Advisory Opinion 1-2018

Regarding the question of whether Vermont is required to transfer supervision in cases such as that described above, the answer is unequivocally “yes.”  The Interstate Compact for Juveniles (ICJ) is a Congressionally authorized, legally binding interstate compact which is both statutory and contractual and was developed specifically to regulate the interstate movement of delinquent and status offense juveniles. 

ICJ Rule 4-101(2) provides: “No state shall permit a juvenile who is eligible for transfer under this Compact to relocate to another state except as provided by the Compact and these rules.”  Thus, if the juvenile in question continues to reside in New Hampshire and probation is ordered by the Vermont court, the Compact and the ICJ Rules are clearly applicable and require that supervision must be transferred.

With respect to whether transfers of supervision can be denied due to homelessness, the simple answer is ‘no.’   Because parents have constitutionally protected interests in child rearing, ICJ Rule 4-104 requires acceptance of supervision whenever a transfer is necessary for the youth to live in the same state as a legal guardian.  Thus, supervision must be accepted when there is a legal guardian in the receiving state but none in the sending state, even if the parent/legal guardian is homeless or at risk of becoming homeless.

The legal authority requiring states to enforce the provisions of the ICJ and authorized rules is well settled.  As a congressionally approved interstate compact, the provisions of the ICJ and its duly authorized rules enjoy the status of federal law. See Cuyler v. Adams, 449 U.S. 433, 440 (1981); Carchman v. Nash, 473 U.S. 716, 719 (1985) (“The agreement is a congressionally sanctioned interstate compact within the Compact Clause and thus is a federal law subject to federal constructions.” (Citation omitted)); see also Alabama v. Bozeman, 533 U.S. 146 (2001) and Reed v. Farley, 512 U.S. 339 (1994); also; M.F. v. N.Y. Exec. Dep’t, Div. of Parole, 640 F.3d 491(2d Cir. 2011); Doe v. Pennsylvania Board of Probation & Parole, 513 F.3rd 95, 103 (3rd Cir. 2008).  The duly promulgated rules are equally binding upon the parties to the Compact.

By entering the ICJ, the member states contractually agree on certain principles and rules.  All state officials and courts are required to effectuate the terms of the compact and ensure compliance with the rules. In Re Stacy B., 190 Misc.2d 713, 741 N.Y.S.2d 644 (N.Y. Fam.Ct. 2002) (“The clear import of the language of the Compact is that the state signatories to the compact have agreed as a matter of policy to abide by the orders of member states . . . and to cooperate in the implementation of the return of runaway juveniles to such states.”) Thus, the supervision of youth engaged in interstate travel that does not meet ICJ requirements is a violation of the Compact.

One of the axioms of modern government is the ability of a state legislature to delegate to an administrative body the power to make rules and decide particular cases. This delegation of authority extends to the creation of interstate commissions through the vehicle of an interstate compact. West Virginia ex rel. Dyer v. Sims, 341 U.S. 22, 30 (1951). Pursuant to Dyer and other U.S. Supreme Court cases, the states may validly agree, under the terms of an interstate compact with other states, to delegate to interstate commissions, or agencies, legislative and administrative powers and duties. Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304 U.S. 92 (1938); Scott v. Virginia, 676 S.E.2d 343, 346 (Va. App. 2009); Dutton v. Tawes, 171 A.2d 688 (Md. 1961); Application of Waterfront Commission of New York Harbor, 120 A.2d 504, 509 (N.J. Super. 1956).  Accordingly, the rules of the Compact are legally authorized and approved by the Commission, and no state which is a party to the contractually binding provisions of the Compact is permitted to unilaterally modify any of these requirements under either the Contract Clause (Art. I, Sec. 10, Cl.1) or the Compact Clause (Art. I, Sec. 10, Cl.1) of the U.S. Constitution, pursuant to which these rules are transformed into federal law and enforceable under the Supremacy Clause.  See Cuyler, supra., p. 440; Carchman, supra., p. 719). 

Should a Compact member state refuse to enforce the provisions of the Compact or its authorized rules, remedies for breach of the Compact can include granting injunctive relief or awarding damages. See e.g., South Dakota v. North Carolina, 192 U.S. 286, 320-21 (1904); Texas v. New Mexico, 482 U.S. at 130 (“The Court has recognized the propriety of money judgments against a State in an original action, and specifically in a case involving a compact. In proper original actions, the Eleventh Amendment is no barrier, for by its terms, it applies only to suits by citizens against a State.”). The Eleventh Amendment provides no protection to states in suits brought by other states. Kansas v. Colorado, 533 U.S. 1, 7 (2001) (in proper original actions, the Eleventh Amendment is no barrier, for by its terms, it applies only to suits by citizens against a state).  In its most recent pronouncement on the subject, the U.S. Supreme Court unequivocally held that obligations imposed by a duly authorized interstate commission are enforceable on the states. Moreover, such commissions may be empowered to determine when a state has breached its obligations and may, if so authorized by the Compact, impose sanctions on a non-complying state. See Alabama v. North Carolina, 560 U.S.360 (2010).

In addition, the Court, in Alabama v. North Carolina, supra. made clear that an interstate compact commission composed of the member states may be a party to an action to enforce the Compact if such claims are wholly derivative of the claims that could be asserted by the party states. Id. Moreover, the Court held that when construing the provisions of a compact, in giving full effect to the intent of the parties, it may consult sources that might differ from those normally reviewed when an ordinary federal statute is at issue, including traditional canons of construction and the Restatement (Second) of Contracts. Id. at 2308-12.

In light of the above authority, and the fact that the explicit language of the ICJ requires that “the courts and executive agencies in each compacting state shall enforce this compact and shall take all actions necessary and appropriate to effectuate the compact’s purposes and intent” makes it incumbent upon judges and other state officials to understand the requirements of the ICJ and its rules as well as the consequences of non-compliance. Under Article I of the Compact, among the purposes of the Commission is to “monitor compliance with rules governing interstate movement of juveniles and initiate interventions to address and correct noncompliance.” Article IV of the Compact provides that among the powers and duties of the Commission is “to enforce compliance with the compact provisions, the rules promulgated by the Interstate Commission, and the by-laws, using all necessary and proper means, including but not limited to, the use of judicial process.” Article XIII (B) provides that “all lawful actions of the Interstate Commission, including all rules and by-laws promulgated by the Interstate Commission are binding upon the compacting states.”

Moreover, Article IV also provides that the Interstate Commission has the power and duty “to establish and appoint committees and hire staff which it deems necessary for the carrying out of its functions. . .” and “to perform such functions as may be necessary or appropriate to achieve the purposes of this compact.”  Articles VII and XI of the Compact authorize the interstate commission, in the reasonable exercise of its’ discretion, to enforce the Compact through various means set out in Article XI (B) which include required remedial training and technical assistance, imposition of fines, fees and costs, suspension or termination from the Compact, and judicial enforcement in U.S. District Court against any Compacting state in default of the Compact or Compact rules with the prevailing party being entitled to recover all costs of such litigation including reasonable attorney’s fees.

Under the above referenced Compact provisions and pursuant to the delegated statutory authority of the Compact, the Commission has also promulgated Rule 9-103 (3) under which the Interstate Commission is empowered with the authority and charged with the duty to determine whether “. . . any state has at any time defaulted (“defaulting state”) in the performance of any of its obligations or responsibilities under this Compact, the bylaws or any duly promulgated rules . . .” and in the event such a determination is made the Commission is empowered to “impose any or all” of the sanctions set forth in that rule and for which authority is expressly provided in the above referenced provisions of the Compact.