Petition — Beer v. Commissioner
Supreme Court brief1977
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} sz, Supreme Court, U. 5,
FILED &¥
MAR 28 1977
_ i MICHAEL RODAK, JR., CLERK
fein Court of the United States
MARCH TERM, 1977
N. %7§6°1333
WILLIAM J. BEER and DORA BEER,
Petitioners,
v.
COMMISSIONER OF INTERNAL REVENUE.
a
—_—*
.
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
+
FRANCES R. AVADENKA
Counsel for Petitioners
2800 North Woodward
Bloomfield Hills, MI 48013
Phone: (313) 335-9266
Interstate Beief & Record Co.. 1615 Abbott St.. Detroit. Michigas 48216
962-8745 ‘
Oth os ip pales ls a
INDEX
Page
SIE S. o6. 7 id dots dima s chbcbeubsicseeun 2
ED tine otha Ghadbs eGbiode ch¥eee ésesecuccens 2
oe dadeeseee 2
Statutory and Constitutional Provisions .............. 3
PUI SN dincndeed dc ceasicececescccce 3
Reasons for Granting the Writ ...................... 6
SE hc cicone sis cheney ocacvengds ic deceedeeses 14
Appendix
A. U.S. Tax Court — Opinion August 18, 1975 ...... 14
B. Docket Entries — U.S. Tax Court ............... 21
C. U.S. Tax Court Decision: Docket No. 2988-72
NOD. ob enc cbenedsscoss detetedves 33
D. U.S. Tax Court Decision: Docket No. 8187-73
NE SG EUEE: Pudusddcbavicckcccatdeccnicds 34
E. U.S. Tax Court Decision: Docket No. 4479-74
I SE 6 oid cicicnadanestcccocdunbes 34
F. U.S. Tax Court Order, November 3, 1975 ........ 35
G. U.S. Tax Court Order, November 19, 1975 ....... 35
H. U.S. Court of Appeals Order November 22, 1976 . 36
U.S. Court of Appeals Order December 28, 1976 .. 37
INDEX OF AUTHORITIES
Cases Cited: ; Page
Collector v Day (Buffington v Day), 11 Wall 113; 20
Sy PPE 66 US cane vee sdnduduedi ces tameeed xt 6,8
Cohen v Virginia, 6 Wheat 264, 399; 5 Led 257, 290
EE sits. 4.5 ebb Rhh ane bck OOM ed in dbuued Ebaecus 11,12
Evans v Gore, 253 US 245; 64 Led 887 (1919) ........ 10
Gordy v Dennis, 5 A 2d 69 (MD 1939) ............... 12
Graves v New York, 306 US 465; 83 Led 927 (1938) . 7,12
Helvering v Gerhardt, 304 US 405; 82 Led 1427 (1937) . 6,7
Miscellaneous Citations:
The Federalist Papers, Federalist 70, 79 .............. 10
Michigan Constitution, Article VI, Section 18 ...... 3,8,9
United States Constitution, Article IV, Section 4 ... 3,8,9
United States Constitution, Article II, Section 1 ...... 8
IN THE
Supreme Court of the United States
MARCH TERM, 1977
i.
—
No.
>.
a
WILLIAM J. BEER and DORA BEER,
Petitioners,
v.
COMMISSIONER OF INTERNAL REVENUE.
..
.
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
+
To the Honorable, the Chief Justice and Associate
Justices of the Supreme Court of the United States:
William J. Beer and Dora Beer, the petitioners herein,
pray that a writ of certiorari issue to review the judgment
of the United States Court of Appeals for the Sixth
Circuit entered in the above-entitled case on December
28, 1976.
a
OPINIONS BELOW
The United States Court of Appeals for the Sixth
Circuit dismissed petitioners’ timely appeal from the Tax
Court without hearing or oral arguments. Said order of
dismissal is printed in Appendix H hereto, infra, page 36.
The opinion, Orders of Judgment and the Journal Entries
of Judgment of the Tax Court are printed in Appendix A
through G hereto, infra, pages 14-35.
JURISDICTION
The order of dismissal of the United States Court of
Appeals for the Sixth Circuit (Appendix H, infra, page
36) was entered on November 22, 1976. A timely petition
for rehearing was denied on December 28, 1976,
(Appendix I, infra, page 37). The jurisdiction of this
Court is invoked under 28 USC 1254 (1).
QUESTIONS PRESENTED
I. Whether the salary of the Petitioner, William J.
Beer, a state court judge, is exempt from the imposition
of federal income taxes.
Il. Whether the question of a state court judge’s
immunity from federal income taxation is ‘‘frivolous’’ and
‘‘without merit’? (See Order of November 22, 1976,
Appendix H, infra, page 36) so as to warrant summary
disposition by the United States Court of Appeals for the
Sixth Circuit.
STATUTORY AND CONSTITUTIONAL PROVISIONS
This case concerns Article IV, Section 4 of the United
States Constitution, which provides in pertinent part as
follows:
**The United States shall guarantee to every
State in this union a Republican Form of
Government and shall protect each of them
against invasion. . .”’
This case also concerns Article VI, Section 18 of the
Constitution of the State of Michigan, which provides as
follows:
**Salaries of justices of the supreme court, of
the judges of the court of appeals, of the circuit
judges within a cir -uit and of the probate judges
within a county or district, shall be uniform, and
may be increased but shall not be decreased
during a term of office except and only to the
extent of a general salary reduction in all other
branches of government.”’
This case also concerns the responsibility of a United
States Court of Appeals to forbear from summary
dismissal of a matter which has not been specifically
decided by this Court.
STATEMENT OF THE CASE
Petitioners, William J. Beer and Dora Beer, were
husband and wife during the years ending December 31,
1969, December 31, 1970, and December 31, 1971. During
those years, petitioner William J. Beer was employed as
a Michigan Circuit Court Judge.
4
Circuit Judges in the State of Michigan are subject to
reassignment to preside over trials outside of their home
circuit, whenever and wherever desired, by the Michigan
Supreme Court. Judge Beer has served in many circuits
in the State of Michigan presiding over lengthy and
difficult trials. He has also served under special
assignment in the Detroit Recorder’s Court at Detroit,
Michigan, and in the Michigan Court of Claims at
Lansing, Michigan. Sometimes in Michigan, circuit judges
on assignment sit at the appellate court level. Judge Beer
has served on assignment on more than one occasion as
an appellate judge in the Michigan Court of Appeals. Of
particular note, Judge Beer was the trial judge in the case
of Wayne Circuit Judges v Wayne County. His ruling,
under the Separation of Powers Doctrine that the judicial
branch of government decides its own needs, was upheld
in the Michigan Supreme Court. 386 Mich 1, (1971) 190
N.W.2d 228 (1971); cert den 405 U.S. 923 (1971).
