Maryland v. Louisiana

Justice Rehnquist,

dissenting.

There is no question that this controversy falls within the literal terms of the constitutional and statutory grant of original jurisdiction to this Court. U. S. Const., Art. III, § 2, cl. 2; 28 U. S. C. § 1251 (a) (1976 ed., Supp. III). As the Court stated in Illinois v. Milwaukee, 406 U. S. 91, 93 (1972), however, “[w]e construe 28 U. S. C. § 1251 (a)(1), as we do *761Art. III, § 2, cl. 2, to honor our original jurisdiction but to make it obligatory only in appropriate cases.” Because of the nature of the interests which the plaintiff States seek to vindicate in this original action, and because of the existence of alternative forums in which these interests can be vindicated, I do not consider this an “appropriate case” for the exercise of original jurisdiction. The plaintiff States have not, in my view, established the “strictest necessity” required for invoking this Court’s original jurisdiction, Ohio v. Wyandotte Chemicals Corp., 401 U. S. 493, 505 (1971), and therefore I would grant defendant Louisiana’s motion to dismiss the complaint.

I

It has been a consistent and dominant theme in decisions of this Court that our original jurisdiction should be exercised with considerable restraint and only after searching inquiry into the necessity for doing so. As we noted in Illinois v. Milwaukee, “[i]t has long been this Court’s philosophy that 'our original jurisdiction should be invoked sparingly.’ ” 406 U. S., at 93 (quoting Utah v. United States, 394 U. S. 89, 95 (1969)). Chief Justice Fuller wrote in 1900 that original “jurisdiction is of so delicate and grave a character that it was not contemplated that it would be exercised save when the necessity was absolute . . . .” Louisiana v. Texas, 176 U. S. 1, 15. The reasons underlying this restraint have also been long established. The Court has wisely insisted that original jurisdiction be sparingly invoked because it is not suited to functioning as a nisi prius tribunal. “This Court is . . . structured to perform as an appellate tribunal, ill-equipped for the task of factfinding and so forced, in original [jurisdiction] cases, awkwardly to play the role of fact-finder without actually presiding over the introduction of evidence.” Ohio v. Wyandotte Chemicals Corp., supra, at 498.1 *762Over 40 years ago, when the Court’s docket was considerably lighter than it is today, Chief Justice Hughes articulated the concern that accepting original-jurisdiction cases “in the absence of facts showing the necessity for such intervention, would be to assume a burden which the grant of original jurisdiction cannot be regarded as compelling this Court to assume and which might seriously interfere with the discharge by this Court of its duty in deciding the cases and controversies appropriately brought before it.” Massachusetts v. Missouri, 308 U. S. 1, 19 (1939). The Court has recognized that expending its time and resources on original-jurisdiction cases detracts from its primary responsibility as an appellate tribunal. “The breadth of the constitutional grant of this Court’s original jurisdiction dictates that we be able to exercise discretion over the cases we hear under this jurisdictional head, lest our ability to administer our appellate docket be impaired.” Washington v. General Motors Corp., 406 U. S. 109, 113 (1972). See also Illinois v. Milwaukee, supra, at 93-94 (“We incline to a sparing use of our original jurisdiction so that our increasing duties with the appellate docket will not suffer”). Original-jurisdiction cases represent an “intrusion on society’s interest in our most deliberate and considerate performance of our paramount role as the supreme federal appellate court . . . .” Ohio v. Wyandotte Chemicals Corp., supra, at 505.

