SCOTUSwiki Preview: Kansas v. Colorado

Stanford student David Schwartz previews this morning’s first argument in Kansas v. Colorado.

Argument Preview

On December 1, the Court will hear oral argument in what may prove to be the final battle in a lengthy water dispute between Kansas and Colorado. In No. 105 (Original), Kansas v. Colorado, the Court will consider whether 18 U.S.C. § 1821(b), which limits expert witness fees to $40 per day, applies to cases arising under the Supreme Court’s original jurisdiction.

Background

For over a century, Kansas and Colorado have been embroiled in a dispute over water rights to the Arkansas River. In 1948, the two states negotiated the Arkansas River Compact, which Congress approved and President Truman made effective the following year. The Compact apportions the Arkansas River between Kansas and Colorado and, as relevant here, allows Colorado to develop the Arkansas River Basin (e.g., by constructing dams or reservoirs) as long as its development does not “materially deplete” the flows apportioned to each state. However, Colorado subsequently authorized at least two thousand new wells, which – in violation of the Compact – increased the state’s total pumping of water from the river.

In 1985, Kansas filed an original jurisdiction suit in the Supreme Court. A Special Master was appointed in 1987 and conducted a trial on the liability issue, resulting in an extensive first report. The Court adopted the Special Master’s findings as to liability on the main claim – that Colorado’s post-Compact drilling had violated the Compact – and remanded the case back to the Special Master for consideration on remedies. Eventually, the Special Master found that Colorado had violated the Compact by pumping an additional 428,005 acre-feet from the Arkansas River over nearly five decades. (An acre-foot is equivalent to a one-acre expanse of water one foot deep, or 325,851 gallons; in more tangible terms, the courtroom of the Supreme Court, between the columns, if filled to the ceiling, would hold approximately 3 1/3 acre-feet of water.) As a result, the Special Master awarded Kansas approximately $34.6 million in damages, which Colorado paid.

The parties then turned to the issue of court costs, which Kansas estimated to be as much as nine million dollars. These large costs were due in no small part to the litigation’s length: from 1990 to 2003 there was approximately 270 days of trial, almost all of which consisted of expert witness testimony intended to establish how much water Colorado had pumped. In particular, considerable efforts were expended to develop an acceptable model that accurately described the flow of water into and out of the Arkansas River. Litigation costs further increased after Kansas disavowed its own expert and replaced its entire case. After this replacement, however, Colorado accepted Kansas’s model.

The parties initially sparred over whether Kansas should be awarded court costs at all. In his December 19, 2005 order, the Special Master followed Rule 17.2 of the Supreme Court’s Rules, which dictates that the Federal Rules of Civil Procedure (FRCP) should be used as a guide for issues arising under the Court’s original jurisdiction. Based on his finding that Kansas was the substantially prevailing party under FRCP 54(d)(1), the Special Master determined that although Colorado should not have to pay all of the costs associated with Kansas’ first, failed case, Kansas was nonetheless entitled to partial court costs. The question then became how to calculate those costs. Kansas claimed that it was owed some $9 million in court costs, but Colorado countered that it was only required to pay approximately $160,000 because 28 U.S.C. § 1821(b) limits the witnesses’ fees to forty dollars per day. The Special Master then sought additional briefing from the parties on the question whether § 1821(b) applies to cases arising under the Court’s original jurisdiction.

In an order issued on April 17, 2006, the Special Master concluded that Section 1821(b) does in fact apply. In Crawford Fitting Co. v. J.T. Gibbons, Inc., the Supreme Court held that Section 1821 can only be invoked by 28 U.S.C. § 1920, which provides that “[a] judge or clerk of any court of the United States may tax as costs the following: . . . (3) Fees and disbursements for printing and witnesses.” Section 1821(a)(1) states that “Except as otherwise provided by law, a witness in attendance at any court of the United States . . . shall be paid the fees and allowances provided by this section,” while Section 1821(b) limits payments to expert witnesses to forty dollars “for each day’s attendance.