Judge Beer is now in his 18th year on the bench, and
his judicial tenure in office does not expire until January,
1981.
Judge Beer was compensated for his judicial services
for the year ending December 31, 1969, with payments of
$20,208.25 from the State of Michigan, $10,000.00 from
the County of Oakland, Michigan, and $120.00 from the
County of St. Clair, Michigan, for a total of $30,328.25.
He was compensated for his judicial services for the year
ending December 31, 1970, with payments of $19,999.92
from the State of Michigan, and $10,000.00 from the
County of Oakland, Michigan for a total of $29,999.92.
He was compensated for his judicial services for the year
5
ending December 31, 1971, with payments of $21,999.96
from the State of Michigan, and $30,000.01 from the
County of Oakland, Michigan for a total of $51,999.97.
Petitioners on their ,oint United States Individual
Income Tax Returns for the years ending December 31,
1969, December 31, 1970, and December 31, 1971, did
not include in gross income the compensation that Judge
Beer received for his judicial services as a Michigan
Circuit Court Judge.
The Commissioner of Internal Revenue determined that
the compensation Judge Beer received for judicial
services was includabie in his gross income and mailed to
the petitioners a notice of deficiency on February 2, 1972,
determining a deficiency in income tax for the year
ending December 31, 1969, of $7,865.02; a notice of
deficiency on March 27, 1974, determining a deficiency in
income tax for the year ending December 31, 1970, of
$7,185.22; and a notice of deficiency on August 20, 1973,
determining a deficiency in income tax for the year
ending December 31, 1971, of $3,854.40. Petitioners in
fact had no deficiency for the year 1970. Said tax was
fully paid. Notice of deficiency should be determined as
wrongfully issued since full payment was made despite
the constitutional contentions.
The matters were heard before the Tax Court and
Judge Wiles filed his opinion on August 18, 1975, holding
that the petitioner William J. Beer’s compensation as a
state judge was not immune from federal income
taxation. The Court of Appeals for the Sixth Circuit
dismissed petitioners’ appeal without hearing and denied
petitioners’ timely motion for rehearing.
REASONS FOR GRANTING THE WRIT
I
The narrow substantive issue in this case is whether,
where a state constitution prohibits diminution of a state
judge’s compensation during his term of office, such
compensation is immune from federal income taxation.
This precise question of whether the federal!
government can constitutionally levy an income tax on
the compensation of a state judge has been presented to
the Supreme Court of the United States only once. In
Collector v Day, (Buffington v Day) 11 Wall 113; 20 Led
122 (1871), a probate judge from Massachusetts brought
suit against the collector of internal revenue to recover
federal taxes which has been assessed against his judicial
compensation. The Court held that the establishment of a
judicial branch of government by a state, and the
appointment of judges to implement such establishment
were among the reserved powers of the state; that is, an
original inherent power never parted with, and in respect
to which the supremacy of the federal government did
not exist. The means and instrumentalities employed by a
state government to carry into operation the powers
reserved to it were held to be improper subjects of the
taxing power of Congress.
Since 1871, no other case involving the specific
question of federal taxation of a state judge has come
before the Supreme Court. In 1937, the Court reaffirmed
the Day holding in Helvering v Gerhardt, 304 US 405; 82
Led 1427 (1937).
In the Gerhardt case, the Court was called upon to
determine the question as to whether the taxpayers
claiming immunity from federal taxation were engaged in
an essential governmental function. The taxpayers were
>
certain employees of a bi-state port authority corporation
who failed to convince the Supreme Court of the
historical essentiality of their functions. However, the
Gerhardt court succinctly and explicitly recognized and
reaffirmed the immunity from federal taxation of a state
judicial officer engaged in the performance of a function
which pertained to state governments at the time the
Constitution was adopted, without which immunity no
state could long preserve its existence. Helvering v
Gerhardt, supra, p 415.
The Gerhardt case was argued in April of 1938, and
decided in May, 1938. Less than a year later, in March,
1939, the Supreme Court decided Graves v New York,
306 US 465; 83 Led 927 (1938). The Graves case has
since been relied upon and cited as overruling the then
just reaffirmed doctrine of immunity of a state judge from
federal taxation. However, careful reading of the Graves
opinion clearly indicates that such is not the case.
Mr. Justice Stone wrote both the Gerhardt and the
Graves opinions, and his reaffirmance of the Day
principle in the Gerhardt opinion has been noted above.
Subsequently, the Gerhardt decision, to the extent that
the facts were analagous, was relied upon in Graves.
The Graves case actually was the converse of
Gerhardt; that is, in Gerhardt state employees claimed
immunity from federal taxation, and in Graves, federal
employees claimed immunity from state taxation. In
neither case were judges of the respective governments
the petitioners.
In both Gerhardt and Graves the governments were
Carrying on activities and enterprises not known to the
states when the Constitution was adopted: in the former,
a Port Authority Corporation; in the latter, a Home
Owners’ Loan Corporation. Therefore, any tax immunity
found to exist would of necessity arise by implication
from rather than the express intent of the Constitution.
This implied immunity is the concept which was
ultimately rejected in the Graves decision.
But, Mr. Justice Stone very carefully limited the
parameters of the Graves opinion with regard to Collector
v Day, supra:
“Collector v Day, 11 Wall 113, 20 Led 122, and
New York ex rel Rogers v Graves, 299 US 401, 81
Led 306, supra, are overrruled so far as they
recognize an implied constitutional immunity from
income taxation of the salaries of officers or
employees of the national or state government or
their instrumentalities.’’ (Emphasis added)
The immunity of state judges from federal income
taxation does not arise by implication. The purposeful,
specialized treatment of judges was expressly intended by
the framers of the Constitution. Establishment and
exclusive control of a state judicial branch of government
is historically an essential function reserved to the states.
Helvering v Gerhardt, supra. Furthermore, Article VI,
Section 18 of the Michigan Constitution, patterned after
Article II, Section 1 of the United States Constitution,
expressly sets up the constitutional immunity.
