ALDINGER v. HOWARD

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Argument of Norman Rosenberg

Chief Justice Warren E. Burger: We will hear arguments next in 74-6521, Aldinger against Howard.

Mr. Rosenberg you may proceed whenever you are ready?

Mr. Norman Rosenberg: Mr. Chief Justice may it please the Court.

In 1966, this Court in the case of United Mine Worker versus Gibbs clarified and explained the doctrine of pendent jurisdiction.

In this lengthy and comprehensive opinion, the Court referred to the joinder of claims.

It did not refer to the joinder of parties specifically and that raises the issue that is before you today.

And this issue is this.

Whether the District Court has the power to assert pendent jurisdiction over claims, State Law Claims that are appropriately related to existing Federal claims against the party over whom there is no independent of basis of Federal jurisdiction.

Now since Gibbs this issue—

Unknown Speaker: Against whom no other claim is pending, is that right?

Mr. Norman Rosenberg: Yes your Honor that is correct.

Now since Gibbs this issue has arisen on a number of occasions and in many different factual settings and context.

Now, the very simple facts of this case raise the issue quite clearly and I would like to set them forth very briefly.

The petitioner was fired from her public position in the County Treasurers Office.

The County Treasurer fired her and then published in a letter that her work was excellent but that she had been living with her boyfriend, that this is un-true as of no importance to this situation.

Obviously, though these facts raised both Federal and State law causes of action.

Unknown Speaker: Would their clearly be a cause of action under State law in Washington?

Mr. Norman Rosenberg: Yes there would your Honor.

Chief Justice Warren E. Burger: Against the County?

Mr. Norman Rosenberg: Against the County, yes sir.

Because under Washington law the County is specifically liable for the torts of its officers, agents and employees.

The complaint filed in the District Court asserted federal jurisdiction over the federal claims against both parties and State claim and asserted pendent jurisdiction over the State claims that existed as well.

Unknown Speaker: As you look at complaint where was a State cause of action stated?

Mr. Norman Rosenberg: You Honor the –

Unknown Speaker: Where in the appendix?

I could not find it?

Mr. Norman Rosenberg: Your Honor that is one of the things I feel obligated to explain.

This complaint is not well drafted.

There are sufficient matters and sufficient allegations in it to raise the state claims under appropriate rules of federal procedure and pleading.

Unknown Speaker: I read this carefully and I just could not find a state claim cause of action stated?

Mr. Norman Rosenberg: Okay.

Unknown Speaker: If there is not any, why then this question assertedly involved in this case does not exist, does it?

Mr. Norman Rosenberg: If that is true, it does not exist, but it does exist, they are statements.

Okay, first of all, the State claims are this, in the appendix the complaint is on page 12.

First of all, the State claims are the intentional invasion of the petitioner’s privacy, the intentional infliction of emotional distress, the tort of libel perhaps slandered.

Now, let me go through the complaint and show where the allegations are your Honor.

First of all the county is named, that is in the caption.

Secondly, the the treasurer is named as a County Official and the county is being sued and the Treasurer is being sued in his capacity as County Official.

Fourth, in paragraph six on page 14, it says defendant Spokane County is a public corporation and an action may be maintained against it.

And of course, the complaint asserts that pending jurisdictions made.

Unknown Speaker: This maybe maintained against it but where is any cause of action stated under State law?

Mr. Norman Rosenberg: Well, the list of State claims is not there but sufficient facts are available Your Honor to show that a claim is available against that County.

Unknown Speaker: You are entitled to go back and file a complaint stating a cause of action under the State law but I cannot find any stated here.

Mr. Norman Rosenberg: Your Honor under Civil Rule eight, under notice pleadings we have alleged enough facts.

Let me a list the facts for you?

Chief Justice Warren E. Burger: Can you identify the place we will find them as we go along so we can mark it up.

Mr. Norman Rosenberg: Yes Your Honor.

In the appendix on page 12, all facts in record are in the amended complaint.

Now with that complaint reflects is that there was a firing, the stated reasons for firing, the committing of the reasons or the expression of the reasons.

Chief Justice Warren E. Burger: But generally, ordinarily a complaint must do more than reflect, it must allege, is that not so?

Mr. Norman Rosenberg: Yes sir.

The issue in this case is whether the District Court has the power to deal with these.

Now, the Court had the power to cause us to amend the pleadings.

He could have dismissed under Rule 12 (b) (6).

He could have entertained a motion to strike, a motion for a more specific statement.

I submit that the power of question is the threshold question that this Court must deal with before the District Court has the opportunity to help us straighten out our complaint.

Unknown Speaker: The question that you said the Court must the preliminary deal with arises if and only if a cause of action is stated under State law.

Mr. Norman Rosenberg: Yes sir.

Unknown Speaker: You would agree with that?

Mr. Norman Rosenberg: Yes.

Unknown Speaker: And I just still have trouble seeing where if anywhere is one stated?

Mr. Norman Rosenberg: Well your Honor the case of Conley v. Gibson would have to guide the Court in that determination.

And of course Conley is concerned with the District Court’s dismissal under Rule 12 (b) (6).

And if I could quote something very briefly from Conley, I think you will find that we have stated sufficient facts to apprise the county of the nature of the claim against it.

Conley states on page 45, in appraising the sufficiency of the complaint, we follow of course the accepted rule that a complaint should not be dismissed for failure to the state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle to him to relief.

Unknown Speaker: Mr. Rosenberg, I noticed in paragraph 1 of your complaint on page 12 of the appendix and again in paragraph 20 on page 16, you say that in as much as the plaintiff’s dismissal was authorized by 36.16 of the Revised Code of Washington, that statute on its face is violated plaintiff’s rights on the First and Fourteenth Amendments, doesn't that kind of militate against your contention that there was a state law of claim.

