7 PAGES IN FED-RULES OF DECISION ACT_28 1652 MY DOCS_SONY STICK

10. Executive or administrative decisions or practices

Construction of state taxing statute given it by state administrative agency was given respectful consideration by United States Supreme Court, but court had power to disregard such construction where statute had not been construed by state's highest court. Fox v Standard Oil Co. (1935) 294 US 87, 79 L Ed 780, 55 S Ct 333, reh den (1935) 294 US 732, 79 L Ed 1261, 55 S Ct 511. Construction of statute by department of government charged with its execution was entitled to respectful consideration and was not overruled without cogent reasons. Tulsa v Southwestern Bell Tel. Co. (1935, CA10 Okla) 75 F2d 343, cert den (1935) 295 US 744, 79 L Ed 1690, 55 S Ct 656. Long-standing interpretation of statute by state commission, not questioned in state courts or by legislature, would not be altered by court of appeals unless shown to be clearly wrong. Duke Power Co. v South Carolina Tax Com. (1936, CA4 SC) 81 F2d 513, cert den (1936) 298 US 669, 80 L Ed 1392, 56 S Ct 834. Opinion of state attorney general construing state statute did not bind federal court, but was entitled to great respect. Badger v Hoidale (1937, CA8 Minn) 88 F2d 208, 109 ALR 798. Construction placed upon state statute by administrative officers in charge of its enforcement, although not controlling, could be resorted to as aid in ascertaining legislative intent. Liberty Nat'l Life Ins. Co. v Read (1938, DC Okla) 24 F Supp 103. 11. Legislative matters Predecessor of 28 USCS 1652 did not extend to private acts passed by state legislatures relating to particular persons. Williamson v Berry (1850) 49 US 495, 8 How 495, 12 L Ed 1170. Construction of statute by legislature, as indicated by subsequent enactment, was entitled to consideration by federal court in interpreting such statute. Board of Comm'rs v Bernardin (1934, CA10 Wyo) 74 F2d 809, cert den (1935) 295 US 731, 79 L Ed 1680, 55 S Ct 645. 12. Public policy It is undoubtedly question of local policy with each state what shall be extent and character of powers which its various political and municipal organization shall possess, and settled decisions of its highest courts on this subject will be regarded as authoritative by courts of United States, for it is question that relates to internal

constitution of body politic of state. Claiborne County v Brooks (1884) 111 US 400, 28 L Ed 470, 4 S Ct 489. With policy of state legislation, federal courts have nothing to do. Missouri, Kansas & Texas Trust Co. v Krumseig (1899) 172 US 351, 43 L Ed 474, 19 S Ct 179. For purposes of rule that right or obligation arising under foreign law will not be enforced where it is against public policy of forum, federal court in diversity of citizenship cases is bound, under doctrine of Erie R. Co. v Tompkins, and subject to its limitations, to follow public policy of state in which it is sitting. Griffin v McCoach (1941) 313 US 498, 85 L Ed 1481, 61 S Ct 1023, 134 ALR 1462; Angel v Bullington (1947) 330 US 183, 91 L Ed 832, 67 S Ct 657. Supreme Court will not hesitate to abrogate state law when satisfied that its enforcement will stand as obstacle to accomplishment and execution of congressional purposes and objectives. Farmers Educational & Cooperative Union v WDAY, Inc. (1959) 360 US 525, 3 L Ed 2d 1407, 79 S Ct 1302. Typically, federal common law is developed with respect to programs and actions which by their nature are and must be uniform throughout nation. United States v Yazell (1966) 382 US 341, 15 L Ed 2d 404, 86 S Ct 500 (criticized in United States, SBA v Sotomayor-Santos (1996, CA1 Puerto Rico) 96 F3d 584, 30 UCCRS2d 995). Even assuming in general terms appropriateness of "borrowing" state law, specific aberrant or hostile state rules do not provide appropriate standards for federal law. United States v Little Lake Misere Land Co. (1973) 412 US 580, 37 L Ed 2d 187, 93 S Ct 2389, 46 OGR 41. Federal courts sitting in New York honor public policy of New York in cases where federal jurisdiction was founded on diversity of citizenship. Indemnity Ins. Co. v Pan American Airways (1944, DC NY) 57 F Supp 980. B.State Courts Decisions as Determining Law of State 13. Generally

