By Abruptly Departing From Settled Law, the

Decision Below May Substantially Impair the

Operations of WMATA and Other Interstate

COUR ACMI acc csnsseconcncesosesessasoss,......... 2

A. The Structure of the WMATA Compact and

ag, a TE A 2

B. The Compact Itself States the Only Way the

Compact May be Amended ...........000000.......... +

II. State Sovereignty Is an __ Interest of

Constitutional Dimension and Bars

Amendments to an _ Interstate Compact by

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(i)

TABLE OF AUTHORITIES

CASES | Page

Alden v. Maine, _U.S._, 144 L. Ed. 2d 636

(EDP PD .nccasscssnsisenenskassianhitspibinisulialiisademaaamaiiaal 2, 12, 14

C.T. Hellmuth & Assoc., Inc. v. WMATA, 414 F.

Supp. 408 (D. Md. 1976) .0...........cceseeceeeeees 8, 9, 15-16

Cal Tahoe Regional Planning v. Sahara Tahoe

Corp., 504 F. Supp. 753, 761 (D. Nev 1980)....... 15-16

College Savings Bank vy. Florida Prepaid

Postsecondary Ed. Expense Board, __ U.S.__,

46 £.. AG, BG Ci citecssisexcismninccsnaiiinaaabins 12

Cuyler v. Adams, 449 U.S. 435 (1981) ............. eee l

Diven vy. Amalgamated Transit Union Int'l &

Local 689, 38 F. 3d 598, 601 (D.C. Cir. 1994).. 2-3

Hess v. Port Authority of New York, 513 U.S. 30

(IDB) ....cansneranasesietissienanaintsesapinnimaimansaliaan |

Malone v. WMATA, 622 F. Supp 1422 (D.C. Va.

ESBS) .....ascossesnnnsncsnosidensinidaiitisbbiinemniadsieaamnis 7

M’Culloch v. Maryland, 17 U-S. (4 Wheat.) 316

(1B 9D).......acatncsecansiiscnsicahinnaiamipicatamdadnaaniadiaian 2, 10

PEPCO vy. State Corporation Commission, 221

Via. GIB (BSED ncrenseninidilisssicittshainaiiosinsbinapatasiaasnain 2

Texas v. New Mexico, 482 U.S. 124 (1987)........... 3

U.S. Steel Corp. v. Multistate Tax Commission,

432 U.S. 452, 472 CFG Tap sccansiestiitniansusitipiaatanietasit 15

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

SE (2DGR) ..ncsaccsnnsnsisentisisnisiaimumaniaiaanmadiacamalia 3, 4, 16

CONSTITUTION OF THE UNITED STATES

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STATUTES

S995 Acts of Vigimie, GR, BaD ccscsiisscssactssarsnianionnse 4

1997 Laws of Maryland, Ch. 699..................seeee 4

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TABLE OF AUTHORITIES—Continued

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eae Ae EET CD ca ikes tects ceeininssennnsnseninbnnens

Interstate Compact of the Washington

Metropolitan Area Transit Authority, Pub. L. 89-

774 ( November 6, 1966) ......................ccccccssscscceees

Pub. L. No. 105-151, 111 Stat 2686 (1997)...........

SUID GOING TING 7 ob oieicieccrccssncscinscercnsarsocneonces

NOTICE OF CONSENT

This brief is filed with the consent of Petitioner and

Respondent, by and through their counsel. Originals of the

consents have been filed with the Clerk of the Court'.

STATEMENT OF INTEREST

The Washington Metropolitan Area Transit Authority

(“WMATA”) is an Interstate Compact Agency founded and

bounded by the terms of an Interstate Compact among the

Commonwealth of Virginia, the State of Maryland, and the

District of Columbia, with the consent of the Congress of the

United States. See Interstate Compact of the Washington

Metropolitan Area Transit Authority, Pub. L. 89-774

(November 6, 1966) at 80 Stat 1324, as amended thereafter

from time to time; see also Hess v. Port Authority of New

York, 513 U.S. 30 (1994) (noting that WMATA is an

Interstate Compact Agency within the meaning of the

Compact Clause of the United States Constitution, Art. I,

Section 10). WMATA employs nearly 9,000 people and is the

primary provider of transit services within the Washington,

D.C. metropolitan area.

