Ask the Scholar
Document scope · 1 page
Scholar
Ask about this object, its catalog metadata, its source description, or the page inventory.
For page-specific OCR and visual context, open one of the page chats.
Scholar Source Context
Document identity
localId
158702260
label
Personal Data Questionnaire [4]
core
doc
dtoType
document
citationUrl
pageCount
1
Source metadata
id
158702260
contentType
document
title
Personal Data Questionnaire [4]
citationUrl
collections
Records of the Office of the Counsel to the President (Clinton Administration)
Doug Band's Files
imageCount
1
hasImages
yes
source
import
hasTranscription
no
Source extras
naId
158702260
levelOfDescription
fileUnit
otherTitles
42-t-7409204-20091007F-006-001-2009
recordType
description
ocrSource
nara-archive
Single page context
seq
1
pageIndex
0
type
document
mediaId
c02c77c9c89ae44c
ocrText
NLWJC-Sotomayor-Box0006-Folder0001
FOIA Number: 2009-1007-F
FOIA
MARKER
This is not a textual record. This is used as an
administrative marker by the William J. Clinton
Presidential Library Staff.
Collection/Record Group:
Clinton Presidential Records
Subgroup/Office of Origin:
Counsel Office
Series/Staff Member:
Doug Band
Subseries:
OA/ID Number:
12690
FolderID:
Folder Title:
Personal Data Questionnaire [4]
Stack:
Row:
Section:
Shelf:
Position:
V
6
6
10
2
CLINTON LIBRARY PHOTOCOPY
Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
SUBJECT/TITLE
DATE
RESTRICTION
AND TYPE
001. draft
Sotomayor Addendum (20 pages)
nd
P2
002. form
Financial Statement (2 pages)
nd
P6/b(6)
003. report
Financial Disclosure Report (4 pages)
02/27/1997
P2, P6/b(6)
004. form
RE: Questionnaire for National Secuity Positions (23 pages)
nd
P6/b(6)
005. form
Immigration Addendum to SF-86 (3 pages)
nd
P6/b(6)
COLLECTION:
Clinton Presidential Records
Counsel's Office
Doug Band
OA/Box Number: 12690
FOLDER TITLE:
Personal Data Questionnaire [4]
2009-1007-F
db1195
RESTRICTION CODES
Presidential Records Act - [44 U.S.C. 2204(a)]
Freedom of Information Act - [5 U.S.C. 552(b)]
P1 National Security Classified Information ((a)(1) of the PRA]
b(1) National security classified information ((b)(1) of the FOIA]
P2 Relating to the appointment to Federal office [(a)(2) of the PRA]
b(2) Release would disclose Internal personnel rules and practices of
P3 Release would violate a Federal statute [(a)(3) of the PRAJ
an agency [(b)(2) of the FOIA]
P4 Release would disclose trade secrets or confidential commercial or
b(3) Release would violate a Federal statute [(b)(3) of the FOIA]
financial Information [(a)(4) of the PRAJ
b(4) Release would disclose trade secrets or confidential or financial
P5 Release would disclose confidential advice between the President
information [(b)(4) of the FOIA]
and his advisors, or between such advisors [a)(5) of the PRA]
b(6) Release would constitute a clearly unwarranted invasion of
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA]
personal privacy [(a)(6) of the PRA]
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA)
C. Closed in accordance with restrictions contained in donor's deed
b(8) Release would disclose information concerning the regulation of
of gift.
financial Institutions [(b)(8) of the FOIA)
PRM. Personal record misfile defined in accordance with 44 U.S.C.
b(9) Release would disclose geological or geophysical information
2201(3).
concerning wells [(b)(9) of the FOIA)
CLINTON LIBRARY
RR. Document will be reviewed upon request.
PHOTOCOPY
Withdrawal/Redaction Marker
Clinton Library
DOCUMENT NO.
SUBJECT/TITLE
DATE
RESTRICTION
AND TYPE
001. draft
Sotomayor Addendum (20 pages)
nd
P2
COLLECTION:
Clinton Presidential Records
Counsel's Office
Doug Band
OA/Box Number: 12690
FOLDER TITLE:
Personal Data Questionnaire [4]
2009-1007-F
db1195
RESTRICTION CODES
Presidential Records Act - [44 U.S.C. 2204(a))
Freedom of Information Act - [5 U.S.C. 552(b)]
P1 National Security Classified Information [(a)(1) of the PRAJ
b(1) National security classified information [(b)(1) of the FOIA]
P2 Relating to the appointment to Federal office [(a)(2) of the PRAJ
b(2) Release would disclose internal personnel rules and practices of
P3 Release would violate a Federal statute [(a)(3) of the PRA)
an agency [(b)(2) of the FOIA]
P4 Release would disclose trade secrets or confidential commercial or
b(3) Release would violate a Federal statute [(b)(3) of the FOIA]
financial information [(a)(4) of the PRAJ
b(4) Release would disclose trade secrets or confidential or financial
P5 Release would disclose confidential advice between the President
information [(b)(4) of the FOIA)
and his advisors, or between such advisors [a)(5) of the PRA)
b(6) Release would constitute a clearly unwarranted invasion of
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA]
personal privacy [(a)(6) of the PRAJ
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA)
C. Closed in accordance with restrictions contained in donor's deed
b(8) Release would disclose information concerning the regulation of
of gift.
financial institutions [(b)(8) of the FOIA]
PRM. Personal record misfile defined in accordance with 44 U.S.C.
b(9) Release would disclose geological or geophysical information
2201(3).
concerning
wells
[(b)(9)
of
CLINTON the FOIAL LIBRARY PHOTOCOPY
RR. Document will be reviewed upon request.
SOTOMAYOR RESPONSE TO SENATE QUESTIONNAIRE
PART ONE, QUESTION 12
CLINTON LIBRARY PHOTOCOPY
CLINTON CL LIBRARY PHOTOCOPY
nnn
The Yale
nn
n
Law Journal
Volume 88
Number 4
March 1979
Statchood and the Equal Footing Doctrine:
The Case for Puerto Rican Seabed Rights
by
Sonia Sotomayor de Noonan
88 YALE L.J. 825
I
Reprint
Copyright (L) 1979 by
The Vale Law Jonnal Co., Inc.
CLINTON LIBRARY PHOTOCOPY
Notes
Statehood and the Equal Footing Doctrine:
The Case for Puerto Rican Seabed Rights
In the near future, negotiations between Puerto Rico and the
United States will probably explore statehood as an alternative to the
island's current "commonwealth" status.¹ The island's dearth of land-
1. Commonwealth status means the island enjoys self-government in local aftairs under
in own constitution and association with the United States under the Puerto Rican
Federal Relations Act of 1950. §§ I, 4, 48 U.S.C. 45 731(b). 731(e) (1970). For a discussion
of the continuing debate concerning the nature of commonwealth status, see Cabranes,
Puerto Rico: Out of the Colonial Closet, FOREIGN PoL'r, Winter 1978. at 66.
The island's ongoing economic difficulties have exacerbated dissatisfaction with the
commonwealth arrangement and the island's political parties are voicing demands for a
status change. See, e.g., Garcia Passalacqua, 20 Years of Anticolonialism, San Juan Star,
Apr. 23, 1977. at 27. col. 2 (sttacks on commonwealth status have brought "{cjolonialism
in Puerto Rico" to "its deathbed"); Puerto Rican Factions Hit Island Status, Wash. Post,
Aug. 19, 1977. at AL col. 6 ("For the fint time, virtually the whole spectrum of political
opinion in Pocrto Rico appeared before a U.N. committee and criticized the Island's
commonwealth status.")
Statehood is currently the foremost alternative to the "fast collaps(ing)" common-
wealth. Garcia Passalacqua, Hispanic State or Le Republice-IV. San Juan Star, Mar. 3.
1977. at 27, col. 2. The island's statched parties since 1952 have received increasingly
larger percentages of the vote, culminating in the 18.3% that they received in 1976. See
Letter from Michael E. Vere, Director, Legal Counsel Section of the Office of the Com-
monwealth of Puerto Rico to José A. Cabranes, Lecturer in Law. Yale Law School (Mar.
28, 1978) (on file with rale Law Journel). Although this percentage partly reflected
protests against the island's ecunomic state under the commonwealth party. the trend
toward statehood is clear. Puerto Rico: the oil issue, II LATIN AMERICA POLITICAL REP.,
Feb. 4. 1977. at 38.
President Ford's New Year's Eve statchood proposal suggests some United States sup.
port for the statchood alternative. See President Proposes Puerto Rican State; Urges U.S.
Initiative, N.Y. Times, Jan. I, 1977. at 1, col. 6. President-elect Carter Indicated his will.
ingness to support statchood "Ill the people who live there prefer that.'' Carter Weighing
Personnel to Fill Sub-Cabinet Jobs. N.Y. Times, Jan. 2. 1977, at I, col. 5 & 44. col. 5. A
Callup poll conducted in December 1976 found three out of every five Americans in
favor of statchood for Puerto Rico. 39% on Mainland Fevor State in Gellup Inc. Poll.
San Juan Star. Jan. 5. 1977. at 1, col. 1.
A bid for statchood by Puerto Rico has increasingly been viewed 21 inevitable. See. C.R.,
Puerio Rico Turnabout, Wash. Post, Aug. 20. 1977. at A11, col. I (editorial) (although
mainland has focused little attention on issue of statchood for Puerto Rico, "question is
coming"): Ramos, Has P.R. Passed The Point 01 No Return? San Juan Star, Jan. 15, 1977.
at 19, col. 2 ("island's economic absorption by the U.S. will inevitably result in its com-
plete political absorption through statchood"). But see Nordheimer, Puerio Rico Is Torn.
by Dispute Over Seeking Statehood Status, N.Y. Times, Apr. 30, 1978, at I. col. 4 (statchood
will not receive more than simple majority in plebiacite and Congress likely 10 reject
statehood petition).
825
CLINTON PHOTOCOPY
The Yale Law Journal
Vol. 88: 825. 1979
Puerto Rican Seabed Rights
based resources and its ongoing economic stagnation and poverty,
miles into the sea.ᵃ The inclusion of such a provision in Puerto Rico's
coupled with the possibility of offshore oil and mineral wealth." will
compact essential. of admission could be politically necessary and practically
create political pressures for Puerto Rico to demand exclusive rights to
exploit its surrounding seabed' in an area ranging from nine to 200
Nevertheless, because such an agreement would grant the island
2. See, e.g., Hoyt. The Mineral Industry of Puerio Rico, 2 MIN. Y.B. 623. 624 (1974)
28, § 117(A) (Supp. 1977). the Secretary of Natural Resources of Pucrto Rico is directed
(island's mincral production includes only cement, clay, time, salt, and and gravel. and
stone); Lens, Puerio Rico could become the United States' next Vietnam, Dallas Times
to obtain from leases of submerged lands "the highest financial return possible, consistent,
however, with the widest possible exploitation or extraction of the commercial mineral."
Herald, Aug. 14. 1977. at 1.1. col. I & 1-B, col. 1 (discovery of copper and nickel deposits
bis history of exploitation of submerged lands indicates that the island would follow a
may allay but will not cure island's economic problems).
leasing program if it were to secure the right to explore its seabed as a state.
Since the increase in oil prices in 1972, the island has been beset by serious economic
5. There is presently considerable disagreement about whether Puerto Rico or the
difficulties. See, e.g., Nordheimer, supre note I. at 56, col. 1 (Puerto Rico has become
United States has the right to exploit the island's seabed resources. See Puerto Rico: the
'welfare state'. with 63 percent of the population qualifying for Federal food stamps"):
oil issue, supra note 1. at 37 (United States and Puerto Rico "waging a quiet but
60% of Pherio Ricans' Income Below Poverly Level. N.Y. Times, Jan. 1. 1977. at 5. col.
2 ("{u}nemployment [over 30%). inflation and high taxes
have
crippled
persistent struggle over the island's title to offshore mineral rights"); Agrait, Puerto
seriously
Rico y la Tercera Conferencia de las Naciones Unidas Sobre el Derecho Del Mar (un-
Puerto Rico's economy").
published paper) (on file with Yale Law Journal) (history of Island's efforts to secure
3. Studies have shown the possibility of oil and gas deposits from two to nine miles off
the northern coasts of the island. The deposits could yield an estimated 200,000 harrels
rights over seated at Third United Nations Conference on the Law of the Sea). In its
Mining Law of 1975. P.R. LAWS ANN. tit. 28. $ III (Supp. 1977). the island claimed
of oil per day. an amount sufficient to supply the island's current daily consumption of
140,000 barrels. Letter from Michael E. Vew, Director, Legal Counsel Section of the
ownership of all exploitable commercial minerals in its continental shelf, which at present
Office of the Commonwealth of Puerto Rico (Mar. 31, 1977) (on file with Tale Low
extend about 12 miles into the sea. Passalacqua Christian, Romero's miraculous fish oil,
San Juan Star. Mar. 9. 1977, at 16. col. 1. The United States failed to recognize this claim
Journal). Other reports have indicated strong possibilities of limestone or dolomite off
the northern coasts. Western Geoplaysical Company, Evaluation of Hydrocarbon Prospects
and still In Puerto Rico submitted a bill to Congress. H.R. 7827, 95th Cong., 1st Sesa. (1977).
committee, seeking jurisdiction, like that exercised by Texas and Florida, over
of the Island of Puerto Rico, Final Report 12 (Feb. 1975) (report to Puerio Rico Water
three marine leagues (nine nautical miles). Passalacqua Christian, Island 'adrift in .
Resources Authority) (on file with Yale Low Journal). Mobil Oil Corporation has offered
leaky canoe', San Juan Star, Mar. 6, 1978, at 15, col. 2.
to explore for oil in three northern coast locations. Licha, Exploracion en Tres Puntos. El
Commonwealth supporters have been lobbying for Puerto Rico to claim control over
Nuevo Dia, Feb. 5, 1977, at 2. col. 1. The discovery of manganese nodules, potato-shaped
the 200-mile economic zone recognized in the Composite Text, supre note 4, arts. 56, 57.
pellets each containing a wealth of cobalt, nickel, copper, and manganesc, have reportedly
been made within 200 miles of Puerto Rico's southern coast. Passalacqua Christian,
See, Bryan, Copaken Cree la Isla Estd Perdiendo Oportunided Pare Que se Estable
Limite Sobre sus Aguas Territoriales, El Mundo, Feb. 21, 1977, at 11.B, col. 5; RHC calls
Romero's mireculous fish oil-ll. San Juan Star, Mar. 19. 1977. at 24. col. I.
4. Puerto Rico might also seek rights to conserve and manage fishing in a 200-mile
for pressure on U.S. to obtain rights to offshore oil, San Juan Star, July I. 1977. at 3, col. 1.
The United States has declared its rights over the continental shell to the limits of its
economic zone, see note 116 infra (defining economic zone). off its coasts. The United
States has recently declared such a zone. Fishery Conservation and Management Act of
exploitability. Outer Continental Shelf Lands Act of 1953, $ 202, 43 U.S.C.A. 5 1332 (West
Supp. 1978). In the Third Law of the Sea Conference, the United States proposed the
1976, Pub. L. No. 94-265, $ 101, 90 Stat. 336 (codified at 16 U.S.C. 5 1811 (1976)): ct. In-
formal Composite Negotiating Text of the Third United Nations Conference on the law
recognition of a 200-mile economic zone, see note 116 infre (defining economic zone), in
which coastal nations could exclusively exploit the natural resources of the acabed. Docu-
of the Sea, arts. 56, 57. U.N. Doc. A/CONT. 62/W.P.10 (July 15, 1977) (recognizing 200-mile
ments of the Second Committee, United States Draft Articles, 3(2) Third U.N. Conference
exclusive economic zone over living and nonliving natural resources) (hereinafter cited
as Composite Text]. Although Puerto Rico's demands for rights over the seabed and over
on the Law of the Sea (Caracas, Venez.) 222, arts. 1. 2. U.N. SALES No. E.75. V.5 (Aug.
fishing management might involve a similar 200-mile limit, the two demands would
8, 1974). Thus by the time the question of statchood for Puerto Rico is faced by
Congress, the United States may well recognize a 200-mile shelf zone. Therefore Puerto
involve different rights, responsibilities, and duties. Compare Convention on the Con-
Rico could al a minimum ask for control to the limit of exploitability, 12 miles, and at the
(inental Shelf of the United Nations Conference on the Law of the Sea, art. 2. U.N. Doc.
Composite Text, supre note 4, art. 57.
maximum request the 200 miles being recognized by the international community. See
A/CONF. 13/L.55 (Apr. 29. 1958) (declaring rights to exploit continental shelf exclusive
to coastal state) [hereinafter cited 21 Continental Shell Convention] with Convention on
6. It is unlikely that opposing political parties of the island would allow statehood
Fishing and Conservation of the Living Resources of the High Seas of the United Nations
negotiators to concede to the federal government Puerto Rican resources as valuable
Conference on the law of the Sea. art. 7. U.N. Duc. A/CONF. 13/1.54 (Apr. 28, 1958)
those of the seabed. See, e.g., Passalacqua Christian, supre note 3 (seabed resources have as
(recognizing coastal states's right to impose regulations to conserve fish but probibiting
potential of "reducing and ending
discrimination against foreign fishermen) [hereinafter cited as Fishing Convention).
would not look good for [Governor] to be accused of giving away to the Federal Govern- [and it}
dependence on Federal Aid Programs
Puerio Rico would likely acck the exclusive right to explore and exploit the natural
ment Puerto Rico's natural resources and thus binding us over in the bondage of Federal
resources of the scabed. See P. 845 infre. The federal government currently authorizes
the Secretary of the Interior "to grant to the highest responsible qualified hidder" leases
dole note forever"); RHC Calls for Pressure on U.S. to Obtain Rights to Offshore Oil, supre
5 (former Governor calls on statchood government to demand 200-mile
for the exploration and development of the submerged lands under national control.
Seabed resources would aid Puerto Rico in solving the economic difficulties zone). exacerbated
See Outer Continental Shelf Lands Act of 1953. N 205(a). 43 U.S.C.A. M 1337(a) (West Supp.
by its mineral deficiencies, especially in oil, see note 2 supre, and may be to
1978). A payment of royalty is required. Id. % 1337(b). Similarly, Texas authorizes a
compensate for the increased economic burdens imposed by statehood. See UNITED necessary STATES-
School Land Board to lease to the highest bidder the exploration and exploitation
PUERTO Rico COMMISSION ON THE STATUS OF PUERTO Rico, HEARINGS ON THE STATUS
rights to its submerged lands. See TEX. Net. Rrs. CODE ANN. it. 11. 55 52.011. 019
(Vernon 1977). Louisiana, on the other hand, authorizes its State Mineral Board to
(statchood would require greater contribution to federal purse, and labor costs would in-
PUERTO Rico, S. Doc. No. 108, 89th Come., 2d Seas. 593-602 (1966) (Dr. Alvin Mayne) OF
issue leases to the bidder making the "bid must advantageous to the state." See LA. R.V.
crease prohibitively if federal minimum wage laws applied to island). But see id. at 623-35
STAT. ANN. § 30:127(a) (West Supp. 1978). In the Mining Law of 1975, P.R. LAWS ANN. iit.
(Arthur Burns) (statehood for Pucrto Rico is economically feasible).
826
827
The Yale Law Journal
Vol. 88: 825, 1979
Puerto Rican Seabed Rights
seabed rights denied to any of the fifty states at their admission to the
the Court has not directly addressed the question whether the equal
Union,' it would probably meet with opposition based on the "equal
footing doctrine permits Congress to grant rights to an incoming state
footing doctrine." That doctrine "prevents extension of the sover-
that exceed those granted to any existing state at its admission.11
cignty of a State into a domain of political and sovereign power of the
This Note suggests a new historical analysis of the equal footing
United States from which the other States have been excluded" when
doctrine that demonstrates that the doctrine poses no barrier to such
PHOTOCOPY
the state enters the Union." Although the Supreme Court in Alabama
an extensive seabed grant upon Puerto Rico's admission into the
v. Texas'' held that Congress has the power under the property clause
Union. The Note defines the submerged lands issues left unsettled by
of the Constitution to grant existing states unequal seabed rights,"
the case law, and derives a framework for the equal footing doctrine
from a historical analysis of submerged lands and equal footing cases.
7. See PP. 832-33 infre (discussing United States V. Texas. 339 U.S. 707 (1950). which
vested seabed rights in federal government at state's admission because of equal footing
It then applies this framework to Puerto Rico's claims and demon-
doctrine).
strates that Congress may, without violating the equal footing doc-
8. See note 9 infre.
trine, cede seabed rights to the island on admission. Finally, the Note
Another objection involves a possibility that the Puerto Rican government might seek
to [avor its citizens in granting rights to exploit the scabed. See Mining Law of 1975, P.R.
suggests considerations for the language of such an agreement and
LAWS ANN. tit. 28, 5 117(14) (Supp. 1977) (requiring every person who leases right to
defines its limitations.
extract commercial minerals to agree that "insofar as economically possible, persons
residing in Puerto Rico be employed for the works originating and carried out under
such lease, and that such persons be trained in such operations as require technical
I. The Allocation of Seabed Rights
skills"). Puerto Rico 23 a state, however, would be subject to challenges of such actions
based on the privileges-and-imunities and equal protection clauses. U.S. CONST. amend.
XIV. 5 1; see, c.g.. Toomer V. Witsell, 334 U.S. 385, 395-403 (1948) (South Carolina
In a long line of cases," the Supreme Court has invoked the equal
licensing scheme discriminating against nonresident lishermen declared invalid under
footing doctrine to vest control over the seabed in the federal govern-
privileges-and-immunitier clause): Alexandria Scrap Corp. V. Hughes, 391 F. Supp. 46.
ment." Although their reasoning and results have been subjected to
56-58 (D. Md. 1975) (Maryland statute requiring processors to have office in state con-
trary to equal protection clause). It is beyond the scope of this Note to discuss the
numerous criticisms,¹⁴ the cases retain their precedential value." The
propriety of such favoritism by a state toward its own citizens.
9. United States V. Texas, 339 U.S. 707. 719-20 (1950) (plurality opinion). The equal
12. See pp. 832-33, 838 infra.
footing requirement first appeared in the Northwest Ordinance of 1787. see I THE
A mere expectancy or even a promise of seabed control after admission would not be a
DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 168 (M. Jensen ed.
sufficient guarantee for Puerto Rico as it commits itself to the Irrevocable status of
1976) (quoting Ordinance in full). as a condition demanded by Virginia for its cession
statchood. Seabed rights are inextricably tied to the other economic and political issues
of western lands to the Union, see Hanna, Equal Footing in the Admission of States. 3
surrounding Puerto Rican statehood. See note 6 supre. The grant of seabed rights must
BAYLOR L REV. 519, 523 (1951) (history of equal footing clause). Beginning with the
be simultaneous with admission. See Passalacqua Christian, supra note 3 (admission to
admission of Tennessee in 1796. all states were admitted using the equal footing clause. 1d.
Union without full seabed rights would be "cruel jest" on Puerto Rican people).
Congressional concern and belief in the necessity for "equality" of states was quite
13. The present Governor of Puerto Rico, Carlos Romero Barcelo, has declared that
evident when Hawaii attempted. during its statchood negotiations, to secure control over
if his party is returned to power in 1980. he will pursue a plebiscite for statchood the
the scabed between its islands and was rebutted by equal footing arguments. See State-
next year. NEWSWEEK, Sept. 11, 1978, at 35. In order to make an objective and Informed
hood for Hawaii: Hearings on S. 19, $. " & H.R. 3573 Refore the Senate Comm. on In.
decision concerning their future, the Puerto Rican people need to understand the dif.
terior and Insular Affairs, 83d Cong., 1st & 2d Sets. pt. 2. at 40-53 (1954) (history of
ference between the constitutional and the political prices that statehood would require.
Hawaii's demands and their resolution). Hawaii finally agreed to accept a condition in
The equal footing framework developed in this Note can be applied to test the constitu-
its act of admission that the Submerged Lands Act of 1953 "shall be applicable to the
tional basis of any condition for admission demanded by Congress or by Puerto Rico.
State of Hawaii, and the said State shall have the same rights as do existing states there-
14. See, C.E., United States V. Texas, 339 U.S. 707 (1950): United States V. Louisiana,
under." Id. pt. 3. at 725.
339 U.S. 699 (1950): United States V. California, 332 U.S. 19 (1947).
" seems probable that similar equal footing arguments will arise during Puerio Rico's
15. See PP. 831-33 infre.
negotiations over statehoud because it is an often assumed that entering the Union would
16. See, e.g., Hanna, The Submerged Land Cases. 3 BAYLOR L REV. 201, 204 (1951)
automatically require relinquishment to the federal government by the island of its rights
("few
judicial decisions contrary to the expressed views of more well-informed
to sealied resources. See, E.R., O'Toole, Ollshore Oil Issue Raised in P.R. Proposal, Wash.
lawyers"); Naujoks, Title to Lands Under Navigable Waters, 32 MARQ. L REV. 7. 37
Post, Jan. 2. 1977. at A2. col. 3 (President Ford's statehood proposal may have been
(1948) ("United States Supreme Court is wrong
in
holding
that
the
Federal
Govern.
motivated by desire to federalize island's offshore resources): Passalacqua Christian, supre
ment has paramount rights to the tidelands"). But see Clark, National Souereignty and
note 3 (island's rights over seabed would disappear if it became state: under statehood it
Dominion Over Lands Underlying the Ocean. 27 TEX. L REV. 140. 141 (1948) ("historical,
would be entitled to only. three miles under United States laws). Finally, precedent in.
political and practical" reasons exist for federal dominion over scabed).
dicates that opposition by existing states or the executive might arise if the Island were
17. See United States V. Maine, 420 U.S. 515, 519, 524 (1975) (reaffirming reasoning
granted disproportionate rights. See notes 101 & 102 infra.
and results of cases vesting rights over seabed in federal government). A Special Master
10. 347 U.S. 272 (1954) (per curiam).
appointed by the Court to take and review evidence in Maine found that the historical
11. 11. at 273: see U.S. CONST. art. IV. § 3. cl. 2 ("The Congress shall have Power to
conclusions of the submerged lands cases were correct. Report of Albert B. Maris, Special
dispose of and make all needful Rules and Regulations respecting the Territory or other
Master, at 75.81, United States V. Maine, 420 U.S. 515 (1975) (hereinafter cited as Special
Property belonging to the United States
Master's Report]. The Court in Maine accepted the Master's findings. 420 U.S. at 522.25.
828
829
The Yale Law Journal
Vol. 88: 825, 1979
Puerto Rican Seabed Rights
cases merit careful analysis, because the Court has never explicitly
decided whether the equal footing doctrine is a constitutional limita-
overturned this broad reading of Pollard, but failed to provide a con-
tion on the power of Congress to set the terms for admission into the
sistent or clear framework for evaluating subsequent equal footing
claims.
Union and, if so, whether this limitation precludes Congress from
granting disproportionate seabed rights to an incoming state.
In the first Tidelands Case, United States V. California," the Court
upheld the federal government's claim to all submerged land rights in
PHOTOCOPY
Until the 1940s, the leading authority concerning states' rights to
control over the seabed was the 1845 case of Pollard's Lessee v. Hagan."
the three-mile marginal sea24 claimed by California. Because the
Pollard held that because Alabama had been admitted to the Union
original states had never acquired imperium (regulatory power) or
on an "equal footing" with the other states, it was entitled to the same
dominium (ownership interest) over the submerged lands of the
rights of sovereignty and jurisdiction over shorelands as were possessed
marginal sea, and because California was admitted to the Union on
by the original states." For over a century Pollard stood for the broad
an equal footing with the original states, the Court held that California
proposition that states owned title to all "navigable waters, and the
had demonstrated no ownership of the claimed area.27 Pollard was
soils under them"20 within their historic boundaries." A series of
distinguished by the fact that acquisition, protection, and control of
Supreme Court decisions from 1947 to 1950, the Tidelands Cases,**
the three-mile marginal belt "has been and is a function of national
external sovereignty."2" Thus, lands in which "national interests" such
18. 44 U.S. (3 How.) 212 (1845). In Pollard, the Court rejected plaintiff's claim to
as defense, commerce, and foreign affairs were dominant were deemed
certain shorelands based on a federal patent issued after Alabama's admission into the
Union. Plaintiff had argued that the United States in Alabama's compact of admission
retained ownership of the lands. Id. at 220-21.
23. 332 U.S. 19 (1947).
19. Id. at 228-29. The Court held that, at the time of the American Revolution, "the
24. "Marginal sea" and "territorial sea" refer to the three-mile belt of water measured
people of each state became themselves sovereign," and possessed the absolute right to
from the seaward edge of inland waters. See United States V. Louisiana, 394 U.S. 11. 22
all navigable waters and soils within the colony. Id. at 229 (quoting Martin V. Waddell,
(1969) (defining terms); Manchester V. Mamachusetts, 139 U.S. 240, 258 (1891) (recognizing
41 U.S. (16 Pet.) 367, 410 (1842)). The independent colonies retained this sovereign right
one league as minimum limit).
at the formation of the Union. Id.
25. 332 U.S. at 34-36, 39-40. California argued that because the original states acquired
The Court in Pollard also invoked the premise that the federal government could not
title to the three-mile belt from the English Crown and because it had been admitted on
permanently hold or condemn lands within the boundaries of a state without the state's
an equal footing with the original states, it acceded to the same right of title over the
express consent. Id. at 223. The Constitution reserved title to "shores of navigable waters,
submerged lands. Id. at 23. California also pleaded several defenses all of which the Court
and the soils under them" to the original states. Id. at 230. Alabama was admitted on an
dismissed summarily. Id. at 23-24 & n.2. 39-40.
equal footing, because the Court imputed to the state at the time of its admission
26. The California majority held that national interests required that the federal
ownership of and sovereignty over all lands that it did not explicitly cede to the federal
government have the "powers of dominion and regulation" over the marginal belt. Id.
government in its compact of admission. Id. at 223. The Court found that a provision
at 35. Justice Frankfurter, in dissent, used the terms "dominium" and "imperium," id.
reserving for the United States waste and unappropriated lands (public lands) did not
at 43-44, to refer to what the majority labelled "dominion" and "regulation." He argued
include shorelands, and that a condition concerning freedom of navigable waters was
that although the majority was right in denying California a proprietary interest or
only a "regulation of commerce" and did not confer property rights on the United
dominium over submerged lands and in amerting that national interests conferred
States Id. at 230. Therefore, the federal patent to plaintiff was invalid. Id.
regulatory power on the federal government, the majority failed to explain how the
It was not until 1875. in Kohl V. United States, 91 U.S. 367 (1875). that the Supreme
federal government acquired dominium. Id. at 44. Justice Frankfurter's "imperlum" and
Court held that the power of eminent domain was inherent in sovercienty and that,
"dominium" terminology was later adopted by the plurality in United States V. Texas,
consequently, in order to implement its constitutional functions, the United States could
339 U.S. 707. 712.13 (1950).
condemn lands within a state without the state's consent. Id. at 373-74. In United States
27. 332 U.S. at 32, 38-39. Without an evidentiary hearing, the Court said that it could
V. Texas, 339 U.S. 707 (1950). the Court plurality further held that an express state grant
not conclude that "the thirteen original colonies separately acquired ownership of the
at admission was not necessary in order for a state to relinquish title to the United
three-mile helt or the soil under it, even if they did acquire elements of the sovereignty
States Id. at 718.
of the English Crown by their revolution against It." Id. at " (footnote omitted). In
20. 44 U.S. (3 How.) at 230.
