text:
Officials of the Florida Division of Archives threatened to arrest Mel Fisher, president of Treasure Salvors, and to confiscate the boats and equipment of Treasure Salvors if it commenced salvage operations on the Atocha without a salvage contract from the State. Under this threat of arrest, Treasure Salvors executed a one-year contract with the State that permitted it to conduct underwater salvage operations on the vessel. 4 Similar contracts were executed during each of the three succeeding years.
The Court of Appeals affirmed the judgment of the District Court as against the United States, but modified its decree. Treasure Salvors, Inc. v. Unidentified Wrecked and Abandoned Sailing Vessel, 569 F.2d 330 (CA5 1978). The United States had argued that the District Court lacked in rem jurisdiction to determine rights of the parties to that portion of the Atocha lying beyond the territorial jurisdiction of the court. The Court of Appeals agreed that the District Court lacked in rem jurisdiction over those portions of the res located outside the district; the court noted that for a court to exercise admiralty in rem jurisdiction the res itself must be brought within the district and seized by the court. Id., at 333. The appellate court held, however, that by intervening in the action and stipulating to the court's admiralty jurisdiction the Government had "waived the usual requirement that the res be present within the territorial jurisdiction of the court and consented to the court's jurisdiction to determine [458 U.S. 670, 678] its interest in the extraterritorial portion of the vessel." Id., at 335. The court concluded that jurisdiction thus existed to determine claims of the United States to those portions of the Atocha lying beyond the territorial jurisdiction of the court, but not claims of other parties who had not appeared and submitted to the jurisdiction of the court. 9 On the merits, the Court of Appeals rejected the statutory and common-law claims advanced by the United States.
There is a well-recognized irony in Ex parte Young; unconstitutional conduct by a state officer may be "state action" for purposes of the Fourteenth Amendment yet not attributable to the State for purposes of the Eleventh. Nevertheless, the rule of Ex parte Young is one of the cornerstones of the Court's Eleventh Amendment jurisprudence. See Edelman v. Jordan, 415 U.S. 651, 663 -664; Quern v. Jordan, 440 U.S. 332, 337 .
The rule of law set forth in United States v. Lee and Tindal v. Wesley was clarified in Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682 . In that case the plaintiff brought suit against a Government official to compel specific performance of a contract. 23 The plaintiff theorized that by withholding delivery of property as required by the contract the agent had exceeded his official authority and could be sued in federal court. The Court in Larson stated that "the action of an officer of the sovereign (be it holding, taking or otherwise legally affecting the plaintiff's property) can be regarded as so `illegal' as to permit a suit for specific relief against the officer as an individual only if it is not within the officer's statutory powers or, if within those powers, only if the powers, or their exercise in a particular case, are constitutionally void." Id., at 701-702. The Court held that the fact that an officer wrongfully withholds property belonging to another does not necessarily establish that he is acting beyond the permissible scope of his official capacity. 24 Since [458 U.S. 670, 689] in Larson it was not alleged that the Government official had exceeded his statutory authority - indeed, the plaintiff had affirmatively contended that the officer had authority to bind the Government on the contract at issue 25 - or that the exercise of such authority was unconstitutional, 26 the Court held that the action was barred by sovereign immunity.
These cases make clear that the Eleventh Amendment does not bar an action against a state official that is based on a theory that the officer acted beyond the scope of his statutory authority or, if within that authority, that such authority is unconstitutional. In such an action, however, the Amendment places a limit on the relief that may be obtained by the plaintiff. If the action is allowed to proceed against the officer only because he acted without proper authority, the judgment may not compel the State to use its funds to compensate the plaintiff for the injury. In Edelman v. Jordan, 415 U.S. 651 , the Court made clear that "a suit by private [458 U.S. 670, 690] parties seeking to impose a liability which must be paid from public funds in the state treasury is barred by the Eleventh Amendment." Id., at 663. See Ford Motor Co. v. Department of Treasury, 323 U.S. 459 ; Quern v. Jordan, 440 U.S., at 337 . 27 In determining the relief that may be granted if a state officer is found to have acted without valid statutory authority, the question is whether the relief "constitute[s] permissible prospective relief or a `retroactive award which requires the payment of funds from the state treasury.'" Quern v. Jordan, supra, at 346-347.
It is clear that the process at issue was directed only at state officials and not at the State itself or any agency of the State. 30 Neither the fact that the State elected to defend on [458 U.S. 670, 692] behalf of its agents, nor the fact that the District Court purported to adjudicate the rights of the State, deprived the federal court of jurisdiction that had been properly invoked over other parties. See Alabama v. Pugh, 438 U.S. 781 ; n. 20, supra. The process thus is not barred by the Eleventh Amendment as a direct action against the State.
The salvage contracts might well provide a basis for a claim to the property by Treasure Salvors; for the contracts did purport to transfer a portion of the artifacts from the State to Treasure Salvors in compensation for the latter's services. Treasure Salvors does claim a right to ownership, but based entirely on the fact that it was the finder of abandoned property and therefore entitled to the property independently of [458 U.S. 670, 695] the contracts. 32 Thus neither party's rights to ownership is affected in any way by the salvage contracts; whether the contracts are valid or not, they provide no authority for the refusal of state officials to surrender possession of the artifacts.
[ Footnote 1 ] The two respondents in this action, Treasure Salvors, Inc., and Armada Research Corp., were organized by the same parties. Throughout these proceedings they have been treated as a single entity referred to as "Treasure Salvors."
[ Footnote 2 ] The story of the Atocha and its discovery is recounted in Lyon, The Trouble with Treasure, 149 National Geographic 787 (1976).
[ Footnote 3 ] The statute since has been amended in a manner not relevant to this case.
[ Footnote 4 ] The District Court found that the contract was entered into as a result of the "coercive acts of the Division of Archives in threatening arrest and confiscation." Treasure Salvors, Inc. v. Unidentified Wrecked and Abandoned Sailing Vessel, 459 F. Supp. 507, 522 (SD Fla. 1978). The State admits that if Treasure Salvors had salvaged without a contract arrests would have been made. Tr. of Oral Arg. 9.
[ Footnote 5 ] In its exceptions to the Special Master's Report, the State contended that the Master should have recognized that the boundaries of the State extended to the boundaries defined in the State's 1868 Constitution, rather than to the limits specified in the Submerged Lands Act of 1953. See 420 U.S., at 532 . This Court considered that exception and held that the Master had properly rejected the State's argument. Id., at 533.
[ Footnote 6 ] This area is on the Continental Shelf of the United States, in international waters. Treasure Salvors, Inc. v. Abandoned Sailing Vessel, 408 F. Supp. 907, 909 (SD Fla. 1976).
[ Footnote 7 ] The United States asserted a right of ownership under several federal statutes and the common-law doctrine of "sovereign prerogative." The State of Florida did not intervene at this time. It had notice of the litigation, however, and both assisted the United States in the lawsuit and entered into preliminary negotiations with the United States Department of the Interior regarding disposition of the Atocha's treasure in the event the Federal Government prevailed. See 621 F.2d 1340, 1343-1344 (CA5 1980).
[ Footnote 8 ] The court explained: "General principles of maritime and international law dictate that an abandonment constitutes a repudiation of ownership, and that a party taking possession under salvage operations may be considered a finder under the doctrine of `animus revertendi,' i. e., the owner has no intention of returning. Ownership in the vessel would then vest in the finder by operation of law." 408 F. Supp., at 909 (citation omitted).
[ Footnote 9 ] The court stated: "[T]he district court properly adjudicated title to all those objects within its territorial jurisdiction and to those objects without its territory as between plaintiffs and the United States. In affirming the district court, we do not approve that portion of its order which may be construed as a holding that plaintiffs have exclusive title to, and the right to immediate and sole possession of, the vessel and cargo as to other claimants, if any there be, who are not parties or privies to this litigation." 569 F.2d, at 335-336 (footnote omitted).
[ Footnote 10 ] The warrant provided: "WARRANT FOR ARREST IN REM "THE PRESIDENT OF THE UNITED STATES OF AMERICA "TO: THE MARSHAL OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF FLORIDA "GREETING: "WHEREAS, on the 18th day of July, 1975, Treasure Salvors, Inc., a corporation and Armada Research Corporation, a corporation, filed a [458 U.S. 670, 679] Complaint under Rule 9(h) against the Unidentified Wrecked and Abandoned Sailing Vessel, her tackle, armament, apparel and cargo located with 2500 yards of a [sic] at coordinates 24ø 31.5' North Latitude and 82ø 20' West Longitude, said sailing vessel believed to be the NUESTRA SENORA DE ATOCHA for the reasons in said Complaint, and "WHEREAS, in November of 1975 Notice of said claim was published in a newspaper of general circulation within the District, and "WHEREAS, the State of Florida nor any of its agencies, agents, or employees, did appear in this cause to defend or prosecute any claim that they might have to any portions of said vessel that were in their possession, custody, care or control. "NOW, THEREFORE, you are hereby commanded to take into your possession the portions of said vessel which have been in the possession or are in the possession of L. Ross Morrell and/or James McBeth, or under their custody, care or control and to bring said portions of said vessel within the jurisdiction of this Honorable Court and transfer possession of same to the substitute custodian appointed in this action." App. 40-42.