This special treatment afforded judges of the state
judiciary is constitutionally protected by Article IV,
Section 4 of the Constitution of the United States which
specifically guarantees to the states the right to establish
a republican form of government, the means and
instrumentalities of which, under the ‘‘reserve’’ clause of
9
the 10th Amendment, are completely within the sovereign
control of the states. The State of Michigan, pursuant to
such reserved powers, and in conjunction with its
historical as well as constitutional right to establish an
independent judiciary, has seen fit to protect that
judiciary by the the enactment of Article VI, Section 18
of its Constitution, which provides as follows:
‘Salaries of justices of the supreme court, of
the judges of the court of appeals, of the circuit
judges within a circuit, and of the probate judges
within a county or district, shall be uniform, and
may be increased but shall not be decreased
during a term of office except and only to the
extent of a general salary reduction in all other
branches of government.”’
In light of this constitutional pronouncement, any
interference with the compensation received by judges of
the State of Michigan is thereby constitutionally
forbidden.
Neither the United States Constitution nor the
Michigan Constitution contain similar protections for the
compensation paid to the legislative or executive officers
of the government. As such, it is patently obvious that
the judicial compensation is to be treated separately from
that paid to members of the other branches of the
government.
This special treatment of the judiciary is inexorably
ingrained upon our historical fabric. Since the time of our
founding fathers it has been recognized that the judicial
branch of government, be it federal or state, could
maintain its integrity only if it were totally independent of
the executive and legislative branches. The colonists
were well aware of the evils which would result from an
executive or legislature which could use judicial tenure
10
and judicial compensation to control judicial actions. The
problem was so acute that the Declaration of
Independence indicted the King for having ‘‘made judges
dependent on his Will alone, for the tenure of their
offices, and the amount and payment of their salaries.”
The concern of the framers of the Constitution with the
need for special protection of the judicial branch is
reflected by Alexander Hamilton in the Federalist Papers.
In Federalist No. 70 Hamilton stated:
‘* |. . the judiciary is beyond comparison the
weakest of the three departments of power, . . . it
can never attack with success either of the other
two; and ... all possible care is requisite to
enable it to defend itself against their attacks.”’
And in Federalist 79, Hamilton pointed out:
‘‘Next to permanency in office nothing can
contribute more to the independence of the judges
than a fixed provision for their support . . . In the
general course of human nature, the power over a
man’s subsistence amounts to a power over his
will.”’
This special protective treatment of judges served also
to attract highly qualified men to the bench. Chancellor
Kent noted:
‘‘The provision for the permanent support of
the judges is well calculated, in addition to the
tenure of their office, to give them the requisite
independence. It tends, also, to secure a
succéssion of learned men on the bench, who, in
consequence of a certain undiminished support,
are enabled and induced to quit the lucrative
pursuits of private business for the duties of that
important station.’’ as cited in Evans v Gore, 253
US 245; 64 Led 887 (1919)
The objectives of the colonists and framers of
constitutions, federal and state, with regard to the
independence and quality of their respective judiciaries,
are no less viable today than they were two hundred
years ago. Yet, the clear intent of the Michigan
constitutional protection for its judges has been abrogated
by the significant and prolonged lessening of their
guaranteed compensation by action of the federal
government.
Collector v Day, supra, recognized and gave effect to
the constitutional principles discussed herein. Since that
time, for a period in excess of one hundred years, no
other case dealing with the principles discussed herein
has been presented to this Court. Notwithstanding this
fact, Graves v New York, supra, has been relied upon as
authority for the proposition that the federal government,
in complete avoidance and disregard of Article IV,
Section 4 of the United States Constitution, can tax the
compensation of a state judge who is protected by a state
constitution from diminishment of such compensation
while he is in office. Chief Justice Marshall, in Cohen v
Virginia, 6 Wheat 264, 399; 5 Led 257, 290 (1821) warned
against just such an overbreadth application of the law of
one case to another:
“It is a maxim not to be disregarded that
general expressions, in every opinion, are to be
taken in connection with the case in which those
expressions are used. If they go beyond the case,
they may be respected, but ought not to control
the judgment in a subsequent suit when the very
point is presented for decision. The reason of this
maxim is obvious. The question actually before
the Court is investigated with care, and
considered in its full extent. Other principles
12
which may serve to illustrate it, are considered in
their relation to the case decided, but their
possible bearing on all other cases is seldom
completely investigated.”’
In this regard it is important to note that the Court in
Graves gave no consideration to the historical and
constitutionally mandated independence of the judiciary
in commenting on the Day case. Neither did the Court
completely investigate the effect of the principle being
espoused in Graves on the express Constitutional
immunity of a state judge from federal taxation.
Additionally, as noted previously, the Graves case had
nothing whatsoever to do with judicial salaries.
The argument has been made that judges should not be
insulated from paying their fair share for the cost of
government as do other non-judicial citizens, but the
exemption of state judicial compensation from
diminishment by federal income taxation is not in any
true sense a windfall or a gratuity. ‘‘It is essentially and
primarily compensation based upon valuable
consideration . . . The undertaking has its own particular
value to the citizens in securing the independence of the
judiciary in crises; [and] . . . the members of the judiciary
relinquish their position at the bar, with all its
professional emoluments, sever their connection with
their clients, and dedicate themselves exclusively to the
discharge of the onerous duties of their high office.”
Gordy v Dennis, 5 A 2d 69 (Md. 1939). The objective of
the framers of the Constitution to attract highly qualified
persons to the bench by guaranteeing an undiminished
compensation is fast being eroded by the lessening of that
compensation by taxation. This Court, in its wisdom,
need do little more than enforce the express intent of the
Constitution to stop such erosion.
13
In keeping with this Court’s earnest and repeated
requests that Petitions for Certiorari be as brief and
succinct as possible, full repetition of all of the collateral
and related issues raised before the Tax Court and the
Court of Appeals have not been fully explored herein. It
is respectfully urged that this Court, upon receipt of the
complete record, will take into consideration all of the
briefs heretofore submitted to each of those tribunals,
including the briefs filed in support of the motions for
rehearing.
2
The Circuit Court of Appeals for the Sixth Circuit
dismissed petitioners’ appeal as being ‘‘frivolous’’ and
‘‘without merit.”’ A timely motion for rehearing was also
summarily disposed of.
