Amicus Curiae Brief — Clark v. Jenkins ex rel. Agyei

te x3 ,

~ Ne) ly r af

S Nos. 88-1150, 88-1194, & 88-1228

In The

Supreme Court of the United States

October Term, 1988

State of Missouri, et al.,

Petitioners,

Vv.

Kalima Jenkins, et al.,

Respondents.

Icelean Clark, et al.,

Petitioners,

v.

Kalima Jenkins et al.,

Respondents.

Jackson County, Missouri, et al.,

Petitioners,

Vz.

Kalima Jenkins, et al.,

Respondents.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Eighth Circuit

MOTION FOR LEAVE TO FILE BRIEF

AND BRIEF AMICI CURIAE

OF THE NATIONAL TAXPAYERS UNION

AND NATIONAL ASSOCIATION OF MANUFACTURERS

GALE A. NORTON

Mellon Financial Building, Suite 1345

1775 Sherman Street

Denver, Colorado 80203

(303) 832-4900

Counsel of Record for Amici

Nos. 88-1150, 88-1194, & 88-1228

In The

Supreme Court of the United States

October Term, 1988

State of Missouri, et al.,

Petitioners,

a |

Kalima Jenkins, et al.,

Respondents.

Icelean Clark, et al.,

Petitioners,

V.

Kalima Jenkins et al.,

Respondents.

Jackson County, Missouri, et al.,

Petitioners,

v.

Kalima Jenkins, et al.,

Respondents.

MOTION FOR LEAVE TO FILE

BRIEF AMICI CURIAE

IN SUPPORT OF ALL PETITIONERS

=

The National Taxpayers Union and National Association of Manufacturers

respectfully move this Court, pursuant to Rule 42 of the Rules of the

United States Supreme Court, for leave to file the annexed brief and brief

amici curae. In support of this motion, the movants state:

I. The amicus National Taxpayers Union is a nonprofit, nonpartisan

membership organization. It is dedicated to protecting the interests of

federal, state and local taxpayers and functions through lobbying, public

education and litigation.

2 The amicus National Association of Manufacturers is a voluntary |

business association of approximately 13,500 companies and subsidaries.

The NAM is affiliated with 158,000 additional businesses through its

Asseciations Council and the National Industrial Council. NAM represents

its constituency on public policy issues, including tax matters, at the

Congressional level.

a. The amici have received the consent of all Petitioners, to wit, the

State of Missouri, et. al., Icelean Clark, et.al., and Jackson, County,

Missouri, et. al. Copies of these consents have been filed with the Clerk

of the Court.

ween,

4. The Respondants, Kalima Jenkins, et. al., School District of Kansas

City, Missouri, et al. and American Federation of Teachers, Local 691

refused consent to the filing of this brief.

3 This motion and the accompanying brief are timely filed.

6. The annexed brief amici curiae emphasizes special matters

concerning the issues raised by the District Court’s order relating to the

area of taxation in which the amici have a special interest and expertise,

which may be of assistance to the Court in its deliberations on the above

captioned Petitions for Certiorari.

For the foregoing reasons National Taxpayers Union and National

Association of Manufacturers request that their Motion for Leave to File

the annexed brief be granted.

GALE A. NORTON

Mellon Financial Building, Suite 1345

1775 Sherman Street

Denver, Colorado 80203

(303) 832-4900

Counsel of Record for Amici

—

TABLE OF CONTENTS

SUUUMNNEENE SE” BSUED PAPER 6c tte s eee Dereir rere es) 2

ee a a aera 2

ao a 3

Le Che Chas a bk cae e shes eeseeecedvsseeseees 3

I. BY GRANTING CERTIORARI THE COURT CAN RESOLVE A

II.

Il.

