ACCEPTED
03-14-00197-CV
5206823
THIRD COURT OF APPEALS
AUSTIN, TEXAS
5/8/2015 10:36:16 AM
JEFFREY D. KYLE
CLERK
NO. 03-14-00197-CV
_____________________________________________
RECEIVED IN
IN THE COURT OF APPEALS 3rd COURT OF APPEALS
THIRD JUDICIAL DISTRICT OF TEXAS AUSTIN, TEXAS
AT AUSTIN 5/8/2015 10:36:16 AM
________________________________________________
JEFFREY D. KYLE
Clerk
GRAPHIC PACKAGING, INC.,
Appellant
v.
GLENN HEGAR, COMPTROLLER OF PUBLIC ACCOUNTS OF
THE STATE OF TEXAS; AND KEN PAXTON, ATTORNEY
GENERAL OF THE STATE OF TEXAS,
Appellees.
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 353RD JUDICIAL DISTRICT,
CAUSE NO. D-1-GN-12-003038, THE HONORABLE DARLENE BYRNE PRESIDING
AMICI CURIAE BRIEF OF THE INTERSTATE COMMISSION FOR
JUVENILES, THE ASSOCIATION OF COMPACT ADMINISTRATORS
OF THE INTERSTATE COMPACT ON THE PLACEMENT OF
CHILDREN, AND JEFFREY LITWAK, IN SUPPORT OF APPELLANT
RICHARD L. MASTERS JEFFREY B. LITWAK
(Kentucky Bar No. 44606) (Oregon Bar No. 973170)
lawsaver@aol.com jlitwak@alum.mit.edu
MASTERS, MULLINS & ARRINGTON 1608 NE Knott Street
1012 South Fourth Street Portland, Oregon 97212
Louisville, Kentucky 40203 (503) 777-4758
Tel: (502) 582-2900
Fax: (502) 587-0931 ATTORNEYS FOR AMICUS
CURIAE JEFFREY LITWAK
ATTORNEYS FOR AMICI
CURIAE INTERSTATE
COMMISSION FOR JUVENILES
& ASSOCIATION OF COMPACT
ADMINISTRATORS OF THE
INTERSTATE COMPACT ON THE
PLACEMENT OF CHILDREN
TABLE OF CONTENTS
TABLE OF CONTENTS .......................................................................................... i
TABLE OF AUTHORITIES ................................................................................... ii
I. IDENTITY AND INTEREST OF AMICI ................................................... 1
The Interstate Commission for Juveniles...................................................... 1
The Association of Administrators of the Interstate Compact on the
Placement of Children ............................................................................. 1
Statement of Interest of the Compact Amici ................................................ 3
Jeffrey B. Litwak and Statement of Interest ................................................. 4
Disclosure Pursuant to Texas Rule of Appellate Procedure 11(c) ............... 6
II. INTRODUCTION ........................................................................................ 6
III. HISTORICAL OVERVIEW ...................................................................... 11
A. Interstate Compacts Are Widely Used to Define Legal Relationships
Among States ................................................................................... 11
B. The Core Legal Principles that Govern Interstate Compacts .......... 13
C. Compacts Provide Uniformity Through the Collective Exercise of
Sovereignty by the Member States .................................................. 18
D. The Implications of Congressional Consent (or its Absence) ......... 19
IV. ANALYSIS OF THE MULTISTATE TAX COMPACT AS A COMPACT
REQUIRES ITS CONTRACTUAL NATURE TO PREVAIL .................. 20
V. THE DECISION OF THE TRIAL COURT SERIOUSLY UNDERMINES
THE ENFORCEMENT OF OTHER COMPACTS ENACTED BY TEXAS
..................................................................................................................... 29
VI. CONCLUSION ........................................................................................... 31
CERTIFICATE OF COMPLIANCE ..................................................................... 33
CERTIFICATE OF SERVICE .............................................................................. 34
i
TABLE OF AUTHORITIES
CASES
Page(s)
Alabama v. North Carolina,
130 S Ct 2295; 176 L Ed 2d 1070 (2010) ............................................. 7, 25
Burns v. United States,
501 U.S. 129 (1991) .................................................................................. 25
Cal. Dep’t of Transp. v. City of S. Lake Tahoe,
466 F. Supp. 527 (E.D. Cal. 1978) ............................................................ 28
CT Hellmuth v. Washington Metro Area Trans Auth,
414 F Supp 408 (D Md, 1976) .............................................................. 6, 16
Cuyler v. Adams,
449 US 433; 101 S Ct 703; 66 L Ed 2d 641 (1981) .................................. 19
Delaware River Joint Toll Bridge Comm v. Colburn,
310 U.S. 419; 60 S Ct 1039; 84 L Ed 1287 (1940) ....................... 19, 26, 27
Doe v. Ward,
124 F Supp 2d 900 (WD Pa, 2000) ...................................................... 6, 16
Entergy Arkansas, Inc. v. Nebraska,
358 F.3d 528 (8th Cir. 2004) ............................................................... 16, 30
Ex Parte Cantrell,
362 S.W.2d 115 (Tex. Crim. App. 1962) .................................................. 23
Green v. Biddle,
21 US (8 Wheat) 1; 5 L Ed 547 (1823) ................................................. 7, 14
Hess v. Port Authority Trans-Hudson Corp.,
513 U.S. 30 (1994) .................................................................................... 18
Hinderlider v. La Plata River and Cherry Creek Ditch Co,
304 US 92; 58 S Ct 803; 82 L Ed 1202 (1938) ......................................... 17
ii
In re Texas,
97 S.W.3d 744 (Tex. App.—El Paso 2003, no pet.) ................................. 23
McComb v. Wambaugh,
934 F.2d 474 (3rd Cir. 1991), overruled on other grounds by
State Dep’t of Econ. Sec. v. Leonardo,
22 P.3d 513 (Ariz. Ct. App. 2001) .................................................... 2, 6, 15
Nebraska v. Central Interstate Low-Level Radioactive Waste Comm,
207 F3d 1021 (CA 8, 2000)....................................................................... 15
New Jersey v. New York,
523 US 767, 118 S Ct 1726 (1998) ....................................................... 7, 20
Oklahoma v. New Mexico,
501 U.S. 221 (1991) .................................................................................. 25
Potomac Shores, Inc. v. River Riders, Inc.,
98 A.3d 1048 (Md. Ct. Spec. App. 2014) ................................................. 13
Seattle Master Builders Ass’n v. Pac Northwest Elec Power Planning
Council, 786 F2d 1359 (CA 9, 1986) ........................................ 7, 14, 27, 28
Skamania County v. Woodall,
16 P.3d 701 (Wash. Ct. App. 2001) .......................................................... 27
State of Illinois Dept. of Public Aid v. Schweiker,
707 F. 2d 273, 277 (CA7 1983) ................................................................ 25
Tarrant Reg’l Water Dist. v. Hermann,
186 L. Ed. 153 (2013) ......................................................................... 24, 25
Texas v. New Mexico,
462 US 554, 103 S Ct 2558 (1983) ................................................. 7, 20, 25
Texas v. New Mexico,
482 U.S. 124 (1987) .................................................................................. 16
iii
US Steel Corp v. Multistate Tax Comm,
434 US 452; 98 S Ct 799; 54 L Ed 2d 682 (1978) ............................ passim
US Trust Co v. New Jersey,
431 US 1 (1977) ........................................................................................ 14