Mr. Norman Rosenberg: No sir.

No State law, no Local Ordinance regulation can empower anyone, a state official, a county official or anyone else to violate someone’s civil rights.

Justice William H. Rehnquist: Well, but that, if the State of Washington has a statute that as you say in your complaint, specifically authorizes a dismissal, it may be totally unconstitutional but can you consistently with that statement statute maintain that the State Courts would grant you State relief?

Mr. Norman Rosenberg: If a tort was involved and—

Unknown Speaker: In the State Court’s your cause of action would be a federal cause of action because your claim would be that the state law violates the federal constitution.

Mr. Norman Rosenberg: No sir, your Honor.

You are ignoring the state law claim of libel, slander, intentional infliction of emotional distress.

Unknown Speaker: It is not stated here, at least I cannot find it, I tell you, you have not pointed it out.

Justice Thurgood Marshall: That is what the statute said and not mentioned in here.

Mr. Norman Rosenberg: Your Honor I admit that.

I concede that point.

But I also suggest very strongly that we can fix this complaint up so that it has suitable state law claims in a list.

Unknown Speaker: (Inaudible)

Mr. Norman Rosenberg: Your Honor this actions is —

Unknown Speaker: (Inaudible)

Mr. Norman Rosenberg: Your Honor?

Justice Thurgood Marshall: Can you hear me?

Mr. Norman Rosenberg: This case is staid in the District Court pending the outcome of the power question.

If that Court has the power to consider the state claims I guarantee you that he will assist us to make them more clear to him.

Justice Thurgood Marshall: The Court would draw a complaint for you?

Mr. Norman Rosenberg: No sir.

We will draw the complaint.

Unknown Speaker: (Inaudible)

Mr. Norman Rosenberg: No sir, I would like you not to deal with this issue.

I would like you to get to the power question that is before you.

The District Court dismissed all the claims against this Spokane County.

It dismissed the federal claims in light of Moor v. County of Alameda and then it dismissed the State Law claims simply by stating that it no longer had an independent basis of Federal jurisdiction, so it could entertain them.

Now, the District Court recognized the problems that it had and it dismissed the State Law claims without getting to the merits of them in the way that it felt would be the clearest possible way to point out the incongruity that exists in the Federal System.

The order of the dismissal states it very clearly that he did not get to the merits and that he dismissed solely because he has not the power and he included the Rule 54 (b) certificate and a certificate pursuant to 28 U.S. Code 1292.

We went directly to the Court of Appeals for the Ninth Circuit who affirmed and certiorari by this Court was granted.

Meanwhile, the proceedings are staid in the District Court.

Now the incongruity that the Court tried to point out was that the Gibbs case is being misconstrued and misapplied in two clearly opposing and exclusive ways.

The joinder of claims very easily could contemplate the joinder of parties in a number of cases.

And the majority of the Circuits and District Courts have held that, inappropriate cases parties are accidentally joined.

The Ninth Circuit however has ruled that there is absolutely no power to join parties and these claims cannot be joined, no matter what the circumstance, no matter how closely related to the Federal claims.

The Ninth Circuit admits that support for its position is eroding and this Court pointed out in Moor v. County of Alameda that the Ninth Circuit stood virtually alone in its inflexible lack of power theory.

Well, the answer to this question is a difficult one and it requires this Court to put itself in the place of the District Courts that contend daily with a very heavy docket and a very large trial case load.

And what is the answer?

The answer that the District Courts have found in many cases is to join all possible claims that are related to one another and try them all in one suit and dispose off them simultaneously and pendent jurisdiction allows them to do this, especially pendent jurisdiction with respect to the joinder of parties.

Unknown Speaker: Could you have sued of all the parties that you wanted to sue in the Superior Court of Spokane County?

Mr. Norman Rosenberg: Yes.

We could have your Honor.

Unknown Speaker: You could have gotten all the relief in the Washington State Court system and I take it that you could have gone in the Federal System?

Mr. Norman Rosenberg: Sure, we could have your Honor.But the petitioner felt and I agree that it is unwise to sue Spokane County and an officer of Spokane County in Spokane County Superior Court.

She was given a Federal cause of action and felt that it would be the wiser choice to make.

Chief Justice Warren E. Burger: (Inaudible) by taxpayers and contractors suing in the State Courts and are you suggesting that some sort of conflict of interest or some lack of capacity on the State Courts to deal with this kind of a problem?

Mr. Norman Rosenberg: No sir.

I am suggesting simply that as a tactical matter it was felt wiser not to sue Spokane County in Spokane County Superior Court.

Chief Justice Warren E. Burger: Tell me very much?

Mr. Norman Rosenberg: I am afraid I cannot tell you more than that because I was not present at that the time.

At this point, we will agree analysis.

I would feel that I agree with a number of studies that have been made with regard to the distinction between Federal and State jurisdiction and I feel that in Federal question cases there is a strong Federal policy to keep the cases in Federal Court.

I would refer this Court to page 51 of the opening brief.

In the footnote there is quotations from an American Law Institute Study on the division of jurisdiction and it gives three very good reasons why Federal cases should be heard in Federal Court.

Unknown Speaker: But of course under Judge Neil’s through that ruling, your Federal case would be heard in Federal Court.

It is just your state law claim that would not be heard there.

Mr. Norman Rosenberg: Yes sir.

And judicial economy convenience are the primary considerations that the Court should consider when electing to join or not join pendent claims or pendent parties.