Kansas argued that Section 1920 does not apply to cases arising under the Court’s original jurisdiction because Section 1920 refers only to “judge[s],” rather than “justices,” and Congress has separately defined the terms “judge of the United States,” “justice of the United States,” and “court of the United States” in 28 U.S.C. § 451. Kansas reasoned that although Section 451 defines the term “court of the United States” to include “the Supreme Court of the States, courts of appeals, district courts constituted by chapter 5 of this title,” it only defines “judge of the United States” to include “judges of the courts of appeals [and] district courts,” whereas “justice of the United States” includes “Chief Justice of the United States and the associate justices of the Supreme Court.” Because Section 1920 only uses the term “judge,” Kansas argued, it could not apply to the Supreme Court’s original jurisdiction, and thus the Section 1821(b) limitation does not apply. Instead, the Special Master should look to 28 U.S.C. § 1911, which provides that “[t]he Supreme Court may fix the fees to be charged by its clerk. The fees of the clerk, cost of serving process, and other necessary disbursements incidental to any case before the court, may be taxed against the litigants as the court directs.” Because Section 1911 covers the Supreme Court specifically and does not contain any limitation on expert costs, Kansas contended, the Special Master should not accept any calculations that include the Section 1821(b) limitation.

The Special Master rejected this argument, finding that the plain language of Sections 1920 and 1821 were clear, and that Section 1821’s limits on expert witness fees applied to the case before him. Both sections use the defined term “court of the United States,” which Section 451 explicitly defines to contain the Supreme Court. The Special Master also declined to rely on Section 1911, concluding that the statute’s broad reference to “necessary disbursements incidental to any case before the court” did not extend to expert witness fees. However, the Special Master reasoned that Section 1821(b)’s command that payment shall be based on “each day’s attendance” should be liberally construed, as many of the experts had to attend multiple days of trial even if they were not testifying. Thus, although each expert will only be paid $40 per day, there are likely to be more “days” than Colorado had initially calculated.

Because the order was made by a Special Master, either State could take exception to the legal issues covered by the order. The parties therefore negotiated a settlement of $1.1 million, which Colorado paid, with the understanding that this settlement could be revised if the Supreme Court granted either side’s exception to the Special Master’s ruling. The Supreme Court granted the exception on this issue on June 9, 2008.

Merits Briefing

In its Exception and Brief (the equivalent of a merits brief in an appellate case), Kansas made three general arguments: (1) none of the statutes were intended to apply to the Supreme Court’s original jurisdiction; (2) Congress lacks the power to regulate the process of the Supreme Court’s original jurisdiction; and (3) policy reasons require a substantially higher award for expert costs.

Seeking to demonstrate that the Supreme Court had never viewed either Section 1821 or Section 1920 as applying to its original jurisdiction cases, Kansas began by tracing the historical roots of those provisions. As the Court noted in Crawford Fitting, the provisions were first enacted as part of the 1853 Fee Act. Yet only two years after the Fee Act’s passage, the Court indicated in Florida v. Georgia that, with respect to the scope of its original jurisdiction, “[T]he Constitution prescribes no particular mode of proceeding, nor is there any Act of Congress upon the subject.” And because the Court in Crawford Fitting stated that the two sections were “carried forward to today without any apparent intent to change the controlling rules,” the combination of these two statements made clear, Kansas argued, that the Supreme Court has consistently viewed Sections 1920 and 1821 as not applying to its original jurisdiction cases.

Next, Kansas engaged in a traditional statutory analysis. It argued that because Sections 1920 and 1821 were carried forward intact from the 1853 Fee Act, the same congressional intent in the 1853 Fee Act still applies. Textually, the 1853 Fee Act, like Section 1920, only referred to “a judge or clerk,” did not use the word “justice,” and repeatedly referred to only district and circuit courts. Additionally, the legislative history of the 1853 Fee Act shows that Congress passed the Act to combat the district courts’ lack of uniformity in compensating officers of the courts and in taxing costs between private parties – a concern that would not apply to the Supreme Court.

Turning to the Special Master’s construction of Sections 1920, 1821, and 451 (the definitional statute), Kansas argued that the Master’s construction effectively reads the word “judge” out of Section 1920’s provision that “[a] judge or clerk of any court of the United States may tax as costs the following.” Similarly, because Section 451 defines “judge of the United States” and “justice of the United States” separately, if Congress had intended Section 1920 (and thus Section 1821) to apply to the Supreme Court, it would have used the word “justice” in addition to “judge.” Finally, Section 1911, which Kansas argues is a simple congressional recognition that the Supreme Court can enforce fees however it chooses, means that Section 1920 cannot apply to the Supreme Court’s original jurisdiction.