Petitioners’ claim is not frivolous. Such a position by
the Court of Appeals serves only to trivialize basic
concepts which are the cornerstones of the Separation of
Powers Doctrine which has repeatedly preserved our
republic. This case involves basic constitutional
principles and is not merely the attempt of one man to
relieve himself of the responsibilities of citizenship. The
constitutional prohibition against the diminution of
salaries of state judges should be construed now, as it has
been historically, as a limitation imposed in the public
interest and not as a private grant for the benefit of the
members of the judiciary. The petitioner has been a state
judge for over eighteen years and daily is called upon to
fulfill the often burdensome duties of his office.
Viewed from this premise, the Court of Appeals failed
to consider the critically important issue being presented
to it for determination. As a constitutional tribunal vested
14
with the responsibility of reviewing the decisions of lower
courts, the Court of Appeals should not arbitrarily, and
under the guise of docket control, dispose of an appeal
which presents a question heretofore not specifically
dealt with since 1871.
CONCLUSION
For the foregoing reasons, this petition for writ of
certiorari should be granted.
Respectfully submitted,
/s/ Frances R. Avadenka
Counsel for Petitioners
2800 North Woodward Ave.
Bloomfield Hills, MI 48013
APPENDIX A
OPINION — AUGUST 18, 1975
(United States Tax Court)
(Beer et al v. Comm. Internal Revenue)
(Docket Nos. 2988-72, 8187-73, 4479-74)
(Filed August 18, 1975)
64 T. C. No. 83
Held, petitioner, a Michigan state court judge, is not
entitled to exclude his salary from income under the
United States or Michigan Constitutions.
Joseph F. Dillon, for the petitioners.
James E. Keeton, Jr., for the respondent.
15
Wiles, Judge: Respondent determined deficiencies in
petitioners’ income taxes as follows:
Year Deficiency
1969 $7,865.02
1970 7,185.22
1971 3,854.40!
After concession of one issue by petitioners, the only
issue for decision is whether William J. Beer (hereinafter
petitioner) is entitled to exclude his Michigan judicial
salary from income under the United States or Michigan
Constitutions.
This case was fully stipulated pursuant to Rule 122,
Tax Court Rules of Practice and Procedure.
Petitioner and Dora Beer, husband and wife, resided in
Berkley, Michigan, when their petitions were filed.
Their joint Federal income tax returns for 1969, 1970 and
1971 were filed with the District Director of Internal
Revenue, Detroit, Michigan.
' Because of a computation error in the Notice of Deficiency for
1971, respondent amended his answer in docket No. 8187-73 to
request an increase in deficiency for that year from $3,854.40 to
$13,616.81; petitioner stipulated that this adjustment was proper.
16
During 1969, 1970 and 1971, petitioner’s compensation
as a Michigan Circuit Court Judge was as follows:
County of County of
State of Oakland, St. Clair,
Year Michigan Michigan Michigan
1969 $20,208.25 $10,000.00 $120.00
1970 19,999.92 10,000.00 —
1971 21,999.96 30,000.01 _
Federal income tax returns filed by petitioner and Dora
Beer for 1969, 1970 and 1971 did not include that
compensation in gross income, but respondent
determined that it was includable in gross income and
assessed deficiencies in the amounts specified earlier.
Petitioner contends that his Michigan Circuit Court
Judge salary is immune from Federal taxation under both
the United States and Michigan Constitutions. Although
we sympathize with his position, it is now well settled
that there is no constitutional objection to Federal
taxation of the salaries of state officers or employees.
Graves v New York, 306 U.S. 466 (1939); Helvering v
Gerhardt, 304 U.S. 405 (1938); Matthew H. Murphy, 46
B.T.A. 1058, 1062 (1942); Ira H. Lohman, 45 B.T.A. 495,
503 (1941), affd. 133 F. 2d 977 (8th Cir. 1943).
The petitioners cite for support Article III, Section 1 of
the United States Constitution, which provides as
follows:
Section 1. The judicial Power of the United
States, shall be vested in one supreme Court, and
17
in such inferior Courts as the Congress may from
time to time ordain and establish. The Judges,
both of the supreme and inferior Courts, shall
hold their Offices during good Behaviour, and
shall, at stated Times, receive for their Services, a
Compensation, which shall not be diminshed
during their Continuance in Office.
Petitioner contends that this provision prohibits
diminution of his salary by Federal income taxes.
Michigan Circuit Courts, however, are clearly not
‘‘inferior Courts as the Congress may * * * establish’
within the intendment of Article III. Cf. O’Donoghue v
United States, 289 U.S. 516 (1933); Charles F. Parsons,
42 B.T.A. 1114, 1117 (1940). And even if Article III,
Section | were applicable, imposition of Federal income
taxes upon a judge of a court created thereunder does not
constitute diminution of his salary within the meaning of
that provision. OMalley v Woodrough, 307 U.S. 277
(1939); William E. Baker, 4 T.C. 307, 310 (1944), affd. 149
F. 2d 342 (4th Cir. 1945).
Petitioner also contends that Federal taxation of his
salary would contravene Article VI, Section 18 of the
Michigan Constitution, which provides, in part, as
follows:
Salaries *** of the circuit judges within a
circuit *** shall be uniform, and may be
increased but shall not be decreased during a term
of office except and only to the extent of a general
salary reduction in all other branches of
government.
It is well settled that a state constitution cannot limit the
Federal Government’s power to tax. Florida v Mellon,
273 U.S. 12, 17 (1927). See also Gunn v Dallman, 171 F.
2d 36, 37 (7th Cir. 1948), in which a state judge
contended that Federal taxation of his salary was —
*** a diminution thereof, contrary to Article
VI, Section 7 of the Illinois Constitution,
Smith-Hurd Stats. The limitation of the State
Constitution is upon the state government of
Illinois and not upon the federal government. The
taxation by the federal government is no violation
of the limitation upon the state government not to
diminish a judge’s salary, even if we concede that
taxation is a diminution of salary. * * *
And as indicated above, O'Malley v Woodrough, supra,
rejected the contention that imposition of income tax on
judicial compensation was a diminution thereof; we see
no reason to adopt a different interpretation of the
Michigan Constitution. Finally, even assuming arguendo
that Federal income taxes do constitute a reduction of
judicial compensation and that the Michigan Constitution
applies to Federal as well as state action, the reduction is
a general salary reduction for all Michigan employees,
which the Michigan Constitution expressly allows.
