Petition — Maryland v. United States

Supreme Court brief1981

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Office - Supreme Court, U.S

FILED

MAR 81 199]

A ND si

LEXAND -r L. STEVAS,

; CLERK

In THE

Supreme Court of the United States

OcroBer TerRM, 1981

STATE OF MARYLAND AND LOUIS L. GOLDSTEIN,

Petitioners,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

STEPHEN H. Sacus

Attorney General of Maryland

GERALD LANGBAUM

Assistant Attorney General

RICHARD E. ISRAEL

Assistant Attorney General

State Treasury Building

P. O. Box 466

Annapolis, Maryland 21404

301-269-2808

Attorneys for the Petitioners.

The Daily Record Co., Baltimore, MD 21202 cue bal

No.

In THE

Supreme Court of the United States

OcToBER TERM, 1981

STATE OF MARYLAND AND LOUIS L. GOLDSTEIN,

Petitioners,

¥.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Petitioners, State of Maryland and Louis L. Goldstein,

Comptroller of the Treasury of the State of Maryland,

respectfully pray that a writ of certiorari be issued to

review the judgment of the United States Court of Appeals

for the Fourth Circuit entered in this case on December

31, 1980.

QUESTIONS PRESENTED

1. Whether the circuit court erred in affirming a district

court decision that effectively deferred to congressional

judgment on the validity of a statute depriving the State of

its power to tax congressional compensation?

2. Whether the circuit court erred in affirming that the

United States had standing to institute and maintain the

instant lawsuit?

3. Whether the circuit court erred in affirming that the

Tax Injunction Act, 28 U.S.C. § 1341, did not erect a

jurisdictional bar to the maintenance of the instant

lawsuit?

PARTIES

The petitioners are the State of Maryland and Louis L.

Goldstein, the duly elected Comptroller of the Treasury of

the State of Maryland. The respondent is the United

States of America, plaintiff in the United States District

Court for the District of Maryland wherein this action was

commenced.

ill

TABLE OF CONTENTS

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REASONS FOR GRANTING THE WRIT:

IT.

In the delicate area of Federal-State

relations, Congressional enactments,

such as Pub. L. 95-67, which diminish

the fundamental, sovereign power of

the states to levy taxes should not be-

judicially sanctioned without full in-

quiry into the underlying constitutional

basis for such an enactment ..................

The United States does not have an

unlimited right, particularly in matters

of state taxation, to come before its

courts as a surrogate Plaintiff for mem-

bers of Congress, seeking declaratory

and injunctive relief to which the mem-

bers themselves would not have been

RR Rte EARNER AL ARN oe

ae ON pe DA LA SREP RI LIE SI TT ARIE SE IER

APPENDIX:

Opinion filed December 31, 1980, by the

United States Court of Appeals for the

Fourth Circuit and reported at 636 F.2d

73 (4th Cir. 1980) (No. 80-1298) ..........

Opinion filed March 31, 1980, by the United

States District Court for the District of

Maryland, reported at 488 F. Supp. 347

(D. Md. 1980) (No. K-78-1287) .............

Order of the District Court filed March 31,

ERICA TSF Ree ee SRE

TABLE OF CITATIONS

Cases

Baker v. Carr, 369 U.S. 186 (1962) ou...

Bode v. Barrett, 344 U.S. 583 (1953) wo,

Dameron v. Brodhead, 345 U.S. 322 (1953) .......

Department of Employment v. United States,

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Dobbins v. Commissioner of Erie County, 41 U.S.

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Flast v. Cohen, 329 U.S. 83 (1968) .........00...,

Graves v. New York ex rel. O’Keefe, 306 U.S.

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McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316

RUE acutiteasnna tons etetnne easel todovonssciedanenecaaseans

Nathan v. Louisiana, 49 U.S. (8 How.) 73 (1850)

National League of Cities v. Usery, 426 U.S. 833

PI acest ietent iiss acasinciouvearsceciatioeiclalavicbinesdeliecs

New York ex rel. Rogers v. Graves, 299 U.S. 401

SY do lasonan uk sets icsusessusessounaveuhasuaipeenierelicsuiwaseies

O’Malley v. Woodrough, 307 U.S. 277 (1939) ....

State Board of Tax Commissioners v. Jackson, .

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PAGE

39a

PAGE

Constitution, Statutes and Rules

United States Constitution:

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United States Code:

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Statutes at Large:

63 Stat. 129 (District of Columbia Code, Sec.

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Annotated Code of Maryland:

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OPINIONS BELOW

The Opinion and Order of the United States District

Court for the District of Maryland that was appealed to

the circuit court was filed on March 31, 1980 (A. 3-40), and

is reported as United States v. Maryland, 488 F. Supp. 347

(D. Md. 1980). The district court’s order entered final

judgment in favor of the United States, and enjoined

petitioners from subjecting any non-Maryland member of

Congress to any income tax levied by the State of

Maryland or any of its political subdivisions in contraven-

tion of the provisions of Pub. L. 95-67, 4 U.S.C. § 113 (A.

39-40).

The opinion of the United States Court of Appeals for

the Fourth Circuit was filed on December 31, 1980 (A.

1-2) and is reported as United States v. Maryland, 636

F.2d 73 (4th Cir. 1980). In a per curiam opinion, the circuit

court stated only that it affirmed “for reasons sufficiently

stated by the district court” (A. 2).

JURISDICTION

The judgment of the United States Court of Appeals for

the Fourth Circuit which is sought to be reviewed was

entered on December 31, 1980, and this petition is filed

with ninety days of that date, in accordance with 28 U.S.C.

§ 2101(c) and Rule 20.2 of this Court.

The jurisdiction of this Court is invoked under 28 U.S.C.

§ 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

CONSTITUTION OF THE UNITED States

Article I, § 8, cl. 18

The Congress shall have Power

* * # x * Hf

To make al! Laws which shall be necessary

and proper for carrying into Execution the

foregoing Powers, and all other Powers vested by

this Constitution in the Government of the

United States, or in any Department or Officer

thereof.

Unirep States CopE

Title 4, §113

(a) No State, or political subdivision thereof, in

which a Member of Congress maintains a place of

abode for purposes of attending sessions of Congress

may, for purposes of any income tax (as defined in

section 110(c) of this title) levied by such State or

political subdivision thereof—

(1) treat such Member as a resident or domi-

ciliary of such State or political subdivision

thereof; or

(2) treat any compensation paid by the United

States to such Member as income for services

performed within, or from sources within, such

State or political subdivision thereof,

unless such Member represents such State or a

district in such State.

(b) For purposes of subsection (a)—

(1) the term ‘Member of Congress’ includes

the delegates from the District of Columbia,

Guam, and the Virgin Islands, and the Resident

Commissioner from Puerto Rico; and

(2) the term ‘State’ includes the District of

Columbia.

and (b) shall be effective with respect to all

taxable years, whether beginning before, on, or

after the date of the enactment uf this Act.

Title 28, § 1341

The district courts shall not enjoin, suspend or

restrain the assessment, levy or collection of any

tax under State law where a plain, speedy and

efficient remedy may be had in the courts of such

State.

ANNOTATED Cope oF MaryLanp

Article 81, § 279(i)

For the purposes of this subtitle and unless other-

wise required by the context:

* * * of * x

(i) “Resident” means an individual domiciled

in this State on the last day of the taxable year,

and every other individual who, for more than

six months of the taxable year, maintained a

place of abode within this State, whether domi-

ciled in this State or not; but any individual who,

on or before the last day of the taxable year,

changes his place of abode to a place without this

State, with the bona fide intention of continuing

to abide permanently without this State, shall be

taxable as a resident of this State for that portion

of the taxable year in which he resided in this

State and as a nonresident of the State for the

remainder of the taxable year. The fact that a

person who has changed his place of abode,

within six months from so doing, again resides

within this State, shall be prima facie evidence

that he did not intend to have his place of abode

permanently without tnis State. Every indi-

vidual other than a resident shall be deemed a

nonresident. Where, however, an individual who

during the taxable year transfers his residence to

this State from a state or jurisdiction other than

Maryland with the intent of becoming a resident

of this State, he shall be taxable under this

subtitle only with respect to taxable income as

defined herein received by him from and after

the date he becomes a resident of this State

through the close of the calendar year and the

allowable exemptions and dependent credit shall

be prorated on the basis of the number of months

during which residence was maintained in this

State bears to twelve months, provided, however,

that an individual filing a return in accordance

with this provision shall not be entitled to the

credit provided in § 290 of this subtitle for any

income tax paid to the state or jurisdiction of his

former residence while a resident of such former

state or jurisdiction.

STATEMENT OF THE CASE

INTRODUCTION

The United States, on behalf of unidentified members of

the United States Congress, brought an action in the

United States District Court for the District of Maryland,

for declaratory and injunctive relief with respect to

whether or not members of the United States Congress

who represent states other than Maryland or who repre-

sent congressional districts situated in states other than

Maryland (sometimes collectively referred to as “non-

Maryland members”), but who actually reside in Maryland

while attending sessions of Congress in Washington, may

be subjected to Maryland’s individual income tax.'! The

complaint named as defendants the petitioners herein, the

State of Maryland and Louis L. Goldstein, Comptroller of

the Treasury of the State of Maryland. The complaint

asserted that Maryland was prohibited by federal law,

Pub. L. 95-67, (4 U.S.C. § 113), enacted July 19, 1977, from

treating non-Maryland members of Congress as residents

or domiciliaries of Maryland or from treating compensa-

tion paid by the United States to such non-Maryland

members as income for services performed within or from

sources within Maryland. The complaint further stated

‘ The complaint also sought refunds of such taxes as had

previously been collected by Maryland from the affected mem-

bers of Congress. The refunds were sought on behalf of the

payors and not on behalf of the Plaintiff. The district court did

not reach the refund issue, 488 F. Supp. at 350 (A. 8, n.9), and,

pursuant to Fed. R. Civ. P. 42(b), separated that issue from the

injunctive and declaratory relief claims. (A. 8).

)

that the prohibitions set forth in the preceding sentence

would have been in effect even in the absence of Pub. L.

95-67.

PROCEEDINGS IN THE District Court

In response to the complaint, petitioners filed a Motion

to Dismiss. The grounds set forth in the Motion to Dismiss

were, in pertinent part, as follows: failure to state a claim

upon which relief could be granted; lack of subject matter

jurisdiction; absence of a case or controversy between the

parties; lack of standing on behalf of the United States as

plaintiff; and a jurisdictional bar raised by the Tax

Injunction Act, 28 U.S.C. § 1341.2 The United States filed

an Opposition to the Motion to Dismiss. Thereafter, the

United States filed a Motion for Partial Summary Judg-

ment, and petitioners filed a Supplementary Motion to

Dismiss, or, In the Alternative, Motion for Summary

Judgment. After the United States filed its Opposition, a

hearing was held before the Honorable Frank A. Kauf-

man, United States District Judge, on November 9, 1978.