Pendent jurisdiction is a doctrine of discretion.

The Court may or may not join as it sees fit and the reasons frequently cited are judicial economy, convenience to the parties, avoidance of piecemeal litigation.

There are a number of very good reasons.

Unknown Speaker: Do you see any difference in the pendent claim issue that was passed on in Gibbs and the pendent party issue that is whether where you already have all the parties properly before the Federal Court to say will add a claim by one against the other because there are already existing Federal claims against them and the pendent party case situation that you have here or the party is not here in Federal Court by virtue of any other Federal claim, indeed by no Federal claim at all.

Mr. Norman Rosenberg: That is correct but I see no significance in that distinction your Honor.

Unknown Speaker: What about the party that you are talking about the deficiency in economy that party might make some sense, if he is already there to say you would also try up some other claims and rising out of the same transaction.

Mr. Norman Rosenberg: Your Honor that party is there available to be sued and will be sued in one Court or the other.

The question is whether we will have two trials or one of precisely and exactly the very same issue.

By State Law, the county is liable for the torts of its officers.

That means that the trials that we are going to have over the state claims against the treasurer are exactly the same trial that we will have over the state claims against the county identical in every way?

Chief Justice Warren E. Burger: In Washington State Courts do you have intermediate Court of Appeal between your Trial Court and your Superior Court and the State Supreme Court?

Mr. Norman Rosenberg: Yes sir.

Chief Justice Warren E. Burger: And the Supreme Court sits down on Olympia?

Mr. Norman Rosenberg: Yes sir.

Chief Justice Warren E. Burger: Are you talking about judicial economy and convenience of the parties, I should think it is much more convenient to try a case up in Spokane until down in to Olympia on your appeal and come all the way here?

Mr. Norman Rosenberg: Well, Your Honor we did not anticipate an appeal on this procedural issue we have been trying to get to Court for a long time.

The Federal Court and the County Superior Court are within six blocks of one another.

The county is -- it is just as convenient for the county to go to one as the other.

Unknown Speaker: The State Court described both the Federal and the state claim together?

Mr. Norman Rosenberg: That is true.

There is no question about that.

Unknown Speaker: And that is all you want to talk about one or two trials, there is one place at least, there is no question but what you can have is just one trial.

That is the State Court.

Mr. Norman Rosenberg: Yes sir.

Keep in mind however that this doctrine arises not only in this particular case but it cuts across jurisdiction lines.

It comes up with respect to virtually every jurisdiction granting basis of Federal jurisdiction and there are some that are exclusively Federal. What happens in those cases, when the party came up to the State Court?

In this case we happen to be able to but we made a choice of forums that was open to us under the Federal and State law.

Unknown Speaker: (Inaudible) brought to the state issued the Federal Court independently?

Mr. Norman Rosenberg: That is true.

At this point it is probably important for me to recite some of the considerations that the Courts have found in joining pendent parties not only claims but parties as well in virtually every basis of Federal jurisdiction, it is plaintiffs and defendants have been joined in Federal question cases, diversity cases, Taft-Hartley cases, Gibbs was a Labor Management Relations Act case, Federal Employers Liability Act cases, SEC cases, civil rights cases, patent-copyright cases, admiralty cases.

No one could possibility foretell the combination of federal and state clams that will arise.

And that is why pending jurisdiction is the appropriate vehicle to deal with this situation.

While the Court has the power to join it does not have the obligation to join.

It may join, if it feels it appropriate.

Now the Gibbs Court set out an appropriate test that is as appropriate now as it was then.

And that test is this.

First of all, the Court must consider the substance of the claims.

Obviously, if there is strong federal policy to keep it in Federal Court then the Court should do that.

Are the state claims such that they would confuse the issue.

Unknown Speaker: Mr. Rosenberg, let me just get me something sorted down my mind, how could there ever be a Federal Policy favoring keeping the state claim in the Federal Court because by hypothesis, is not your state claim always one that could not have been brought in Federal Court in first instance at least against the particular defendant that you are seeking to bring in the Federal Court.

Mr. Norman Rosenberg: Yes Mr. Chief Justice Stevens.

I think I made a slip, I meant of the Federal cause of action.

There is strong Federal Policy to keep some in Federal Court and in others, there is no strong Federal Policy.

For example, in a diversity basis of jurisdiction it makes no difference whether the Federal Court keeps it or not because they are applying state law.

In some Federal question cases, there is exclusive jurisdiction in the Federal Court and it has sustained Federal Court.

Unknown Speaker: Is it not correct that every situation with which your concerned would necessarily be the common law or state law claim and the kind that would be brought in the Federal Court only on diversity grounds if they were diversity?

Mr. Norman Rosenberg: No sir, no sir, not all.

This is raised in virtually every jurisdiction granting basis of jurisdiction.

Unknown Speaker: Not against the defendant whom you cannot sue in Federal Court?

Mr. Norman Rosenberg: That is true.

But there is a claim against somebody who is appropriately and closely related to the other defendant.

Now, we are in Federal Court already, there is an existing Federal claim.

The question is simply, may we join the appropriately and closely related state claims.

And have one trial of all the issues that are raised out of the set facts or two.

Unknown Speaker: Would you prevail against the statute on the Federal claim that same record entitled you to prevail against the County, I think you told this on the state claim because under Washington law the county is responsible if it is treasurer is responsible, is that right?

Mr. Norman Rosenberg: No sir.

The county is not responsible, the county maybe liable.

We would have to proceed against the county and sue them and try the case again.

Unknown Speaker: I do not know I say if -- if you can join the county, that is pendant party then you would have only one record, would you not?