Under Erie, state judicial decisions are "laws of the several States" within meaning of Rules of Decision Act, and therefore are applicable law in diversity cases. Erie R.R. v Tompkins (1938) 304 US 64, 82 L Ed 1188, 58 S Ct 817, 11 Ohio Ops 246, 114 ALR 1487 (superseded by statute as stated in Chapman & Cole v Itel Container Int'l B.V. (1989, CA5 Tex) 865 F2d 676, 13 FR Serv 3d 124) and (superseded by statute as stated in Wray v Gregory (1995, CA9 Nev) 61 F3d 1414, 95 CDOS 6117, 95 Daily Journal DAR 10464); West v American Tel. & Tel. Co. (1940) 311 US 223, 85 L Ed 139, 61 S Ct 179, 19 Ohio Ops 77, 132 ALR 956; King v Order of United Commercial Travelers (1948) 333 US 153, 92 L Ed 608, 68 S Ct 488, reh den (1948) 333 US 878, 92 L Ed 1153, 68 S Ct 900; Cohen v Beneficial Industrial Loan Corp. (1949) 337 US 541, 93 L Ed 1528, 69 S Ct 1221 (criticized in

R.H.D. v S.F. (In re Baby K.) (1998, Utah App) 967 P2d 947, 354 Utah Adv Rep 37); Commissioner v Estate of Bosch (1967) 387 US 456, 18 L Ed 2d 886, 87 S Ct 1776, 19 AFTR 2d 1891. Federal nisi prius and appellate tribunals alike would conform their orders to state law as of time of entry so that intervening and conflicting state decisions would cause reversal of judgments which were correct when entered, for under rules of decision statute, until such time as case was no longer sub judice duty rested upon federal courts to apply state law in accordance with then controlling decision of highest state court. Vandenbark v Owens-Illinois Glass Co. (1941) 311 US 538, 85 L Ed 327, 61 S Ct 347. Questions which had become settled in local practice by state court decisions controlled in federal court, though no state statute was involved. O'Neil v Dreier (1932, CA9 Hawaii) 61 F2d 598. Federal court was bound to presume that affirmance by a state court embodied deliberate judgment of the court. First Trust Co. v County Board of Education (1935, CA6 Ky) 78 F2d 114. In ascertaining applicable law of state, federal court could consider court decisions and other available sources of local law and could apply court decision in light of well-established stare decisis rule and its limitations; it was not however required to speculate as to how state court might have decided question before it if it had not already decided it; and it was not required to surrender its own judgment as to what local law was on account of dicta or other chance expression of the judges of local courts. New England Mut. Life Ins. Co. v Mitchell (1941, CA4 Va) 118 F2d 414, cert den (1941) 314 US 629, 86 L Ed 505, 62 S Ct 60. Federal courts were not permitted to form independent judgment upon questions involving local law and were compelled in diversity citizenship cases, when deciding conflict of laws, to follow the rules prevailing in state where the federal court sat. Transit Bus Sales v Kalamazoo Coaches, Inc. (1944, CA6 Mich) 145 F2d 804. Under doctrine of Erie R. Co. v Tompkins, it was not function of federal courts to examine correctness of decisions of courts of state whose law was to be applied in federal court. Klages v Cohen (1945, CA2 NY) 146 F2d 641. Federal court need not regard as strictly binding state decision in which rule now urged may have failed for want of advocate. Rivota v Fidelity & Guaranty Life Ins. Co. (1974, CA7 Ill) 497 F2d 1225. Where state court decision was not res judicata because orders in issue were not same, opinion as to law was given particular weight where parties were same. Wichita Gas Co. v Public Service Com. (1930, DC Kan) 3 F Supp 722.