Judge Kaufman ruled that both motions for summary

judgment had to fail because the inferences went against

the maker of each motion. Thereafter, the parties filed an

Agreed Statement of Facts and extensive legal memor-

anda.

Virtually all of the facts before the District Court were

contained in the Agreed Statement of Facts. Those facts

relevant to the issues presented for review may be

summarized as follows:

Article 81, § 288(a) of the Annotated Code of Maryland

provides that every resident individual of the State of

Maryland is subject to a Maryland income tax on taxable

* The Motion to Dismiss also raised an Eleventh Amendment

defense to the refund claims.

net income. The word “resident” as used in § 288(a) is

defined in Article 81, § 279(i) as:

“An individual domiciled in this State on the last day

of the taxable year, and every other individual who,

for more than six months of the taxable year,

maintained a place of abode within this State,

whether domiciled in this State or not.”

Pursuant to Article 81, § 283(a), political subdivisions of

the State of Maryland are required to adopt local income

taxes as a percentage of the State income tax. The local

income taxes are collected by the State from taxpayers

subject to such taxes and remitted by the State to the

political subdivisions levying such taxes.

A bill substantially similar to Pub. L. 95-67 was passed

by the United States Congress in 1976 (S. 2447), but was

vetoed by President Ford on August 3, 1976. Legislative

history materials relative to the passage of S. 2447 and

Pub. L. 95-67° reflect that one of the purposes for the

passage of both bills was to memorialize the alleged

existence of the implied constitutional immunity asserted

by the United States to have already been in existence as

of the time of the passage of each bill. Following the

enactment of Pub. L. 95-67, and prior to the filing of the

complaint in this matter, several members of Congress

filed petitions in the Maryland Tax Court whereby they

sought tax refunds from the State of Maryland. At the

time of the filing of the Agreed Statement of Facts, two

petitions were still pending before the Maryland Tax

Court and trial dates had not yet been set.’

’ See H. Rep. 95-377, 95th Cong., 1st Sess. and S. Rep. 94-631,

94th Cong., 2d Sess.

* Though not reflected in the record, the Maryland Tax Court

subsequently scheduled hearings on the petitions filed by the

members of Congress. The hearings were postponed at the

request of counsel for the members of Congress pending the

desision of the District Court in the instant matter. The

hearings have not as yet been rescheduled by the Maryland Tax

Court.

It was further agreed that the non-Maryland members

of Congress were alleged by petitioners to be “residents” of

the State of Maryland under Article 81, § 279%i) solely

because those members maintained a place of abode

within Maryland for more than six months of the applic-

able taxable years. Some of the members have paid state

and local income taxes to Maryland: others have not.

In addition to the agreed facts set forth above. petition-

ers submitted, at the request of the District Court.

affidavits and statistical data bearing on the issue of the

impact on the federal government of the imposition of

Maryland’s income tax on the affected members of Con-

gress. This data reflected in part that for the ten year

period 1968-1977, only twenty-eight non-Maryland mem-

bers or former members of Congress filed Maryland

income tax returns. Those individuals filed a total of 132

returns. Thus, the Maryland income tax laws. as observed

by the members of Congress, affected only approximately

two and one-half percent of those members. Petitioners

were not able to determine how many members should

have filed Maryland tax returns but did not. The data

compild by petitioners further reflected that salaries paid

to members of Congress represented approximately .06%

(six hundredths of one percent) of the entire civilian

payroll. Since civilian payroll has represented an average

of approximately 13% of the total federal budget, congres-

sional salaries thus were shown to represent less than

-0001% (one ten thousandth of one percent) of the total

federal budget.

On March 31, 1980, Judge Kaufman filed an opinion

upholding the validity of Pub. L. 95-67. holding that the

United States had standing to bring the action, and

holding that the Tax Injunction Act did not erect a bar to

the maintenance of the action by the United States. 488 F.

Supp. 347 (A. 3-38). Because of his finding that Pub. L.

95-67 expressly exempted the affected members from

8 ‘

Maryland’s income tax, Judge Kaufman did not rule on

the United States’ claim of implied constitutional immun-

ity. 488 F. Supp. at 360 (A. 29). Pursuant to Fed. R. Civ. P

42(b), he separated all issues relating to the refunds

claimed from the issues with respect to the declaratory

and injunctive relief, and expressed no opinion on the

refund issue. 488 F. Supp. at 350 (A. 8). Also, on March

31, 1980, the District Court filed an order entering final

judgment in favor of the United States, declaring the

provisions of Pub. L. 95-67 to be valid, and enjoining

petitioners from subjecting any non-Maryland member of

Congress to any income tax levied by the State of

Maryland or any of its political subdivisions in contraven-

tion of any of the provisions of Pub. L. 95-67, 4 U.S.C.

$113 (A. 39-40).

Review By THE Court or APPEALS

On April 16, 1980, petitioners filed their Notice of

Appeal to the circuit court. Jurisdiction in the circuit court

was conferred by 28 U.S.C. § 1291. Briefs were filed, and

the case was argued on December 3, 1980 before the panel

of Judges Winter, Sprouse and Ervin. On December 31,

1980, the circuit court filed a two page per curiam opinion

which noted the respective contentions of the parties and

concluded that “we affirm for reasons sufficiently stated by

the district court.” 636 F.2d at 75 (A. 2).

REASONS FOR GRANTING THE WRIT

I, |

IN THE DELICATE AREA OF FEDERAL-STATE #t LATIONS, CON-

GRESSIONAL ENACTMENTS, SUCH AS PUB. L. 95-67, WHICH DIMIN-

ISH THE FUNDAMENTAL, SOVEREIGN POWER OF THE STATES TO

LEVY TAXES SHOULD NOT BE JUDICIALLY SANCTIONED WITH-

OUT FULL INQUIRY INTO THE UNDERLYING CONSTITUTIONAL

BASIS FOR SUCH AN ENACTMENT.

By Pub. L. 95-67, the Congress of the United States

exempted its own members’ who resided within Maryland,

from Maryland’s income tax laws. The authority on which

The exemption did not apply to the ten members of Congress

representing Maryland and its eight congressional districts.

the exemption was enacted — and on which it was

sustained below — was that Congress has the power to

enact such laws as are “necessary and proper” (U. S.

Const., art. I, § 8, cl. 18) to carry into execution the powers

granted to the Congress by the Constitution.

Overlooked, however, by the courts below were two

indisputable truisms: (1) the power to tax is a basic

attribute of the sovereignty of the states and (2) while

Congress may determine the “necessary and proper”

means for exercising its power, it is for the courts to

determine if the object of the legislation is a constitu-

tionally proper one. The failure of the courts below to

recognize and give credence to these truisms has resulted

in a decision, which if not reversed by this Court, will

simultaneously abrogate a substantial portion of the

sovereignty of the states and disrupt the balance of powers

inherent in the Constitution by exalting the legislative

function, at the expense of the judiciary.

The State is, of course, a “coordinate element in the

system established by the Framers for governing our

Federal Union.” National League of Cities v. Usery, 426

U.S. 833, 849 (1976). Powers admittedly possessed by

Congress to regulate individuals and businesses do not

necessarily extend to an asserted “congressional authority

directed, not to private citizens, but to the States as

States.” Id. at 845.

No function of the State is a more basic attribute of the

State as a State than is the power to tax. Bode v. Barrett,

344 U.S. 583, 585 (1953), and Nathan v. Louisiana, 49 U.S.

(8 How.) 73, 82 (1850). This power is fundamental to the

very existence of the States. State Board of Tax Commis-

sioners v. Jackson, 283 U.S. 527, 537 (1931). In the context

of the federal system of dual sovereignty, the exercise of

this power is subject to the restraints of the federal

Constitution and the exercise of federal power within its

proper sphere. However, the Constitution does not express-

ly or impliedly forbid a state to tax the compensation of

members of Congress who reside in that state for the

purpose of attending sessions of Congress in Washington.

Moreover, the exercise of federal power to enact a statute

immunizing congressional compensation from such state

taxation, 4 U.S.C. §113, must, like all other federal

enactments, serve a demons‘~able federal interest. As

$113 protects only the essentially private, pecuniary

interests of persons who also serve as federal officials,

Congress has exceeded its authority in enacting this

statute and has impermissibly encroached on the power of

the states to tax persons within their jurisdictions.

The Constitution recognizes the fundamental import-

ance of the power of the states to levy taxes by imposing

few restraints on the exercise of this power. Thus, art. I,

$10, cl. 2 generally forbids the states from levying taxes

on either imports or exports. However, there is no express

exemption of congressional compensation from state taxa-

tion. Indeed, express exemption from the laws of the states

for members of Congress is limited to, the privilege from

civil arrest while attending or going to or from sessions of

Congress and the Speech or Debate privilege (art. I, § 6,

cl. 1). The power of the states to levy taxes is, of course,

subject to certain implied limitations, such as that of the

Supremacy Clause, art. VI, cl. 2. This principle was fully

developed for the first time in McCulloch v. Maryland, 17

U.S. (4 Wheat.) 316, 425-37 (1819), in which Chief Justice

Marshall concluded that

“|The states have no power, by taxation or otherwise,

to retard, impede, burden, or in any manner control

the operations of the constitutional laws enacted by

Congress to carry into execution the powers vested in

the general government.” Jd. at 436.

In reaching its decision, the Court recognized that the

states’ power of taxation is of “vital importance,” Jd. at

425, and particularly emphasized that the tax in question

was a discriminatory levy on the United States alone and

was, therefore, not subject to the political check which

would have been present had the tax also applied to

constituents of the state legislature. Jd. at 428-29.

Although for over a century following the decision in

McCulloch, supra, the Court gave an increasingly expan-

Sive reading to the Supremacy Clause as a limit on the

power of state taxation, see e.g. Dobbins v. Commissioner

of Erie County, 41 U.S. (16 Peters) 435 (1842) and New

York ex rel. Rogers v. Graves, 299 U.S. 401 (1937), this

trend was reversed by this Court’s decision in Graves v.