CONFLICT BETWEEN TWO IMPORTANT LINES OF CASES 3

A. Judicial decisions have held that it is beyond the power of the

federal judiciary to order states and localities to impose a tax 4

B. Judicial decisions have recognized broad equitable powers to

impose reforms requiring extensive public expenditures .. 5

C. The Court should resolve the conflict in its authority by holding

that the federal power to order equitable remedies does not

GROGIE OO EURIOGIES TOMES ww nw ccc cece cens 7

BY GRANTING CERTIORARI THE COURT CAN RESOLVE A

COMNPLICT BETWEEN THE CIRCUITS .....ccccccee. 8

A. The Eighth Circuit has ordered the imposition of taxes to

oo gs eer rere errr re ee eee ee ee 8

B. Other Circuits have, so far, refrained from ordering state or~

Ne a iy See a ee es Sele e.6 bees 10

BY GRANTING CERTIORARI THE COURT CAN PROTECT

THE LEGITIMATE LEGISLATIVE POWERS OF THE STATES

AND THE ABILITY OF CITIZENS TO ULTIMATELY

CE SOMMEOEOURINS 6 Sk woe an ses chee eke ee ese ok ae 12

ee ed a og Wk ne ee wk Ok ears 13

TABLE OF AUTHORITIES

CASES

Allegheny Pittsburgh Coal Co. v. County Commission of Webster

Commie, E> H. CR. Ge Ce obo he eae eee wee ewes 5

A a ea a err 6

Brown v Board of Education, 349 U.S. 294 (1955) ........... 6

Evans v. Buchanan, 582 F.2d 750 (3d Cir. 1978) ............ 11

Fair Assessment in Real Estate v. McNary, 454 U.S. 100 (1981) .. 5

Green v. County School Board of New Kent County, 391 U.S. 430

Le: eS ren Pa Paras Seer re ae rr eae ee 7

Griffin v. County School Board of Prince Edward County, 377 U.S. 218

(Re. eka bos See sae ee Orr r rr rr ere 7, 9-11

Heine v. Levee Commissioners, 86 U.S. (19 Wall.) 655 (1874) ... 4

oo A ee Fp ee 6

Jenkins v. Missouri, 855 F.2d 1295 (8th Cir. 1988) .......... 1

Jones v. Wittenberg, 330 F. Supp. 707 (N.D. Ohio 1971), affd sub nom.

Jones v. Metzger, 456 F.2d 854 (6th Cir. 1972) .......... 11

Liddell v. State of Missouri, 731 F.2d 1294 (8th Cir. 1984) ..... 8

Meriwether v. Garrett, 102 U.S. 472 (1880). .............. 4,8

Milliken v. Bradicy, 433 US. 267 (1977) ......0ccsc000. 7, 10

Moses Lake Homes, Inc. v. Grant County, 365 U.S. 744 (1961) .. 5

New Orleans v. Stempel, 175 U.S. 309 (1899) .............. 4

Plaquemines Parish School Board v. United States, 415 F.2d 817 (Sth

er ere re ee ee et eae ee ee ee eee ee 11

Reece v. Gragg, 650 F. Supp. 1297 (D. Kan. 1986) .......... 1]

Rees v. City of Waterton, 86 U.S. (19 Wall.) 107 (1873) ..... 5, 8

Rhem v. Malcolm, 507 F.2d 333 (2d Cir. 1974) .......... 6, 11

Pees W. CURE, GE ULE, TI CEU) oc kc ev ccc esaes 6

Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1

te tee tea ar Gh nate oly eee 7

United States v. Board of School Commissioners of Indianapolis, 677

ae BESS C70 Ga. TOD oo bdo oe c 546608 bb sab ab as 10

United States v. City of Yonkers, 856 F. 2d 444 (2d Cir. 1988), cert.