United States V. Maine, 420 U.S. 515 (1975). a Special Master finally conducted a hearing
21. Pollard actually held that states owned title to all "shores of navigable waters, and
on historical evidence, see Special Master's Report. supre note 17, at 25.65. and the Court
the soils under them." Id. (emphasis added). Nevertheles, subsequent cases Interpreted
explicitly found that the colonies had not owned the three-mile belt. 420 U.S. at 522.
Pollard to mean that a state owned title to all tide waters and their beds within the
But see Hardwicke, Illig & Patterson, The Constitution and the Continental Shelf. 26
state's territorial boundaries. See, e.g., The Abby Dodge, 223 U.S. 166, 175 (1912); Mc.
TEX. L REV. 398, 408-26 (1948) (colonies and original states were landowners of sub-
Cready V. Virginia, 94 U.S. 391, 394-95 (1876). For a general history of cases relying on
merged lands).
the Pollard rule, see Naujoks, supre note 16, at 21-37.
28. 332 U.S. at 34. The Court limited the Pollard rule to cover only state ownership
22. "Tidelands" is a misnomer given to three submerged lands cases-United States V.
of inland waters and soils under them (land between the lines of the ordinary high and
Texas, 339 U.S. 707 (1950). United States V. Louisiana, 339 U.S. 699 (1950), and United
low water marks). Id. at 36. The Pollard rule had been applied in other cases involving
States V. California, 332 U.S. 19 (1947). See Hyder, United States V. California, 19 Miss.
the marginal sea. See note 21 supre (citing cases). The California Court read those cases
L.J. 265, 265 & nn.2-3 (1948) (Tidelands Cases involved lands under tide waters and not
as involving only the right of states to regulate fishing in the absence of conflicting con-
tidelands, lands covered and uncovered by ordinary tide).
gressional legislation. 332 U.S. at 37-38.
830
831
CLINTON PHOTOCOPY
The Yale Law Journal
Vol. 88: 825, 1979
Puerto Rican Scabed Rights
to be within the "paramount rights" and powers of the federal govern-
seabed dominium to the federal government.31
ment after the admission of a state into the Union."
In 1953, Congress passed the Submerged Lands Act,3" which vested
Three years later, the Court followed California "a fortiori" in
ownership of the marginal sea and its resources in the states" and
United States U. Louisiana, and expanded its reasoning in United
provided that states could claim a greater seaward boundary to a limit
States v. Texas." Texas, as an independent republic, had claimed and
of three marine leagues in the Gulf of Mexico if "it was so provided
exercised both imperium and dominium over submerged lands three
by its constitution or laws prior to or at the time such State became a
marine leagues (nine nautical miles) from its shore.32 Texas argued
member of the Union, or if it has been heretofore approved by Con-
that at its admission it ceded to the United States only imperium, and
gress."⁴" In a per curiam decision in Alabama v. Texas,42 the Court
not dominium, to this area.33 Justice Douglas, writing for the Court
denied the motions of Alabama and Rhode Island for leave to file
plurality, disagreed, holding that "although dominium and imperium
complaints challenging the constitutionality of the Submerged Lands
are normally separable and separate,"ᵃ⁴ "national interests and national
Act.43 Alabama and Rhode Island claimed that by granting some Gulf
responsibilities" compelled federal control of both regulatory and
states an extended boundary over the three miles to-the three marine
property interests in the seabed.24 Because it entered the Union on an
league limit, the Submerged Lands Act violated the equal footing
equal footing with the original states," Texas automatically lost all
guarantees in their acts of admission and resulted in their "inferior
sovereignty."+
29. 332 U.S. at 34-36, 38-39.
The Court, which included only three members of the majority that
30. 339 U.S. 699. 705 (1950). Based on a 1938 state statute, Louisiana claimed control
over the scabed within 27 miles of its shores. 1d. at 703. The United States sought a
had decided the Tidelands Cases, summarily upheld the Submerged
declaration of its lights to the area. Id. at 701. The Court held that the federal govern-
Lands Act on the ground that Congress, under the property clause of
ment's sovercignty extended 10 the entire area claimed by Louisiana, even though 00
federal claim to the scabed beyond three miles had been proven. 1d. at 704-05. The
Truman Proclamation of 1945. Exce. Proclamation No. 2667. 3 C.F.R. 67. 68 (1945). had
of the controversy. 339 U.S. at 719. Texas, however, was not admitted under that "Joint
declared United States "jurisdiction and control" over the continental shelf. but, as was
Resolution" but under the Joint Resolution for the Admission of Texas into the Union,
explained in an accompanying release, Exec. Order No. 9633. 3 C.F.R. 437 (1945), the
1. Res. I. 20th Come., 1st Sess. 108 (1845). The latter resolution was never "submitted to
Truman Proclamation did not purport to vest title to the shelf in either the federal or
nor accepted by Texas." Hanna, supre note 9. at 520. The Court plurality later ordered
state governments. But are Note. Conflicting State and Federal Claims of Title in Sub-
the amendment of the Texas opinion to make correct reference to the proper document.
merged Lands of the Continental Shell. 56 YALE L.J. 356, 369 (1917) (Supreme Court
United States V. Texas, 340 U.S. 848 (1950).
could use Truman Proclamation to vot title to shelf in federal government). It was not
37. 339 U.S. at 718.
until three years after Louisiana that Congress declared it "to be the policy of the United
38. Pub. 1. No. 83.31, 67 Stat. 29 (1953) (codified at 43 U.S.C. AS 1301-1315 (1970)).
States that the subsoil and seabed of the [shell area outside the marginal mal appertain
The Act was intended to undo the effects of the Tidelands triad. See S. REP. No. 133,
to the United States." Outer Continental Shell Lands Act of 1953, Pub. I. No. 83-212.
83d Cong., 1st Sexs. B. reprinted in [1953] U.S. Code CONG. & AD. NEWS 1474. 1481
5 3. 67 Stat. 462 (codified at 43 U.S.C.A. N 1332 (West Supp. 1978)). Once again, as in
("purpose of [Submerged Lands Act] to write the law
as
the
Supreme
Court
believed
United States V. California, 332 U.S. 19 (1947). the Court in Louisiana failed to explain
it to be in the past-that the States shall own
all
lands
under
navigable
waters
how the federal government acquired dominium over the shelf. See note 26 supre (dis-
within their territorial jurisdiction"); H.R. REF. No. 695. 82d Cong., 1st Seas. 5. reprinted
cussing California Count's failure to explain national acquisition of dominium).
in [1953] U.S. CODE CONG. & An. NEWS 1395, 1399 (Submerged Lands Act fixed as law
31. 339 U.S. 707 (1950) (plurality opinion). The United States in Texas sought a
that which prior to California "believed and accepted to be the law of the land"-that
declaration of rights over the submerged lands in the Culf of Mexico bordering Texas.
states own submerged lands within their boundaries). The Supreme Court viewed the
Id. at 709.
Act as an exercise of Congress's power to dispose of public property, and not as a
32. 1d. at 712.13. The Court plurality assumed the validity of Texas's claim that it had
mandate to overturn the Tidelands Cases. See United States V. Louisiana, 363 U.S. 1. 7
exercised imperium and dominium over the three marine league belt as a Republic. 11.
(1960).
at 717.
39. 43 U.S.C. 9 1311(a) (1970).
33. Id. at 712.13. The intention to cede only imperium, Texas argued, was evidenced
40. Id. 5 1301(b) ("in no event shall the term 'boundaries' be interpreted as ex.
by the retention of vacant and unappropriated lands in its compact of admission. Id. at
tending from the coast line more than three geographical miles into the Atlantic Ocean
714-15; see Joint Resolution for annexing Texas to the United States, J. Res. 8, 28th
or the Pacific Ocean, of more than three marine leagues into the Culf of Mexico").
Cong., 2d Seas. 797 (1845). The United States responded by arguing that Texas's grant of
41. Id. 5 1312.
all property necessary to the public defense impliedly ceded the marginal belt to the
42. 347 U.S. 272 (1954).
federal government. 339 U.S. at 714-15.
43. Id. at 273.
34. 339 U.S. at 719 (fonthole omitted).
44. Complainant Alabama's Brief in Support of Motion for Leave to File Complaint
35. Id.
and Complaint at 57-72, Alabama V. Texas, 347 U.S. 272 (1954) (Alabama grant extends
36. Justice Douglas found the equal footing doctrine to control and bind the substance
only to three mile belt; any greater grant to other states denies equal footing and results
of admission even without the agreement of the state to the terms of the admission
in making Alabama's sovereignty Inferior); Brief for Complainant Rhode Island at 10.
declaration. The Justice relied 011 the equal footing clause of the Joint Resolution for
Alabama V. Texas, 317 U.S. 272 (1954) (Rhode Island claims Submerged Lands Art
amexing Texas to the United States, 1. Res. H, 28th Cong., 20 Sess. 797 (1845). to dispose
violates equal looting clause).
832
833
The Yale Law Journal
Vol. 88: 825, 1979
Puerto Rican Seabed Rights
the Constitution, could divest itself of the "public domain."48 Justice
mains unclear whether the equal footing doctrine is a constitutional
Douglas, the author of Louisiana and Texas, and Justice Black, the
bar to a congressional grant of disproportionate seabed rights to an
author of California, relied on the equal footing doctrine to argue that
incoming state. In light of subsequent cases, it cannot be argued that
Congress had no authority to "relinquish elements of national sover-
the Texas decision settled this question.
eignty over the Oceans."4" The new Court in Alabama, however, over-
PHOTOCOPY
turned Texas sub silentio by holding that Congress in a postadmission
II. The Equal Footing Doctrine: A Historical Reinterpretation
grant could separate property interests in the seabed from national
One reason the submerged lands cases seem confused or inconsistent
sovereignty.41 The Court subsequently confirmed Congress's power to
is that the Court has never adequately defined the content or sources
cede federal "property" to states in unequal portions." Recently, in
of the equal footing doctrine. The equal footing doctrine ultimately
United States v. Maine," the Court reaffirmed the results of its Tide-
rests on concepts of federalism: the United States is a "union of po-
lands Cases by upholding the paramount rights of the federal govern-
litical equals."" Although superficially derived from a clause common
ment to the continental shelf50 outside the marginal sea.51 Thus it re-
in statehood compacts," equal footing in this century has emerged as
an amalgam of constitutional and statutory precepts. Constitutional
45. 547 U.S. at 273.
principles alone act as an affirmative limitation on congressional power
46. Id. at 279 (Black, J., disenting): see id. at 282 (Douglas, J., dissenting). Justice
to negotiate terms in compacts of admission, but statutory precepts also
Douglas viewed federal powers over submerged lands as "incidents of national sover-
cignty" that could not be "abdicated" without undermining the equality of states the
guide courts as they interpret such compacts.
equal footing clause required. Id. at 282-83.
47. See 34 B.U. L REV. 504, 507 (1954) (Alabama "tacilly repudiated" Texas): c/. 30
U. MIAMI L REV. 203, 213 (1975) (Submerged Lands Act, granting seabed rights to states,
A. The Constitutional Component of the Equal Footing Doctrine
is "de facto repudiation" of prior rationale for vesting control in federal government).
The Constitution provides that "[n]ew States may be admitted by
Texas and Alabama indicate that the Court perceived a difference between a grant at
admission and a grant after admission. The Texas plurality viewed seated rights as SCT
the Congress into this Union." Congress may, on "penalty of deny-
intertwined with sovereignty as to be inseparable at admission. Otherwise "there is or
ing admission," require any conditions for entry into the Union."
may be in practical effect a subtraction in favor of Texas from the national sovereignty
of the United States." 339 U.S. at 719. A seabed grant after admission, however, "was
Since the admission of Ohio in 1802,* Congress has imposed on states
merely an exercise of" paramount national power. United States V. Maine, 420 U.S. 515.
a variety of special conditions that have limited the sovereign and
524 (1975). This reasoning fails to explain the argument in Texas that in the case of
political powers that states can exercise after admission. On the other
seabed rights, property rights (dominium) follow and commingle with sovereignty (im.
perium). 339 U.S. at 719. In effect, the underpinning of Texas was overturned because
in Alabama the Court found property rights separate and separable from national
52. Case V. Toftus, 39 F. 730, 732 (C.C.D. Or. 1889) ("The doctrine that new states
sovercienty. But cf. P. 840 intra (harmonizing results of Alabama and Texas).
must be admitted ... on an 'equal footing' with the old ones does not rest on any ex.
48. In United States V. Louisiana, 363 U.S. I (1960). and United States V. Florida, 363
press provision of the constitution but on what is considered to be the general
U.S. 121 (1960). the Court recognized claims under the Submerged Lands Act by Texas
character and purpose of the union of the states
union of political equals.")
and Florida for dominium over three marine leagues in the Cull of Mexico. but denied
53. See p. 836 intra.
similar claims by Louisiana, Mississippi, and Alabama. Texas and Florida showed that it
54. U.S. CONST. art. IV. I 3. cl. 1. See generally Park, Admission of States and the
was the intention of Congress to recognize the extended boundaries that existed at the
Declaration of Independence, 33 TEMP. LQ. 403, 405 (1960) (five procedural methods by
time of Texas's admission to the Union and at the time of Florida's readmission after
which states have historically been admitted).
the Civil War. This showing of congressional intent was the sole element necessary to
55. Coyle V. Smith, 221 U.S. 559, 568 (1911): cf. Brittle V. People, 2 Neb. 198. 216
establish entitlement under the Subrerged Lands Act. United States V. Louisiana, 363
(1872) (how states will be admitted is political question to be settled by territorial residents
U.S. 1. 29-30 (1960).
and Congress-not courts).
19. 420 U.S. 515 (1975). The defendants in Maine were the 13 states burdering the
56. See Enabling Act of Ohio, ch. 40, 2 Stat. 173 (1802). Prior to Ohio's admission,
Atlantic Ocean. Id. at 516-17.
Vermont, Kentucky, and Tennessee, the first three states added to the new union, were
50. Continental shelves have typically been defined
admitted without the imposition of conditions. See An Act for the admission of Tennes-
as those slightly submerged portions of the continents that surround all the con-
see, ch. 47. I Stat. 491 (1796); An Act for the admission of Vermont, ch. 7. I Stat. 191
tinental
mass that forms the lands above water. They are that part of the
(1791); An Act admitting Kentucky. ch. 4, I Stat. 189 (1791). For an explanation of
continent temporarily (measured in geological time) overlapped by the occans. The
enabling acts and acts of admission. see Park, supre note 54, at 405 (enabling act author.
outer boundary of each shelf is marked by a sharp increase in the slope of the sea
izes constitutional convention whereas act of admission ratifies admission of state: act of
floor. It is the point where the continental mass drops off steeply toward the ocean
admission need not be preceded by enabling act).
deeps.
57. See note 60 infra (examples of conditions): Dunning, Are the States Equal Under
H.R. REP. No. 215, 83d Cong., 1st Sess. 6, reprinted in [1953] U.S. Code CONG. & AD.
the Constitution? 3 POLITICAL Sct. Q. 425 (1888) (conditions Imposed on Incoming states
NEWS 1385, 1390.
in nineteenth century); Park, supre note 54, at 406.10 (conditions Imposed in twentieth
51. 420 U.S. at 527-28.
century).
834
835
The Yale Law Journal
Vol. 88: 825, 1979
Puerto Rican Seabed Rights
hand, since the admission of Tennessee in 1796.0* Congress has in-
capital before 1913. The Court held that under the equal footing
LIBRARY PHOTOCOPY
cluded in each state's act of admission a clause providing that the state
doctrine Congress cannot, as a condition of admission, either place
would enter the Union "on an equal footing with the original States
limitations on the powers of a new state or demand the right to
in all respects whatever." To eliminate the tension between "equal
exercise powers over a new state not authorized by the Constitution.
footing" clauses and the conditions limiting the sovereign and political
The Court suggested for the first time that the equal footing doctrine
powers of particular states after admission, the Supreme Court in
derived its force not merely from the inclusion of an equal footing
the nineteenth and early twentieth centuries held the conditions to be
clause in acts of admission, but also from the constitutional imperative
of equality among the states." It asserted that the words "this Union"
either valid exercises of Congress's commerce or property powers" or
in Article IV of the Constitution" refer to "a union of States, equal in
state constitutional provisions that could later be removed by the
power, dignity and authority, each competent to exert that residuum
amendment process."
of sovereignty not delegated to the United States by the Constitution
Nevertheless, the Supreme Court struck down one such condition
itself."**
in 1911 in Coyle v. Smith." The Court in Coyle upheld an Oklahoma
The holding in Coyle rested on notions of "dual federalism." Under
statute moving the state capital from Guthric to Oklahoma City against
this doctrine federal and state governments were viewed as fully in-
a challenge that the move violated the state's enabling act. Plaintiff, a
dependent in their respective spheres of power, with federal powers
property owner in Guthrie, claimed that the statute contravened a
enumerated by Article I and all other powers reserved to the states by
condition in the act under which the state had agreed not to move its
the Tenth Amendment. As a result, Congress cannot in an act of
admission diminish or impair the sovereign and political powers of an
58. See An Act for the admission of Tennessee, ch. 47. I Stat. 491 (1796).
incoming state, including the power to designate its capital.
59. See Hanna, supre note 9, at 523-24. Prior to Tennessee's admission, Vermont and
Kentucky were each "received and admitted into this Union. as a new and entire member
of the United States of America." An Act for the Admission of Vermont, ch. 7. I Stat.
GA. Id. at 563-64; see Enabling Act of Oklahoma, Pub. 1. No. 59-234, $ 2. 34 Stat. 267
191 (1791); An Act Admitting Kentucky, ch. 4. I Stat. 189 (1791). This language is close to
(1906). The condition was not included in the state's constitution but was adopted in a
the equal footing terminology. although the phrase is not used explicitly.
separate ordinance. 221 U.S. at 564-65.
GO. In reviewing the conditions imposed on states, one nineteenth century scholar
65. 221 U.S. at 573.
suggested that "the theory that all states have equal powers must be regarded as finally
66. Id. at 580.
defunct." Dunning. supre note 57, at 452. Many of the conditions commonly imposed
67. U.S. CONST. art. IV, $ 3, cl. I ("New States may be admitted by the Congress into
upon incoming states, such as the duties to keep navigable rivers toll-free for United
this Union ")
States citizens and tax nonresident and resident proprietors equally. see, P.R., Enabling
68. 221 U.S. at 567.
Act of Louisiana, ch. 21, $ 3. 2 Stat. 641 (1811). were grounded in Congress's constitu-
69. The term "dual federalism" was coined by Professor Corwin. See E. CORWIN, THE
tional powers. Other less common conditions, such as requirements that state constitu-
TWILIGHT OF THE SUPREME COURT I (1934). He used the term to describe the judicial ap-
tions provide that government officials be literate in English, see, C.K., Enabling Act of
proach to federalism that prevailed from the Taney Court to the New Deal. Id. at 50.
New Mexico and Arizona, Pub. L No. G1-219. § 2. 20. 36 Stat. 557 (1910). or that polym.
Many of the Supreme Court's decisions before the New Deal reflected dual federalist
anous marriages be prohibited. see, C.R., Enabling Act of Utah, ch. 138, 5 3, 28 Stat. 107
notions. See, e.g., United States V. Butler, 297 U.S. 1, 77.78 (1936) (Agricultural Adjust.
(1894), did not involve matters that were generally viewed at that time as subject to federal
ment Act unconstitutional because taxing power cannot be used for federal regulation in
regulation. See C. BEARD, AMERICAN GOVERNMENT AND POLITICS 459-72 (4th al. 1926) (states
area reserved to states): Hammer V. Dagenhart, 247 U.S. 251, 273-76 (1918). overruled,
in eighteenth and nineteenth century differed widely in self-imposed electoral require-
United States V. Darby. 312 U.S. 100, 116 (1941) (Act of 1916 to prevent interstate com-
ments); G. Curtis, Admission of Utah: Limitation of State Sovereignty by Compact with
incree in products of child labor unconstitutional as federal intrusion into state matters).
the United States 17 (1887) (opinion pamphlet) (Constitution reserved to states power to
See generally M. VILE, THE STRUCTURE of AMERICAN FEDERALISM 68 (1961) (under dual
control domestic relations, including polygamy; Utah's power limited because of terms of
federalism, exercise of federal government's constitutional powers limited by state sover-
compact of admission).
cignty: Tenth Amendment frequently invoked to curtail express congremional power):
61. U.S. CONST. art. I, 5 8. cl. 3 (commerce clause): id. art. IV. I 3. cl. 2 (property
Corwin, The Passing of Dual Federalism, 36 VA. L REV. 1. 4 (1950) (federal and state
clause); see, e.g., United States V. Sandoval, 231 U.S. 28, 36 (1913) (conditions relating to
governments are co-ordinate with and equal to one another).
regulation of affairs with Indian tribes within commerce power clause): Stearns V.
70. 221 U.S. at 573 (sovereign and political powers of Incoming states cannot be "con-
Minnesota, 179 U.S. 223, 250 (1900) (provisions relating to federal property within power
stitutionally diminished, Impaired or shorn away by any conditions, compacts or stipula-
to dispose of property).
tions" in acts of admission).
62. Coyle V. Smith, 221 U.S. 559, 568 (1911) (dictum): accord, Brittle V. People, 2 Neb.
The equal footing doctrine, however, does not require the equality of states in the
198, 218 (1872); see Monnet, Violations by # State of the Conditions of its Enabling Art.
manner in which they exercise sovereign and political powers. For example, in such
10 COLUM. L. REV. 591, 605 (1910) (Congress cannot "keep a State in tuiclage after it
matters as powers delegated to the three branches of government or to local governments,
comes into the Union"; state can always amend its constitution).
the arrangements of the states vary substantially. Compare CAL CONST. arts. IV, V
63. 221 U.S. 559 (1911).
(delegating general powers to autonomous executive branch; relying extensively on ref.
836
837
CLINTON LIBRARY PHOTOCOPY
The Yale Law Journal
Vol. 88: 825, 1979
Puerto Rican Scabed Rights
Conversely, the equal footing doctrine, based on notions of sover-
The Treas plurality, however, returned to a model of dual federalism
eign equality, might also prohibit the enlargement of the powers of
by assuming that exclusive federal control over the scabed was
particular states into areas granted by the Constitution to the national
necessary."
government. This inversion of the constitutional equal footing doc.
The Court in Alabama V. Texns's was misguided in not addressing
trine formed the basis for the Court's 1950 plurality decision in United
the constitutional equal footing arguments." The reasoning in Texas
States v. Texas.¹¹ Although it did not explicitly hold that Congress
required the Alabama Court to determine whether the Submerged
could not expand the sovereign and political powers of an incoming
Lands Act undermined the constitutional "equality of States" so as to
state in a compact of admission, the Court plurality cited constito-
make them" 'different in [the] dignity and power' that they share as
tional reasons as preventing "any implied, special limitation of any of
co-equal members of the Union." Because the Alabama Court did not
the paramount powers of the United States in favor of a State."1"
consider the constitutional language in Texas, the latter opinion should
Since 1937, the doctrine of dual federalism has been replaced by
not be understood to bar affirmative congressional actions that vest
theories of "cooperative federalism." Under cooperative federalism,
seabed rights in some states that are greater than those enjoyed by other
federal and state governments are viewed as sharing powers and fune.
states."
tions, although national powers and interests take precedence over
state sovereignty." Consistent with this more expansive view of federal
B. The Statutory Component of the Equal Footing Doctrine
sovereignty, the plurality opinion in Texas suggested that the equal
Ultimately, the holding in United States v. Texas" must be viewed
footing doctrine "prevents extension of the sovereignty of a State" into
as turning on statutory, not constitutional interpretation. Although
an area of paramount rights of the United States "from which the
the Constitution guarantees sovereign equality to the states, it does not
other States have been excluded, just as it prevents a contraction of
ensure their economic or proprietary equality. Because state sover-
sovereignty which would produce inequality among the States."
eighty includes the right to acquire and to dispose of property," and
because the Constitution gives Congress plenary power to grant federal
erenda) with LA. CONST. arts. III-VI (containing specific and detailed delimitation of
lands to the state," equality either in size or in percentage of public
powers, duties, and organization of three branches and of local governments). Addition
ally, the courts have historically validated congressional power to control the formation
lands held among the states would be unrealistic." Acts of admission,
and content of constitutions of states entering the Union. As a result, states differ in the
sovereign and political powers they exercised at admission, See P. 835 supre. The equal
footing doctrine permits each state after admission to choose to exercise the same de.
75. Under dual federalism, federal and state governments were viewed as co-equals,
gree of sovereign and political powers as every other state. C1. Case V. Tottus, 39 F.
supreme in their independent spheres. See p. 837 supre. The plurality. by coalescing
730, 732 (C.C.D. Or. 1889) ("true constitutional equality between the states extends to
imperium and dominium, returned to B view of separate and independent spheres of
the right of each to have and enjoy the same measure of local or self government").
government, which was a touchstone of dual federalism thinking.
71. 339 U.S. 707. 719-20 (1950); see Frost, Judicial Expension of Seaward Boundaries
76. 347 U.S. 272 (1954) (per curiam).
Above Submerged Lands. 16 N.Y.U. INTRA. L REV. 235, 242 (1961) (Texas plurality used
77. See note 47 supre (Court may have believed that there was no equal footing issue
concept of "converse equal footing'").
Involved in post-admission grant): Alabama V. Texas, 347 U.S. 272. 261 (1954) (Douglas, J.,
72. 339 U.S. at 717; see id. at 718 (United States responsibilities with respect to "foreign
dissenting) (Court treated equal footing as "frivolous and insubstantial").
commerce, the waging of war, the making of treaties, defense of the shores, and the like"
78. United States V. Texas. 339 U.S. 707. 720 (1950) (plurality opinion) (quoting Coyle
compel conclusion that United States's supremacy over scabed must be unabridged).
V. Smith, 221 U.S. 559, 566 (1911)).
73. See Corwin, supre note 69, at 21 ("conperative conception of the federal relation-
79. At most, constitutional principles merely create a rebuttable presumption that
ship"). Cases after 1937 have reflected the cooperative federalist notions. See, P.R., Fry V.
states' compacts of admission grant equal seabed rights. See P. 840 in/re.
United States. 421 U.S. 542, 547-48 (1975) (interference with state affairs by application
NO. 339 U.S. 707 (1950).
of Economic Stabilization Act to state employees upheld as within rational congressional
81. This right is equal, in the absence of constitutional or statutory limitations, to
exercise of power): United States V. Darby, 312 U.S. 100, 124 (1941) (Fair Labor Standards
that of an individual disposing of land. See, c.g., South San Joaquin Irrigation Dist. V.
Act upheld even though it affected state sovereignty; national government can "resort to
Neumiller, 2 Cal. 2d 485, 489, 42 P.2d 64, 66 (1935): Bjerke V. Arens, 203 Minn. 501, 503.
all means for the exercise of a granted power"). See generally M. REAGAN, THE New
281 N.W. 865, 666 (1938).
FEDERALISM 21-23 (1972) (constitutional revolution of 1937 began view of federal and
82. U.S. CONST. art. IV, § 3, cl. 2 (property clause); see Alabama V. Texas. 347 U.S. 272,
state cooperation in "running programs" and in "passing statutes," as state powers no
273 (1954) (per curiam) ("The power over the public land thus entrusted to Congress is
honger held to impete of limit national powers). The Court has, nevertheless, recently
without limitations.")
moved to limit notions of cooperative federalism. See National League of Cities V. Usery.
83. States currently vary widely in geographical size and in the extent to which the
426 U.S. 833 (1976) (Temh Amendment affirmative limit on commerce power when
federal government owns public lands within their boundaries. See, e.g., BUREAU OF THE
legislation infringes on state sivercients).
CENSUS, U.S. DEPT OF COMMERCE, STATISTICAL ASSTRACT or THE UNITED STATES 1977, at
74. 339 U.S. at 719.20 (citation omitted).
197, 227 (1977).
838
839
CLINTON LIBRARY PHOTOCOPY
The Yale Law Journal
Vol. 88: 825, 1979
Puerto Rican Seabed Rights
moreover, reveal a wide variation in the property rights possessed by
terests, responsibilities, and therefore national rights are paramount."*
particular states upon their entry into the Union. Texas and Florida,
The Alabama Court assumed, without so deciding, that seabed rights
for example, came into the Union with generous grants of public lands,
were mere property rights." The failure of the Alabama Court lay in
but most other states have received very limited property grants from
not overturning the holding in the Tidelands Cases that seabed rights
Congress in their compacts of admission."
were interests "so subordinated to political rights as in substance to
Interpreting the statement in Texas that the equal footing doctrine
coalesce and unite in the national sovereign." By upholding the
has a "direct effect on certain property rights,"*" specifically on the
federal power to cede submerged lands, the Alabama Court overturned
right to exploit submerged lands, remains a problem. This finding
the reasoning of Texas" that although "dominium and imperium are
can be harmonized with the holding in Alabama v. Texas only il
normally separable and separate," in some cases "property interests are
Texas is understood to have involved statutory interpretation of the
so subordinated to the rights of sovereignty as to follow sovereignty."*
equal footing clause in the state's act of admission." The act did not
No apparent reason exists to allow the separation of property from
discuss the submerged lands issue, so the Texas plurality faced the
sovereignty in statutes like the Submerged Lands Act, while preventing
question whether the state could retain prior title by implication. The
such a separation in acts of admission. Therefore, the constitutionally
Court plurality held only that the Constitution prevented such an
based presumption of federal control over the seabed imposed by the
implication, not that Congress could not, if it had so desired, have
equal footing doctrine can be overcome. Puerto Rico need only secure
made an explicit grant of title." The constitutional language supported
Congress's agreement to an express grant in its act of admission.
the plurality's presumption that Texas had no greater property rights
than other states. Such a presumption could have been rebutted by a
III. Seabed Rights as Property Rights
showing of an express provision in the compact of admission that vested
dominion in the incoming state."
The Court has ruled that a grant of three marine leagues to some
The Court in Pollard's Lessee v. Hagan" held that property rights
states does not undermine the constitutional equality of states." The
to the beds of inland waters belong to the states." The Tidelands Cases
question remains whether a congressional grant of seabed rights of 200
reached the opposite result for offshore lands, because "national in-
miles to Puerto Rico on admission to the Union would be an uncon-
stitutional "subtraction in favor of" Puerto Rico "from the national
sovereignty of the United States." Such a grant would not, however,
84. Unlike other states, Texas was allowed to retain its vacant and unappropriated
lands. This retention was permitted in order that the state would be able to pay the
compromise national supremacy," for the right to exploit the seabed,
debts and liabilities it had incurred as a Republic. Joint Resolution for annexing Texas
under both American and international law, is alienable. Such a
to the United States, J. RES. 8, 28th Cong., 2d Scm. 797 (1845); see P. GATES, HISTORY OF
PUBLIC LAND LAW DEVELOPMENT 316 (1968) (at admission, Florida was granted 62%.