The construction and interpretation of interstate compacts

approved by Congress pursuant to the Compact clause is a

matter of federal law. See, e.g., Cuyler v. Adams, 449 U.S.

435 (1981). The decision of the Court below undermines the

settled and uniform interpretation of such Compacts in ways

that create substantial mischief that, if allowed to stand, and if

adopted by courts outside New Jersey as an acceptable way of

interpreting Compacts, would _ substantially impair that

certainty of result and predictability of the law that is

essential to the operation, not just of WMATA, but of all

' Counsel for the amici curiae authored the brief in its entirety. No

person or entity other than the amicus, its members or its counsel made a

monetary contribution to the preparation or submission of the brief.

Compact agencies throughout the country. For this reason,

WMATA has a substantial practical interest that would be

significantly impaired in the absence of a grant of certiorari.

SUMMARY OF ARGUMENT

Mindful of this Court’s admonition to amici to add to and

not just repeat the arguments of the parties directly involved

in a case (see Supreme Court Rule 37.1), WMATA will

confine its brief to demonstrating how the ruling below, by

departing from settled law, undermines WMATA’s

operations. We will also show why that decision cannot stand

under principles of federalism as old as M’Culloch v.

Maryland, 17 U.S. (4 Wheat.) 316 (1819) and as fresh as the

recent decision in Alden v. Maine, _U.S._, 144 L. Ed. 2d 636

(1999).

ARGUMENT

I. BY ABRUPTLY DEPARTING FROM SETTLED

LAW, THE DECISION BELOW MAY SUB-

STANTIALLY IMPAIR THE OPERATIONS OF

WMATA AND OTHER INTERSTATE COM-

PACT AGENCIES.

A. The Structure of the WMATA Compact and

Settled Law

The WMATA Compact establishes early on that WMATA

is a “common agency” of its signatory parties. WMATA

Compact, Art. If, Section 2, at D.C. Code Ann. Section 1-

2431(2). (Hereinafter the WMATA Compact will be referred

to by section number. The whole of the Compact may be :

found in the D.C. Code, Section 1-2431, with identical

versions in the laws of the other signatories.) That phrase has

been interpreted to mean that WMATA is both an entity in

and of itself whose operations are subject to the powers and

limitations of the Compact, and an agency of each of the

states and the District of Columbia as well. See Diven v.

Amalgamated Transit Union Int’l & Local 689, 38 F. 3d 598,

601 (D.C. Cir. 1994) (for purposes of federal labor law

exemption, WMATA is a “political subdivision” of all its

signatories); PEPCO v. State Corporation Commission, 221

Va. 632 (1980) (WMATA is an agency of Virginia for _

purposes of Virginia law governing the sale of electricity

within the state).

This dual status, as a separate entity governed solely by its

Compact and as an agency of the states in areas where the

states and the District of Columbia, by the Compact, retain

the right to govern WMATA's conduct, is inherent in the

purpose and structure of all interstate compacts. By their

nature, interstate compacts are entered into precisely because

the signatories are willing to surrender a modicum of the

sovereignty they otherwise retain to accomplish a purpose

that has a benefit beyond the borders of their state. In that

sense a compact agency like WMATA acts both as a separate

entity, and as an entity that is the creature of its individual

signatories as expressed by the terms of the Compact. The

characterization of such an interstate compact has been

variously described by this Court as analagous to a “treaty,”

West Virginia ex. rel. Dyer v. Sims, 341 U.S. 22, 31 (1951)

(Frankfurter, J), or to a contract, Texas v. New Mexico, 482

U.S. 124 (1987). Until the decision below, no court had ever

disputed that: “ [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 given final meaning by an organ

of one of the contracting states.” West Virginia ex. rel. Dyer

v. Sims, supra, 341 U.S. at 28.

Rather, the ability of a state to change the nature and extent

of its delegation of authority to the Compact agency is

governed solely, it has always been assumed, by the specific

and complete amendment provisions of the Compact itself.