granted sub nom. Longo v. United States, No. 88-870 ..... 12

United States v. Missouri, 515 F.2d 1365 (8th Cir. 1975), cert. denied,

GES UR. Sk CIGD 6 cece Kee ees er nsesasadeseankage 8

Whitcomb v. Chavis, 403 U.S. 124 (1971) .............006. 8

CONSTITUTIONAL PROVISIONS AND STATUTES

Missousl Comet. aft. A, § 20 GE) cc ccc scsecnsossaunertags 9

OTHER AUTHORITIES

A FO Pes Fe 0k eh een aad eta 10

Comment, Community Resistance to School Desegregation: Enjoining

the Undefinable Class, 44 U. Chicago L. Rev. 111 (1976). . 12

Fluckinger, The Changing Relationships of the Judiciary to the Policy

and Administrative Processes of Government, 1985 Brigham Young

ee ee ee re errr Sere eee eee ae 6

Greanias & Windsor, Is Judicial Restraint Possible in an Administrative

Society?, 64 Judicature 400 (1961) .. ow ccc cnsccnas 13

Nagel, Controlling the Structural Injunction, 7 Harvard Journal of Law

ee ee ee ere 6, 12

T. Cooley, The Law of Taxation § 68 (4th ed. 1924)........... 5

FO PORE TED. FE CON nc cke ice reessrnniune +

Nos. 88-1150, 88-1194, & 88-1228

In The

Supreme Court of the United States

October Term, 1988

State of Missouri, et al.,

Petitioners,

Vz.

Kalima Jenkins, et al.,

Respondents.

Icelean Clark, et al.,

Petitioners,

v.

Kalima Jenkins et al.,

Respondents.

Jackson County, Missouri, et al.,

Petitioners,

V.

Kalima Jenkins, et al.,

Respondents.

BRIEF AMICI CURIAE

OF THE NATIONAL TAXPAYERS UNION

AND NATIONAL ASSOCIATION OF MANUFACTURERS

IN SUPPORT OF ALL PETITIONERS

The National Taxpayers Union and National Association of

Manufacturers submit this brief as Amici Curiae in Support of the

Petitions for Certiorari filed in the above-capt oned actions. All three

Petitions challenge the decision of the Eighth Circuit Court of Appeals in

Jenkins v. Missouri, 855 F.2d 1295 (8th Cir. 1988).

INTEREST OF THE AMICI

The amici curiae are concerned about the dangers presented by

judicially imposed taxes. If a court can unilaterally impose a tax, the ability

of citizens to control taxation (either by direct vote or through their

elected representatives) is impaired. Like our nation’s founders, the amici

Oppose taxation without representation.

The amici do not seek to comment upon the merits of the other

elements of the district court’s remedy. The amici’s position is based upon

a commitment to democratic participation in taxation decisions, and

emphatically not upon any opposition to racial integration.

The National Taxpayers Union (NTU) was founded as a citizens’

lobby by concerned taxpayers in 1969. It is a nonprofit, nonpartisan

membership organization devoted to protecting the interests of federal,

state and local taxpayers through public education, lobbying and litigation

on tax and spending issues. With members in all fifty states, the NTU

represents over 150,000 taxpayers. NTU seeks to preserve the integrity of

the political process by which taxes are imposed. If the Eighth Circuit

decision is allowed to stand, the voice of citizens and their elected

representatives in determining the level of taxation will be diminished, to

the detriment of NTU’s members.

The National Association of Manufacturers (NAM) of the United

States is a voluntary business association of approximately 13,500

companies and subsidiaries. NAM’s member companies employ 85% of all

manufacturing workers in the United States and produce over 80% of the

nation’s manufactured goods. The NAM also is affiliated with 158,000

additional businesses through its Associations Council and the National

Industrial Council. NAM’s members are located in every state of the

nation and are subject to a myriad of federal, state, and local taxes.

NAM’s policy states that "tax rates, deductions, credits and expenses should

be continued to be established by statute." The NAM believes it is

improper for a federal judge to ignore the tenets of taxation embodied in

the Constitution and past taxing legislation. The precedential effect of this

type of judicial action has far reaching implications for the NAM and its

constituency, not to mention the electorate as a whole. Such a "remedy"

could directly affect NAM’s membership in areas beyond this case.

QUESTIONS PRESENTED

Does a federal court’s broad equitable power to remedy

constitutional violations permit it to order a specific increase in a tax?

In remedying a constitutional violation, may a federal court impose

a tax in a manner that contradicts a voter-approved state constitutional

provision limiting taxation?

SUMMARY OF ARGUMENT

Conflicts exist both between the circuits and between established

lines of this Court’s precedent regarding a court’s ability to impose taxes.

The power to impose a tax has been declared outside the normal

boundaries of judicial action, yet other precendent implies that this power

may be used to remedy constitutional violations. The circuit courts have

differed radically in interpreting this Court’s conflicting guidance. While

several circuits have flatly rejected a judicial taxing power, others have

exhibited uncertainty about their authority, and the Eighth Circuit has

explicitly endorsed judicial taxation. Given this confusion, this Court

should grant certiorari to clarify whether this extraordinary power exists.