Louisiana 38%. and Alaska 28% of public land areas with remainder retained by federal
92. United States V. California, 332 U.S. 19, 30 (1947): see United States V. Texas, 339
government).
85. 339 U.S. at 716 (plurality opinion).
(1950). U.S. 707, 719 (1950) (plurality opinion); United States V. Louisiana, 339 U.S. 699, 701
86. 347 U.S. 272 (1954) (per curiam).
93. 347 U.S. at 273 (per curiam).
87. See United States V. Texas, 339 U.S. 707. 715 (1950) (plurality opinion) (plurality
held that dominium over Texas's seated vested in federal government because "equal
94. United States V. Texas, 339 U.S. 707. 719 (1950) (plurality opinion).
95. See P. 834 supra,
footing' clause of the Joint Resolution admitting Texas to the Union disposes of the
96. 339 U.S. at 719 (plurality opinion) (footnote omitted). But cf. p. 840 supre
controversy" of control over area).
(harmonizing results of Alabama and Texas).
88. See P. 838 supre.
MO. The Texas plurality found that Texas's historical proof of dominium, while a
97. Alabama V. Texas, 347 U.S. 272, 273.74 (1954) (per curiam) (upholding constitu-
tionality of Submerged Lands Act).
Republic, over its thice marine leagues scabed was insufficient to overcome the presump-
tion that such dominium had been relinquished. United States V. Texas, 339 U.S. 707.
98. United States V. Texas, 339 U.S. 707, 719 (1950) (plurality opinion).
99. To avoid confusion, this discussion will use national "supiemacy" to refer to the
717-1M (1950). Subsequently, the Maine Court held that Congress had exercised in "pata-
mount national powers" by transferring seated rights to the states in the Submerged
sovereignty of the federal as against the state governments. This concept involves federal
Lands Act. United States V. Maine, 120 U.S. 515, 524 (1975). 11 thus appears that Congress
supremacy in the areas designated by the Constitution. The word "sovereighty" in the
(30) disavow (ederal control conferred by the equal footing doctrine over the seated
international sense denotes the plenary powers of individual nations 21 against one
another and will be used as such throughout this discussion.
bordering any state by an express provision in the compact of admission.
100. See P. 834 supre; p. RH3 intra.
90. 44 U.S. (3 How.) 212 (1845).
The Commonwealth of Poerto Rico can claim the sovereign right to explore and ex.
91. Id. at 230; see p. 830 supre.
ploit its seabed under international law. The Continental Shelf Convention, IMPTA note
840
841
CLINTON LIBRARY PHOTOCOPY
The Yale Law Journal
Vol. 88: 825, 1979
Puerto Rican Seabed Rights
grant should be upheld against any equal footing challenge by other
over the sea.¹⁰⁷ Both Congress and executive officials premised the
states or by the Justice Department.16
Submerged Lands Act on the separability of national supremacy and
Congress, a court should hold, can alienate seabed rights in any way
property rights over the seabed. Finally, the separability of property
it chooses. It may, for example, make such an express provision in a
and full sovereignty rights in the high seas was recently evidenced by
compact of admission, because a commingling of sovereignty with
American creation of a 200-mile zone of "exclusive fishery manage-
property rights is no more essential in the 200-mile zone than it is in
ment authority," in which the United States claimed the power to
the smaller zone at issue in Alabama V. Texas.1 Any other conclusion
regulate one resource of the high seas without asserting sovereignty
would be at odds with principles of American and international law
over the area.109
that have recognized not only the difference between imperium and
The Court in United States V. California" viewed the possibility of
dominium over the seabed, but also the difference between sovereignty
international obligations concerning the seabed as bolstering the neces-
over the sea and sovereignty over the seabed.104
sity for national control of the area.¹¹¹ The international community,
The Truman Proclamation,10 the first claim by a major coastal
however, has generally followed the American view that sovereign
nation to rights over the continental shelf and its resources, avoided
rights over the high seas are separate from exploitation rights over the
use of the word "sovereignty" and only referred to "jurisdiction and
resources of sea lands.11
control" in order to signify that the United States' claim extended
Article 2 of the Continental Shelf Convention of the 1958 Geneva
only to the right to exploit the resources of the shelf, not to sovereignty
Convention on the Law of the Sea accorded to coastal states the exclu-
sive power to exercise "over the continental shelf sovereign rights for
4. which the United States has ratified, states that "[t]he coastal State exercises over the
the purpose of exploring it and exploiting its natural resources."1"
continental shelf sovereign rights for the purpose of exploring it and exploiting in
natural resources," id. art 2(1). In the North Sea Continental Shell Cases. the Interna-
The Informal Composite Negotiating Text of the ongoing Law of the
tional Court of Justice held that the right to explore the continental shelf and exploit its
Sea Conference incorporates the saine provision of coastal state right
natural resources was inherent in the coastal State-the rights existed "itus farto and ab
to explore the shelf.'¹⁴ Neither provision in any way prevents a coastal
initio." [1969] I.C.J. 4, 22. One study has concluded that the current United States claim
to the continental shell of the Commonwealth departs from prevailing international law
state from consenting to alienate these rights. The Composite Text
and practice under which overseas departments and associated states, without representa-
tive votes in metropolitan governments, exercise control over the coastal scabed. T.
107. Exec. Proclamation No. 2667, 3 C.F.R. 67, 68 (1945): id. ("The character as high
FRANCE, CONTROL OF SEA RESOURCES BY SEMI-AUTONOMOUS STATES 27-29 (1978).
seas of the waters above the continental shell and the right to their free and unimpeded
A coastal State's exclusive right to exploit the scabed does not preclude it from
navigation are in no way thus affected.")
transferring its right, as long as the consent is express. Continental Shell Convention, supre
108. See, e.g., Hearings on Submerged Lands Act, supre note 100, at 512-14 (Douglas
note 4, art. 2(2). Therefore, under international law, Puerto Rico and the United States
McKay, Secretary of Interior) (United States controls submerged lands. regardless of
can agree in a compact of admission who will receive the benefits of exploiting the sea.
property rights); 5. REP. No. 133, 83d Cong., 1st Sess. 5-6, reprinted in [1953] U.S. Cooz
bed. See Submerged Lands Act: Hearings on S.J. Res. 13, $. 294, S. 107, S. 107 Amend., S.J.
CONC. & An. NEWS 1474, 1479 (Submerged Lands Act grants property rights, not con-
Res. 18 Before the Comm. on Interior and Insular Affairs, 83d Cong.. 1st Sess. 1066 (1953)
stitutional rights). But see pp. 846-47 infre (federal government by Invoking eminent
(Jack Tate, Deputy Legal Adviser, Dep't of State) (international community unconcerned
domain can recapture any seabed grants).
about way United States divides its rights over seabed with states) [hereinafter cited as
109. Fishery Conservation and Management Act of 1976, Pub. L No. 94-265, 55 101.
Hearings on Submerged Lands Act).
102, 90 Stat. 336 (codified at 16 U.S.C. SS 1811-1812 (1976)).
101. In Alabama V. Texas, 347 U.S. 272 (1954) (per curiam) states challenged a dis-
110. 333 U.S. 19 (1947).
proportionate grant of seabed rights to other states. See p. 833 supra.
III. Id. it 35.
102. The Justice Department brought the submerged lands cases challenging the right
112. See 4 M. WHITEMAN, DICEST OF INTERNATIONAL LAW 789-882 (1965) (development
of Gulf states to the three marine leagues limit. See United States V. Florida. 303 U.S. 121
and acceptance of continental shell doctrine). Some nations continue to claim that the shell
(1960); United States V. Louislana, 363 U.S. I (1960). The executive need not agree with
is inseparable from the high seas and therefore not subject to appropriation. See 2 Third
a congressional grant of seabed rights to a state and could therefore seek to overturn a
U.N. Conference on the Law of the Sea (Caracas, Venez.) (18th mts.) 152. U.N. SALES No.
congressional grant in a compact of admission. C/. Veto of Bill Concerning Title to
E. 775. v.4 (July 29, 1974) (Mr. Upadhyaya, Nepal delegate). Other nations have claimed
Offshore Lands, 1952-1953 Pus. PAPERS 379 (Truman veto of first Submerged Lands Act).
assereignty over both the shell and the high seas. See I 5. LAY, R. CHURCHILL & M.
103. 347 U.S. 272 (1950) (per curiam).
NORDQUIST. NEW DIRECTIONS IN THE LAW OF THE SEA 15-16 (1975) (Brazilian claim of com-
104. See Daniel, Sovereignty and Ownership in the Marginal Sea, 3 BAYLOR L REV.
picte sovereignty).
243, 248-56 (1951) (distinction between ownership of sealied and sovereignty over waters,
113. Continental Shelf Convention. supre note 4. art. 2(1): " id. art. I (right to exploit
and dual rights in marginal sca).
shelf to limits of exploitability): id. art. 3 ("rights of the coastal State over the continental
105. Exec. Proclamation No. 2667. 3 C.F.R. 67. 68 (1945).
shelf do not affect the legal status of the superjacent waters as high scas").
106. See A. Sinjela, Land-Locked States and the Contemporary Ocean Regime 303-05
114. Composite Text, supre note 4. arts. 76, 77(1) (coastal state right to exploit seabed
(1978) (unpublished J.S.D. dissertation, Yale Law School) (on file with Yale Law Journal)
up to distance of 200 nautical miles).
(prior to 1945. few claims to continental shelf made and those made largely concerned
115. See id. art. 77(2) (rights to shelf exclusive unless exploration consented to by
with fishing conservation).
coastal state): Continental Shell Convention, supre note 4, art. 2(2) (same).
842
843
CLI.NTON LIBRARY PHOTOCOPY
The Yale Law Journal
Vol. 88: 825, 1979
Puerto Rican Seabed Rights
also proposes the creation of a 200-mile economic zone under which
coastal states have absolute rights "for the purpose of exploring and
A. Considerations for a Specific Grant
exploiting, conserving and managing the natural resources, whether
Puerto Rico may seek to include in any compact of admission
living or non-living, of the sea-bed and subsoil and the superjacent
language granting the island the right to explore and exploit the
waters.")" In short, the right to exploit the seabed, properly defined,
natural resources of the seabed to the extent recognized by the inter-
is simply a property right not necessarily commingled with national
national community. In order to ensure that the grant of scabed
supremacy. Thus a grant to Puerto Rico of seabed rights at admission
rights to Puerto Rico will be sufficiently specific, the language used in
would not be a "subtraction in [its] favor
from
the
national
sover-
other grants of scabed rights should be replicated: "The term 'nat-
eignty of the United States."
ural resources' includes, without limiting the generality thereof, oil,
gas, and all other minerals," including sand, gravel or coral, 123 and
IV. Seabed Grant Proposal and Its Limitations
all other living organisms sedentary to the seabed.' Puerto Rico's
deman hould seek to encompass all rights recognized by the United
The equal footing doctrine's rebuttable presumption of national
States in international agreements.¹ The grant should also follow the
property rights to the seabed makes the right to exploit sealed re-
Submerged Lands Act in affirming the imperium rights of the United
sources a negotiable condition in Puerto Rico's bargaining for ad-
States.12
mission.¹¹ Therefore Puerto Rico should seck a specific grant of sea-
bed rights in a compact of admission. The federal government can,
120. Current International law favors the recognition of sovereign rights over 200
however, constitutionally regulate or terminate the rights to exploit
miles of seabed. See Composite Text, supra note 4, arts. 56. 57. At minimum, Puerto Rico
the seabed secured in a compact. The main protection available for
could seek the right to explore in scabed to the limits of exploitability, see note 5 supre,
a right recognized in the Continental Shelf Convention, supre note 4. art. 1. which the
the island against a "taking" of its seabed rights is an explicit calcula-
United States has ratified. Ratifications and Accessions to the Conventions, U.N. Doc. Sr.
Lec./3 REV. I (Apr. 12. 1961).
tion of just compensation in its compact of admission.
121. It is beyond the scope of this Note to propose the exact language of a sealied
grant. Such language will require extensive negotiations because many problems of def.
inition and jurisdiction exist. C/. Note. Jurisdiction Over the Seabed: Persistent Federal-
116. The economic zone la an area "200 nautical miles from the baselines from which
State Conflicts, 12 URS. L. ANN. 291, 297.99 (1976) (establishment of baselines from which
the breadth of the territorial sea is measured." Composite Text, supre note 4. att. 57. In
to measure state control, shifting of coastlines, and pollution and environmental controls
the economic zone the coastal state has absolute rights of exploitation, see note 117
are issues currently in dispute between federal and state governments). In addition, if
infra. and jurisdiction for purposes of research, environmental preservation, and con-
the United States were to sign an international agreement such as the Composite Text,
struction, see Composite Text, supre note 4. art. 56(1)(b).
supre note 4, before the island's bid for statchood, the language of a scabed grant would
117. Composite Text, supra note 4. art. 56(1)(a). Control over the economic zone and
have to account for any international obligations the federal government had incurred.
control over the continental shelf involve a concomitant 200-mile limit. See id. arts. 57, 70.
122. Submerged Lands Act of 1953. 5 2. 43 U.S.C. $ 1301(e) (1970).
Although sovereign rights for exploitation purposes are absolute in the shell, see id. art.
123. In the Conveyance of Submerged Lands to Territories Act of 1974, Pub. L No.
77(2). cuastal states nevertheless have an affirmative duty under certain conditions to give
93-435, $ 1. 88 Stat. 1210 (current version at 48 U.S.C. M 1705(a) (Supp. V 1975)). the United
access to other States in the economic zone, see, e.g., id. art. 69 (land-locked state's right
States gave Guam, the Virgin Islands, and American Samoa title to their marginal sea.
to participate in exploitation of economic zones of adjoining coastal states).
The giant excepted oil, gas. and other minerals from the grant but included "coral, sand
118. United States V. Texas, 339 U.S. 707. 719 (1950) (plurality opinion).
and gravel." The inclusion of both phrases in the proposed grant would leave no doubt
119. Puerto Rico's bargaining position would be strengthened if it could establish
as to the meaning of Puerto Rico's demands for "mineral resources."
ownership of the seabed as a commonwealth. See notes 5 & 100 supre (controversy over
124. Composite Text, supre note 4. art. 77(4) (natural resources of shelf include "living
ownership of island's seabed; island's right to continental shelf under International law).
organisms belonging to sedentary species").
Congress's grant to the states in the Submerged Lands Act of 1953. Pub. 1. No. 83.31, $ 3,
125. The rights could include those agreed upon in the Composite Text, supre note
67 Stat, 30 (codified at 43 U.S.C. I 1311(a) (1970)). was motivated by a desire to restore
4, if it should be ratified or in the Continental Shelf Convention, supre note 4. which
historic title to the states. See note 38 supra. Historic title is not, however, necessary to
has already been ratified by the United States, see note 120 supre.
Puerto Rico's demands: congressional power to cede federal lands is "plenary" and
126. Submerged Lands Act of 1953, $ 6, 43 U.S.C. 9 1314(a) (1970):
"without limitation." Alabama V. Texas, 347 U.S. 272. 273.74 (1954) (ner curiam). In
[T]he United States retains all its navigational servitude and rights in and powers of
construing the Submerged Lands Act, the Court relied on historic title to the seabed only
regulation and control of said lands and navigable waters for the constitutional pur-
in searching for congressional intent to grant submerged lands to the state at admission.
poses of commerce, navigation, national defense, and International affairs, all of
See note 48 supra. Federal control of the island's seabed resources while it remains a
which shall be paramount 10, but shall not be deemed to include, proprietary rights
commonwealth would not bar the island from claiming the resources at the time it accks
of ownership, or the rights of management, administration, leasing, use, and develop-
ment of the lands and national resources
vested in
the respective States.
...
admission.
Congress viewed this section as superfluous, but included it In the Act to safeguard against
844
845
CLINTON CL LIBRARY PHOTOCOPY
The Yale Law Journal
Vol. 88: 825, 1979
Puerto Rican Seabed Rights
B. The Limits of a Grant to Exploit Seabed Resources
Puerto Rican seabed or regulates it so as to constitute a "taking."¹"
Puerto Rico should be reimbursed. Although environmental or naviga-
The seabed is directly related to federal exercise of powers over
tional limitations are likely to be viewed as regulation and therefore
national defense, the conduct of foreign affairs, world commerce, and
noncompensable,144 American alienation of seabed rights by treaty
navigation.' In order to effect these constitutional powers, Congress
should be treated as a taking."
is empowered both to enact laws regulating the seabed and to take
Even though there must be compensation for any taking, Puerto
state submerged lands.12 Congress can, therefore, subsequently reg.
Rico's property interest in the seabed might be undervalued. To en-
ulate or take back in exercise of its constitutional powers any right that
force the constitutional mandate of just compensation, courts rely on
it might grant to Puerto Rico in its compact of admission.
"the concept of market value: the owner is entitled to the fair market
Such regulation or taking after admission is highly probable. Federal
value of the property at the time of the taking." The "highest and
energy and environmental policies have recently led Congress to regu-
most profitable use for which the property is adaptable and needed,
late seabed mining.' Treaties involving the seabed will likely limit
or is likely to be needed in the near future" must be considered in
exploitation by guaranteeing freedom of navigation and cable place-
determining the fair market value. Future use must be within a
ment."
reasonable time, based on a known and provable market,1 and
The one safeguard that would be available to Puerto Rico if Con-
exploitable without substantial expenditure of capital. An owner,
gress were to take back seabed rights granted in a compact of admission
such as Puerto Rico, would be compensated for the "highest and most
is that provided by the Fifth Amendment: any taking by the federal
profitable use" to which it put its seabed at the time of taking. The
government to execute its constitutional powers must include just
compensation." If the federal government acquires ownership of the
133. Although public regulation can reduce market value of private land without
compensation, see, e.g., Village of Euclid V. Ambler Realty Co., 272 U.S. 365 (1926) (up.
bokling zoning ordinance as within state's police power), an owner must be compensated
the national sovereignty concerns expressed in the Tidelands Cases. See Hearings on Sub-
if deprived of all reasonable economic use for the property regulated, see Costonis, "Fair"
merged Lands Act. supre note 100, at 1368 (Sen. Jackson) ("["The constitutional provision
Compensation and the Accommodation Power: Antidotes for the Taking Impasse in Land
is purely surplus anyway. If we have exclusive rights under the Constitution, there is
Use Controversies, 75 COLUM. L REV. 1021, 1051 (1975) (under reasonable beneficial use
nothing we can do to change it.")
test. landowner allowed reasonable economic return on property). See generally C. BERGER,
127. The relation of the seabed to the exercise of these important federal powers is
LAND OWNERSHIP AND Use 630-31 (2d ed. 1975) (four proposals commonly used to reconcile
evidenced by the difficulties that concerns with military defense, foreign affairs, com-
"police power VL. taking").
merce, and navigation created in developing a consistent United States policy on the law
134. See United States V. 422.978 Square Feet of Land, 445 F.2d 1180, 1184 n.7 (9th
of the sea. See Hollick, Bureaucrets at Sea. in NEW Eas OF OCEAN POLITICS 1.2 (A.
Cir. 1971) (history of Supreme Court cases holding regulation for navigational purposes
Hollick & R. Osgood eds. 1974) (law of sea encompasses complex array of issues that
noncompensable); c/. Dunham, A Legal and Economic Basis for City Planning. 58 COLUM.
resulted in shifting American policies).
L. REV. 650, 666-67 (1958) (regulation to prevent public harm within police power and
128. See, C.R., United States V. Rands. 389 U.S. 121, 123 (1967) ("power to regulate
noncompensable).
navigation confers upon the United States a 'dominant servitude" that empowers it to
135. C/. United States V. 50 Foot Right of Way or Servitude, In, Over and Across
take submerged lands without compensation); United States V. Virginia Elec. & Power Co.,
Certain Land, 337 F.2d 956, 960 (3d Cir. 1964) (taking of land for pipeline to aid naviga-
365 U.S. 624, 627.28 (1961) (similar).
tion noncompensable; compensable If taken for any other reasons).
129. See, e.g., Oklahoma ex rel. Phillips V. Guy F. Atkinson Co., 313 U.S. 508, 534
136. United States V. Reynolds, 397 U.S. 14. 16 (1970) (footnote omitted); see Danforth
(1941) (Congress empowered to take state's submerged lands in exercise of commerce
V, United States, 308 U.S. 271, 263 (1939) (just compensation means value at time of
power); California V. United States, 395 F.2d 261, 268 (9th Cir. 1968) (United States can
taking).
condern state's submerged lands but must pay compensation; lands not valueless because
137. United States V. 1,291.83 Acres of Land, 411 F.2d 1081, 1084 (6th Cir. 1969); see
submerged and unused).
Olson V. United States, 292 U.S. 246, 255 (1934) ("highest and most profitable use" test).
130. See 43 U.S.C.A. ! 1348 (West Supp. 1978) (safety regulations for exploitation of
138. See note 137 supra (citing cases).
outer continental shelf).
139. United States V. 1,291.83 Acres of Land, 411 F.2d 1081. 1084 (6th Cir. 1969); Mills
131. See Composite Text, supre note 4. art. 58 (freedom of navigation in economic
V. United States, 363 F.2d 78, 8t (8th Cir. 1966). Evidence of minerals may be used in
zone guaranteed by coastal states): id. art. 79 (right to lay submarine cables and pipelines
determining the market value of land, but future demand for the mineral must have
on continental shelf given to all signatories).
some objective support. "Mere physical adaptability to a use does not establish a
132. U.S. CONST. amend. V ("nor shall private property be taken for public use, with-
out just compensation"). Although it need not compensate states for submerged lands
unitted). market." United States V. Whitchurst, 337 F.2d 765, 771-72 (4th Cir. 1964) (footnote
taken for the purpose of regulating navigation, see note 128 supra, the federal govern.
140. United States V. 1291.83 Acres of Land, 411 F.M.I 1081, 1084 (6th Cir. 1969); United
ment must provide compensation for the condemnation of state property for any other
States V. 2,635.04 Acres of Land, 336 F.2d 646, 64H (6th Cir. 1964). The mere existence of
public purpose. See, C.R., United States V. Carmack, 329 U.S. 230, 242 (1946): California V.
mineral deposits is not sufficient; the minerals must be exploitable. See Mills V. United
United States, 395 F.2d 261, 263-64, 264 n.5 (9th Cir. 1968).
States, 363 F.2d 78, 81 (8th Cir. 1966).
846
847
CLINTON PHOTOCOPY
The Yale Law Journal
Vol. 88: 825, 1979
Puerto Rican Seabed Rights
minerals of the submerged land would be treated as one element af-
Although it requires speculation about future markets, technology,
fecting the market value of the lends taken, but would not be
and return on investment, the last method is well-known in the law."
separately valued.¹ Puerto Rico would not be compensated for the
The valuation method is irrelevant unless a taking occurs; but if sea-
quantity of minerals in the lands or for any unknown minerals the
bed rights are taken, then some speculation is preferable to the al-
lands contained.
ternative of noncompensation for potential minerals in the seabed.
Puerto Rico and the United States could agree that compensation
be provided for those losses that COUTS normally find noncompensable,
Conclusion
and could provide at admission : formula for calculating the com-
pensation. The federal right to entiment domain cannot be abridged
The American experience with colonialism in the early half of this
by contract,148 but the "Fifth Amendment does not prohibit land-
century has left the United States with responsibility for several
owners and the Government from agreeing between themselves as to
small, economically poor dependencies.¹⁰ Some of these, like Puerto
what is just compensation for property taken. Nor
does
it
bar
them
Rico, may seek statehood unless they are accorded a greater measure
from embodying that agreement in contract.
of self-government.180 Accommodations between the federal govern-
Various methods of adjusting 14: constitutional measure of just
ment and an incoming state such as Puerto Rico, involving, inter alia,
compensation could be devised. 30- example, a simple reasonable
rights to the seabed, could help the new state to overcome its economic
return above fair market value could be agreed on to compensate for
problems. This Note has shown that for Puerto Rico the only bar to
any unknown uses of the lands at the time of the taking. Second, the
the creation of such rights is political, not legal. The question is
quantity and quality of minerals in the lands could be estimated at
whether the present fifty states would be willing to grant to Puerto
the time of taking and then multip by a fixed price per unit agreed
Rico a right that states have not obtained or preserved for themselves.
on in the compact of admission.14 " court could be directed in the
compact of admission to determine the future income stream by this
147. See, e.g., State Highway Comm'n V. Nunes. 233 Or. 547. 556, 379 P.2d 579, 584
(1963) (stating that frequently impossible as practical matter not to use capitalization
multiplication method, then subtract expected cost of production-
method in valuation): In re Atlas Pipeline Corp., 9 S.E.C. 416, 421-40 (1941) (Chapter N
in
essence,
to
capitalize
profits.
Rico
could
demand
that
this
of Bankrupicy Act requires courts to judge whether reorganization plans are "fair and
equitable, and leasible"; judgment necessitates projections of earnings, remaining economic
capitalized estimate serve as the measure of compensation.
life, and capitalization rates for corporations); I.R.C. 5 167 (projections must be made of
useful life and obsolescence of assets in computing depreciation).
141. Courts have not permitted separak valuation of the quantity and quality of
148. See J. PRATT, AMERICA'S COLONIAL EXPERIMENT 58 (1950) (Spanish American War
minerals, multiplied by a fixed price per unit because such valuation is speculative and
"opened the door of a colonial career to the United States"); Woodward, Empire Beyond
uncertain. See, E.K., Georgia Kaolin Co. V. United States, 214 F.2d 284, 286 (5th Cir. 1954):
the Seas, in THE NATIONAL EXPERIENCE 518-37 (I. Blum 2d cl. 1968) (era of manifest
United States V. Land in Dry Bed, 143 F. Supp. 314, 317.18 (S.D. Cal. 1956): 4 J. SACKMAN,
destiny, imperialistic stirrings, and white man's burden).
NICHOLS' THE LAW OF EMINENT DOMAIN 5 13.22 (P. Rohan 3d rev. ed. 1977) (valuation of
149. See note 148 supre (citing sources): Letter from Ruth G. Van Cleve, Director,
lands containing mineral resources).
Office of Territorial Affairs, Dep't of the Interior (Apr. 4, 1978) (on file with Tale Law
142. See note 141 supre (citing cases); Mills v. United States, 363 F.2d 78, 81 (8th Cir.
Journal) (compiling per capita income of American territories); Office of the Common-
1966) (minerals in land must be known and exploitable).
wealth of Puerto Rico, Basic Industrial Facts on Puerto Rico-1975 (1976) (reporting
143. See Georgia V. Chattanooga, 264 U.S. 472. 480 (1924) ("[E]minent domain is an
island's per capita income).
attribute of sovereignty It cannot be supendered, and if attempted to be contracted
150. Some sentiment for statchood in the future has, for example, also been reported
away, it may be resumed at will." (citations omitted)): Contributors to Pa. Hosp. V.
in the Virgin Islands. See Macridis, Political Attitudes in the Virgin Islands, in VIRGIN
Philadelphia, 245 U.S. 20, 23 (1917) (contract straining eminent domain "inelficacious
ISLANDS 193. 202 (J. Bough & R. Macridis eds. 1970).
for want of power").
It is conceivable that Puerto Rico would settle for less than statehood, If the arrange-
144. Albrecht V. United States, 329 U.S. M. 503 (1947) (citation omitted): see United
ment conferred greater autonomy than that provided by the current commonwealth
States V. Fuller, 409 U.S. 488, 494 (1973) ("Congress may provide that particular
status. For example, in 1975, after two years of deliberations, the Ad Hoc Advisory Group
elements of value of particular rights be 1" for even though in the absence of such
on Puerto Rico, a committee composed of presidential appointees and delegates chosen
provision the Constitution would not require payment.")
by the Governor of Puerto Rico, made its recommendations for greater island control
145. One possibility is to agree to use the fair market value of the minerals at the
over its economic programs and international affairs. See REPORT OF THE Ao Hoc Ab-
time of the taking as the fixed price. Of comme this method can be used only when
VISORY GROUP ON PUERTO Rico, COMPACT OF PERMANENT UNION BETWEEN PUERTO Rico
quality and quantity can accurately be esti
AND THE UNITED STATES 87-100 (1975). President Ford's New Year's Eve statchood proposal,
146. One court has accepted the multip 111 or capitalization of profits method in
however, was made in lieu of an endorsement of the proposed compact. Text of Ford
an eminent domain context. See State Itig WA Comm'n V. Nunes, 233 Or. 547, 559. 379
Puerio Rico Statement, N.Y. Times, Jan. I, 1977, at 5. col. 1. The President apparently
P.2d 579, 585 (1963). See generally Note, I'm on in Eminent Domain Cases-Use of the
found that statehood within the American system was more attractive than a more
Multiplication Method in Valuing Mineral Chosits, 30 Are. L. REV. 753 (1972) (arguing
autonomous form of commonwealth status
for this method).
848
849
[These are the page proofs of a forthcoming article for publication in the Suffolk University Law
Review.]
FILE:A:\SOTOMAYO Oct 10/21/96 Mon 11:59pm
ANd Politics
Returning Majesty To The Law: A Modern Approach
Hon. Sonia Sotomayor and Nicole A. Gordon"
Even after participating in many different aspects of the practice of law,
it is still possible to retain an enthusiasm and love for the law and its
practice. It is also exciting to address future lawyers about the practice of
law. This is not easy to do, unfortunately, in the context of recurring pub-
lic criticism about the judicial process.¹
The public expects the law to be static and predictable. The law, how-
ever, is uncertain and responds to changing circumstances. To the public,
justice means that an obviously correct conclusion will be reached in
every case. But what is "correct" is often difficult to discem when the law
is attempting to balance competing interests and principles, such as the
need to protect society from drugs as opposed to the need to enforce our
constitutional right to be free from illegal searches and seizures.² A con-
This Article is based upon a speech that Judge Sotomayor delivered in February 1996 as part
of the Donahue Lecture Series. The Donahue Lecture Series is a program instituted by the Suffolk
University Law Review to commemorate the Honorable Frank J. Donahue, former faculty member,
trustee, and treasurer of Suffolk University. The Lecture Series serves as a tribute to Judge Donahue's
accomplishments in encouraging academic excellence at Suffolk University Law School. Each lecture
in the series is designed to address contemporary legal issues and expose the Suffolk University
community to outstanding authorities in various fields of law.
t Judge, United States District Court, Southern District of New York; A.B. 1976, Princeton
University: J.D. 1979. Yale Law School. Judge Sotomayor previously practiced as a commercial litiga-
tion partner at Pavia & Harcourt, a New York City law firm, and served as a member of the New
York City Campaign Finance Board, the New York State Mortgage Agency, and the Puerto Rican
Legal Defense and Education Fund. Prior to entering private practice, Judge Sotomayor was an Assis-
tant District Attorney in New York County.
tt Executive Director, New York City Campaign Finance Board; A.B. 1974, Barnard College;
J.D. 1977, Columbia University School of Law. Ms. Gordon has previously served in other private and
government positions, including Counsel to the Chairman of the New York State Commission on
Government Integrity. She is also the current President of the Council on Governmental Ethics Laws
(COGEL). the umbrella organization for ethics, lobbying. campaign finance, and freedom of informa-
tion agencies in the United States and Canada. The views expressed in this article are not necessarily
those of the New York City Campaign Finance Board or COGEL.