Virginia v. Tennessee,
148 US 503; 13 S Ct 728; 37 L Ed 537 (1893) ......................................... 19
West Virginia ex rel Dyer v. Sims,
341 US 22; 71 S Ct 557; 95 L Ed 713 (1951) .................................... passim
Wroblewski v. Commonwealth,
570 Pa 249; 809 A2d 247 (Pa 2002) ......................................................... 15
STATUTES
Alaska Stat. § 43.19.010 ............................................................................... 22
Haw. Rev. Stat. § 255-1 ................................................................................ 22
Idaho Code Ann. § 63-3027.......................................................................... 22
Idaho Code Ann. § 63-3701.......................................................................... 22
Interstate Compact on the Placement of Children, MCL 3.711 ............. 1, 2, 3
Kan. Stat. Ann. § 79-4301 ............................................................................ 23
Missouri-Nebraska Boundary Compact, PL 106-101, 113 Stat. 1333 (1999)
................................................................................................................... 12
Mo. Rev. Stat. § 32.200 ................................................................................ 23
Mont. Code Ann. § 15-1-601 ........................................................................ 23
N.M. Stat. Ann. § 7-5-1 ................................................................................ 23
Tex. Agric. Code §§ 79.001-79.007 ............................................................. 10
iv
Tex. Educ. Code §§ 160.01-160.04 .............................................................. 10
Tex. Educ. Code §§ 161.01-161.04 ................................................................ 9
Tex. Educ. Code §§ 162.001-162.005 ............................................................ 9
Tex. Fam. Code §§ 162.101-162.107 ............................................................. 9
Tex. Fam. Code §§ 60.001-60.012 ................................................................. 9
Tex. Ins. Code §§ 5001.001-5000.002 ........................................................... 9
Tex. Nat. Res. Code §§ 141.001-141.005..................................................... 10
Tex. Occ. Code §§ 304.101-304.109 ............................................................ 10
Tex. Tax Code § 140.001................................................................................ 7
Tex. Tax Code §§ 141.101-141.106 ............................................................. 10
Tex. Transp. Code §§ 523.001-523.011 ......................................................... 9
Wash. Rev. Code § 82.56.010 ...................................................................... 23
CONSTITUTIONAL PROVISIONS
Compact Clause ..................................................................................... passim
Contracts Clause ............................................................................... 15, 16, 17
US Const, art I, §10, cl 1............................................................................... 13
US Const, art I, §10, cl 3......................................................................... 11, 19
US Const, art VI, cl 2 .................................................................................... 14
OTHER AUTHORITIES
Caroline N. Broun, et al., The Evolving Use and the Changing Role of
Interstate Compacts: A Practitioner’s Guide (ABA, 2006) .............. passim
v
Barnett, A Consent Theory of Contract, 86 Columbia L Rev 269 (1986) .... 30
Frankfurter & Landis, The Compact Clause of the Constitution − A Study in
Interstate Adjustments, 34 Yale L.J. 685 (1921)....................................... 11
Garfield, Promises of Silence: Contract Law and Freedom of Speech, 83
Cornell L Rev 261 (1998) ......................................................................... 30
Litwak, Interstate Compacts: Cases and Materials (Semaphore Press 2012)
......................................................................................................... 5, 13, 17
Michael Buenger & Richard Masters, The Interstate Compact on Adult
Offender Supervision: Using Old Tools to Solve New Problems, 9 Roger
Williams U. L. Rev. 71 (2003) ........................................................... passim
vi
I. IDENTITY AND INTEREST OF AMICI
The Interstate Commission for Juveniles
The Interstate Commission for Juveniles is the interstate governing
body created under the Interstate Compact for Juveniles (“ICJ”) to oversee
the administration and enforcement of the compact. The ICJ is the only state
or federal law which provides the legal authority to transfer supervision of
juveniles under parole or probation supervision or to allow the apprehension
and safe return of juvenile runaways and absconders across state lines of the
member states. Fifty-one jurisdictions have enacted the ICJ, including
Texas. The ICJ’s purposes include providing a means of joint and
cooperative action among the compacting states to ensure that adjudicated
juveniles are provided adequate supervision and services in the receiving
state as ordered by the adjudicating judge or parole authority in the sending
state. The Interstate Commission for Juveniles has no financial interest in
the outcome of this case and, by and through its Executive Committee, has
authorized the filing of this amicus brief.
The Association of Administrators of the Interstate Compact on the
Placement of Children
The Interstate Compact on the Placement of Children (“ICPC”) was
established in 1974 and consists of members from all 50 states, the District
1
of Columbia and the United States Virgin Islands. The Association of
Administrators of the Interstate Compact on the Placement of Children
(“AAICPC”) has authority under ICPC to “promulgate rules and regulations
to carry out more effectively the terms and provisions of this compact.” The
ICPC was prompted by concerns regarding states’ inability to protect the
welfare of children once they are moved across a state border. It was drafted
to promote state cooperation ensuring safe and timely placement in a
suitable environment with persons or institutions having appropriate
qualifications and facilities to provide a necessary and desirable degree and
type of care.
The AAICPC has a significant interest in promoting the uniform
interpretation and application of the compact for the protection of child
welfare. The decision below could serve as justification for member states
to deviate unilaterally from their policies and procedures for ensuring that
children will be protected when they are sent out of state.1 Like the ICJ, the
compact’s effectiveness as a contract among the states necessarily depends
upon its uniform application by its member states, each of which is
contractually bound to abide by its terms. For that very reason, the ICPC
1
McComb v. Wambaugh, 934 F.2d 474, 479 (3d Cir. 1991) (“uniformity of
interpretation [of the ICPC by member states] is important”).
