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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