[ Footnote 11 ] The State also asserted: "A contract was entered into between Armada Research Corporation and the State of Florida on December 3, 1974 and was for a good and valid consideration. The contract alone determined the rights and obligations of the contracting parties and was in no way affected by [the decision of this Court in] United States v. Florida. This contract was fully executed and performed prior to the United States v. Florida [sic]." Id., at 44. In response to the State's assertion that the contracts determined the rights of the contracting parties, Treasure Salvors filed a supplemental complaint in federal court. Record 369. The complaint sought a declaratory judgment that the contracts between Treasure Salvors and the State were void.
[ Footnote 12 ] The court also held that, in light of the State's claim that it had a contractual right to 25% of the res, "the State of Florida has waived the general requirement that the res be within the territorial jurisdiction of the court and, further, has consented to the court's jurisdiction over its interest in any portions of the vessel." App. 59.
[ Footnote 13 ] The Court of Appeals then dissolved the emergency stay. Id., at 65. The court ordered: "The United States Marshal may execute the warrant of arrest and upon doing so shall forthwith deliver custody of all of the items in question to a custodian who will take possession of them in situ and shall place them under lock or seal at their present location and hold them secure." Id., at 68. The appellate court denied a motion for reconsideration that had contended that the District Court lacked jurisdiction. "The question of the jurisdiction of the District Court for the Southern District of Florida is for that court to determine in the first instance on the basis of such record as may be developed in that court." Id., at 69. To expedite the litigation, Treasure Salvors agreed to permit the State to serve as substitute custodian. The warrant was executed and, with the State serving as custodian, the artifacts came into the control of the United States Marshal.
[ Footnote 14 ] The court asserted several grounds in support of this decision. Essentially, the court held: "There is no Eleventh Amendment bar to the mere arrest of articles of salvage unless the state is the owner. If the state is not the owner, the court may proceed." 459 F. Supp., at 527. The court concluded that ownership is thus a "jurisdictional" fact and, citing United States v. Mine Workers, 330 U.S. 258 , noted that "[i]t is axiomatic that the federal courts have jurisdiction to determine jurisdiction." 459 F. Supp., at 527. The court held that no Eleventh Amendment bar existed because "[t]his Court finds as fact that the Division of Archives is not and never was the rightful owner of the articles of salvage from the ship Atocha that were seized by the ancillary warrant of arrest and which have been improperly removed and held by the Division of Archives; that the Division of Archives is not the owner of any right or interest in such property based upon the purported and invalid contract with Treasure Salvors; and that the Division of Archives was wrongfully withholding a portion of the res of the Atocha over which this Court was properly exercising in rem jurisdiction." Ibid. On the basis of its memorandum, the court "ORDERED and ADJUDGED and DECREED that Treasure Salvors, Inc. and Armada Research Corp. have full right and title to articles arrested and that they are entitled to possession and that the United States [458 U.S. 670, 682] Marshal, who has possession and control of such articles, shall deliver them to Treasure Salvors, Inc. and Armada Research Corp." App. 85. Pursuant to this order, Treasure Salvors eventually received - under certain restrictions - the artifacts that the State held as custodian for the court. Record 554.
[ Footnote 15 ] The court noted that this result was particularly compelling in admiralty in rem actions. The court reasoned that, since federal courts have exclusive jurisdiction over such actions, if the mere assertion of ownership by a State were sufficient to invoke the Amendment, petitioners such as Treasure Salvors would be stranded without a forum in which to litigate their claim. 621 F.2d, at 1346, n. 19.
[ Footnote 16 ] The court neither affirmed nor reversed the District Court's holding that Florida was in privity with the United States and therefore bound by the earlier decision of the Court of Appeals. Id., at 1344, n. 17.
[ Footnote 17 ] The Eleventh Amendment provides: "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." Although the Amendment does not literally apply to actions brought against a State by its own citizens, the Amendment long has been held to govern such actions. Hans v. Louisiana, 134 U.S. 1 . See Employees v. Missouri Public Health Dept., 411 U.S. 279, 280 ; Edelman v. Jordan, 415 U.S. 651, 662 . Nor does the Amendment literally apply to proceedings in admiralty. Again, however, the Court has found it to govern certain admiralty actions. See In re New York, 256 U.S. 490, 500 .
[ Footnote 18 ] The fact that the State appeared and offered defenses on the merits does not foreclose consideration of the Eleventh Amendment issue; "the Eleventh Amendment defense sufficiently partakes of the nature of a jurisdictional bar" that it may be raised at any point of the proceedings. Edelman v. Jordan, supra, at 678; see Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 467 ("The Eleventh Amendment declares a policy [458 U.S. 670, 684] and sets forth an explicit limitation of federal judicial power of such compelling force that this Court will consider the issue arising under this Amendment in this case even though urged for the first time in this Court").
[ Footnote 19 ] But see Fitzpatrick v. Bitzer, 427 U.S. 445, 456 ("Congress may, in determining what is `appropriate legislation' for the purpose of enforcing the provisions of the Fourteenth Amendment, provide for private suits against States or state officials which are constitutionally impermissible in other contexts"); see also Hutto v. Finney, 437 U.S. 678 ; Maher v. Gagne, 448 U.S. 122 .
[ Footnote 20 ] Thus, in Alabama v. Pugh, our holding that the State of Alabama and the Alabama Board of Corrections should have been dismissed as parties did not affect the substance of the relief granted against a number of Alabama officials responsible for the administration of its prison system.
[ Footnote 21 ] In Lee, the plaintiff brought an action in ejectment in federal court to recover the Virginia estate of General Robert E. Lee. The estate had been acquired by the United States for nonpayment of taxes, although the taxes in fact had been tendered by a third party. Once in possession, the Government had established a federal military installation and a national cemetery on the property. The plaintiff brought suit against the governmental custodians of the estate, who pleaded the sovereign immunity of the United States as a defense. This Court upheld a trial court judgment in favor of the plaintiff, on the ground that the defendants' possession of the estate was unlawful. The Court held that a suit against the federal officers under such circumstances was not a suit against the sovereign. Although Lee involved the sovereign immunity of the United States, the Court in Tindal stated that "it cannot be doubted that the question whether a particular suit is one against the State, within the meaning of the Constitution, must depend upon the same principles that determine whether a particular suit is one against the United States." 167 U.S., at 213 .
[ Footnote 22 ] The Court continued: "Any other view leads to this result: That if a State, by its officers, acting under a void statute, should seize for public use the property of a citizen, without making or securing just compensation for him, and thus violate the constitutional provision declaring that no State shall deprive any person of property without due process of law, Chicago, Burlington &c. Railroad v. Chicago, 166 U.S. 226, 236 , 241, the citizen is remediless so long as the State, by its agents, chooses to hold his property; for, according to the contention of the defendants, if such agents are sued as individuals, wrongfully in possession, they can bring about the dismissal of the suit by simply informing the court of the official character in which they hold the property thus illegally appropriated." Id., at 222.
[ Footnote 23 ] The plaintiff had contracted to purchase surplus coal from the War Assets Administration; the Administrator of that agency had withheld delivery and entered a new contract to sell the coal on the ground that the plaintiff had failed to perform a condition precedent to delivery. The plaintiff contended that title to the coal had passed at the time the contract was made, so that the Administrator was wrongfully withholding property that belonged to him.
[ Footnote 24 ] The Court stated: "The mere allegation that the officer, acting officially, wrongfully holds property to which the plaintiff has title does not meet [the requirement that the action to be restrained or directed is not action of the sovereign]. True, it establishes a wrong to the plaintiff. But it does not establish that [458 U.S. 670, 689] the officer, in committing that wrong, is not exercising the powers delegated to him by the sovereign. If he is exercising such powers, the action is the sovereign's and a suit to enjoin it may not be brought unless the sovereign has consented." 337 U.S., at 693 . The Court explicitly rejected the argument that "the commission of a tort cannot be authorized by the sovereign." Ibid.; see also id., at 695.
[ Footnote 25 ] The Court found that the Administrator "was empowered by the sovereign to administer a general sales program encompassing the negotiation of contracts, the shipment of goods and the receipt of payment." Id., at 692. "A normal concomitant of such powers, as a matter of general agency law, is the power to refuse delivery when, in the agent's view, delivery is not called for under a contract and the power to sell goods which the agent believes are still his principal's to sell." Ibid. The Court also noted that the "very basis of the respondent's action is that the Administrator was an officer of the Government, validly appointed to administer its sales program and therefore authorized to enter, through his subordinates, into a binding contract concerning the sale of the Government's coal." Id., at 703.
[ Footnote 26 ] The Court held that there could be no claim that the Administrator's actions constituted an unconstitutional taking of property without compensation because the plaintiff had a remedy, in a suit for breach of contract, in the Court of Claims. Id., at 703, n. 27.