In WMATA’s case, for instance, its Compact provides that

amendments changing the Compact can only be made only if

an amendment specifically amending the Compact is

consented to by legislation subject to the concurrence of both

the legislatures of the signatories, their executive officers, and

the Congress. See Compact, Section 84 (“Amendments and

supplements to this Title to implement the purposes thereof

may be adopted by legislative action concurred in by all of

the others. When one Signatory adopts an amendment or

supplement to an existing section of the Compact, that

amendment or supplement shall not be immediately effective,

and the previously enacted provision or provisions shall

remain in effect in each jurisdiction until the amendment or

supplement is approved by the other Signatories and is

consented to by Congress.”). This solemn requirement has

been interpreted historically by WMATA to require that any

amendment to the Compact is effective if, and only if, it is

adopted in pari materia in all respects by each of the

jurisdictions and consented to by the Congress. Thus, when

recent amendments were proposed to the signatories to

change and somewhat expand the police powers delegated by

the signatories to WMATA, Virginia and the District of

Columbia included a sentence expanding the power of arrest

of on-duty Transit Police officers; Maryland rejected this

portion of the proposal. The amendments were submitted to

Congress and approved without the language objected to by

Maryland. Compare Pub. L. No. 105-151, 111 Stat 2686

(1997) with 1997 Laws of Maryland, Ch. 699; 1995 Acts of

Virginia, Ch. 150; and D.C. Law 11-138 (1996). This

interpretation of the nature of the amendment process is

consistent with the cases discussed below on the necessity for

joint, and not unilateral, amendment of a Compact.

B. The Compact Itself States the Only Way the

Compact May be Amended

The reasons for these strict formal requirements for

amendment flow both from the nature of the Compact itself,

TR eens Ce ene ee

and from the practical difficulties that would inhere if any

other rule, such as the rule proposed by the decision below of

“amendment by implication,” were adopted.

The argument from the nature of the Compact itself is one

of Constitutional dimension. A Compact involves some

surrender of state sovereignty to accomplish the common end

served by the Compact . Thus, the express provisions of the

Compact may in certain respects, indeed important respects,

differ from the state law governing the same or similar

conduct. The state may by agreement delegate to the

Compact agency the power to make internal rules, such as

rules governing procurement, labor, or operations, for its own

governance, and these rules may differ in major and minor

ways from the state's own laws governing its citizens. The

Compact itself may specify that state law may govern some

activities of the agency that take place within the territory of a

single signatory. For instance, the WMATA Compact

expressly provides that the laws of the respective signatories

shall govern traffic requirements, zoning, and health and

safety matters, to the derogation of the Authority's power to

act independently. See Compact, Section 75. This express

retention of authority meets both practical concems (it would

be difficult to imagine an interstate agency that had

independent authority to set speed limits, for instance) but is

also consistent with the notion that those powers conceded to

or delegated to an agency by a Compact are within the

province of the Compact agency unless the Compact itself

designates local law to govern. Just as importantly, however,

the powers not granted directly or by implication to the

Compact agency are retained by each signatory. The

Compact is a form of limited self-government for the agency;

it is not a justification for any state to exercise its own powers

in derogation of the sovereignty retained by the other parties.

For one sovereign to have a power to regulate, by legislation,

court fiat, or otherwise, matters that directly concern the

power of the other sovereign parties to the Compact over their

Own agencies involves an assertion of the sovereign power of

the legislating state beyond its Constitutional power to act

under the Tenth Amendment, unless that power has been

specifically delegated to the Compact agency.

