WYOMING v. OKLAHOMA
Legal provision: Article 1, Section 8, Paragraph 3: Interstate Commerce Clause
Argument of Neal Leader
Chief Justice Rehnquist: We'll hear argument now in No. 112 Original, Wyoming against Oklahoma.
Mr. Leader, you may proceed whenever you are ready.
Mr. Leader: Mr. Chief Justice, and maybe it please the Court:
You are asked today, I believe, to establish a dangerous precedent, not a dangerous precedent in the area of Commerce Clause law, but a dangerous precedent in the area of your original jurisdiction, for today in this original action, Wyoming makes a Commerce Clause challenge to an Oklahoma law that requires coal-burning utilities in Oklahoma who sell to Oklahoma consumers to burn at least 10 percent coal.
This challenge is brought, however, on the basis of an indirect taxing interest, an interest in collecting coal severance tax.
The essence of Wyoming's claim is that Oklahoma's law results in the private Wyoming coal producers having a smaller share of Oklahoma's coal market.
This reduction in market share, Wyoming argues, and I will argue later, but it does not prove, reduces Wyoming coal production, which in turn lowers severance tax.
Oklahoma's position is that the exercise of original jurisdiction to adjudicate a Commerce Clause challenge based on an alleged indirect loss of tax revenue is (1) inappropriate, (2) not necessary, and it will very likely popularize a new trend which I will refer to as end-running, and I will discuss that new trend in a moment.
As this Court has recognized, the exercise of original jurisdiction by this Court is a serious intrusion on society's interest in the Court's most deliberate and considerate performance of its paramount role as a supreme Federal appellate court, and original jurisdiction should only be assumed when justified by the strictest necessity.
To permit a State to maintain a Commerce Clause challenge to protect an indirect tax interest is not strictly necessary and not appropriate because it invites mischief.
It invites a new game, a game called end-running, where someone who is engaged in commerce and the commerce is taxed and they want to challenge another State's statute, but they don't want to have to come up through the district court and the appeals system, end-runs the traditional system by going to the Government and say, you taxed this, you bring an original action.
And then we wind up with an appearance of State qua State saying, we are interested in our taxes--
Unknown Speaker: You suggest that the taxpayer is going to invite the State to impose the tax just so it can run this end run?
Mr. Leader: --I am not, but--
Unknown Speaker: That's what I thought you said.
Mr. Leader: --we are dealing with commerce, Your Honor, and almost everything that moves in commerce is at one place taxed, one place or another taxed by the State, and that is why it is so dangerous in this particular area.
Unknown Speaker: Are you suggesting the State doesn't care that it loses tax revenue?
Mr. Leader: I am saying the State certainly does care, but I am stating it is not necessary for the State to come here to get relief, and therefore, original jurisdiction shouldn't allow.
Secondly, I am saying that the danger is that we have the appearance of State qua State, but we really have a State qua shill for the local industry.
Unknown Speaker: Mr. Leader, what would be the perceived advantages from the point of view of the Commerce Clause plaintiff in going for original jurisdiction rather than in coming up through either the State or Federal court system?
Mr. Leader: Having a final answer for the entire country, that... don't have to worry about being overturned so simply another time.
Secondly, I assume it is proceeded as speedier, if you get here, and can start here, you become the Court or the forum of first choice.
It saves time and money because you don't have all those layers of litigation.
So there are several advantages here that would invite the danger.
Unknown Speaker: I don't understand how we come off... you mean whenever a State has a valid interest and a sufficient interest to confer standing, article 3 standing, we should still and all inquire case by case whether somehow that interest is what?
Significant enough to justify the risk of end-running that you refer to?
I mean, I can understand an argument that there is no State interest here or not the sufficiently direct interest that would confer standing, but that is not the argument you are making.
Mr. Leader: That will be my second argument, Your Honor.
Unknown Speaker: I see.
Mr. Leader: My first argument is, because of the dangers involved here, and because of the other forums that are available, the strictest necessity test simply is not met in this kind of case.
Unknown Speaker: May I just suggest this with respect to these dangers, the parade of horrors, let me say something, we are in a pretty good position to control those dangers.
In other words, if we think there are an awful lot of these complaints being filed, we do not have to take the... allow the complaints to be filed.