1. See, e.g., Katharine Q. Seelye, Dole, Citing 'Crisis' in the Courts, Attacks Appointments by
Clinton, N.Y. TIMES, Apr. 20, 1996. at AI (describing Senator Dote's criticism of liberal ideology of
Clinton judicial appointments and American Bar Association): John Stossel, Protect Us From Legal
Vultures, WALL ST. J., Jan. 2, 1996, at 8 (asserting damage manufacturers have done to society
"trivial" compared with harm lawyers do): Don Van Natta Jr., Group Urges More Scrutiny For Law-
yers. N.Y. TIMES, Nov. 10. 1995. at B1 (discussing New York State committee's recommendations for
improving legal system and combatting public criticism).
2. See generally 5 WAYNE R. LAFAVE, SEARCH AND SEIZURE: A TREATISE ON THE FOURTH
AMENDMENT (3d ed. 1996) (explaining exclusionary rule protects constitutional right to be secure
against unreasonable searches and seizures).
CLINTON LIBRARY PHOTOCOPY
FILE:A\SOTOMAYO
Oct 10/21/96 Mon 11:59pm
2
SUFFOLK UNIVERSITY LAW REVIEW
[Vol. XXIX:1
fused public, finding itself at odds with the results of particular judicial
decisions, experiences increased cynicism about the law.³
Unfortunately, lawyers themselves sometimes feed that cynicism by
joining a chorus of critics of the system, instead of helping to reform it or
helping the public to understand the conflicting factual claims and legal
principles involved in particular cases.4 Similarly, instead of attempting to
control criminal or unethical conduct occurring in our profession, and
promoting the honorable work of most of us, many lawyers respond by
denigrating the professionals in certain practice areas, like personal injury
law. Further, many neglect to focus on the core issues that rightly trouble
the public, such as whether there is fraud and deceit in the prosecution of
claims, and if so, what we should do about it.
Today, we need to discuss how we can satisfy societal expectations
about "The Law" and help create a better atmosphere in which public
officials, and especially lawyers and judges, can inspire more confidence
and respect for the "majesty of the law" and for the people whose profes-
sional lives are devoted to it.
I. THE LAW As A DYNAMIC SYSTEM
The law that lawyers practice and judges declare is not a definitive,
capital "L" law that many would like to think exists. In his classic work,
Law and the Modern Mind, Jerome Frank aptly summarized the paradox
existing in society's attitude towards law and its practitioners:
The lay attitude towards lawyers is a compound of contradictions, a
mingling of respect and derision. Although lawyers occupy leading posi-
tions in government and industry, although the public looks to them for
guidance in meeting its most vital problems, yet concurrently it sneers at
them as tricksters and quibblers.
Respect for the bar is not difficult to explain. Justice, the protection of
life, the sanctity of property, the direction of social control-these funda-
mentals are the business of the law and of its ministers, the lawyers.
3. See Judge Baer's Mess, N.Y. TIMES, Apr. 3, 1996, at A14 (criticizing federal judge's reversal
of initial exclusion of drugs and confession as unconstitutional seizure); see also Bruce D. Collins,
Layman's View of Lawyers Ignores the Bar's Good Deeds, CORP. LEGAL TIMES, Mar. 1996, at 8 (ex-
pressing concern that public may judge entire profession based on mass tort and divorce attorneys).
According to one editorial, "[o]ne of the major troubles with most lawyers is that they actually believe
their profession is making the United States a better place to live." Time For Real Legal Reform Is
Now, Before Lawyers Bring Nation Down, Series: The Trouble with Lawyers, FT. LAUDERDALE SUN-
SENTINEL, Jan. 4, 1996, at 14A. Further, the newspaper opined that lawyers' "continued assertion that
the legal system works in the best interest of the nation demonstrates the immense human capacity for
self-delusion." Id.
4. See Max Boot, Stop Appeasing the Class Action Monster, WALL ST. J., May 8, 1996, at A15
(detailing how corporate mass-tort defense lawyers criticize class actions yet offer few alternatives or
solutions).
CLINTON LIBRARY PHOTOCOPY
FILE:A:SOTOMAYO Oct 10/21/96 Mon 11:59pm
1995]
DARBY PRINTING COMPANY
3
But coupled with a deference towards their function there is cynical
disdain of the lawyers themselves.
The layman, despite the fact that
he constantly calls upon lawyers for advice on innumerous questions,
public and domestic, regards lawyers as equivocators, artists in double-
dealing, masters of chicane.
Frank, a noted judge of the Court of Appeals for the Second Circuit and
a founder of the school of "Legal Realism," postulated that the public's
distrust of lawyers arises because the law is "uncertain, indefinite, [and]
subject to incalculable changes," while the public instead needs and wants
certainty and clarity from the law.6 Because a lawyer's work entails chang-
ing factual patterns presented within a continually evolving legal structure,
it appears to the public that lawyers obfuscate and distort what should be
clear. Frank, however, pointed out that the very nature of our common law
is based upon the lack of certainty:
The constant development of unprecedented problems requires a legal
system capable of fluidity and pliancy. Our society would be strait-jack-
eted were not the courts, with the able assistance of the lawyers, con-
stantly overhauling the law and adapting it to the realities of ever-chang-
ing social, industrial and political conditions; although changes cannot be
made lightly, yet law must be more or less impermanent, experimental
and therefore not nicely calculable. Much of the uncertainty of law is not
an unfortunate accident: it is of immense social value.¹
Frank believed that in the complex, fast-paced modern era, lawyers do
themselves a disservice by acceding to the public myth that law can be
certain and stable. He advocated that lawyers themselves accept the prem-
ise that law is not a fixed concept and that change in the law is inevitable
and to be welcomed: "Without abating our insistence that the lawyers do
the best they can, we can then manfully [sic] endure inevitable short-com-
ings, errors and inconsistencies in the administration of justice because we
can realize that perfection is not possible."⁸
Frank's thesis, set forth in 1930, should continue to attract examination
today. It supports a pride that lawyers can take in what they do and how
they do it. The law can change its direction entirely, as when Brown V.
Board of Education overturned Plessy V. Ferguson,¹⁰ or as the common
5. JEROME FRANK, LAW AND THE MODERN MIND 3 (Anchor Books 1963) (1930).
6. Id. at 5. In the preface to the sixth printing of LAW AND THE MODERN MIND, Frank took
issue with the notion that his theories and their advocates constituted a school. Id. at viii-xii. Instead,
Frank preferred to be viewed as a "factual realist" or as he described himself, a "fact skeptic" as op-
posed to a "rule skeptic." Id. at xii.
7. Id. at 6-7 (footnotes omitted).
8. Id. at 277.
9. 347 U.S. 483 (1954).
10. 163 U.S. 537 (1896).
CLINTON LIBRARY PHOTOCOPY
FILE:A:\SOTOMAYO Oct 10/21/96 Mon 11:59pm
4
SUFFOLK UNIVERSITY LAW REVIEW
[Vol. XXIX:1
law has gradually done by altering the standards of products liability law
directly contrary to the originally restricted view that instructed "caveat
emptor."¹¹ As these cases show, change-sometimes radical change-can
and does occur in a legal system that serves a society whose social policy
itself changes. It is our responsibility to explain to the public how an often
unpredictable system of justice is one that serves a productive, civilized,
but always evolving, society.
Lawyers must also continually explain various reasons for the law's
unpredictability. First, as Frank explains, laws are written generally and
then applied to different factual situations. 12 The facts of any given case
may not be within the contemplation of the original law.¹³ Second, many
laws as written give rise to more than one interpretation (or, as happens
among the circuit courts, differing or even majority and minority
views).' Third, a given judge (or judges) may develop a novel approach
to a specific set of facts or legal framework that pushes the law in a new
direction. 15 Fourth, the function of the law at a trial is not simply to pro-
vide a framework to search for the truth, as understood by the public, but
it is to do so in a way that protects constitutional rights.¹⁶ Against these
and other constraints, including, as Frank observed, an unknown fac-
tor-i.e., which version of the facts a judge or jury will credit-competent
lawyers are often unable to predict reliably what the outcome of a particu-
lar case will be for their clients."
11. See W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS §§ 95-96, at
677-83 (5th ed. 1984) (outlining movement from notion of caveat emptor to liability for losses caused
by defective products); RESTATEMENT (SECOND) OF TORTS § 402A cmt. b (1965) (detailing common
law evolution of liability for defective products).
12. See FRANK, supra note 5, at xii (describing how courts apply legal rules to unique cases).
13. See id. at 127-28 (criticizing mechanistic approach to law that would treat people like mathe-
matical entities to achieve predictability).
14. See id. at 121 (discussing statistical evidence concerning difference between judges).
15. See Jeremy Paul, First Principles, 25 CONN. L. REV. 923, 936 (1993) (discussing how cases
of first impression force judges to create law and affect law's unpredictability).
16. See United States V. Filani, 74 F.3d 378, 383-84 (2d Cir. 1996) (discussing varied goals of the
trial in American jurisprudence). In Filani, the United States Court of Appeals for the Second Circuit
considered a drug conviction based on the judge's improper questioning of the defendant. Id. at 382-
83. In discussing the history and role of trial judges in England and the United States, the court stated:
One of the reasons for allowing an English judge greater latitude to interrogate witnesses is
that a British trial, so it is said, is a search for the truth. In our jurisprudence a search for
the truth is only one of the trial's goals; other important values-individual freedom being
a good example-are served by an attorney insisting on preserving the accused's right to
remain silent or by objecting to incriminating evidence seized in violation of an accused's
Fourth Amendment rights. The successful assertion of these rights does not aid-and may
actually impede-the search for truth.
Id. at 384.
17. FRANK, supra note 5, at xiv-xv. Of course, there are many instances in which lawyers can
predict reliably what the outcome of a particular case will be. See Rodney J. Uphoff, The Criminal
Defense Lawyer as Effective Negotiator: A Systematic Approach, 2 CLINICAL L. REV. 73, 83-86 (1995)
CLINTON LIBRARY PHOTOCOPY
FILE:A SOTOMAYO Oct 10/21/96 Mon 11:59pm
1995]
DARBY PRINTING COMPANY
5
This necessary state of flux, as well as our reliance on the adversary
system, give rise to a cynicism expressed by Benjamin Franklin in the
mid-seventeen hundreds, but equally reflective of the public mood today:
I know you lawyers can with ease
Twist words and meanings as you please;
That language, by your skill made pliant,
Will bend, to favor every client;
That 'tis the fee limits the sense
To make out either side's pretense,
When you peruse the clearest case,
You see it with a double face.
Hence is the Bar with fees supplied;-
Hence eloquence takes either side.
And now we're well secured by law,
Till the next brother find a flaw."
This image raises perhaps the greatest fear about the role of law and
lawyers: that on the same facts, and presented with the same law, two
judges or juries would reach different results in the same case because of
a lawyer's presentation.¹⁹ Whether the concern is that only the wealthy
can afford the best lawyers, or simply that the more "eloquent" attorney
can get a better result, it is an intimidating possibility to a public that
seeks certainty and justice from the law. From the vantage of a judge,
however, it is not a correct or complete picture of what happens in the
courtroom. (In extreme cases, of course, a lawyer (or a judge or jury) can
be entirely incompetent or otherwise entirely fail to do a proper job.) To
the extent judges and juries reach different results, however, much more,
as Frank observed, may be attributable to the reality that judges and juries
react differently to facts because their life experiences are different.20
Working from the same facts and within the confines of the same law,
however, it seems that gross disparities in result do not frequently oc-
cur.²¹ But the law does evolve, and to assist its evolution and at the same
(analyzing systemic pressures to plea bargain in criminal cases). Cases that reach the trial stage do not
reflect the multitude of cases resolved early-even before the complaint stage-precisely because the
parties have quite a clear expectation of how their case would be decided. See id. at 83 (noting some
defendants readily admit guilt and acknowledge responsibility for wrongs committed).
18. Benjamin Franklin, Poor Richard's Opinion, in LAW: A TREASURY OF ART AND LITERATURE
151, 151 (Sara Robbins ed., 1990).
19. Compare BMW V. Gore, 116 S. Ct. 1589, 1592-94 (1996) (considering constitutionality of $2
million punitive damages award for undisclosed automobile paint repairs), with Yates V. BMW, 642
So. 2d 937, 938 (Ala. Civ. App. 1993) (noting jury in virtually identical Alabama fraudulent car re-
painting lawsuit awarded no punitive damages), cert. quashed as improvidently granted by, 642 So. 2d
937 (Ala. 1993).
20. See FRANK, supra note 5, at xii-xiii (recognizing judge and juries bring personal prejudices to
trials).
21. This conclusion is based both on personal experience as a judge and on the statistically small
CLINTON LIBRARY PHOTOCOPY
FILE:A:SOTOMAYO Oct 10/21/96 Mon 11:59pm
6
SUFFOLK UNIVERSITY LAW REVIEW
[Vol. XXIX:1
time maintain their own credibility, lawyers must dispel the view that they
are dishonest, dissembling, hypocritical, or that Ben Franklin's description
is correctly derisive.²²
Frank's point that the public fails to appreciate the importance of indef-
initeness in the law must be addressed through better education of the
public by lawyers and others, including government officials. In addi-
tion, the public has other needs relating to the law: the need, for example,
for lawyers to act honorably, beyond what any law, regulation, or pro-
fessional rule may require. This need requires a different response.
II. MORALITY IN PUBLIC SERVICE
What are our expectations of lawyers, judges, and of public servants
generally? Over the years, the response to scandal and disappointment in
lawyers and in our public officials has varied. A history of ethical codes
that have apparently not provided sufficient guidance to practitioners has
recently led to tighter restrictions. In the public sphere, we have for some
time been engaged in passing laws and regulations intended to curb un-
worthy behavior. This may not always be adequate for public officials
or for lawyers. Some would argue that reliance on regulations alone de-
fuses the notion of personal responsibility and accountability.
Charles Dickens on a visit to the United States in the nineteenth century
described his sorrow when confronted with the American approach to
regulating gifts to public servants:
The Post Office is a very compact and very beautiful building. In one of
the departments, among a collection of rare and curious articles, are
deposited the presents which have been made from time to time to the
number of jury verdicts set aside or new trials ordered by judges. Of course, case law principles re-
quire that appellate courts give jury verdicts a great deal of deference. See Honda Motor Co. V. Oberg,
114 S. Ct. 2331, 2336-38 (1994) (stating civil jury verdicts historically afforded deference on judicial
review unless damages too large): United States V. Powell, 469 U.S. 57, 67 (1984) (commenting that
deference to jury's collective judgment brings element of finality to criminal process): Binder V. Long
Island Lighting Co., 57 F.3d 193, 201-02 (2d Cir. 1995) (finding appellate court grants "strong pre-
sumption of correctness" when reviewing whether jury verdict "seriously erroneous"); Piesco V. Koch,
12 F.3d 332, 345 (2d Cir. 1993) (requiring "seriously erroneous" verdict for grant of new trial);
Dunlap-McCuller V. Riese Org., 980 F.2d 153, 158 (2d Cir. 1992) (requiring "egregious" jury verdict
for new trial); Smith V. Lightning Bolt Prods., Inc., 861 F.2d 363, 370 (2d Cir. 1988) (noting no new
trial unless verdict "seriously erroneous" or miscarriage of justice).
22. See Franklin, supra note 18, at 151 (expressing cynicism toward attorney's role in courtroom).
23. See Roberta Cooper Ramo, Law Day More Important than Ever for Keeping Strong, CHI.
DAILY L. BULL., Apr. 27. 1996, at 8 (emphasizing importance of legal profession keeping citizenry
well informed about Constitution and legal system).
24. See infra note 26 and accompanying text (discussing laws designed to prevent and punish
public corruption): note 27 and accompanying text (describing laws and regulations applicable to pub-
lic affairs): note 55 and accompanying text (outlining rule of professional responsibility prohibiting
lawyer-client sexual relations).
CLINTON LIBRARY PHOTOCOPY
FILE:A:\SOTOMAYO Oct 10/21/96 Mon 11:59pm
1995]
DARBY PRINTING COMPANY
7
American ambassadors at foreign courts by the various potentates to
whom they were the accredited agents of the Republic; gifts which by
the law they are not permitted to retain. I confess that I looked upon this
as a very painful exhibition, and one by no means flattering to the na-
tional standard of honesty and honour. That can scarcely be a high state
of moral feeling which imagines a gentleman of repute and station likely
to be corrupted, in the discharge of his duty, by the present of a snuff-
box, or a richly-mounted sword, or an Eastern shawl; and surely the
Nation who reposes confidence in her appointed servants, is likely to be
better served, than she who makes them the subject of such very mean
and paltry suspicions."
There is indeed a national plethora of legislation at every level of gov-
ernment restricting activities of government officials.²⁶ This legislation,
among other things, controls the receipt of gifts; limits the amounts of
fees, and honoraria and outside employment; restricts post-employment
contact with government; curbs the extent of political activities; requires
the acceptance of the lowest (but not necessarily best) bids on government
contracts; and sets prohibitions on the manner and ways in which to ad-
dress financial and other conflicts." These rules are extremely important,
even vital, notwithstanding Dickens' eloquent statement to the contrary.
They protect the public from many kinds of inappropriate influences on
government officials, and they perform another crucial service in provid-
ing guidance to and protecting those they regulate. Public servants have
sometimes walked a fine line or walked over the line between gifts and
bribes.28 If specific rules have their place, however, that does not mean
that we should limit the standard we apply to public officials to the tech-
nical question of whether those rules have been broken, rather than aspir-
ing to the highest in moral behavior. As a "Nation," we have not suffi-
25. CHARLES DICKENS, AMERICAN NOTES AND PICTURES FROM ITALY 123 (Oxford Univ. Press
1957) (1842). It is interesting that in England there is now a heightened sense that laws or rules are in
fact needed to regulate the behavior of public officials. See COMMITTEE ON STANDARDS IN PUBLIC
LIFE, FIRST REPORT, 1995, Cmnd 2850-I, at 3 (urging remedial legislative action to counter public
discontent with ethical standards of public officials).
26. See, e.g., 18 U.S.C. $ 201 (1994) (forbidding public official from seeking or receiving bribe to
influence performance of official act); 18 U.S.C. § 666 (1994) (prohibiting agent of state, local or
Indian tribal government from soliciting or receiving bribe): MASS. GEN. LAWS ch. 268A, §§ 1-25
(1994) (setting forth antibribery and conflict of interest laws for state, county and municipal employ-
ees).
27. See generally COUNCIL ON GOVERNMENTAL ETHICS LAWS, THE COUNCIL OF STATE Gov'TS,
COGEL BLUE BOOK (Joyce Bullock ed., 9th ed. 1993) (compiling information on laws governing
campaign finance, ethics, lobbying and judicial conduct nationwide).
28. See Jane Fritsch, The Envelope. Please: A Bribe's Not a Bribe When It's a Donation, N.Y.
TIMES, Jan. 28, 1996, at DI (revealing subtle distinction between illegal bribes and legal campaign
contributions to politicians): Stephen Kurkjian, Ferber's Conviction Spurs Widening of Probe, BOSTON
GLOBE, Aug. 15, 1996. at B5 (reporting planned investigation of Massachusetts politicians after cor-
ruption conviction of former financial advisor to state agencies).
CLINTON LIBRARY PHOTOCOPY
FILE:A:SOTOMAYO Oct 10/21/96 Mon 11:59pm
8
SUFFOLK UNIVERSITY LAW REVIEW
[Vol. XXIX:1
ciently emphasized the importance of professional morality in public ser-
vice, whether among our government officials or our lawyers. Instead, we
overemphasize social morality, concentrating on personal scandals that we
cannot regulate, then pass detailed rules, hoping to elevate professional
behavior in that way. If we limit our expectations to what is specifically
regulated (and sometimes over-regulated), we may in effect degrade the
offices and the people who hold them.
In other countries, public morality is approached differently. In Europe,
for example, public officials often have greater discretion, are better paid,
and are held to higher standards of behavior, in some instances resigning
their office if there is the hint of financial scandal in their work.29
The tolerance in this country for questionable behavior by public offi-
cials is illustrated by the persistence of extremely troubling-but le-
gal-practices in the public arena. In one of the murkiest and least well-
controlled areas, we find ourselves debating what the quid pro quo's are
for campaign contributions. Here we have abandoned standards we would
surely apply in any other context. We would never condone private gifts
to judges about to decide a case implicating the gift-givers' interests.30
Yet our system of election financing permits extensive private, including
corporate, financing of candidates' campaigns, raising again and again the
question what the difference is between contributions and bribes and how
legislators or other officials can operate objectively on behalf of the elec-
torate.³ Can elected officials say with credibility that they are carrying
out the mandate of a "democratic" society, representing only the general
public good, when private money plays such a large role in their cam-
paigns? If they cannot, the public must demand a change in the role of
private money or find other ways, such as through strict, well-enforced
regulation, to ensure that politicians are not inappropriately influenced in
their legislative or executive decision-making by the interests that give
them contributions. ² As Congress revamps many questionable practices,
including the receipt of gifts from lobbyists, it must monitor to the
public's satisfaction both whether inappropriate activity is being left un-
29. See generally Mark Davies, The Public Administrative Law Context of Ethics Requirements
for West German and American Public Officials: A Comparative Analysis, 18 GA. J. INT'L & COMP.
L. 319 (1988) (detailing differences between ethics regulations for American and German public offi-
cials).
30. Cf. Scott D. Wiener, Note, Popular Justice: State Judicial Elections and Procedural Due
Process, 31 HARV. C.R.-C.L. L. REV. 187, 194 (1996) (discussing Texas attorney Joe Jemail's $10,000
campaign contribution to judge in Texaco-Pennzoil case).
31. See Fritsch, supra note 28, at DI (reporting influence of special interest money as serious
political issue).
32. See Jamin Raskin & John Bonifaz, The Constitutional Imperative and Practical Superiority of
Democratically Financed Elections, 94 COLUM. L. REV. 1160, 1160 (1994) (proposing replacement of
federal election finance system with total public financing of congressional campaigns).
CLINTON LIBRARY PHOTOCOPY
FILE:A:SOTOMAYO Oct 10/21/96 Mon 11:59pm
1995]
DARBY PRINTING COMPANY
9
regulated and whether laws and regulations that are put in place are ac-
tually enforced. The continued failure to do this has greatly damaged
public trust in officials and exacerbated the public's sense that no higher
morality is in place by which public officials measure their conduct.
Similarly, the public wonders whether lawyers have enforceable rules of
self-government or any kind of defined morality. Professional codes tend
to speak in terms of ethical presumptions, without prescribing what law-
yers should do in specific, troubling situations. For example, almost all
professional codes require that a lawyer should represent a client zealously
within the bounds of the law and may not suborn perjury or the creation
of false documents.³³ But no rule guides a lawyer who is merely left with
a firm and abiding conviction that what is being said or proffered by a
witness or client is false. Rules might be ill-suited to answer such dilem-
mas, but moral imperatives, or what Lord Moulton described in 1924 as
"Obedience to the Unenforceable," may be more helpful.34
Lord Moulton, to be sure a man of his time, spoke of Obedience to the
Unenforceable as a standard that people live up to despite the fact that no
law can force them to do so.³⁵ He gave as an example the conduct of the
men aboard the Titanic who, facing imminent death, nevertheless adhered
to the principle that women and children should be saved first:
Law did not require it. Force could not have compelled it in the face of
almost certain death. It was merely a piece of good Manners. The
feeling of obedience to the Unenforceable was so strong that at that ter-
rible moment all behaved as, if they could look back, they would wish to
have behaved.36
Our public officials and lawyers should also be prepared to adopt a
culture that depends upon subjective accountability as well as well-de-
fined, consistent rules and regulations:
The difference between the true lawyer and those men who consider the
law merely a trade is that the latter seek to find ways to permit their
clients to violate the moral standards of society without overstepping the
letter of the law, while the former look for principles which will per-
suade their clients to keep within the limits of the spirit of the law in
common moral standards."
33. See MODEL RULES OF PROFESSIONAL CONDUCT Rule 3.3 (1995) (noting candor toward tribu-
nal prevents lawyer from offering false evidence): MODEL CODE OF PROFESSIONAL RESPONSIBILITY
EC 7-1, 7-6 (1983) (declaring lawyer's duties to client and legal system).
34. Lord Moulton, Law and Manners, ATLANTIC MONTHLY, July 1924, at 1, 1. Lord Moulton, a
judge and member of the British Parliament, served as Minister of Munitions for Great Britain at the
outbreak of World War I. Id.
35. Id.
36. Id. at 4.
37. PIERO CALAMANDREI, EULOGY OF JUDGES 45 (John Clarke Adams & C. Abbott Phillips, Jr.
CLINTON LIBRARY PHOTOCOPY
FILE:A:SOTOMAYO Oct 10/21/96 Mon 11:59pm
10
SUFFOLK UNIVERSITY LAW REVIEW
[Vol. XXIX:1
III. THE BAR'S RESPONSIBILITY
What is the responsibility of a practicing lawyer, and how could
lawyers' behavior be changed in ways to encourage greater respect for the
legal profession? To take one example of a tolerated but unacceptable
pattern, let us examine the lying and misrepresentation that occurs in
court.
Lawyers are not routinely confronted with the clear-cut dilemma that a
client proposes to "lie" on the stand. A client presents a version of the
facts, and lawyers rarely have independent, first-hand knowledge of them.
(In criminal cases, clients frequently choose not to take the stand, often on
the advice of an attorney, advice that is given for any number of reasons,
including the risk of presenting perjured testimony.) Some number of
these witnesses lie, including some for the prosecution and some for the
defense, and their lawyers suspect as much. What more commonly occurs
is that witnesses, often unconsciously, allow selectivity, prejudice, and
emotion to color their perceptions. Even when two witnesses directly
contradict one another, both may be "telling the truth" from their own
point of view or to the best of their recollection. Real life is complex, and
we have chosen to use the adversarial system to sort out the truth as best
it can.³⁸
To maintain credibility in the system, however, we must study how
well we do in fact get at the "truth." Lying is risky in the courtroom, but
not generally because of the threat of a perjury indictment. It is risky
because each side has the opportunity, through discovery, independent
investigation, and cross-examination, to expose falsehood.39 But the ad-
versarial system may not always be wholly adequate to the task of expos-
ing wrong-doing and false or inflated claims. Empirical studies have been
performed, for example, that examine the reliability of witnesses and ju-
rors.40 Many factors influence witnesses and juries, including subcon-
scious racism and other prejudices. As a profession, we should seek, based
trans., 1942).
38. See SISSELA Bok, LYING: MORAL CHOICE IN PUBLIC AND PRIVATE LIFE 158-59 (1978) (ana-
lyzing how adversary system sometimes encourages attorneys to argue credibility of knowingly perju-
rious clients).
39. See FED. R. Ctv. P. 26-37 (setting forth rules governing depositions and discovery in federal
civil cases); FED. R. CRIM. P. 16 (establishing rules of evidentiary disclosure by both government and
defendant in criminal cases); FED. R. EVID. 607 (allowing impeachment of witness' credibility).
40. See generally JEFFREY T. FREDERICK, THE PSYCHOLOGY OF THE AMERICAN JURY (1987) (pre-
senting social scientific research on jury behavior and persuasion); SAUL M. KASSIN & LAWRENCE S.
WRIGHTSMAN, THE AMERICAN JURY ON TRIAL: PSYCHOLOGICAL PERSPECTIVES (1988) (analyzing jury
reliability and phases of jury trial); Christopher M. Walters, Note, Admission of Expert Testimony on
Eyewitness Identification, 73 CAL. L. REV. 1402 (1985) (discussing expert witness reliability in eye-
witness identification cases).
CLINTON LIBRARY PHOTOCOPY
FILE:A\SOTOMAYO Oct 10/21/96 Mon 11:59pm
1995]
DARBY PRINTING COMPANY
11
upon empirical evidence, ways in which to improve our ability to arrive at
the truth. If we undertake this seriously, we will not only do well by the
cause of justice, but we will justifiably improve the public's opinion of
our profession.
The adversary system may also be ill-suited to resolve certain types of
disputes such as those presented by "battles of the experts" in medical
malpractice and many other kinds of cases. There is recurring debate about
the ability of jurors to evaluate such evidence. The Supreme Court of the
United States, in Daubert V. Merrell Dow Pharmaceuticals, Inc.,41 has
reacted to this debate by expanding the judge's function to require that
scientific testimony be evaluated more stringently before it can be present-
ed to the jury. Certainly, the battle of the experts undermines public
confidence not only in the certainty of the law, but in another desired bed-
rock, the certainty of science. We must revisit whether other methods of
inquiry into specialized areas-such as the use of court-appointed experts
or Special Masters who share their conclusions with juries-may be more
useful to resolve these kinds of disputes. The current system, in this par-
ticular respect, should somehow be made to work better or should be
critically evaluated, and if necessary, replaced.
Finally, the adversary system, almost by definition, cannot address the
gray area of the "truth" present in most cases because the system tends to
produce all-or-nothing winners and losers. This is why settlements and
new forms of "alternative dispute resolution" are so important. Dickens'
remark that honorable lawyers admonish their clients to "[s]uffer any
wrong that can be done you, rather than come here [to the courts]," is still
timely for many litigants.46 The adversary system has its limitations under
the best of circumstances, and so we must explain why the benefits of the
system outweigh those limitations. If, as has been said of democracy, the
adversary system is "the worst form of Government except [for] all those
other forms," then that is the way in which the public should understand
it: not as a system expected to accomplish more than any system can.45
As we ponder how effective our legal system is, we must help create
41. 509 U.S. 579 (1993).
42. See id. at 597 (acknowledging Federal Rules of Evidence require judge to ensure scientifically
valid principles support expert testimony).
43. See Abraham Lincoln, Notes for a Law Lecture, in THE OXFORD DICTIONARY OF AMERICAN
LEGAL QUOTATIONS 302 (Fred R. Shapiro ed., 1993) ("As a peacemaker the lawyer has a superior
opportunity of being a good man. There will still be business enough."); Joshua A. Darrell, For Many,
Litigation Retains Important Practical Benefits, NAT'L L. J., Apr. 11, 1994, at C11 (discussing benefits
of alternative dispute resolution).
44. CHARLES DICKENS, BLEAK HOUSE 51 (Norman Page ed., Penguin Books 1971) (1853) (quota-
tion marks omitted).
