# Opposition — Treasurer, Prince George's County v. Washington National Arena Ltd. Partnership > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2492%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition - **Published:** January 1, 1980 - **Citation:** 449 U.S. 834 ## Text Supreme Court, U.S. No. 79-1921 FILES IN THE SEP 15 1980 SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1980 MICHAEL RODAK, !R., CLERK TREASURER, PRINCE GEORGE’S COUNTY, MARYLAND, Petitioner, v. WASHINGTON NATIONAL ARENA LIMITED PARTNERSHIP, et al., Respondents. BRIEF IN OPPOSITION TO PETITION FOR WRIT OF CERTIORARI TO THE COURT OF APPEALS OF MARYLAND GLENN TRUSSELL HARRELL, JR. O'MALLEY, MILES, FARRINGTON & McCARTHY 96 Harry S. Truman Drive Upper Marlboro, Maryland 20870 (301) 350-1300 Attorney for Respondents, Washington National Arena Limited Partnership, Northampton Carporation and Rosecroft Trotting and Pacing Association, Inc. and GEORGE ALBERT BRUGGER FOSSETT & BRUGGER 10210 Greenbelt Road Seabrook, Maryland 20801 (301) 794-6900 Attorney for Respondents, Alan I. Kay and Jerome D, Kay, as General Partners of Greenbriar Associates, a Maryland Limited Partnership, and Alan I. Kay and Allen E. Rozansky, as General Partners of Cherry Glenr. Associates, a Maryland Limited Partnership Washington, OC « THIEL Ties © (202) 638-4621 (7) QUESTION PRESENTED Whether the Due Process Clause of the Fourteenth Amendment to the United States Constitution, 07, Articles 19 and/or 24 of the Maryland Declaration of Rights prohibit an attempt by State and local government to refuse to refund an admitted illegally collected higher rate of taxation on the recordation of instruments affecting land based on “‘curative’’ State legislation enacted in 1976 that purported to validate the illegal tax rate as of 1968. (iit) TABLE OF CONTENTS Page QUESTION PRESENTED ..... ccc ccsrscccvcessvees i SUPPLEMENTAL CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED............02e eee eee 1 SUPPLEMENTAL STATEMENT OF THE CASE .......... 2 REASONS FOR DENYING A WRIT ............-006- 3 eT ee eh eee cect tee eee eee. 7 RESPONDENT’S APPENDICES: A. General Resolution No, 21, Board of County Commissioners of Prince George’s County, | Ee ee eee ee la B. Constitution of Maryland, Declaration of Rights, 7 I EES Pee ELT EET 2a TABLE OF AUTHORITIES Cases: | Block v. District of Columbia, 492 F.2d 646 (D.C. Cir. EE EEE DE ee 5 Charlotte Harbor & Northern Ry. Co. v. Welles, 260 U.S. EE EEE ee 6 Comptroller v. Glenn L. Martin Co., 216 Md. 235, 140 A.2d 288 (1957), cert. denied, 358 U.S. 820 (1958)...... 5 de Rodulfa v. United States, 461 F.2d 1240 (D.C. Cir. eee ee cabs ee eee cece cee cee. 5 Del Vecchio v. Bowers, 296 U.S. 280 (1935)............. 3 Forbes Pioneer Boat Line v. Board of Commissioners, eee abe ks cece eee s ences 5 Graham v. Goodcell, 282 U.S. 409 (1931)...........06. 5, 6 Maryland v. Baltimore Radio Show, Inc., 338 U.S. 912 Ces che See bbe ecseceeaseccecesces 3 Prince George’s County, Maryland v. White, 275 Md. ERUEED coi ccc ccc cer ccccccce 2, 5, 6 PREVIOUS PAGE WAS BLANK (iv) Cases, continued: Page Pruneyard Shopping Center v. Robins, _. U.S. —_, 100 S. Ct. 2085 (1980) ......... eee ee Se a eee 4 Rice v. Sioux City Memorial Park Cemetery, Inc., ~ Pe Ewa ke ot db Wee taueeeee yeas 0s Kukce Simpson v. United States, 423 F. Supp. 720 (D. lowa SPO 16.6 .Wik new ern 60 SKE CONN S £60 NASR as 5 Welch v. Henry, 305 U.S. 134 (1988) 2... eee ee ee ees 5 Constitutional Provisions: Constitution of the United States, Amendment XIV, sha a a kos Gill bs 6 Se ee a 2 ees i, 3, 4 Constitution of Maryland, Declaration of Rights, EE 6k bid 06 RO Wa RES, Sle aoe cee eee Constitution of Maryland, Declaration of Rights, GE 5 Ge a ew ak Oe ce ie i, 2, 3 Statutes and Ordinances: General Resolution No. 21, Board of County Com- missioners of Prince George’s County, Maryland, ROE Fae Ds COO 6 chic bee hb bs ebb rerecess 2 General Resolution No. 32, Board of County Com- missioners of Prince