None of these concerns are adequately answered by the expedient of employing a Special Master to conduct hearings, receive evidence, and submit recommendations for our review. It is no reflection on the quality of the work by the Special Master in this case or any other master in any other original-jurisdiction case to find it unsatisfactory to delegate the *763proper functions of this Court. Of course this Court cannot sit to receive evidence or conduct trials — but that fact should counsel reluctance to accept cases where the situation might arise, not resolution of the problem by empowering an individual to act in our stead. I for one think justice is far better served by trials in the lower courts, with appropriate review, than by trials before a Special Master whose rulings this Court simply cannot consider with the care and attention it should. It is one thing to review findings of a district court or state court, empowered to make findings in its own right, and quite another to accept (or reject) recommendations when this Court is in theory the primary factfinder. As Chief Justice Stone put it in Georgia v. Pennsylvania R. Co., 324 U. S. 439, 470 (1945) (dissenting opinion): “In an original suit, even when the case is first referred to a master, this Court has the duty of making an independent examination of the evidence, a time-consuming process which seriously interferes with the discharge of our ever-increasing appellate duties.”

II

The prudential process by which the Court culls “appropriate” original-jurisdiction cases from those which are inappropriate involves two inquiries. In Massachusetts v. Missouri, supra, at 18, the Court noted:

“In the exercise of our original jurisdiction so as truly to fulfill the constitutional purpose we not only must look to the nature of the interests of the complaining State — the essential quality of the right asserted — but we must also inquire whether recourse to that jurisdiction . . . is-necessary for the State’s protection.”

This dual inquiry was reaffirmed in Washington v. General Motors Corp., supra, at 113. Or, as put in Illinois v. Milwaukee, 406 U. S., at 93, “the question of what is appropriate concerns, of course, the seriousness and dignity of the claim; yet beyond that it necessarily involves the availability of an*764other forum where there is jurisdiction over the named parties, where the issues tendered may be litigated, and where appropriate relief may be had.” The first prong of the inquiry thus involves an assessment of the “nature of the interests of the complaining state,” “the essential quality of the right asserted,” “the seriousness and dignity of the claim,” and the second prong an examination of the availability of an alternative forum.

The Court accepts original jurisdiction in this case for two separate reasons: because the plaintiff States are injured in their capacity as purchasers of natural gas, ante, at 736-737, and because the plaintiff States may sue as parens patriae, ante, at 737-739. In ruling that jurisdiction exists because of the plaintiff States’ own purchases of natural gas, the Court does not even purport to consider the nature or essential quality of the States’ claim or whether it is of sufficient “seriousness and dignity” to justify invoking our “delicate and grave” original jurisdiction. The Court recognizes that “unique concerns of federalism” form the basis of our original jurisdiction, ante, at 743, but does not explain how such concerns are implicated simply because one State levies a tax on an item which is eventually passed on to consumers, one of which happens to be another State. The “nature of the interests of the complaining state — the essential quality of the right asserted” is indistinguishable from the interest and right of a private citizen, and the States’ claim is of no greater “seriousness and dignity” than the claim of any other consumer.

I would hold that, as a general rule, when a State’s claim is indistinguishable from the claim of any other private consumer it is insufficient to invoke our original jurisdiction. The Court in the past has referred to claims by a State in its capacity simply as consumer or owner as mere “makeweights.” See Georgia v. Pennsylvania R. Co., supra, at 450; Georgia v. Tennessee Copper Co., 206 U. S. 230, 237 (1907) ; see also Pennsylvania v. West Virginia, 262 U. S. 553, 611 *765(1923) (Brandeis, J., dissenting). Cf. Kansas v. Colorado, 206 U. S. 46, 98 (1907). I do not think such a makeweight should suffice to invoke our original jurisdiction, particularly since States now act as consumers in a vast array of areas.