Petitioner also argues that contravention of . the
Michigan Constitution is prohibited by Article IV,
Section 4 of the United States Constitution, which
provides, in part, that ‘“‘[t]he United States shall
guarantee to every State in this Union a Republican Form
of Government * * *.”’
In Collector v Day, 78 U.S. (11 Wall.) 113 (1871), the
Supreme Court noted that the Constitution guarantees to
the states a republican form of government and reasoned
that the ‘‘means and instrumentalities’’ employed for
—_— -
19
carrying on their governmental operations should not be
impaired by the taxing power of the Federal Government.
The Court accordingly held that imposition of Federal
income taxes upon a state judge’s salary was
unconstitutional. Collector v Day was explicitly
overruled, however, in Graves v New York, 306 U.S.
466, 486 (1939), insofar as it recognized ‘‘an implied
constitutional immunity from income taxation of the
salaries of officers or employees of the national or a state
government or their instrumentalities.’’ Petitioner’s
argument under Article IV, Section 4 must therefore fall
in view of the overruling of Collector v Day. Of course,
Florida v Mellon, supra, requires the same result, though
the point is not specifically mentioned by the Court.
Petitioner cites Collector v Day, Indian Motorcycle Co.
v United States, 283 U.S. 570 (1931), and Commissioner
v Stilwell, 101 F. 2d 588 (7th Cir. 1939), cert. dismissed
307 U.S. 648 (1939), for the proposition that the Federal
Government lacks authority to tax instrumentalities,
means and operations whereby individual states exert
governmental powers. Indian Motorcycle Co. and Stilwell
relied on Collector v Day in holding that a sale of
motorcycles to a Massachusetts police department and
the salary of an Illinois court official were not subject to
Federal excise and income taxation, respectively. These
cases are without vitality on this point because of the
reversal of Collector v Day subsequent to the decisions
therein. Cf. Irvine v Spaeth, 210 Minn. 489, 299 N.W.
204 (1941), appeal dismissed 314 U.S. 575 (1941).
Petitioner also cites Evans v Gore, 253 U.S. 245 (1920),
which held that Federal taxation of the salary of a United
States District Judge did constitute a diminution of his
compensation within the meaning of Article III, Section |
of the United States Constitution. Evans v Gore was
20
overruled by O'Malley v Woodrough, supra. Oklahoma
Tax Commission v United States, 319 U.S. 598, 610
(1943). Evans v Gore accordingly also lacks vitality as a
precedent herein.
The same is true of two other cases cited by petitioner
which relied on Evans v Gore, O'Donoghue v United
States, 289 U.S. 516 (1933), and Gordy v Dennis, 176
Md. 106, 5 A. 2d 69 (1939). Both were decided before
O’ Malley v Woodrough, and both are distinguishable on
their facts.
Petitioner emphasizes that ‘‘a power over a man’s
subsistence amounts to a power over his will,’ Hamilton,
The Federalist (No. 79), and that judicial independence is
essential to our system of government. We agree;
however, as the Supreme Court noted in O'Malley v
Woodrough, at 307 U.S. 282,
To suggest that it makes inroads upon the
independence of judges * * * by making them bear
their aliquot share of the cost of maintaining the
Government, is to trivialize the great historic
experience on which the framers based the
safeguards of Article III, § 1. To subject them to a
general tax is merely to recognize that judges are
also citizens, and that their particular function in
government does not generate an immunity from
sharing with their fellow citizens the material
burden of the government whose Constitution and
laws they are charged with administering. [Fn. ref.
omitted. ]
21
We have considered petitioner's other contentions, and
we find them to be unconvincing.
We hold that peiitioner may not exclude compensation
received as a Michigan Circuit Court Judge from gross
income under the United States or Michigan Con-
stitutions.
Decisions will be entered for the respondent.
APPENDIX B
DOCKET ENTRIES
(United States Tax Court)
(Docket No. 2988-72)
William J. Beer and Dora Beer, 2173 Beverly
Boulevard, Berkeley, Michigan 48072 — Petitioner vs.
Commisioner of Internal Revenue, Respondent.
Appearances for Petitioner: Name: Joseph F. Dillon
(Raymond, Fletcher & Dillon). Address: 1400 Guardian
Building, Detroit, Michigan 48226
1972
Apr. 27. Petition filed. Fee paid. Apr. 27, 1972, Served
May 2, 1972
Apr. 27. Request by Petitioners for trial at Washington,
D.C. Action: Granted May 1, 1972. Served May 2,
1972.
June 23. Answer filed by Respondent. Served June 28,
1972.
22
1973
Nov. 16. Notice for trial on Feb. 19, 1974 at
Washington, D.C. Served Nov. 16, 1973.
1974
Jan. 17. Motion by Petitioner to continue case generally
from Feb. 19, 1974 Washington, D.C. trial session.
Action: Granted Jan. 30, 1974. Served Jan. 31, 1974.
Jan. 18. Notice of filing of Petitioner motion for
continuance and hearing on Feb. 6, 1974 at
Washinton, D.C., if objection filed by January 28,
1974. Served Jan. 18, 1974.
Jan. 28. Notice of no objection to Petitioner motion
filed Jan. 17, 1974 filed by Respondent. Served Jan.
31, 1974.
Jan. 28. Motion by Respondent to change the place of
trial from Washington, D.C. to Detroit, Michigan.
Jan. 31. Notice of filing of Respondents motion to
change place of trial and hearing on March 6, 1974 at
Washington, D.C., if objection filed by February 21,
1974. Served Jan. 31, 1974.
Feb. 14. Notice of Objection filed by Petitioner to
Respondents motion filed Jan. 28, 1974. Served Feb.
15, 1974.
March 4. Order, that respondents motion filed Jan. 28,
1974 is withdrawn and case is stricken from Mar. 6,
1974 session, at Washington, D.C. Served Mar. 5,
1974.
July 24. Notice of Trial on Oct. 21, 1974 at Washington,
D.C. Served July 24, 1974.
23
Aug. 12. Motion by Petitioner to consolidate docket
nos. 2988-72, 8187-73 and 4479-74 for trial, briefing
and opinion. Action: Granted. See order dated Sept.
11, 1974.
Aug. 16. Notice of filing of petitioners motion to
consolidate and hearing on September 18, 1974 at
Washington, D.C., if objection filed by September 5,
1974. Served Aug. 16, 1974. ~
Aug. 21. Motion by Respondent for Judgment on the
Pleadings.
Aug. 21. Brief for the Respondent in support of motion
filed Aug. 21, 1974. Served Aug. 26, 1974.