Federal courts followed interpretation of state statutes made by supreme court of state where no question of general or commercial law, or violation of Constitution or laws of United States was involved. Spruill v Reserve Loan Life Ins. Co. (1938, DC Okla) 21 F Supp 889. Whether law of state was declared by legislature in statute or by highest state court in decision was not matter of federal concern. Lincoln Mines Operating Co. v Huron Holding Corp. (1939, DC Idaho) 27 F Supp 720, revd on other grounds (1940, CA9 Idaho) 111 F2d 438, revd on other grounds (1941) 312 US 183, 85 L Ed 725, 61 S Ct 513, reh den (1941) 313 US 598, 85 L Ed 1550, 61 S Ct 840. Federal district court was bound by interpretation of statute of state by its own courts. United States v Feazel (1943, WD La) 49 F Supp 679, 43-1 USTC P 9499, 30 AFTR 1472, app dismd (1943, CA5 La) 32 AFTR 1645. Under 28 USCS 1652, laws include not only state statutes, but unwritten law of state as pronounced by its courts. Stueve v American Honda Motors Co. (1978, DC Kan) 448 F Supp 167. When interpreting state law, federal court is bound by interpretation of law by that state's courts. Cherry v Steiner (1982, DC Ariz) 543 F Supp 1270, 14 ELR 20657, affd (1983, CA9 Ariz) 716 F2d 687, 14 ELR 20676, cert den (1984) 466 US 931, 80 L Ed 2d 190, 104 S Ct 1719. 14. Comity Comity required federal court to follow state decision rendered subsequent to accrual of right presented for litigation in federal court. Medical Arts Bldg. Co. v Minnesota Loan & Trust Co. (1935, CA8 Minn) 78 F2d 937, 101 ALR 770. While there was not strict duty of obedience, comity decreed that deference was at all times owing to state decision. Southern Bell Tel. & Tel. Co. v Louisiana Public Service Com. (1937, DC La) 20 F Supp 248. Federal district court for Oregon was not bound to follow Arizona law but was bound to follow Oregon law, but said court was bound, as other courts sitting in Oregon, to give full faith and credit to judgment of Arizona court. In re Ross (1942, DC Or) 48 F Supp 815. Federal courts were not required to follow state court decisions made on ground of comity. Stowe v Balfast Sav. Bank (1897, CCD Me) 92 F 90, affd (1899, CA1 Me) 92 F 100. 15. Decisions after accrual of rights of parties

On question as to liability of coal mining company for injuries due to failure to furnish sufficient support to overlying or surface land, in absence of statutory provision on point involved, where there was no decision of state court before injury occurred determining law on question, federal court was not required to follow decision on such question rendered by state court after injury occurred. Kuhn v Fairmont Coal Co. (1910) 215 US 349, 54 L Ed 228, 30 S Ct 140. Federal court is not bound, in cases between citizens of different states, to follow state decision, if it was rendered after date of transaction out of which rights of parties arose. Kuhn v Fairmont Coal Co. (1910) 215 US 349, 54 L Ed 228, 30 S Ct 140. When contracts and transactions are entered into and rights have accrued under particular state of local decisions, or when there has been no decision by state court on particular question involved, then federal courts properly claim right to give effect to their own judgment as to what is law of state applicable to case, even where different view has been expressed by state court after rights of parties accrued; but even in such cases, for sake of comity and to avoid confusion, Federal court should always lean to agreement with state court if question is balanced with doubt. Kuhn v Fairmont Coal Co. (1910) 215 US 349, 54 L Ed 228, 30 S Ct 140. Where, before rights of parties accrued, certain rules relating to real estate have been so established by state decisions as to become rules of property and action in state, those rules are accepted by federal court as authoritative declarations of law of state; but where law of state has not been thus settled, it is not only right, but duty, of federal court to exercise its own judgment, as it also always does when case before it depends upon doctrines of commercial law and general jurisprudence. Kuhn v Fairmont Coal Co. (1910) 215 US 349, 54 L Ed 228, 30 S Ct 140. State court decision construing state statute could not be given retroactive effect in respect of judgment of federal district court so as to render such judgment erroneous. Concordia Ins. Co. v School Dist. (1931) 282 US 545, 75 L Ed 528, 51 S Ct 275. Construction of statute (Uniform Negotiable Instruments Law) related back to time of enactment, though rights of parties accrued in meantime. Marine Nat'l Exchange Bank v Kalt-Zimmers Mfg. Co. (1934) 293 US 357, 79 L Ed 427, 55 S Ct 226. State decisions, extant at time of entry of judgment, controlled judgment of federal court, notwithstanding opposite view held at time of trial. Vandenbark v OwensIllinois Glass Co. (1941) 311 US 538, 85 L Ed 327, 61 S Ct 347. Construction of ordinances after accrual of rights thereunder was not binding on federal courts. Denver v Denver Tramway Corp. (1927, CA8 Colo) 23 F2d 287, cert den (1928) 278 US 616, 73 L Ed 539, 49 S Ct 20.