New York ex rel. O’Keefe, 306 U.S. 466 (1939). In O’Keefe,

the Court held that the compensation of federal employees

is not impliedly immune under the federal Constitution

from nondiscriminatory state taxation for if such immun-

ity were allowed “it would impose to an inadmissible

extent a restriction on the taxing power which the

Constitution has reserved to the state governments.” Jd. at

487. In reaching its decision, the Court noted that the

salary paid to a federal employee is the private property of

that person and that an income tax was no longer

regarded, either legally or economically, as a tax on the

source of income. Jd. at 480. As the tax could not be

regarded as a burden on the federal government itself.

there was no basis for extending the government’s implied

immunity from state taxation to the compensation of

federal employees. Jd. at 486. Although in the instant

case, the District Court declined to reach the issue (A.

29), O'Keefe suggests that congressional compensation,

as the private property of the members, is not impliedly

immune from state taxation, either in their home state or

elsewhere.

In O’Keefe, the Court left open the question of whether

Congress could, by statute, confer an immunity from state

taxation broader than implied constitutional immunity.

O’Keefe at 478-79. Congress is, of course, authorized to

make all laws which are “necessary and proper” to carry

out the delegated powers. (art. I, § 8, cl. 18). Moreover, this

Clause has been expansively interpreted to mean

“Let the end be legitimate, let it be within the scope

of the constitution, and all means which are plainly

adapted to that end, which are not prohibited, but

consistent with the letter and spirit of the constitu-

tion, are constitutional.” McCulloch v. Maryland,

supra, at 421.

While Congress has broad discretion to select the means to

carry out the delegated powers, it is clearly a matter for

the Courts, not Congress, to decide if the end or object of

the legislation is indeed legitimate.

Judicial scrutiny is particularly appropriate when Con-

gress has not only acted to diminish one of the most

fundamental powers of the states, the power to tax, but

has done so for the personal, pecuniary benefit of its own

members. Unfortunately, the District Court (and, on

appeal, the circuit court) completely abdicated its responsi-

bility to determine if § 113 serves a demonstrable federal

purpose. 488 F. Supp. at 356-58 (A. 20-22). In a misguided

application of the separation of powers principle, the Court

completely deferred to the judgment of Congress in this

matter:

“Accordingly if Congress determines that taxes

such as the Maryland taxes in question impose an

undue burden on the federal government and thus

impede Congress’ ability effectively to execute any or

all of its constitutional powers, Congress possesses

the power under the Constitution to enact whatever

reasonably related legislation it deems ‘necessary and

proper’ in order to alleviate that substantial burden

and to enable it thereby to carry into execution its

constitutional powers.”

488 F. Supp. at 356 (A. 21). However, it is the courts —

not the Congress — charged with determining both the

legitimacy of the “end” to be served and whether that end

is “within the scope of the constitution”. McCulloch v.

Maryland, supra. Not surprisingly, and not for the first

time, Congress was able to equate its own personal

pecuniary interest with the national interest.

In O’Keefe, as noted, the Court concluded that a state

tax on the compensation of federal employees was not a

tax on its source, so that, clearly, a nondiscriminatory

state tax on congressional compensation cannot be re-

garded as a tax on Congress or the exercise of its

legislative power. Accordingly, there is no federal interest

which is protected by $113. The fact that members may

live in Maryland only for the purpose of attending sessions

of Congress does not supply this interest, for the members

are not required to live in Maryland. They discharge no

congressional duties while in Maryland and their presence

in the state is a matter of choice, not necessity. While it is

true that members from distant states must maintain

living quarters in the vicinity of the Capitol in Washing-

ton where the Houses of Congress meet, it was for that

very reason that the State of Maryland ceded jurisdiction

over what is now the District of Columbia to the Federal

Government. Ch. 45, Laws of Maryland, 1791. In exercis-

ing its exclusive power to legislate for the District, art. I,

§ 8, cl. 17, Congress has enacted legislation to exempt its

members from the local income tax. District of Columbia

Revenue Act of 1949, Title IV, Sec. 401, 63 Stat. 129. (D.

C. Code, Sec. 47-1551c(s)).

It is the fact that members of Congress are not required

to reside in Maryland which distinguishes this case from

Dameron v. Brodhead, 345 U.S. 322 (1953), which upheld

the Soldiers and Sailors Civil Relief Act, 54 Stat. 1178, as

amended, 56 Stat. 777, 58 Stat. 722 (50 U.S.C. App. 501,

574) on which $113 is modeled.’ Although apparently

passed to deal with the problem of double taxation, the

Court understood the enactment to have the effect of

immunizing military personnel from local property and

income taxes in jurisdictions where they are stationed.

Dameron at 325-26. The Court noted that the duties of

military personnel are directly related to activities which

the Constitution delegates to the federal government, that

is, the power to declare war, art. I, § 8, cl. 11, and the

power to raise and support armies, art. I, § 8, cl. 12, and

concluded that the enactment was a necessary and proper

means of carrying out these powers. Dameron at 325.

However, a crucial factor in its decision was the fact that

military personnel, as part of their duties, can be required

to live in states other than their home states. Dameron at

324 and 326. This is clearly not the case with members of

Congress who may, but are not required to, live in

Maryland, in order to discharge their congressional duties.

Thus, the federal interest which is served by the Soldiers

* See H. Rept. 95-377 at 3 and S. Rept. 94-631 at 6 and 7. Sec.

113, which was enacted by Pub. L. 95-67, was introduced on

May 4, 1977 as H.R. 6893 by Rep. George Danielson and was

referred tu the Committee on the Judiciary which reported the

bill favorably on June 1, 1977, H. Rep. 95-377, 95th Cong., Ist

Sess. The bill was considered and passed by the House of

Representatives on June 6, 1977, 123 Cong. Rec. H 5441-5464

(daily ed.). In the Senate, the bill was referred to the Committee

on the Judiciary which reported the bill favorably with an

amendment to give it retroactive effect. The Committee did not

submit a written report on the bill. However, its report, S. Rep.

94-631 on S. 2447 of the 94th Congress, was made part of the

record during the Senate’s consideration, amendment and

passage of H.R. 6893 on June 16, 1977. 123 Cong. Rec. S

10020-10025 (daily ed.). S. 2447 from the 94th Congress is

identical to H.R. 6893 as it passed the House of Representatives.

S. 2447 was passed by both Houses but was vetoed by President

Ford. The House of Representatives concurred in the Senate

amendment to H.R. 6893 on July 12, 1977, 123 Cong. Rec. H

6877-6883 (daily ed.) and the bill was approved by President

Carter on July 19, 1977.

and Sailors Civil Relief Act cannot be said to be served by

Pub. L. 95-67.

Although Respondent has argued that $113 may be

regarded as a necessary and proper means of Congress

exercising its power to compensate its members, art. I, § 6,

cl. 1, this power clearly relates to appropriating money

from the federal treasury and quite clearly cannot,

through the necessary and proper clause, be used to

immunize this compensation from subsequent state taxa-

tion. To permit the enactment of such immunity would be

to ignore the well-established distinction between provid-

ing compensation from the public purse and its subsequent

taxation as private property. Were this distinction not

recognized, Congress would have repeatedly violated art.

III, $1 of the Constitution, which forbids Congress to

diminish the compensation of federal judges, by subjecting

the salaries of federal judges to income tax. Such taxation

was upheld in O’Malley v. Woodrough, 307 U.S. 277, 282

(1939), in which the Supreme Court made the following

observation:

“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 con-

stitution and laws they are charged with admi-

nistering.”

As there is in the instant case no demonstrable federal

interest involved, Congress is without power to immunize

the private property of its members, including their

compensation, from the fundamental power of the states to

tax persons within their jurisdiction. Congress has, there-

fore, exceeded its authority in enacting Pub. L. 95-67.

Furthermore, the courts below erroneously deferred to the

self-serving congressional determination of the underlying

constitutional authority to enact the exemption. The

courts should have inquired into the existence vel non of a

federal interest to be served, for only if there were such an

interest could Congress have proceeded constitutionally

under the “necessary and proper” clause. Such an inquiry

would have revealed the total absence of a federal, as

opposed to a private, interest. Plenary consideration by

this Court is necessary to undo the harmful errors

committed below.

II.

THE UNITED STATES DOES NOT HAVE AN UNLIMITED RIGHT,

PARTICULARLY IN MATTERS OF STATE TAXATION, TO COME

BEFORE ITS COURTS AS A SURROGATE PLAINTIFF FOR MEMBERS

OF CONGRESS, SEEKING DECLARATORY AND INJUNCTIVE RE-

LIEF TO WHICH THE MEMBERS THEMSELVES WOULD NOT HAVE

BEEN ENTITLED.

The overriding issue presented by this litigation is the

authority of the State of Maryland to subject to its income

tax laws non-Maryland members of the United States

Congress who maintain places of abode within Maryland

for more than six months of the taxable year. If Maryland

has such authority, additional taxes are due from many

members of Congress and refunds are due to none. If

Maryland lacks such authority, further taxes are not due

from such members of Congress and some may be due

refunds. The sole parties who stand to gain or lose from

this litigation are the affected members of Congress

individually and the State of Maryland; the United States

will not be affected by the outcome.

However, it is not the members of Congress who have

instituted this action, but rather the United States. While

it may be true that the United States seeks to represent

the interests of the members of Congress, constitutional

limitations on federal court jurisdiction restrict such

access to the true party in interest. “The fundamental

aspect of standing is that it focuses on the party seeking to

get his complaint before a federal court and not on the

issues he wishes to have adjudicated.” Flast v. Cohen, 329

U.S. 83, 99 (1968) (emphasis added). The United States

may wish for its own reasons to submit the issues of this

matter in its own name; nevertheless, the jurisdictional

concept of standing should have barred the District Court

from entertaining the suit.

The test for standing, as it has been repeatedly stated, is

whether the complaining party has “alleged such personal

stake in the outcome of the controversy as to assure that

concrete adverseness which sharpens the presentation of

issues upon which the court so largely depends for

illumination of difficult constitutional questions.” Baker v.

Carr, 369 U.S. 186, 204 (1962). The mere fact of a party’s

interest or concern over the results of a case, in the

absence of its concrete adverseness, is not sufficient to

establish standing so as tc invoke federal jurisdiction.

Because the interests of the United States are not

adverse to the interests of the State of Maryland and

Comptroller Goldstein in the instant matter, the com-

plaint should have been dismissed.