[ Footnote 27 ] This principle is not absolute. As noted, n. 19, supra, Congress may authorize a suit against a State - pursuant to 5 of the Fourteenth Amendment - that would entail the payment of public funds from the state treasury. Fitzpatrick v. Bitzer, 427 U.S. 445 ; Hutto v. Finney, 437 U.S. 678 . Moreover, a prospective decree that has an "ancillary effect" on the state treasury "is a permissible and often an inevitable consequence of the principle announced in Ex parte Young." Edelman v. Jordan, 415 U.S., at 668 ; see also Milliken v. Bradley, 433 U.S. 267, 288 . Finally, "[w]hile it is clear that the doctrine of Ex parte Young is of no aid to a plaintiff seeking damages from the public treasury . . . damages against individual defendants are a permissible remedy in some circumstances notwithstanding the fact that they hold public office." Scheuer v. Rhodes, 416 U.S. 232, 238 .
[ Footnote 28 ] The motion identified L. Ross Morrell as the Director of the Division of Archives and James McBeth as the Bureau Chief of the Historical Museum of the Division of Archives. App. 15.
[ Footnote 29 ] As noted, the State immediately filed a motion to quash the warrant. Id., at 43. Although that effort failed, the State asserted an Eleventh Amendment defense in its attempt to defeat a transfer of the property - and thus ultimate execution of the warrant - to Treasure Salvors. Record 422.
[ Footnote 30 ] As noted, n. 11, supra, Treasure Salvors filed a supplemental complaint seeking a declaratory judgment that its contracts with the State [458 U.S. 670, 692] were void. This action might be characterized as an action against the State itself. The District Court emphasized, however, that "the warrant was not issued in response to Treasure Salvors' Supplemental Complaint for Declaratory Judgment and Other Relief which was filed April 17, 1978." 459 F. Supp., at 526 (emphasis in original). The order to show cause entered by the District Court was addressed directly to the State of Florida. See App. 63. That order was issued, however, only after the State itself had filed a motion to quash the warrant. Id., at 43 ("COMES NOW, the State of Florida, by and through the undersigned counsel, and moves this Court to set aside and quash the warrant for arrest in rem issued against the State of Florida at the request of Plaintiffs herein . . ."). The order to show cause did not alter the fact that the process resisted by the State on Eleventh Amendment grounds was directed only at state officials.
[ Footnote 31 ] In this Court the State has asserted that the issue on the merits involves a determination of the validity of the contracts. See post, at 712, n. 9. But the State has not identified any language in the contracts that provides even a colorable basis for a claim that the State has an ownership interest in the artifacts.
[ Footnote 32 ] This case is thus unlike Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682 , in which the plaintiff asserted a right to the property pursuant to the very contract that it contended the Government official had breached without authority. Treasure Salvors claims ownership of the res on the ground that the property was abandoned by the former owner, and discovered by Treasure Salvors, on the Continental Shelf of the United States in international waters. See n. 8, supra.
[ Footnote 33 ] In this Court the State has advanced the argument that its boundaries for purposes of rightful ownership of sunken ships extend further than its boundaries for purposes of ownership of mineral resources. This argument was not raised in the petition for certiorari, is foreclosed by our prior determination of the State's boundaries, see n. 5, supra, and is refuted by the State's own conduct in this case. The State has never attempted to claim ownership of the property that Treasure Salvors has continued to recover since the expiration of the contracts. Given the State's vigorous [458 U.S. 670, 696] defense of the relatively few artifacts at issue in this case, it is difficult to imagine that the State idly would permit Treasure Salvors to pirate other treasure that rightfully belonged to the State.
[ Footnote 34 ] The fact that the contracts were executed on the basis of a mistaken understanding concerning the ownership of the Atocha cannot, of course, provide Florida with a colorable claim of ownership. For if the mistake had not occurred, it would have been apparent from the outset that Treasure Salvors had no reason to enter into a contract with Florida or any other stranger to the transaction. The State of Florida has never contended that it would benefit from a reformation of the contracts; Treasure Salvors' position does not depend on any change in the terms of the contracts. The Eleventh Amendment analysis in this case does not require any consideration of the doctrine of mistake.
[ Footnote 35 ] Although the State in this case relies only on the disputed contracts - and not on any statutory provision - we note that Fla. Stat. 267.061(2)(a) (1981) provides generally that it is the responsibility of the Division of Archives to "[l]ocate, acquire, protect, preserve, and promote the location, acquisition, and preservation of historic sites and properties, buildings, artifacts, treasure trove, and objects of antiquity which have scientific or historical value or are of interest to the public, including, but not limited to, monuments, memorials, fossil deposits, Indian habitations, ceremonial sites, abandoned settlements, caves, sunken or abandoned ships, or any part thereof." Surely this section does not authorize state officials, however, to seize and hold historical artifacts at will wherever they are found.
I agree with the plurality that the Eleventh Amendment prohibited neither an execution of the warrant nor a transfer to respondents of the artifacts at issue in this case. See ante, at 699 and this page. My rationale for this conclusion differs from the plurality's, however. Both respondents are corporations organized under the laws of the State of Florida. Thus this suit is not "commenced or prosecuted against one of the United States by citizens of another State." U.S. Const., Amdt. 11 (emphasis added). The plurality asserts that this constitutional provision "long has been held to govern" "actions brought against a State by its own citizens." Ante, at 683, n. 17 (emphasis added), citing Hans v. Louisiana, 134 U.S. 1 (1890). I have long taken the view that Hans did not rely upon the Eleventh Amendment, and that that Amendment does not bar federal court suits against a [458 U.S. 670, 701] State when brought by its own citizens. See Employees v. Missouri Public Health Dept., 411 U.S. 279, 309 -322 (1973) (dissenting opinion); Edelman v. Jordan, 415 U.S. 651, 687 (1974) (dissenting opinion). I adhere to this view, and I therefore believe that the Eleventh Amendment is wholly inapplicable in the present case. * To this extent, I am in agreement with the plurality's disposition.
[ Footnote * ] For this reason, I cannot agree with footnote 17 of the plurality's opinion. To the extent, however, that the plurality concludes that the judgment of the Court of Appeals should be affirmed because the State of Florida does not have even a colorable claim to the artifacts, I agree with its opinion.
The Court of Appeals, like the District Court, thought that the jurisdictional issue raised by the State merged with a determination on the merits of the validity of the State's claim to the property. The appellate court believed that it had "jurisdiction to decide jurisdiction" and could therefore determine who owned the artifacts in order to ascertain whether the suit was, in fact, an action against the State. [458 U.S. 670, 703] By holding that "[t]he court did not have power . . . to adjudicate the State's interest in the property without the State's consent," ante, at 682, the Court properly rejects this novel conception of the Eleventh Amendment. * The appellate court's approach to the jurisdictional issue is not consistent with our prior cases; it incorrectly assumes that a federal court may adjudicate a State's right to ownership of specific property within the possession of state officials without the State's consent. The approach is unsatisfactory because, as Judge Rubin noted in dissent, it "is equivalent to asserting that suits against a state are permitted by the eleventh amendment if the result is that the state loses." 621 F.2d 1340, 1351 (CA5 1980). Although disagreeing with the Court of Appeals' Eleventh Amendment holding, the plurality nevertheless proceeds to conclude that the "State does not have even a colorable claim to the artifacts pursuant to [its] contracts" with respondents, ante, at 694, and that the state officials "have [no] colorable claim to possession of the artifacts." Ante, at 697. This for all practical purposes adjudicates the State's title, thus repeating the Eleventh Amendment error of the Court of Appeals.
Treasure Salvors' subsequent request for an arrest warrant was predicated on this decision. 1 The warrant was to [458 U.S. 670, 705] issue because it had already been decided that Treasure Salvors had "sole title and right to possession of the Defendant vessel." App. 13. Notwithstanding the Court of Appeals' limitation of its opinion to artifacts within the District Court's jurisdiction and to rights in the treasure asserted by the United States, Treasure Salvors sought enforcement of the judgment against the State of Florida. It did so on grounds that this Court's decision in United States v. Florida, 420 U.S. 521 (1975), removed Florida's right to the artifacts, and that Florida was privy to and bound by Treasure Salvors I.
I find the inescapable conclusion to be that this suit, as filed, litigated, and decided, was an action to determine the title of the State of Florida to the artifacts. 2 A suit of this type is at the heart of the Eleventh Amendment immunity.
The plurality's reading of In re New York (II) is that an action "otherwise barred as an in personam action against the State - cannot be maintained through seizure of property owned by the State." Ante, at 699. 3 Nothing in the language of Justice Pitney's opinion supports this interpretation. Moreover, the libel brought before the Court in that case was a true in rem action; an action in admiralty to recover damages caused by a ship is a classic in rem action, although [458 U.S. 670, 708] after the owners of the vessel are identified the libel often will be amended to include an in personam claim as well. G. Gilmore & C. Black, Law of Admiralty 498 (2d ed. 1975) (Gilmore & Black). Therefore, In re New York (II) is as "true" an in rem action as the instant case.
