Levy v. Parker

E. GORDON WEST, District Judge

(dissenting):

The majority opinion concludes that the manner in which the State of Louisiana distributes the money in its Property Tax Relief Fund to its political subdivisions (parishes) violates the equal protection clause of the Fourteenth Amendment to the United States Constitution. I disagree, for the specific reason that I do not believe the State of Louisiana is governed by the Fourteenth Amendment in the manner in which it distributes funds to its political subdivisions. It must be remembered that none of the money in question is distributed to individuals. All individuals in the State are treated equally insofar as receiving the $2,000 or $5,000 homestead exemption is concerned. No one contests this fact. But when the State reimburses the political subdivisions (not the individuals) for the income the parish has lost because of the homestead exemption pursuant to a formula duly passed and approved by the Louisiana Legislature, the majority opinion concludes that somehow the equal protection clause of the Fourteenth Amendment has been violated. It is interesting to note that the majority opinion does not conclude that the Louisiana constitutional limitation on the taxing power of Orleans Parish is unconstitutional, nor does it conclude that the legislative formula by which the funds are disbursed is necessarily unconstitutional. It simply says that the “scheme of payment is constitutionally infirm as it is applied in fact.” But the majority cites no authority in law for saddling the State with the equal protection clause of the Fourteenth Amendment when it distributes funds to its political subdivisions. Indeed they cite ample authority to the contrary. For example, the majority opinion cites the case of Hess v. Mullaney, 213 F.2d 635 , 15 Alaska 40 (1954) as authority for their statement that “it [the Fourteenth Amendment] assures equality not only in the imposition but also in the distribution of state revenues.” But Hess was dealing with tax levies assessed against individuals at different rates according to whether they lived inside or outside of certain municipalities. The *906 Court, in fact, upheld that taxing procedure and said:

“It is not unusual for states after collecting taxes on a state-wide basis to make distribution of revenues to municipal corporations, particularly in the case of school districts. No requirements of uniformity or of equal protection of the law limit the power of a legislature in respect to allocation and distribution of public funds.” (See Gen. Amer. Tank Car Corp. v. Day, 270 U.S. 367, 372 , 46 S.Ct. 234 , 70 L.Ed. 635 ; Carmichael v. Southern Coal & Coke Co., 301 U.S. 495, 521, 522 , 57 S.Ct. 868 , 81 L.Ed. 1245 .)

The majority opinion next cites State Board of Tax Commissioners of Indiana v. Jackson, 283 U.S. 527 , 51 S.Ct. 540 , 75 L.Ed. 1248 . But in that case, the Supreme Court said:

“The principles which govern the decision of this cause are well settled. The power of taxation is fundamental to the very existence of the government of the states. The restriction that it shall not be so exercised as to deny to any the equal protection of the laws does not compel the adoption of an iron rule of equal taxation, nor prevent variety or differences in taxation, or discretion in the selection of subjects, or the classification for taxation of properties, businesses, trades, callings, or occupations. * * * The fact that a statute discriminates in favor of a certain class does not make it arbitrary, if the discrimination is founded upon a reasonable distinction, * * * or if any state of facts reasonably can be conceived to sustain it. * * * As was said in Brown-Forman Co. v. Kentucky, supra, at page 573 of 217 U.S. [563], 30 S.Ct. 578, 580 [, 54 L.Ed. 883 ]:

“ ‘A very wide discretion must be conceded to the legislative power of the state in the classification of trades, callings, businesses, or occupations which may be subjected to special forms of regulation or taxation through an excise or license tax. If the selection or classification is neither capricious nor arbitrary, and rests upon some reasonable consideration of difference or policy, there is no denial of equal protection of the law.’ ”

Certainly there was nothing before the Court in this case to show that the formula by which the funds are distributed is either capricious or arbitrary, and there was certainly nothing to show that the State in any way abused its “very wide discretion.”

And in Salsburg v. State of Maryland, 346 U.S. 545 , 74 S.Ct. 280 , 98 L.Ed. 281 , as stated in the majority opinion, the Supreme Court of the United States said:

“The Equal Protection Clause relates to equality between persons as such rather than between areas.” (Emphasis added.)