The courts below disagreed, citing, in the words of the

District Court, authority dating back to the 1880's “recog-

nizing the right of the United States to sue to protect not

only its proprietary interests, but also the interests of the

public at large.” 488 F. Supp. at 361 (A. 30). Yet, the

District Court made no independent finding that the

United States was seeking to protect something other than

the private, pecuniary rights of its members. The Court

acceded to the legislative determination that the public

interest is served by exempting from the burdens of

Maryland income tax those members of Congress who

maintain Maryland abodes. The circuit court adopted the

views of the District Court. Thus, only this Court can now

make the proper inquiry and seek to identify the alleged

2.4

public interest to be protected. Upon finding that the only

interest is a private, and not a public one, this Court will

conclude that the District Court should never have

entertained the lawsuit in the first instance.

Such a conclusion is all the more appropriate since the

state action challenged by the United States involved the

assessment and collection of state taxes. The Tax Injunc-

tion Act, 28 U.S.C. § 1341, provides as follows:

“The district courts shall not enjoin, suspend or

restrain the assessment, levy or collection of any tax

under State law where a plain, speedy and efficient

remedy may be had in the courts of such State.”

Despite this unambiguous language, the District Court

denied the applicability .° the Tax Injunction Act to

actions brought by the United States as plaintiff, quoting

Department of Employment v. United States, 385 U.S. 355,

358 (1966) (A. 37-38):

“(Wile conclude, in accord with an unbroken line of

authority and convicing evidence of legislative pur-

pose that § 1341 does not act as a restriction upon

suits by the United States to protect itself and its

instrumentalities from unconstitutional state exac-

tions.”

Petitioners acknowledge that if the interest to be protected

involves the United States itself, or its instrumentalities,

then § 1341 does not raise a jurisdictional bar to a suit by

the United States. However, as demonstrated above, the

only interest to be protected in the instant case was a

private one. Clearly, the individual members themselves

could not have successfully invoked the jurisdiction of the

district court to obtain the declaratory and injunctive

relief sought on their behalf by the United States. The

courts below should not have allowed the United States to

circumvent the Tax Injunction Act for them.

CONCLUSION

Petitioners urge review of the judgment of the circuit

court which affirmed the district court. If allowed to stand,

the decisions below will produce three independent and

ill-advised results: (1) the diminution of a state’s sovereign

power to tax; (2) the enhancement of legislative power at

the expense of judicial power, in the determination of the

constitutionality of a congressional enactment ostensibly

under the “necessary and proper” clause; and (3) the

expansion of federal court jurisdiction to a surrogate

plaintiff whose interest is not adverse to the defendants, in

order to circumvent a clearly articulated and well-

recognized jurisdictional bar.

Petitioners respectfully urge this Court to grant a writ

of certiorari to the United States Court of Appeals for the

Fourth Circuit to review and ultimately reverse the

judgment rendered below.

Respectfully submitted,

STEPHEN H. Sacus

Attorney General of Maryland

GERALD LANGBAUM

Assistant Attorney General

RicHarpD E, [sraev

Assistant Attorney General

State Treasury Building

P. O. Box 466

Annapolis, Maryland 21404

301-269-2808

Attorneys for the Petitioners.

APPENDIX

United States of America, Appellee,

State of Maryland and Louis L.

Goldstein, Comptroller of the Treasury

of the State of Maryland, Appellants.

No. 80-1298.

—__

United States Court of Appeals,

Fourth Circuit.

Argued Dec. 3, 1980.

Decided Dec. 31, 1980.

———_—

Before WINTER, SPROUSE and ERVIN, Circuit

Judges.

PER CURIAM:

The State of Maryland appeals from an order granting

summary judgment to the United States in a suit in which

the United States sought and obtained a declaration that 4

U.S.C. §113, as added by P.L. 95-67 (July 19, 1977),

prohibits Maryland from levying state and local income

taxes against members of Congress from states other than

Maryland who reside in Maryland for the purpuse of

attending sessions of Congress. In addition to granting a

declaratory judgment, the district court enjoined collection

of Maryland income taxes.

Maryland interprets its tax laws to permit state and

local taxation of any member of Congress who maintains a

place of abode within the State for more than six months

of the taxable year. See Md. Code Ann., Art. 81, § 279i).

By its terms, 4 U.S.C. § 113 prohibits any state in which a

member of Congress maintains a place of abode for the

purpose of attending sessions of Congress from treating

him as a resident of that state for income tax purposes.

Maryland argues that the United States lacks standing

to bring this suit and that the Tax Injunction Act, 28

U.S.C. § 1341, deprived the district court of jurisdiction to

grant declaratory or injunctive relief. On the merits, the

State contends that Congress exceeded its power under the

Constitution in enacting Public Law 95-67. Having consi-

dered the record of the proceedings below. the briefs. and

the arguments of counsel before this court, we affirm for

reasons sufficiently stated by the district court. United

States v. Maryland, 488 F. Supp. 347 (D. Md. 1980).

United States of America

State of Maryland; and Louis L.

Goldstein, Comptroller of the Treasury

of the State of Maryland.

Civ. No. K-78-1287.

—_—————_

United States District Court,

D. Maryland.

March 31, 1980.

FRANK A. KAUFMAN, District Judge.

Can a Member of Congress who represents a state other

than Maryland and who maintains an abode in Maryland

so that he can perform his duties in Washington, D. C. be

subjected to individual income taxation imposed by Mary-

land and/or its political subdivisions in contravention of 4

U.S.C. § 113? The United States says “No”: Maryland and

its Comptroller of the Treasury say “Yes.”!

On July 19, 1977, the following statute, now codified as

4 U.S.C. $113, became law and provides in relative part:

$113. Residence of Members of Congress for

State income tax laws

(a) No State, or political subdivision thereof. in

which a Member of Congress maintains a place of

abode for purposes of attending sessions of Congress

' The Comptroller administers the provisions of Maryland law

relative to imposition, assessment, and collection of Maryland

state and local individual income taxes. Md. Ann. Code, Art. 81,

§ 304.

may, for purposes of any income tax (as defined in

section 110(c) of this title) levied by such State or

political subdivision thereof—

(1) treat such Member as a resident or domi-

ciliary of such State or political subdivision

thereof; or

(2) treat any compensation paid by the United

States to such Member as income for services

performed within, or from sources within, such

State or political subdivision thereof,

unless such Member represents such State or a

district in such State. —

That statute prohibits any state in which a Member of

Congress maintains an abode for purposes of attending to

his duties in Washington, D. C., from imposing a state or

local income tax on such Member. The practical effect,

however, of that legislation is narrowly focused upon

Maryland, Virginia and the District of Columbia since

geographical considerations virtually require that Mem-

bers of Congress maintain places of abode in or near the

metropolitan area of Washington, D. C., i.e., either the

District of Columbia, Virginia or Maryland. Both the

District of Columbia and Virginia, by their own respective

legislative enactments, presently exempt Members of

Congress, representing jurisdictions other than Virginia

and the District of Columbia respectively, who maintain

abodes within their respective borders from state and local

* That 1977 enactment was not the first attempt by Congress

to exempt its Members from income taxation by states other

than the states from which they were elected. In 1975, bills

embodying provisions virtually identical to those of 4 U.S.C.

$113, were introduced in both Houses of Congress. The Senate

bill was passed by both Houses in 1976, but was vetoed by

President Ford on August 3, 1976. See S. 2447 and H.R. 8904,

94th Cong., 2nd Sess. The 1977 statute, by its own terms,

became “effective with respect to all taxable years, whether

beginning before, on, or after the date of the enactment of this

Act.” See Subsection (1)(c) of Public Law 97-67.

income taxes.’ Accordingly, the 1977 federal legislation, in

reality, affects only Maryland.‘

The facts and the relevant provisions of Maryland’s

income tax laws are not in dispute, and can be summa-

rized as follows:

1. Every “resident” of Maryland is subject to state

individual income taxation on his taxable net income.*

2. The term “resident” means “... an_ individual

domiciled in this State on the last day of the taxable year,

and every other individual who, for more than six months

of the taxable year, maintained a place of abode within

this State, whether domiciled in this State or not...”

3. Each of Maryland’s political subdivisions is required

to adopt a local income tax calculable as a percentage of

the State income tax.’

4. Those local income taxes are administered and

collected by the Comptroller of the Treasury. The State,

upon collection of such taxes, remits the same to the

political subdivision which has levied the tax.’

* D.C. Code § 47-1551c; Virginia Code, Sec. 58-151(e)(1)(i).

* The Senate Report relating to S. 2447, the bill introduced in

1976, see n.2, supra, states, inter alia, as follows:

Members of Congress who for reasons of distance are

required to maintain their abode near the United States

Capitol in order to discharge their duties normally do so in

the states of Virginia and Maryland or in the District of

Columbia.

The District and the Commonwealth of Virginia both

expressly exempt Members of the Congress under their

income tax statutes. D.C. Code § 47-551(C\S), Virginia

Code, Sec. 58-151.02(e)(1)(i).

No similar exemption is provided by the State of

Maryland.

S. Rep. No. 94-631, 94th Cong., 2d Sess. 2 (1976).

* Md. Ann. Code, Art. 81, § 288(a).

* Md. Ann. Code, Art. 81, § 279(i).

’ Md. Ann. Code, Art. 81, § 283(a).

* Md. Ann. Code, Art. 81, § 283(c).

—_—

5. Md. Ann. Code, Art. 81, § 290, provides:

Credit allowed residents.

(a) Whenever a resident individual of this State

has become liable for income tax to another state

upon such part of his net income for the taxable year

as is properly subject to taxation in such state, the

amount of income tax payable by him under this

subtitle shall be reduced by the amount of the income

tax so paid by him to such other state upon his

producing to the Comptroller satisfactory evidence of

the fact of such payment; but application of such

credit shall not operate to reduce the tax payable

under this subtitle to an amount less than would have

been payable if the income subjected to tax in such

other state were ignored. The credit provided for by

this section shall not be granted to a taxpayer when

the laws of such other state allow a credit to such

taxpayer substantially similar to that granted by

§ 291 hereof.

(b) Notwithstanding the aforegoing, with respect to

the taxable year 1974 and each taxable year thereaf-

ter, the credit provided for by this section operates to

reduce only the State income tax payable under this

subtitle and does not operate to reduce any local

income tax imposed under § 283 of this article.

6. Md. Ann. Code, Art. 81, § 291, provides in relevant

part: 2

Credit against tax allowed nonresidents.

(a) When allowed; amount. — Whenever an indi-

vidual not a resident of this State has become liable

for income tax to the state where he resides upon his

income for the taxable year including that taxable in

this State, the amount of income tax payable by him

under this subtitle shall be credited with such

proportion of the tax so payable by him to the state

where he resides, as his net income subject to taxation

under this subtitle bears to his entire income upon

which ‘the tax so payable to such other state was

imposed; but such credit shall be allowed only if the

laws of said state (i) grant a substantially similar

credit to residents of this State subject to income tax

under such laws, or (ii) impose a tax upon the income

of its residents subject to taxation in this State and

exempt from taxation the income of residents of this

State. No credit shall be allowed against the amount

of the tax on any income taxable under this subtitle

which is exempt from taxation under the laws of such

other state.