Mr. Leader: You may control them, but still your docket gets clogged up.
Unknown Speaker: Well, we would just deny a leave to file the bill of complaint.
Mr. Leader: Even that takes time and other people get to--
Unknown Speaker: Well, that doesn't take an awful lot of time.
Mr. Leader: --The use of original jurisdiction is not necessary here because first, the real party's interests, the Wyoming coal producers, have both Federal and State courts available to them, and truly, if this indirect tax interest is enough to justify the cost of litigation, the direct impact would motivate the actual movers in commerce similarly.
Secondly, the State could have sued the State utility companies here in either State or Federal court and sought injunctive relief and declaratory judgment.
The State is also not prohibited from encouraging the people who are actually affected from bringing suit.
The State is not prohibited from helping the movers in commerce from bringing the action, or given the proper appropriation, not prohibited from funding it.
In short, there are sufficient alternatives to have this issue resolved, and the strict necessity which you say is, was to guard your original jurisdiction has not been met here.
We say the special master erred in finding that this was an appropriate case for original jurisdiction.
Secondly, we say that the special master erred in finding that this indirect tax interest conferred sufficient standing.
There is no Supreme Court case that we have been able to find that recognizes this indirect taxing interest as justifying standing.
We would urge the Court to follow the teachings of the D.C. Circuit Court of Appeals case in Philadelphia v. Kleppe.
In that case the State of Pennsylvania sued the Small Business Administration, challenging that agency's classification of a hurricane-damaged area as a Class B disaster.
Pennsylvania claimed that its taxing revenue and economy were damaged by the mistake in classification.
The court of appeals rejected this vicarious injury as the basis of standing, saying, impairment of State tax revenue should not, in general, be recognized as sufficient injury in fact to support State standing.
And the court goes on and says, we need a direct link between the State statute and the collection of taxes, and then says, this would prevent State standing in cases like the present one where the diminution of tax receipts is largely an incidental result of the challenged activity.
Now, even if on occasion this indirect taxing collection interest could justify standing, that interest has not been shown here.
As this Court noted in Duke Power Company v. California Environmental Study Group, to show standing a plaintiff must (1) show direct and palpable injury to the plaintiff, and a fairly traceable causal connection between the claimed injury and the challenged conduct.
Here, Wyoming has failed to prove those elements.
Unknown Speaker: What did it prove, Mr. Leader, in the way of lost revenue because of the existence of the Oklahoma statutes?
Mr. Leader: --What it proved was, is that a share of the market has been denied to Wyoming producers.
It introduced no evidence that demonstrated that the loss of that market share converted automatically into less production in Wyoming.
Unknown Speaker: This is a severance tax, not a sales tax?
Mr. Leader: This is a severance tax, not a sales tax.
It is tax on the removal, for the privilege of removing it from the ground, whether there is a sale or not.
Unknown Speaker: Did Wyoming introduce any statistics to show that there was less coal removed from the ground as a result of Oklahoma's statute--
Mr. Leader: Quite the contrary.
The evidence here, Your Honor, shows that since the act has gone into effect Wyoming has produced more coal and it continues to produce more coal year after year after year.
In fact, the second year after this act, Oklahoma's act went into effect, there was more coal sold in Oklahoma.
They simply have not shown there is a connection between this lost market share of the producers and their severance tax collection.
They offer two pieces of evidence to attempt to show it.
One is an affidavit of Richard Markel, who is the director of the Wyoming mining tax division.
His affidavit just assumes that there is a direct one-to-one relationship.
If you lose a sale of 1 ton of coal or you have a sale of Oklahoma coal in Oklahoma, that is an automatic loss of tax revenue and he just multiplies.
But he is assuming what has never been proved.
The second piece of evidence--
Unknown Speaker: --Yes, but why did they pass this statute?
Mr. Leader: --Why did who pass the statute?
Unknown Speaker: The Oklahoma legislature?
Didn't they assume that it would cause the utilities to buy Oklahoma coal they would otherwise buy from Wyoming?
Mr. Leader: They assumed--
Unknown Speaker: Go ahead--
Mr. Leader: --Sure.
They passed it for a variety of reasons.