Aug. 23. Order that the Petitioners file a brief in
response to Respondents brief in support of his
motion for judgment on the pleadings, on or before
September 27, 1974. Served Aug. 26, 1974.
Sept. 11. Order, that Petitioner’s motion filed Aug. 12,
1974 is Granted and cases are consolidated for Trial,
Briefing and opinion and it is Ordered, that cases at
#8187-73 and #4479-74 are also sent for trial on
October 21, 1974 at Washington, D.C. & further
Order, that cases are stricken from the motions
session of September 18, 1974 at Washington, D.C.
Served Sept. 12, 1974.
Sept. 13. Motion by Petitioner for direction of a hearing
on October 21, 1974 at Washington, D.C. on
Respondents Motion for judgment on the pleadings;
and for an extension of time to Oct. 21, 1974 to file
their brief in opposition to Respondents Motion for
judgment on the pleadings. Action Granted Sept. 17,
1974. Served Sept. 18, 1974.
24
Sept. 18. Notice of filing of Respondents motion for
judgment on the pleadings and hearing on October
21, 1974 at Washington, D.C. Served Sept. 18, 1974.
Oct. 21. Hearing at Washington, D.C. before Judge
Wiles. Joint Motion for leave to submit case under
Rule 122-filed and granted. Stipulation of Facts with
Exhibits filed. Respondents oral motion to withdraw
motion for Judgment on pleadings. (See Order) Fully
Stipulated Under Rule 122. Petitioners Original Brief
Due: December 5, 1974 (See Order 11/7/74) Reply
Briefs Due: January 20, 1975. Served Nov. 8, 1974.
SUBMITTED TO JUDGE WILES
1974 »
Oct. 21. Order, that Respondents Oral Motion is
Granted and Respondents Motion for Judgement on
the pleadings filed Aug. 21, 1974 is withdrawn.
Served Nov. 8, 1974.
Oct. 30. Transcript of October 21, 1974 received.
Nov. 4. Motion by Respondent to withdraw motion for
judgment on the pleadings and Motion to have
Respondents Brief in Support be made Respondents
Original Brief. Action: see ordered dated 11/7/74.
Served Nov. 8, 1974.
Nov. 7. Order that Brief filed August 21. 1974 in
2988-72 is considered the Original Brief in each case.
Served Nov. 8, 1974.
Oct. 30. Transcript of Oct. 21, 1974 received.
Dec. 2. Motion by Petitioner for extension of time to
January 5, 1975 within which to file Brief. Action:
Granted Dec. 3, 1974. Served Dec. 3, 1974.
ee eee
25
Dec. 30. Motion by Petitioner for extension of time to
Feb. 5, 1975 within which to file Brief. Action:
Granted Dec. 31, 1974. Served Dec. 31, 1974.
1975
Feb. 5. Motion by Petitioner for extension of time to
Feb. 20,. 1975 within which to file Brief. Action:
Granted Feb. 6, 1975. Served Feb. 7, 1975.
Feb. 21. Brief for Petitioners filed. (P. M. Timely).
Served Feb. 25, 1975.
Feb. 21. Motion by Petitioner for Oral Argument.
Action: See Order Feb. 26, 1975.
Feb. 26. Order that the motion for oral argument filed
Feb. 21, 1975 is denied. Served Feb. 26, 1975.
Mar. 14. Motion by Petitioner for reconsideration of
Denial of Order of Feb. 26, 1975. Action: Denied
Mar. 17, 1975. Served Mar. 18, 1975.
Mar. 24. Reply Brief for Respondent filed. (serve per
Judge). Served Apr. 28, 1975
Aug. 18. Opinion filed, Judge Wiles. (Decision will be
entered for the Respondent). Served Aug. 18, 1975.
Aug. 28. Motion by Petitioner for an extension of time
to Oct. 17, 1975 to file Motion for reconsideration
and/or revision of Opinion filed Aug. 18, 1975.
Action: Granted Aug. 29, 1975. Served Sept. 2,
1975.
Sept. 22. Decision entered, Judge Wiles. Served Sept.
22, 1975.
er
26
Oct. 16. Motion by Petitioner for Reconsideration of
Opinion. (Exhibits Attached) Action: Denied. See
Order Nov. 3, 1975.
Oct. 16. Motion by Petitioner to Vacate Decisions.
Action: (See Order) Nov. 19, 1975.
Nov. 3. Order, that Motion filed Oct. 16, 1975 to
Reconsider the Opinion including Request for
Additional oral argument is Denied. Served Nov. 4,
1974.
Nov. 19. Order that Petitioners motion to vacate the
decision filed Oct. 16, 1975 is Denied. Served Nov.
19, 1975.
APPELLATE PROCEEDING
1976
Feb. 17. Notice of Appeal to U.S.C.A., 6th Cir., filed
by Petitioners. Served Feb. 18, 1976.
Feb. 18. Notice of Filing with copy of notice of appeal
sent to Chief Counsel, Mr. Meade Whitaker. Served
Feb. 18, 1976.
Feb. 18. Notice to parties of assembling and date for
transmission of record. Served Feb. 18, 1976.
DOCKET NO. 8187-73
1973
Nov. 14. Petition filed: Fee paid. Nov. 14, 1973.
Served: Nov. 15, 1973.
Nov. 14. Request by Petitioner for trial at Washington,
D.C. Action Granted Nov. 15, 1973. Served: Nov.
15, 1973.
eee ee eee eT
Ll NE NS ty ee oe
27
Dec. 18. Answer by Respondent filed. Served: Dec. 20,
1973.
1974
Aug. 12. Motion by Petitioner to consolidate docket
nos. 2988-72, 8187-73 and 4479-74 for trial, briefing
and opinion.
Aug. 16. Notice of filing of Petitioners motion for
consolidation and hearing on Sept. 18, 1974 at
Washington, D.C., if objection filed by September 5,
1974. Served: Aug. 16, 1974.
Sept. 11. Order, that Petitioners motion filed Aug. 12,
1974 is Granted and cases are consolidated for Trial,
Briefing and Opinion and it is Order, that cases at
#8187-73 and #4479-74 are also set for trial on Oct.
21, 1974 at Wash., D.C. & further Order, that cases
are stricken from the motions session of September
18, 1974 at Washington, D.C.~Served: Sept. 12,
1974. :
Oct. 21. Hearing at Washington, D.C. before Judge
Wiles. Joint Motion for leave to Submit Case under
Rule 122 filed — Granted. Respondents motion for
leave to file Amendment to Answer; Granted.