2
was adopted as a compact – a binding contract – between the states rather
than as a uniform law (such as the Uniform Commercial Code), which each
state would otherwise be free to interpret differently. The AAICPC has no
financial interest in the outcome of this case and through its Executive
Committee has authorized the filing of this amicus brief.
Statement of Interest of the Compact Amici
The Compact Amici are “creations” of the respective state
legislatures’ grant of authority, as set forth in the language of their respective
compact statutes. In the case of the ICJ, this authority is exercised as the
only state or federal law of its kind to regulate the interstate transfer and
return of delinquent juveniles under parole or probation supervision, as well
as runaways. In the case of the ICPC, such authority serves the interest of
the member states in the protection of child welfare by regulation of the
interstate movement and safe placement of children between states when the
children are in the custody of a state, being placed for private or independent
adoption, or under certain circumstances, being placed by a parent or
guardian in a residential treatment facility.
Thus the Compact Amici have a vested interest in this matter, given
that the lower court’s decision effectively allows Texas, or by extension of
its logic, any other compact member state, unilaterally to contravene the
3
uniform requirements of, not just the Compact, but other interstate compacts
which Texas has enacted. This impermissible allowance of a unilateral
amendment of the terms of an interstate compact by one member state has
serious implications not only for the Appellant, but also for the other
interstate compacts represented herein and other compacts across the nation,
whose authority to regulate such matters as juvenile offender transfers and
child welfare placements is dependent upon the validity of the uniform
provisions of these respective compacts. Without the assurance of uniform
compliance and enforcement of these compacts, the entire system of
interstate placement of children and both the transfer of juvenile probation
and parole supervision as well as the appropriate apprehension and return of
runaways and absconders will be threatened. If states are permitted to
unilaterally reject such interstate transfers in violation of compact and code
provisions, both child welfare and public safety will be endangered.
Jeffrey B. Litwak and Statement of Interest
Jeffrey B. Litwak is an Adjunct (and previously Visiting) Professor of
Law at Lewis and Clark Law School, where he developed and has taught the
country’s only law school course focused on interstate compact law since
2004. See Law Courses Catalog, Interstate Compacts Seminar, available at
http://legacy.lclark.edu/dept/lawreg/law365.html (last visited Apr. 20, 2015)
4
(course description). Professor Litwak has also served as in-house general
counsel to an interstate compact entity, the Columbia River Gorge
Commission (a compact between Oregon and Washington) since 1999,
arguing numerous compact law issues in the states’ courts. Professor Litwak
has studied and speaks nationally about the prohibition against applying
state law that conflicts with an interstate compact, and has written the only
law school text on interstate compact law, Jeffrey B. Litwak, Interstate
Compacts: Cases and Materials (v. 2.0 2014), and numerous chapters on
interstate compact law in Oregon, Washington, and American Bar
Association books.
Professor Litwak submits this amicus brief pro se, representing no
institution, entity, group, or association; none of the entities with which he is
associated has provided any technical or research assistance, time, funding,
use of facilities, or any other assistance. He has no personal or financial
interest in the outcome of this matter.
Professor Litwak has a professional scholarly interest in the law of
interstate compacts. He is interested in the consistent application of existing
compact law to the interpretation of interstate compacts and in the orderly
and predictable development of compact law. He also uses current events
and litigation as teaching tools and would use this matter as such. In short,
5
Professor Litwak presents the law in this brief from a disinterested
perspective, which happens to align with the Appellant’s interests in this
matter.
Disclosure Pursuant to Texas Rule of Appellate Procedure 11(c)
The following entities paid for the preparation and filing of this brief:
H.J. Heinz Company & Subsidiaries; Tempur-Sealy International, Inc. &
Subsidiaries (formerly known as Tempur-Pedic International, Inc. and
Subsidiaries); Brown-Forman Corporation and Subsidiaries; Amphenol
Corporation and Subsidiaries; Gillette Commercial Operations of North
America, Inc.; and National Beef Packing Company, LLC.
II. INTRODUCTION
The instant action presents a fundamental issue of interstate compact
law, namely, whether a state may apply subsequently enacted legislation that
conflicts with an interstate compact’s provisions. Due to their unique status
as both statutes and agreements among sovereign states, a member state
cannot unilaterally amend an interstate compact. Rather, interstate compacts
supersede conflicting state law. See, e.g., West Virginia ex rel. Dyer v. Sims,
341 U.S. 22, 24 (1951); McComb, 934 F.2d at 479; C.T. Hellmuth &
Assocs., Inc. v. Wash. Metro. Area Transit Auth., 414 F. Supp. 408, 409 (D.
Md. 1976); Doe v. Ward, 124 F. Supp. 2d 900, 914–15 (W.D. Pa. 2000); and
6
other cases discussed below. The Supreme Court has directed that an
interstate compact’s express terms must be respected:
We are especially reluctant to read absent terms into an
interstate compact given the federalism and separation-of-
powers concerns that would arise were we to rewrite an
agreement among sovereign States, to which the political
branches consented. As we have said before, we will not “order
relief inconsistent with [the] express terms of a compact, no
matter what the equities of the circumstances might otherwise
invite.”
Alabama v. North Carolina, 560 U.S. 330, 352 (2010) (quoting New Jersey
v. New York, 523 U.S. 767, 811 (1998) and Texas v. New Mexico, 462 U.S.
554, 564 (1983)); see also Seattle Master Builders Ass’n v. Pac. Nw. Elec.
Power Planning Council, 786 F.2d 1359, 1371 (9th Cir. 1986). Further, the
Contract Clause is a bedrock provision of the United States and Texas
Constitutions, which prevents any compact state from “impairing the
obligation of contracts,” including compacts. See Green v. Biddle, 21 U.S.
(8 Wheat.) 1, 9, 89–91 (1823). The trial court failed to properly analyze and
apply these core principles of compact law in this case. This Court should
thus reverse the trial court’s granting of the Appellees’ motion for summary
judgment and the denial of Appellant’s cross motion and conclude that
Appellant could properly use the apportionment formula in the Multistate
Tax Compact (“Compact”), as codified in Tex. Tax Code § 140.001.
7
As explained herein, it is the statutory and contractual nature of
interstate compacts that allows compact states to achieve enforceable
uniformity among all member states, while preserving their ‘collective
sovereignty’ in addressing supra-state problems. Caroline N. Broun, et al.,
The Evolving Use and the Changing Role of Interstate Compacts: A
Practitioner’s Guide 2–3 (ABA, 2006). Therefore, interstate compacts serve
a crucial function in our increasingly complex society. They are the only
formal mechanism by which individual states can reach beyond their borders
and collectively regulate the conduct of other states and the citizens of other
states.