George’s County, Maryland, Adopted September 18, 1968... cece ccccccccccee 2 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1980 No. 79-1921 TREASURER, PRINCE GEORGE’S COUNTY, MARYLAND, Petitioner, v. WASHINGTON NATIONAL ARENA LIMITED PARTNERSHIP, et al., Respondents. BRIEF IN OPPOSITION TO PETITION FOR WRIT OF CERTIORARI TO THE COURT OF APPEALS OF MARYLAND SUPPLEMENTAL CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED The pertinent portions of the following, omitted by the Petitioner in its Petition for a Writ of Certiorari and appendices thereto, are printed in Respondent’s Appendix: Constitution of Maryland, Declaration of Rights; Article 19; General Resolution No. 21 of the Board of County Commissioners of Prince George’s County, Mary- land, Adopted May 10, 1968. ] 2 Petitioner failed to consult with Respondents concerning the content of the appendices annexed to the Petition for a Writ of Certiorari submitted to this Court by the Petitioner. SUPPLEMENTAL STATEMENT OF THE CASE Prior to establishing the rate of tax at $1.65 per $500 of consideration or secured debt, Prince George’s County, Maryland, in the same year (1968) had set the rate at $1.10 per $500 by adoption of General Resolution No. 21 of the Board of County Commissioners, reproduced herein at p. la. It was General Resolution No. 21, and not General Resolution No. 32 (purportedly resetting the rate at $1.65 per $500), which the Court of Appeals of Maryland had found to have been the lawful rate of taxation in Prince George’s County, Maryland v. White, 275 Md. 314, 340 A.2d 236 (1975). Footnote numbered 1 of the Petition for a Writ of Certiorari implies that the Court of Appeals of Maryland could only have relied on Article 24 (formerly Article 23 prior to November 7, 1978) of the Maryland Declaration of Rights. Respondents argued below for the application of Article 19 of the Maryland Declaration of Rights, reproduced herein at p. 3a. The Court of Appeals of Maryland, in rendering its decision (A. 24-45), accepted Respondents’ arguments as a ground of its opinion that the Petitioner’s actions impaired Respondents’ property rights “‘in violation of the United States Constitution and the Maryland Declaration of Rights.” 3 REASONS FOR DENYING A WRIT The decision of the Maryland Court of Appeals in this matter is supportable as a matter of State law alone, and is not subject to review by the Supreme Court even though the opinion also discussed and relied on prior Supreme Court decisions and the Fourteenth Amend- ment to the United States Constitution. Maryland v. Baltimore Radio Show, Inc., 338 U.S. 912 (1950). Provisions of the Maryland Declaration of Rights, specifi- cally Articles 19 and 24, were argued in the court below. The Court of Appeals of Maryland justified its holding in the instant case by reference to the Maryland Declaration of Rights as much as by any reference to the Fourteenth Amendment of the Constitution of the United States. Moreover, the only statutes or ordinances construed by the Maryland Court are purely local in origin and impact. The impact of the decision applied only to one County (Prince George’s) in Maryland, and then only for the period 1968-1976. Even within the limited time frame involved, the number of taxpayers for which the ruling has significance is finitely limited to those who pursued their administrative remedies in a timely manner spe- cifically as provided for by State and local statute and ordinance. Denying the writ would be in keeping with the Supreme Court’s refusal to review a case which is based upon statutes confined in their operation to a political subdivision or which declares the common law of that political subdivision. Del Vecchio v. Bowers, 296 U.S. 280 (1935). The decision of the Maryland Court of Appeals is sup- portable solely on its view that Articles 19 and/or 24 of the Maryland Declaration of Rights create rights vested in Respondents which Petitioner’s conduct could not impair. This is true