ARGUMENT

iF BY GRANTING CERTIORARI THE COURT CAN RESOLVE A

CONFLICT BETWEEN TWO IMPORTANT LINES OF CASES

The federal district court below ordered remedies for constitutional

violations involving public school desegregation. The court ordered the

defendant county to increase property taxes from $2.05 to $4 per $100 of

assessed valuation to finance implementation of the remedies. The court

of appeals upheld the imposition of the tax.'

The Eighth Circuit’s decision in this matter marks the convergence

of two significant lines of cases. One line of authority, stretching far back

in American history, holds that it is beyond the power of the judiciary io

unilaterally impose taxes, no matter how compelling the demand for

. governmental funding. The other line of cases is characterized by the

'The court rejected another district court order imposing a state

income tax surcharge.

exercise of broad equitable powers by the courts to remedy various

constitutional violations. The fundamental issue raised by the Petitions for

Certiorari is whether these remedies may extend to ordering local

governments to impose specific tax increases.

A. JUDICIAL DECISIONS HAVE HELD THAT IT IS

BEYOND THE POWER OF THE FEDERAL JUDICIARY

TO ORDER STATES AND LOCALITIES TO IMPOSE A

TAX

The Supreme Court dealt extensively and consistently with the

judicial power to impose taxes in a line of cases beginning in the 1870's.

The Court has been concerned with both preserving the boundary between

the legislature and judiciary in matters of taxation as well as respecting the

independent spheres of state autonomy. There can be little doubt of the

constancy with which the Court has maintained its holding that taxation is

a sovereign legislative act. A few samples of judicial and scholarly views

will suffice to demonstrate the strength of this belief:

1788

"The judiciary . . . has no influence over either the sword or the

purse..." The Federalist No. 78 (Hamilton).

1874

"It is not only not one of the inherent powers of the court to levy

and collect taxes, but it is an invasion by the judiciary of the federal

government of the legislative functions of the state government. Heine v.

Levee Commissioners, 86 U.S. (19 Wall.) 655, 661 (1874).

1880

"The power of taxation is legislative and cannot be exercised other

than under the authority of the Legislature." Meriwether v. Garrett, 102

U.S. 472, 501 (1880).

1899

"[[Jfthe legislature omits any property from the list of taxables the

courts are not authorized to correct the omission and adjudge the omitted

property to be subject to taxation." New Orleans v. Stempel, 175 U.S. 309,

313 (1899).

1924

"It has been said that ‘the courts have no more power to assess, or

4

command the assessment of taxes, than the legislature has to adjudge or

command the adjudication of law suits.” T. Cooley, The Law of Taxation

§ 68 (4th ed. 1924). Y

1961

"Federal courts may not assess or levy taxes. Only the appropriate

taxing Officials . . . may assess and levy taxes . . . and the federal courts

may determine, within their jurisdiction, only whether the tax levied by

those officials-is or is not a valid one." Moses Lake Homes, Inc. v. Grant

County, 365 U.S. 744, 752 (1961).

The opposition of the Court to judicial taxation was most

dramatically illustrated in the case of Rees v. City of Waterton, 86 U.S. (19

Wall.) 107 (1873). The city issued bonds to build a railroad. After the

railroad was built, the city refused to pay the bonds. Plaintiff, a

bendholder, had secured a judgment against the city, and obtained a writ

of mandamus from a lower court ordering the city to collect a tax to pay

his judgment. The city aldermen, however, kept resigning instead of

performing the asserted duty. The Supreme Court found that the theories

upon which the city’s defense rested were "vicious" and that the city was

blatantly refusing to pay an honest debt. Nevertheless the Court held that

the judiciary does not have the power to order that a tax be levied. The

Court stated, "We are of the opinion that this court has not the power to

direct a tax to be levied for the payment of these judgments.” 86 U.S. at

116.