This theoretical and legal construct has practical

significance. If each signatory were given the right to

impinge on the sovereignty of the others, even in matters

where all sovereigns have addressed the issue in some

manner, the agency could never determine with precision

whether the legislation of the signatories were congruent

enough to amount to an amendment of the Compact by

implication. Even if there were some substantial broad

congruence, whether and to what extent particular provisions

of particular legislation of one signatory applied when the

legislation of other signatories was silent or had provisions

that differ would vex the sturdiest logician. If God is in the

details, so is the Devil. Requiring a Compact agency to

choose among the details even of parallel legislation requires

the Agency to favor one sovereign at the expense of the other,

subject always to the power of the Court of a disfavored

sovereign to second-guess the choice. In WMATA’s case,

potentially three different courts of three different

jurisdictions could could pick and choose to apply different

provisions of ostensibly parallel legislation that a court of one

of the sovereigns had decided on its own authority amended

the Compact, even if the courts or the legislatures of the other

Signatories determined to the contrary. Indeed, even if the

courts of only one of the three jurisdictions in which

WMATA operates were to adopt the reasoning of the New

Jersey court, the result would be either a surrender of

amending power solely to the state adopting the New Jersey

construction or, more likely, retaliatory decisions by the

courts or legislatures of the other parties. Confusion would

soon deteriorate to chaos. “What's a body to do?” should not

be the governing principle of any law, much less the law

governing a body which operates across borders where each

sovereign may have different laws. If courts in the

jurisdictions in which WMATA operates were to follow the

New Jersey decision here, the result would be not only

greatly increased business for lawyers both in and out of

house, but paralysis in operations and chaos in the field as

workers charged with obeying the law struggled to determine

what exactly the law was they were charged to obey. And if

different law applied to different jurisdictions, the conflict

would have serious repercussions for those who innocently

sought to follow some law, any law, in the absence of

authoritative interpretations. That is no way to run a railroad

or a bus line.

For these reasons, the local courts that have interpreted the

WMATA Compact have held that the Compact governs those

powers delegated to the Authority by its terms, even if that

grant conflicts with state law. It follows, the courts have

held, that the only way to amend the Compact is by the terms

of the Compact itself: with the knowing, full consent of the

Commonwealth of Virginia, Maryland, the District of

Columbia and the Congress evidenced by identical legislation

adopted by all the signatory parties and consented to by the

Congress.

Thus, in Malone v. WMATA, 622 F. Supp 1422 (D.C. Va.

1985), an employee of WMATA argued that the Virginia

labor law, which contained a right to work provision,

continued to govern his substantive right to refuse to join a

union shop, notwithstanding that the Compact, itself,

contained a provision mandating WMATA to engage in

collective bargaining with its unions and, implicitly, to reach

agreements that contained union shop clauses. In finding that

the Virginia law did not apply, the Court correctly reasoned

that insofar as the signatory jurisdictions had entered into the

Compact, they had agreed to abide by the terms of the

Compact, even if those terms conflicted with state law that

would otherwise govern. The Compact was judged para-

mount not only because the Compact as federal law was

supreme over the law of the states, but also because the nature

of the Compact itself was a bargain that bound the parties by

its terms.

In C.T. Hellmuth & Assoc., Inc. vy. WMATA, 414 F. Supp.

408 (D. Md. 1976), the court considered and rejected the

identical argument adopted by the New Jersey court here in

recognizing the theory of “implied amendment.” There, the

plaintiff sought to invoke his alleged statutory mghts to

freedom of information to obtain documents from WMATA.

The Compact did not specifically address the question of

freedom of information, although the Compact gave

WMATA's Board of Directors clear authority to adopt, repeal

and amend rules and regulations governing the operation of

the Authority (Compact, Section 12 (c)), a power it had not

exercised in the case of freedom of information. The plainuff

claimed that an amendment by implication could be construed

from the fact that all the signatories had enacted freedom of

information laws to govern their own agencies, and, because

these laws were “substantially similar,” should be treated as

implied amendments to the Compact.

This argument was soundly rejected by the court for

reasons that echo here. The court noted that a Compact was a

“contract which may not be amended, modified, or otherwise

altered without the consent of all the parties.” /d. at 409. If

the Compact were to be amended, it would have to be

amended by its terms, since even if legislation with parallel

subject matter had in fact been enacted by each of the

signatories, those pieces of legislation differed in their details.

See Id. at 410, fn. 5 (cataloguing a number of details in which

the legislation of the signatory states differed). The existence

of these details, or the possibility that the details might differ,

made amendment by implication a dead letter as a matter of

law, since “Maryland may not impose its preferences in this

regard upon Virginia and the District, for such an imposition,

however minimal, was nonetheless an intrusion upon their

interest and in derogation of the Compact.” /d. at 410.