Mr. Norman Rosenberg: Yes sir.

If we can join the county we have to—

Unknown Speaker: It is the same record you would rely on for a recovery against the treasurer on the Federal claim, is that right?

Mr. Norman Rosenberg: No sir.

There are different claims involved, there is a federal claim and they are a separate state claims. Now the state claim --

Unknown Speaker: I know but would the evidence on both be the same?

Mr. Norman Rosenberg: Identical.

Unknown Speaker: Alright and if the evidence satisfied your Federal claim against whom?

Mr. Norman Rosenberg: The federal claim is against the treasurer.

Unknown Speaker: Alright.

And the state claim would be against the county, the (Inaudible), employer, no?

Mr. Norman Rosenberg: No sir.

There are state claims against the treasurer as well.

Unknown Speaker: I see.

Mr. Norman Rosenberg: And it is those state claims against the treasurer that are identical with the state claims against the county.

There is a separate federal claim, there are separate elements.

Unknown Speaker: Did you prevail on the state claims rather – if the same evidence would you entitle you to prevail on both the state and federal claims against treasurer, is that it?

Mr. Norman Rosenberg: Very similar evidence.

There is a few extra ingredients in the federal claim but virtually identical evidence.

Unknown Speaker: But having a recovery against the treasurer on the state claim, does that also give you recovery against the county?

Mr. Norman Rosenberg: Well, if the county was a party, yes, because it is identical issue.

Unknown Speaker: Is that not why – and that you want to make the county a party?

Mr. Norman Rosenberg: Yes.

Unknown Speaker: So you want to make -- say the county would be a pendent party to a state claim?

Mr. Norman Rosenberg: Yes sir.

The claim against the county is a pendent claim and by virtue of the being against the county, the county is pendent party.

Unknown Speaker: Mr. Rosenberg, you get to state issue in a Federal Court as a pendent issue under Gibbs?

Mr. Norman Rosenberg: Yes sir, there is state—

Unknown Speaker: And then you want something pendent to that state claim?

Mr. Norman Rosenberg: No sir.

The state claim is to be pendent to a federal claim.

There are already state claims in the Federal Court, the state claims against the treasurer.

Unknown Speaker: And they are pendent?

Mr. Norman Rosenberg: And they are pendent to the federal claims against the treasurer.

Now we also have state claims against the county and they too should be pendent to the federal claim.

Unknown Speaker: How do we know that the evidence will be identical as you say, till we know what those state claims are?

For example, you mentioned the libel claim which you have not actually alleged in the complaint which might require proof of publication at third parties which is not a part of federal claim.

And each of your state claims might involve some fact not necessarily part of your federal claim, is that not true?

Mr. Norman Rosenberg: That is true.

And you would not know that.

The District Court will know that.

Unknown Speaker: If it is part of your burden to show that the evidence that the evidence would be substantially identical, you really have not done that until you pleaded your state claim, have you?

Mr. Norman Rosenberg: On the District Court level, that is true because the District Court must make an inquiry and determine if the case, if the two claims are reasonably related and closely related, sufficient for him to assume jurisdiction over them and he will make an inquiry in this regard.

Unknown Speaker: Can he do that on this particular pleadings?

Mr. Norman Rosenberg: Certainly not.

Well he cannot do it whether this pleading is good or bad because he does not have the power to do it, and that is what he said in his order of dismissal.

He specifically refused to rule on the validity and whether our state claims were suitable or not.

He cannot do it whether he wants to or not.

Now, District Courts and all the other Circuits can do it but he cannot.

And that is the problem with this case.

How can a Court make a decision like this?

The Court first of all, I submit has to have the power.

Once it has the power, it has to make an inquiry and determine the nature of the claims and whether they are suitably related and the Gibbs Court sets forth an appropriate test for a relationships.

Justice Thurgood Marshall: (Inaudible) directions at all from the complaint?

Mr. Norman Rosenberg: Yes sir.

He would read the complaint to determine what the causes of action are.

He would--

Justice Thurgood Marshall: Can I ask you where would get the state action out of that complaint?

Mr. Norman Rosenberg: Your Honor, I submit and I admit that this complaint is not very well drafted.

I submit strongly however—

Justice Thurgood Marshall: It is dismissed?

Mr. Norman Rosenberg: As a matter of fact your Honor –

Justice Thurgood Marshall: Was dismissed.

Mr. Norman Rosenberg: As a matter of fact it was dismissed, it was dismissed—

Justice Thurgood Marshall: Well you said it was no good. So what are you doing confessing here?

Mr. Norman Rosenberg: No sir.

The case was dismissed in 1971.

It went to the Ninth Circuit Court of Appeals.

It was dismissed for failure to state a claim as well as abstention.

Went to the Ninth Circuit Court of Appeals, was reversed or remanded because there was a state, there was a claim stated.

Now that of course was referring to a Federal claim.

They did not get to the validity of the state claims.

But the District Court can straighten out this complaint.

He can order us to amend it.

He can dismiss it if he wishes.

He can do anything he wants to do with it.

But at this point, he does even have the power to consider it.

Chief Justice Warren E. Burger: (Inaudible) even though a high probability that the Federal District Judge seating on the case would be a Judge familiar with Washington law, he might be a Judge from one of the other States and the Circuit they are very easily.

Here you have been back and forth.

I do not exactly how many times and I take it the same six blocks from the Federal Court to the State Court works the other way.

And you could have put a new caption on this complaint.

And improved the complaint as you suggest, walk down the street and your action probably would have long since it was over.

Mr. Norman Rosenberg: We could have done that.