Amici write only to address the binding nature of express language in
interstate compacts generally and the Compact specifically. Amici do not
address whether the Compact election specifically applies to the Texas
Franchise Tax.
The trial court’s decision—in failing to grapple with the compact law
issues—jeopardizes the vitality of the interstate compacts Texas has enacted.
This court’s decision will thus have broader interest beyond this case and
8
beyond the Compact. Texas is a party to at least 27 interstate compacts
(including the Compact).2
Appellant correctly briefed that the lack of congressional consent for
the Compact does not change the fundamental prohibition against states
unilaterally amending a compact. Appellant’s Brief at 34–36. In contrast,
Appellees argued that compacts that do not require congressional consent
may be binding, depending on the state’s actions. Appellees’ Brief at 62–64.
As Amici explain below, Appellees’ argument does not recognize the
fundamental nature and position of compacts in the United States. If the
Court concludes that Appellees are correct, then at least eleven interstate
compacts that Texas is a party to that do not require congressional consent
may or may not be binding, including:
• Compact on Education (Tex. Educ. Code §§ 161.01-161.04)
• Driver’s License Compact (Tex. Transp. Code §§ 523.001-
523.011).
• Interstate Compact on Educational Opportunity for Military
Children (Tex. Educ. Code §§ 162.001-162.005)
• Interstate Insurance Product Regulation Compact (Tex. Ins. Code
§§ 5001.001-5000.002)
• Interstate Compact for Juveniles (Tex. Fam. Code §§ 60.001-
60.012)
• Interstate Compact on the Placement of Children (Tex. Fam. Code
§§ 162.101-162.107)
2
See Council of State Governments National Center for Interstate Compacts Database,
http://apps.csg.org/ncic/ (On the map, click on the state of Texas).
9
• Interstate Pest Control Compact (Tex. Agric. Code §§ 79.001-
79.007)
• Natural Resources and Water Resources Compact (Tex. Nat. Res.
Code §§ 141.001-141.005)3
• Nurse Licensure Compact (Tex. Occ. Code §§ 304.101-304.109)
• Multistate Tax Compact (Tex. Tax Code §§ 141.101-141.106)
• Southern Regional Education Compact (Tex. Educ. Code §§
160.01-160.04)
No compact should be “maybe binding.” Other states will think twice
before entering into compacts with Texas if Texas does not consider itself
bound to its agreements with other states.
A decision allowing a party state to enact subsequent legislation to
change the terms under which Texas participates in the Compact could affect
the way other states view Texas’ commitment to other vital interstate
compacts and could impact any compact in any state. This is so because
courts routinely cite to compact cases and compact law principles from other
states; thus a decision upholding the trial court’s determination from this
court will provide judicial precedent no matter what court or compact is
involved. Each court decision involving a compact is important. The briefs
in this matter aptly demonstrate this point by citing authority involving
multiple compacts from multiple courts.
3
The Natural Resources and Water Resources Compact may not be effective at this time.
None of the other eligible party states have this compact in their statutes.
10
III. HISTORICAL OVERVIEW
This case is first and foremost a case concerning the legal nature of
interstate compacts. Interstate compacts have been used throughout United
States history to contractually control relationships between and among
states and with the federal government on a broad range of issues. See
Michael Buenger & Richard Masters, The Interstate Compact on Adult
Offender Supervision: Using Old Tools to Solve New Problems, 9 Roger
Williams U. L. Rev. 71, 73, 79–83 (2003).
A. Interstate Compacts Are Widely Used to Define Legal
Relationships Among States
The Compact Clause of the United States Constitution provides that
“No State shall, without the Consent of Congress, . . . enter into any
Agreement of Compact with another State . . .” U.S. Const. art. I, § 10, cl. 3.
Originally used for resolution of inter-colonial boundary disputes, the
Compact Clause has undergone a significant transformation since. See
Buenger & Masters, supra; Felix Frankfurter & James Landis, The Compact
Clause of the Constitution − A Study in Interstate Adjustments, 34 Yale L.J.
685, 691–95 (1921). While interstate compacts predate the United States
Constitution, their use as ongoing governing mechanisms has been a
development of the twentieth and twenty-first centuries. Before the
11
twentieth century, interstate compacts were used almost exclusively to settle
boundary disputes or adjust jurisdictional lines. States continue to use
compacts to settle land claims between states, as Missouri and Nebraska did
in 1999. Missouri-Nebraska Boundary Compact, Pub. L. 106-101, 113 Stat.
1333 (1999) (resolving boundary and related issues of criminal and civil
court jurisdiction, taxes, and riparian rights). More recently, however, states
have used compacts to manage a wide array of regional and national
problems, including natural and water resource management, pollution
control, regional economic development, crime control, child welfare,
education, emergency management, waste disposal, transportation,
professional licensing, taxation, etc. See Broun, supra, at xvi–xvii.
Today there are more than 200 compacts in place. Compacts are one
of the only formal mechanisms by which individual states can, through
legislation, reach beyond their borders and collectively regulate the conduct
of other states and other states’ residents. Compacts are thus appropriately
described as instruments that regulate matters that are sub-federal, supra-
state in nature. See Buenger & Masters, supra, at 77. For this reason, it is
crucial that states, which are parties to a given compact, can rely upon the
express terms of the compact to bind the other member states to achieve the
states’ uniform purposes. This includes the reasonable expectation that the
12
only “escape” from compact obligations is withdrawal as provided by the
agreement’s terms. Indeed the long-term binding relationship between states
that interstate compacts create is aptly demonstrated by a 2014 decision from
the Maryland Court of Special Appeals applying the very first interstate
compact, the Maryland-Virginia Compact of 1785, which still regulates
fishing and navigation on Chesapeake Bay and the Potomac River. Potomac
Shores, Inc. v. River Riders, Inc., 98 A.3d 1048 (Md. Ct. Spec. App. 2014).
B. The Core Legal Principles that Govern Interstate Compacts
Understanding the legal status of an interstate compact begins with
this basic point: Interstate compacts are formal agreements between states
that are both (1) statutory law, and (2) interstate contractual agreements.