The Hellmuth decision cuts out the logical heart of the

decision under examination. Even if a court of a single

jurisdiction could predictably determine when and if the

signatories had enacted parallel legislation, that would not

end the matter of determining the content of the amendment.

Each state may act on a similar subject in a similar broad way

(i.e., by recognizing a citizen's mght to obtain some

documents from government). But that similarity breaks

down in the details. One state, either by statute or decision,

may recognize a particular request as subject to an

exemption; another state may not. Faced with such conflict,

WMATA, at its peril, would be required to choose which of

the signatories’ laws will apply. Any choice it makes would

be in derogation of the law of one of the other signatories,

and subject to examination by the courts of all three

jurisdictions that are parties to the Compact. Thus, if

WMATA chose to recognize an exemption contained in

District law, but not in the law of Virginia, a Virginia court

might find the choice invalid, while the District of Columbia

courts would presumably uphold the action. Maryland might

have an entirely different position. The result would be

gridlock in practice, and, as a theoretical matter, would enable

WMATA, or the courts of one or all of its signatory

jurisdictions, to act in ways contrary to the choices made by

the legislatures or the courts of other signatory jurisdictions.

Thus, although all the states might recognize a broad nght,

once that right is reduced to specifics, the possibilities for

confusion, contradiction, and insults to the sovereignty of

each of the signatories becomes not only likely, but

inevitable.

This Court ought to have compelling reasons of

constitutional dimension to permit a State to so impinge upon

the sovereignty of its co-equal states and to undermine the

law of the United States contained in the Compact. No such

reason exists: in fact, the opposite result is compelled by the

Tenth Amendment to the Constitution, and by this Court's

very recent construction of the architecture of federalism

created by the Constitution.

II. State Sovereignty Is an Interest of Constitutional

Dimension and Bars Amendments to an Interstate

Compact by Implication.

Petitioner here has ably argued the case against the New

Jersey court's action in the case at bar. However, there is

another argument only touched upon by petitioner that

WMATA believes is sufficient in itself to invalidate the

action of the intermediate New Jersey state appellate court.

That principle is one of the fundamental federalism created

by the Constitutional scheme of allocating powers among the

States themselves, and between the States and the federal

government.

It has been well-established, at least since M’Culloch v.

Maryland, 17 U.S. (4 Wheat.) 316 (1819), that states may not

tax directly the operations of the federal government. The

reason for this rule is obvious: if the states were given the

power to tax the federal government, that power could be

exercised in ways that undermined the fundamental

sovereignty of the federal government operating in its own

sphere. Although “all powers over which the sovereign power

of a state extends are objects of taxation” Justice Marshall

held, it was equally true that “those over which the sovereign

power of a state does not extend are, upon the soundest

principles, exempt.” Jd. at 429. The people of a single state

could not extend its power to tax to the federal government

without undermining the allocation of sovereignty between

the states and the federal government created by ratification

of the Constitution.

If M’Culloch established the principle that a state could not

exercise its law-making powers in ways that invaded the

sovereignty of the federal government, recent precedent has

established that the right of the states to exercise their

retained sovereignty free of federal interference is as real and

as constitutionally based as the immunity of the federal

government from direct regulation by the states.

These retained sovereignty cases have sometimes arisen

under the Tenth Amendment, sometimes under the Eleventh,

but whatever the source of the right in the particular case, the

right of the states to exercise their sovereignty free of

interference by the federal government is of Constitutional

dimension. In this case, the Tenth Amendment furnishes the

touchstone. That amendment provides that the powers not

delegated to the United States by the Constitution are

“reserved to the States respectively or to the people.”

Constitution of the United States, Amendment X. (emphasis

supplied). Those powers that remain with the states and have

not been ceded to the federal government by the Constitution

are thus retained by the states not only against federal

encroachment, but also free from the power of other states to

regulate matters solely confined to the sovereignty of a

particular state. The attempt by one state to exercise power

Over another state’s governmental affairs in matters within the

second state's sovereignty is a corrupt exercise of power

barred by the Tenth Amendment. Under that amendment, the

powers reserved to each state individually and respectively

may neither be interfered with by the federal government nor

by the government of any other state, absent an agreement by

the state itself to surrender a part of that sovereignty by

means of a constitutionally provided for Interstate Compact.

