special purpose.
background of the

Congress acts, in short, against the total corpus juris of the states in much the way that a state legislature acts against the background of the common law, assumed to govern unless changed by legislation.

Hart and Wechsler's The Federal Courts and the Federal System 470-71 (P. Bator, P. Mishkin, D. Shapiro, H. Wechsler eds., 2d Cf. Fort Wayne Books v. Indiana, 109 S.Ct. 916 (1989) (application of RICO limited by First Amendment to the

ed. 1973).

Constitution).

That Congress intended to destroy a balance between state and national roles developed over more than two hundred years under the constitutional guarantee to the states of a Republican Form of Government and the Ninth, Tenth and Eleventh Amendments seems highly doubtful. The Constitution itself in section 4 of Article IV "guarantee[s] to every State in this Union a Republican Form of Government"

-

and the word

government implies the powers to govern independently, not merely as an appendage of Washington. The Ninth Amendment provides that "[t]he enumeration in the Constitution, of certain rights, [to the national government), shall not be construed to deny or disparage others retained by the people [and their representatives in state government]." The Tenth Amendment notes that "[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States,

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are reserved to the States respectively, or to the people."

And the Eleventh Amendment limits the national courts' power

against one of the United States" by enumerated plaintiffs.

The Constitution was adopted by sovereign nations

first joined in a confederation and, after adoption, in a federal system of national and state sovereignties.

Much of our early court decisions can be seen as the replacement of the idea that the Constitution was created by a compact among the states with the idea that the Constitution created a union of the states." G. E. White, III & IV History of the Supreme Court of the United States, The Marshall Court and Cultural Change, 1815-35, 487 (1988). Despite exercise of increasing power by the national government no one who understands state government and our federal political system can doubt that the states are still powerful sovereignties respected as such by all three branches of the national government. This knowledge permeates the very bones of our political system. Congress need not explicitly recognize this given in each law it passes, for all its work is pregnant with that understanding. In construing legislation the courts can assume not only that those in Congress breathed when they voted, but that they were

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aware of the constitutional atmosphere in which their votes

were cast.

With this fundamental assumption of our governmental structure in mind we turn to the relationship between federal and state power in the field of state regulation of utilities. That relationship is reflected in such diverse doctrines as those of primary jurisdiction, recognizing that state regulatory agencies should decide electric rates; of abstention to avoid upsetting complex regulatory schemes; and of limits on federal court powers to compel state officials and bodies to have their decisions judged in federal courts.

1. Primary Jurisdiction

It has long been recognized that courts are ill-suited for resolving the numerous complex factual issues involved in setting rates for regulated industries. Courts presented with such questions have consistently deferred to the greater experience and expertise of the relevant regulatory agency. Pursuant to the doctrine of primary jurisdiction, courts stay or dismiss court procedings pending resolution by the

administrative agency of the issues within the latter's special competence.

25

"Primary jurisdiction" ... comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body. .

United States v. Western Pac. Ry., 352 U.S. 59, 63-64 (1956). The doctrine provides "[u]niformity and consistency in the regulation of business entrusted to a particular agency....' Far East Conference v. United States, 342 U.S. 570, 574-75 (1952). "Uniformity can be secured only if ... determination is left to the Commission." Great N. Ry. v.

Merchants Elevator Co., 259 U.S. 285, 291 (1922).

It

The doctrine of primary jurisdiction lends strong support to the notion that the RICO statute is inappropriately applied to the facts of this case. In reaching its verdict the jury was required to place itself in the shoes of the PSC, deciding for a fifteen year period what level of rates the PSC would have set but for certain alleged misrepresentations. was compelled to attempt to understand numerous complex issues of rate regulation which arose in five rate proceedings, and three proceedings under § 149-b of the Public Service Law. records in those proceedings contained thousands of pages of testimony and thousands of exhibits. The jury performed its task without the benefit of the PSC staff, without the expertise which the PSC has in rate matters, and without

The

26

reading the testimony or the opinions at issue in the PSC

proceedings.

Whatever doubt the court entertained before trial about the need to defer rate-related matters to the PSC was put to rest by the evidence both sides had to present to the jury. The Public Service Commission members and chairpersons who made the rate decisions we were required to testify. They had to tell the jury why they now thought they made the many decisions they did over two decades; how, in retrospect, they might or might not have been affected in their decisions individually or collectively by different circumstances; and what the effect of their decisions on the welfare of the public might have been if they had had the hindsight now available to the jury. Such delving into the mental processes of a decisionmaker is as repugnant to federal policy when a state administrative fact finding body is involved as when a jury is the fact finder. See, e.g., Federal Rules of Evidence, Rule 606 (juror may not testify to effect of anything upon

juror's mind

or

As the Court of Appeals noted in the context of the

continuing dispute between Suffolk and LILCO, County of Suffolk

V. Long Island Lighting Co., 728 F.2d 52, 61 (2d Cir. 1984),

Ratemaking is part of the Commission's daily work.