It was to limit the utilities' reliance on this umbilical cord, this railroad that connects it to its source of energy, and to see that any cutoff in that energy would be--
Unknown Speaker: --Yes, but the method of doing that was to increase purchases of local coal--
Mr. Leader: --That's right.
Unknown Speaker: --and decrease purchases of Wyoming coal.
Mr. Leader: That's right.
Unknown Speaker: So can't we kind of presume that is what has happened?
Mr. Leader: You can presume that Wyoming produces--
Unknown Speaker: To the extent that they bought Oklahoma coal, that that would be coal otherwise--
Mr. Leader: --They have lost the market share in Oklahoma, and what you can't presume is that that loss of market share in Oklahoma means they had a bad year.
Unknown Speaker: --No, but they would have sold that coal to Oklahoma had Oklahoma's statute not required the purchase of the Oklahoma coal.
Mr. Leader: What we don't know is what their production is like.
Do they have manpower difficulties?
Are they having a hard time meeting their present demands now?
Are they selling out of stockpile?
We do not know the relationship between this lost market share and what is produced in Wyoming.
That is the missing link here.
Even if... let me talk about the second piece of evidence, was that affidavit from Mr. Cartwright from Trident Oil Company.
His affidavit merely says that he has a contract to sell coal with one of the utilities and he can meet that contract.
He doesn't say how it affects his total production.
He doesn't say how he meets it, to say if he is meeting it out of stockpiles.
This evidence at best is vague and suggestive and clearly does not meet the standard in your original jurisdiction cases.
You require the plaintiff to show their case by clear and convincing evidence.
There is no clear and convincing evidence in this case showing a relationship between the lost market share in Oklahoma and the ultimate production of Wyoming coal producers.
In fact, the evidence suggests that Wyoming coal producers keep producing more and more coal.
Now as to Oklahoma's statute itself, Oklahoma freely admits that its statute does not, in the constitutional sense, treat all evenhandedly, and that in fact, that it does aid coal production in Oklahoma.
Part of this difference is based upon the difference in the properties of coal in each State.
As the uncontradicted, stipulated facts show, Oklahoma coal has a much higher BTU.
It takes approximately 1-1/2 pounds of Wyoming coal to equal the burning power, the BTU power of Oklahoma coal.
Oklahoma coal has a high sulfur content and Wyoming has a low sulfur content.
The purpose of the statute was to aid utilities, reduce and limit its reliance on this coal production connected by a single railroad, now two railroads, and to see that if there is a shutoff of fuel, they have some protections against those dangers there.
Unknown Speaker: How do we know that is the purpose, as opposed to--
Mr. Leader: Sheer economic protectionism, right.
Unknown Speaker: --Yes, right, because that is what I would have guessed it was, if you didn't tell me.
Mr. Leader: Your Honor, I think we determined that the purpose of the statute when you don't have legislative history for the act by looking at the statute and its effect.
Clearly, the act has the effect that you talk about.
It also has the effects that I talk about.
I emphasize the effects that I think are more legitimate and I emphasize the effects that I think are least legitimate, but I think it is fair to presume that all those were intents of the legislature.
But we are dealing here with an area where the State has in the past been given a great deal of deference.
This Court has found that a State has a clear and substantial governmental interest in determining the need, the reliability, cost, and other related matters with respect to utility.
I mean, after all, the State has an obligation to keep the lights on.
Society has a great need for that, and here--
Unknown Speaker: I was really asking for something more specific.
You are not relying upon some legislative history?
Mr. Leader: --We do not have legislative history.
Unknown Speaker: And the title of it... the State does not even have it?
I mean, the State does not keep it?
Mr. Leader: We don't have a legislative committee--
Unknown Speaker: How enlightened.
Not only that, but you are lucky.
Mr. Leader: --In the utility area, the State franchises utilities.
We make them monopolies.
We set them up to do business for the people's good.
We guarantee them a fair rate of return.
We set their rates.
We control and limit many of their business decisions.
To a real... in a real sense, the State and utilities are partners for the good of the people.
And I maintain that in this area, the State should be given more deference, as it is given deference when the State is a market participant.
We are not quite a market participant here, but we are closer to that than a mere regulator.
And I ask that this Court give the States greater deference in this area.