The grounds of similarity between the cases are clear: in both cases in rem libels were filed and process by arrest was requested; in both suits the State by its Attorney General responded and indicated to the District Court that the property to be arrested was in the possession and ownership of the State, and therefore immune from seizure and attachment. In both cases, the District Court overruled the suggestion and awarded process in rem, authorizing the arrest of the res. When the seizure of the Queen City finally reached this forum, the Court stated that the property was exempt from seizure by admiralty process in rem. 4 The plurality's distinction aside, the cases can be distinguished on but a single relevant point: the fact that ownership of the res is contested here. That, of course, is the grounds on which the Court of [458 U.S. 670, 709] Appeals decided the case - a resolution which the plurality apparently rejects.
The plurality's second argument is that the "State does not have even a colorable claim to the artifacts pursuant to these contracts." Ante, at 694. I disagree with this conclusion. The wording of the contract is reasonably interpretable as providing for a division of the recovered treasure. The intention of the parties upon the making of the contract, of course, governs the interpretation of the instrument. If United States v. Florida, supra, had placed the Atocha within Florida waters, it could not reasonably be argued that the contract did not constitute a valid basis for the State's [458 U.S. 670, 713] claim to 25% of the artifacts. Both Treasure Salvors and the State entered into the contracts on the assumption that the Atocha rested in Florida waters. As it happened, the Florida decision upset that mutual assumption. This does not, however, inexorably mean that the contracts are so invalid as to render possession of the artifacts ultra vires. 10 Admiralty law may provide that such a mistake is not grounds for rescission of fully performed contracts in these circumstances. 11 The plurality's contention that the language of the contracts does not purport to transfer artifacts from Treasure Salvors to the State utterly ignores the concept of mistake. The notion of mistake would be read out of contract law if courts expected a contract, written under mistaken assumptions, to read as if the mistake had not occurred.
[ Footnote * ] I therefore concur in the judgment of the Court only insofar as it reverses the Court of Appeals' determination of the State's ownership of the artifacts. On this point, all Members of the Court, except JUSTICE BRENNAN, are in agreement.
[ Footnote 1 ] "[T]he plaintiffs . . . pursuant to the Final Judgment rendered by this Court February 19, 1976 and the Appellate Opinion rendered by the United States Court of Appeals for the Fifth Circuit No. 76-2151, March [458 U.S. 670, 705] 13, 1978, move this Court for an Order commanding the United States Marshal to arrest and take custody of those portions of the Plaintiff's vessel now being held by L. Ross Morrell or James McBeth or being held under their custody, care or control." App. 11.
[ Footnote 2 ] The fact that the District Court did not issue its arrest warrant in response to Treasure Salvors' amended complaint is of little significance. It is the complaint which defines the nature of an action, and once accepted, an amended complaint replaces the original. Moreover, the adjudication of title either reflects that the ownership claim followed from the original complaint or constituted action upon the amended complaint.
[ Footnote 3 ] The plurality confuses the matter further by treating the cases as bearing on the question of whether a burden is imposed on the state treasury. The In re New York cases pertain instead to the initial issue of whether the action is against the State.
[ Footnote 4 ] In re New York (II) was decided on straight sovereign immunity grounds: "[T]he record - aside from whether a suit in admiralty brought by private parties through process in rem against property owned by a State is not in effect a suit against the State, barred by the general principle applied in Ex parte New York, No. 1, No. 25, Original - presents the question whether the proceeding can be based upon the seizure of property owned by a State and used and employed solely for its governmental uses and purposes." The Court went on to decide the vessel was immune from admiralty process, based upon "the law of nations" and "general grounds of comity and policy." 256 U.S., at 510 . In re New York (II)'s resolution on sovereign immunity grounds has several implications. First, as with other sovereign immunity decisions, it is direct support for determining what constitutes a suit against the State. Ante, at 686, n. 21. Cf. Tindal v. Wesley, 167 U.S. 204, 213 (1897). Second, it undercuts the plurality's analysis that the case merely stops roundabout circumvention of In re New York (I) through "first attaching property that belonged to the State and then proceeding in rem." Ante, at 699. As the above quoted passage indicates, the In re New York (II) Court did not need to go so far in order to find the suit barred.
[ Footnote 5 ] Under English law, no warrant for arrest will issue against any vessel in the actual service of a recognized foreign government. Significantly, this is so even if the suit itself is not barred. See, e. g., The Messicano, 32 T. L. R. 519 (1916). Where plaintiff sues in rem for possession "the writ will be dismissed, if a foreign recognized government claims the right to possession and is in the actual possession of the vessel, regardless of whether possession was rightfully or wrongfully obtained." Riesenfeld, Sovereign Immunity of Foreign Vessels in Anglo-American Law: The Evolution of a Legal Doctrine, 25 Minn. L. Rev. 1, 25 (1940). In The Parlement Belge, 5 P. D. 197, 220 (1880), the "leading authority" in England, it was held that "[i]f the remedy sought by an action in rem against public property is, as we think it is, an indirect mode of exercising the authority of the Court against the owner of the property, then the attempt to exercise such an authority is an attempt inconsistent with the independence and equality of the state which is represented by such owner." Moreover, after a ship was declared by the foreign sovereign "to be in his possession as sovereign and to be a public vessel of the state," it was "very difficult to say that any Court can inquire by contentious testimony whether that declaration is or is not correct." Id., at 219.
[ Footnote 6 ] For early cases, see United States v. Peters, 3 Dall. 121 (1795); The Schooner Exchange v. McFaddon, 7 Cranch 116 (1812); L'Invincible, 1 Wheat. 238 (1816); The Santissima Trinidad, 7 Wheat. 283 (1822). In The Siren, 7 Wall. 152 (1869), the Court allowed a claim against the proceeds of the vessel when sold, but stressed that no claim could be enforced while the Government owned the vessel. In The Western Maid, 257 U.S. 419 (1922), the Court, per Justice Holmes, went further and refused to allow a claim against a Government-owned vessel as enforceable either during Government ownership or thereafter. Shortly thereafter, sovereign immunity was expanded to embrace ships engaged solely in commerce. Berizzi Bros. Co. v. S.S. Pesaro, 271 U.S. 562 (1926).
[ Footnote 7 ] See Gilmore & Black 606-613. Only when a vessel is not in the sovereign's possession, is there controversy over the proper means by which the foreign government may assert its ownership. See Compania Espanola de Navegacion Maritima v. The Navemar, 303 U.S. 68 (1938).
[ Footnote 8 ] "In Larson . . . this Court held that the actions of a federal official in withholding the delivery of goods pursuant to his interpretation of a disputed provision of a contract constituted at most a tortious deprivation of property. . . . Actions of the Government official pursuant to legitimate contractual authority were neither ultra vires nor unconstitutional." Ante, at 693.
[ Footnote 9 ] "At issue in the present case is both a contract and property right of the State of Florida to the artifacts previously in its possession . . . ." Brief for Petitioner 32; "The issue on the merits was whether the State had property rights to artifacts in its Archives - that is, whether the contract to which the state was a party was valid." Id., at 60. "The State of Florida has not claimed a lien on the artifacts; it has claimed ownership - through fully executed contracts." Reply Brief for Petitioner 16-17. "The contract alone determined the rights and obligations of the contracting parties and was in no way affected by United States v. Florida." State's Motion to Quash Warrant for Arrest in Rem, App. 44.
[ Footnote 10 ] The plurality also suggests that the contracts "were predicated entirely on a state statute that on its face is inapplicable in this case." Ante, at 696. This no more than restates the plurality's characterization of the contracts. But it does highlight that the contracts' validity is called into question only by a mistaken assumption of law - the statute's "inapplica[bility]" after United States v. Florida, 420 U.S. 531 (1975).
[ Footnote 11 ] The inherent uncertainty in contracts for salvage has led admiralty courts to find few reasons that would justify reformation of a contract. See The Elfrida, 172 U.S. 186, 196 (1898) ("We do not think that a salvage contract should be sustained as an exception to the general rule, but rather that it should, prima facie, be enforced, and that it belongs to the defendant to establish the exception"). Gilmore & Black 582 ("Whether the gamble turns well or badly for the salvor, the `no cure no pay' contract is everywhere recognized as enforceable, absent such invalidating causes as fraud and duress").
[ Footnote 12 ] The plurality's attempt to distinguish Larson is puzzling. It notes that while the plaintiff in Larson asserted a right to the property pursuant to the very contract it contended the Government official had breached, here Treasure Salvors claims ownership on grounds entirely independent of the contracts. This is a distinction without meaning: it is the State's claim to the property which is significant; the basis for Treasure Salvors' claim is quite beside the point. The relevant comparison is that the federal official in Larson was arguably without authority to enter a contract to sell coal that he had already sold just as the State was arguably without authority to enter a contract respecting salvage on lands outside its waters.

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Failing to give Dad credit would result in impermissible windfall to Mom and child . . .
California Court of Appeal 4 Civil D071859 (Div 1) 25 Cal.App.5 th 300, 235 Cal.Rptr.3d 663, 2018 FA 1847, per Dato, J (Haller, Acting PJ and Irion, J, concurring). For DCSS: Deputy Attorney General Marina Soto, (916) 210-7912. For Dad: Bruce Beals, CFLS, (619) 321-6611, and Debra Scott, (619) 405-2572. CFLP §E.34.3.