Thus, except where the states have agreed explicitly to

confer upon Congress a power by legislation to regulate the

conduct of the state itself (e.g., the Fourteenth Amendment,

Section 5) or where a state itself has voluntarily waived its

immunity from federal legislation, the State retains its

Eleventh Amendment immunity notwithstanding the express

efforts of Congress to waive that right for the states. In this

case, the whole is not greater than the sum of its parts,

because those “parts” have co-equal dignity with the federal

government. See College Savings Bank v. Florida Prepaid

Postsecondary Ed. Expense Board, __ U.S.__, 144 L. Ed. 2d

605 (1999).

And, as this Court has recently held, this retention of

sovereignty by the states as against the federal government is

rooted not only in the explicit provisions of the Tenth and

Eleventh Amendments, but in the structure of the

Constitution itself. Thus, in Alden v. Maine, _U.S._, 144

L. Ed. 2d 636, (1999), this Court explained why a state

government was not subject to suit under the Fair Labor

Standards Act in its own courts. While. the Eleventh

Amendment cases had established that a state could not be

subjected to FLSA action in the federal courts, suits in the

State courts under federal law did not implicate the Eleventh

Amendment, the plaintiff claimed, because that amendment

applied only to suits against the state under federal law

brought in federal courts. Use of the state court to vindicate

the federal mght did not, the plaintiff claimed, implicate any

right of the state of Constitutional dimension. A majority of

this Court rejected that argument.

In finding that suit against the state under federal law was

constitutionally barred even if brought in state court, this

Court noted that “the States’ immunity from suit is a

fundamental aspect of the sovereignty which the states

enjoyed before the ratification of the Constitution, and which

they retain today except as altered by the plan of the

Convention or certain Constitutional amendments.” That

residual sovereignty which was never surrendered to the

federal government by the Constitution is “inviolable.” 144

L. Ed. 2d at 652. No waiver of that immunity would be

implied; rather, there must be “compelling evidence” that the

states had surrendered their sovereign immunity with respect

to a suit, whether or not brought under federal law. /d. at

663. To permit a citizen to enforce federal law in any court

by suit against a state was a violation of the fundamental

sovereignty .retained by the states at the time of the

Constitutional convention and waiver of that retained

sovereignty would not be implied. This was so because every

waiver carried with it “substantial costs to the autonomy, the

decisionmaking ability, and the sovereign capacity of the

State.” Jd. at 676. When the federal government attempts to

“assert authority” over a “State's most fundamental political

processes, it strikes at the heart of political accountability so

essential to our liberty and republican form of government.”

Id.

The logic of that decision limiting the power of the federal

government to force a waiver of sovereignty on the States

leads to the conclusion that the retained sovereignty of each

of the States bars attempts to control or regulate the conduct

of the state itself by an equal sovereign, another State, at least

absent express consent. Although the states may, subject to

due process and dormant commerce clause limitations,

indirectly regulate the conduct of out-of-state citizens through

the exercise of their police power, it certainly does not follow

that one sovereign state has the power to regulate the conduct

of other states and their agencies. To grant such a power

would completely undermine the principle “so essential to our

liberty and republican form of government” that only the

State itself may regulate its own conduct, or waive its

otherwise sovereign rights.

Maine may, for instance, impose its own traffic laws on

citizens of Vermont who travel in the state. It may tax,

subject to due process limitations, sales that have a locus in

the State even if the purchaser is not a citizen of Maine. In

short, it may exercise its own sovereignty in ways that may

regulate incidentally citizens of another state. But if Maine

sought to compel the state of Vermont to apply Maine's

traffic laws within Vermont's borders, or sought to compel

the agencies of Vermont to obey Maine's labor laws

governing the right of government workers to unionize, or

any other law for that matter, then a Constitutional line has

been crossed. Extra-territorial application of the laws of a

State are always subject to scrutiny, but extra-territorial

attempts to regulate the affairs of another state are always

forbidden absent compelling evidence of consent, just as state

attempts to impose its rules directly on the federal

government are forbidden. Such efforts constitute a vile and

pernicious interference by one state in the affairs of another,

and cannot, after Alden, survive challenge.