Also, in Missouri (Bowman) v. Lewis, 101 U.S. 22 , 25 L.Ed. 989 , the Supreme Court, recognizing the fact that the Fourteenth Amendment does not require equal protection as between geographical areas, said:

“The 14th Amendment does not profess to secure to all persons in the United States the benefit of the same laws and the same remedies. Great diversities in these respects may exist in two States separated only by an imaginary line. On one side of this line there may be a right of trial by jury, and on the other side no such right. Each State prescribes its own modes of judicial proceeding. If diversities of laws and judicial proceedings may exist in the several States without violating the equality clause of the 14th Amendment, there is no solid reason why there may not be such diversities in different parts of the same State. A uniformity which is not essential as regards different States cannot be essential as regards different parts of a State, * * * ”

The majority opinion does not cite a single case wherein it was held that the equal protection clause of the Fourteenth Amendment was applicable to a situation even remotely the same as that involved *907 here. The cases they cite simply have no application to a situation involving distribution of funds by a state to its political subdivisions as distinguished from a distribution to individuals. For example, the case of Avery v. Midland County, 390 U.S. 474 , 88 S.Ct. 1114 , 20 L.Ed.2d 45 , cited in the majority opinion, involved reapportionment where the thing at issue was the power of each individual’s vote. Norwalk CORE v. Norwalk Redevelopment Agency, 395 F.2d 920 (CA 2-1968), deals with an urban renewal project—involving individual rights. But even in that case the Court said:

“The courts will not, it is clear, entertain a suit by one who does not have some personal stake in the outcome of the litigation.”

The Court, in Norwalk, then cited Frothingham v. Mellon, 262 U.S. 447 , 43 S.Ct. 597 , 67 L.Ed. 1078 , wherein the Supreme Court refused to allow a taxpayer to challenge the constitutionality of a statute where plaintiff’s claimed interest in the outcome was simply that “the effect of the appropriation complained of will be to increase the burden of future taxation and thereby take her property without due process of law.” The burden of future taxation was held to be essentially a matter of public not individual concern.

The majority opinion states that the equal protection clause reaches all state action and then cites several cases in support of that assertion. But that assertion is not correct, and it is not supported by the cited cases. Every case cited deals with action of the state aimed directly at individuals. Cooper v. Aaron, 358 U.S. 1 , 78 S.Ct. 1401 , 3 L.Ed.2d 5 , dealt with integration of public schools and simply said that where individual agents of the state acted, their actions would be considered state action. It had nothing to do with whether or not action by the state in connection with its political subdivisions, as distinguished from actions directed only at individuals, was subject to proscription of the Fourteenth Amendment. The majority opinion then states that “Even largesse must be dispensed with an even hand” and they cite Shapiro v. Thompson, 394 U.S. 618 , 89 S.Ct. 1322 , 22 L.Ed.2d 600 , as authority. But Shapiro dealt only with the question of dispensing welfare directly to individuals. It had nothing to do with the distribution of funds by a state to its political subdivisions. Finally, the majority says that “the failure to accord equal protection to all persons may not be justified by the sophistry that the receipt of funds from the legislature is a ‘privilege’ and not a ‘right.’ ” And they cite Sherbert v. Verner, 374 U.S. 398 , 83 S.Ct. 1790 , 10 L.Ed.2d 965 . But Sherbert dealt with the individual right to religious belief, and did not address itself to the question of whether or not a state is constitutionally required to distribute funds equally to all of its political subdivisions.

The majority simply begins with the assumption that if one parish somehow ends up with a larger share of the Property Tax Relief Fund than another parish, there is bound to be something constitutionally wrong, and then they proceed to bend and twist the jurisprudence to fit the conclusion that a Fourteenth Amendment prohibition has been violated. It seems to me that it would be more logical, more equitable, and more legally correct to simply cite the Tenth Amendment to the United States Constitution, which says:

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”

and then conclude, as you must after an examination of the jurisprudence, that no where has the Federal Government nor the Federal Courts been given the authority to dictate to the States how they will distribute their tax resources among their various political subdivisions. On the contrary, a fair conclusion would be that the law and the jurisprudence require exactly the opposite. The Louisiana Legislature meets every year. Under current apportionment the people are represented as nearly as possible on a one man one vote basis. The *908 question of distribution of state funds to the parishes may be brought up for review and change whenever the duly elected representatives of the people wish to do so. The matter of distribution of state funds to political subdivisions is simply one for the states to resolve as they see fit and not a matter to be interfered with by the Federal Courts.

And finally, I must note that the majority is not satisfied with holding the present plan of distribution invalid. They now take it upon themselves to order the state to submit a plan for distribution of the funds in the Property Tax Relief Fund for approval by this Court. I suggest that even if the Court finds the present plan of distribution to be invalid, it has no right to do anything but so hold. It has no authority in law to order the defendants to prepare or submit any plan whatsoever. At. most it can enjoin the defendants from using the present plan and that is all.

For these reasons I respectfully dissent and would hold that there is no constitutional infirmity in the present plan of distribution of the Louisia»» Property Tax Relief Fund.