The fact that States now purchase countless varieties of items for their own use which were not purchased 50 or even 25 years ago suggests that concern for our own limited resources is not the only factor which should motivate us in allowing our original jurisdiction to be invoked sparingly. With the greatly increased litigation dockets in most state and federal trial courts, there will be the strongest temptation for various interest groups within the State to attempt to persuade the Attorney General of that State to bring an action in the name of the State in order to make an end run around the barriers of time and delay which would confront them if they were merely private litigants.2 Thus in permitting indiscriminate use of our original jurisdiction we not only consume our own scarce resources, but permit in effect the bypassing of ordinary trial courts where private parties are required to litigate the same issues. Such a departure from past practice risks the creation of an entirely separate system for litigation in this country, standing side by side with the state-court systems and the federal-court system. It will obviously be tempting to many interests of a variety of persuasions on the merits of a particular issue to “start at the top,” so to speak, and have the luxury of litigating only before a Special Master followed by the appellate-type review which this Court necessarily gives to his findings and recommendations.

If all that is required to invoke our original jurisdiction *766is an injury to the State as consumer caused by the regulatory activity of another State, the list of cases which could be pressed as original-jurisdiction cases must be endless. The Court’s opinion contains no limiting principle, as mandated by the frequent statements that our original jurisdiction be sparingly invoked and the required inquiry into the nature of the State’s claim.

I would require that the State’s claim involve some tangible relation to the State’s sovereign interests. Our original jurisdiction should not be trivialized and open to run-of-the-mill claims simply because they are brought by a State, but rather should be limited to complaints by States qua States. This would include the prototypical original action, boundary disputes, and the familiar cases involving disputes over water rights. In such cases, the State seeks to vindicate its rights as a State, a political entity.3 Since nothing about the complaint in this case involves sovereign interests, I would hold that there is no jurisdiction on the basis of the States’ own purchases of natural gas.4

*767Nor is this an appropriate case for the plaintiff States to invoke original jurisdiction as parens patriae. The Court announces that a State may sue in this capacity in an original action “where the injury alleged affects the general population of a State in a substantial way,” ante, at 737, but the established rule, which may be different than the Court’s paraphrase, was articulated in Pennsylvania v. New Jersey, 426 U. S. 660, 665 (1976) (per curiam) in these terms: “It has . . . become settled doctrine that a State has standing to sue only when its sovereign or quasi-sovereign interests are implicated and it is not merely litigating as a volunteer the personal claims of its citizens.” In Oklahoma ex rel. Johnson v. Cook, 304 U. S. 387, 394 (1938), Chief Justice Hughes stressed that the principle that a State may sue as parens patriae “does not go so far as to permit resort to our original jurisdiction in the name of the State but in reality for the benefit of particular individuals, albeit the State asserts an economic interest in the claims and declares their enforcement to be a matter of state policy.”

Here the plaintiff States are not suing to advance a sovereign or quasi-sovereign interest. Rather they are suing to promote the economic interests of those of their citizens who purchase and use natural gas. Advancing the economic interests of a limited group of citizens, however, is not sufficient to support parens patriae original jurisdiction. In Oklahoma v. Atchison, T. & S. F. R. Co., 220 U. S. 277, 289 (1911), the Court ruled that a State had no standing to challenge in an original action unreasonable freight rates imposed by citizens of another State affecting shippers within the State. In New Hampshire v. Louisiana, 108 U. S. 76 (1883), *768the Court rejected an effort by New Hampshire to collect as assignee on Louisiana state bonds, when the proceeds would end up in the hands of the assignors, New Hampshire citizens. And in North Dakota v. Minnesota, 263 U. S. 365 (1923), the Court turned back an effort by the plaintiff State to sue for flood damage to farmers’ land. In my view this suit, brought to benefit state consumers of natural gas, is closer to these cases than those cited by the Court, Missouri v. Illinois, 180 U. S. 208, 241 (1901) (health menace to entire State from spread of contagious diseases specifically noted); Kansas v. Colorado, 185 U. S. 125 (1902) (rights to water); Georgia v. Tennessee Copper Co., 206 U. S. 230 (1907) (rights to air in unpolluted State).