Chief Justice Warren E. Burger: Meanwhile your have been a very large statistic on the Federal Court systems for quite a long time.

Mr. Norman Rosenberg: Well, if the case was not dismissed in the initial rounds of pleadings, it would have been over four years ago.

Yes, we could have filed it in the State Court.

But in terms of election of remedies that are available to us, we selected the Federal Court.

Chief Justice Warren E. Burger: The time when it appeared that your only claim was a state claimed and I submit to you that that is time you should have been in the State Courts ever since then --

Mr. Norman Rosenberg: Your Honor, with do all the respect there has never been a time that there was only a state claim.

There is always been a Federal claim against the county treasurer.

There has always been that claim, except when it was dismissed and reversed to remanded.

Chief Justice Warren E. Burger: I did not say only a state claim, I said, a state claim because just as Mr. Justice White suggested, State Courts are enforcing federal claims everyday in the week.

Mr. Norman Rosenberg: Your Honor, of course this issue was not before the Court.

The fact is we are in Federal Court and the whether the Federal Court can pend state claims to it or not, whether they have the power to do that is the only issue.

Let me be as clear as I can, we are not asking this Court to rule that the District Court must hear the state claims simply that the District Court has the power to hear them and if it wishes to in the exercise of its discretion it will do that.

I feel confident that we can go back before the District Court and convince them that it is an important thing to do.

I—

Unknown Speaker: In the Moor case, that was not the outcome was it.

Mr. Norman Rosenberg: No sir.

This Court found—

Unknown Speaker: You prevail here and still lose ultimately.

Mr. Norman Rosenberg: Yes.

That is true we could.

Unknown Speaker: I believe that Courts of Appeals agree with you on pendent party.

Mr. Norman Rosenberg: The District of Columbia, the First, Second, Third, Fourth, Fifth, Six and Eight.

The Tenth—

Unknown Speaker: It is ruled on it except the Ninth.

Mr. Norman Rosenberg: No, the Ninth has ruled on it and disagrees very vehemently.

The Seventh Circuit—

Unknown Speaker: Every court agrees with you except the Ninth?

Mr. Norman Rosenberg: Yes --

Unknown Speaker: But because that has ruled on it.

Mr. Norman Rosenberg: No sir.

The Seventh does not.

The Seventh has ruled on it only once and really did not give it suitable treatment.

Unknown Speaker: (Inaudible)

Mr. Norman Rosenberg: Yes sir.

And that is understandable, I think.

Unknown Speaker: Would you -- the Court of the Appeals have ruled against you here?

Mr. Norman Rosenberg: Yes, the Ninth Circuit of Appeals.

Unknown Speaker: Yes, and so they are the only Circuit against you?

Unknown Speaker: Yes sir.

And the Seventh as well but I—

Alright, yes.

Mr. Norman Rosenberg: Let me -- I would like to read something from a very recent First Circuit of Appeals opinion in conclusion.

The First Circuit Court of Appeals was dealing with a case that had a virtually interminable history in the Federal Court System.

It had been appealed a number of times.

It was exceedingly complex, multiple parties, multiple issues and at the conclusion of the Court of Appeals treatment of it, they said this, this case is one where if there had not existed a doctrine allowing federal jurisdiction over pendent parties it would have had to be invented.

There are a number of cases where this is very important.

Unknown Speaker: You can keep it going as long as at did the—

Mr. Norman Rosenberg: I think in order to sort it all out, I think he was referring to the problems that would exist if the case was bifurcated in a number of different Courts.

He would have a bigger problem than he had right then.

I would like to reserve any time I have left.

Chief Justice Warren E. Burger: Very well Mr. Norman Rosenberg.

Mr. Brockett.

Argument of Donald C. Brockett

Mr. Donald C. Brockett: Mr. Chief Justice and members of the Court.

The difficulty that the Court is having with the complaint in this case and with the allegations contained their in are some of the problems that the county had with being joined as the party or the attempt to join the county as a party in the Federal District Court in Spokane County.

And further it would be our contention as it has been in the brief that we filed with this Court that if this Court gets beyond the complaint to a realization that there is in fact the state claim which has been alleged that could be pendent to a federal claim under the Civil Rights Action.

That it should then seriously reconsider the doctrines of the pendent and ancillary jurisdiction to determine whether or not this may not be part of the problem with the Federal Court Systems and with the numbers of cases that are filed in the Federal Court Systems at the present day.

One of the admissions, I think by counsel here is that the case could well have been filed in the Superior Court of Spokane County on the basis of the state claims, if there were any and on the basis of the federal claim of the violation of Federal Civil Rights Act.

Unknown Speaker: Do you know of any case ever filed in a Trail Court of your State stating a cause of action under 42 United States Code before 1983?

Mr. Donald C. Brockett: I do not think I know of any particular actions your Honor that has been filed in the State Courts.

But I think it is because of the fact that counsel representing individuals in civil rights case, feel as counsel stated here that it is wiser to file those cases in Federal Courts.

Unknown Speaker: The jurisdictional statute 28, United States Code 1343 conferring Federal District Court jurisdiction over such cause of action, would a State Court in Washington as matter of its jurisdiction under the law of the State have jurisdiction over a cause of action stated under 42 United States Code 1983?

Mr. Donald C. Brockett: I do not believe your Honor that that particular Section of United States Code gives exclusive jurisdiction.

Unknown Speaker: That section does not give any jurisdiction 42, volume 42, volume 28, 1343 gives jurisdiction to the Federal Courts not exclusively nor un-exclusively, it just gives federal jurisdiction.