45. Winston Churchill, Speech (Nov. 11, 1947), in THE OXFORD DICTIONARY OF QUOTATIONS
202 (Angela Partington ed., 4th ed. 1992).
CLINTON LIBRARY PHOTOCOPY
FILE:ASOTOMAYO Oct 10/21/96 Mon 11:59pm
12
SUFFOLK UNIVERSITY LAW REVIEW
[Vol. XXIX:1
greater credibility in existing, useful mechanisms. A number of years ago,
Judge Harold Rothwax of the Supreme Court of the State of New York
noted his concern that illegal activities occur in the judicial system some-
times for years and that lawyers do not report them.46 In a heartening
exception to this generalization, insurance kick-backs were recently ex-
posed by a lawyer who was offered one in New York.47 Similarly, we re-
cently have heard much about the police practice of tailoring testimony to
avoid the suppression of evidence, an apparently common practice that
must be known to, or at least suspected by, some prosecuting attorneys.48
Often, however, lawyers, instead of engaging in genuinely useful projects
to ferret out fraud, tend to denigrate either the law itself or the role and
quality of work performed by lawyers in the fields, for example, of per-
sonal injury or criminal defense.
The response that can give the public confidence in our profession is
our own leadership in weeding out the fraudulent and wrongful conduct
that the public rightly condemns at the same time as we challenge
overreactions that undermine the principles of our judicial system.49 Law-
yers have unfortunately joined the public outcry over excessive verdicts
and seemingly ridiculous results reached in some cases.50 Legislators have
introduced bills that place arbitrary limits on jury verdicts in personal
injury cases. But to do this is inconsistent with the premise of the jury
system. The focus must be shifted back to monitoring frivolous claims,
uncovering pervasive misrepresentation in court, and educating the public
that no system of justice is perfect. Despite occasional disappointing re-
46. See Symposium: Ethics in Government, CITY ALMANAC, Winter 1987, at 20, 20 (noting cor-
ruption in legal system succeeds when a few good people do nothing).
47. See Matthew Goldstein, 23 Lawyers Arrested in Insurance Scheme: Inflating of Settlements in
Tort Cases Charged, N.Y. L.J., Sept. 22. 1995, at ] (reporting praise of whistleblowing attorney who
stated he "did what any honest citizen would do"): George James, 47 Accused in an Insurance Claim
Scheme, N.Y. TIMES, Sept. 22, 1995, at B3 (describing district attorney's praising lawyer as "credit to
the legal profession and the general public").
48. See HAROLD J. ROTHWAX, GUILTY: THE COLLAPSE OF CRIMINAL JUSTICE 63-65 (1996) (dis-
cussing problems exclusionary rule creates for law enforcement officers); see also And What About
Justice?, WALL. ST. J., Sept. 1, 1995, at A6 (discussing perjury by law enforcement officers in O.J.
Simpson trial and on Philadelphia police force).
49. Cf. supra note 47 and accompanying text (describing efforts of New York attorney exposing
fraudulent practices by plaintiff's personal injury attorneys).
50. See Was Justice Served?, WALL ST. J., Oct. 4. 1995, at A14 (publishing attorney's criticism
of criminal trials as "indistinguishable from Roman circuses" and civil justice system as "equally de-
mented").
51. See Common Sense Product Liability Legal Reform Act of 1996. H.R. 481, 104th Cong.
(limiting punitive damages in certain cases): Richard B. Schmitt, As Clinton Vows to Veto Products-
Liability Bill, Some Ask if He's Too Beholden to Trial Lawyers, WALL. ST. J., Mar. 22, 1996, at A14
(discussing political opposition to tort reform legislation limiting manufacturers' liability in suits over
defective products): Glenn R. Simpson, Trial Lawyers, After Flirting With GOP in 1995, Are Sitting at
Democratic Party's Table Again, WALL. ST. J., July 16, 1996, at A12 (reporting presidential veto of
congressional legislation limiting product liability damages).
CLINTON LIBRARY PHOTOCOPY
FILE:A:SOTOMAYO Oct 10/21/96 Mon 11:59pm
1995]
DARBY PRINTING COMPANY
13
sults, our system does have mechanisms in place that moderate jury ver-
dicts (such as judges' discretion to set aside or reduce unreasonable ver-
dicts), that allow for the discipline of lawyers, and that can result in pun-
ishment of perjurers."
Criminal law is the most challenging arena in which to satisfy the pub-
lic that our system adequately addresses problems of apparently wrong
verdicts. This is largely because the public either does not understand or
does not accept the necessity for safeguards against overzealous prosecu-
tion and the protection of certain civil liberties. The role of criminal de-
fense lawyers in particular is not well understood or sufficiently appreciat-
ed by many lawyers, much less the public. Prosecutors and government
officials should be especially sensitive to and publicly supportive of the
fundamental place constitutional safeguards and the defense bar have in
our system. We must take an aggressive role in cleaning our own house
by educating ourselves and publicly supporting our colleagues who per-
form essential functions in asserting and protecting the constitutional rights.
of defendants
If we can persuade the public that the system we have in place and the
roles played by lawyers within that system are the best available, there
remain ancillary issues of an ethical nature that do not necessarily involve
what happens in the courtroom. We have an obligation, for example, to
address professional conduct perceived by the public to be wrong even if
it is not necessarily illegal. For example, in New York State, a recent
study of the matrimonial bar concluded that a very significant negative
sense exists of matrimonial practice, based on the perception that matri-
monial lawyers often take unfair financial advantage of emotionally fragile
clients.⁵⁴ Similarly, California found that sexual exploitation of clients
52. See Gasperini V. Center for Humanities, Inc., 116 S. Ct. 2211, 2214 (1996) (applying New
York check on excessive damages to federal court); Bender V. City of New York, 78 F.3d 787. 794-95
(2d Cir. 1996) (finding verdict of $300,700 excessive in civil rights action); Scala V. Moore
McCormack Lines, Inc., 985 F.2d 680, 684 (2d Cir. 1993) (finding $1.5 million verdict for pain and
suffering excessive): see also 18 U.S.C. §§ 401-02 (granting courts power to punish contempt of
courts' authority. including obstruction of justice): FED. R. Ctv. P. 11(c) (providing for sanctions of
lawyers who pursue frivolous claims and needless litigation): FED. R. Civ. P. 59 (empowering judges
to grant new trials and amend judgments in nonjury trials).
53. See Miranda V. Arizona, 384 U.S. 436, 480 (1966) (noting attorney carries out swom duty by
advising client to remain silent during police questioning). The Miranda Court emphasized that an
attorney's advice of silence in the face of criminal investigation is an exercise of "good professional
judgment," not a reason "for considering the attorney a menace to law enforcement." Id.; see also
United States V. Filani, 74 F.3d 378, 384 (2d Cir. 1996) (noting that "fulfilling professional responsi-
bilities 'of necessity may become an obstacle to truthfinding.") (quoting Miranda, 384 U.S. at 514
(Harlan, J., dissenting)).
54. See COMMITTEE TO EXAMINE LAWYER CONDUCT IN MATRIMONIAL ACTIONS, ADMINISTRA-
TIVE BD. OF THE COURTS OF N.Y., REPORT 1-5 (1993) (identifying criticism of divorce law system
and proposing reforms and improvements for lawyers and courts); see also Carpe Diem, N.Y. L.J.,
Mar. 12, 1993. at 2 (citing report critical of divorce lawyers by New York City Department of Con-
CLINTON LIBRARY PHOTOCOPY
FILE:A:\SOTOMAYO
Oct 10/21/96 Mon 11:59pm
14
SUFFOLK UNIVERSITY LAW REVIEW
[Vol. XXIX:1
was a pervasive enough problem in divorce and other areas of legal prac-
tice that the California Supreme Court passed a very hotly debated profes-
sional rule setting forth a lawyer's professional obligations in these situa-
tions.55
Whether the rule will have an effect in California on the public's per-
ception of lawyers depends largely on how vigilantly their colleagues and
others hold lawyers to the rule: Will lawyers actually be reported to the
bar association when they are suspected of having inappropriate sexual
relations with a client? How aggressively will they be investigated? And
will they be held accountable if they continue to represent a client with
whom they are having an impermissible sexual relationship?
Failure to enforce such a rule will again feed the public's mistrust,
which arises in part from the sense that lawyers (and public officials),
whose conduct is generally self-policed, protect themselves from proper
regulation. In New York, for example, disciplinary proceedings have until
recently been closed to protect lawyers from unjust criticism and harm to
their reputations. Despite a recommendation by its Task Force on the
Profession that these proceedings be made public, the House of Delegates
of the New York State Bar Association is opposing the measure. 56 Unques-
tionably, unjust criticism of a professional can be devastating. But it is
worth examining whether that concern is better addressed by creating a
quick, fair process for determining whether a charge is unfounded than by
continuing a practice of not airing complaints publicly.⁵ Alternatively, we
must find other ways to assure the public that closed proceedings are
effective in disciplining lawyers, and we must do more to monitor them.
One way or another, there must be convincing public justification for the
manner in which discipline and performance is regulated.
In the political sphere, the sense that elected officials fail to police
themselves is equally prevalent. Partisanship is the accepted "adversarial"
mechanism that is supposed to maintain checks and balances and protect
the public in various contexts, including in the fields of elections and
campaign finance.58 Bipartisan commissions, such as boards of elections
sumer Affairs commissioner).
55. CALIFORNIA RULES OF PROFESSIONAL CONDUCT Rule 3-120 (1995).
56. See Gary Spencer, State Bar Opposes Any Public Discipline Procedures, N.Y. L.J., June 27,
1995, at 1 (reporting bar association refused to endorse "even the smallest step toward opening" disci-
plinary process to public). The Association of the Bar of the City of New York has endorsed opening
up these proceedings. See Committee on Professional Discipline, The Confidentiality of Disciplinary
Proceedings, 47 REC. ASS'N B. CITY N.Y. 48, 60 (1992) (advocating opening process to public after
determination that proceedings should begin).
57. Arguably, lawyers do not exhibit the same heightened sensitivity to the plight their clients
suffer when unfair or embarrassing information becomes public through legal proceedings.
58. The Federal Election Commission is, for example, bipartisan by law. See 2 U.S.C. §
437c(a)(1) (1994) (providing that only three of six members appointed to Commission "may be affili-
CLINTON LIBRARY PHOTOCOPY
FILE:A\SOTOMAYO Oct 10/21/96 Mon 11:59pm
1995]
DARBY PRINTING COMPANY
15
or most campaign finance agencies, often reflect a close relationship be-
tween commissioners and party politics.⁵⁹ The result is often votes on
individual matters along party lines rather than on the merits, and policies
and procedures that favor the established parties over independent or alter-
native groups.60 By contrast, the experience of New York City's Cam-
paign Finance Board-a pioneer agency regulating New York City's pro-
gram of optional public financing of political campaigns-has been that of
a deliberative, non-partisan board that nearly always acts unanimously and
certainly always without regard to party affiliation. The non-partisan cul-
ture of that board is a model for decision-making in the political sphere.
But few legislators-including the federal Congress-are prepared to have
their campaign finances monitored by a genuinely non-partisan, objective
body. As a result, there are areas of activity-including campaign fi-
nance-regulation of which is vital to the health of our democracy. Yet
bipartisan agencies with weak claim to the public's trust largely administer
that regulation. The legislators' failure to submit themselves to meaningful
scrutiny heightens cynicism about our elected officials, many of whom, as
we all know, are lawyers.
In short, we must find ways to re-evaluate and, if necessary, alter our
methods of concluding legal and political conflicts. Next, we must find
effective, confidence-building mechanisms for policing ourselves. Further,
we must be prepared to entrust judgments on our own professional fitness
not only to our colleagues, but to the public.
IV. THE RESPONSIBILITY OF OTHERS
The changing nature of the law and the conduct of lawyers give the
public understandable pause. We must not, however, fall prey to the
public's cynicism. We must instead expect more of our profession. There
is a limit to how far an individual lawyer can elevate the bar as a whole.
What a lawyer can do, as argued above, is educate the public-at the very
least in the person of his or her clients-and personally raise standards by
living up to a code of conduct beyond what is "enforceable." This re-
sponsibility is not confined to attorneys in private practice. The others
who operate in or around the legal framework-judges, prosecutors, juries,
witnesses, public officials, and the press-must also educate themselves,
and others, and apply higher standards of conduct to their own behavior.
ated with the same political party").
59. See Jan Hoffman, Pataki Names Close Adviser to Judicial Screening Panel, N.Y. TIMES. Sept.
14, 1996, at 25 (reporting bar associations' criticism of governor's appointing closest legal adviser to
commission on judicial nominations).
60. See id. (reporting criticism that appointee would serve as stand-in for governor on commission
recommending candidates to state's highest court).
CLINTON LIBRARY PHOTOCOPY
FILE:A/SOTOMAYO Oct 10/21/96 Mon 11:59pm
16
SUFFOLK UNIVERSITY LAW REVIEW
[Vol. XXIX:1
Much distrust arises from a lack of understanding, whether about the
purpose and role of the adversary system, the presumption of innocence,
the right of every party to be represented by an attorney, or the facts and
proceedings of a specific case-even a case as highly publicized as the
O.J. Simpson trial. The limitations of the law are also poorly understood.
We need the help of the schools, our media, and our public officials to
communicate the values and limitations of our system of justice and to
conclusion
free us from simplistic analysis that breeds contempt.
What we should also acknowledge, to broaden the true reach of the
law's majesty, is the role that many influences, including the press and the
lay public, play in contributing to our intricate legal system.
What we propose is as follows:
spire
First, lawyers must make a greater effort at educating themselves,
their clients, and the public about the key underpinnings of our legal
system: the reasons for the law's uncertainty; the values and limitations
of the adversary system; and the importance of respecting every kind of
legal practice and the role it plays in helping our society to achieve its
goals and progress.
Second, we must re-examine what does and does not work to bring
about justice and consider whether we can improve aspects of our sys-
tem. Is the adversary process the best way of determining whether wit-
nesses are telling the truth or for dealing with the "battle of the experts"?
If not, let us improve what we have, or find a better way, recognizing
that we cannot achieve perfection.
Third, we must instill among ourselves and our public officials a
culture of a high morality, as best we can. We must determine what
ethical guidelines are appropriate and then enforce them seriously. We
must adopt concrete ways to recognize those among us who practice law
at the highest moral levels. We must combine to act more honorably both
within our own sphere and collectively as a profession, supporting each
other in the inevitable controversies that arise when lawyers properly
carry out responsibilities that are ill-understood by the public.
Finally, we must enlist not only every group of our profession, includ-
ing judges, lawyers, legislators, and other public officials, to adhere to
higher standards. We must also enlist clients, jurors, journalists, and all
our fellow citizens, because we are all touched by the law, and we can
all have an influence on how it evolves.61
61. Judges generally receive criticism if they ask, or let juries ask, too many questions to witness-
es. See United States V. Filani, 74 F.3d 378, 384 (2d Cir. 1996) (commenting on popular notion that
limited questioning by trial judge guards against bias); United States V. Ajmal, 67 F.3d 12. 14-15 (2d
Cir. 1995) (discussing dangers of prejudice and compromise of juror neutrality in juror questioning of
witnesses); see also Bill Alden, Juror Inquiries Require Retrial for Defendant, N.Y. L.J., Sept. 22,
1995, at 1 (reporting how improper juror questioning in Ajmal case led to reversal and new trial). In
today's media-dominated world, jurors are more informed about legal issues than ever before. More
explanation by judges why certain legal principles are important or why certain evidentiary rulings
CLINTON LIBRARY PHOTOCOPY
FILE:ASOTOMAYO Oct 10/21/96 Mon 11:59pm
1995]
DARBY PRINTING COMPANY
17
We cannot delay in addressing these moral issues of professional con-
duct. We are faced with on-going instances of erosion in public confi-
dence. The O.J. Simpson trial and the constantly recurring investigations
of public officials continue to subject our profession and government
officials to public scorn and ridicule. The response, if we do not act, will
be an increasing amount of legislation criminalizing and otherwise regulat-
ing conduct and a demoralization in the practice of law and public service.
We are losing many fine elected officials to retirement who no longer care
to operate in a bitterly partisan and hostile atmosphere governed by few
meaningful rules of conduct and subject to heightened and unrelenting
personal scrutiny by the press. Among our own ranks, senior practitioners
complain bitterly of the loss even of professional courtesy among lawyers
and office holders.
In Boston, lawyers call their adversaries "brother" or "sister" in court.
Anyone who experiences the practice appreciates the grace it adds to the
proceedings. This grace is created by the aura of respect the titles seek to
convey. In light of the increasing call by lawyers to return to greater pro-
fessional civility, it is clear we ourselves feel and regret the loss of profes-
sional courtesy and respect.⁶² We must first give respect to each other and
to the profession-in word and in deed-before we can expect the public
to do so,
If we act in these areas, the public discourse, the behavior of our law-
yers and public officials as well as their reputations, and, ultimately, confi-
dence in our legal system as a whole will be greatly enhanced.
have been made may be helpful to contain speculation that can lead juries astray. Similarly. if jurors
ask questions that seek to clarify evidence, and if the practice is properly controlled, this may preserve
rather than interfere with a jury's impartiality.
62. See Louis P. DiLorenzo, Civility and Professionalism, N.Y. ST. B.J., Jan. 1996, at 8, 8-10, 25
(exploring scope of decline in professionalism among attorneys, uncovering its cause and suggesting
possible solutions); see generally NEW YORK STATE BAR ASS'N, CIVILITY IN LITIGATION: A VOLUN-
TARY COMMITMENT (1995) (explaining suggested guidelines for behavior of all participants in litiga-
tion process).
CLINTON LIBRARY PHOTOCOPY
SOTOMAYOR RESPONSE TO SENATE QUESTIONNAIRE
PART ONE, QUESTION 15
Attached are copies of all unpublished opinions referenced in Question 15.
CLINTON LIBRARY PHOTOCOPY
Not Reported in F.Supp.
Page 1
(Cite as: 1994 WL 62965 (S.D.N.Y.))
Ulf W. RUNQUIST, as trustee of Runquist and
Kimba M. Wood. On February 20, 1992,
Co., Inc., Profit Sharing Trust.
Magistrate Judge Lee established April 6, 1992 as
Plaintiff,
the deadline for plaintiff's submission of papers in
V.
opposition to the summary judgment motion.
DELTA CAPITAL MANAGEMENT, L.P., John
Plaintiff filed no papers by that deadline. On
M. Lefrere and William H. Gregory.
August 17, 1992, Magistrate Judge Lee issued her
Defendants
first Report and Recommendation (the "Report").
The Report concluded that plaintiff: (1) had
No. 91 Civ. 3335 (SS).
completely failed to demonstrate reliance, an
essential element of its case; (2) had not arrived at a
United States District Court, S.D. New York.
scheduled Status Conference; (3) had not served
defendant Gregory in a timely manner, despite
Feb. 18, 1994.
repeated instructions by Judge Wood; (4) had failed
to engage in discovery within the time frame
OPINION AND ORDER
established by Judge Wood; and (5) had made no
timely effort to oppose plaintiff's summary
SOTOMAYOR, District Judge.
judgment motion. On the record, Magistrate Judge
Lee recommended dismissing the fraud claim against
*1 Pursuant to Fed.R.Civ.P. 60(b), plaintiff Ulf
LeFrere for failure to demonstrate reliance, and
W. Runquist moves to reconsider my Order dated
dismissing the outstanding common law claims
July 15, 1993 adopting the Second Supplemental
against LeFrere for failure to prosecute.
Report and Recommendation of Magistrate Judge
Barbara E. Lee. Magistrate Judge Lee
On August 28, 1992, plaintiff objected to the
recommended dismissing plaintiff's federal fraud
Report and moved for reconsideration. Plaintiff's
claim pursuant to Fed.R.Civ.P. 56(c), and
counsel, Louis S. Sandler, alleged that he drafted an
dismissing plaintiff's common law claims pursuant
affidavit in opposition to the summary judgment
to Fed.R.Civ.P. 41(b) for failure to prosecute. For
motion in December 1991. Sandler claims he
the reasons set forth below, the motion for
discussed the affidavit with plaintiff on January 2-3,
reconsideration is denied.
1992. However, no affidavit was ever filed with the
Clerk of the Court. Sandler blames this omission on
BACKGROUND
a disgruntled secretary who left his firm's
employment in January 1992. Sandler attached what
The facts of this case are set forth in detail in my
purported to be a copy of the lost affidavit to the
Order dated July 15, 1993 (the "Order") adopting
motion for reconsideration. The copy was not
the Second Supplemental Report and
signed, but Sandler represented that the affidavit
Recommendation of Magistrate Judge Barbara E.
would be re-executed upon plaintiff's return from
Lee. Although I assume familiarity with the Order,
Sweden on August 29, 1992. Affidavit of Lewis S.
I briefly summarize the relevant procedural history
Sandler, sworn to August 28, 1992, 1 4.
of this case.
*2 On September 24, 1992, Magistrate Judge Lee
Plaintiff Runquist purchased a limited partnership
considered an affidavit executed by plaintiff on
interest in Delta Capital Management ("Delta")
September 14, 1992. The September 14 affidavit
allegedly in reliance upon false statements made by
differs substantially from the draft affidavit attached
Delta's general partners, pro se defendants John
to plaintiff's August 28, 1992 motion for
LeFrere and William Gregory. On December 3,
reconsideration. Magistrate Judge Lee issued a
1991, LeFrere moved for summary judgment on the
Supplemental Report and Recommendation, which
ground that plaintiff could not prove reliance, a
concluded that the new affidavit failed to establish a
necessary element for a fraud claim under federal
genuine dispute over a material issue of fact.
law.
Supplemental Report at 3. It also found that
plaintiff's "lame excuses" for continued delay were
The action was referred to Magistrate Judge
insufficient to warrant modification of the prior
Barbara E. Lee on December 13, 1991 by Judge
recommendation to dismiss the common law claims
Copr. © West 1997 No claim to orig. U.S. govt. works
CLINTON LIBRARY PHOTOCOPY
Not Reported in F.Supp.
Page 2
(Cite as: 1994 WL 62965, *2 (S.D.N.Y.))
for failure to prosecute. Id. at 5.
1992. Plaintiff alleges that that notarized document
was the original affidavit in opposition to the
Plaintiff renewed its objections and filed another
defendant's motion for summary judgment.
motion for reconsideration. The motion contained
yet another affidavit, this time identical to the draft
*3 Second, plaintiff attaches a letter it sent to
attached to the August 28 motion. Apparently this
defendant LeFrere. The letter is dated January 14,
affidavit was sent to Judge Wood's Chambers on or
1991, [FN1] and advises LeFrere that attached is a
about August 31, 1992. This affidavit was not filed
copy of "the affidavit of Ulf W. Runquist in
with the Clerk of the Court, and was not part of the
opposition your Motion for Summary Judgment."
record considered by the Magistrate Judge.
Pl.Ex. B. At the bottom of the letter appears a
Curiously, this affidavit was executed in New York
handwritten endorsement by LeFrere that reads:
on August 28, 1992. According to Sandler in his
Lew,
August 28 motion and affidavit, his client was in
I will be sending a retort to Bill Runquist's
Sweden until August 29.
affidavit against my motion for Summary
Judgment in the next several days. I will send
On November 17, 1992, Magistrate Judge Lee
you a copy of such the same day it is mailed to the
issued a Second Supplemental Report and
court.
Recommendation. After considering the latest
Sincerely,
affidavit, she determined again that it failed to
John M. LeFrere
establish material issues of fact sufficient to pierce
Plaintiff maintains that this note demonstrates that
the pleadings. Magistrate Judge Lee also adhered to
LeFrere misled the Court into believing that he
her recommendation to dismiss the remaining claims
never received the affidavit. Plaintiff points out that
for failure to prosecute pursuant to Fed.R.Civ.P.
LeFrere's most recent papers are now unsworn.
41(b).
Plaintiff concedes that it "cannot explain" what
I issued an Order on July 15, 1993 (the "Order")
happened to the original affidavit prepared in
adopting Magistrate Judge Lee's Second
December 1991. Affidavit of Lewis S. Sandler,
Supplemental Report and Recommendation. The
executed July 30, 1993 (hereinafter "Sandler Aff."),
Order concluded that reliance had not been proven,
1 2. However, plaintiff argues that because the
and that summary judgment of the federal fraud
affidavit was "promptly re-executed," the loss of the
claim was appropriate. The Order also found that:
affidavit was not a sufficient basis for granting
[A] plaintiff who, inter alia, repeatedly fails to
summary judgment or dismissing the remaining
serve one defendant after being so instructed by
claims. Sandler Aff. 1 12. Plaintiff also denies that
the Court, fails to serve another altogether, fails to
there was anything surreptitious about the re-
arrive at a scheduled Status Conference, fails to
execution of the original affidavit. Sandler claims
engage in discovery, fails to oppose a motion for
that the document is simply misdated August 28
summary judgment, and engages in a pattern of
instead of August 31. In Sandler's words, "[i]t was
suspicious, dilatory tactics with regard to the
a classic slip." Sandler Aff. 9 7. To support this
production of affidavits, has evidenced, at a
claim, Sandler submitted a photocopy of Runquist's
minimum, a failure to prosecute warranting
passport, which bears a stamp indicating that
dismissal with prejudice pursuant to Fed.R.Civ.P.
plaintiff returned to the United States on August 29,
41(b).
1992.
Order at 11-12 (footnote omitted). The Order
dismissed the complaint with prejudice. Id. at 13.
Plaintiff also maintains it was "not at fault for not
pressing discovery." Sandler Aff. at 3. Plaintiff
Plaintiff brings this motion for reconsideration of
argues that it believed discovery had been stayed
my Order. In the motion, plaintiff states that it
until resolution of the summary judgment motion.
opposed the summary judgment motion in a timely
Plaintiff supports this claim with a letter from
manner. As evidence of this proposition, plaintiff
LeFrere to Judge Wood's Chambers in which he
offers two forms of proof. First, plaintiff attaches a
states that the upcoming pretrial conference and trial
copy of a receipt from a notary public, who
date are "stayed indefinitely until resolution on my
notarized a document for Runquist on January 2,
Motion for Summary Judgment." Pl.Ex.
C.
Copr. © West 1997 No claim to orig. U.S. govt. works
CLINTON LIBRARY PHOTOCOPY
Not Reported in F.Supp.
Page 3
(Cite as: 1994 WL 62965, *3 (S.D.N.Y.))
Plaintiff also states that engaging in discovery would
resolved in favor of that party. Salomon V. 1498
have been futile, "[a]s co-defendant Gregory had not
Third Realty Corp., 148 F.R.D. 127, 128
been served, and therefore, any depositions in his
(S.D.N.Y.1993) (citing Sony Corp. V. S.W.I.
absence would have been a nullity as to him and
Trading, Inc., 104 F.R.D. 535, 539-49
would have had to be repeated." Sandler Aff. 1 6.
(S.D.N.Y.1985)).
DISCUSSION
Plaintiff has not specified which subsection of
60(b) underlies its motion. Rule 60(b) motions
Rule 60(b), F.R.Civ.P., provides in pertinent
seeking to undue the mistakes or omissions of
part:
counsel could, on the face of the statute, be
On motion and upon such terms as are just, the
considered under 60(b)(1) or 60(b)(6). Rule
court may relieve a party or a party's legal
60(b)(6) may be used to rectify mistakes or
representative from a final judgment, order, or
omissions by counsel that are the result of
proceeding for the following reasons: (1)
"extraordinary circumstances." PT Busana Idaman
mistake, inadvertence, surprise or excusable
Murani V. Marissa by GHR Industries Trading
neglect; (2) newly discovered evidence (3)
Corp., 151 F.R.D. 32, 34 (S.D.N.Y.1993) (citing
fraud misrepresentation, or other misconduct
United States V. Cirami, 563 F.2d 26, 34-35 (2d
of an adverse party; (4) the judgment is void; (5)
ir.1977) ("Cirami II") (other citations omitted)).
the judgment has been satisfied or (6) any
See also United States V. Cirami, 535 F.2d 736, 741
other reason justifying relief from the operation of
(2d Cir. 1976) ("Cirami I") (even gross negligence
the judgment.
by attorney does not justify use of 60(b)(6)).
Plaintiff, however, does not allege any extraordinary
Rule 60(b) strikes a balance between "serving the
circumstances that would justify considering the
ends of justice and preserving the finality of
mistakes and omissions of counsel under Rule
judgments." Neimaizer V. Baker, 793 F.2d 58, 61
60(b)(6). Attorney Sandler even characterizes one
(2d Cir. 1986) (citing House V. Secretary of Health
of his mistakes as a "classic slip." Sandler Aff. 17.
and Human Services, 688 F.2d 7, 9 (2d Cir. 1982);
Seven Elves, Inc. V. Eskenazi, 635 F.2d 396, 401
Under Rule 60(b)(1), however, the Second Circuit
(5th :1981)). The district court's responsibility
has "consistently declined" to alter judgments in
is to "maintain a balance between clearing its
cases where the mistake or omission was the result
calendar and affording litigants a reasonable chance
of counsel's "ignorance of the law or other rules of
to be heard." Enron Oil Corp. V. Diakuhara, Bulk
the court, or his inability to efficiently manage his
Oil (U.S.A.), Inc., 10 F.3d 90, 95 (2d Cir. 1993)
caseload." Neimaizer at 62 (quoting Cirami I at 739
(citations omitted). The Rule should be construed
(other citations omitted)). Furthermore, 60(b)(1)
broadly to do substantial justice, while keeping in
relief will not be granted to remedy the
mind that final judgments should not be lightly
consequences of a poor litigation strategy. Id.
reopened. Neimaizer at 61 (quotation omitted).
(citing Chick Kam Choo V. Exxon Corp., 699 F.2d
Because 60(b) motions seek extraordinary judicial
693, 695 (5th Cir.), cert. denied sub nom., Chick
relief, they should be granted only on a showing of
Kam Choo V. Esso Oil Corp., 464 U.S. 826
exceptional circumstances. Mendell V. Gollust, 909
(1983)). See also Spray Tech Corp. V. Wolf, 113
F.2d 724, 731 (2d Cir.1990), aff'd, 501 U.S. 115,
F.R.D. 50, 51 (S.D.N.Y.1986) (same).
111 S.Ct. 2173 (1991) (citations omitted). See also
Bicicletas Windsor, S.A. V. Bicycle Corp. of
Speaking in the context of vacating default
America, 783 F.Supp. 781, 787 (S.D.N.Y.1992)
judgments, the Second Circuit has provided
(60(b) motions "not granted lightly") (citations
additional guidance. District courts should not grant
omitted).
a 60(b) motion made by an "essentially unresponsive
party" whose actions have halted the adversary
*4 The decision to grant 60(b) relief lies within
process. Maduakolam at 55 (citing Sony at 540).
the discretion of the district court. Maduakolam V.