Litwak, supra, at 15. They are enacted by state legislatures adopting
reciprocal laws that substantively mirror one another, which gives a compact
its contractual nature. There is (1) an offer (the presentation of a reciprocal
law to two or more state legislatures), (2) acceptance (the actual enactment
of the law by two or more state legislatures), and (3) consideration (the
settlement of a dispute or creation of a regulatory scheme). Buenger &
Masters, supra, at 93–98. Due to the fundamental nature of a compact as a
contractual agreement as well as a statute, the enforcement of compacts is
controlled by the Contract Clause (see U.S. Const. art. I, § 10, cl. 1) and, to a
13
lesser extent, by the Supremacy Clause (U.S. Const. art. VI, cl. 2), among
other authorities, depending on the substantive nature of the compact and its
impact on the basic principles of federalism.
A compact is not a “uniform law” as that term is typically construed
and applied. Compacts, unlike laws such as the Uniform Commercial Code
or the Uniform Criminal Extradition and Rendition Act, are not subject to
unilateral amendment by a state. Once adopted, a state cannot modify the
compact unless the language of the agreement authorizes such an act, and
even then only as provided in the agreement. This has been the most basic
principle of compacts since the very first compact case in 1823, Green, 21
U.S. at 89–91, in which the Supreme Court concluded that Kentucky could
not apply new state law in contravention to the Virginia-Kentucky Compact
of 1789, which preserved the application of Virginia law. Since then, courts
have consistently held that one state may not apply its own state law to a
compact when that law conflicts with the express terms of a compact. A few
of the many more recent cases to similarly hold compacts to be binding are:
U.S. Trust Co. v. New Jersey, 431 U.S. 1 (1977) (Contract Clause
applied to state’s obligation to bondholders in connection with
interstate compact);
Seattle Master Builders, 786 F.2d at 1371 (stating “A state can
impose state law on a compact organization only if the compact
specifically reserves its right to do so.”);
14
McComb, 934 F.2d at 479 (“Having entered into a contract, a
participant state may not unilaterally change its terms. A Compact
also takes precedence over statutory law in member states.”).
Nebraska v. Central Interstate Low-Level Radioactive Waste
Comm’n, 207 F.3d 1021, 1026 (8th Cir. 2000) (holding that
Nebraska did not have the unilateral right to exercise a veto over
actions of an interstate commission created by a compact);
Wroblewski v. Commonwealth, 809 A.2d 247 (Pa. 2002) (terms of
an interstate compact contain the substantive obligations of the
parties as is the case with all contracts; Contracts Clause of the
Federal Constitution protects compacts from impairment by the
states; although a state cannot be bound by a compact to which it
has not consented, an interstate compact supersedes prior statutes
of signatory states and takes precedence over subsequent statutes
of signatory states).
The law is clear. No state or state official can act in conflict with the
terms of a compact. Compacts are one of the few exceptions to the general
rule that a sitting state legislature cannot bind future state legislatures. See
Broun, supra, at 17, 20.
By entering a compact, the member states contractually agree that the
compact’s terms and conditions supersede parochial state considerations.
Compacts create collective governing tools to address multilateral issues
and, as such, they govern based upon the collective will of the member
states, not the will of any single member state. Broun, supra, at 28–29.
Compact law has developed as described above to preserve this raison-
d’etre for compacts. Had courts allowed states to renege on their compacts
over the past 200 years of compact disputes, states would have had no
15
reason to enact new compacts and the Compact Clause would have become
a dead letter.
Appellees incorrectly argue that there is no principled reason why a
state law cannot abrogate a compact that does not require consent,
independent of the Contracts Clause. Appellees’ Brief at 64. The Eighth
Circuit explained the unique nature of interstate compacts as compared to
other forms of contract.
While a common law contract directly affects only the rights
and obligations of the individual parties to it, an interstate
compact may directly impact the population, the economy, and
the physical environment in the whole of the compact area. A
suit alleging that a state has breached an obligation owed to its
sister states under a congressionally approved interstate
compact also raises delicate questions bearing upon the
relationship among separate sovereign polities with respect to
matters of both regional and national import.
Entergy Arkansas, Inc. v. Nebraska, 358 F.3d 528, 542 (8th Cir. 2004)
(citations omitted). Compacts are also a special kind of contract because
they are also reciprocal state laws. See Broun, supra, § 1.1 at 17-24; Texas
v. New Mexico, 482 U.S. 124, 128 (1987); Hellmuth, 414 F. Supp. at 409;
Doe v. Ward, 124 F. Supp. 2d at 914–15. Compacts are also unique because
they are a tool for states to collectively reach beyond their borders and
regulate the conduct of other states’ residents. Compacts serve this function
regardless of whether they have received consent. Thus a decision holding
16
the Compact not binding in Texas affects persons regulated in the other
party states—by adding additional local constraints on regulated persons that
other party states have not agreed to, or by releasing regulated persons from
obligations locally that other party states believe are binding. Because
interstate compacts are unlike garden-variety contracts in these unique ways,
there is a unique basis for enforcing compacts, beyond the Contracts Clause.
The authority for the 50 states to enter into binding compacts, and
authority for state courts to enforce compact terms, is unique. No other
federalist nation’s constitution specifically provides such authority to its
“state” governments. So important is this element of American government
that the Supreme Court would not allow West Virginia to interpret a
provision of its own state constitution so as to avoid its obligations under the
Ohio River Valley Water Sanitation Compact, Dyer, 341 U.S. at 30–31, or
allow Colorado to apply its own constitutional water appropriation rights in
a manner conflicting with the La Plata River Compact, Hinderlider v. La
Plata River and Cherry Creek Ditch Co, 304 U.S. 92 (1938) (overruled on
other grounds). And several other federal and state courts have held the
same. Litwak, supra, at 73–74 (citing cases).
17
C. Compacts Provide Uniformity Through the Collective Exercise of
Sovereignty by the Member States
In effect, by agreeing to a compact, member states contractually cede
a portion of their individual jurisdiction, sovereignty, and authority over the
compact’s subject matter in favor of governing principles that apply
collectively to all member states. This cession of sovereign authority is a
vital consideration in determining whether an interstate agreement rises to
the level of an enforceable interstate compact. It is a concession to all
member states that an individual state cannot subsequently alter absent an
outright repeal of the agreement (if permitted) or the consent of all other
member states. By enacting the compact statute, the member states
contractually agree on certain principles and rules concerning the exercise of
joint governing authority over the subject matter of the compact. As noted
in Hess v. Port Authority Trans-Hudson Corp., 513 U.S. 30, 42 (1994), “[a]n
interstate compact, by its very nature, shifts a part of a state’s authority to
another state or states, or to the agency the several states jointly create to run
the compact.”