7. “|Ljocal income tax,” as that term is used in Section

290(b), refers to those local income taxes which are

required by Section 283(a).

8. Defendants maintain — and it is so assumed arguen-

do in this opinion — that any Member of Congress who

maintains a place of abode within Maryland for more than

six months of a given taxable year is a “resident” of

Maryland pursuant to § 279(i) and, thus, is subject to

Maryland and local income taxes for that taxable year.

9. Following the 1977 federal enactment, and prior to

the institution of the within case, several Members of

Congress who maintain abodes in Maryland but who

represent states other than Maryland filed claims with the

Comptroller seeking refunds of taxes paid. All such refund

claims were denied by the Comptroller on the basis that

the 1977 federal statute constitutes an unconstitutional

intrusion by the federal government into the reserved

taxing powers of the states.

10. Thereafter, pursuant to Md. Ann. Code, Art. 81,

8$229 and 310, at least several of those Members of

Congress appealed those denials to the Maryland Tax

Court. One of those appeals was noted in November 1977;

another in July 1978. During February 1980, following the

institution of this case, counsel for those appellants

requested the Maryland Tax Court to continue those cases

on its docket pending this Court’s disposition of the within

action. The Maryland Tax Court seemingly has in fact

stayed those cases.’

° Herein, the United States seeks not only injunctive and

declaratory relief which will require the State of Maryland to

cease and desist from collecting income taxes from Members of

Congress, but also an Order of this Court requiring the refund of

those taxes collected by Maryland in contravention of the 1977

law. Because those refund claims pose Eleventh Amendment,

retroactively, and other issues unrelated to the question of

validity of the 1977 legislation, the parties nave asked — and

this Court has agreed — to permit the refund question to be

presented at a later date. Accordingly, the issues relating solely

to the refund relief sought by the United States herein are not

reached in this opinion and are separated by this Court,

pursuant to Federal Civil Rule 42(b), in an Order entered today

from the issues relating to the injunctive and declaratory relief

sought herein by the United States. Whether or not it will be

necessary for this Court to reach, at a subsequent time, the

refund issues may depend upon the results of the Maryland Tax

Court litigation.

Defendants have initially argued that, even if the United

States possesses standing to maintain this case, see p. 360 et

seq., infra, this Court should abstain under the principles

enunciated in Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27

L. Ed. 2d 669 (1971), and its progeny because of the pendency of

the aforesaid appeals to the Maryland Tax Court. However,

during a hearing in this case on November 9, 1978, counsel for

defendants indicated that, in view of the substantial backlog of

cases in the Maryland Tax Court, defendants were no longer

pressing that Younger abstention argument.

If, hereafter, this Court’s within grant of injunctive and

declaratory relief becomes final, it may well be that that result

will cause the Maryland Tax Court to grant the refunds sought

in the proceedings before it and/or cause the Comptroller of the

Treasury of the State of Maryland to make refunds to those

Members of the Congress affected by this opinion, perhaps

regardless of whether or not they have refund claims pending

before the Comptroller or the Maryland Tax Court. However, if

all refund claims sought herein are not disposed of in a mar.ner

satisfactory to the United States, the United States will be given

the opportunity timely to seek refund relief in this Court. As of

this time, this Court is today entering a final Judgment Order

pursuant to Federal Civil Rule 54(b) as to the validity of the

1977 federal legislation and the within grant of injunctive and

declaratory relief and is separating and staying the refund

issues as indicated supra.

11. Several non-Maryland Members of Congress, includ-

ing the two whose appeals are presently pending before

the Maryland Tax Court, have paid state and local income

taxes to Maryland." Certain other non-Maryland Members

of Congress who maintain Maryland abodes have seeming-

ly not paid such taxes.

VALIDITY OF THE 1977 ACT

It has long been held that the federal government and

its properties, functions, and instrumentalities enjoy im-

plied constitutional immunity from state taxation. In

McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 4 L. Ed.

579 (1819), the Supreme Court held that a state may not,

through regulation or taxation, interfere with an in-

strumentality chosen by Congress to exercise the powers

vested in the federal government by the Constitution.

McCulloch involved a stamp tax imposed by Maryland on

bank notes issued by “any Bank . . . established without

authority from the State.” The only such bank in Mary-

land was the Baltimore branch of the Bank of the United

States, a corporation created and chartered by Act of

Congress. Mr. Chief Justice Marshall, writing for a

unanimous Court, noted that Congress had created nation-

al banks to carry out one or more of the federal

government’s enumerated constitutional functions.

However, he also noted the importance of the taxing power

of each of the states:

* * * It is admitted that the power of taxing the

people and their property is essential to the very

existence of government, and may be legitimately

exercised on the objects to which it is applicable, to

the utmost extent to which the government may

choose to carry it. The only security against the abuse

of this power is found in the structure of the

government itself. In imposing a tax the legislature

acts upon its constituents. This is in general a

sufficient security against erroneous and oppressive

taxation.

See n.9 supra.

10a

The people of a state, therefore, give to their govern-

ment a right of taxing themselves and their property,

and as the exigencies of government cannot be

limited, they prescribe no limits to the exercise of this

right, resting confidently on the interest of the

legislator, and on the influence of the constituents

over their representative, to guard them against its

abuse. Id. at 428.

Continuing, the Chief Justice wrote:

But the means employed by the government of the

Union have no such security, nor is the right of a

state to tax them sustained by the same theory. Those

means are not given by the people of a particular

state, not given by the constituents of the legislature,

which claim the right to tax them, but by the people

of all the states. They are given by all, for the benefit

of all — and upon theory, should be subjected to that

government only which belongs to all. Id. at 428-29.

{W]hen a state taxes the operations of the govern-

ment of the United States, it acts upon institutions

created, not by their own constituents, but by people

over whom they claim no control. It acts upon the

measures of a government created by others as well

as themselves, for the benefit of others in common

with themselves. Id. at 435.

Thus, where an instrumentality of the federal govern-

ment has been created by Congress for the benefit of all

and where Congress has determined that the efficient

operation of that instrumentality affects the interests of

all, the power to tax or control that instrumentality cannot

be left to the legislature of one or more of the states:

In the legislature of the Union alone, are all

represented. The legislature of the Union alone,

therefore, can be trusted by the people with the power

of controlling measures which concern all, in the

confidence that it will not be abused. Id. at 431.

* * * * * *

lla

The court has bestowed on this subject its most

deliberate consideration. The result is a conviction

that the states have no power, by taxation or

otherwise, to retard, impede, burden, or in any

manner control the operations of the constitutional

laws enacted by Congress to carry into execution the

powers vested in the general government. This is, we

think, the unavoidable consequence of that suprema-

cy which the constitution has declared. Id. at 436."

In the years since McCulloch, the Supreme Court has

further defined the scope of the federal government's

immunity from state taxation and has recognized that

Congress possesses an implied constitutional power to

grant express tax immunity to its instrumentalities,

agents, or contractors where Congress deems such immun-

ity necessary for the carrying out of certain of its

enumerated constitutional powers. In Graves v. New York,

306 U.S. 466, 478, 59 S. Ct. 595, 597, 83 L. Ed. 927, 932

(1939), Mr. Justice Stone wrote:

[T]he federal government is one of delegated powers

in the exercise of which Congress is supreme; so that

every agency which Congress can constitutionally

create is a governmental agency. And since the power

to create the agency includes the implied power to do

whatever is needful or appropriate, if not expressly

prohibited, to protect the agency, there has been

attributed to Congress some scope, the limits of which

it is not now necessary to define, for granting or

withholding immunity of federal agencies from state

taxation. * * *

The scope of this Congressional power to grant tax

exemptions as an incident to the exercise of authority

‘The Supremacy Clause, which is found in Article VI, Cl. 2

of the Constitution, provides as follows:

This Constitution, and the Laws of the United States which

shall be made in Pursuance thereof: and all Treaties made.

or which shall be made, under the Authority of the United

States, shall be the supreme Law of the Land: and the

Judges in every State shall be bound thereby, any Thing in

the Constitution or Laws of any State to the Contrary

notwithstanding.

12a

specifically granted by the Constitution has seemingly

never been specifically limited, if it is indeed capable of

the same. However, the case law does suggest that where

Congress has determined that an express tax exemption is

necessary to further the exercise of one of its constitution-

al functions, that determination is to be afforded great

deference by the courts. Professor Tribe has put it this way

in his treatise on Constitutional law:

In those rare cases where Congress has expressly

granted or withheld regulatory or tax immunity to

certain of its instrumentalities, agents, or contractors,

the validity or invalidity of state action is definitively

settled by such federal legislation. L. Tribe, American

Constitutional Law, § 6-28, at 391.

In City of Cleveland v. United States, 323 U.S. 329, 65 S.

Ct. 280, 89 L. Ed. 274 (1944), the United States sought to

enjoin local officials in the state of Ohio from attempting

to assess and collect state taxes on lands acquired by

condemnation by the Federal Public Housing Authority

which Congress had created in order to assist the states

and their political subdivisions in the erection of low-cost

dwelling units. Congress had expressly exempted that

Authority, including its capital, income, assets, and prop-

erty, from all federal, state, and local taxation. 42 U.S.C.

$$ 1401, 1405(e). In upholding Congress’ power to exempt

the property in question from taxation, Mr. Justice

Roberts stated:

Challenge of the power of Congress to enact the

Housing Act must fail. And Congress may exempt

property owned by the United States or its in-

strumentality from state taxation in furtherance of

the purposes of the federal legislation. This is settled

by such an array of authority that citation would

seem unnecessary. |Footnotes omitted.] 323 U.S. at

333, 65 S. Ct. at 282."

In Pittman v. Home Owners’ Loan Corp., 308 U.S. 21, 60 S.

Ct. 15, 84 L. Ed. 11 (1939), Maryland attempted to assess its

mortgage recording tax upon a mortgage executed to the Home

Owners’ Loan Corporation in the face of 12 U.S.C. §§ 1461, 1463

in which Congress expressly declared the Corporation to be an

13a

Carson v. Roane-Anderson Co., 342 U.S. 232,72 S. Ct.