Federal courts play a legitimate role in overseeing state and local

taxation. See, e.g., Allegheny Pittsburgh Coal Co. v. County Commission of

Webster County, 109 S. Ct. 633 (1989). The role is uniquely judicial, and

is circumscribed by principles of comity. See Fair Assessment in Real Estate

v. McNary, 454 U.S. 100 (1981). The courts assure that state taxes do not

violate federal constitutional requirements applicable to taxation.

Appropriate concerns are, for example, that taxation by the states meets

the requirements of equal protection and that it does not unduly burden

interstate commerce. The judiciary’s role does not, however, enter into the

legislative arena to exercise the taxing power. This distinction--between

judicial action that restrains state taxation within constitutional bounds and

legislative exercise of the taxing power--is crucial.

B. JUDICIAL DECISIONS HAVE RECOGNIZED BROAD

EQUITABLE POWERS TO IMPOSE REFORMS

REQUIRING EXTENSIVE PUBLIC EXPENDITURES

Another line of cases has endorsed a more active role for the

judiciary. This Court has repeatedly emphasized the wide range of

discretion available to district courts in formulating effective remedies. To

remedy constitutional violations, primarily involving school desegregation

and prison conditions, the courts have entered injunctive orders that

require extensive public expenditures.

More that 600 school districts have been controlled significantly

by federal judges. Nagel, Controlling the Structural Injunction, 7 Harvard

Journal of Law and Public Policy 395, 396 (1984). Courts have become

involved in overseeing all facets of public school administration, "from

broad policies governing entire school systems to narrow regulation

governing school conduct." Fluckinger, The Changing Relationships of the

Judiciary to the Policy and Administrative Processes of Government, 1985

Brigham Young Univ. L. Rev. 674, 677. Court-ordered desegregation has

involved the expenditure of hundreds of millions, or perhaps even billions

of dollars nationwide.

Similar pervasive judicial authority has been exercised in assuring

adequate prison facilities. Judges have ordered reforms in most states;

there are decrees affecting 270 local jails. "Local officials have been

ordered to do everything from hiring dozens of guards and other workers

and building new, or substantially altering old, facilities, to appointing a

prison ombudsman and creating a Department of Detention and

Correction." Rhem v. Malcolm, 507 F.2d 333, 340 (2d Cir. 1974) (citations

omitted). See also Fluckinger,-supra, at 689-91. This Court noted that

many courts "have, in the name of the Constitution, become increasingly

enmeshed in the minutiae of scant operations." Bell v. Wolfish, 441 U.S.

520, 562 (1979). eee

The basic principle developed by the courts is that remedies for

these types of constitutional violations are equitable. "Traditionally, equity

has been characterized by a practical flexibility in shaping its remedies and

by a facility for adjusting and reconciling public and private needs. These

cases call for the exercise of these traditional attributes of equity power."

Brown v. Board of Education, 349 U.S. 294, 300 (1955).

The remedial task is to correct, by a balancing of the individual

"Nagel, supra, at 396. See, e.g., Hutto v. Finney, 437 U.S. 678 (1978);

Rhodes v. Chapman, 452 U.S. 337 (1981).

6

and collective interests, the condition that offends the Constitution. Swann

v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 16 (1971). "Once

a right and a violation have been shown, the scope of a district court’s

equitable powers to remedy past wrongs is broad, for breadth and flexibility

are inherent in equitable remedies." 402 U.S. at 15; see also Milliken v.

Bradley, 433 U.S. 267 (1977). "Since the ultimate objective of the remedy

is to make whole the victims of unlawful conduct, federal courts are

authorized to implement plans that promise ‘realistically to work now.” 433

U.S. at 280 n. 15 (emphasis in original). Proposed remedies must be

assessed in light of the circumstances present and the options available in

each instance. Green v. County School Board of New Kent County, 391 U.S.

430, 439 (1968).

The limits on equitable power have remained amorphous. Certain

dicta in Griffin v. County School Board of Prince Edward County, 377 U.S.

218 (1964), seemed to indicate that a court may order local officials to

exercise their power to levy taxes. 377 U.S. at 233. This decision is

discussed extensively in the Petitions for Writ of Certiorari of the State of

Missouri, et al., No. 88-1150, at 24, and of Icelean Clark, et al., No. 88-

1194, at 17-23. The Court did not specify that the district court would

itself be authorized to set particular tax levels or methods of collection.