Mother (Y.H.) and Father (M.H.) were married in 2001; their daughter (C) was born in 2002. The couple separated in 2003 and began disso proceedings, which they settled by a stipulated MSA. The MSA provided that the parents would have joint legal custody of C, Y.H. would have sole physical custody, and M.H. would pay guideline child support.
In 2004, M.H. was honorably discharged from the U.S. Marine Corps and was found to be permanently disabled from injuries he suffered in combat in Iraq. Accordingly, he “[a]t some point” began receiving VA disability benefits. In February 2006, Y.H. asked the San Diego County Dept of Child Support Services (DCSS) to enforce M.H.’s child support obligation. As of March 2007, his child support obligation was $359 per month.
In 2011, DCSS moved to modify child support. M.H. filed an I&E declaration, showing that his sole means of support was his $2,870 per month VA disability benefit. Y.H.’s declaration stated that she was currently unemployed and finishing her last year of college. The trial court increased M.H.’s child support payments to $719 per month, effective September 1, 2012. Meanwhile, M.H. had applied for SSDI benefits for himself and for SSDI derivative benefits for C. For the next six years, M.H. waited to see if his application was approved and faithfully paid his child support. On June 29, 2015, SSA finally approved M.H.’s application, determined that his benefits were effective on June 1, 2009, and calculated that he was entitled to a lump-sum payment of $78,057 in accrued past-due benefits, plus $1,800 per month in SDDI benefits. After withholding $19,514 from the lump-sum payment for attorney’s fees, SSA sent M.H. a check for $61,121.
SSA also notified Y.H. that she would be C’s representative payee for the child’s SSDI derivative benefits, which would be $596 per month beginning in July 2015. Y.H. also received a lump-sum check for $41,384, representing past-due benefits that accrued while M.H.’s application was pending. Y.H. neglected to notify DCSS that she was receiving the SSDI benefits “[f]or some months” during which SSA was withholding $544 from M.H.’s monthly SSDI benefits. At some point, DCSS began crediting C’s $589 monthly SSDI benefits against M.H.’s child support obligation. In March 2016, DCSS began withholding $123 per month from M.H.’s SSDI and credited him with his overpayments during the past 9 months.
M.H. subsequently filed an RFO, seeking a DCSS audit of all of the child support payments he had made and a credit for the lump-sum SSDI payment made to Y.H. on C’s behalf. When discovery requests regarding the amount of C’s monthly benefit and lump-sum payment went unanswered, M.H. filed a motion to compel. At the hearing on that motion, the trial court learned that M.H. had obtained the information by subpoena to the SSA and imposed discovery sanctions of $2,500 on Y.H. At the same time, the lower court allowed DCSS to be heard on the issues, and heard DCSS’s contention that Fam C §4504(b) did not permit a credit for the lump-sum payment because it permitted only credit for current payments or for any arrearages, of which there were none here. Given that, DCSS argued, M.H. was not entitled to a credit from the lump-sum payment in the absence of any arrearages. The trial court, however, found that Fam C §4504(b) mandated a credit against M.H.’s child support obligation. The court ordered DCSS to retroactively apply $596 per month (C’s current benefit) toward M.H.’s monthly child support obligation beginning June 2009, and specified that the SSDI derivative benefits were to be credited first, then M.H.’s voluntary payments. The trial court concluded that any excess would be subject to an offset or refund.
DCSS appealed, but the Fourth District modified the judgment to correct a clerical error and affirmed the judgment as modified.
This way, or that way . . .
On appeal, DCSS renewed its contention that Fam C §4504(b) does not permit the trial court to order a retroactive credit in the absence of arrearages. The justices pointed out that Fam C §4504(b) requires the trial court to credit the amount that a child receives in SSDI benefits against the amount that a noncustodial parent has been ordered to pay for monthly child support, unless the SSDI payments were considered when the court made its child support order. The statute also provides that any credits should be made in the order set forth in CCP §695.221, that is first against the current month’s support, then to arrears. It doesn’t specify how the remainder of the credit is to be applied if arrears do not exhaust the entire amount. Moreover, the justices reasoned, the language of the statute does not limit the mandate to credit the child’s SSDI benefits against the noncustodial parent’s child support obligation, as DCSS contended. Therefore, the panel determined, where there are no arrearages the lower court must find another way to credit the SSDI payments. With that in mind, the justices reasoned that the payments M.H. made while he was waiting for the SSA to approve his application “were essentially an advance of his support obligation.” (Emphasis in opinion.) The trial court then complied with the statutory mandate by ordering the child support credit retroactive to the months that were covered by the lump-sum payment.
Making history . . .
The justices then turned to the legislative history of Fam C §4504(b) to support their reasoning. They noted that a previous version of the statute contained a provision regarding lump-sum payments which required the trial court to give credit for each month for which the lump sum was made. However, the statute did not allow the trial court to order a credit against other arrearages. In 2004, the panel explained, the Legislature amended the statute to remove the provision that limited credit to each month’s payment and to add the current language which requires credit “‘toward the amount ordered by the court to be paid .’” (Emphasis added in opinion.) As the analysis of the Senate Committee on Judiciary states, the solons intended that change to allow the noncustodial parent to receive credit for the full amount of SSDI, “‘regardless of the time period the benefits represent.’” And, in furtherance of that intent, they incorporated CCP §695.221 “to further clarify that excess credit could be applied toward child support arrears .” (Emphasis in opinion.) Limiting the application of SSDI benefits by excluding arrearages, as DCSS argued, would go against both the language of the statute and the intent of the Legislature to broaden the application of credits to lump-sum payments, the panel concluded.
Wrong in so many ways . . .
The justices also reasoned that adopting DCSS’s reasoning “would lead to the perverse consequence of encouraging arrears by an obligor who has applied for federal benefits.” In the meantime, the panel reasoned, the child would suffer financial harm from the noncustodial parent’s failure to pay support. On the other hand, the justices pointed out, failing to give the noncustodial parent full credit would result in an impermissible windfall to the child and his or her mother. And, it would penalize men like M.H., who faithfully pay their child support obligation while waiting for their benefits applications to be approved. Summing up, the justices concluded that Fam C §4504(b) requires the trial court to give M.H. credit against his previously paid child support based on C’s lump-sum benefit payment.
Math mishap . . .
Finally, the panel, on its own motion, modified the opinion to correct a clerical error. That error resulted from the lower court’s assumption that C’s current benefit of $596 per month had always been that amount, and its failure to take into account cost of living increases that adjusted the amount over the years. Moreover, M.H.’s child support payments had increased from $359 per month to $719 per month. Accordingly, the justices modified the trial court’s order as to the amount of credit owed to M.H. from C’s SSDI payments from June 2009 to December 2014, and then affirmed the order as modified.
This is one of those cases where the reader can feel that the trial court’s determination must be right, if for no other reason than the windfall that Y.H. would get otherwise and can hope that the appellate court thinks so too. In a footnote, the justices tell us they are not expressing any view as to how the lower court should go about attributing the child’s lump-sum payment to the Dad’s past child support obligation; it could be in the form of an offset against future child support payments or a refund of the excess he already paid. They leave that for the parties and the trial court to decide.
Most family law attorneys have had a client who simply refuses to pay the child support that may accrue while something else is going on, such as a request for a modification. We may tell them that it’s better to keep paying and then look for reimbursement or an offset when the issue is concluded, but most of them are not convinced. This case may provide ammunition for convincing the client to pay.
In another footnote, the justices say they are less than impressed by DCSS’s contentions that denying a credit where no arrearages exist “serves legitimate public purposes of ‘1) maximizing support payments received by families, 2) reducing largely uncollectable support arrears totaling in the billions of dollars, and 3) improving California’s performance on federal incentive measures to ensure increased funding for the State’s Title IV-D child support program.’ These macro-level policy objectives cannot justify an inequitable windfall based on an overpayment of child support in an individual case,” they rightfully declare. In conclusion, in another footnote, the justices note that while the trial court called the father’s child support payments “‘voluntary payments,’” it recognized that he made them in compliance with a court order and for not accumulating arrearages.


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Administrative Law and Procedure - Judicial Review - Exhaustion of Administrative Remedies - Necessity. Exhaustion of administrative remedies prior to judicial relief is not necessary when such action would be futile, such as where the validity or applicability of the appeal procedure is challenged.
 Courts - Labor Relations - Collective Bargaining Act - Juvenile Court Employees. For purposes of the Public Employees' Collective Bargaining Act (RCW 41.56), which applies to county but not state employees, employees of a juvenile court are county employees insofar as wages and related matters are concerned, but are state employees as to matters controlled by the juvenile court judges, such as hiring, firing, and working conditions. The bargaining act applies to the extent that the juvenile court employees are employees of the county.
 Constitutional Law - Courts - Expenditures - Inherent Power. The doctrine of separation of powers prevents legislative action or inaction from interfering with the independent and effective functioning of the judicial branch of government. The judiciary has the inherent power to compel payment from the public treasury when necessary for the efficient administration of justice.
Act (RCW 41.56) to juvenile court employees does not affect the judiciary's power to control and administer the courts, including the power to require payment of public funds when essential to the efficient administration of justice.