257, 96 L. Ed. 257 (1952), involved Tennessee use and

sales taxes on articles used by certain contractors in

performing their contracts with the Atomic Energy Com-

mission. Congress had expressly exempted “the Commis-

sion and [its] property, activities, and income” from all

state and local taxation. 42 U.S.C. § 1809. Mr. Justice

Douglas held the taxes invalid, concluding that the

contracts which the contractors had with the federal

government, and the performance thereunder, were “acti-

vities” of the Commission within the meaning of the

instrumentality of the United States and explicitly exempted its

capital, loans, and income from all state or municipal taxes. The

Corporation successfully prosecuted its mandamus suit to re-

quire the Clerk of the Superior Court of Baltimore to record the

Corporation’s mortgage without affixing stamps for the state

recording tax. Rejecting Maryland’s contention that Congress

had exceeded its constitutional power in exempting the Corpora-

tion from the non-discriminatory Maryland tax, Mr. Chief

Justice Hughes stated (at 32-33, 60 S. Ct. at 18):

Congress has not only the power to create a corporation

to facilitate the performance of governmental functions,

but has the power to protect the operations thus validly

authorized. “A power to create implies a power to pre-

serve.” McCulloch v. Maryland, supra (4) Wheat. p. 426, 4

L. Ed. 606). This power to preserve necessarily comes

within the range of the express power conferred upon

Congress to make all laws which shall be necessary and

proper for carrying into execution all powers vested by the

Constitution in the Government of the United States.

Const. Art. 1, $8, par. 18. In the exercise of this power to

protect the lawful activities of its agencies, Congress has

the dominant authority which necessarily inheres in its

action within the national field. [Citation omitted.] * * *

In this instance, Congress has undertaken to safeguard the

operations of the Home Owners’ Loan Corporation by

providing the described immunity. As we have said, we

construe this provision as embracing and prohibiting the

tax in question. Since Congress had the constitutional

authority to enact this provision, it is binding upon this

Court as the supreme law of the land.

See also, Federal Land Bank v. Bismarck Lumber Company, 314

U.S. 95, 62 S. Ct. 1, 86 L. Ed. 65 (1941).

l4a

federal statute. Mr. Justice Douglas had little difficulty in

upholding the Congressionally-authorized tax immunity:

The constitutional power of Congress to protect any of

its agencies from state taxation [citations omitted]

has long been recognized as applying to those with

whom it has made authorized contracts. |Citations

omitted.] Certainly the policy behind the power of

Congress to create tax immunities does not turn on

the nature of the agency doing the work of the

government. The power stems from the power to

preserve and protect functions validly authorized

[citations omitted] — the power to make all laws

necessary and proper for carrying into execution the

powers vested in the Congress. 342 U.S. at 233-34, 72

S. Ct. at 258.

The Soldiers’ and Sailors’ Civil Relief Act of 1940, as

amended, 50 U.S.C. App. § 501, et seq. and particularly

$574," provides that, for purposes of taxation, a member

'’ See Footnote on p. 12A.

50 U.S.C. App. $574 provides in relevant part:

Residence for tax purposes

(1) For the purposes of taxation in respect of any person,

or of his personal property, income, or gross income, by any

State, Territory, possession, or political subdivision of any

of the foregoing, or by the District of Columbia, such

person shall not be deemed to have lost a residence or

domicile in any State, Territory, possession, or political

subdivision of any of the foregoing, or in the District of

Columbia, solely by reason of being absent therefrom in

compliance with military or naval orders, or to have

acquired a residence or domicile in, or to have become

resident in or a resident of, any other State, Territory,

possession, or political subdivision of any of the foregoing,

or the District of Columbia, while, and solely by reason of

being, so absent. For the purposes of taxation in respect of

the personal property, income or gross income of any such

person by any State, Territory, possession, or political

subdivision of any of the foregoing, or the District of

Columbia, of which such person is not a resident or in

which he is not domiciled, compensation for military or

naval service shall not be deemed income for services

performed within, or from sources within, such State,

15a

of the military services does not lose his residence or

domicile in any state solely by reason of being absent

therefrom in compliance with military orders, and shall

not be deemed to have acquired a residence or domicile in

any state to which he happens to be assigned to duty

merely because of his presence in that state and his

absence from his original residence or domicile. That law

further expressly provides that a serviceman’s compensa-

tion for military or naval service “shall not be deemed [to

be] income for services performed within, or [derived] from

sources within,” any state of which the serviceman is not a

resident or domiciliary; and that a serviceman’s “personal

property shall not be deemed to be located or present in or

to have a situs for taxation in” any state, other than the

state of his own domicile, because he is living in such state

in order to perform his military duty. In Dameron v.

Brodhead, 345 U.S. 322, 73 S. Ct. 721, 97 L. Ed. 1041

(1953), an Air Force officer who was a resident and

domiciliary of Louisiana was assigned to military duty in

Colorado. When Colorado assessed taxes on the personal

property in his Denver apartment, the officer paid the tax

under protest and then brought a refund suit, alleging

that such application of the Colorado tax was forbidden by

the federal statute. Rejecting Colorado’s contention that

the federal statute was unconstitutional, Mr. Justice Reed,

for a majority of seven, wrote (at 324-325, 73 S. Ct. at 723):

The constitutionality of federal legislation ex-

empting servicemen from the substantial burdens of

seriate taxation by the states in which they may be

required to be present by virtue of their service,

Territory, possession, political subdivision, or District. and

personal property shall not be deemed to be located or

present in or to hve a situs for taxation in such State,

Territory, possession, or political subdivision, or district.

Where the owner of personal property is absent from his

residence or domicile solely by reason of compliance with

military or naval orders, this section applies with respect

to personal property, or the use thereof, within any tax

jurisdiction other than such place of residence or domicile.

regardless of where the owner may be serving in com-

pliance with such orders * * *.

l6a

cannot be doubted. Generally similar relief has often

been accorded other types of federal operations or

functions. And we have upheld the validity of such

enactments, even when they reach beyond the activi-

ties of federal agencies and corporations to private

parties who have been seen fit to contract to carry on

functions of the Federal Government. Carson v.

Roane-Anderson Co., 342 U.S. 232, 72 S. Ct. 257, 96

L. Ed. 257, and cases cited; cf. James v. Dravo

Contracting Co., 302 U.S. 134, 160, 161, 58 S. Ct. 208,

221, 82 L. Ed. 155 [172, 173] [114 A.L.R. 318].

Nor do we see any distinction between those cases

and this. Surely, the respondents may not rely on the

fact that petitioner here is not a business contractor.

He is not the less engaged in a function of the Federal

Government merely because his relationship is not

entirely economic. We have, in fact, generally recog-

nized the especial burdens of required service with

the armed forces in discussing the compensating

benefits Congress provides. Le Maistre v. Leffers, 333

U.S. 1, 68 S. Ct. 371, 92 L. Ed. 429; Boone v. Lightner.

319 U.S. 561, 63 S. Ct. 1223, 87 L. Ed. 1587. Cf. Board

of County Commissioners v. Seber, 318 U.S. 705, 63 S.

Ct. 920, 87 L. Ed. 1094. Petitioner’s duties are

directly related to an activity which the Constitution

delegated to the national government, that “to de-

clare War,” U.S. Const. Art. 1, § 8, cl. 11, and “to raise

and support Armies.” Ibid., cl. 12. Since this is so,

congressional exercise of a “necessary and proper”

supplementary power such as this statute must be

upheld. Pittman v. Home Owners’ Loan Corp., 308

U.S. 21, 32, 33, 60 S. Ct. 15, 17, 18, 84 L. Ed. 11 [16,

17] (124 A.L.R. 1263]; Federal Land Bank v. Bismarck

Co., 314 U.S. 95, 102-104, 62 S. Ct. 1, 5-6, 86 L. Ed. 65

(71, 72]; Carson v. Roane-Anderson Co., supra, 342

U.S. at 234, 72 S. Ct. at 258. What has been said in no

way affects the reserved powers of the states to tax.

For this statute merely states that the taxable

domicile of servicemen shall not be changed by

military assignments. This we think is within the

federal power.

17a

Speaking for himself and Mr. Justice Black, Mr. Justice

Douglas dissented, noting that the “power to tax is basic to

the sovereignty of the states” and concluding that the

“creation of islands of tax immunity [by Congress] should

therefore be sparingly made.” 345 U.S. at 329, 73 S. Ct. at

725. While he recognized that Congress has the power to

exempt a federal instrumentality and its functions from

state taxation or regulation in order to protect and

preserve that instrumentality, Mr. Justice Douglas con-

cluded that that Congressional power does not extend to

the granting of tax immunity to a federal employee in his

private capacity:

** * The power of Congress to withhold tax

immunity is clear. But to date the power of Congress

to create a tax immunity has been narrowly confined.

It stems from “the power to preserve and protect

functions validly authorized.” See Carson v. Roane-

Anderson Co., 342 U.S. 232, 234, 72 S. Ct. 257, 258,

96 L. Ed. 257 [261]. Up to the present the Court has

never held that the private affairs of a federal

employee can be made public affairs by Congress and

immune from state taxation. The question was indeed

reserved in Graves v. New York, supra 306 U.S. [466]

at 478, 479 [59 S. Ct. 595 at 597, 83 L. Ed. 927]. As

Mr. Justice Frankfurter stated in his concurring

opinion, id., 306 U.S. at 492, 59 S. Ct. at 604,

“Whether Congress may, by express legislation, re-

lieve its functionaries from their civic obligations to

pay for the benefits of the State governments under

which they live is a matter for another day.”

The federal property used by the soldier, his

activities as a federal employee, every phase of the

functions he performs for the Army are immune from

state taxation because his work is the work of the

national government. But the wages that he makes,

as Graves v. New York (US) supra, held, can be taxed

on a non-discriminating basis by the states. So can his

real and personal property. For in his private capacity

a federal employee is no different from any other

citizen. He receives protection and benefits from the

society which the states create and maintain. Their

18a

police, their courts, their parks, their sanitary dis-

tricts, their schools are all part of the civilization

which he enjoys. If he gets tax immunity, it means

that other citizens must pay his share.

The Court does not profess to go so far. It merely

says that this case turns on changing military

assignments and the burden placed on service men

and women as a result of that feature of their work.

But we also know that service men and women

receive salaries much lower than those earned in

civilian life. Can Congress remove those salaries from

the reach of state taxing officials because they are

burdensome to our military personnel? Certainly the

burden, the harassment, the unpleasantness of those

taxes would be as easy to establish as the burden of

the present tax. And the relation of the burden to the

federal service would be as close and intimate in one

case as in the other.