Although the Court did not spell out the details, it apparently

contemplated that such decisions would be made by elected officials. The

Griffin decision is at the root of lower courts’ misguided attempts to extend

the federal equitable remedy to include specific judicially ordered taxation.

It was in reliance on Griffin that the Eighth Circuit imposed a tax in the

case below.

C. THE COURT SHOULD RESOLVE THE CONFLICT IN

ITS AUTHORITY BY HOLDING THAT THE FEDERAL

POWER TO ORDER EQUITABLE REMEDIES DOES

NOT EXTEND TO IMPOSING TAXES

Equity is an awesome power which functions outside the confines

of ordinary law. The historical secret of the continued vitality of equity

has been that equity judges have used the power with extreme

circumspection. Thusly used, it has been a powerful tool in bringing

fairness and sensible remedies into areas which the law could reach only

with difficulty. However, extending the reach of the equitable remedy into

the area of judicial taxation has crossed the boundary into areas where

equity should not be extended. "The remedial powers of an equity court

must be adequate to the task, but they are not unlimited." Whitcomb v.

7

Chavis, 403 U.S. 124, 161 (1971).

The Court explained its reluctance to exercise the taxing power in

Rees v. City of Waterton, 86 U.S. (19 Wall.) 107 (1873), and reflected

exactly the concern of the amici. "In seeking to obtain for the plaintiff his

just rights," the Court held, “we must be careful not to invade the rights

of others." 86 U.S. at 119. The concern here is likewise that the

vindication of rights for some people should not trample upon the rights

of others. No matter how compelling the case for remedying constitutional

violations,’ the Court is not empowered to void a basic fundamental of our

constitutional system: the ability of the people to be represented in the

decision to impose taxes.

II. BY GRANTING CERTIORARI THE COURT CAN RESOLVE A

CONFLICT BETWEEN THE CIRCUITS

The Courts of Appeal have differed considerably in the course they

have navigated between this Court’s conflicting lines of authority described

above.

A. THE EIGHTH CIRCUIT HAS ORDERED THE

IMPOSITION OF TAXES TO REMEDY

DISCRIMINATION

The Eighth Circuit Court of Appeals is the first appellate court to

order a governmental unit to increase particular taxes to finance the

implementation of a desegregation plan.‘ Other circuits have grappled with

similar circumstances of unconstitutional discrimination in education.

These circuits have mandated extensive remedial actions, but-no other

circuit has interjected itself into the position of tax collector.

‘See Meriwether v. Garrett, 102 U.S. 472, 518 (1880) (J. Field,

concurring). ("However urgent the appeal of creditors and the apparent

hopelessness of their position without the aid of the federal court, it

cannot seize the power which belongs to the legislative department of the

state and wield it in their behalf.")

‘In addition to the decision below, the Eighth Circuit addressed this

issue in United States v. Missouri, 515 F.2d 1365 (8th Cir. 1975), cert.

denied, 423 U.S. 951 (1975); and Liddell v. State of Missouri, 731 F.2d

1294, (8th Cir. 1984).

This case is particularly troubling to the amici because the district

court’s opinion disregarded both state constitutional limits on taxation and

the will of the electorate expressed through several popular votes.’ The

Missouri Constitution requires approval of two-thirds of voters to increase

a tax levy above specified levels. Missouri Const. art. X, $ 11 (c). Two

citizen-initiated provisions also limit the legislative authority to raise

property taxes. Appendix to Petition for Writ of Certiorari of Clark, et al.,

in No. 88-1194 at A36. [Hereinafter cited as App. at ___.]

The Eighth Circuit decision would negate these limitations on the

taxing power of Missouri government. It authorizes the district court to

enjoin state and county authorities from applying these measures to reduce

the levy below an amount requested by the school board.

Missouri’s tax limitation measures were motivated by fiscal

concerns. They were not intended to be discriminatory, and they in fact

operated neutrally.* The Eighth Circuit explicitly rejected a suggestion that

judicial remedial powers to raise taxes can appropriately be exercised only

where the state limitations are intended to hamper integration.

"[W]e must reject the State’s arguments that the district

court’s power to raise property taxes under Griffin is

limited to cases in which . . . the state law limitations on

a school district’s taxing authority are enacted to prevent

implementation of a desegregation order."