FINLEY and UTTER, JJ., STAFFORD, C.J., and HUNTER, WRIGHT, and HOROWITZ, JJ., concur by separate opinions.
Appeal from a judgment of the Superior Court for Pierce County, No. 221797, Gerry L. Alexander, J., entered March 18, 1974. Affirmed in part; reversed in part.
Action to determine the validity of a collective bargaining agreement. The appellants appeal from a judgment in favor of the plaintiffs.
Herbert Gelman (of Geiman & Couture), for appellants.
Jack G. Rosenow (of Comfort, Dolack, Hansler, Hulscher, Rosenow & Burrows), for respondents.
This appeal presents the question of whether the Public Employees' Collective Bargaining Act is applicable to employees in juvenile court facilities.
In 1972, a bargaining unit was organized at Remann Hall, the juvenile court facility in Pierce County, by the Washington State Council of County and City Employees, AFL-CIO, Local 120. The unit was organized pursuant to RCW 41.56 (Public Employees' Collective Bargaining Act). Remann Hall employees, represented by the union, negotiated a contract with Pierce County Commissioners which included provisions for hours, wages, and work conditions. After the contract became effective, a monthly deduction for union dues and insurance was made from the salaries of Remann Hall employees. Plaintiffs challenged this contract in Pierce County Superior Court, seeking a declaratory judgment holding the contract null and void because it was not authorized by RCW 41.56. Plaintiffs further sought injunctive relief and damages in the amount of dues paid to the union.
employees of the juvenile court are employees of the state and, therefore, under the doctrine of Roza Irrigation Dist. v. State, 80 Wn.2d 633, 497 P.2d 166 (1972), the bargaining act does not apply to them. The court therefore declared the contract void and awarded damages. Defendants appeal. We affirm in part and reverse in part.
 As a preliminary matter, we note that plaintiffs' failure to exhaust remedies under the bargaining act and under the union contract does not bar their access to the courts. Exhaustion of administrative remedies will not be required where resort to those procedures would be futile. See Washington Local 104, Boilermakers v. International Bhd. of Boilermakers, 33 Wn.2d 1, 203 P.2d 1019 (1949). Here, remedies prescribed by either the bargaining act or the contract in question would have been futile where the controversy centers on the applicability of the act and the validity of the contract.
(1) "Public employer" means any officer, board, commission, council, or other person or body acting on behalf of any public body governed by this chapter as designated by RCW 41.56.020, or any subdivision of such public body.
(2) "Public employee" means any employee of a public employer except any person (a) elected by popular vote, or (b) appointed to office pursuant to statute, ordinance or resolution for a specified term of office by the executive head or body of the public employer, or (c) whose duties as deputy, administrative assistant or secretary necessarily imply a confidential relationship to the executive head or body of the applicable bargaining unit, or any person elected by popular vote or appointed to office pursuant to statute, ordinance or resolution for a specified term of office by the executive head or body of the public employer. . . .
employees at the local level, since state employees are not referred to in RCW 41.56.020 . . .
 Plaintiffs' employment bears a substantial relationship to both Pierce County and the judicial branch. Under RCW 13.04.040,«1» compensation for juvenile court probation counselors and detention staff is to be fixed and paid by the county. Probation officers have been held to be county officers. In re Lewis, 51 Wn.2d 193, 316 P.2d 907 (1957); State ex rel. Richardson v. Clark County, 186 Wash. 79, 56 P.2d 1023 (1936).
However, RCW 13.04.040 also provides that juvenile court employees are to be hired, controlled, and discharged by the judges of the court. The traditional test of employer-employee relationship in Washington is the right of control. James v. Ellis, 44 Wn.2d 599, 269 P.2d 573 (1954).
«1» The court shall, in any county or judicial district in the state, appoint or designate one or more persons of good character to serve as probation counselors during the pleasure of the court. In case a probation counselor shall be appointed by any court, the clerk of the court, if practicable, shall notify him in advance when a child is to be brought before said court. The probation counselor shall make such investigations as may be required by the court. The probation counselor shall inquire into the antecedents, character, family history, environments and cause of dependency or delinquency of every alleged dependent or delinquent child brought before the juvenile court and shall make his report in writing to the judge thereof. He shall be present in order to represent the interests of the child when the case is heard; he shall furnish the court such information and assistance as it may require, and shall take charge of the child before and after the trial as may be directed by the court.
"All probation counselors shall possess all the powers conferred upon sheriffs and police officers to serve process and make arrests for the violation of any state law or county or city ordinance, relative to the care, custody, and control of delinquent and dependent children.
"The court may, in any county or judicial district in the state, appoint one or more persons who shall have charge of detention rooms or house of detention.
"The probation counselors and persons appointed to have charge of detention facilities shall each receive compensation which shall be fixed by the board of county commissioners, or [in] cases of joint counties, judicial districts of more than one county, or joint judicial districts such sums as shall be agreed upon by the boards of county commissioners of the counties affected, and such persons shall be paid as other county officers are paid." RCW 13.04.040.
Thus, plaintiffs are hired and fired by the juvenile court judges, and are compensated by the county. We conclude that, for the purposes of the applicability of the collective bargaining act, plaintiffs may be classed as having a dual status: They are employees of the county for purposes of negotiating matters relating to wages, including benefits relating directly to wages such as medical insurance. Thus, wage negotiations with the Board of County Commissioners are appropriately controlled by the provisions of the bargaining act. However, for purposes of hiring, firing, working conditions, and other matters necessarily within the statutory responsibility of the juvenile court judges, plaintiffs are employees of the court and thus of the State's judicial branch. Adhering to the doctrine of Roza Irrigation Dist. v. State, supra, these matters do not fall within the purview of the bargaining act.
. . . Leahey v. Farrell, supra at 57-58. See also Inherent Power of Court to Compel Appropriation or Expenditure of Funds for Judicial Purposes, Annot., 59 A.L.R.3d 569, 573 (1974).
courts clearly rests with the judiciary. This does not make of the court a final arbiter in the collective bargaining process; it but recognizes the undiminished role of the judiciary as an independent and equal coordinate branch of government.
The doctrine of separation of powers does not create exclusive spheres of competence in each branch.
But the doctrine of the separation of powers was never intended to create, and certainly never did create, utterly exclusive spheres of competence. The compartmentalization of governmental powers among the executive, legislative and judicial branches has never been watertight. In re Salaries for Probation Officers of Bergen County, 58 N.J. 422, 425, 278 A.2d 417 (1971).
Harmonious cooperation among the three branches is fundamental to our system of government. Only if this cooperation breaks down is it necessary for the judiciary to exercise inherent power to sustain its separate integrity. Commonwealth ex rel. Carroll v. Tate, supra. Cooperation among all three branches is involved in permitting these employees to bargain in relation to wages. The question to be asked is not whether two branches of government engage in coinciding activities, but rather whether the activity of one branch threatens the independence or integrity or invades the prerogatives of another. We can find no such encroachment, actual or threatened, in permitting these employees to bargain on the question of wages.
«2» The effect of partial invalidity upon the continuing effectiveness of the existing contract has not been briefed or argued; hence, we express no view upon any question related thereto.
invalidates the contract as to hiring, firing, and working conditions and denies defendant Piva attorney fees is affirmed. The parties will bear their own costs.
FINLEY, ROSELLINI, HUNTER, and BRACHTENBACH, JJ., concur.
employees are to be hired, controlled, and discharged by the judges of the court. From the foregoing, it follows, as emphasized by the majority, that probation officers or counselors and other personnel have a dual status. As to wages and other benefits they are employees of the county and the collective bargaining act is applicable. As to hiring, firing, working conditions and related matters, they are employees of the juvenile court and of the state's judicial branch of government, and the act is not applicable.
For the reasons stated, I concur in the majority opinion.
WRIGHT, J., concurs with FINLEY, J.
When the legislative and executive powers are united in the same person or body, there can be no liberty, because apprehension might arise lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.
Again, there is no liberty, if the judiciary power be not separate from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression.
followed there since that time. That act provided for tenure during good behavior and established the foundation of the modem English judicial system. Ervin, Separation of Powers: Judicial Independence, 35 Law & Contemp. Prob. 108, at 111 (1970).
To what expedient, then, shall we finally resort, for maintaining in practice the necessary partition of power among the several departments as laid down in the Constitution? . . . . . . [T]he great security against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. . . .
Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place.
Six of the original states explicitly affirmed the doctrine of the separation of powers. Today the theory is formally announced in about forty state constitutions.