Kansas then made its second argument: the Constitution implicitly denies Congress the power to regulate the Supreme Court’s inherent authority. Kansas distinguished between the two sentences in Article II, § 2, Clause 2, which provide that “[i]n all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.” While the second sentence explicitly gives Congress the power to make rules and regulations for the Supreme Court’s appellate jurisdiction, such language is notably absent under the Constitution’s description of the Court’s original jurisdiction. Analogizing to cases such as Marbury v. Madison, Kansas argued that if Congress were allowed to regulate the Court’s original jurisdiction, this would create the same evil of which Chief Justice Marshall warned in Marbury: because Congress could regulate the Court’s original jurisdiction with powers granted to it for the Court’s appellate jurisdiction, the words of the Constitution would become meaningless, mere “form without substance.” To support this point, Kansas cited several statements from the Court asserting its power to consider a matter under its original jurisdiction even in the absence of any enacting legislation, in direct contrast to the Court’s appellate jurisdiction. As such, the Supreme Court cannot be limited by Sections 1821 and 1920.

Third, based on the Court’s previous statement in Florida v. Georgia that in the Court’s original jurisdiction it had a duty “to mold its proceedings for itself, in a manner that would best attain the ends of justice,” Kansas argued that the Court should ignore Section 1821’s limits and award higher costs. Specifically, because Kansas, the downstream state, lies at the upstream state’s mercy with respect to water compacts, the downstream state must engage in costly efforts to ensure that it has all of the water to which it is entitled. Additionally, because both the Special Master and Colorado accepted Kansas’s model, Kansas should be allowed to recover witness costs beyond the $40 limit.

Colorado responded with three broad arguments of its own: (1) the plain text of the statutes at issue cover the Court; (2) the Constitution gives Congress the power to regulate courts’ procedural matters; and (3) there are strong policy reasons for having a uniform system of expert witness fees.

First, Colorado emphasized that the statutes at issue, Sections 1821 and 1920, repeatedly invoke the term “courts of the United States,” which Section 451 explicitly defines as including the Supreme Court. Moreover, because this definition was added in 1948, the current sections cannot be regarding as reflecting the same congressional intent as in 1853. As to Kansas’s argument that the Special Master’s construction reads the phrase “judge” out of Section 1920, Colorado countered that Kansas’ interpretation reads the phrase “court of the United States” out of the same statute. Notably, Section 1920 does not use the phrases “judge of the United States” or “justice of the United States,” which Section 451 defines. Since only the term “judge of the United States” excludes the Supreme Court, and that term is not used in Section 1920, the term “judge” is broad enough to include a justice of the Supreme Court. If read according to Kansas’s construction, Colorado argued, Section 1920 would anomalously apply to the Supreme Court clerk, but not a Supreme Court justice. As for Section 1911, Colorado agreed with the Special Master that the section is too narrow to cover witness fees, as such expert witness fees are not “incidental” and are not set by the clerk.

Second, Colorado argued that there is no precedent for Kansas’s argument that Congress lacks the authority to regulate the Court’s original jurisdiction. Colorado agreed that in Marbury the Court held that Congress could not prescribe cases that the Constitution says are within the Court’s appellate jurisdiction as being within the Court’s original jurisdiction. However, this does not mean that Congress cannot regulate such procedural matters as those at issue. Instead, Colorado pointed to Grayson v. Virginia, which held that the Court can deviate from the process and rules of the Court “subject to the interposition, alteration, and control, of the Legislature.” Similarly, Colorado pointed to a different section of Florida v. Georgia, which states that “[C]ongress had undoubtedly the right to prescribe the process and mode of proceeding in [original jurisdiction] cases, as fully as in any other court.”

Third, Colorado made two policy arguments in favor of following Sections 1920 and 1821. First, because the Court’s original jurisdiction is not exclusive in all cases, such as those defined in 28 U.S.C. § 1251(b), it would not make sense to have different rules for expert witness costs in the cases where the Supreme Court has concurrent jurisdiction, as the structure of witness fees is often a factor in a litigant’s choice of forum. If the Supreme Court set up a more generous fee structure, this would make the Supreme Court’s original jurisdiction a more attractive forum to litigants. Second, regarding Kansas’s fairness concerns, Colorado noted that because Kansas’s pumping of water downstream could conceivably damage Colorado, the feared upstream/downstream State dichotomy is not always true. Instead, Kansas is like any other plaintiff, who must shoulder the burden of proof and should thus face the same reimbursements as any other litigant. Finally, charging Colorado because it adopted Kansas’s model would only make it less likely that parties will agree on technical matters in the future.

Kansas filed a motion for leave to file a sur-reply brief, akin to a reply brief in an appellate case, in October 2008, but the motion was denied on November 17, 2008.