App. at A39. Given this explicit determination, this case presents a clear

opportunity for resolving uncertainties about the federal judiciary’s power

to affirmatively exercise the state’s taxing power in a manner not

contemplated by state law. It also presents a clear opportunity to refine

the relationship of federal remedial power and state legislative power.

‘The amici support the argument by Petitioners Icelean Clark, et al.,

that taxpayers should have been provided an opportunity to intervene when

it became apparent late in the judicial process that their interests would

be adversely affected.

‘The Eighth Circuit noted that "there was no suggestion that state law

restrictions had been adopted to evade the court’s remedial ozders." App.

at A39.

B. OTHER CIRCUITS HAVE, SO FAR, REFRAINED FROM

ORDERING STATE OR LOCAL TAX INCREASES

The other circuit courts have rejected attempts to impose judicial

taxation, although some rulings have indicated confusion about this Court’s

ruling in Griffin v. County School Board of Prince Edward County, 377 U.S.

218 (1964). See Annot., 76 A.L.R. Fed. 504. The Seventh Circuit upheld

a district court ruling allocating to the state a portion of the costs of a_

desegregation plan. United States v. Board of School Commissioners of

Indianapolis, 677 F.2d 1185, 1186 (7th Cir. 1982), citing Milliken v. Bradley

(Milliken II}, 433 U.S. 267, 289-90 (1977). It took pains to clarify that it

was not stepping into a taxing role appropriately left to the legislature.

"The district court has not attempted to restructure state

or local taxation. It has neither established tax rates nor

mandated a particular method of determining tax rates.

The district court has only forbidden the state from

shirking_its responsibility for the costs of remedying its

wrongdoing."

677 F.2d at 1188. The Court of Appeals pointed out that the state

legislature would retain its authority over school financing subject only to

the requirement that it adequately support the desegregation plan.

"The court’s order does not limit the power of the General

Assembly to reallocate state funds for all functions of state

government, including the general support of local public

schools, in light of the court-ordered obligations. The

General Assembly may reduce appropriations to public

schools generally, reallocate appropriations for other

governmental functions, or raise taxes. It is not the

province of a federal court to instruct the legislature on

how it should finance its obligations to do so."’

The Second Circuit grappled with judicial exercise of the taxing

7677 F.2d at 1190. Judge Posner, dissenting from the court’s decision,

would have circumscribed the court’s role even more. "The end of an

equity suit is an injunction, or if the injunction is not obeyed a contempt

proceeding; it is not an inquiry into who will bear the costs of the

injunction." 677 F.2d at 1192 (J. Posner, dissenting).

10

power in Rhem v. Malcolm, 507 F.2d 333 (2d Cir. 1974). Although finding

prison conditions to be unconstitutionally deficient, the court noted that

it could not require voters to make available the resources needed by

public officials to meet constitutional standards. The Rhem court decided

it was better for the district court to issue an order to close the prison,

rather than direct the city to raise and allocate large sums of money, which

would be a step "traditionally left to appropriate executive and legislative

bodies responsible to the voters." 507 F.2d at 341.

"[I]n order to build a new jail, the public must provide

additional funds. This Court has no power whatsoever to

require the public to do so. Under our system of

government, the ultimate source of power is the people.

The people have not given this Court any taxing power, or

any control over their use of the taxing power."®

The district court in Plaquemines Parish School Board v. United

States, 415 F.2d 817 (Sth Cir. 1969), was directed by the Fifth Circuit to

modify its permanent injunction to delete a provision requiring a school

board to apply for federal aid programs. The Fifth Circuit read this

Court’s decesion in Griffin as allowing a district court to require a school

system to levy taxes. 415 F.2d at 833. But seemingly uncomfortable with

this conclusion, the Plaquemines court confined Griffin to its unusually

extreme facts. The provision at issue was found to go beyond Griffin "as

to source, manner and controls accompanying the funds." 415 F.2d at 833.

The Third Circuit reached a similar conclusion in Evans v. Buchanan, 582

F.2d 750 (3d Cir. 1978), holding that a lower court had not given adequate

deference to the state’s decisions about taxation.