Mr. Donald C. Brockett: Federal jurisdiction, that is correct.

Unknown Speaker: And I just wanted if your State Courts, Trial Courts had jurisdiction over a cause of action brought -- stated under 1983 --

Mr. Donald C. Brockett: I believe that they would have the jurisdiction with the Federal Court in order to hear that particular case.

Concurrent jurisdiction with the federal --No.

Unknown Speaker: (Inaudible)

Rebuttal of Norman Rosenberg

Mr. Norman Rosenberg: Not specific cases because again of the choice by counsel in filing in Federal District Courts.

Unknown Speaker: It has to bring it to the Federal District Court?

Rebuttal of Donald C. Brockett

Mr. Donald C. Brockett: Now the attempt in this particular case and I think again this is the poorest case where this Court to be deciding the matter of pendent jurisdiction in attaching a state claim to a federal claim because of the fact that the complaint itself alleges an absence of a state claim.

In fact as this Court has noted the Revised Code of Washington 36.16.070 specifically provides that the treasurer of Spokane County as any other elected official of Spokane County has the discretion to discharge at pleasure an employee and what counsel is asking in this case, what petitioner is asking is that the particular statute when and if it is ruled to be unconstitutional, or to have been applied in an unconstitutional manner would then create a state claim against the county for the action of the treasurer and would then ask that that state claim may be made pendent to the federal cause action which has been filed under the Federal Civil Rights Act.

The difficulty that the county expresses here is as much the same as the difficulty expressed to this in Court in Moor versus County of Alameda, that there is to be a system of federalism, that there is to be a distinction between the State and Federal Courts and that as Justice Rehnquist, I believe said in a recent opinion, if such an extension of pendent jurisdiction as this would allow to bring in to the case an additional party that this Court has held should not be a person under the federal civil rights action.

That that would only call for ingenious counsel to determine that there was a federal question and then determine that there should be pendent jurisdiction over any state claim that might be thought to exist and therefore would go into the Federal Court system.

The questions of jurisdiction are questions of course, of constitutional law and it has been determined and it has been written specifically in Article 3, Section 2 of the Constitution that the Federal Courts are Courts of limited jurisdiction.

Many of the writers on the extension of pendent jurisdiction and ancillary jurisdiction and the confusion between the two doctrines have indicated and the county would propose here that the Federal Court system is becoming a system of general jurisdiction by means of the use of pendent jurisdiction to allow the joining of state claims in particular cases.

And it is especially an extension which I do not believe this Court wishes to exercise in this case because it would join a party which has specific been held not to be a person under the Civil Rights Act.

The problems created by the extension of pendent jurisdiction are many and have been mentioned in various writings and I think this Court should certainly consider those problems.

Number one, the major problem is that if the State Court in considering a question of federal law should err in interpreting the federal law then it can be corrected on review by this Court.

However, if the Federal District Court would err in interpreting a state law that particular question is not subject to review by the State Courts.

And therefore this Court should consider that question and force these causes of action to be tried on the basis of state claims in State Courts with an appropriate review by this court or other Federal Courts.

Unknown Speaker: Just said is true with the respect to any diversity case, is it not?

Mr. Donald C. Brockett: That is true your Honor but I think—

Unknown Speaker: The defense could be frustrated by the fact if he is pulled down the federal side, he just cannot get a definitive state to ruling on the issue?

Mr. Donald C. Brockett: That is correct your Honor.

But the diversity case I would contend to you is a different situation in the federal question case and the allowing of the expansion of the federal question case by pendent jurisdiction.

Diversity is specifically granted to the Federal Courts on the basis of the idea historically that an individual who was the citizen of another State could not get a fair trial by coming into that particular State.

There is some questioning of that particular doctrine at present time because of the movement of society in the present day and the fact that there are many lawsuits that are brought in local jurisdictions that are in fact holding police officers liable for their conduct and I would warrant in this particular case if the facts warranted would hold the treasurer and the County liable for any tortuous conduct.

Unknown Speaker: 1969 rather disparages this once valid idea about the New Englanders getting a bad deal in some other jurisdiction and vice versa, that was not?

Mr. Donald C. Brockett: That is correct your Honor and I think that is something for this Court to consider in determining whether or not -- in fact the diversity problem has not crept into the federal question problem through the use of this.

Unknown Speaker: But diversity jurisdiction only Congress can do that?

Mr. Donald C. Brockett: That is right.

Unknown Speaker: Are suggesting, we can do something about pendent jurisdiction cases?

Mr. Donald C. Brockett: Yes, and what I am suggesting -- Excuse me.

Unknown Speaker: And ancillary jurisdiction.

Mr. Donald C. Brockett: Yes, and what I am suggesting is that this Court go back historically to the constitution and determine that the Federal Courts should have province and power only over cases arising under the constitution and laws of United States or diversity cases which as your Honor has said they can do nothing about.

I think it is ridiculous for the doctrine of ancillary or pendent jurisdiction to have allowed an extension and to in effect fill up the Federal Courts with questions that should be better heard in the State Courts.

Justice William H. Rehnquist: Well, Mr. Brockett you certainly do not need any broad doctrine like that to prevail here on your case, do you all -- you are saying is that the principle of Gibbs as to pendent claim should not be extended by this Court to the new class of pendent party.

Mr. Donald C. Brockett: Yes.