The private affairs of our military personnel — the

disposition of their salary, the furniture they purch-

ase, the apartments they rent, the personal contracts

that they make — by the very definition are not in

the federal public domain. When Congress under-

takes to protect them from state taxation or regula-

tion, it is not acting to protect either a federal

instrumentality or any function which a_ federal

agency performs. Congress, therefore, acts without

constitutional authority. |Emphasis in original. |

The legislative history of the 1977 legislation at issue

herein reveals that that statute was modelled after the tax

exemption provision of the Soldiers’ and Sailors’ Civil

Relief Act and that Congress, in drafting the 1977

legislation, intended to afford to Members of Congress the

same type of protections that were given to servicemen

under the earlier Act:

The effect of the provisions of this bill would be very

similar to that that has been provided for years to

servicemen under the Soldiers’ and Sailors’ Civil

Relief Act.

19a

[This bill] provides that when an individual is elected

to serve in the Congress and his duties require his

attendance in Washington to attend the sessions of

Congress and to discharge his responsibilities as an

elected representative of a State or a district within a

State, the Member shall not be held to have acquired

a new residence for tax purposes under a State other

than the State from which he was elected. This. of

course, would only apply during his term of office.

Here again, the case of Dameron v. Brodhead is

instructive because the Court in that case noted that

similar provisions of the Soldiers’ and Sailors’ Civil

Relief Act “saved the sole right of taxation to the

State of original residence”. The Court further noted

that other than this, the statute does not alter the

benefits and burdens of our system of dual federalism

during the individual’s service. This bill * * * pro-

vides for such an effect in that it makes it clear that

the member will not be relieved of his tax obligations

as regards the State from which the member was

elected.

H.R. Rep. No. 95-377, 95th Cong., 1st Sess. 3-4, reprinted

in |1977| U.S. Code Cong. & Admin. News. pp. 468, 470.

Dameron involved the constitutional grant to Congress

of plenary power “to declare War,” Art. I, § 8, Cl. 11, and

“to raise and support Armies.” /d., Cl. 12. Observing that a

serviceman’s duties are directly “related to those Congres-

sional” powers, Mr. Justice Reed stated (at 325, 73 S. Ct.

at 723):

Since this is so, congressional exercise of a “necessary

and proper” supplementary power such as this statute

must be upheld. * * *

In enacting the Soldiers’ and Sailors’ Civil Relief Act of

1940, Congress seemingly determined that if a state in

which a serviceman was stationed on military duty were

permitted to tax the property or income of that service-

man, the tax would impose not only a burden on the

serviceman but also an unwarranted burden on the federal

government and would impinge on Congress’ power to

20a

provide for the common defense. In Dameron, the Supreme

Court does not appear to have made any specific inquiry

into the reality of that perceived burden but rather

appears to have impliedly recognized that it is up to

Congress, and not the courts, to determine what legisla-

tion is “necessary and proper.” Art. 1, § 8, Cl. 18. Indeed, it

would seem to be that deference to Congress, grounded on

principles of separation of powers, that has provided the

cornerstone for the standard for judicial review of federal

legislative action such as the 1977 Act. As Mr. Chief

Justice Marshall put it in McCulloch in construing the

“necessary and proper” clause:

Let the end be legitimate, let it be within the scope of

the constitution, and all means which are appropri-

ate, which are plainly adapted to that end, which are

not prohibited, but consistent with the letter and

spirit of the constitution, are constitutional. 17 U.S.

(4 Wheat.) at 421.

The Supreme Court, in adhering to that standard over

the years, has often refused to look behind Congress’

stated purpose in enacting a particular statute and has

declined to make its own determination as to whether a

piece of legislation is, in fact, “necessary and proper.”

Again the words of the Chief Justice in McCulloch are

instructive:

|Wlhere the law is not prohibited, and is really

calculated to effect any of the objects entrusted to the

government, to undertake * * * to inquire into the

degree of its necessity, would be to pass the line which

circumscribes the judicial department, and to tread on

legislative ground. 17 U.S. (4 Wheat.) at 423.

In 1977, more than a century and a half after McCul-

loch, Congress, in enacting the statute herein at issue,

sought to provide for Members of Congress the same type

of protection that had earlier been given to servicemen,

l.e., an exemption for those Members of Congress “from the

substantial burdens of seriate taxation by the states in

which they may be required to be present,’ Dameron v.

2la

Brodhead, 345 U.S. at 324, 73 S. Ct. at 723, in order to

attend sessions of Congress. That determination must be

respected and the constitutionality of the statute must be

upheld, if it is shown that that federal legislation was

enacted in furtherance of any of the powers entrusted to

the federal government, either expressly or impliedly, by

the Constitution.

Article I, $1 of the Constitution provides that all

legislative powers therein granted “shall be vested in a

Congress of the United States, which shall consist of a

Senate and House of Representatives.” The Constitution

further provides that the Senate and House shall be

composed of members elected by the people of the several

states.'' It goes almost without saying that the duties of

each Member of Congress are directly related to all of the

activities which the Constitution has delegated to the

legislative branch of the federal government. Accordingly

if Congress determines that taxes such as the Maryland

taxes in question impose an undue burden on the federal

government and thus impede Congress’ ability effectively

to execute any or all of its constitutional powers, Congress

possesses the power under the Constitution to enact

whatever reasonably related legislation it deems “neces-

sary and proper” in order to alleviate that substantial

burden and to enable it thereby to carry into execution its

constitutional powers. In McCulloch, in which Mr. Chief

Justice Marshall noted the absence of any specific grant of

power by the Constitution to establish national banks, he

also wrote:

Although, among the enumerated powers of govern-

ment, we do not find the word “bank” or “incorpora-

“ Article I, § 2, Cl. 1 of the Constitution provides, in relevant

part: “The House of Representatives shall be composed of

Members chosen every second Year by the People of several

States * * *.”

The 17th Amendment to the Constitution provides, in

relevant part: “The Senate of the United States shall be

composed of two Senators from each State, elected by the

people thereof, for six years; * * *.”

22a

tion,” we find the great powers to lay and collect

taxes; to borrow money; to regulate commerce; to

declare and conduct a war; and to raise and support

armies and navies. The sword and the purse, all the

external relations, and no inconsiderable portion of

the industry of the nation, are entrusted to its

government. It can never be pretended that these vast

powers draw after them others of inferior importance,

merely because they are inferior. Such an idea can

never be advanced. But it may with great reason be

contended, that a government, entrusted with such

ample powers, on the due execution of which the

happiness and prosperity of the nation so vitally

depends, must also be entrusted with ample means

for their execution. The power being given, it is the

interest of the nation to facilitate its execution. It can

never be their interest, and cannot be presumed to

have been their intention, to clog and embarrass its

execution by withholding the most appropriate

means. 17 U.S. (4 Wheat.) at 407-08.

Thus, if the 1977 law is an exercise by Congress of

power to aid itself in the performance of its own duties, the

statute’s validity is well supported by long standing

Supreme Court doctrine. But it has been suggested by

defendants that the 1977 statute, rather than being

directed to the efficient functioning of Congress, is bot-

tomed on a Congressional desire to aid Members of

Congress as individuals and to enable them to enjoy the

benefits of the parks, schools, sanitary services, etc., of a

state, such as Maryland, without contributing their fair

share to the financing of those services. The answer to that

suggestion is that it can hardly be said that Congress’

determination to grant the 1977 tax exemption was or is

unreasonable or without foundation in terms of aiding the

functioning of Congress itself. When an individual is

elected to serve in Congress, he must maintain an abode

either in the District of Columbia or close enough to it to

enable him to work a full schedule in Washington, D. C.

and thus bear his full proportionate burden as one of the

elected Members of Congress. As is the case with the

Soldiers’ and Sailors’ Civil Relief Act, the 1977 statute

23a

does not relieve Members of Congress of their tax

obligations in their “home” states. Rather, that legislation

relieves a Member of Congress from taxation by a state,

other than his own, in which he maintains an abode so

that he can live there while he is in Washington engaged

in his legislative work.

It is also to be noted that if the Maryland income tax is

assessed on a non-Maryland Member of Congress who

maintains a place of abode in Maryland in order to attend

sessions of Congress, such Member might be subjected to

taxation by more than one state. It is true that such

Member would, under Maryland law, be entitled to a tax

credit for taxes paid to his “home” state.’ However, he

would still be taxed by his home state and also by

Maryland to the extent that the Maryland income tax

rates exceed those of his home jurisdiction. Further, in any

event, the Maryland income tax credit does not apply to

local income taxes'® which the counties of Maryland are

required to impose under state law.’ The legislative

history of the predecessor bill, which was passed in 1976

but vetoed by President Ford,'* evidenced a concern on the

part of Congress that such potential cumulative taxation

would impose a significant burden on a Member of

Congress and might, ultimately, serve to deter “persons of

limited means” from running for Congress."

See Md. Ann. Code, Art. 81, § 290(a), supra p. 4.

See Md. Ann. Code, Art. 81, § 290(b), supra p. 4.

See Md. Ann. Code, Art. 81, § 283(a).

'* See n.2 supra.

The Senate Report accompanying the bill S. 2447 stated, in

part:

To subject members of Congress to local income taxes

because of their abode in a state near the Capitol is to

subject them, in most cases, to double taxation as a result

of their constitutional functions and duties. They are

required constitutionally to be and remain citizens of the

states they represent, and to be subject to taxes as citizens

of their home states. If the Maryland statute were applic-

able, they would be required additionally to pay taxes to

24a

Defendants suggest that a Member of Congress can

easily avoid any such potential cumulative taxation by

Maryland. In accord with this view, this would deny them

due process and equal protection of the laws.

* * * * * %

It may be contended that since Maryland recognizes a

credit for taxes paid to other states, most of double taxation

is obviated. There are several responses to this fallacious

argument. First, to the extent that Maryland taxes are at a

higher rate than home state taxes, there is double taxation

in the amount of the excess. Second, the recent Maryland

statute indicates an intention to allow only a partial credit.

Thus, Maryland’s top tax bracket is 5%, but county taxes

may be an additional 22%. A Senator or Representative

from a state imposing a 10% income tax will pay an

aggregate 122%. A Senator or Representative from a home

state imposing a 3% tax will pay an aggregate tax of 72%.

A Senator or Representative from a home state imposing a

6% tax will pay an 842% tax.

Finally, it should be noted that the interstate credit

depends on reciprocity, and is, in any event, a matter of

grace. As Maryland has recently provided with respect to

so-called county taxes, the credit can be partially or wholly

eliminated, leading to complete double taxation.

