On March 9, 2009, the Supreme Court decided Kansas v. Colorado, No. Orig. 105.
Twenty-four years ago, the state of Kansas commenced an original proceeding against the state of Colorado relating to water rights in the Arkansas River. Kansas prevailed on the merits, and the sole remaining issue in the case arose out of Kansas's application for expert witness fees. The special master held that 28 U.S.C. § 1821(b), which declares in general terms what the daily attendance fee shall be for witnesses, applies to cases within the Court's original jurisdiction, limiting expert witness attendance fees.
The Court never answered the question presented to it, which was whether § 1821(b) controls the Supreme Court's own original proceedings, because it held in the exercise of its own discretion that the expert witness attendance fees available in cases brought under the Court's original jurisdiction will be the same as fees that would be available in a district court under § 1821(b). The Court noted that it saw "no good reason" why the rule regarding the recovery of expert witness fees should be different in the district courts and in the Court. The Court did not reach the arguments presented by Kansas that (1) Congress did not intend to regulate the fees charged by the Supreme Court through § 1821(b), and (2) even if Congress had such intent, the Court has the ultimate authority to regulate procedure within its constitutionally created original jurisdiction.
Justice Alito delivered the opinion for a unanimous Court. Chief Justice Roberts filed a concurring opinion, in which Justice Souter joined.