Decisions of state court rendered after sale of bonds which were subject of suit in federal court were not binding on latter court. Shidler v H. C. Speer & Sons Co. (1932, CA10 Okla) 62 F2d 544. District court's judgment, correct under state law at time it was rendered, was reversed on appeal where law had been changed by subsequent decisions. Groner v United States (1934, CA8 Mo) 73 F2d 126. Federal courts should change their rulings on pending supplemental jurisdiction claims upon change in relevant state law, since they are required to do so in diversity cases and other cases controlled by Rules of Decision Act, which is arguably source of authority for applying state statute of limitations to state law claims brought under supplemental jurisdiction., Bouton v BMW of N. Am. (1994, CA3 NJ) 29 F3d 103 (criticized in Harrison v Eddy Potash, Inc. (1997, CA10 NM) 112 F3d 1437, 73 BNA FEP Cas 1384, 156 BNA LRRM 2033, 70 CCH EPD P 44689) and (criticized in Robinson v City of Pittsburgh (1997, CA3 Pa) 120 F3d 1286, 74 BNA FEP Cas 359, 71 CCH EPD P 44983). Decision of state court construing statute after accrual of rights thereunder was not controlling. Ware County v National Surety Co. (1927, DC Ga) 17 F2d 444. 16. Dicta If construction put by court of state upon one of its statutes was not matter in judgment, if it might have been decided either way without affecting any right brought into question, then, according to principles of common law, opinion on such question was not decision. Carroll v Lessee of Carroll (1854) 57 US 275, 16 How 275, 14 L Ed 936. Questions which merely lurk in record, neither brought to attention of court nor ruled upon, are not to be considered as having been so decided as to constitute precedents. Bingham v United States (1935) 296 US 211, 80 L Ed 160, 56 S Ct 180, 36-1 USTC P 9013, 35-2 USTC P 9662, 16 AFTR 1122; KVOS, Inc. v Associated Press (1936) 299 US 269, 81 L Ed 183, 57 S Ct 197. General expressions, in every opinion, are to be taken in connection with case in which those expressions are used; if they go beyond case, they may be respected, but ought not to control judgment in subsequent suit when very point is presented for decision. Osaka Shosen Kaisha Line v United States (1937) 300 US 98, 81 L Ed 532, 57 S Ct 356. Expressions as to matters not at issue and wholly unnecessary to disposition of case and merely by way of illustration were respected but did not control in subsequent case when precise point was presented for decision. Brush v Commissioner (1937) 300 US 352, 81 L Ed 691, 57 S Ct 495, 37-1 USTC P 9175, 18 AFTR 1156, 108 ALR 1428 (ovrld in part by Graves v New York (1939) 306 US 466, 83 L Ed 927,

59 S Ct 595, 39-1 USTC P 9411, 22 AFTR 290, 120 ALR 1466) and (ovrld as stated in Garcia v San Antonio Metro. Transit Auth. (1985) 469 US 528, 83 L Ed 2d 1016, 105 S Ct 1005, 27 BNA WH Cas 65, 36 CCH EPD P 34995, 102 CCH LC P 34633). Dicta in a state decision did not control settled rule established by decisions of the Supreme Court of United States. Leeper v Lemon G. Neely Co. (1923, CA6 Ky) 293 F 967, cert den (1924) 264 US 586, 68 L Ed 863, 44 S Ct 335. Opinion of Ohio court would be looked to determine courts' construction of state statute, though rule of court provided that syllabus be considered as pronouncement, and though statements were considered as dictum. Republic Cresoting Co. v Boldt Const. Co. (1930, CA6 Ohio) 38 F2d 739. Dictum of state's highest court would not be ignored by federal court ascertaining the meaning of a state law or its constitution. Badger v Hoidale (1937, CA8 Minn) 88 F2d 208, 109 ALR 798.