The other states make no such formal declaration; nor does the Constitution of the United States. Yet the same result is reached because these other states' constitutions, as the federal constitution, create three departments of government, vesting the executive power in one, the legislative power in another, and the judicial power in a third. Washington is among those states which recognize the separation of powers theory by vesting in its constitution the "judicial power of the state" in a separate branch of government. Const. art. 4, § 1. Having been given this power, the judicial branch is further entrusted with the duty to insure that "[j]ustice in all cases shall be administered openly, and without unnecessary delay." Const. art. 1, § 10. We have recognized and applied the doctrine of separation of powers in Besselman v. Moses Lake, 46 Wn.2d 279, 280 P.2d 689 (1955), and Tacoma v. O'Brien, 85 Wn.2d 266, 534 P.2d 114 (1975). In furtherance of the principle of separation of powers we have refused to interfere with the executive branch of the government (State v. International Typographical Union, 57 Wn.2d 151, 356 P.2d 6 (1960); State v. Fair, 35 Wash. 127, 76 P. 731 (1904)), or with the legislative branch (Hoppe v. State, 78 Wn.2d 164, 469 P.2d 909 (1970); Seattle v. Hill, 72 Wn.2d 786, 435 P.2d 692 (1967)), and insisted that those branches do not usurp the functions of this one. Tacoma v. O'Brien, supra.
control the decision making and the adjudicatory process, but also the ancillary functions which are subordinate to the decision making Process.
It is simply impossible for a judge to do nothing but judge; a legislator to do nothing but legislate; a governor to do nothing but execute the laws. The proper exercise of each of these three great powers of government necessarily includes some ancillary inherent capacity to do things which are normally done by the other departments.
Thus, both the legislative department and the judicial department have certain housekeeping chores which are prerequisite to the exercise of legislative and judicial power. And, to accomplish these housekeeping chores both departments have inherently a measure of administrative authority not unlike that primarily and exclusively vested in the executive department.
The inherent power of the judiciary is a judicial power, but only in the sense that it is a natural necessary concomitant to the judicial power.
The inherent power of the Court is non-adjudicatory.
It does not deal with justiciable matters. It relates to the administration of the business of the Court. Wayne Circuit Judges v. Wayne County, 383 Mich. 10, 20-21, 172 N.W.2d 436 (1969), modified on other grounds, 386 Mich. 1, 190 N.W.2d 228 (1971).
reasonable and necessary to carry out their mandate and duty to administer justice if they are to be in reality a coequal independent branch of our government. Commonwealth ex rel. Carroll v. Tate, 442 Pa. 45, 52, 274 A.2d 193, 197 (1971).
It may be conceded that the appointment of probation officers and the fixing of their salaries are not, at least in the purest sense, judicial acts. But the doctrine of the separation of powers was never intended to create, and certainly never did create, utterly exclusive spheres of competence. The compartmentalization of governmental powers among the executive, legislative and judicial branches has never been watertight.
These mandates [constitutional mandates to administer justice completely, speedily and without delay] necessarily carry with them the right to quarters appropriate to the office and personnel adequate to perform the functions thereof. The right to appoint a necessary staff of personnel necessarily carries with it the right to have such appointees paid a salary commensurate with their responsibilities. The right cannot be made amenable to and/or denied by a county council or the legislature itself.
For these reasons I believe the courts clearly possess the power necessary to properly insure they can function efficiently as a separate branch of government. I can concur in the majority opinion because there is no contention that the salaries established by the collective bargaining process are inadequate to attract competent personnel, and the court's approval of the salary structure may be implied. Without this approval, express or implied, there would be a violation of the separation of powers doctrine inasmuch as inadequate staffing can cripple the ability of the courts to perform their established functions.
STAFFORD, C.J., and HUNTER and HOROWITZ, JJ., concur with UTTER, J.

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T. W. Bruton, Attorney General; Ralph Moody, Deputy Attorney General, for the State.
C. E. Gerrans for defendant.
The evidence reveals that only one shot was fired at the time deceased received the bullet wound which caused his death. The State, having adduced testimony from two witnesses that they saw defendant fire a pistol and that immediately thereafter Brown fell, exclaiming that he had been hit, clearly made out a case for the jury. State v. Smith, 268 N.C. 659, 151 S.E. 2d 596; State v. Downey, 253 N.C. 348, 117 S.E. 2d 39; State v. Brooks, 228 N.C. 68, 44 S.E. 2d 482. Defendant’s assignment of error based upon the denial of his motion for nonsuit is overruled.
Over defendant’s objection, and for the purpose of corroborating the witnesses Kolonick, Freeman, and Quinlivan, the court permitted the last witness for the State, a Marine sergeant with the Criminal Investigation Department, to testify that Kolonick told him on the morning after the shooting that he had seen defendant fire the gun, and that the other two said they had seen defendant with it in his hand. Defendant assigns the admission of these statements as error, for that (1) they were not made in defendant’s presence, and (2) the three witnesses had not first testified that they had spoken with the witness Bennett. This assignment of error is overruled upon the authority of State v. Brown, 249 N.C. 271, 106 S.E. 2d 232, wherein Winborne, C.J., said: “(I)t is competent to corroborate a witness by showing that he has previously made the same statement as to the transaction as that given by him in his testimony, and that it is not necessary to ask the witness to whom such former statement, offered in corroboration, was made.” Id. at 274, 106 S.E. 2d at 235.
The court charged the jury that if the State had satisfied them beyond a reasonable doubt from the evidence that defendant had intentionally shot Brown with a pistol, thereby inflicting a wound which caused his death, the presumption would arise that the killing was unlawful and that it was done with malice, and that the burden then devolved upon defendant to satisfy the jury “of such facts and circumstances, that is, the legal provocation that will rob the crime of malice and thus reduce it to manslaughter.” State v. Mangum, 245 N.C. 323, 96 S.E. 2d 39; State v. Utley, 223 N.C. 39, 25 S.E. 2d 195.
The judge thereafter gave the following contentions in behalf of defendant: (1) that defendant did not fire the shot which caused Brown’s death; and (2) that if the jury should find that he did fire the shot, the shooting was without malice because he fired at a trespasser who had been ordered to leave but showed “signs that he was not leaving.” In giving the final mandate, the court instructed the jury that if they found beyond a reasonable doubt that defendant intentionally shot Brown with a pistol and inflicted a wound which caused his death, nothing else appearing, defendant would be guilty of murder in the second degree, and that would be their verdict unless defendant had shown to their satisfaction “that he was not acting with malice but upon legal provocation, as the court has defined that term to mean to you.” (Emphasis added.) If defendant had carried his burden, the jurors were instructed to acquit him of murder in the second degree and to consider whether he was guilty of manslaughter.
At no time in his charge did the judge define legal provocation. Defendant assigns this omission and the failure of the court to tell the jury what were the “facts and circumstances, that is, the legal provocation arising on the evidence, that would reduce the crime from second degree murder to manslaughter or that would excuse it altogether.” He further assigns as error the failure of the court to charge upon accident, self-defense, and alibi.
Defendant offered no evidence of legal provocation, self-defense, or accident. His defense was that he did not fire the shot which caused Brown’s death; that at the time of the shooting he had just stepped out of the office and started to the front of the house to use the phone or that he was in the office 40-60 feet away from the group in the yard. (He testified both ways.) Therefore, if any testimony required the trial judge to charge upon the legal provocation which would rebut the presumption of malice arising from an intentional killing with a deadly weapon, it must be found in the State’s evidence. A defendant is entitled to whatever advantage the State’s evidence may afford him. State v. Downey, supra; State v. Crisp, 244 N.C. 407, 94 S.E. 2d 402.
The State’s evidence contains no suggestion that defendant shot Brown accidentally. There is evidence that immediately after the shot was fired Griffin said, “Everything is O. K., that was just a blank.” There was, however, no evidence that a pistol loaded with blanks was kept in the motel office for the purpose of frightening away trespassers. Nor was there any suggestion in the testimony that defendant thought the pistol contained blanks instead of live ammunition. Indeed, defendant testified that there was no pistol at the motel. The sailor, he said, could have shot Brown. The court did not err in failing to charge that defendant contended the killing was accidental. A defendant’s assertion of accident is, of course, not an affirmative defense but merely a denial that he has committed an intentional killing. State v. Phillips, 264 N.C. 508, 142 S.E. 2d 337. In this case, the court instructed the jury explicitly that, in order to convict defendant, the State was required to prove that he had intentionally shot Brown.
If one kills another with a deadly weapon by reason of provocation “such as would naturally and reasonably arouse the passions of an ordinary man beyond his power of control,” this sudden passion will rebut the presumption of malice, 26 Am. Jur., Homicide ß 22 (1940), and reduce murder in the second degree to manslaughter. State v. Watson, 222 N.C. 672, 24 S.E. 2d 540; State v. Merrick, 172 N.C. 870, 90 S.E. 257; State v. Merrick, 171 N.C. 788, 88 S.E. 501.
There was, however, no testimony offered by the State tending to show that defendant shot Brown in a sudden heat of passion caused by provocation which would cause an ordinary man to act so rashly on impulse and without due reflection. Neither Brown nor anyone else had made an assault upon defendant. State v. Hightower, 226 N.C. 62, 36 S.E. 2d 649; State v. Mosley, 213 N.C. 304, 195 S.E. 830. Not one of the Marines had attempted to invade the motel; so no question arises as to his right to defend his habitation or place of business. State v. Miller, 267 N.C. 409, 148 S.E. 2d 279. Four of the Marines were attempting to leave the motel premises with the fifth, as defendant had ordered them to do. We may assume that defendant became incensed because Brown was resisting his companions in their effort to take him out of the motel yard; still, under the circumstances here disclosed, the law does not deem Brown’s trespass provocation sufficient to cause a man of ordinary firmness and average disposition to shoot him in a transport of passion he was unable to control.