Now, if the Court should decide not to give greater deference to us in this area, at least as to respect of the State-owned utility, the Grand River Dam Authority, that is a market participant and your market participation doctrine protects the State against the challenge.
There is a severability argument here, and I think it is a red herring.
If we were to test this statute clearly and only as to the Grand River Dam Authority, it would be constitutional.
It could be applied.
We are dealing with an application of a statute, not a severance here.
It is clear in Oklahoma, and we use Oklahoma law to determine these areas, it is Oklahoma's statute... and a familiar rule of Oklahoma law is that an act of legislature, while invalid and inoperative as to one set of facts, may be constitutional and valid as to another and different set of facts.
Additionally, Oklahoma's jurisprudence provides that where a statute on its face is applicable to several classes of persons or cases, the constitutionality of the statute as applied to one class may be upheld at the same time as its applicability to another class is stricken down as unconstitutional.
When such a situation arises, the statute is only entirely void where it is clear that the legislature intended it to be.
We don't have such a clear intention here.
The Oklahoma legislature, in fact, has a severability clause attached to this act.
In conclusion, let me note Chief Justice Fuller's comment in Louisiana v. Texas.
In that case, in commenting on original jurisdiction, Chief Justice Fuller said, it is apparent that the jurisdiction is of so delicate and a grave a character that it was not contemplated that it would be exercised save when the necessity was absolute and the matter itself properly adjudicable.
I urge this Court to adhere to Justice Fuller's teachings and dismiss this original action because it is not necessary.
There are other forms available to have this issue answered, and secondly, because it is not a justiciable issue, Wyoming having failed to show standing.
I thank the Court.
I reserve the rest of my time for rebuttal.
Unknown Speaker: Thank you, Mr. Leader.
We will hear now from you, Ms. Guthrie.
Argument of Mary B. Guthrie
Mr. Guthrie: Thank you, Mr. Chief Justice, and may it please the Court:
The Oklahoma statute which the State of Wyoming has challenged is a classic example of economic protectionism.
The statute is discriminatory because it has disrupted the current coal market by forcing Oklahoma utilities to purchase Oklahoma coal rather than the Wyoming coal that they were purchasing until the statute was passed.
We urge this Court to adopt the special master's recommendation that you find the Oklahoma statute unconstitutional under the Commerce Clause.
The statute is invalid because it, on its face, discriminates against interstate commerce.
It forces Oklahoma utilities that sell power to Oklahoma consumers to buy Oklahoma coal.
This explicit discrimination is the most blatant kind of economic protectionism that this Court on many instances has invalidated.
Unknown Speaker: Are you going to go into the question of standing at all, Ms. Guthrie?
Mr. Guthrie: Yes, I will address that now, Mr. Chief Justice.
Unknown Speaker: At your convenience.
How come you are not the coal company?
I mean, why didn't the coal company bring this lawsuit?
Mr. Guthrie: Well, I don't know--
Unknown Speaker: Is there some explanation for that?
I mean, if they are losing money, one would think that they would be as interested in it as you are, unless you have 100 percent severance tax.
Mr. Guthrie: --No, we don't.
Our severance tax is 8-1/2 percent.
The assumption would be that perhaps they have chosen for political purposes not to rock the boat.
Perhaps coal companies make so much money anyway that it doesn't matter; however, the injury that the State of Wyoming has sustained to the tune of at least $500,000 a year is certainly a significant interest and injury as far as we are concerned.
Unknown Speaker: How was the $500,000 a year proven, Ms. Guthrie?
Mr. Guthrie: There was an affidavit prepared by a person from our tax division who looked at the amount of coal that had not been sold in Oklahoma and estimated how much that would be.
That information was in no way rebutted by the State of Oklahoma.
Unknown Speaker: Well, the burden of proof would be on the State of Wyoming, I suppose, on that issue because it's the plaintiff, and I suppose the special master could make a finding that Wyoming lost a certain amount of money.
Did the special master make any finding like that?
Mr. Guthrie: Yes.
He referred to the loss of severance taxes and he determined that there were those direct injuries as a result of our loss of severance taxes because of the statute.
Unknown Speaker: Did he make any finding as to dollar amount?
Mr. Guthrie: I don't recall if he did or not.
I think that he did make that finding.