The Eighth Circuit stands alone in actually upholding a judicially

imposed tax increase. However, it is a fact that we live in an era of fiscal

limitation. Seemingly intractable demands for spending are colliding with

immovable limits on funds. This is particularly true in the area of

education. It is also true in the area of prisons. In the future, the

inadequacies of existing local financing may figure in spending for the

handicapped or on public housing projects, or in determining local

government liability for hazardous waste cleanups. When faced with

insufficient government funds to finance court-ordered projects, courts may

‘Jd. (quoting Jones v. Wittenberg, 330 F. Supp. 707, 712-13 (N.D. Ohio

1971), aff'd sub nom. Jones v. Metzger, 456 F.2d 854 (6th Cir. 1972). See

also Reece v. Gragg, 650 F. Supp. 1297 (D. Kan. 1986).

11

look to the Eighth Circuit precedent. The role of judicial taxation

threatens to increase as the courts grapple with difficult financial issues.

Ill. BY GRANTING CERTIORARI THE COURT CAN PROTECT

THE LEGITIMATE LEGISLATIVE POWERS OF THE STATES

AND THE ABILITY OF CITIZENS TO ULTIMATELY CONTROL

TAXATION

Judicial imposition of taxes raises a number of complications about

which the amici are concerned. Judicially imposed taxes are essentially

standardless. Would courts be bound by citizen-initiated tax limitation

measures? Must the same procedural safeguards for taxpayers“be adhered

to in judicially imposed taxes? How would the judiciary determine which

taxing mechanism to utilize, and thereby select those upon whom the

burden of taxation will fall?

The tendency of judicial taxation is to increase overall burdens on

taxpayers. It deprives officials of the ability to decrease other expenditures

in order to fund court-ordered remedies. Elected officials, faced with

expensive court-ordered remedial measures, could opt to cut other

governmental expenditures rather than increase taxes. Judicial taxation

usurps the legitimate legislative powers of the states to allocate taxes

among various classes of taxpayers or forms of taxation. The judiciary has

little ability or right to weigh competing requests for public funds.

Judicial involvement in setting taxes presents the danger of stifling

legitimate citizen opposition to tax increases. From the judicial

perspective, "Opposition to an injunction that is thought to be enforcing

some ‘constitutional’ requirement naturally seems illegitimate." Vague

orders have, in the past, been issued punishing elected officials for

unfavorable votes or limiting the activities of Opponents to judicially

ordered plans.”

Judicial imposition of ta. . »resents particularly difficult questions

*Nagel, supra, at 405.

See cases cited in Nagel, supra, at 405; Comment, Community

Resistance to School Desegregation: Enjoining the Undefinable Class, 44

U. Chicago L. Rev. 111, 147 (1976). See, e.g., United States v. City of

Yonkers, 856 F.2d 444 (2d Cir. 1988), cert. granted sub nom. Longo v.

United States, No. 88-870.

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in those situations where, as here, state law requires voters to ratify tax

increases. The Missouri tax limitation measures represent an important

statement by the people of Missouri about the power of government over

citizens. The Eighth Circuit’s rationale would increase the absolute size

and power of government vis-a-vis citizens.

An active judicial role in setting tax policy threatens to diminish

respect for the courts as objective arbiters. The routine use of judicial

power to resolve difficult social problems weakens the democratic process.

It removes from the public and elected officials the ability to forge

important policies and political compromises. Major court decisions are

not "forced through the sieve of trade-offs that take place in the legislative

arena . . .". Greanias & Windsor, Is Judicial Restraint Possible in an

Administrative Society?, 64 Judicature 400, 407 (1981). The elementary

principles of separation of powers and federalism inherent in American

government prescribe a limited role for the federal judiciary.

CONCLUSION

For the foregoing reasons, the amici urge this Court to grant the

Petitions for Certiorari to the United States Court of Appeals for the

Eighth Circuit of the State of Missouri, Jackson County, Missouri, and

Icelean Clark, et al.

Respectfully submitted,

Gale A. Norton

Mellon Financial Center, Suite 1345

1775 Sherman Street

Denver, Colorado 80203

(303) 832-4900

Counsel of Record for the Amici

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