In cases where the unresponsive party seeks 60(b)
Columbia Univ., 866 F.2d 53, 55 (2d Cir. 1989). In
relief, denial of the motion is justified as a means to
cases where the party seeking 60(b) relief has not
protect the other party from "interminable delay and
been heard on the merits, all doubts should be
continued uncertainty as to his rights." Id.
Copr. © West 1997 No claim to orig. U.S. govt. works
CLINTON LIBRARY PHOTOCOPY
Not Reported in F.Supp.
Page 4
(Cite as: 1994 WL 62965, *4 (S.D.N.Y.))
In cases where counsel's mistake or omission falls
Repetition of arguments that have received full
within one the previously enumerated examples of
consideration fails to constitute a genuine ground for
an inexcusable mistake or omission, clients cannot
60(b)(1) relief. Peterson V. Valenzo, 803 F.Supp.
seek 60(b) relief. Neimaizer at 63. This principle is
875, 877 (S.D.N.Y.1992), aff'd, 996 F.2d 303 (2d
based on the theory that a person who selects
Cir.1993).
counsel cannot avoid the consequences of the agent's
acts or omissions. Id. at 62 (citing Link V. Wabash
The complex saga encompassing plaintiff's
Railroad Co., 370 U.S. 626, 633-34 (1962) (other
affidavits is one of many factors suggesting that
citations omitted)).
plaintiff has interfered with the adversary process
and has consequently failed to prosecute under
*5 Guided by these principles, I turn to plaintiff's
Fed.R.Civ.P. Rule 41(b). [FN2] Plaintiff's belief
motion. I start by noting that plaintiff's numerous
that the dismissal for failure to prosecute was
arguments concerning the affidavit in opposition to
unwarranted because the original affidavit was
the summary judgment motion miss an important
"promptly re-executed" belies reality. Sandler Aff.
point. The summary judgment motion was not
1 12. Even if LeFrere received the affidavit in
granted because no affidavits were ever filed. The
January, counsel fails to explain adequately why the
fraud claim was carefully evaluated by both
affidavit was not filed with the Clerk of the Court.
Magistrate Judge Lee and myself prior to dismissal.
See, e.g., F.R.Civ.P. Rule 5(e); Local General
Rule 1(a); Local Civil Rules 1(b), 3(a)-(c). Counsel
Magistrate Judge Lee generously considered the
cannot shift the responsibility for the failure to file
substance of each submitted affidavit, despite their
to his secretary. The New York Code of
irregularities. In her Supplemental Report and
Professional Responsibility provides, in part:
Recommendation of September 24, 1992, Magistrate
*6 A lawyer often delegates tasks to clerks,
Judge Lee concluded that the affidavit executed on
secretaries, and other lay persons. Such
September 14, 1992, failed to establish a genuine
delegation is proper if the lawyers maintains a
issue of material fact. Supplemental Report at 3.
direct relationship with the client, supervises the
The affidavit misdated August 28 was considered by
delegated work, and has complete professional
Magistrate Judge Lee in her Second Supplemental
responsibility for the work product.
Report dated November 17, 1992. She again
New York Code of Professional Responsibility,
determined that even in the light most favorable to
Ethical Canon 3-6 (1990). That seven months, a
plaintiff, the affidavit still did not establish material
missed Status Conference, and two reports by a
issues of fact sufficient to defeat defendants' motion.
Magistrate Judge passed before counsel re-executed
the affidavit suggests that counsel's supervision over
I refused to consider the misdated affidavit
his client, his staff, and this case was lacking. I also
because it was never filed with the Clerk of the
note that when counsel re-executed the affidavit in
Court pursuant to Fed.R.Civ.P. 5(e), and therefore
August 1992, he again disregarded proper
was not part of the record as required for de novo
procedural rules by sending the affidavit to Judge
review under Fed.R.Civ.P. 72(b). Order at 8-9. I
Wood's Chambers rather than to the Clerk of the
did, however, consider the substance of the
Court. The result of this action was a gross waste of
September 14 affidavit, which was drafted with the
the time and the resources of Magistrate Judge Lee,
benefit of the guidance provided by Magistrate
who issued two supplemental reports in less than
Judge Lee's Original Report and Recommendation.
eight weeks because she was, understandably,
Viewing the affidavit in the light most favorable to
unaware of the existence of the re-executed affidavit
plaintiff, I agreed with Magistrate Judge Lee that
at the time of her first supplemental report.
"its failure to pierce the pleadings made it
inadequate to defeat the defendant's motions." Id.
The failure to comply with the discovery schedule
The affidavit made nothing more than "conclusory
established by Judge Wood also justifies the
assertions of fact" that repeat the pleadings. Id. No
conclusion that plaintiff failed to prosecute the case.
new information had been submitted to the Court
In fact, the Second Circuit has held that failure to
that would have suggested that plaintiff would be
participate in discovery justifies denial of a 60(b)
able to pierce the pleadings and establish a genuine
motion. Salomon at 128 (citing Sieck V. Russo, 869
issue of material fact. See id. at 9-10 (citing cases).
F.2d 131, 134-35 (2d Cir.1989)). See also
Copr. D West 1997 No claim to orig. U.S. govt. works
CLINTON LIBRARY PHOTOCOPY
Not Reported in F.Supp.
Page 5
(Cite as: 1994 WL 62965, *6 (S.D.N.Y.))
Maduakolam at 56 (same). Plaintiff suggests that its
should retain subject matter jurisdiction even though
failure to participate in discovery was in the interests
the main federal claim was dismissed on a summary
of judicial economy. Plaintiff states that because
judgment motion. 28 U.S.C. § 1367(c)(3).
defendant Gregory had not yet been served, "any
depositions in his absence would have been a nullity
END OF DOCUMENT
as to him and would have had to be repeated."
Sandler Aff. 1 6. This statement overlooks the fact
that Gregory was not present in the litigation
because plaintiff ignored Judge Wood's repeated
instructions to serve a complaint on Gregory in a
timely manner. Plaintiff's second justification for
failing to participate in discovery, that somehow
discovery had been stayed definitely because of the
LeFrere's letter to Judge Wood, is also inadequate
to warrant 60(b) relief. The letter does speak of
postponing the trial date pending resolution of the
summary judgment motion. Pl.Ex. C. However,
the letter makes absolutely no reference to the
discovery timetable. Id. Regardless, the letter of a
pro se defendant does not render the timetable
established by Judge Wood irrelevant.
Finally, plaintiff's counsel offers absolutely no
explanation for missing a scheduled Status
Conference. Nor does plaintiff explain why it failed
to serve a defendant despite being instructed to do so
by Judge Wood. In short, plaintiff's actions display
an inexcusable pattern of obstruction of the
adversary process. Although the Second Circuit
affords "extra leeway" to pro se defendants who fail
to meet procedural requirements, such protection
does not extend to plaintiffs who are represented by
counsel. Enron Oil at 95-96. Plaintiff has failed, as
a matter of law, to establish any valid reason for
invoking this Court's extraordinary powers under
Rule 60(b).
CONCLUSION
*7 For the reasons stated above, plaintiff's motion
for reconsideration of my Order of July 15, 1993 is
DENIED, and the Clerk of the Court is instructed to
enter judgment in favor of defendants and
dismissing this action with prejudice.
so ORDERED.
FN1. Sandler claims that this date is a mistake and
should read January 14, 1992.
FN2. For purposes of this motion 1 assume that
plaintiff would be able to convince this Court that it
Copr. 0 West 1997 No claim to orig. U.S. govt. works
CLINTON LIBRARY PHOTOCOPY
MANDAYE
91 CV 3335
SDNY
JAN
19
GCP
Sotomayer
S
072793
UNITED STATES COURT OF APPEALS
FOR THE
SECOND CIRCUIT
DOC.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the United States Courthouse in the
City of New York, on the 2nd day of December
one thousand
nine hundred and ninety-four.
PRESENT: HONORABLE GEORGE C. PRATT,
HONORABLE PIERRE N. LEVAL,
HONORABLE GUIDO CALABRESI, Circuit Judges.
X
LINED STATES COURT OF APPEALS
ULF W. RUNQUIST, as Trustee of RUNQUIST
DEC 2 1994
& CO., INC. PROFIT SHARING TRUST,
SECOND
LAVGE CIRCUIT CUERK
Plaintiff-Appellant,
- against -
Docket No. 94-7284
DELTA CAPITAL MANAGEMENT, L.P.,
Defendant,
JOHN M. LeFRERE & WILLIAM H. GREGORY,
Defendants-Appellees
X
This appeal from a judgment of the United States District Court
for the Southern District of New York, Sonia Sotomayer, Judge, came
on to be heard on the transcript of record and was argued by
counsel for plaintiff-appellant and by defendant-appellee John M.
Lefrere, pro se.
ON CONSIDERATION WHEREOF, it is now ordered, adjudged, and
decreed that the judgment appealed from is hereby reversed and
remanded.
Plaintiff Runquist alleged in his complaint that he had pur-
chased a limited partnership interest in Delta Capital Management,
L.P. ("Delta") in reliance upon false representations made by
Delta's general partners, pro se defendants John LeFrere and
William Gregory. Specifically, the complaint alleges that LeFrere
and Gregory had furnished plaintiff with written materials, which
they had prepared, that included a "confidential" offering memoran-
dum stating that Delta did not intend to invest more than 50% of
its total assets in any one industry, or more than 25% of its
assets in the securities of any issuer. In reliance on that
- MANDATE ISSUED: 12/23/94
-
reopened already
CLINTON LIBRARY PHOTOCOPY
Runquist V. LeFrere
No. 94-7284
memorandum, Runquist invested $750,000, his life savings, in Delta.
Unfortunately for him, at the time of his investment, more than 75%
of Delta's assets were invested in securities of First Executive
Corp., a company which has since suffered severe financial rever-
sals, and whose stock is now virtually worthless.
Runquist asserted violations of federal securities laws as well
as state-law claims of breach of fiduciary duty, negligence, and
common-law fraud. On December 3, 1991, LeFrere moved for partial
summary judgment on the ground that Runquist could not prove
reliance.
Judge Kimba M. Wood referred the motion to Magistrate Judge
Barbara E. Lee. On February 20, 1992, Magistrate Judge Lee estab-
lished April 6, 1992, as the deadline for Runquist's submission of
papers in opposition to the summary-judgment motion. Runquist
filed no papers by that deadline. On August 17, 1992, Magistrate
Judge Lee issued her first report and recommendation, which con-
cluded that plaintiff: (1) had completely failed to demonstrate
reliance, an essential element of his case; (2) had not arrived at
a scheduled status conference; (3) had not served the complaint on
defendant Gregory in a timely manner, despite repeated instructions
by Judge Wood; (4) had failed to engage in discovery within the
time frame established by Judge Wood; and (5) had failed to "oppose
LeFrere's timely motion for summary judgment". Magistrate Judge
Lee recommended dismissing the fraud claim against LeFrere for
failure to show a triable issue as to reliance; she further noted
that "the absence of reliance * * * is fatal to plaintiff's [feder-
al] claims against all defendants". In addition, she recommended
dismissal under F.R.C.P. 41 (b) of the pendent state common-law
claims against all defendants for failure to prosecute under
F.R.C.P. 41 (b).
On August 28, 1992, Runquist filed objections to the report and
moved for reconsideration before the magistrate judge. Focusing on
the magistrate judge's statement that plaintiff had failed to
oppose the summary judgment motion, plaintiff's counsel alleged
that he had drafted an affidavit in opposition to the motion in
December 1991; that he had discussed the affidavit with Runquist on
January 2-3, 1992, but later learned it was never filed with the
clerk because of a disgruntled secretary who had left his firm's
employment in January 1992. He attached to the motion for recon-
sideration what purported to be a copy of the unfiled affidavit.
The copy was not signed, but the attorney represented that the
affidavit would be re-executed upon Runquist's return from Sweden
the next day, August 29, 1992.
In a supplemental report and recommendation dated September 24,
1992, Magistrate Judge Lee considered a submitted affidavit execut-
- 2 -
CLINTON LIBRARY PHOTOCOPY
Runquist V. LeFrere
No. 94-7284
ed by Runquist on September 14, 1992. That affidavit differed
substantially from the draft affidavit attached to Runquist's
August 28, 1992, motion for reconsideration. Magistrate Judge Lee
concluded that the new affidavit failed to establish a genuine
dispute over a material issue of fact. She also found that plaint-
iff's "lame excuses" for continued delay were insufficient to
warrant modification of the prior recommendation to dismiss the
state common-law claims for failure to prosecute.
Runquist renewed his objections and filed another motion for
reconsideration before the magistrate judge. That motion contained
an affidavit identical to the draft attached to the August 28th
motion. Runquist claimed that this affidavit had been sent to
Judge Wood's chambers on or about August 31, 1992; however, the
affidavit was not filed with the clerk and was not part of the
record considered by the magistrate judge. Curiously, Runquist's
signature purported to have been notarized in New York on August
28, 1992, which was one day prior to Runquist's return from Sweden,
according to his attorney's affidavit included in the August 28th
motion. (The attorney later explained that, in notarizing his
client's affidavit, he had simply made a mistake as to the date.)
On November 17, 1992, Magistrate Judge Lee issued a second
supplemental report and recommendation. She determined that even
with his latest affidavit Runquist still had failed to establish a
material issue of fact. She also adhered to her earlier recommen-
dation to dismiss the remaining claims for failure to prosecute.
On July 19, 1993, Judge Sotomayer, to whom the case had been
reassigned, rejected Runquist's objections, adopted the second
supplemental report and recommendation of Magistrate Lee, and
dismissed the entire complaint.
Runquist's motion for reconsideration and for relief from the
judgment under F.R.C.P. 60 (b) was denied on February 16, 1994.
Runquist raises two issues on appeal: (1) whether the affida-
vits and exhibits submitted to the district court raise a triable
issue of fact on his fraud and reliance claims under federal law;
and (2) whether the district court abused its discretion by dis-
missing all of the remaining claims under rule 41 (b).
A. Summary Judgment
When a district court reviews objections to a magistrate
judge's report and recommendation for summary judgment, it must
- 3 -
CLINTON LIBRARY PHOTOCOPY
Runquist V. LeFrere
No. 94-7284
make a de novo determination of the motion "upon the record, or
after additional evidence". Fed. R. Civ. P. 72 (b) ; see also 28
U.S.C. § 636 (b) (1) (c). Here we look at the entire record as it was
before the district court.
The August 28th affidavit, submitted to the magistrate judge in
draft form on the first motion for reconsideration and subsequently
submitted in executed form, raised triable issues of fact as to
whether defendants had misrepresented Delta's investment plan to
Runquist and whether Runquist reasonably relied on those misrepre-
sentations. In his motion for summary judgment, LeFrere attempted
to show that Runquist could not have relied on any misrepresenta-
tion by defendants, asserting that Runquist had been provided with
substantial information concerning Delta's investment practices
prior to signing the subscription agreement. These allegations
were directly countered by Runquist's August 28th affidavit. If
the August 28th affidavit were considered, it is apparent that
summary judgment would be inappropriate.
The question, then, is whether the district court should have
considered the August 28th affidavit. By the time the matter came
before the district court, Runquist had submitted a signed and
sworn copy of the affidavit, albeit one bearing a questionable
date. Runquist also had submitted both his sworn statement,
contained in his September 14th affidavit, that he had in fact
sworn to an affidavit identical to the August 28th affidavit when
it was originally presented to him in January 1992, and a copy of a
receipt from the notary public who notarized Runquist's signature
on January 2, 1992. It was apparent that any failure either to
oppose LeFrere's original summary judgment motion or to file the
August 28th affidavit properly in the first instance was attribut-
able to counsel's manifold shortcomings, rather than to Runquist's
default. We do not condone counsel's numerous missteps. Simple
adherence to the Federal Rules of Civil Procedure would have
avoided the need for numerous motions for reconsideration and
additional explanatory affidavits. However, under the particular
circumstances of this case, where the plaintiff himself has repeat-
edly taken timely action to present evidence to the court, we
believe that, given our well-established preference that cases be
decided on the merits, the August 28th affidavit should have been
considered and summary judgment should have been denied.
B. Dismissal for Lack of Prosecution
Runquist also contends that the district court's rule 41 (b)
dismissal of his remaining claims was an abuse of discretion.
I I 4
CLINTON LIBRARY PHOTOCOPY
Runquist V. LeFrere
No. 94-7284
Rule 41 (b) provides:
For failure of the plaintiff to prosecute or to comply with
these rules or any order of court, a defendant may move for
dismissal of an action or any claim against the defendant.
Unless the court in its order for dismissal otherwise
specifies a dismissal under this subdivision and any dis-
missal not provided for in this rule, other than a dismissal
for lack of jurisdiction, for improper venue, or for failure
to join a party under Rule 19, operates as an adjudication
upon the merits.
Although this rule speaks of dismissal on a defendant's motion,
a district court may also act on its own motion, Schenck V. Bear,
Stearns & Co., 583 F.2d 58, 60 (2d Cir. 1978), as it did in this
case. We have noted, however, that "dismissal [for failure to
prosecute under 41 (b) is a 'harsh remedy to be utilized only in
extreme situations. Alvarez V. Simmons Mkt. Research Bureau,
Inc., 839 F.2d 930, 932 (2d Cir. 1988) (quoting Thielmann V.
Rutland Hosp., 455 F.2d 853, 855 (2d Cir. 1972)) Our standard of
review for such dismissals under Rule 41 (b) is abuse of discretion.
Schenck, 583 F.2d at 60.
We assess a rule 41 (b) dismissal in light of the record as a
whole, considering the following factors: (1) the duration of the
plaintiff's failures; (2) whether the plaintiff had received notice
that further delays would result in dismissal; (3) whether the
defendant is likely to be prejudiced by further delay; (4) whether
the district judge has taken care to strike the balance between
alleviating court calendar congestion and protecting a party's
right to due process and a fair chancè to be heard; and (5) whether
the judge has adequately assessed the efficacy of lesser sanctions.
Harding V. Federal Reserve Bk. of New York, 707 F.2d 46, 50 (2d
Cir. 1983).
Applying these factors to the record in this case, we conclude
that the district court should not have dismissed these claims.
There is no doubt, of course, that the failures of Runquist's
attorney were many and continued over several months. However, the
district court did not discuss the possible efficacy of other,
lesser sanctions, a factor to which we have attached particular
importance. See Schenck, 583 F.2d at 60 (stating that "[t]he sound
exercise of discretion requires the judge to consider and use
lesser sanctions in the appropriate case") Moreover, it is
conceded that no express warning that further inaction would result
in the termination of the case was given before dismissal.
- 5 -
CLINTON LIBRARY PHOTOCOPY
Runquist V. LeFrere
No. 94-7284
We understand and sympathize with the district court's frustra-
tion in dealing with the repeated inadequacies of Runquist's
counsel. We think, however, that, despite counsel's many failings,
the imposition of the harsh sanction of dismissal, without warning
and without considering the efficacy of lesser sanctions, was
excessive in the circumstances of this case.
The judgment of the district court is reversed and the case is
remanded for further proceedings.
Deta
George, C. Pratt, U.S.C.J.
UNRELA TED CASES
Pierre N. Leval, U.S.C.J.
BEFORE THIS OR ANY OTHER COURT
Yuis Cliven
Guido Calabresi, U.S.C.J.
A TRUE COPY
GEORGE LANGE III, CLERK
- 6 -
CLINTON LIBRARY PHOTOCOPY
Not Reported in F.Supp.
Page 1
(Cite as: 1994 WL 97048 (S.D.N.Y.))
BOLT ELECTRIC, INC., Plaintiff,
materials for the Project. Bolt claims that these
V.
materials were specifically required under the
The CITY OF NEW YORK and Spring City
Contract. NYC, however, was not a party to either
Electrical Manufacturing Co., Defendants.
agreement between Bolt and Naclerio, or Bolt and
Comstock.
No. 93 CIV. 3186(SS).
The Naclerio Contract with NYC was ill-fated.
United States District Court, S.D. New York.
As time passed, the Project fell further and further
behind schedule and was delayed several years. As
March 23, 1994.
the Project languished, Naclerio's financial status
also grew tenuous and, in 1990, Naclerio filed for
OPINION AND ORDER
bankruptcy protection. [FN1] Naclerio did not pay
Bolt or Comstock during 1990 and 1991, and both
SOTOMAYOR, District Judge.
informed NYC of their respective nonpayment
problems with Naclerio. Eventually, in 1991,
*1 Pursuant to Fed.R.Civ.P. 12(b)(6), defendant,
Comstock informed NYC that it was withdrawing
the City of New York ("NYC"), moves to dismiss
from the Project because of nonpayment.
the amended complaint in this diversity action for
contract nonpayment. Defendant NYC contends
Naclerio thereafter requested that Bolt provide the
that the alleged contract at issue is unenforceable
lighting materials it had ordered. Despite the
because it does not comply with NYC statutory and
existing and potential nonpayment problems, Bolt
regulatory requirements, and because it violates
agreed to continue with the Project on two
public policy. For the reasons discussed below,
conditions. First, Bolt demanded full payment for
defendant's motion is granted.
outstanding debts on materials it had already
provided. Second, it wanted NYC to guarantee
Background
payment of all remaining materials.
Plaintiff, Bolt Electric, Inc. ("Bolt"), is a New
Although it is unclear whether Naclerio complied
Jersey corporation which seeks payment for lighting
with Bolt's first condition, Bolt claims that it
and related materials it designed or supplied for a
continued producing the Naclerio items because
reconstruction project of the Eastern Parkway in
NYC met its second condition by providing a
Brooklyn, New York ("the Project"), supervised by
guarantee of payment. Bolt alleges this guarantee is
the Department of Transportation ("DOT"). In
commemorated in a letter dated September 25,
1987, after a competitive sealed bidding process,
1991, from DOT Deputy Commissioner Bernard
NYC awarded Naclerio Contracting Co., Inc.
McCoy ("the McCoy Letter").
("Naclerio"), a 58.7 million dollar contract for the
Project ("the Contract").
*2 The McCoy Letter states, in pertinent part,
that:
At issue in the instant motion before me are
[a]ll conforming material ordered by Naclerio on
outstanding payments for materials ordered by
their Purchase Order with [Bolt] will be paid to
Naclerio from Bolt in February 1988 and October
Naclerio by the City of New York.
1991. The February 1988 purchase order included
In the event Naclerio Contracting Co., Inc.
materials which Bolt claims it specially designed for
defaults in its contract with the New York City
the Project. The subsequent October 1991 purchase
Department of Transportation, the Department
order included several of the February 1988
will purchase from Bolt Electric, Inc. all materials
materials, as well as certain new items. It is unclear
ordered specifically for the Eastern Parkway
how much payment Bolt received for the materials
contract.
in these purchase orders.
Affidavit of Gilman J. Hallenbeck ("Hallenbeck
Affidavit"), Exhibit H.
Bolt also contracted with L.K. Comstock &
Company, Inc. ("Comstock"), a Naclerio electrical
Relying upon the McCoy Letter as a guarantee,
subcontractor under the Contract, to supply lighting
Bolt accepted another purchase order from Naclerio
Copr. © West 1997 No claim to orig. U.S. govt. works
CLINTON LIBRARY PHOTOCOPY
Not Reported in F.Supp.
Page 2
(Cite as: 1994 WL 97048, *2 (S.D.N.Y.))
for over two million dollars of lighting materials,
Naclerio in the October 1991 purchase order. [FN2]
including materials previously ordered but which
Bolt had refused to deliver due to nonpayment
In the case before me, Bolt seeks $2,592,746.20
problems. Bolt states that some of the materials
for payments due under the February 1988 and
included in this order had previously been inspected
October 1991 purchase orders, which Bolt contends
and approved by NYC. Bolt also continued to
NYC is bound to pay pursuant to the guarantee set
prepare and deliver other materials for the Project.
forth in the McCoy Letter. Bolt also claims that in
reliance on NYC's assurances of payment, Bolt
Bolt learned, during the summer of 1992, that
released its liens against Naclerio and Comstock for
NYC might declare Naclerio in default. According
prior purchase orders, and, at NYC's request,
to Bolt, at a meeting with NYC officials in August
withdrew its third-party complaint against NYC in
1992 and at subsequent meetings, NYC officials
an Ohio lawsuit against Bolt, filed by one of its
"assured Bolt that even if Naclerio was released and
suppliers for expenses associated with the Project.
a new general contractor was brought on board,
Hallenbeck Affidavit, 11 27-28.
NYC would honor its commitment to purchase from
Bolt the materials ordered by Naclerio." Bolt's
*3 Defendant NYC moves to dismiss Bolt's
Memorandum of Law in Opposition to Defendant
complaint against it, arguing that there is no legally
the City of New York's Motion to Dismiss ("Bolt's
viable agreement between NYC and Bolt which
Memorandum"), p. 9. The NYC officials also
requires NYC to pay for the items in the purchase
instructed Bolt to continue working on the Project.
order. Initially, NYC argued that a municipal
Id.
contract is valid and legally binding only if it
complies with the express statutory requirements of
Naclerio's default was indeed imminent and, in
competitive sealed bidding or the statutorily
October 1992, the NYC declared Naclerio in
recognized alternatives to the sealed bidding
default. Bolt maintains that at another meeting on
process. NYC contends that because Bolt never
October 26, 1992, with several NYC officials,
participated in the bidding process, or otherwise
including DOT Assistant Commissioner Lawrence
complied with alternative procurement prerequisites,
Gassman and DOT chief lighting official Steve
the McCoy Letter cannot constitute a valid contract
Galgano, NYC again explicitly directed Bolt to
with NYC. Also, a contract which does not satisfy
continue work on the materials ordered by Naclerio
the statutory prerequisites, according to NYC, is a
and on new materials not previously ordered. Bolt
nullity because it violates NYC's laws and rules
claims that, with the McCoy Letter in his hand,
and, hence, contravenes public policy.
DOT Assistant Commissioner Gassman assured Bolt
that "the City will honor its commitment to you,"
At the oral argument on the extant motion, held
id. at 10, and Bolt, again relying on these
October 23, 1993, NYC conceded that the bidding
assurances, continued to produce the requested
requirement was not absolute and that it could be
items.
avoided in certain situations, including when a
contractor defaults. Transcript of October 23, 1993
After the declaration of Naclerio's default, NYC
Hearing, pp. 3-4; 7; 9. [FN3] However, NYC
decided to complete the Project by submitting it to
asserted that even in the case of a default, it may
the Project's surety, Aetna Casualty & Surety
circumvent the bidding requirement only after it has
Company ("Aetna"). Although Aetna hired
formally declared the contractor in default. The
subcontractors other than Bolt to work on the
timing of the default announcement, NYC argued, is
Project materials, Bolt alleges that Aetna promised
dispositive and anything preceding the
that Bolt would continue to serve as the electrical
announcement is without legal significance unless it
materials supplier of the Project and that the NYC
complies with the statutory bidding prerequisites.
guarantee in the McCoy Letter would be honored.
Notwithstanding these assurances, on February 12,
A consistent theme of NYC's arguments is that,
1993, the Project's new electrical subcontractor
ultimately, any contract which has not satisfied the
notified Bolt that it was no longer on the Project.
applicable statutory requirements is invalid as
Defendant Spring City was ultimately selected to
against public policy. Defendant NYC's public
supply the materials previously contracted by
policy argument may be summarized succinctly as
Copr. © West 1997 No claim to orig. U.S. govt. works
CLINTON LIBRARY PHOTOCOPY
Not Reported in F.Supp.
Page 3
(Cite as: 1994 WL 97048, *3 (S.D.N.Y.))
alleging that the statutory restrictions on a
that because the McCoy Letter does not comply with
municipality's right to contract cannot be ignored or
mandatory statutory requirements, however, it is an
avoided because they are fundamental to
unenforceable contract, either because it is
"responsible municipal government." Thus, public
statutorily invalid or because it violates public
accountability, according to NYC, is paramount.
policy. [FN4]
Bolt responds that the McCoy Letter did not have
NYC agrees that there are two categories of valid
to comply with bidding requirements or any
contracts exempt from the competitive bidding
alternative contracting process, and that NYC's
requirement. The first category is best described as
"official" declaration of Naclerio's default is
contracts which are formed in accordance with
irrelevant to whether NYC agreed to pay Bolt for
alternative methods to competitive bidding explicitly
the materials ordered for the Project. Bolt also
set forth in the Charter, like the non-bidding process
argues that if I determine that some approval was
for emergency procurements. See New York City
required in order for NYC to enter a valid
Charter § 315. Since the parties agree that the
procurement agreement with Bolt, I should overlook
alleged contract between Bolt and NYC does not
such a requirement on purely equitable grounds
come within the coverage of any of these alternative
because there is no proof of "fraud, collusion or
mechanisms, there are no viable arguments that the
other impropriety in the execution of the [McCoy
McCoy Letter satisfies these sections of the New
Letter]." Bolt's Memorandum, p. 22. Bolt further
York City Charter ("Charter"). [FN5]
contends that it is unfair to deny recovery against
NYC where Bolt has acted in good faith and upon
The second category of bid-exempt contracts
reliance of NYC's assurances.
includes contracts which are valid if they are a
consequence of a default of a contractor, and entered
DISCUSSION
into in order to complete the work under a contract
which has been previously submitted for bidding.
A. The Motion to Dismiss for Failure to State a
See N.Y.C. Administrative Code § 6-102(b) (1992).
Claim
The McCoy Letter arguably falls within this
category. Id.; see also Contract, Article 48.
Dismissal pursuant to Fed.R.Civ.P. 12(b)(6) is
warranted only where "it appears beyond doubt that
Nevertheless, regardless of whether the contracts
the plaintiff can prove no set of facts in support of
were formed in accordance with recognized
[the plaintiff's] claim which would entitle [the
alternative nonbidding procedures, or as a
plaintiff] to relief." Ricciuti V. New York City
consequence of a default, all NYC contracts must
Transit Auth., 941 F.2d 119, 123 (2d Cir. 1991),
satisfy certain approval procedures set forth in the
quoting Conley V. Gibson, 355 U.S. 41, 45-46
Charter, New York City's Administrative Code
(1957) (footnote omitted). The issue "is not
("the Administrative Code") and the Procurement
whether a plaintiff will ultimately prevail, but
Policy Board Rules ("PPB Rules").
whether the claimant is entitled to offer evidence to
support the claims." Scheuer V. Rhodes, 416 U.S.
As discussed below, NYC's mandatory approval
232, 236 (1974). In considering the motion, the
requirements and public policy claims are its most
allegations in the complaint must be construed
defensible and compelling arguments. Any
favorably to the plaintiff. Walker V. New York,
agreement or contract with Bolt, in furtherance of
974 F.2d 293, 298 (2d Cir. 1992), cert. denied, 507
the Contract and for purposes of completion of the
U.S. 961, 113 S.Ct. 1387, 122 L.Ed.2d 762 (1993).