Unknown Speaker: It seems to me that your affidavit, while it would perhaps support a finding of loss, doesn't rule out the possibility that if the coal production in Wyoming didn't sell in Oklahoma, it might have found a market for elsewhere.
The affidavit doesn't say that Wyoming lost tax revenues.
Mr. Guthrie: The affidavit does say that the State of Wyoming lost $500,000 in tax revenues because of coal that had not been sold to Oklahoma utilities.
Unknown Speaker: But that doesn't indicate that that same coal that would otherwise have been sold to Oklahoma might not have been sold elsewhere.
Mr. Guthrie: That doesn't really affect the State of Wyoming sales.
The question that you really have to look at is the injury to the State of Wyoming as a result of lack of Oklahoma sales, regardless of whether Wyoming sold coal in other places.
It has lost the sale to the Oklahoma producers, Oklahoma utilities.
Unknown Speaker: I am not saying that that is not a reasonable position, but it doesn't seem it is the only one.
Supposing that Wyoming in 1988 took in $5 million in severance tax revenues.
Then in 1989 it also takes in $5 million in severance tax revenues.
In 1989, a certain amount of coal that was previously sold to Oklahoma isn't, but it is sold in Utah instead.
How is Wyoming the loser?
Mr. Guthrie: We have a stipulation that provides that until about 1986 virtually 100 percent of all the coal burned in Oklahoma came from Wyoming, and since that time, after the statute has been passed, the amount of coal that has been sold to Oklahoma has been reduced.
There was a report that was prepared by two economic fuel specialists who said that but for the act, the State of Wyoming's coal producers would have still continued to sell virtually 100 percent of the coal to Oklahoma plants.
So there are facts that would support the fact that this statute has changed the way that electric utilities in the State of Oklahoma make their fuel choices.
Unknown Speaker: So even though... your theory is that even though Wyoming did not lose a penny, its severance tax revenues are as high as ever, if some of the severance taxes were imposed on coal sold in Utah as replacements for the sale that wasn't sold in Oklahoma, it can still bring this action?
Mr. Guthrie: Our position is that because the act was passed, we can fairly trace an injury to the collection of severance taxes.
The State of Wyoming has a great deal of coal capacity that is not sold every year.
So we have, as producers and then as tax people, have experienced an injury as a result of this act.
It's also possible, Mr. Chief Justice, that other States could then begin to enact these kinds of acts and then States like Wyoming would really begin to experience a tremendous injury as a result of this kind of discriminatory legislation.
Unknown Speaker: Ms. Guthrie, let me be sure about one fact; didn't Oklahoma move to dismiss the original action?
Mr. Guthrie: This Court has viewed the standing issue, this is the third time the Court has viewed the standing issue.
The first time they filed a motion... they filed a response to our motion for leave to file a complaint, and the Court ordered the State of Oklahoma to answer--
Unknown Speaker: So one could almost argue that the standing issue already has been decided up here.
Mr. Guthrie: --I would argue that, but if I am getting questions from the Court, I wouldn't be so abrupt to make that kind of argument, but the standing issue... because then the motion to dismiss based on standing was denied.
Then the whole issue was brought up again in front of Judge Tone, who had been selected as a special master, and he also made a determination that standing... that the State of Wyoming did have standing in this case because we had suffered an injury.
Unknown Speaker: So he didn't think we had decided it, anyway.
Mr. Guthrie: Well, he probably thought you had decided, but he wanted to decide it again.
Unknown Speaker: He just wanted to decide it again?
Mr. Guthrie: Yes.
He did an awfully good job.
Unknown Speaker: Ms. Guthrie, I have a problem.
I guess it is a little... it is even more fundamental.
You have been asked about the proof of the damages.
Let's assume... let's assume that it could be proven in this case that there would have been more sales.
Would that necessarily establish standing?
I mean, standing requires not only that there be an injury... at least our prudential rules require both an injury and a direct injury.
I mean, I think, haven't we adopted standing rules that are similar to the rule that we adopted in the antitrust field in Illinois Brick, which prevents a secondary injury from a secondary purchaser whose price has been inflated by a Sherman Act conspiracy from recovering triple damages?
Isn't it the same thing here?
I have never heard of a State suing for loss of taxes before.