The Court relies heavily on Pennsylvania v. West Virginia, 262 U. S. 553 (1923), which it describes as “functionally indistinguishable” from the case before us. Ante, at 738-739. I think Pennsylvania v. West Virginia, decided over the dissents of Justices Holmes, Branduis, and McReynolds, is readily distinguishable, “functionally” or otherwise. The harm in Pennsylvania v. West Virginia was the threatened complete cessation of deliveries of natural gas. This harmed all the citizens of the State, since it would have prevented any of them from purchasing the natural gas. The harm involved was also far more serious than the harm in this case. In Pennsylvania v. West Virginia, the harm was the complete halt in deliveries of a commodity upon which citizens of the plaintiff State depended. The opinion there stressed the direct link to the “health, comfort and welfare” of the citizens of Pennsylvania and the serious jeopardy they would be in if their supply of heating gas were suddenly cut off. 262 U. S., at 591-592. Such a direct link to health and welfare is simply not present in this case. The distinction between an increase in the cost of a commodity passed on to consumers complained of here, and the complete cessation of a service upon which citizens depended, seems palpable.

*769III

The exercise of original jurisdiction in this case is particularly inappropriate since the issues the plaintiff States would have us decide not only can be, but in fact are being, litigated in other forums. Although this case would come within our original and exclusive jurisdiction if appropriate, the question whether it is appropriate depends in part on the availability of alternative forums. See Illinois v. Milwaukee, 406 U. S., at 93; Arizona v. New Mexico, 425 U. S. 794, 796-797 (1976).5

The precise issues which the Court finds it somehow necessary to reach today are raised in actions which are currently pending in a Louisiana state court. An action by Louisiana seeking a declaratory judgment that its First-Use Tax is constitutional is pending, Edwards v. Transcontinental Gas Pipe Line Corp., No. 216,867 (19th Judicial Dist., East Baton Rouge Parish), as is a refund suit brought by the 17 pipeline companies actually liable for the tax, Southern Natural Gas Co. v. McNamara, No. 225,533 (19th Judicial Dist., East Baton Rouge Parish). The pipeline companies raise in the Louisiana proceeding the identical challenges raised by the plaintiff States in the present case.6

In view of the foregoing I consider Arizona v. New Mexico, supra, controlling. There the Court declined to exercise orig*770inal and exclusive jurisdiction over a suit brought by Arizona challenging injury to it and its citizens as consumers of electricity generated in New Mexico and subject to a New Mexico tax. As here, the tax was imposed on utilities, not directly on the consumers. The Court quoted language from Illinois v. Milwaukee, supra, and Massachusetts v. Missouri, 308 U. S. 1 (1939), concerning the sparing use of our original jurisdiction and the appropriateness of considering alternative forums, and noted that the utilities, like the pipeline companies here, had sued in state court. The Court concluded that “[i]n the circumstances of this case, we are persuaded that the pending state-court action provides an appropriate forum in which the issues tendered here may be litigated” (emphasis in original). 425 U. S., at 797. Although the Court in this case stresses that the plaintiff States are not parties in the Louisiana state-court proceedings, in Arizona v. New Mexico we specifically emphasized that the relevant question was whether the issues could be litigated elsewhere.

IV

The basic problem with the Court’s opinion, in my view, is that it articulates no limiting principles that would prevent this Court from being deluged by original actions brought by States simply in their role as consumers or on behalf of groups of their citizens as consumers. Perhaps the principles sketched in this dissent are not the best limiting principles which could be devised, but the difficulty in developing such principles does not lessen the need for them. The absence of limiting principles in the Court’s opinion, I fear, “could well pave the way for putting this Court into a quandary whereby we must opt either to pick and choose arbitrarily among similarly situated litigants or to devote truly enormous portions of our energies to such matters.” Ohio v. Wyandotte Chemicals Corp., 401 U. S., at 504.7 The prob*771lem is accentuated in this case because it falls within our original and exclusive jurisdiction, which means that similar cases not only can be but must be brought here.