In the adoption of many administrative compacts, including the ICJ
and the ICPC, member states have collectively and contractually agreed to
reallocate governing authority away from individual states to a multilateral
relationship defined by commonly accepted principles. States may reclaim
18
the sovereignty they ceded by withdrawing from or repealing the compact as
provided by the agreement’s terms. Self-help through later-enacted
legislation is not permitted.
D. The Implications of Congressional Consent (or its Absence)
Where required, the nature of a compact changes significantly once
Congress grants its consent. Consent transforms an interstate compact into
the “law of the United States.” See Cuyler v. Adams, 449 U.S. 433, 440
(1981). Although Cuyler is the most common citation for this rule, the rule
has been settled law for 75 years. See Del. River Joint Toll Bridge Comm’n
v. Colburn, 310 U.S. 419, 427 (1940) (“[W]e now conclude that the
construction of such a compact sanctioned by Congress by virtue of Article
I, § 10, Clause 3 of the Constitution, involves a federal ‘title, right, privilege
or immunity’[.]”).
The Compact Clause’s express language could lead to the conclusion
that any compact agreement between two or more states requires
congressional consent. However, only compacts that intrude upon the power
of the federal government or alter the political balance between the states
and the national government require Congressional consent. See U.S. Steel
Corp. v. Multistate Tax Comm’n, 434 U.S. 452 (1978); Virginia v.
Tennessee, 148 U.S. 503 (1893). The grant of consent is an act of political
19
judgment by Congress and the above-referenced constraints maintain the
political balance between the federal government and the states, unless
Congress wishes otherwise. To the extent that a compact does not shift the
balance or intrude on federal interests, congressional consent is unnecessary.
Importantly, no court has ever held that a compact not requiring
congressional consent is not an enforceable agreement between the member
states. The corollary, that compacts are enforceable contracts regardless of
consent, is the state of the law today. In interpreting and enforcing
compacts, the courts are constrained to effectuate the express terms and only
the express terms of the agreement. See New Jersey v. New York, 523 U.S.
at 810, 912. Consequently, “no court may order relief inconsistent with its
express terms.” Texas v. New Mexico, 462 U.S. at 564.
IV. ANALYSIS OF THE MULTISTATE TAX COMPACT AS A
COMPACT REQUIRES ITS CONTRACTUAL NATURE TO
PREVAIL
The Appellees’ contention that the Compact does not appear to be a
truly binding contract/compact, Appellees’ Brief at 45–55, is wholly at odds
with the Supreme Court’s construction of the agreement in U.S. Steel. It is
beyond cavil that in U.S. Steel, 434 U.S. 452, the Supreme Court determined
that the Compact displayed indicia of an interstate compact, and that the
only issue was whether congressional consent was required. Id. at 473 (“the
20
test is whether the Compact enhances state power quoad the National
Government”).
In effect, the trial court and Appellees treat the Compact as a uniform
law that Texas and other states have enacted. Based upon the Compact’s
terms, as interpreted by U.S. Steel, the conclusion is unavoidable that the
Compact is, as the Supreme Court declared, an interstate compact, just one
for which congressional approval is not required under the Compact Clause.
Most telling, the Supreme Court would not have had to address the Compact
Clause if it only treated the Compact as a uniform law.
The Compact is not a mere “uniform law,” which the legislature is
free to amend unilaterally at any time it wishes to do so. Buenger &
Masters, supra, at 94. As is the case with other compacts, the Compact is
not subject to unilateral amendment by a state. Once enacted, a state that
wants to avoid its contractual obligations can only do so by repealing the
compact in accordance with Article X of the Compact. Indeed, the very
existence of a withdrawal provision suggests that the compact is much more
than a uniform law, because uniform laws uniformly do not contain
withdrawal provisions. Uniform laws do not need withdrawal provisions
because states may freely enact, amend, or repeal uniform laws at any time.
21
U.S. Steel explicitly categorizes the Compact as a compact and
determined that “agreements and compacts” are virtually indistinguishable
under the Compact Clause in its analysis of the congressional consent
requirement, stating,
Appellants describe various Compacts . . . and attempt to show
that they are similar to the [Multistate Tax] Compact before us
. . . These other Compacts are not before us. We have no
occasion to decide whether congressional consent was
necessary to their constitutional operation, nor have we any
reason to compare those Compacts to the one before us.
434 U.S at 473, n.24 (emphasis added).
Thus, the Compact’s terms, are both binding contracts and statutory
obligations among the member states. Texas and the other parties to the
Compact may not claim that they can properly repeal the Article III election
by their own unilateral actions. To do so, the states, acting collectively,
must amend the Compact, such that Article III would no longer be any part
of the states’ agreement. They have not done so. The following states
explicitly continue to include Articles III(1) and IV(9), as originally enacted
in relevant part, in their codes:
Alaska. Alaska Stat. § 43.19.010.
Hawaii. Haw. Rev. Stat. § 255-1.
Idaho. Idaho Code Ann. § 63-3701.4
4
But see Idaho Code Ann. § 63-3027 (“Notwithstanding the election allowed in article
III.1 of the multistate tax compact enacted as section 63-3701, Idaho Code, all business
income shall be apportioned to this state under subsection (j) of this section by
22
Kansas. Kan. Stat. Ann. § 79-4301.
Missouri. Mo. Rev. Stat. § 32.200.
Montana. Mont. Code Ann. § 15-1-601.
New Mexico. N.M. Stat. Ann. § 7-5-1.
Washington. Wash. Rev. Code § 82.56.010.
Texas courts have not hesitated to acknowledge the contractual nature
of the State’s obligations created by other interstate compacts and have
ordered that the terms of such statutory agreements must be followed as
“ministerial acts.” See In re Texas, 97 S.W.3d 744, 746 (Tex. App.—El
Paso 2003, no pet.) (Interstate Compact for Juveniles); Ex Parte Cantrell,
362 S.W.2d 115 (Tex. Crim. App. 1962) (Adult Parole and Probation
Compact). The Court should similarly hold the state to follow the express
terms of the Compact.
Appellees also incorrectly argue that they are bound to apply Texas’
internal law and authorities. Appellees’ Brief at 60–62. In Dyer, Justice
Jackson concisely stated the problem with this argument.