Respondents Amendment to Answer filed.
Stipulation of Facts with exhibits filed. Served: Nov.
8, 1974.
Oct. 21. Fully Stipulated Under Rule 122. Petitioners
Original Brief Due: December 5, 1974 (See Order
Dated 11/7/74). Reply Briefs Due: January 20, 1975.
28
SUBMITTED TO JUDGE WILES
1974
Nov. 4. Motion by Respondent to withdraw Motion
for Judgment on the Pleadings & Motion to have
Respondents Brief in Support made Respondents
Original Brief. Action: See Order Dated 11/7/74.
Served: Nov. 8, 1974.
Nov. 7. Order that Brief filed August 21, 1974 in
2988-72 is considered the Original Brief in each case.
Served: Nov. 8, 1974.
Oct. 30. Transcript of Oct. 21, 1974 received.
Dec. 2. Motion by Petitioner for extension of time to
January 5, 1975 within which to file Brief. Action:
Granted Dec. 3, 1974. Served Dec. 3, 1974.
Dec. 30. Motion by Petitioner for extension of time to
February 5, 1975 within which to file Brief. Action:
Granted Dec. 31, 1974. Served: Dec. 31, 1974.
1975
Feb. 5. Motion by Petitioner for extension of time to
Feb. 20, 1975 within which to file Brief. Action:
Granted Feb. 6, 1975. Served: Feb. 7, 1975.
Feb. 21. Brief for Petitioners filed. (P. M. Timely).
Served: Feb. 25, 1975.
Oe ee need MO We aT
29
Feb. 21. Motion by Petitioners for Oral Argument.
Action: See Order Feb. 26, 1975.
Feb. 26. Order that the motion for oral argument filed
Feb. 21, 1975 is denied. Served: Feb. 26, 1975.
Mar. 14. Motion by Petitioner for reconsideration of
Denial of Order of Feb. 26, 1975. Action: Denied
Mar. 17, 1975. Served: Mar. 18, 1975.
Mar. 24. Reply Brief for Respondent filed. (brief served
per Judge) Served: Apr. 28, 1975.
Aug. 18. Opinion filed, Judge Wiles. (Decision will be
entered for the Respondent.) Served: Aug. 18, 1975.
Aug. 28. Motion by Petitioner for an extension of time
to Oct. 17, 1975 to file Motion for Reconsideration
and/or Revision of Opinion filed Aug. 18, 1975.
Action: Granted Aug. 29, 1975. Served: Sept. 2,
1975.
Sept. 22. Decision entered, Judge Wiles. Served: Sept.
22, 1975.
Oct. 16. Motion by Petitioner for Reconsideration of
Opinion. (Exhibits Attached) Action: Denied See
Order 11/3/75.
Oct. 16. Motion by Petitioner to Vacate Decisions.
Action: (See Order) Nov. 19, 1975.
Nov. 3. Order, that Motion filed Oct. 16, 1975 to
Reconsider the Opinion including Request for
Additional oral argument is Denied. Served: Nov. 4,
1975.
Nov. 19. Order that Petitioners motion to vacate the
decision filed Oct. 16, 1975 is Denied. Served: Nov.
19, 1975.
30
APPELLATE PROCEEDINGS
1976
Feb. 17. Notice of Appeal to U.S.C.A., 6th Cir., filed
by Petitioners. Served: Feb. 18, 1976.
Feb. 18. Notice of Filing with copy of notice of appeal
sent to Chief Counsel, Mr. Meade Whitaker. Served:
Feb. 18, 1976.
Feb. 18. Notice to parties of assembling and date for
transmission of record. Served: Feb. 18, 1976.
DOCKET NO. 4479-74
1974
June 24. Petition filed: Fee paid. June 24, 1974. Served:
June 25, 1974.
June 24. Request by Petitioner for trial at Washington,
D.C. Action: Granted June 25, 1974. Served: June
25, 1974.
Aug. 12. Answer by Respondent filed. Served: Aug. 14,
1974.
Aug. 12. Motion by Petitioner to consolidate docket
nos. 2988-72, 8187-73 and 4479-74 for trial, briefing
and opinion.
Aug. 16. Notice of filing of petitioners motion to
consolidate and hearing on Sept. 18, 1974 at
Washington, D.C., if objection filed by September 5,
1974. Served: Aug. 16, 1974.
Sept. 11. Order that Petitioners Motion filed Aug. 12,
1974 is Granted and cases are consolidated for Trial,
ee re en a ne
31
Briefing and Opinion and it is Order, that cases at
#8187-73 and #4479-74 are also set for trial on
Oct. 21, 1974 at Washington, D.C. & Further Order,
that cases are stricken from the motions session of
September 18, 1974 at Washington, D.C. Served:
Sept. 12, 1974.
Oct. 21. Hearing at Washington, D.C. before Judge
Wiles Joint Motion for leave to submit case under
Rule 122 filed; Granted. Stipulation of facts with
attached exhibits filed. Fully stipulated under Rule
122. Petitioners Original Brief Due: December 5,
1974. Reply Briefs Due; January 20, 1975. (Action:
See Order 11/7/74) Served: Nov. 8, 1974.
SUBMITTED TO JUDGE WILES
1974
Nov. 4. Motion by Respondent to withdraw Motion for
judgment on the Pleadings and Motion to have
Respondents Brief in Support be made Respondents
Original Brief. Action: See Order dated 11/7/74.
Served: Nov. 8, 1974.
Nov. 7. Order that brief filed August 21, 1974 in 2988-72
is considered the Original Brief in each case. Served:
Nov. 8, 1974.
Oct. 30. Transcript of Oct. 21, 1974 received.
Dec. 2. Motion by Petitioner for extension of time to
January 5 1975 within which to file Brief. Action:
Granted Dec. 3, 1974. Served: Dec. 3, 1974.
Dec. 30. Motion by Petitioner for extension of time to
Feb. 5, 1975 within which to file Brief. Action:
Granted Dec. 31, 1974. Served: Dec. 31, 1974.
32
1975
Feb. 5. Motion by Petitioner for extension of time to
Feb. 20, 1975 within which to file Brief. Action:
Granted Feb. 6, 1975. Served: Feb. 7, 1975.