Project, must satisfy the requirements set forth in
NYC's rules and regulations. These requirements
*4 Defendant NYC does not challenge Bolt's
are alternatives to the competitive sealed bidding
interpretation of the McCoy Letter, but rather, for
process which, though theoretically less
purposes of this motion, NYC accepts the
burdensome, are mandatory and cannot be waived.
proposition that a contract between DOT and Bolt
Since the McCoy Letter does not comply with these
existed. Memorandum of Law in Support of City's
statutory requirements, NYC argues it is invalid and
Motion to Dismiss the Amended Complaint
to recognize such a contract would violate public
("NYC's Memorandum"), pp. 1-2. NYC argues
policy. I agree.
Copr. 0 West 1997 No claim to orig. U.S. govt. works
CLINTON LIBRARY PHOTOCOPY
Not Reported in F.Supp.
Page 4
(Cite as: 1994 WL 97048, *4 (S.D.N.Y.))
1. Declaration of Default as a Municipal Contract
I am not persuaded that NYC cannot act on what
Prerequisite
ultimately is its discretionary authority to complete
the Contract, in anticipation of a default, simply
New York State's General Municipal Law § 103.1
because it has not yet formally declared a default.
requires that contracts for public works must be
To hold otherwise would place an unwarranted and
awarded to the lowest bidder.
unjustified burden on NYC from invoking its
Except as otherwise expressly provided by an act
discretion--discretion which appears otherwise
of the legislature or by a local law adopted prior
unencumbered. Cf. In re Matter of Leeds, 53 N.Y.
to September first, nineteen hundred fifty-three,
400, 403 (1873) (readvertising may be inappropriate
all contracts for public work involving an
where it causes an injudicious delay); City of New
expenditure of more than seven thousand dollars
York V. Palladino, 146 A.D. 850, 131 N.Y.S. 807,
and all purchase contracts involving an
809 (1st Dept. 1911) (readvertising for contract to
expenditure of more than five thousand dollars,
collect refuse not required, in part, where
shall be awarded by the appropriate officer, board
accumulating refuse was menace to the public).
or agency of a political subdivision or of any
district therein to the lowest responsible
Despite the total absence in the General Municipal
bidder furnishing the required security after
Law, the Administrative Code or the Contract of
advertisement for sealed bids in the manner
any time provision of the sort NYC proposes, NYC
provided by this section
requests that I read into these sources a requirement
*5 N.Y. GEN. MUN. LAW § 103.1 (McKinney
that a formal declaration of default must precede any
1986). [FN6]
attempts to secure the means by which to complete
the work under the contract. Such an interpretation
The Charter specifically states that all City
is unwarranted and unjustified by the plain language
procurement contracts shall be awarded pursuant to
of the law or the Contract which permits NYC to
a competitive bidding process initiated by NYC's
complete the Contract "by such means and in such
issuance of an invitation for bids. Interested bidders
manner" as it deems desirable. See Article 48.
submit sealed bids and NYC awards the contract to
NYC must be free to react in potentially urgent
the lowest responsible bidder. New York City
situations, like securing specially-designed materials
Charter § 313. However, as already stated, and as
or the services of a subcontractor, prior to a default.
NYC recognizes, the bidding process is not inviolate
Otherwise, NYC would bear an unnecessary risk in
or mandatory in all cases. See United States V. City
the completion of its defaulted contracts.
of New York, 972 F.2d 464, 471-72 (2d Cir. 1992)
(New York City Charter includes valid exceptions to
*6 Defendant NYC relies on the language of
the traditional state law requirement that New York
Article 48 of the Contract to support its argument
City bid all its contracts). The Charter provides for
that the bidding-circumvention provisions found in
methods of awarding procurement contracts, without
this Article are triggered only once a default is
use of the bidding procedure, see e.g., New York
actually declared and the contractual notice
City Charter § 312 (exceptions to the procurement
requirements are followed. Article 48, in relevant
process), § 315 (emergency procurement), $ 317
part, states simply that the Commissioner of the
(alternatives to competitive sealed bidding), and, as
Department of Highways of the City of New York,
the parties agree, under the Contract here, NYC
after declaring the Contractor in default, may then
could complete the work without rebidding, if
have the work completed by such means and in
Naclerio defaulted.
such manner, by contract with or without public
lettings, or otherwise, as he may deem advisable,
Bolt argues that since NYC could contract without
utilizing for such purpose such of the Contractor's
bidding to complete the work after Naclerio's
plan, materials, equipment, tools and supplies
default, it has the authority, as a matter of law, to
remaining on the site, and also such
enter into an agreement, such as the McCoy Letter,
subcontractors, as he may deem advisable.
to pay for the Project materials. NYC counters that
a formal declaration of a default is a prerequisite to
This language alone is insufficient to support
the valid formation of a municipal contract to
NYC's conclusion that its discretion is limited.
complete the work under the defaulted contract.
This Article addresses only the actual act of
Copr. c West 1997 No claim to orig. U.S. govt. works
CLINTON LIBRARY PHOTOCOPY
Not Reported in F.Supp.
Page 5
(Cite as: 1994 WL 97048, *6 (S.D.N.Y.))
completing the Contract, it does not state that NYC
*7 Second, § 6-101 of the Administrative Code
could not take, pre-default, actions to facilitate such
states, in relevant part:
completion.
Contracts; certificate of comptroller. a. Any
contract, except as otherwise provided in this
In fact, the language of the Contract clearly
section, shall not be binding or of any force,
provides that if the contractor defaults, NYC may
unless the comptroller shall indorse thereon the
complete the work "by such means and in such
comptroller's certificate that there remains
manner" as advisable. Thus, the Contract grants
unexpended and unapplied a balance of the
NYC broad discretion in furtherance of completing
appropriation or fund applicable thereto, sufficient
the work, without any prohibition on NYC from
to pay the estimated expense of executing such
agreeing, pre-default, to pay Bolt for the
contract, as certified by the officer making the
undelivered Project materials should Naclerio
same.
default. Nothing therein suggests that the notice
requirements which exist, in part, for the benefit of
***
the contractor, also prohibit NYC from acting in
anticipation of a default, without bidding.
c. It shall be the duty of the comptroller to make
such indorsement upon every contract so presented
2. Comptroller Requirements on All Municipal
to him or her, if there remains unapplied and
Contracts
unexpended the amount so specified by the officer
making the contract, and thereafter to hold and
The ability to exercise discretion to complete work
retain such sum to pay the expense incurred until
without rebidding before or upon a default does not,
such contract shall be fully performed. Such
however, relieve the City and contractors from
indorsement shall be sufficient evidence of such
complying with other legal obligations and
appropriation or fund in any action.
requirements. NYC maintains that any contracts or
d. The provisions of this section shall not apply to
agreements not submitted for bidding, must still
supplies, materials and equipment purchased
comply with other statutory requirements set forth in
directly by any agency pursuant to subdivisions
the Charter, the Administrative Code and the PPB
(c) and (d) of section three hundred [twenty nine]
Rules. These requirements mandate that contracts
of the charter. [FN8] (emphasis added)
be filed and registered with the NYC Comptroller
By reference to Charter §§ 329(c) and (d), $ 6-101
prior to their implementation.
NYC's
excludes any small purchases such as direct agency
Memorandum, pp. 14-22.
purchase of goods in amounts not exceeding $1,000
in costs per transaction, or, upon the prior approval
Three provisions control in the instant case. First,
of the Commissioner of General Services or the
Charter § 328(a) states:
Mayor's approval, an amount not exceeding $5,000.
Registration of contracts by the comptroller. a.
The $5,000 limit may only be increased with the
No contract or agreement executed pursuant to
additional approval of the Comptroller. These
this charter or other law shall be implemented
increases must be published in the City Record.
until (1) a copy has been filed with the
comptroller and (2) either the comptroller has
Lastly, PPB Rule § 5-07(b) provides that:
registered it or thirty days have elapsed from the
[n]o contract or agreement executed pursuant to
date of filing, whichever is sooner, unless an
the New York City Charter or other law shall be
objection has been filed pursuant to subdivision c
effective until:
of this section, or the comptroller has grounds for
(1) The Comptroller has registered the contract or
not registering the contract under subdivision b of
thirty (30) days have elapsed from the date of
this section. (emphasis added) [FN7]
filing, during which the Comptroller has neither
Thus, all contracts and agreements are effective only
raised an objection pursuant to subdivision (i)
upon filing and registration with the Comptroller.
below nor refused to register the contract pursuant
See Prosper Contracting Corp. V. Board of Educ. of
to subdivision (h) below. (emphasis added)
the City of New York, 73 Misc.2d 280, 341
N.Y.S.2d 196, aff'd, 43 A.D.2d 823, 351
These sections establish that, with the exception of
N.Y.S.2d 402 (1st Dept. 1974).
contracts for goods costing small amounts, clearly
Copr. © West 1997 No claim to orig. U.S. govt. works
CLINTON I LIBRARY PHOTOCOPY
Not Reported in F.Supp.
Page 6
(Cite as: 1994 WL 97048, *7 (S.D.N.Y.))
not the situation in Bolt's case, NYC and its
agreements by municipal agents who act without
agencies cannot unilaterally enter contracts or
authority to contract on behalf of the municipality.
agreements absent approval by or registration with
See McDonald V. Mayor, 68 N.Y. 23 (1867).
the Comptroller.
3. NYC's Public Policy Claim
Recognizing the extent of NYC's discretion and
the need for flexibility, especially under exigent
New York's public policy is clear that municipal
circumstances, does not equate with discarding
contracts or agreements which do not satisfy all of
statutory and regulatory requirements governing
its procurement requirements are neither valid nor
NYC contracts. In accordance with New York law,
enforceable. In New York, a municipality's
even if NYC chose to proceed with Bolt under the
authority to contract is strictly limited statutorily.
Naclerio Contract, before or after the default, the
Henry Modell & Co. V. City of New York, 159
McCoy Letter would not be enforceable unless it
A.D.2d 354, 355, 552 N.Y.S.2d 632, 634 (1st
satisfied all requirements which govern contracts
Dept.) (citing Genesco Entertainment, A Div. of
awarded by other than the competitive sealed
Lymutt Industries, Inc. V. Koch, 593 F.Supp. 743,
bidding process.
747-48 (S.D.N.Y.1984), appeal dismissed, 76
N.Y.2d 845, 559 N.E.2d 1288, 560 N.Y.S.2d 129
Bolt argues, and NYC concedes, that a mere
(1990). The restrictions exist to "protect the public
irregularity or technical violation of statutory
from the corrupt or ill-considered actions of
requirements does not prohibit recovery on a quasi-
municipal officials." Id. It is well established that a
contract basis. See, e.g., Ward V. Kropf, 207 N.Y.
municipal contract which violates express statutory
467, 101 N.E. 469 (1913) (contractors can recover
provisions is invalid. Granada Bldgs., Inc. V. City
under a quasi-contract analysis where local entity
of Kingston, 58 N.Y.2d 705, 708, 444 N.E.2d
failed to comply with legal requirement that the
1325, 1326, 458 N.Y.S.2d 906, 907 (1982)
maximum and minimum cost of improvement be
(citations omitted). Thus, where municipal agents
stated in proposition to electors, in order to avoid
act without authority, any contract formed is
unjust enrichment by local entity for benefit
without legal validity. Id. According to the court
received from actual services provided); Littlefield-
in Modell,
Alger Signal Co. V. County of Nassau, 43 Misc.2d
"where there is a lack of authority on the part of
239, 250 N.Y.S.2d 730 (Sup.Ct. Nassau 1964)
agents of a municipal corporation to create a
(low bidder is entitled to recover for the services it
liability, except by compliance with well-
provided even though contract is invalid because
established regulations, no liability can result
county executive failed to execute it where
unless the prescribed procedure is complied with
defendant received a benefit from the services and
and followed."
there is no offense to public policy). However,
Id., quoting Lutzken V. City of Rochester, 7
even quasi-contract recovery is unavailable where
A.D.2d 498, 501, 184 N.Y.S.2d 483 (4th
"the making of the contract flouted a firm public
Dept. 1959).
policy or violated a fundamental statutory restriction
upon the powers of the municipality or its
Moreover, to accord legal validity to a contract
officers.... Cassella V. City of Schenectady, 281
which fails to comply with the statutory mandates is
A.D. 428, 120 N.Y.S.2d 436, 440 (3rd Dept. 1953)
contrary to public policy. As stated in Genesco,
(citing McDonald V. Mayor, 68 N.Y. 23, 28; Seif
[t]o allow recovery under a contract which
V. City of Long Beach, 286 N.Y. 382, 36 N.E.2d
contravenes [statutory restrictions on a municipal
630 (1941); Brown V. Mt. Vernon Housing Auth.,
corporations's power to contract] gives vitality to
279 A.D. 794, 109 N.Y.S.2d 392 (2d Dept. 1952);
an illegal act and grants the municipality power
6 WILLISTON, CONTRACTS (rev. Ed.) § 1786A;
which it does not possess "to waive or disregard
2 Restatement, Contracts § 598).
requirements which have been properly
determined to be in the interest of the whole. "[]
*8 The Bolt case is not a case of a mere technical
Genesco, 593 F.Supp. at 747-48 & n. 14, quoting
failure in executing an otherwise valid contract. As
Lutzken, 7 A.D.2d at 499, 184 N.Y.S.2d at 486.
discussed below, the Bolt contract clearly violates
New York's public policy against recognizing
The alleged agreement with NYC contravenes
Copr. 0 West 1997 No claim to orig. U.S. govt. works
CLINTON LIBRARY PHOTOCOPY
Not Reported in F.Supp.
Page 7
(Cite as: 1994 WL 97048, *8 (S.D.N.Y.))
public policy because it does not comply with
for the unauthorized acts of its agents ..., we have
NYC's registration and filing requirements, critical
frequently reiterated that estoppel is unavailable
components of a process designed, in part, to avoid
against a public agency.") (citations omitted).
corruption, to ensure sufficient appropriations for
municipal contracts and to protect against fiscal
The estoppel rule is based, in part, on New
excess. Cf. Cassella V. City of Schenectady, 281
York's public policy which charges those bargaining
A.D. 428, 120 N.Y.S.2d 436, 440 (3rd Dept. 1953)
with municipalities with the burden of determining
(plaintiff cannot recover in quasi-contract where
the contracting authority of municipal
local Civil Service Commission failed to certify
representatives. Those dealing with NYC must
plaintiff for appointment as fire surgeon, where
ascertain the extent of the municipal agent's
invalidity is based on irregularity or technical
authority and must be aware of the statutory and
violation because contract flouts firm public policy,
regulatory requirements applicable to municipal
and contract violates a fundamental statutory
contracts. McDonald, 68 N.Y. 23. A party
restriction upon powers of municipality or its
bargains or contracts with a municipality at its own
officers). In the Bolt case, the Comptroller's
risk and bears the burden of being informed of the
oversight is exactly the type of monitoring of a
applicable procedures and requirements. Modell,
financially strapped project envisioned by the
159 A.D.2d 354, 552 N.Y.S.2d at 634; Gill, 152
legislature, for, as the parties concede, the Project
A.D.2d at 914, 544 N.Y.S.2d at 395 (citing 27 NY
had exceeded its expected completion schedule and
JUR 2D, Counties, Towns and Municipal
expenses. Thus, concerns over financial viability,
Corporations, §§ 1217, 1218). Cf. Parsa V. State
which are fundamental aspects of municipal
of New York, 64 N.Y.2d 143, 147, 474 N.E.2d
contracts, were practical realities of the Project.
235, 237, 485 N.Y.S.2d 27, 29 (1984) ("A party
Thus, the manner in which the Bolt contract was
contracting with the State is chargeable with
formed undermines the very purpose of the
knowledge of the statutes which regulate its
municipal law in failing to have the Comptroller, the
contracting powers and is bound by them.")
entity responsible for the monitoring of the fiscal
(citations omitted). As clearly stated by the First
integrity of NYC projects, certify and approve the
Department, "those dealing with municipal agents
agreement.
must ascertain the extent of the agents' authority, or
else proceed at their own risk." Modell, 159
B. Bolt's Estoppel Claims and Request for Relief
A.D.2d 354, 552 N.Y.S.2d at 634, citing Genesco,
593 F.Supp. 743.
*9 Bolt contends that since the McCoy Letter is
not tainted by any impropriety chargeable to Bolt,
Bolt is responsible for knowing the extent of
however, that I should recognize NYC's promises
DOT's authority, as well as the limits of that
and assurances for payment of the Project materials.
authority in entering any agreements on behalf of
Bolt maintains that it acted completely in good faith
NYC. See id. In this case, as already fully
and upon reliance of NYC's assurances when it
discussed, the statutory and regulatory prerequisites
withdrew liens against Naclerio and Comstock, and
were never satisfied. Those requirements are clearly
dismissed third-party claims against NYC in
set forth in the Charter, Administrative Code and
pending litigation. Bolt's allegations, in essence,
the PPB Rules--public documents which are
are complaints that NYC acted in a devious manner
available to those who contract with NYC agencies
in seeking Bolt's abandonment of these legal claims
and employees. The alleged promises or assurances
and that, therefore, NYC should be estopped from
by NYC contained in the McCoy Letter are not
asserting mandatory compliance with the statutory
enforceable merely because Bolt claims it was
and regulatory prerequisites as a defense to this
treated unfairly. Bolt may seek payment from other
litigation.
responsible parties, such as Naclerio or Comstock.
What it cannot do is demand that NYC pay for
Generally, estoppel is not available in New York
Project materials, pursuant to an agreement which is
against public entities for the unauthorized acts of
not valid under the law, or as a public policy matter.
their agents. Granada, 58 N.Y.2d at 708, 444
N.E.2d at 1326, 458 N.Y.S.2d at 907 ("because a
*10 Moreover, under New York law, a party
governmental subdivision cannot be held answerable
cannot recover on an invalid contract or in quantum
Copr. © West 1997 No claim to orig. U.S. govt. works
CLINTON LIBRARY PHOTOCOPY
Not Reported in F.Supp.
Page 8
(Cite as: 1994 WL 97048, *10 (S.D.N.Y.))
meruit. S.T. Grand, Inc. V. City of New York, 32
Naclerio or the surety, and then to Bolt. This
N.Y.2d 300, 305, 298 N.E.2d 105, 108, 344
"harm" to the taxpayers is exactly what the
N.Y.S.2d 938, 942 (1973). New York recognizes
municipal legislation intends to avoid.
an exception to this harsh rule of complete forfeiture
in cases where the plaintiff "entered into the contract
Also, unlike Vrooman, NYC did not benefit from
in good faith, the contract does not violate public
essential services provided by the plaintiff. Indeed,
policy, and the circumstances indicate that the
it is unclear how much of the Bolt materials were
municipality would be unjustly enriched." Gill,
actually provided to the Project. Lastly, I cannot
Korff, and Associate, Architects and Engineer, P.C.
agree that the concern in Vrooman over judicially
V. County of Onondaga, 152 A.D.2d 912, 914, 544
encouraged official circumvention of statutory
N.Y.S.2d 393, 395 (4th Dept.1989) (citing
requirements, is relevant to the instant case. Since
Vrooman V. Village of Middleville, 91 A.D.2d 833,
there was no clear "benefit" which accrued to NYC
834-35, 458 N.Y.S.2d 424 (4th Dept. 1982), appeal
or DOT, this case does not present a situation
denied, 58 N.Y.2d 610, 449 N.E.2d 427, 462
wherein illegal or inappropriate conduct results in
N.Y.S.2d 1028 (1983). While Bolt relies on cases
unjust enrichment or a windfall for the municipality.
which have held that recovery is possible where
these mitigating factors exist, these factors do not
*11 The other cases cited by Bolt are similarly
exist in the case before me.
unconvincing and distinguishable. See Shaddock V.
Schwartz, 246 N.Y. 288, 294, 158 N.E.2d 872, 874
For example, in Vrooman V. Village of
(1927) (Cardozo, C.J.) (plaintiff may recover based
Middleville, 91 A.D.2d 833, 834-35, 458 N.Y.S.2d
on a moral obligation to pay the reasonable value for
424, 426 (4th the court held that the
work performed, despite drafting error in its bid for
plaintiff could recover, even though the contract was
public contract, where there is no injury to the
unenforceable for failure to comply with a statutory
City's fisc and the City actually benefited by
requirement that the Commissioner of Health be a
accepting the bid since it was the lowest); Gladsky
party to the contract, because there was no violation
V. City of Glen Cove, 563 N.Y.S.2d 842, 846 (2d
of public policy and the village benefited from
Dept. 1991) (plaintiff may recover, pursuant to its
plaintiff's services. The court concluded that the
agreement with the municipality, for expenses, such
contract did not violate the public policy against
as title examination costs, incurred in reliance on the
extravagance and collusion because the State had
contract for sale of real property); Albert Elia Bldg.
mandated the local project and because the services
Co. V. New York State Urban Development Corp.,
provided by the plaintiff "were essential to
54 A.D.2d 337, 344-45, 388 N.Y.S.2d 462, 468
effectuate [the State's] directive." Id. at 426. To
(4th Dept. 1976) (where competitive bidding statutes
excuse the local entity from any liability, where the
were violated, contractor's good faith and lack of
local entity clearly benefited from plaintiff's
fraud, collusion or wrongdoing by the State
services, would "encourage disregard of the
mitigates against the harsh remedy of contractor's
statutory safeguards by municipal officials." Since
full forfeiture and, instead, contractor must refund
there was no harm to the taxpayers the court
the difference between the costs for work done and
determined that recovery was appropriate. [FN9]
an estimated bidding price for the work); Galvin V.
New York City Housing Auth., 78 Misc.2d 312,
The Bolt case is different. As noted previously,
315, 356 N.Y.S.2d 942, 946 (Sup.Ct. N.Y.
the agreement here violates a clearly established
Co.1974) (absent collusion between Housing
public policy. The filing and registration
Authority and contractor, Housing Authority may
requirements were essential checks on the financial
negotiate modifications to contract without public
stability of the Project--a Project financially
bidding for a new contract).
overextended and with a tenuous fiscal status--to
ensure that NYC and the taxpayers where not
Bolt's unsupported allegations that NYC acted in a
overpaying for services or committing otherwise
deceptive manner to induce it to release NYC,
unavailable City dollars. In direct contrast to
Naclerio and Comstock from liability does not alter
Vrooman, the instant case presents a situation where
my decision. In its opposing memorandum, Bolt
recognizing the municipal agreement could result in
accuses DOT officials of acting "somewhat
NYC paying twice--first to the main contractor
deviously, it now appears" in directing Bolt to abide
Copr. West 1997 No claim to orig. U.S. govt. works
CLINTON LIBRARY PHOTOCOPY
Not Reported in F.Supp.
Page 9
(Cite as: 1994 WL 97048, *11 (S.D.N.Y.))
by the promises in the McCoy Letter, and
The claims against the City of New York are
encouraging it to withdraw its claim against NYC in
separate and distinct from the claims involving
the Ohio lawsuit. Bolt also charges that, in direct
Spring City, and there being no just reason for delay
reliance of NYC's guarantees of payment, Bolt
of entry of a final judgment, I order that final
released liens on the purchase orders against
judgment be entered in favor of defendant the City
Naclerio and Comstock. See Hallenbeck Affidavit,
of New York and that the Order be certified
11 27-28. NYC raises serious questions as to the
pursuant to Fed.R.Civ.P. 54(b).
veracity and accuracy of these claims, and argues
that what Bolt is seeking in this litigation is lost
so ORDERED.
profits, not the costs for goods supplied to NYC.
For example, NYC states that Bolt has received a
FN1. Judge Cornelius Blackshear of the United
$100,000 payment from Comstock for supplies for
States Bankruptcy Court for the Southern District of
the Project and that NYC has not received any items
New York dismissed Naclerio's bankruptcy petition
for which Bolt now seeks payment.
on January 5, 1993.
Assuming, as 1 must on a motion to dismiss, that
FN2. Plaintiff claims that it provided defendant
NYC acted in a deceptive manner, Bolt's allegations
Spring City certain crucial information about the
are still without sufficient support to withstand the
design of its materials and the bid price, which
motion to dismiss. [FN10] Bolt's conclusory
Spring City then improperly used to obtain the work
statements setting forth a tale of deceit fail to set
assignment under the Contract. Amended
forth conduct so unconscionable on the part of NYC
Complaint 11 23-26. Defendant Spring City is not
so as to warrant avoiding the usual prohibition on
a party to the instant motion and I do not consider
estoppel in cases involving municipalities. As
the claims against it at this time.
discussed above, this is certainly not the case where
the actions of the municipal representatives are so
FN3. The Contract established that once NYC
egregious that they have tainted the entire
declared Naclerio in default, NYC could complete
contractual bargaining process, or where the
the contract without proceeding through the
municipality is accorded a windfall based on
competitive sealed bidding process. NYC admitted
deceptive actions by its representatives. [FN11]
that in the case before me, it had, in fact, chosen to
complete the Project by submitting it directly to the
*12 I also note that, although Bolt has made
surety. Transcript of October 23, 1993 Hearing,
unsupported allegations of injury and loss attendant
pp. 3-4, 9. Consequently, any argument that
to its withdrawal of legal claims, based on NYC's
bidding for the Bolt contract was mandatory is
false statements, Bolt's submissions suggest
without support.
otherwise. For example, Bolt's withdrawal of the
liens against Naclerio and Comstock is without
FN4. Defendant NYC argues, however, that even if
prejudice to refile, and, apparently, since the suit is
one assumes the existence of a valid contract
still pending in Ohio, there has not been a judgment
between NYC and Bolt, the only appropriate
issued against Bolt. See Hallenbeck Affidavit,
permissible interpretation of the McCoy Letter is
Exhibit G.
that NYC promised to pay Naclerio for delivered
goods or, in the case of a default, to pay Bolt, for
Conclusion
unpaid, undelivered materials.
For the reasons stated, defendant the City of New
FN5. In November 1989, the New York City
York's motion to dismiss the amended complaint for
Charter abolished the Board of Estimate, effective
failure to state a cause of action as a matter of law,
January 1990. Under the 1989 Charter, New York
as against the City of New York, is GRANTED and
City's Mayor and appointed officials approve
the Clerk of the Court is directed to enter judgment
awards of contracts which have not gone through
dismissing the amended complaint against this
the competitive bidding process. This Charter
defendant. The amended complaint otherwise stands
provision predated NYC's September 1991 McCoy
against the remaining defendant, Spring City.
Letter to Bolt.
Copr. () West 1997 No claim to orig. U.S. govt. works
CLINTON LIBRARY PHOTOCOPY
Not Reported in F.Supp.
Page 10
(Cite as: 1994 WL 97048, *12 (S.D.N.Y.))
FN6. General Municipal Law § 103.1 has been
FN11. I do not decide here whether Bolt reasonably
amended to increase the contractual price of
relied on NYC's assurances. Arguably, any such
contracts subject to the bidding process. The last
reliance on NYC's statements as to payment in
such amendment, effective January 1, 1992, raised
accordance with the McCoy Letter is not reliable
the contract amount to $20,000 for public contracts
because Bolt was bound to ascertain the authority to
and $10,000 for purchase expenditures. This
make such promises and should have known that
amendment does not affect the case before me since
the alleged agreement set forth in the McCoy Letter
its effective date postdates the formation of the
was invalid for failure to comply with the legal
contracts at issue here and the outstanding debts to
requirements discussed fully in this Opinion.
Bolt for the February 1988 and October 1991
purchase orders clearly exceed the monetary
END OF DOCUMENT
requirements under the amendment.
FN7. Section 328 became effective under the 1989
Charter on September 1, 1990. Subdivisions (b)
and (c) do not apply to the case before me.
FN8. According to the Charter's historical notes, §
344 was renumbered § 329, effective September 1,
1990. However, § 6-101(d) of the Administrative
Code continues to refer to Charter §§ 344(c) and
(d) rather than § 329. For purposes of clarity, my
Opinion refers to § 329 not 344.
FN9. The court also noted that, by ordering the
preparation of the plans for the project and
subsequently approving the plaintiff's plans, the
Commissioner of Health had acted sufficiently in
compliance with the statutory requirement to be a
party to the contract. Vrooman V. Village of
Middleville, 91 A.D.2d 833, 835, 458 N.Y.S.2d
424, 426 (4th Dept.1982).
FN10. On the present record, Bolt's allegations of
intentional deceptive conduct by NYC appear
suspect. Notably, Bolt's submissions to this Court
contradict its claim that NYC deceived Bolt into
withdrawing legal action against NYC. The
correspondence from Bolt's vice president, Gilman
J. Hallenbeck, for example, fails to lend credence
to Bolt's claims of fraudulent inducement regarding
the Ohio lawsuit. Bolt Electric had New York City
dismissed as a defendant [in the Ohio lawsuit] as a
courtesy since the Corporation Council had assured
Bolt that New York City was aware of the problem
Bolt was experiencing and the City was going to do
everything in its power to solve the problem.
Gilman J. Hallenbeck Affidavit, Exhibit G,
Hallenbeck's Letter to Commissioner Chris Ann
Halpin, Department of Highways, dated October 1,
1992.
Copr. (1) West 1997 No claim to orig. U.S. govt. works
CLINTON LIBRARY PHOTOCOPY
Not Reported in F.Supp.
Page 1
(Cite as: 1995 WL 422089 (S.D.N.Y.))
EUROPEAN AMERICAN BANK, Appellant,
forth in § 523(a), including debts for fraud, are
V.
excepted from discharge in bankruptcy. Section
Dolores BENEDICT, a/k/a Dolores Cogliano,
523(c), however, specifies that some of these
Appellee.
nondischargeable debts, including debts for fraud,
will be discharged unless the creditor timely
94 CIV. 7110 (SS).
requests the bankruptcy court to determine the
dischargeability of the debt. In order to conduct
United States District Court, S.D. New York.
discovery to test whether Benedict had procured the
loan fraudulently, EAB timely moved to extend its
July 17, 1995.
time to file a complaint under § 523(c). The
bankruptcy court granted a 30-day extension.
Helfand & Helfand, New York City, for
appellant; Bruce H. Babitt, of counsel.
On or about September 1, 1993, appellee
converted her Chapter 11 case to one under Chapter
Finkel Goldstein Berzow & Rosenbloom, New
7. The conversion notice to creditors indicated that
York City, for appellee; Neal M. Rosenbloom,
the new deadline under Bankruptcy Rule 4007(c) for
Gary I. Selinger, of counsel.
the filing of complaints to contest the
dischargeability of debts was January 10, 1994.
AMENDED OPINION AND ORDER [FN1]
[FN3]
SOTOMAYOR, District Judge.