West Virginia officials induced sister States to contract with her
and Congress to consent to the Compact. She now attempts to
read herself out of this interstate Compact by reading into her
Constitution a limitation upon the powers of her Governor and
Legislature to contract.
multiplying the income by a fraction, the numerator of which is the property factor plus
the payroll factor plus two (2) times the sales factor, and the denominator of which is four
(4), except as provided in paragraph (2) of this subsection.”)
23
341 U.S. at 35 (Jackson, J., concurring). Texas seeks to read herself out of
the Compact Article III election, in direct conflict with what the Supreme
Court concluded states could not do. Appellees seek to avoid this maxim,
arguing that Dyer “has been cabined to compacts requiring congressional
approval.” Appellees’ Brief at 64. Appellees are incorrect. Appellees’
citation to note 23 in U.S. Steel has nothing to do with limiting the
application of Dyer. Rather, that note only responds to the U.S. Steel
appellants’ argument that Justice Frankfurter’s opinion in Dyer stated that all
compacts require consent. There is no functional distinction between the
Compact here and the Ohio River Valley Compact in Dyer.
Appellees also incorrectly argue that the Compact is ambiguous
because the Compact does not explicitly prohibit a member state from
“opting out” of Compact provisions by changing their own laws. Appellees’
Brief at 55–60. The Appellees cite Tarrant Reg’l Water Dist. v. Hermann,
186 L. Ed. 153 (2013) for the Court’s statement that course of conduct is
highly significant in interpreting an interstate compact. However, the
Compact is not silent; Article III expressly requires the election. There is no
ambiguity here, and thus no need to “interpret” the Compact.
This argument also conflicts with established interpretive principles
relating to statutory silence. The U.S. Supreme Court periodically discusses
24
the significance of silence in statutory text, often cautioning against gleaning
meaning from silence. For example, in Burns v. United States, 501 U.S. 129
(1991), the Court stated,
As one court has aptly put it, “[n]ot every silence is pregnant.”
State of Illinois Dept. of Public Aid v. Schweiker, 707 F. 2d 273,
277 (CA7 1983). In some cases, Congress intends silence to
rule out a particular statutory application, while in others
Congress’ silence signifies merely an expectation that nothing
more need be said in order to effectuate the relevant legislative
objective. An inference drawn from congressional silence
certainly cannot be credited when it is contrary to all other
textual and contextual evidence of congressional intent.
Id. at 136 (emphasis added). Here, the silence that the Appellees suggest
conflicts with the express language of Article III, which states, “Any
taxpayer . . . may elect . . .” The compact does not need to prohibit the states
from disallowing the Article III election when Article III expressly requires
the states to allow it.
In addition, the Appellees’ citation to Tarrant for one interpretive
principle also does not fully explain all of the contract principles that courts
use to interpret compacts. For example, courts can consider negotiation
history (see Oklahoma v. New Mexico, 501 U.S. 221, 235 n.5 (1991)) and
usage of trade in the form of considering other compacts (see Alabama v.
North Carolina, 560 U.S. at 341–42; Texas v. New Mexico, 462 U.S. at 565).
25
The Appellant has briefed the development of the Compact and its
relevant documentation at the time the states negotiated the Compact as to
the intent of the drafters to offer the election to the taxpayers, Appellant’s
Brief at 1-14, and this brief does not repeat those points. Considering the
“usage of trade” principle, courts do not treat “silence” as license to apply
state law that conflicts with a compact. Only two cases in the nearly 200
years of compact jurisprudence have done so, but neither are good law—one
was effectively overruled a short time later, and the other was based on
faulty reasoning—contradicting the authority it cited as support. The first
case, Colburn, 310 U.S. at 431,5 did not last long. Eleven years later, in
1951, the Supreme Court issued its strongly worded decision in Dyer, 341
U.S. 22, which held that West Virginia’s State Auditor could not rely on a
provision in the state constitution to avoid paying West Virginia’s share of
the administrative expenses of the Ohio River Valley Water Sanitation
Compact as required by the compact. Although Dyer did not involve the
interpretation of “silence” or expressly overrule Colburn, the decision cast
significant doubt about a state applying its own law (and constitutional
5
Colburn is most often cited for the proposition that construction of a compact that has
received the consent of Congress presents a federal question that the Supreme Court may
review.
26
limitations) to a compact, and Colburn has never been cited as authority for
applying state law where a compact is silent.
The other case, Skamania County v. Woodall, 16 P.3d 701 (Wash. Ct.
App. 2001) involved a question of applying state common law to a compact.
The Washington Court of Appeals held that the compact agency needed to
apply state common law when interpreting a local ordinance required by the
compact because the compact did not expressly reject that common law. For
support, the court cited Seattle Master Builders, 786 F.2d at 1371, which
stated, “A state can impose state law on a compact organization only if the
compact specifically reserves its right to do so.” The Washington Court of
Appeals’ holding presumed state law applies, which was contrary to the
authority it cited, which established a presumption that state law does not
apply. This contradiction suggests that Woodall is just an anomalous
misunderstanding, and, like Colburn, it has never been cited as authority for
applying state law where a compact is silent about applying state law.
At base, the Appellees are arguing that an express compact term is a
priori ambiguous if there is no corresponding term also expressing the
negative of that express term. This argument leads to the absurd result that
every compact term would need to expressed twice—once to state what the
term requires and then again for what the term prohibits. In more than 200
27
years of compact drafting, no compact has ever been written in this manner
and there is no statutory or contract construction principle that suggests this
manner of drafting is any more clear than simply providing a clear express
term. The legal principle is clear and well established. Where there is an
express term, silence cannot create an ambiguity just so a party state may
employ interpretive tools such as “course of conduct” to try to defeat that
express term.
Appellees also argue that the Compact does not supersede conflicting
Texas law because the Compact does not expressly state that it supersedes
conflicting state law. Appellees’ Brief at 53. The only exception to the
general principle that member states cannot unilaterally impose individual
state law on a compact or a compact-created commission is a compact which
specifically reserves to the member states the authority to impose individual
state law in an area governed by a compact. See Seattle Master Builders,
786 F.2d at 1371; Cal. Dep’t of Transp. v. City of S. Lake Tahoe, 466 F.
Supp. 527, 537 (E.D. Cal. 1978) (application of state law to a bi-state entity
is “precluded unless the Compact reserves . . . the right to impose such
requirements.”). Thus, whether or not the compact says so, a state may not
override a compact term with subsequent legislation unless the compact
reserves the right to do so. Again, silence creates neither a presumption that
28
such a prerogative exists nor an “ambiguity” as to whether there is such a
reservation of rights. See Broun, supra, at 19, 24.