regardless of whether the due process 4 clause of the Fourteenth Amendment to the United States Constitution was correctly interpreted or applied to the facts of the instant case. If the Maryland Court’s view of Maryland constitutional provisions is more expansive than holdings interpreting Federal constitu- tional provisions, such a position by a state court has recently been sanctioned by the Supreme Court in Pruneyard Shopping Center v. Robins, __ U.S. __, 100 S.Ct. 2035 (1980). In Pruneyard (a freedom of religion and expression case), a California State consti- tutional provision similar to the U.S. Constitution’s First Amendment was interpreted to create a more expansive right than its federal counterpart. No federal question of substance is presented by this case; only the interpretation of a state statute as applied to a county in that state is involved. No precedential impact outside of Maryland will follow from the decision below. A substantial federal question is not present merely because a federal constitutional issue and deci- sions of this Court are addressed in the opinion of the State court, or because those issues abstractly considered may present an intellectually interesting or solid problem. Rice v. Stoux City Memorial Park Cemetery, Inc., 349 U.S. 70 (1955). To the extent that a federal question (due process clause of the Fourteenth Amendment to the U.S. Con- stitution) was dealt with at all by the Court of Appeals of Maryland, that court’s decision was in accord with applicable prior decisions of the Supreme Court. The crux of the case below was the ability of local govern- ment to enact retroactive, curative legislation so. as to validate an admittedly illegal rate of taxation that had been collected by the County for eight (8) years. The County attempted to use this act as a bar against tax- 5 payers who had already begun the process triggering refunds to which they were entitled under a prior deci- sion of the Maryland Court of Appeals in Prince George’s. County, Maryland v. White, 275 Md. 314, 340 A.2d 236 (1975), declaring the rate of taxation illegal. The Court of Appeals of Maryland in the instant case interpreted as controlling Forbes Pioneer Boat Line v. Board of Commissioners, 258 U.S. 338 (1922), which was in turn applied and construed in Maryland by Comptroller v. Glenn L. Martin Co., 216 Md. 235, 140 A.2d 288 (1957), cert. denied, 358 U.S. 820 (1958). Forbes has been cited and relied on in recent federal cases. Simpson‘v. United States, 423 F. Supp. 720 (D. Iowa 1976); de Rodulfa v. United States, 461 F.2d 1240 (D.C. Cir. 1972); Block v. District of Columbia, 492 F.2d 646 (D.C. Cir. 1974). In Simpson, supra, the federal government sought in the year 1966 to tax the increased value of the assets of petitioner’s company, a proprietorship electing to be taxed at corporate rates, retroactive to the year 1960 when the election was made. The federal district court, after discussing the relevant decisions of this Court on the issue of retroactive legislation, and particularly Welch v. Henry, 305 U.S. 134 (1938), stated: The United States Supreme Court thus intimated that there exists a time beyond which a taxing statute may not constitutionally be given retroactive effect. ... Regulation 1.1361-16(b), requiring at least six years of retroactive taxation in this case and on its face conceivably 10 years in the case of a proprietorship electing under §1361(a) in 1955, is in violation of the due process clause of the Fifth Amendment and therefore invalid. 423 F. Supp. at 731. Moreover, in Graham v. Goodcell, 282 U.S. 409, 426 (1931), this Court reiterated the general rule announced 6 in Forbes “that it is not consistent with due process to take away from a private party a right to recover the amount that is due when the act is passed.” The “cura- tive”’ statute involved in Graham was upheld, but in so holding this Court drew an important distinction which separates the facts of that case from the case at bar. It is apparent, as the result of the decisions, that a distinction is made between a bare attempt of the legislature retroactively to create liabilities for transactions which, fully consummated in the past, are deemed to leave no ground for legislative inter- vention, and the case of a curative statute aptly designed to remedy mistakes and defects in the administration of government where the remedy can be applied without injustice. 