Graphic Packaging Corporation v. Glenn Hegar, Comptroller of Public Accounts of the State of Texas And Ken Paxton, Attorney General of the State of Texas ( 2015 )


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

Document Info

Docket Number: 03-14-00197-CV

Filed Date: 5/8/2015

Precedential Status: Precedential

Modified Date: 9/29/2016

Authorities (26)

State of Nebraska v. Central Interstate Low-Level ... , 207 F.3d 1021 ( 2000 )

Oklahoma v. New Mexico , 111 S. Ct. 2281 ( 1991 )

Hinderlider v. La Plata River & Cherry Creek Ditch Co. , 58 S. Ct. 803 ( 1938 )

Cuyler v. Adams , 101 S. Ct. 703 ( 1981 )

Alabama v. North Carolina , 130 S. Ct. 2295 ( 2010 )

Texas v. New Mexico , 103 S. Ct. 2558 ( 1983 )

Texas v. New Mexico , 107 S. Ct. 2279 ( 1987 )

state-of-illinois-department-of-public-aid-v-richard-s-schweiker , 707 F.2d 273 ( 1983 )

Ex Parte Cantrell , 172 Tex. Crim. 646 ( 1962 )

entergy-arkansas-inc-an-arkansas-corporation-entergy-gulf-states-inc , 18 A.L.R. Fed. 2d 863 ( 2004 )

West Virginia Ex Rel. Dyer v. Sims , 71 S. Ct. 557 ( 1951 )

New Jersey v. New York , 118 S. Ct. 1726 ( 1998 )

California Ex Rel. California Department of Transportation ... , 466 F. Supp. 527 ( 1978 )

Arizona Department of Economic Security v. Leonardo , 200 Ariz. 74 ( 2001 )

United States Trust Co. of NY v. New Jersey , 97 S. Ct. 1505 ( 1977 )

Delaware River Joint Toll Bridge Commission v. Colburn , 60 S. Ct. 1039 ( 1940 )

Skamania County v. Woodall , 16 P.3d 701 ( 2001 )

seattle-master-builders-association-homebuilders-association-of-spokane , 786 F.2d 1359 ( 1986 )

United States Steel Corp. v. Multistate Tax Commission , 98 S. Ct. 799 ( 1978 )

C. T. Hellmuth & Associates, Inc. v. Washington ... , 414 F. Supp. 408 ( 1976 )

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