What we are saying your Honor is that specifically this Court should refuse to go any further than it has or in fact may wish to retreat from the position that it took in Moor versus County of Alameda and determine in fact that there should not even be a pendent jurisdiction over claims even though between the same parties but --

Unknown Speaker: (Inaudible)

Mr. Donald C. Brockett: Yes, and overrule Gibbs but that --

Unknown Speaker: (Inaudible)

Mr. Donald C. Brockett: And Hurn against Oursler and the other cases which this Court has decided I would refer to phrase which I found in briefing for this case that I thought was of interest from Mr. Justice Holmes in which he once said, in my opinion the prevailing doctrine has been accepted upon a subtle fallacy that never has been analyzed if I am right the fallacy has resulted in an unconstitutional assumption of powers by the Courts of the United States which no lapse of time or respectable array of opinion should make us hesitate to correct.

Now what I would say on the basis of that is that ancillary jurisdiction--.

Unknown Speaker: Citation of that statement?

Mr. Donald C. Brockett: I am sorry your Honor it is not from the case I think it is from the speech of Mr. Justice.

Unknown Speaker: But it did, it did not have to do with this subject, did it?

Mr. Donald C. Brockett: No it did not.

It was not on the question.

Unknown Speaker: Then they are from where?

Mr. Donald C. Brockett: If it were just a question of whether or not the Court should reanalyze its opinions and retreat from them if it is warranted.

I think that this Court should find that ancillary jurisdiction certainly has a role to play in the federal jurisdictional scheme of things.

Ancillary jurisdiction in its proper role is the jurisdiction of the Court to hear those matters which are ancillary to the cause before the Court on the basis of the defendant who is an unwilling party to the action, who has been brought into the action and decides that he wishes to raise a matter which is within then the ancillary jurisdiction of the Court.

The pendent jurisdiction problem however, whether it extends to claims as it was extended in this Court by Moor versus County of Alameda or more importantly whether it extends to parties who are not properly a party to the particular action as we allege, the County of Spoken is not in this case.

The Court should distinguish between those doctrines and we would submit, it should overrule the doctrine of pendent jurisdiction and not allow it within the Federal Courts.

The doctrine has created problems in this regard, it would seem appropriate that a Court either has jurisdiction over a case or it does not have jurisdiction over a case.

This Court recently in January the 28th of this year in the case of Thermtron Products, Inc. v. Hermansdorfer ruled that once a case has been removed to the Federal District Court that District Court has jurisdiction of the case and that in fact that the Court was somewhat split on the determination as to whether or not that jurisdiction could be given up and the case could be sent back to the State Court because of the crowded docket of the Federal District Court.

Unknown Speaker: Issue in that case was whether or not the District Court's order remand as reviewable?

Mr. Donald C. Brockett: That is correct.

Part of the issue was your Honor—

Unknown Speaker: There was no disagreement indicated as to the erroneous, is erroneous action in remand.

Mr. Donald C. Brockett: No.

That is correct.

I think the statements however in that case that I am referring to that I would allege in this case is appropriate is that the Court once it had jurisdiction could not give it up.

Now, the reason that I state that is for this reason, in the doctrine of pendent jurisdiction under the Moor versus the County of Alameda case, it is interesting to note that this Court has said, that some Courts have jurisdiction but do not need to exercise it, that in fact it is discretionary with the Court as to whether or not that jurisdiction should be exercised.

I would warrant and contend to this Court that we decide that either the Courts has jurisdiction which shall be exercised in all cases or it does not have the jurisdiction and the Ninth Circuit and the District Judge, Judge Neil in this Court said that he was without power to hear this particular state claim because of the fact—

Unknown Speaker: By the way I noticed that the Judge in his order dismissing and the Court of Appeals in its opinion, all refer to some state claim.

Mr. Donald C. Brockett: Well, your Honor that is the interesting --

Unknown Speaker: They just – but they were stated orally in the sense that they were provable under the facts of the case?

Mr. Donald C. Brockett: That is correct.

Although our contention is that there is a specific allegation in the complaint itself that the action as taken was warranted by State statute so that there can in fact be no (Voice Overlap).

Unknown Speaker: The law refer to whom there was one.

Mr. Donald C. Brockett: Yes.

Unknown Speaker: They stated there was one and I mean it said that these state claims?

Mr. Donald C. Brockett: They were concerned about that state claim if one existed but then retreated to the position that they had no power to even consider whether a state claim existed because of the particular doctrine.

Unknown Speaker: The one that exist as my Brother White says if you look on page 27 of the Court of Appeals opinion?

Mr. Donald C. Brockett: That is correct.

Unknown Speaker: If you look at page 20 in the record the District Judge in dismissing said, nor has this Court power to exercise pendent jurisdiction over the claims against Spokane County?

Mr. Donald C. Brockett: Yes.

And those claims were just claims that were assumed to be existing for the purpose of determining whether the Court had power to even hear the case.

And that is why the case came to this Court on the basis of the Ninth Circuit Court opinion that the Court did not have the power.

Unknown Speaker: Mr. Brockett do you read the Ninth Circuit as did the District Court as holding that there is no power and not merely that it would be an abuse of discretion exercise the power but existed.

Mr. Donald C. Brockett: That is correct.

In fact in this particular case if the cases sent back from this Court and goes back to the Federal District Court he may still exercise the discretion not to hear the case because --

Unknown Speaker: I understand, it is the District -- that is why you read that the Court of Appeals also is going up on power.

I found the opinion a little bit ambiguous but --

Mr. Donald C. Brockett: No.

I think the Ninth Circuit Court does in fact as this District Court has said before virtually stands alone in determining that the pendent jurisdiction may not be extended to pendent parties.

And that is the determination to be made in this case if this Court determines that this is an appropriate case in which to make that determination itself.