EAB maintains that despite its repeated attempts
from September through November 1993 to obtain
*1 European American Bank ("EAB" or
documents and examine appellee, Benedict refused
"appellant") appeals from an Order dated July 21,
to comply with EAB's discovery demands. EAB
1994 (the "July Order") by the Honorable Francis
moved on November 18, 1993 to compel discovery
G. Conrad of the United States Bankruptcy Court
and to require Benedict's attendance at a Rule 2004
for the Southern District of New York. Pursuant to
examination, or alternatively, to dismiss the
Fed.R.Civ.P. 60(b) and Fed.R.Bankr.P. 9024, the
bankruptcy case (the "November Motion"). The
July Order vacated an earlier Order of the
motion's return date was set for December 20,
bankruptcy court dated March 11, 1994 (the "March
1993, three weeks before the January 10, 1994 Rule
Order"), which had extended EAB's time to file a
4007(c) deadline. At the request of Benedict's
complaint against Dolores Benedict ("Benedict" or
counsel, however, the return date of the motion was
"appellee") declaring Benedict's guarantee
adjourned until February 7, 1994. EAB did not
obligation to EAB nondischargeable under § 523 of
move for an extension of time to file its complaint
the Bankruptcy Code (11 U.S.C. § 523). [FN2] In
objecting to the dischargeability of the debt owed to
addition, the July Order barred EAB from
it.
prosecuting a complaint objecting to Benedict's
discharge or to the dischargeability of the
On January 11, 1994, the day after the 4007(c)
obligation, and discharged appellee's obligation to
deadline passed, appellant and appellee met.
EAB. For the reasons discussed below, I affirm the
Benedict agreed to reaffirm EAB's debt under §
July Order of the bankruptcy court.
524(c) (the "Reaffirmation"), and stipulated to
extend EAB's time to object to the discharge of its
BACKGROUND
debt should she later rescind the Reaffirmation (the
"Stipulation"). Upon being advised of the
At issue in this appeal is whether EAB is barred
Reaffirmation, the bankruptcy court scheduled a
from challenging the dischargeability of a loan it
hearing for February 7, 1994, later adjourned to
made to appellee's company, Cogliano Benedict
March 3, 1994. After holding a Reaffirmation
Photographics Inc., which loan Benedict personally
Hearing of the nonrepresented debtor, Judge Conrad
guaranteed. Benedict filed a Chapter 11 bankruptcy
indicated, without specifying his reasons on the
petition on April 13, 1993; the deadline to file
record, that he would not approve the Reaffirmation
complaints objecting to the discharge of debts under
or Stipulation. He also asked whether a meeting of
$ 523(c) was set for August 23, 1993. Debts set
creditors had been held and whether the 60 days had
Copr. © West 1997 No claim to orig. U.S. govt. works
CLINTON LIBRARY PHOTOCOPY
Not Reported in F.Supp.
Page 2
(Cite as: 1995 WL 422089, *1 (S.D.N.Y.))
expired with respect to objections to discharge.
need for additional time in which to secure
EAB's counsel replied, "It will expire, I believe,
documents and conduct a $ 2004 examination should
next week sometime." (Tr. March 3, 1994 at 3).
have been apparent to the bankruptcy court.
Judge Conrad directed EAB's counsel to submit an
Benedict responds that the bankruptcy court could
order extending EAB's time to file a complaint
not have construed the November Motion as a
under § 523 through June 20, 1994, and signed the
request for an extension to file a complaint, because
Order on March 11, 1994.
a request for a 4007(c) extension must be explicit.
*2 Appellee thereafter obtained new counsel, who
EAB relies on In re Sherf, 135 B.R. 810
objected to the March Order, contending that it was
(Bankr.S.D.Tex.1991) and In re Lambert, 76 B.R.
untimely as it was entered after January 10, 1994.
131 (E.D.Wis.1985), for its position that the
New counsel moved to have the March Order
bankruptcy court should have construed the
vacated as it was signed under a mistake of fact. In
November Motion as implicitly including a motion
addition, appellee rescinded the Reaffirmation and
for an extension of time; Benedict relies on In re
Stipulation. At a hearing held on June 28, 1994,
Kennerley, 995 F.2d 145 (9th Cir. 1993), to counter
Judge Conrad agreed that he had signed the March
that position. These cases are not binding authority
Order extending EAB's time to file a complaint
on this court, although they are apparently the only
under the mistaken impression that the deadline for
precedent that discusses whether motions that do not
filing had not already passed. On July 21, 1994,
explicitly request extensions under Rule 4007(c)
Judge Conrad vacated the March Order pursuant to
may be construed as including such requests.
Fed.R.Civ.P. 60(b) [FN4] and ordered EAB not to
file and prosecute a complaint objecting to
In Sherf, 135 B.R. 810, creditors filed an
appellee's discharge or the dischargeability of the
"objection" to dischargeability, which was served on
obligation. In SO doing, the bankruptcy court
the debtors. Thereafter, the clerk's office informed
rejected EAB's argument that its motion to compel
the creditors that they needed to file a complaint
discovery should have been deemed a motion to
objecting to discharge, not merely an "objection."
extend time under 4007(c). This appeal followed.
The creditors then timely served a complaint
objecting to debtor's discharge, but neglected to file
DISCUSSION
the complaint properly because they did not obtain a
separate case number or pay a filing fee. The
This court has jurisdiction to hear this appeal from
creditors were not informed of their mistakes until
the bankruptcy court pursuant to 28 U.S.C. §
after the Rule 4007(c) deadline. The bankruptcy
158(a). On an appeal from an order of the
court held that a pleading filed before the Rule
bankruptcy court, the bankruptcy court's legal
4007(c) bar date that puts the debtor on notice as did
conclusions are reviewed de novo and its findings of
the creditor's "objection" could be treated as a
fact are accepted unless clearly erroneous. See,
motion to extend time for filing a complaint. 135
e.g., In re Manville Forest Products Corp., 896
B.R. at 815.
F.2d 1384, 1388 (2d Cir. 1990).
*3 Unlike the "objection" and the served but not
Appellant argues that the bankruptcy court erred
filed complaint in Sherf, however, the November
in two ways: first, by reading EAB's November
Motion to compel discovery here did not mention
Motion to compel discovery as not including a
the filing of a complaint under § 523, nor did it
motion to extend the Rule 4007(c) deadline; and
even mention objections to discharge or
second, by refusing to recognize the Reaffirmation
dischargeability. The November Motion did not
and Stipulation agreed to by the parties, and later
give any notice to appellee or the court as did the
rescinded by appellee.
objection and the actual complaint served but not
filed in Sherf.
1. EAB's November Motion
In the second case relied on by appellant,
EAB argues that a request for an extension of time
Lambert, 76 B.R. 131, creditors moved the
to file a § 523 complaint was implicit in its
bankruptcy court for relief from a stay to permit
November Motion to compel discovery, because its
them to pursue misrepresentation claims in state
Copr. © West 1997 No claim to orig. U.S. govt. works
CLINTON LIBRARY PHOTOCOPY
Not Reported in F.Supp.
Page 3
(Cite as: 1995 WL 422089, *3 (S.D.N.Y.))
court. Included with the motion for termination of
motion (the "Motion") and proposed order of
the stay was a copy of a complaint the creditors
European American Bank ("EAB") by its counsel,
intended to file in state court. The court construed
Helfand & Helfand, will move this court for an
the motion for relief from a stay as one for an
order pursuant to Rule 45 of the Federal Rules of
extension of time for filing a complaint to determine
Civil Procedures [sic] made applicable by Rules
dischargeability of a debt and allowed the state court
2004, 2005 and 9016 of the Federal Rules of
action to proceed. In upholding the ruling by the
Bankruptcy Procedure, to compel the debtor to
bankruptcy court, the district court noted that the
permit discovery and require the Debtor to appear
order was "consistent with the principles behind the
and be examined and/or in the alternative to
bankruptcy law, which preclude a debtor from
dismiss the Debtor's bankruptcy case pursuant to
escaping liability for fraudulent actions." 76 B.R.
Bankruptcy Code $ 707(a)(1) and Bankruptcy
at 132. The district court discussed no caselaw in
Rule 2003.
its decision, and the decision was not appealed to the
*4 Given the particularity of this notice of motion,
Seventh Circuit.
EAB's contention that the bankruptcy court should
have assumed that the motion sought an extension of
The Ninth Circuit, however, criticized Lambert in
time to object to dischargeability is unreasonable.
Kennerley, 995 F.2d 145. In Kennerley, the
Moreover EAB, a bank represented by counsel, had
bankruptcy court had barred a fraud action from
brought a specific motion for a deadline extension in
proceeding against the debtor because the creditor
the superseded Chapter 11 case; Judge Conrad had
had failed to file a timely complaint of
no reason to believe that EAB would not do the
nondischargeability, and the district court had
same in the Chapter 7 action, if EAB was seeking
reversed the bankruptcy court's order. The Ninth
that relief. Finally, the November Motion was filed
Circuit reversed the district court, rejecting the
approximately seven weeks in advance of the
creditor's argument that his motion to lift the
4007(c) deadline; there was no reason for the
automatic stay should be considered a motion to
bankruptcy court to think that counsel for EAB
extend the deadline under Rule 4007(c). Quoting
would not subsequently file a timely motion for an
what it termed the "well-reasoned decision" of the
extension if it perceived a need to do so. See
bankruptcy court, the Ninth Circuit emphasized,
Kennerley, 995 F.2d 145, 147 (9th Cir. 1993)
'[Creditor's] motion for relief from the automatic
(creditor's motion for relief from automatic stay
stay did not request an extension of the deadline; it
should not be considered a request for an extension
did not mention the deadline' In fact, the motion
of the deadline; "[a]t the time the motion was filed,
does not even mention Rule 4007 or § 523(c)." Id.
the deadline was some six weeks in the future, and
at 147. In addition, the Kennerley court noted that
plenty of time remained for [creditor] to file a
Lambert conflicts with Ninth Circuit caselaw, which
timely dischargeability complaint").
strictly construes Rule 4007(c). Id.
The Ninth Circuit's reasoning in Kennerley is also
I am persuaded by the reasoning in Kennerley.
consistent with the conclusion of other circuits that
Like the motion in Kennerley, EAB's November
have held Rule 4007(c) to be a strict statute of
Motion did not request an extension of the
limitations. See, e.g., In re Themy, 6 F.3d 688,
dischargeability bar date, nor did it mention Rule
689 (10th Cir. 1993) (Rules 4007(c) and 9006(b)(3)
4007 or § 523(c). The bankruptcy court had no
"prohibit a court from sua sponte extending the time
cause to scrutinize the November Motion to
in which to file dischargeability complaints"); In re
conclude that EAB might be asking for other forms
Alton, 837 F.2d 457, 459 (11th Cir.1988) ("There
of relief it had not requested, given the specificity of
is 'almost universal agreement that the provisions of
the notice of motion, which reads in part:
F.R.B.P. 4007(c) are mandatory and do not allow
NOTICE OF MOTION FOR AN ORDER TO
the Court any discretion to grant a late filed motion
COMPEL DISCOVERY AND REQUIRE
to extend time to file a dischargeability complaint.'
DEBTOR'S
ATTENDANCE
AT
?):
In re Pratt, 165 B.R. 759, 761
EXAMINATION AND/OR IN THE
(Bankr.D.Conn.1994).
ALTERNATIVE TO DISMISS THE DEBTOR'S
BANKRUPTCY CASE
I too find the "strict statute of limitations" view of
PLEASE TAKE NOTICE that upon the annexed
Rule 4007(c) to be consistent with the language of
Copr. © West 1997 No claim to orig. U.S. govt. works
CLINTON LIBRARY PHOTOCOPY
Not Reported in F.Supp.
Page 4
(Cite as: 1995 WL 422089, *4 (S.D.N.Y.))
the Rule and its legislative history. The current
facts in Greene, however, are decidedly different
Bankruptcy Rules, promulgated in 1983 and
from the situation here.
amended thereafter, eliminated the discretion of the
bankruptcy courts in setting dischargeability
The Greene court extended the filing deadline for
deadlines. For example, former Rule 409(a)
a creditor who was neither included on the creditor
provided that the bankruptcy court set the deadline
list nor had actual notice of the bankruptcy, unlike
for filing a complaint objecting to dischargeability
EAB, who was properly notified of appellee's filing
"not less than 30 days nor more than 90 days after
of bankruptcy. Moreover, the Greene court was
the first date set for the first meeting of
persuaded that the appellants before it were not
creditors... Current Rule 4007 removes the
honest debtors, but rather, had attempted to use the
discretion of the bankruptcy court by statutorily
process "for purposes other than a good-faith effort
fixing a 60 day period to file dischargeability
to secure a fresh start." Id. at 88. Here, on the
complaints. In addition, the bankruptcy court's
other hand, despite repeated cries by EAB of foul
discretion to extend deadlines also has been
play on the part of appellee, Judge Conrad stated
eliminated: Former Rule 409 provided that the
when granting appellee's motion to vacate the
bankruptcy court "may for cause shown, on its own
March Order, "The facts here cannot lead me to the
initiative or on application of any party in interest,
conclusion that counsel for the bank has made here,
extend the time for filing a complaint objecting to
that the Debtors have some sort of unclean hands."
discharge." Current Rules 4007 and 9006 eliminate
Tr. June 28, 1994 at 26. As the district court is
the court's authority to extend deadlines sua sponte;
bound to the bankruptcy court's findings of fact
Rule 4007(c) provides that, in order to extend the
unless they are clearly erroneous, see, e.g., In re
bar date, "[t]he motion shall be made before the
Manville Forest Products Corp., 896 F.2d 1384,
time has expired," and Rule 9006(b)(3) provides
1388 (2d 1990), I accept Judge Conrad's finding
that enlargement of time under 4007(c) may be
of the lack of bad faith on the part of appellee.
obtained "only to the extent and under the
conditions stated in those rules." See, e.g., In re
EAB further argues that its earlier deadline
Klein,
64
B.R.
372,
374-75
extension in appellee's Chapter 11 case and its
(Bankr.E.D.N.Y.1986).
discovery requests put Benedict on notice that EAB
intended to object to the dischargeability of the
*5 While the limitations on a court's ability to set
obligation owed it. It is important to bear in mind
and extend deadlines does not directly address
that notice is not the only purpose of the Bankruptcy
appellant's argument that its November Motion
Rules. Instead, the Rules are intended to serve other
should be construed as including a request for an
goals, among them, "the prompt closure and
extension, I agree with the reasoning in Kennerley
distribution of the debtor's estate," Pioneer, 113
that a broad reading of the November Motion that
S.Ct. at 1495, and the promotion of "the expeditious
would construe a motion to compel discovery as a
and efficient administration of bankruptcy cases by
motion to extend the deadline for filing a
assuring participants in bankruptcy proceedings
dischargeability complaint would be inconsistent
'that, within the set period of 60 days, they can
with the overall strict interpretation which should be
know which debts are subject to an exception to
accorded to Rule 4007(c). [FN5]
discharge,' Rockmacher, 125 B.R. at 384 (quoting
In re Sam, 894 F.2d 778, 781 (5th Cir. 1990)).
Appellant further argues that the bankruptcy court
While the operation of the Rules may lead in some
should have extended the dischargeability complaint
cases to harsh results, "[t]he bankruptcy system
deadline under its general authority granted in §
simply could not operate if every deadline, which by
105(a) of the Code, which allows the court to act to
its nature can cut off someone's lawful rights, could
prevent an abuse of the bankruptcy process.
be contested on equitable grounds." In re Collins,
Appellant relies on In re Greene, 103 B.R. 83
173 B.R. 251, 254 (Bankr.D.N.H.1994).
(S.D.N.Y.1989), aff'd without opinion, 904 F.2d
34 (2d Cir. 1990), cert. denied, 498 U.S. 1067
2. Rescission of Reaffirmation and Stipulation
(1991), in which the district court upheld the
bankruptcy court's use of § 105(a) to extend the
*6 EAB also argues that the Bankruptcy Court
deadline for objections to dischargeability. The
acted arbitrarily in overlooking the Reaffirmation
Copr. 4) West 1997 No claim to orig. U.S. govt. works
CLINTON LIBRARY PHOTOCOPY
Not Reported in F.Supp.
Page 5
(Cite as: 1995 WL 422089, *6 (S.D.N.Y.))
and Stipulation entered into by the parties on
upon such terms as are just, the court may relieve a
January 11, 1994, the day after the deadline passed
party or party's legal representative from a final
for EAB to file an objection to appellee's discharge
judgment, order, or proceeding for the following
or the dischargeability of debts owed it. In the
reasons: (1) mistake
Stipulation, appellee agreed to extend EAB's time to
object to dischargeability should she rescind the
FN5. Appellant does not argue that his failure to
Reaffirmation. Benedict later rescinded both the
file for an extension of the Rule 4007(c) deadline
Reaffirmation and Stipulation.
was a result of "excusable neglect," presumably
because most courts have interpreted Rule
EAB's argument is specious. It provides no legal
9006(b)(3) as eliminating the possibility that a
authority for the novel proposition that litigants,
deadline may be extended under 4007(c) because of
through a stipulation, can bypass a court's exercise
excusable neglect. See, e.g., In re Rockmacher,
of its obligation to decide whether cause exists to
125 B.R. 380, 383 (S.D.N.Y.1991) (when dealing
extend a statutorily controlled deadline. See, e.g.,
with extensions of time under Rule 4007(c), "the
In re Snyder, 102 B.R. 874, 875
excusable neglect standard of rule 9006(b)(1) is
(Bankr.S.D.Fla.1989) ("[T]his court will not permit
explicitly excepted from consideration by rule
litigants to bind this court, by bargaining for delay
9006(b)(3)"); In re Savage, 167 B.R. 22, 27
beyond that specified by the Rules and the Code").
(Bankr.S.D.N.Y.1994) (Bankruptcy Rule 9006(b)(3)
Judge Conrad did not abuse his discretion by
does not make allowance for excusable neglect); In
refusing to recognize the Stipulation.
re
Figueroa,
33
B.R.
298,
300
(Bankr.S.D.N.Y.1983) ("It is clear that by
CONCLUSION
prohibiting that which it formerly permitted,
Congress intended to no longer subject the
For the reasons stated above, I affirm the Order of
precininent fresh start policy to the uncertainties of
the bankruptcy court dated July 21, 1994, case no.
excusable neglect in failing to timely object to
93-B-41894 (FGC), and direct the Clerk of the
discharge of a claim"). Accord Pioneer Inv. Serv.
Court to enter judgment accordingly.
Co. V. Brunswick Assoc. Ltd. Partnership, 113
S.Ct. 1489, 1495 (Supreme Court explained that
so ORDERED.
existence of excusable neglect doctrine for filing
late claims in Chapter 11 cases but not in Chapter 7
FN1. The substance of this Amended Opinion and
cases reflects the different policies of the two
Order is identical to the Opinion and Order issued
chapters: "Whereas the aim of a Chapter 7
on June 26, 1995; the changes in this Amended
liquidation is the prompt closure and distribution of
Opinion and Order are technical only and do not
the debtor's estate, Chapter 11 provides for
alter the legal conclusions of my previous Order.
reorganization with the aim of rehabilitating the
debtor and avoiding forfeitures by creditors.").
FN2. Unless otherwise specified, all statutory
references are references to the Bankruptcy Code,
END OF DOCUMENT
Title 11 of the United States Code. All references
to "Rules" are references to the Federal Rules of
Bankruptcy Procedure.
FN3. Rule 4007(c) mandates: A complaint to
determine the dischargeability of any debt pursuant
to § 523(c) of the Code shall be filed not later than
60 days following the first date set for the meeting
of creditors On motion of any party in interest,
after hearing on notice, the court may for cause
extend the time fixed under this subdivision. The
motion shall be made before the time has expired.
FN4. Fed.R.Civ.P. 60(b) provides: On motion and
Copr. © West 1997 No claim to orig. U.S. govt. works
CLINTON LIBRARY PHOTOCOPY
SOTOMAYOR RESPONSE TO SENATE QUESTIONNAIRE
PART TWO, QUESTION 5
CLINTON LIBRARY PHOTOCOPY
Withdrawal/Redaction Marker
Clinton Library
DOCUMENT NO.
SUBJECT/TITLE
DATE
RESTRICTION
AND TYPE
002. form
Financial Statement (2 pages)
nd
P6/b(6)
COLLECTION:
Clinton Presidential Records
Counsel's Office
Doug Band
OA/Box Number: 12690
FOLDER TITLE:
Personal Data Questionnaire [4]
2009-1007-F
db1195
RESTRICTION CODES
Presidential Records Act - 144 U.S.C. 2204(a)]
Freedom of Information Act - [5 U.S.C. 552(b)]
P1 National Security Classified Information [(a)(1) of the PRA]
b(1) National security classified information [(b)(1) of the FOIA]
P2 Relating to the appointment to Federal office [(a)(2) of the PRA]
b(2) Release would disclose internal personnel rules and practices of
P3 Release would violate a Federal statute [(a)(3) of the PRA)
an agency [(b)(2) of the FOIA]
P4 Release would disclose trade secrets or confidential commercial or
b(3) Release would violate a Federal statute [(b)(3) of the FOIA]
financial information [(a)(4) of the PRAJ
b(4) Release would disclose trade secrets or confidential or financial
P5 Release would disclose confidential advice between the President
information [(b)(4) of the FOIA]
and his advisors, or between such advisors [a)(5) of the PRA]
b(6) Release would constitute a clearly unwarranted invasion of
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA]
personal privacy [(a)(6) of the PRA]
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA]
C. Closed in accordance with restrictions contained in donor's deed
b(8) Release would disclose information concerning the regulation of
of gift.
financial institutions [(b)(8) of the FOIA}
PRM. Personal record misfile defined in accordance with 44 U.S.C.
b(9) Release would disclose geological 05 ONLIBRARY PHOTOCOPY
2201(3).
concerning wells |(b)(9) of the FOIA]
RR. Document will be reviewed upon request.
SOTOMAYOR RESPONSE TO SENATE QUESTIONNAIRE
PART TWO, QUESTION 4
CLINTON LIBRARY PHOTOCOPY
Withdrawal/Redaction Marker
Clinton Library
DOCUMENT NO.
SUBJECT/TITLE
DATE
RESTRICTION
AND TYPE
003. report
Financial Disclosure Report (4 pages)
02/27/1997
P2, P6/b(6)
COLLECTION:
Clinton Presidential Records
Counsel's Office
Doug Band
OA/Box Number: 12690
FOLDER TITLE:
Personal Data Questionnaire [4]
2009-1007-F
db1195
RESTRICTION CODES
Presidential Records Act - [44 U.S.C. 2204(a)]
Freedom of Information Act - [5 U.S.C. 552(b)|
PI National Security Classified Information [(a)(1) of the PRA]
b(1) National security classified information [(b)(1) of the FOIA]
P2 Relating to the appointment to Federal office [(a)(2) of the PRAJ
b(2) Release would disclose internal personnel rules and practices of
P3 Release would violate a Federal statute [(a)(3) of the PRA]
an agency [(b)(2) of the FOIA]
P4 Release would disclose trade secrets or confidential commercial or
b(3) Release would violate a Federal statute [(b)(3) of the FOIA]
financial Information [(a)(4) of the PRAJ
b(4) Release would disclose trade secrets or confidential or financial
P5 Release would disclose confidential advice between the President
Information [(b)(4) of the FOIA]
and his advisors, or between such advisors [a)(5) of the PRAJ
b(6) Release would constitute a clearly unwarranted Invasion of
P6 Release would constitute a clearly unwarranted Invasion of
personal privacy [(b)(6) of the FOIA]
personal privacy [(a)(6) of the PRAJ
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA]
C. Closed In accordance with restrictions contained in donor's deed
b(8) Release would disclose information concerning the regulation of
of gift.
financial institutions [(b)(8) of the FOIA]
PRM. Personal record misfile defined in accordance with 44 U.S.C.
b(9) Release would disclose geological or geophysical information
2201(3).
concerning wells [(b)(9) of the FOIA]
RR. Document will be reviewed upon request.
CLINTON LIBRARY
Withdrawal/Redaction Marker
Clinton Library
DOCUMENT NO.
SUBJECT/TITLE
DATE
RESTRICTION
AND TYPE
004. form
RE: Questionnaire for National Secuity Positions (23 pages)
nd
P6/b(6)
COLLECTION:
Clinton Presidential Records
Counsel's Office
Doug Band
OA/Box Number: 12690
FOLDER TITLE:
Personal Data Questionnaire [4]
2009-1007-F
db1195
RESTRICTION CODES
Presidential Records Act - - [44 U.S.C. 2204(a)]
Freedom of Information Act- [5 U.S.C. 552(b)]
P1 National Security Classified Information [(a)(1) of the PRA]
b(1) National security classified information [(b)(1) of the FOIA]
P2 Relating to the appointment to Federal office [(a)(2) of the PRAJ
b(2) Release would disclose internal personnel rules and practices of
P3 Release would violate a Federal statute [(a)(3) of the PRA]
an agency [(b)(2) of the FOIA]
P4 Release would disclose trade secrets or confidential commercial or
b(3) Release would violate a Federal statute [(b)(3) of the FOIA]
financial information [(a)(4) of the PRAJ
b(4) Release would disclose trade secrets or confidential or financial
P5 Release would disclose confidential advice between the President
information [(b)(4) of the FOIA]
and his advisors, or between such advisors [a)(5) of the PRA]
b(6) Release would constitute a clearly unwarranted invasion of
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA]
personal privacy [(a)(6) of the PRAJ
b(7) Release would disclose information compiled for law enforcement
purposes ((b)(7) of the FOIA]
C. Closed in accordance with restrictions contained in donor's deed
b(8) Release would disclose information concerning the regulation of
of gift.
financial institutions [(b)(8) of the FOIA]
PRM. Personal record misfile defined in accordance with 44 U.S.C.
b(9) Release would disclose geological or geophysical information
2201(3).
concerning wells [(b)(9) of the FOIA]
RR. Document will be reviewed upon request.
Y
Withdrawal/Redaction Marker
Clinton Library
DOCUMENT NO.
SUBJECT/TITLE
DATE
RESTRICTION
AND TYPE
005. form
Immigration Addendum to SF-86 (3 pages)
nd
P6/b(6)
COLLECTION:
Clinton Presidential Records
Counsel's Office
Doug Band
OA/Box Number: 12690
FOLDER TITLE:
Personal Data Questionnaire [4]
2009-1007-F
db1195
RESTRICTION CODES
Presidential Records Act - [44 U.S.C. 2204(a)]
Freedom of Information Act - 15 U.S.C. 552(b)]
PI National Security Classified Information [(a)(1) of the PRA]
b(1) National security classified information [(b)(1) of the FOIA]
P2 Relating to the appointment to Federal office [(a)(2) of the PRA]
b(2) Release would disclose internal personnel rules and practices of
P3 Release would violate a Federal statute [(a)(3) of the PRAJ
an agency [(b)(2) of the FOIA]
P4 Release would disclose trade secrets or confidential commercial or
b(3) Release would violate a Federal statute [(b)(3) of the FOIA)
financial information [(a)(4) of the PRA]
b(4) Release would disclose trade secrets or confidential or financial
P5 Release would disclose confidential advice between the President
information [(b)(4) of the FOIA]
and his advisors, or between such advisors [a)(5) of the PRAJ
b(6) Release would constitute a clearly unwarranted invasion of
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA]
personal privacy [(a)(6) of the PRA]
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA]
C. Closed in accordance with restrictions contained in donor's deed
b(8) Release would disclose information concerning the regulation of
of gift.
financial institutions [(b)(8) of the FOIA]
PRM. Personal record misfile defined in accordance with 44 U.S.C.
b(9) Release would disclose geological or geophysical information
2201(3).
concerning wells [(b)(9) of the FOIA)
RR. Document will be reviewed upon request.
CLINTON LIBRARY PHOTOCOPY
FedEx® USA Airbill
Tracking
Number
3931458580
Recipient's Copy
+
1
From
4a
Express Package Service Packages under 150 lbs.
Delivery commitment may
be later in some areas
Date
2/28/97
FedEx Priority Overnight
FedEx Standard Overnight
FedEx 2Day*
(Next business morning)
(Next business alternoon)
[Second business day)
Sender's
Name
Hon. Sonia Satemayor
Phone
(212) 805 - 0250
NEW FedEx First Overnight
FedEx Letter Rate not available.
(Earliest business marning delivery to select locations)
Minimum charge:
(Higher rates apply)
One pound FedEx 2Day /ate
Dept/Floor/Suite/Room
U.S. District Guit
4b
Express Freight Service Packages over 150 lbs.
Delivery commitment may
Company
be later in some areas.
FedEx Overnight Freight
FedEx 2Day Freight
FedEx Express Saver Freight
Next business day service
(Second business-da
Up to 3 business-e service
500 Penil St., Suite 1340
for any distance)
service for any distance)
based upon distance)
Address
(Call for delivery schedule. See back for detailed descriptions of freight products.)
5
State NY Zip 10007
Packaging
FedEx
FedEx
FedEx
FedEx
Other
City
New York
Letter
Pak
Box
Tube
Pkg.
Declared value limit $500
2
Your Internal Billing Reference Information
6
Special Handling
IAs per attached
(Shipper's
Does this shipment contain dangerous goods?
Yes Shippers
Yes Declaration
Declaration)
not required)
3
To
Dry Ice
CA
Dry ICE, 9, UN 1845 III
Cargo Aircraft Only
K
kg. 904
Recipient's
Name
ynrowsky
Phone (202)456-7911
(Dangerous Goods Shipper's Declaration not required)
7
Payment
Obtain Recipient
Dept/Hoor/Suite/Room
FedEx Account No.
Company Special Assiciate Gonsel 11 the President
Bill
Sender
Recipient
Third Party
Credit Card
Cash/
to:
(Account no in
Check
section will be billed)
(Enter FedEx account no. or Credit Card no. below)
To "HOLD" at
Address FedEx 011 location, print Executive FedEx address here) Office Building Tem 128
City
Washington
State
DC
Zip
20500
Total Packages
Total Weight
Total Declared Value
Total Charges
For HOLD at FedEx Location check here
For Saturday Delivery check here
$
.00
$
Hold Weekday
Hold Saturday (Not available atall locations)
(Extra Charge. Not available to alliocations)
(Not available with
(Not available with FedEx First Overnight Dr
(Not available with FedEx First Overnight
When declaring value higher than $100 per shipment, you pay an additional charge See SERVICE
FedEx First Overnight)
FedEx Standard Overnight)
or FedEx Standard Overnight
CONDITIONS. DECLARED VALUE AND LIMIT OF LIABILITY section for further information
Credit Card Auth.
8
Release Signature
3
9
3
1
4
5
e
5
B
0
Your signature authorizes Federal Express to deliver this ship-
ment without obtaining a signature and agrees to indemnify
and hold harmless Federal Express from any resulting claims.
Questions?
272
Rev. Date 6/06
Call 1:800 Go FedEx
PART #147957
©1994 96 Fed(x
(1-800-463-3339)
'
PRINTED IN U.S A
GBFE 1/97
CLINTON LIBRARY PHOTOCOPY
3931458580
2/28/97
X
Hon. Sonia Sotemayor 212 805 . 0250
U.S. District Couit
500 Pearl St., Suite 1340
New York
NY 1000+
X
Jonathan Yarowsky
202.456-7911
Special Associate Counsel to the President
X
-
Oil Executive Office Building Rm 128
200783248
Washington
DC 20500
HOLD .! If x Lo btien check here
for Saturday Delivery check he I
he
He's where
X
11
SERVICE
3 9 3 1 4 S B S a o
272
Rev Date 6/96
X
PART #147957
GBFE 1/97
CLINTON LIBRARY PHOTOCOPY