In conclusion I can do no better than quote from a dissent Justice Frankfurter penned under similar circumstances:

“Jurisdictional doubts inevitably lose force once leave has been given to file a bill, a master has been appointed, long hearings have been held, and a weighty report has been submitted. And so, were this the last as well as the first assumption of jurisdiction by this Court of a controversy like the present, even serious doubts about it might well go unexpressed. But if experience is any guide, the present decision will give momentum to kindred litigation and reliance upon it beyond the scope of the special facts of this case. . . . [L]egal doctrines have, in an odd kind of way, the faculty of self-generating extension. Therefore, in pricking out the lines of future development of what is new doctrine, the importance of these issues may make it not inappropriate to indicate difficulties which I have not been able to overcome and potential abuses to which the doctrine is not unlikely to give rise.” Texas v. Florida, 306 U. S. 398, 434 (1939).8

It is true that in this ease the Court decides that judgment on the pleadings is appropriate, and that therefore it is not necessary to conduct *762a trial. I do not understand the Court, however, to be ruling that original jurisdiction is appropriate only when a trial is not necessary, and therefore in accepting original jurisdiction of this case the Court opens the door to similar eases which may necessitate a trial.

Experience teaches that these are not empty concerns. See, e. g., New Hampshire v. Louisiana, 108 U. S. 76, 89 (1883) (State suing as assignee of bondholders, bondholders funding lawsuit and to collect any award); North Dakota v. Minnesota, 263 U. S. 365, 375 (1923) (State suing for flood damage to farmers’ land, farmers funding lawsuit and to collect any award).

Requiring that a State’s claim implicate sovereignty interests also serves the oft-repeated expression in our opinions that the Court will not interfere with action by one State unless the injury to the complaining State is of “serious magnitude.” See Alabama v. Arizona, 291 U. S. 286, 292 (1934); Colorado v. Kansas, 320 U. S. 383, 393, and n. 8 (1943). The Court cites this concern, ante, at 736, n. 11, but does not explain why a tax of seven cents per thousand cubic feet of gas is an injury of “serious magnitude.”

It is true that the Court has exercised original jurisdiction in cases where the right asserted by a complaining State cannot truly be considered a right affecting sovereign interests. I do not doubt the Court’s power to exercise original jurisdiction in such cases, nor do I in this case. The decision that a particular type of case was an “appropriate” one for original jurisdiction a century ago, however, does not mean that the same sort of case is an appropriate one today. Justice Harlan explicitly recognized in Ohio v. Wyandotte Chemicals Corp., 401 U. S. 493, 497-499 (1971), that societal changes and “the evolution of this Court’s responsibilities in the American legal system” affected the determination of what *767was an appropriate ease in which to exercise original jurisdiction. The increase in state regulatory efforts on the one hand and the role of States as consumers on the other suggests that new considerations need to be brought to bear on the present question.

The Court’s dismissal of the significance of Illinois v. Milwaukee and Ohio v. Wyandotte Chemicals Cory, as cases not within the exclusive jurisdiction of this Court thus simply does not wash. Illinois v. Milwaukee indicated the appropriateness of considering the existence of alternative forums in the context of original and exclusive jurisdiction. Arizona v. New Mexico makes the appropriateness of such consideration in original and exclusive jurisdiction cases quite clear.

The fact that the pipeline companies have seen fit to bring suit on their own behalf undermines the analysis of the Court that the consumers of the gas, both the States and the States’ citizens, are the real parties in interest. The pipeline companies obviously have a sufficient interest to justify their suit.

It is hardly satisfactory simply to note, as does the Court, that “the *771issue of appropriateness in an original action between States must be determined on a case-by-ease basis.” Ante, at 743.

Because of my views on the jurisdictional question I find it unnecessary to address the merits of this case, beyond noting that the pressure in original actions to avoid factual inquiries which this Court of course cannot make may go far to explain the entry of judgment on the pleadings over the ruling by the Special Master that further factual development is necessary to a proper resolution of the issues.