I mean, what is... an ordinary contract case where somebody is guilty of a breach of contract, an enormous amount of money, a great big contract, do you think the State could sue for the loss of sales tax revenue from that breach of contract?
Mr. Guthrie: No, the State couldn't in that instance, but that is certainly not the kind of--
Unknown Speaker: Why?
Mr. Guthrie: --case that is presented here, because we are directly collecting taxes as a result of the sale of coal.
The cases to which Mr. Leader refers are cases that are this injury to the general kind of taxing power of a State.
Maybe a State will in fact have to assess more taxes to pay for some kind of service that they weren't able to provide before--
Unknown Speaker: We are not talking about a sales tax.
It is very clear that had this contract been performed, the sale would have occurred, the State would have gotten X dollars from the sale, and there is a breach of the contract and it seems to me, I doubt very much whether the State would have any cause of action for that, as a person harmed by that breach of contract, have any standing to complain about it.
Mr. Guthrie: --Well, we must look at this, though, in the context of the Commerce Clause and also the fact that this is legislation has harmed one State to the benefit of another State's residents.
Unknown Speaker: We usually leave it to the people immediately affected, in this case, the coal company, and you said these statutes could be passed in a lot of States.
I suppose they could, but I don't imagine the coal companies would sit idly by while that was happening.
It's not as though we wouldn't have an opportunity to remedy the matter.
Mr. Guthrie: Well, you referred to the prudential kind of limitations that the Court has undertaken to sift out the cases it doesn't want to hear, and you certainly have developed a great number of rules that deal with standing of original actions.
And I would say that this is the kind of case that requires an original action being taken.
You have had a serious claim.
We certainly are challenging the fact that the statute has violated the Commerce Clause.
It's not a trivial matter at all.
There is this direct injury.
Now, the State of Oklahoma says it is not direct, but they have certainly never shown you through any kind of... or there was no evidence that this injury that we suffered was not direct.
It is just his saying that it's not direct and I guess it is my saying that it is direct.
It certainly is direct so far as the State of Wyoming is concerned because of the way that we use that money and that we do impose that tax.
But there are several different prudential rules that you have adopted, and I would suggest that virtually all of the qualities that you say you look for in an original action are similar to this one.
In Maryland v. Louisiana, this Court accepted original jurisdiction and it was also a Commerce Clause challenge.
I think also in another case, Pennsylvania v. West Virginia.
So I think the implication of the Commerce Clause additionally adds another feature that you might not have seen in some of the other cases that--
Unknown Speaker: The import of my question doesn't go to whether we should take the original action or not, it goes to whether we should think there is standing in the Federal courts anywhere, not just here, so I agree with you to that extent.
Mr. Guthrie: --Once this Court has determined that the State of Wyoming does have standing, you must determine that the statute is invalid because it's invalid on its face.
It's also invalid in its purpose.
Examination of a resolution that was passed by the State of Oklahoma in 1985, a year before this statute was passed, will show you the kinds of things that were motivating legislators from Oklahoma.
They referred to the fact over $300 million had gone out of State because ratepayers were paying for Wyoming coal, and $9 million had been assessed in Wyoming severance taxes.
They said that the purpose of encouraging utilities to use Oklahoma coal would be to enhance the economy.
Again, the classic sort of example of the kinds of things that this Court has disapproved of because it is a discriminatory purpose.
There was only one purpose for this statute to be passed, and that was to encourage the use of Oklahoma coal.
The State of Oklahoma provided no evidence in this proceeding through affidavits or even in the statement of material facts to the special master that would in any way show that there was any kind of purpose besides some kind of discriminatory economic purpose.
There is a very definite protectionist effect, also, of the law.
The result means that there will be a sale of less coal to the State of Wyoming.
We acquired the services of an economist who came up with several different ideas about why Oklahoma coal was being used, and the whole conclusion that they all reached was that it was only because of the interference of the statute.
The State of Wyoming asks this Court to declare the Oklahoma statute unconstitutional as an example of simple economic protectionism and to apply your virtually per se rule of invalidity that you have encountered whenever you find a facially discriminatory statute.
We also respectfully submit that the Court does accept standing in this case.
You have already, as Justice Blackmun has pointed out, you have already looked at this question twice or three times.