By way of example, of the five different compacts addressed in the
five cases discussed in Section III.B, supra, only one of those compacts (the
Driver’s License Compact) contains a provision specifying the relationship
between the compact and conflicting state law, yet in every one of the five
cases, the courts concluded that the compact prevailed over conflicting state
law. In addition, as discussed above, there have only been two cases in the
entire history of compact jurisprudence in which a court has concluded that
state law applies unless specifically rejected by a compact; one case was
quickly overruled, and the other misapplied the prior case law that it claimed
to follow. Although courts may use variable language, the basic and
uniformly applied rule is that conflicting state law may only apply when the
compact specifically preserves it.
V. THE DECISION OF THE TRIAL COURT SERIOUSLY
UNDERMINES THE ENFORCEMENT OF OTHER COMPACTS
ENACTED BY TEXAS
The lower court’s decision and the Appellees’ arguments not only
ignore the Appellant’s interests but upset the delicate balance established
within the entire system of administrative and regulatory compacts,
negotiated by and between the states as sovereign entities. Contract law,
29
unlike regular statutory interpretation, has a clear and generally accepted
purpose to foster the voluntary agreements of parties by enforcing norms and
protecting expectation interests. See, e.g., Randy E. Barnett, A Consent
Theory of Contract, 86 Colum. L. Rev. 269 n.153 (1986) (“the purpose of
contract law is to support the practice of undertaking voluntary
obligations.”); Alan E. Garfield, Promises of Silence: Contract Law and
Freedom of Speech, 83 Cornell L. Rev. 261, 299 (1998) (contract law seeks
to “protect the reasonable expectations that the parties will perform a
contract.”). Because compacts are also contracts, the courts should protect
the expectation interests of the compact states when it interprets and applies
compact provisions. This is even more appropriate for interstate compacts
than contracts between private parties; again, the Eighth Circuit’s apt
description of compacts explains why.
While a common law contract directly affects only the rights
and obligations of the individual parties to it, an interstate
compact may directly impact the population, the economy, and
the physical environment in the whole of the compact area. A
suit alleging that a state has breached an obligation owed to its
sister states under a congressionally approved interstate
compact also raises delicate questions bearing upon the
relationship among separate sovereign polities with respect to
matters of both regional and national import.
Entergy, 358 F.3d at 542 (citations omitted).
The failure of both the trial court and Appellees to recognize such
expectations substantially impairs the stability and uniformity upon which
30
compact member states rely, including compliance and enforcement of their
obligations. The decision below also significantly diminishes the proper
authority of interstate compacts, as well as their unique role in state-federal
relations. The Compact Amici have a vested interest in this matter given
that the lower court’s decision effectively allows Texas, or, by extension of
its logic, any other compact member state unilaterally to contravene the
uniform requirements of not just the Compact but other interstate compacts
which Texas has enacted. This impermissible allowance of a unilateral
amendment of the terms of an interstate compact by one member state has
serious implications not only for the Appellant, but also for the other
interstate compacts represented herein and other compacts across the nation,
whose authority to regulate both juvenile offender transfers and child
welfare placements is dependent upon the validity of compact law.
VI. CONCLUSION
The lower court’s failure to apply settled principles of compact
jurisprudence has resulted in an erroneous decision that, if left in place,
improperly allows Texas to unilaterally avoid its obligation to provide
taxpayers a choice with respect to electing a different apportionment formula
as a matter of right. Even if Texas intended to supersede the uniform
apportionment formula provided under the compact, it could not do so by
31
unilaterally enacting a conflicting statute and instead was required to directly
repeal the Compact. This decision not only prevents the Appellant of
availing itself of the option which the Compact was specifically enacted to
provide but it undermines the authority of other legislatively approved
compacts to which Texas and all other states are members. As a result,
Amici join the Appellant in requesting that the decision of the trial court be
reversed, and that the District Court be directed to enter summary
disposition in favor of Appellant.
32
RESPECTFULLY SUBMITTED this 7th day of May, 2015.
/s/ Richard L. Masters
RICHARD L. MASTERS
(Kentucky State Bar No. 44606)
/s/ Jeffrey B. Litwak
JEFFREY B. LITWAK
(Oregon State Bar No. 973170)
ATTORNEYS FOR AMICI CURIAE
INTERSTATE COMMISSION FOR
JUVENILES & ASSOCIATION OF
COMPACT ADMINISTRATORS OF
THE INTERSTATE COMPACT ON
THE PLACEMENT OF CHILDREN,
AND JEFFREY LITWAK
CERTIFICATE OF COMPLIANCE
This computer-generated document created in Microsoft Word
complies with the typeface requirements of Tex. R. App. P. 9.4(e) because it
has been prepared in a conventional typeface no smaller than 14-point for
text and 12-point for footnotes. This document also complies with the word-
count limitations of Tex. R. App. P. 9.4(i), if applicable, because it contains
6842 words, excluding any parts exempted by Tex. R. App. P. 9.4(i)(1). In
making this certificate of compliance, I am relying on the word count
provided by the software used to prepare the document.
/s/ Richard L. Masters_________
Richard L. Masters
/s/ Jeffrey B. Litwak__________
Jeffrey B. Litwak
33
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Amici
Curiae Brief of The Interstate Commission for Juveniles, The Association of
Compact Administrators of the Interstate Compact on the Placement of
Children, and Jeffrey Litwak, In Support of Appellant has been
electronically filed and served on all counsel below on May 7, 2015.
Rance Craft
Assistant Solicitor General
Rance.Craft@texasattorneygeneral.gov
Cynthia A. Morales
Cynthia.Morales@texasattorneygeneral.gov
Assistant Attorney General
OFFICE OF THE ATTORNEY GENERAL
P.O. Box 12548 (MC 059)
Austin, Texas 78711-2548
(512) 936-2872
(512) 474-2697 fax
ATTORNEYS FOR APPELLEES
Amy L. Silverstein James F. Martens
asilverstein@sptaxlaw.com jmartens@textaxlaw.com
SILVERSTEIN & POMERANTZ LLP MARTENS, TODD, LEONARD,
12 Gough Street, #2 TAYLOR & ALRICH
San Francisco, California 94103 301 Congress Avenue, Suite 1950
(415) 593-3502 Austin, Texas 78701
(415) 593-3501 fax (512) 542-9898
(512) 542-9899 fax
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLANT
/s/ Richard L. Masters_________
Richard L. Masters
/s/ Jeffrey B. Litwak__________
Jeffrey B. Litwak
34