We would contend that the doctrine of removable that the doctrines of abstention and certification by the Federal District Courts are doctrines that have in fact grown up as result of the fact that the Courts do not want to exercise jurisdiction over the State law claims and that they themselves feel that these claims should be better placed in the State Courts.

That the State Court should make state law that if that law then is interrogation of federal rights that it will be ruled upon by the Federal Courts and will be appealed to this particular Court.

That otherwise the States should not have the right to rule on their own State law and as the Chief Justice has mentioned because of the Court dockets that are very crowded the Courts and Judges are required to move around and may well be in a State and diversity case for example and not be that familiar with the state law.

The Federal Court ruling upon the question of a state law may be looked to by a state legislature to give some guidance to it when in fact the state legislature should not be looking to the Federal Court determination.

That determination should be made properly by a State Court with a review under our constitutional system and system of federalism by the Federal Courts.

The petitioner in this case in the reply brief has indicated that it is absurd for the respondent to contend that this extension of the doctrine of pendent jurisdiction is being used to extend the scope of a 1983 action, Section 1983 of the United State Code.

We would contend that that is not so absurd when one looks at 15 (m) jury trials 620 at Section 27 which states this, pendent jurisdiction is used for two purposes.

One, to try common law or statutory tort claims against individual defendants sued under section 1983.

And two, to bring the city or other entity into the action thus avoiding in part the holding of Monroe versus Pape, that cities are not suable under Section 1983, we would contend that that is exactly what is happening in the Federal Court System, and by the use of the doctrine of pendent jurisdiction and by an imaginative pleading or an imaginative party, a federal cause of action is filed and then the party attempts to apply for the pendent jurisdiction over the state law claim which should not be there.

We would ask that that this Court determine that there is no power as the Ninth Circuit has said to entertain under pendant jurisdiction especially additional parties that if there is power and if there is discretion and for the Court to hear or not to hear on the basis of that power what kind of a rule will there be, that will be established throughout the country upon which all lawyers and Courts can base some consideration in a determination of the application of pendent jurisdiction.

If it is to be based upon the discretion will it not have to be on a case by case basis and if the discretion is exercised on a case by case application then how is there any rule to which one can refer.

The other difficulty is that if we are attempting to save judicial time and energy in adopting the doctrine of pendent jurisdiction, how will there be a saving of judicial time and energy if the Court has to determine on a case by case basis in the federal system whether or not the application of pendent jurisdiction and that doctrine is appropriate in that particular case.

And will it not require a review by this Court on a case by case basis as to the exercise of that discretion.

If the fairness is what is to be considered then is there a fairness to the defendant who has a right to be sued in the State Court on the basis of the state law claim and have that state law claim determined by the State Court if the action can be joined on the basis of pendent jurisdiction even though he was not a proper party to the federal question filed in the District Court.

Unknown Speaker: If he sued the treasurer and the county in the State Court, the county on a state law claims and the treasurer on the federal claim and the state claim.

And the treasurer removed to the Federal Court.

Do you think the whole case could come to the Federal Court?

Mr. Donald C. Brockett: Well, I think that that might well be a determination for the federal district judge at that point.

Unknown Speaker: What do you think the statute means, it says the entire case maybe removed?

Mr. Donald C. Brockett: I think that that might very appropriately bring the entire case into the federal system but it would be by a virtue of a move of the defendant as opposed to a move of the plaintiff who has attempted.

Unknown Speaker: The power of the question?

Mr. Donald C. Brockett: Well I think it is a power of the question when they look at it on the basis of the filing by the plaintiff and the attempt by him to join an additional party or an additional claim under pendent jurisdiction.

But I think that that power of question is better --

Unknown Speaker: If it could not be a question and if the whole case were removable I am not suggesting that it is but if it were wholly removable and the Federal Court could handle it, it would not be a jurisdictional issue?

Mr. Donald C. Brockett: Well, your Honor I would say, I would submit this that that is the proper application of the doctrine of ancillary jurisdiction as opposed to what should be distinguished in considering that jurisdiction from pendent jurisdiction.

That is the proper doctrine of ancillary jurisdiction in which the defendant has chosen to remove and the defendant who is in the Court then asks that there be a jurisdiction by appropriate joinder even though of another party who he feels is liable rather than himself.

The Twentieth United States code 1338 (b) which appears to be argued as an extension by Congress of pendent jurisdiction over patent and copyright cases, the county would allege in this case has been the only extension of that doctrine by Congressional Authority and that the other extension of pendent jurisdiction has been a Court created doctrine which this Court should carefully consider and recede from so that cases will be appropriately filed in the State Courts, the determinations will be made under state law in then if there is some difficulty with federal question or federal constitutional application, it will come in to the Federal Courts only upon that basis.

Thank you.

Chief Justice Warren E. Burger: Mr. Brockett you have just one minute left-- Mr. Rosenberg do you have anything further?

Rebuttal of Norman Rosenberg

Mr. Norman Rosenberg: Yes sir, very briefly.

I too found the Ninth Circuit Court of Appeals opinion very curious.

On the hand they affirmed that there was no power.

On the other hand he did what he did not allow the District Court to do, analyze on a case by case basis whether it was appropriate to join the case.

He said that this case was not an appropriate one to join, that is his view.

Implicitly that states that there are cases that are appropriate to join and that is the value of pendant jurisdiction.

The reason for pendent jurisdiction has had woven through it, the underlying rationale of judicial of economy and it is only the District Court that has the case before it that can decide with any effectiveness at all, whether it is appropriate to join all the claims and hear them all.

An inflexible rule will be unworkable, will cause distress and will not promote judicial economy but will cause duplication of law suit.

Thank you.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.