“A mere trespass or entry upon one’s premises other than his dwelling, not amounting to a felony, is not considered sufficient provocation to warrant the owner’s using a deadly weapon in its defense, or sufficient provocation to arouse the degree of passion requisite to reduce from murder to manslaughter his crime in slaying the intruder, notwithstanding the killing may have been necessary to prevent the trespass.” 26 Am. Jur., Homicide ß 27 (1940); see State v. Morgan, 25 N.C. 186.
If defendant intentionally shot Brown and caused his death, he could excuse the homicide altogether and secure his acquittal only by satisfying the jury that he lawfully killed him in self-defense. State v. Fowler, 250 N.C. 595, 108 S.E. 2d 892.
Undoubtedly, the proprietor of an inn, motel, or similar establishment has a right to repel an unprovoked assault upon one of his guests, provided he uses no more force than is reasonably necessary to protect the guest. “He could not kill the assailant of his patron merely because the patron had been assaulted.” Steele v. State, 194 Ark. 497, 108 S.W. 2d 474. Moreover, one may lawfully do in another’s defense only what the other might lawfully do in his own defense. State v. Ritter, 239 N.C. 89, 79 S.E. 2d 164; State v. Cox, 153 N.C. 638, 69 S.E. 419. In this case it was the sailor who, by his own admission, started the fight. Conceding that he had cause to be angry, he nonetheless voluntarily, that is, aggressively, willingly, and without legal provocation, entered into a fight with Brown. The sailor, therefore, could not have invoked the doctrine of self-defense without first withdrawing from the fight and giving notice to his adversary that he had done so. State v. Church, 229 N.C. 718, 51 S.E. 2d 345; State v. Davis, 225 N.C. 117, 33 S.E. 2d 623. However, were we to concede, arguendo, that defendant had the right to interfere in the fight on the side of the sailor, Brown’s four companions were doing their best to withdraw Brown from the fight and to leave the premises. The evidence discloses no reason to believe that they and the sailor could not have controlled the resisting Brown. Furthermore, the sailor had discarded his unloaded pistol, and none of the Marines had displayed any deadly weapon. The State’s evidence, therefore, discloses no circumstances which might reasonably have caused defendant to believe that it was necessary for him to shoot Brown to save the sailor or anybody else from death or great bodily harm. Nor does it disclose that defendant gave Brown or the others any warning of his intention to shoot if they did not leave.
In the instant transcript, there is no evidence either of self-defense or of legal provocation which would rebut the presumption of malice if the jury found that defendant intentionally shot Brown and thereby caused his death. Thus, the court’s failure to define legal provocation was not error. The court’s reference to legal provocation and the statement of contentions in defendant’s behalf with reference thereto was favorable rather than prejudicial to him. The judge would have been correct had he told the jury that if they were satisfied beyond a reasonable doubt that defendant intentionally fired the shot which caused Brown’s death, “the entire evidence disclosed no mitigating, excusing, or justifying circumstances” which would reduce the homicide from murder in the second degree to manslaughter, or which would excuse it altogether upon the ground of self-defense. State v. Gregory, 203 N.C. 528, 166 S.E. 387.

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Businesses and nonprofits that receive funding under a federal government agreement (e.g., contract, cooperative agreement, or grant) executed after May 14, 2018, are subject to the updated regulatory provisions that implement the Bayh-Dole Act. The revised obligations under Bayh-Dole should be reviewed by anyone who has accepted or is considering accepting government funding. Of particular note, the update to 37 C.F.R. §401.14(d)(1) eliminates the previous sixty day objection period that allowed a fund recipient to retroactively correct defects in complying with disclosure and election of title obligations. Other key updates to the regulations relate to obligations to file new patent applications, to include a notice clause in employee agreements, and to give notice of a decision to abandon an application.
The Bayh-Dole Act permits businesses and nonprofit organizations that conceive or reduce to practice inventions with the assistance of federal funding to elect to retain title of such inventions, if certain obligations are met. To allow for a uniform patent policy among the funding agencies, specific obligations of the parties are set out in Bayh-Dole and the agencies are required to use standard funding agreement clauses. 37 C.F.R. §401.14(a).
The standard funding agreement obligates a businesses or nonprofit organization (referred to in Bayh-Dole as a "contractor") to disclose each invention developed using government funds to the funding agency within two months after an inventor discloses it in writing to the contractor personnel responsible for patent matters. 37 C.F.R. § 401.14(c)(1). This allows the funding agency time to determine whether it has an interest in taking title to the invention if certain "exceptional circumstances" or other conditions are met.
A contractor must also elect in writing to retain title to an invention within two years of disclosing the invention to the agency or no more than 60 days prior to the end of any one year statutory period for excluding certain types of prior art. 37 C.F.R. § 401.14(c)(2).
Prior to this update, if a contractor failed to meet these disclosure or election obligations within the required time periods, the government had sixty days after discovery of the failure to object and request title. This allowed a contractor the opportunity to correct such a defect and if the government did not object within sixty days, the defect was cured. However, under the revised regulations, there is no longer an objection period. 37 C.F.R. § 404.14(d)(1). Instead, the government can object at any time and obtain title, presumably, even if an effort to correct the mistake was made. Thus, anyone receiving federal funding must timely notify the agency of any invention developed using the funding and timely elect to retain title to avoid a potential cloud over the invention title.
A contractor is also obligated to file an initial patent application on the invention within one year of election of title or prior to the end of any statutory period in the U.S. 37 C.F.R. § 401.14(c)(3). The updated regulations now specify that if the initial patent application is a provisional application, a non-provisional application must be filed within 10 months of filing the provisional application. Id. As revised, the regulations also state that a request to extend the 10 months for filing a non-provisional application will automatically be granted for one year, unless the agency notifies the contractor to the contrary within 60 days of the request. 37 C.F.R. § 401.14(c)(5). The timing of the existing obligation to file in additional countries or international patent offices within 10 months is unchanged, and the contractor will still retain title in that country even if an application was filed after the specified time as long as a written request from the agency was not received prior to filing in that country. 37 C.F.R. § 401.14(d)(2).
Furthermore, the updated regulations specify that if a government employee co-invents with a contractor, the agency may submit an initial patent application, but must consult with the contractor and the contractor retains the right to elect title under 35 U.S.C. 202(a). 37 C.F.R. § 401.14(c)(4).
The updated Bayh-Dole regulations also require contractors to notify the Federal agency of any decisions not to continue the prosecution of a patent application, pay maintenance fees, or defend in a reexamination or opposition proceeding on a patent, in any country, not less than sixty days before the expiration of the response period required by the relevant patent office. 37 C.F.R. § 401.14(f)(3). This change increases the notification time from 30 days to 60 days, reducing the decision-making time for the contractor to decide whether to proceed with prosecution or maintain a patent. If a contractor elects not to continue the prosecution of any non-provisional application, the government can obtain title upon request. 37 C.F.R. § 401.14(d)(3). This section was revised to specifically apply only to non-provisional applications, not provisional applications.
Contractors are also required to have clauses in employee agreements that provide for timely notification of new inventions to the employer/contractor, and an obligation of assignment of new inventions to the employer/contractor. 37 C.F.R. § 401.14(f)(2).
Businesses and non-profits should consider the on-going obligations associated with accepting government funds. If federal funds are used, the recipient must exercise diligence in meeting the timelines under the Bayh-Dole regulations and abide by the terms of each funding agreement to reduce the risk of the government having a right to take title. If the government takes title, it takes all rights. The contractor will not even retain the right to practice the invention. Failure to meet the requirements of the funding agreement can cause a recipient to lose its patent rights even absent any particularized harm to either the funding agency or the public. See Campbell Plastics v. Brownlee, 389 F.3d 1243 (Fed. Cir. 2004). Thus, all businesses and non-profits engaging in funding agreements should review the changes to the Bayh-Dole regulations and timely comply with all obligations. Licensees or purchasers of IP should make sure that the licensor or assignor of government funded IP complied with the new regulations.
 The final rules were issued on April 13, 2018, amending 37 C.F.R. part 401. See 83 Fed. Reg. 15954-15963. The new rule may be applied prospectively to existing funding agreements that are so amended at the agency’s discretion.
 Bayh-Dole as enacted in 1980 applied to small businesses and non-profits, but Executive Order 12591, issued in 1987, extended the Bayh-Dole Act to large businesses. Revised 37 C.F.R. § 401.1(b) confirms that the regulations apply to all recipients of federal funding regardless of size.
 Notably, the contractor must provide the government with a nonexclusive license to use the invention even if the government does not take title.
 Under 37 C.F.R. § 401.14(c)(5), requests for extension of time to meet disclosure, election of title, and filing obligations may, at the discretion of the agency, be granted.
 As a practice tip, consider submitting the written request to extend to one year along with the notification that a provisional application is (to be) filed.
 The application in additional countries or international patent offices can alternatively be filed within six months from the date permission is granted by the US Patent Office to file foreign patent applications where such filing has been prohibited by a Secrecy Order.