Yet, such vile and pemicious interference with the

sovereignty of Pennsylvania is just what the court of New

Jersey did here. By applying New Jersey law to an interstate

compact agency it sought to impose New Jersey's will and

New Jersey law on an agency of the Commonwealth of

Pennsylvania beyond the scope of Pennsylvania’s waiver of

its Own sovereignty when it consented to be bound by the

treaty/contract/agreement called a Compact. It does not

matter that the law New Jersey seeks to apply because of an

“amendment by implication” has some counterpart in

Pennsylvania law. Unless Pennsylvania has expressly waived

its right to apply its own law to its own agencies, New Jersey

cannot act to usurp the sovereignty of Pennsylvania. It is up

to Pennsylvania alone to decide the law governing its own

agencies unless New Jersey and Pennsylvania’s governments

have knowingly and solemnly ceded a portion of that

sovereignty to a common agency established by Compact by

approving the initial Compact, or have knowingly consented

to an explicit amendment to that Compact.

Moreover, these interests are real and must be given effect

even if the laws of both jurisdictions are similar in all

respects. This is so because any application by one court of

the “joint law” of the court's home state and another

jurisdiction to an agency of a sister state equally infringes the

sovereignty of the other state. A state, as an incident of its

own sovereignty, retains the right to interpret its own law in

its own way. New Jersey's reading of the same words may

differ from the reading a Pennsylvania court might give in a

number of ways. One state may adopt an absolute plain

meaning rule; the other may look to extrinsic sources to guide

interpretation. The standards applied may portend different

results even if the language of the two enactments are the

same. To borrow Professor Lon Fuller's famous example,

one state's notion of a “vehicle” may encompass a baby

buggy or a bicycle; the other state‘s may not.

Similarly, even if the New Jersey court had exercised some

restraint and required an absolute congruence of two statutes

before an implied amendment of a Compact could be

inferred, that rule too would undermine the ability of each of

the interested States to amend their own laws. If only

identical laws amended a Compact agency by implication,

then the effect of an amendment to the law applied by

implication would either repeal the law’s application to the

Compact agency, thereby creating confusion and disorder by

the unilateral act of one of the parties to the Compact, or else

the unamended law would continue to govern the Compact

agency, in derogation of the sovereignty of the amending

state. In this area, as the Court stated in another Compact

context, “the pertinent inquiry is one of potential, rather than

actual impact” on the “sovereignty” of each of the parties to

the Compact. U.S. Steel Corp. v. Multistate Tax Commission,

432 U.S. 452, 472 (1978).

This analysis is implicit, at least, in all those cases

considering the power of a state unilaterally to amend a

Compact or to impose its law in the absence of an express

provision in the Compact. See C.7T. Hellmuth, supra; Cal

Tahoe Regional Planning v. Sahara Tahoe Corp., 504 F.

Supp. 753, 761 (D. Nev 1980)(California has no power

without authorization under the Compact or express consent

of Nevada to pass legislation that affects the inner workings

of a Compact agency).

We close with the words of Justice Frankfurter, long-time

champion of federalism, writing in West Virginia ex. rel.

Dyer v. Sims, 341 U.S. 22, 28. There, in interpreting the

scope of an Interstate Compact, Justice Frankfurter wrote:

“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 the State can be unilaterally

nullified, or given final meaning, by an organ of one of

the contracting states.”

By attempting to usurp authority that constitutionally resided

in Pennsylvania alone without securing the agreement by

Pennsylvania to a common amendment to the Compact, the

New Jersey court struck at the heart of federalism in a way

that should be overturned without delay. This Court should

take this opportunity to vindicate those important principles,

particularly where, as here, the aberration produced by the

New Jersey court could have deleterious repercussions for all

Compact agencies if allowed to spread. This case may, with

time, prove to be a derelict, but that is only a hope. If it is a

derelict, this Court should sink it now and spare all Compact

agencies the agony of dealing with this indefensible

usurpation by a single court of the sovereignty of a sister

State.

Respectfully submitted,