Therefore, we request that you do affirm the special master's report.
Unknown Speaker: You are not questioning the special master's treatment of the Grand River Dam Authority?
Mr. Guthrie: That was part of our... we took the exception to the special master's report and it was not so much the treatment of the Grand River Dam Authority, it was his holding that that statute could be severed.
We feel that the statute, as it was written, really, once the invalid portions are removed, could not be validated.
The statute reads, all entities that sell electrical power to consumers in Oklahoma must buy Oklahoma coal.
Once you get rid of that invalid portion there is nothing left in the statute.
Unknown Speaker: You think that is necessarily so?
Mr. Guthrie: That's the--
Unknown Speaker: I take it, you opposed, you didn't think the special master should have suggested your resolving severability in the State court.
Mr. Guthrie: --That was true as well, Justice White.
Unknown Speaker: And I take it you, then, think it would be wholly improper for us to certify a question to the Oklahoma supreme court as to the severability of this statute?
Mr. Guthrie: That was the argument that we made.
The idea being that it's really not... it's a demeaning sort of thing to take a State, one State into another State's court.
So from that aspect it would be more appropriate for--
Unknown Speaker: We wouldn't be... a certification wouldn't be taking a State into a State court.
We would certify the question and then the court would just give us the answer.
Mr. Guthrie: --Bring it back to you.
Well, I would suggest that Oklahoma judges, like Oklahoma legislators, are elected, and perhaps we might not have the same kind of impartiality that we would have here.
Unknown Speaker: I don't understand that argument, because how should the question be decided, then?
First of all, let me ask one preliminary question.
Does Oklahoma have a certification statute, do you know?
Mr. Guthrie: I have no idea.
Unknown Speaker: I see.
Well, I was puzzled about your saying you couldn't go in another jurisdiction.
In Nevada v. Hall, California had to go to Nevada or vice versa, I don't remember which one it was.
Mr. Guthrie: But there were some kind of definite... there had been an accident.
I think it was a Nevada State employee who was injured in California.
Unknown Speaker: Yes, but there is a dispute between the State and someone else.
I don't know why... I don't understand.
Mr. Guthrie: And certainly if this Court chooses to certify the case, I am sure--
Unknown Speaker: We have ruled... if we followed the master's recommendation with respect to the invalidity insofar as the statute applies to the three private utilities, what can you lose by having the matter go to the State supreme court?
Mr. Guthrie: --Certainly, I would much prefer that you affirm the master's holding that the statute is unconstitutional as it relates to the three private utilities and not worry so much about the GRDA.
Unknown Speaker: It seems to me that you are waiving your severability argument.
Mr. Guthrie: I am not waiving it, but I am not very artfully expressing it, I guess.
It is obviously not as big a concern to the State of Wyoming as these other questions are, but I think if you look at the general rule of severability, you would find that the special master did not precisely apply those severability principles.
Unknown Speaker: No, but the Oklahoma attorney general is here representing to us that as a matter of Oklahoma law, this is the result that was appropriate as I understand him, assuming that the merits--
Mr. Guthrie: That is his representation, yes.
Unknown Speaker: --Very well, Ms. Guthrie.
Mr. Leader, you have 11 minutes remaining.
Rebuttal of Neal Leader
Mr. Leader: Your Honor, I will waive rebuttal.
Chief Justice Rehnquist: Very well.
The case is submitted.
Unknown Speaker: The Honorable Court is now adjourned until tommorow at ten o'clock.
Argument of Speaker
Mr. Speaker: The opinion of the Court in No. 112 original, Wyoming against Oklahoma will be announced by Justice White.
Argument of Justice White
Mr. White: This case is before us on exceptions that were filed to the Special Master’s report which was filed on this original action.
For reasons stated in an opinion of file with the Court, the recommendations of the Special Master are adapted in part.
The exceptions filed by Wyoming are sustained.
The exceptions filed by Oklahoma are rejected.
Wyoming’s motion for summary judgment is granted.
Oklahoma’s motion for summary judgment is denied.
Justice Scalia has filed a dissenting opinion in which the Chief Justice and Justice Thomas have joined; Justice Thomas has also filed a dissenting opinion, and the Chief Justice and Justice Scalia have joined that opinion.