282 U.S. at 429. This Court then cites the case of Charlotte Harbor & Northern Ry. Co. v. Welles, 260 U.S. 8 (1922), for the proposition that: ‘The power is necessary that govern- ment may not be defeated by omissions and inaccuracies in the exercise of functions necessary to its administra- tion.” Emphasis added. 282 U.S. at 430. Unlike the situations in Graham and Charlotte Harbor, the statute involved in the present case did not seek to rectify a “technical”? defect or an omission or mistake in the authority of Prince George’s County to collect recordation taxes at the’ $1.65 rate. Rather it sought to supply a legislative intent and ability that had been found in 1975 in Prince George’s County, Maryland v. White, supra, to have been a nullity and void as far back as 1968. 7 CONCLUSION The Petition for Writ of Certiorari to the Court of Appeals of Maryland should be denied. Respectfully submitted, GLENN TRUSSELL HARRELL, JR. O’MALLEY, MILES, FARRINGTON & McCARTHY 96 Harry S. Truman Drive Upper Marlboro, Maryland 20870 (301) 350-1300 Attorney for Respondents, Washington National Arena Limited Partnership, Northampton Corporation and Rosecroft Trotting and Pacing Associa‘éon, Inc. and GEORGE ALBERT BRUGGER FOSSETT & BRUGGER 10210 Greenbelt Road Seabrook, Maryland 20801 (301) 794-6900 Attorney for Respondents, Alan I. Kay and Jerome D. Kay, as General Partners of Greenbriar Associates, a Maryland Limited Partnership, and Alan I, Kay and Allen E. Rozansky, as General Partners of Cherry Glenn Associates, a Maryland Limited Partnership la APPENDIX A BOARD OF COUNTY COMMISSIONERS PRINCE GEORGE’S COUNTY GENERAL PROPOSAL NO. 21—1968 GENERAL RESOLUTION NO. 21—1968 WHEREAS, the County Commissioners of Prince George’s County are authorized by Chapter 301 of the Acts of 1968, Maryland Laws, (an act to add new Section 277(r) of Article 81 of the Annotated Code of Maryland, 1965 Replacement Volume) to adopt by resolution a rate of taxes for the recordation of instru- ments conveying title to property and instruments securing a debt: SECTION 1. THEREFORE, BE IT RESOLVED, by the Board of County Commissioners for Prince George’s County, that the tax imposed by Article 81, 277(a), Annotated Code of Maryland, 1957 Edition (1965 Replacement Volume) on written instruments shall be at the following rates: In the case of instruments conveying title to property, the tax shall be at the rate of $1.10 for each $500.00, or fractional part thereof, of the actual consideration paid, or to be paid; and in the case of instruments securing a debt, the tax shall be at the rate of $1.10 for each $500.00 of the principal amount of the debt secured. The tax imposed shall be paid to and collected by the Treasurer of Prince George’s County, and paid over by said Treasurer to the County Commissioners. SECTION 2. And be it further resolved, that this Resolution shall take effect July 1, 1968. 2a Adopted this 10th day of May, 1968. BOARD OF COUNTY COMMISSIONERS FOR PRINCE GEORGE’S CCOUNTY, MARYLAND, By: Vice-Chairman ATTEST: /s/ Jean M. Schmuhl, Clerk Sa APPENDIX B CONSTITUTION OF MARYLAND DECLARATION OF RIGHTS ARTICLE 19. Remedy for injury to person or property. That every man, for any injury done to him in his person or property, ought to have remedy by the course of the Law of the land, and ought to have justice and right, freely without sale, fully without any denial, and speedily without delay, according to the Law of the land. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2492%3A3. Public record. Not legal advice.