Feb. 21. Brief for Petitioners filed. (P. M. Timely)
Served: Feb. 25, 1975.
Feb. 21. Motion by Petitioner for Oral Argument.
Action: See Order Feb. 26, 1975.
Feb. 26. Order that the motion for oral argument filed
Feb. 21, 1975 is denied. Served: Feb. 26, 1975.
Mar. 14. Motion by Petitioner for reconsideration of
Denial of Order of Feb. 26, 1975. Action: Denied
March 17, 1975. Served: Mar. 18, 1975.
Mar. 24. Reply Brief for Respondent filed. (serve per
judge) Served: Apr. 28, 1975.
Aug. 18. Opinion filed, Judge Wiles. (Decision will be
entered for the Respondent.) Served: Aug. 18, 1975.
Aug. 28. Motion by Petitioner for extension of time to
Oct. 17, 1975 to file Motion for Reconsideration
and/or revision of opinion filed Aug. 18, 1975.
Action: Granted Aug. 29, 1975. Served: Sept. 2,
1975.
Sept. 22. Decision entered, Judge Wiles. Served: Sept.
22, 1975.
Oct. 16. Motion by Petitioner for Reconsideration of
Opinion. (Exhibits Attached) Action: Denied See
Order 11/3/75.
Oct. 16. Motion by Petitioner to Vacate Decisions.
Action: (See Order) Nov. 19, 1975.
Oe ee en eae
33
Nov. 3. Order that Motion filed Oct. 16, 1975 to
Reconsider the Opinion including Request for
Additional oral argument is denied. Served: Nov. 4,
1975.
Nov. 19. Order that Petitioners motion to vacate the
decision filed Oct. 16, 1975 is Denied. Served: Nov.
19, 1975.
APPELLATE PROCEEDINGS
1976
Feb. 17. Notice of Appeal to U.S.C.A., 6th Circuit,
filed by Petitioners. Served: Feb. 18, 1976.
Feb. 18. Notice of Filing with copy of notice of appeal
sent to Chief Counsel, Mr. Meade Whitaker. Served:
Feb. 18, 1976.
Feb. 18. Notice to parties of assembling and date for
transmission of record. Served: Feb. 18, 1976.
APPENDIX C
DECISION
(United States Tax Court)
(Beer, et al., v. Comm. of Internal Revenue)
(Docket No. 2988-72)
(Entered Sept. 22, 1975)
Pursuant to the determination of the Court, as set forth
in its Opinion filed August 18, 1975, it is Ordered and
Decided: That there is a deficiency in petitioners’ income
_ tax for the taxable year 1969 in the amount of $7,865.02.
Entered: Sept. 22, 1975
/s/ (Darrell D. Wiles), Judge
34
APPENDIX D
DECISION
(United States Tax Court)
(Beer, et al., v. Comm. of Internal Revenue)
(Docket No. 8187-73)
(Entered Sept. 22, 1975)
Pursuant to the determination of the Court, as set forth
in its Opinion filed August 18, 1975, it is
Ordered and Decided: That there is a deficiency in
petitioners’ income tax for the taxable year 1971 in the
amount of $13,616.81.
Entered: Sept. 22, 1975.
/s/ Darrell D. Wiles, Judge
(APPENDIX E)
DECISION
(United States Tax Court)
(Beer, et al., v. Comm. of Internal Revenue)
(Docket No. 4479-74)
(Entered Sept. 22, 1975)
Pursuant to the determination of the Court, as set forth
in its Opinion filed August 18, 1975, it is
Ordered and Decided: That there is a deficiency in
petitioners’ income tax for the taxable year 1970 in the
amount of $7,185.22.
Entered: Sept. 22, 1975.
Darrell D. Wiles, Judge
_———t Alea we ee Gee
35
APPENDIX F
ORDER
(United States Tax Court)
(Beer, et al., v. Comm. of Internal Revenue)
(Docket Nos. 2988-72, 8187-73, 4479-74)
(November 3, 1975)
On October 16, 1975, counsel for petitioners in the
above cases filed a ‘‘Motion for Reconsideration of
Opinion,”’ with numerous attachments.
After due consideration of this motion and the record
in these cases, it is hereby
Ordered: That the aforesaid motion is hereby denied,
including petitioners’ request for additional oral
argument.
Dated: Washington, D.C., November 3, 1975.
/s/ Darrell D. Wiles
Judge
APPENDIX G
ORDER
(United States Tax Court)
(Beer, et al., v. Comm. of Internal Revenue)
(Docket Nos. 2988-72, 8187-73, 4479-74)
(November 19, 1975)
Petitioners’ motion to reconsider the opinion having
been denied by order dated November 3, 1975, it is
36
Ordered that petitioners’ motion to vacate the decision
filed October 16, 1975 is denied.
/s/ Darrell D. Wiles
Judge
Dated: Washington, D.C., November 19, 1975
APPENDIX H
ORDER
(United States Court of Appeals for the Sixth Circuit)
(Beer, et al., v. Comm. of Internal Revenue)
(No. 76-1447)
(Filed November 22, 1976)
Before: Edwards, Peck and Lively, Circuit Judges.
This appeal, perfected from an order of the Tax Court
denying petitioners-appellants’ claims ffor the
redetermination of their income tax liabilities for certain
years, has come on for consideration pursuant to Rule
3(e), Rules of the Sixth Circuit. Appellant William J. Beer
(his wife Dora Beer is a party because they filed a joint
return) contends that because he is a state court judge his
judicial salary is exempt from federal income taxation. It
appearing to the Court that the appeal is frivolous and
entirely without merit, Rule 9, Rules of the Sixth Circuit,
It Is Ordered that this appeal be and it hereby is
dismissed.
Entered by Order of the Court
/s/ John P. Hehman, Clerk of Court
37
APPENDIX I
ORDER
(United States Court of Appeals for the Sixth Circuit)
(Beer, et al., v. Comm. of Internal Revenue)
(No. 76-1447)
(Filed December 28, 1976)
Before: Edwards, Peck and Lively, Circuit Judges.
Petitioner-appellant’s petition for rehearing having
come on to be considered and of the judges of this Court
who are in regular active service less than a majority
having favored ordering consideration en banc, the
petition has been referred to the panel which heard the
appeal, and it further appearing that the petition for
rehearing is without merit,
It Is Ordered that the petition be, and it hereby is
denied.
Entered by Order of the Court
/s/ John P. Hehman
Clerk of Court
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