* * * * *

Finally, while the problem we are considering is relative-

ly discrete at the present time because Maryland income

taxes are fairly low, nothing prevents the State from

increasing its rate to as high a range as it pleases. Under

circumstances of very high rates, double taxation of

members of Congress could lead to making Congressional

positions untenable for persons of limited means. In this

sense, a free-handed power to impose double taxes is

indeed, as Chief Justice Marshall observed in the McCul-

loch case, the “power to destroy.” What would be destroyed,

of course, would be the equal opportunity for persons of

limited means, as well as those of great means, to become

members of Congress. The “door of this part of the federal

government” heretofore “open to merit of every description

. . . without regard to poverty or wealth” would be closed.

The Federalist, No. 52; cf. Bullock v. Carter, 405 U.S. 134,

92 S. Ct. 849, 31 L. Ed. 2d 92 (1972) (forbidding large filing

fees from barring candidates for public office); Williams v.

Rhodes, 393 U.S. 23, 89 S. Ct. 5, 21 L. Ed. 2d 24 (1968).

S. Rep. No. 94-631, 94th Cong. 2d Sess. 7-8.

25a

living in Virginia or the District of Columbia, both of

which jurisdictions presently exempt Members of Congress

from their respective income tax laws.”” However, an

otherwise valid Congressional statute is seemingly not

rendered invalid simply because the practical impact of

the legislation falls on only one of a few states.”' In

addition, the present Virginia tax exemption is in and of

itself a matter of grace, and thus, absent the federal

statute, Virginia would remain free, like Maryland, to

impose income taxes on Members of Congress.

At the core of this case, as in all cases involving

questions of inter-governmental tax immunity, lies the

fundamental issue of how best to reconcile competing

claims of the state and federal governments. The smooth

functioning of our federal system of government requires

that some national body be entrusted with the responsibil-

ity of making what are often difficult decisions as to when

to confer tax immunity, thereby narrowing the states’

revenue base, and as to when to withhold such immunity,

even to the extent of allowing states to tax the properties

and instrumentalities of the federal government. As Chief

Justice Marshall recognized in McCulloch, it is Congress,

whose Members represent both national and state in-

terests, upon whom the Constitution has imposed the duty

of balancing such interests.” In United States v. Detroit,

355 U.S. 466, 474, 78 S. Ct. 474, 479, 2 L. Ed. 2d 424

(1958), Mr. Justice Black writing for the majority

observed:

Today the United States does business with a vast

number of private parties. In this Court the trend has

been to reject immunizing these private parties from

~ ” See notes 3 and 4, supra.

“' Cf. South Carolina v. Katzenbach, 383 U.S. 301, 329-30, 86

S. Ct. 803, 819, 15 L. Ed. 2d 769 (1966).

“ See Wechsler, “The Political Safeguards of Federalism: The

Role of the States in the Composition and Selection of the

National Government,” 54 Colum. L. Rev. 543 (1954). See also

L. Tribe, American Constitutional Law § 6-30 (1978),

26a

nondiscriminatory state taxes as a matter of constitu-

tional law. Cf. Penn Dairies v. Milk Control Commis-

sion, 318 U.S. 261, 270, 63 S. Ct. 617, 621, 87 L. Ed.

748, [753]. Of course this is not to say that Congress,

acting within the proper scope of its power, cannot

confer immunity by statute where it does not exist

constitutionally. Wise and flexible adjustment of

intergovernmental tax immunity calls for political

and economic considerations of the greatest difficulty

and delicacy. Such complex problems are ones which

Congress is best qualified to resolve.”

The United States contends herein that even if Congress

had not expressly enacted the 1977 legislation and thereby

exempted its Members from the type of taxation Maryland

seeks to impose, a Member of Congress would be entitled

to assert an implied constitutional immunity from such

taxation. See McCulloch at 436-37. While it is true that a

federal instrumentality may not itself be taxed by a state,

the question exists as to whether Members of Congress are

individually or collectively one or more federal in-

strumentalities. In Graves v. New York ex rel. O’Keefe, 306

U.S. 466, 486, 59 S. Ct. 595, 601, 83 L. Ed. 927 (1939), Mr.

Justice Stone concluded that, absent a Congressional

statute, the salaries of federal employees may be subject to

a non-discriminatory state income tax:

Assuming, as we do, that the Home Owners’ Loan

Corporation is clothed with the same immunity from

state taxation as the government itself, we cannot say

that the present tax on the income of its employees

lays any unconstitutional burden upon it. All the

reasons for refusing to imply a constitutional prohibi-

tion of federal income taxation of salaries of state

employees, stated at length in the Gerhardt case, are

of equal force when immunity is claimed from state

income tax on salaries paid by the national govern-

ment or its agencies. In this respect we perceive no

basis for a difference in result whether the taxed

income be salary or some other form of compensation,

*S See also, Rohr Aircraft Corp. v. County of San Diego, 362

U.S. 628, 636, 80 S. Ct. 1050, 1054, 4 L. Ed. 2d 1002 (1960).

27a

or whether the taxpayer be an employee or an officer

of either a state or the national government, or of its

instrumentalities. In no case is there basis for the

assumption that any such tangible or certain econo-

mic burden is imposed on the government concerned

as would justify a court’s declaring that the taxpayer

is clothed with the implied constitutional tax immun-

ity of the government by which he is employed.”

Defendants suggest that the Graves decision is controll-

ing in this case and contend that Members of Congress,

like federal employees, as opposed to the Congress itself,

do not constitute instrumentalities of the federal govern-

ment. The United States, on the other hand, argues that

the Graves decision is distinguishable on the ground that

Members of Congress collectively are the Congress and

that any state or local income tax on a Member of

Congress, imposed without the express consent of Con-

gress, is an unconstitutional tax on the federal govern-

ment itself. In the majority opinion in Graves, Mr. Justice

Stone several times noted that Congress had not granted

an express tax immunity to federal employees, and

suggested that, had Congress so legislated, the result in

that case might have been different. Thus (at 478-79, 480,

59 S. Ct. at 597-598), the Justice wrote:

|Tlhere has been attributed to Congress some scope,

the limits of which it is not now necessary to define,

for granting or withholding immunity of federal

agencies from state taxation. * * *

* * * But Congress has given no intimation of any

purpose either to grant or withhold immunity from

state taxation of the salary of the [Home Owners’

Loan Corporation’s| employees, and the Congression-

al intention is not to be gathered from the statute by

implication. * * *

* * * The constitutional immunity of either gov-

ernment from taxation by the other, where Congress

~ ™ Cf. Helvering v. Gerhardt, 304 U.S. 405, 58 S. Ct. 969, 82 L.

Ed. 1427 (1938) (salaries of employees of a state instrumentality

not constitutionally immune from federal income tax).

28a

is silent, has its source in an implied restriction upon

the powers of the taxing government.

* * * Silence of Congress implies immunity no

more than does the silence of the Constitution. It

follows that when exemption from state taxation is

claimed on the ground that the federal government is

burdened by the tax, and Congress has disclosed no

intention with respect to the claimed immunity, it is in

order to consider the nature and effect of the alleged

burden, and if it appears that there is no ground for

implying a constitutional immunity, there is equally

a want of any ground for assuming any purpose on

the part of Congress to create an immunity. |Emph-

ases added. |

And, continuing (at 485, 59 S. Ct. at 601) Mr. Justice

Stone commented:

As already indicated, such differences as there may

be between the implied tax immunity of a state and

the corresponding immunity of the national govern-

ment and its instrumentalities may be traced to the

fact that the national government is one of delegated

powers, in the exercise of which it is supreme.

Whatever scope this may give to the national govern-

ment to claim immunity from state taxation of all

instrumentalities which it may constitutionally cre-

ate, and whatever authority Congress may possess as

incidental to the exercise of its delegated powers to

grant or withhold immunity from state taxation,

Congress has not sought in this case to exercise such

power. * * *

Concurring (at 492, 59 S. Ct. at 604), Mr. Justice

Frankfurter wrote:

* * * Whether Congress may, by express legislation,

relieve its functionaries from their civic obligations to

pay for the benefits of the State governments under

which they live is matter for another day. |Emphasis

added. |

Congress is our one and only national legislative body.

Surely it is a more important federal instrumentality than

29a

any agency or corporation which it creates. Thus, the

Graves’ holding that employees of a corporation created by

Congress as a federal instrumentality are not impliedly

immunized by the Constitution itself from the type of

Maryland taxation involved herein does not necessarily

mean that the Constitution does not impliedly immunize a

Member of Congress. But since Congress has expressly by

the 1977 Act provided its Members with such immunity,

the question of whether a Member of Congress enjoys such

implied constitutional immunity need not be answered

herein.

STANDING

The Complaint filed by the United States in this case

states: “This action has been requested by members of the

United States Congress, and is brought under the direc-

tion of the Attorney General of the United States to

protect the sovereign rights of the United States.’”2° No

Member of Congress is joined in this case as a party

plaintiff. Defendants contend that the United States lacks

standing to institute and maintain this suit. arguing that

the only persons who stand to gain or lose from the

outcome of this litigation are the State of Marylend and

the individual Members of Congress who are subject to the

Maryland income taxes. The United States itself, defen-

dants suggest, will not be affected by the outcome of this

lawsuit and, thus, cannot allege “such a personal stake in

the outcome of the controversy as to assure that concrete

adverseness which sharpens the presentation of issues

upon which the court so largely depends for illumination

of difficult constitutional questions.” Baker v. Carr. 369

U.S. 186, 204, 82 S. Ct. 691, 703, 7 L. Ed. 2d 663 (1962).

The 1977 federal statute does not expressly provide the

Attorney General of the United States with the authority

to file suit on beha!f of the United States to enforce the

provisions of that statute. However, the United States

may, in appropriate circumstances, bring suit even when

” Complaint, Par. IIL.

30a

not expressly authorized so to do by statute.” Thus, even

without express statutory authority, the United States has

been permitted to bring suit on a contract to which it was

a party” and has been recognized as a proper party

plaintiff to bring suit to protect or vindicate a right to

propert, owned by the federal government.”

In three opinions handed down in the late 1880's, the

Supreme Court expanded this doctrine of implied author-

ity of the United States to bring suit, recognizing the right

of the United States to sue to protect not only its own

proprietary interests, but also the interests of the public at

large. In United States v. San Jacinto Tin Co., 125 U.S.

273, 8 S. Ct. 850, 31 L. Ed. 747 (1888), the Court upheld

the right of the Attorney General, in the absence of any

statutory authority, to bring suit to set aside a land patent

allegedly obtained by fraud. In so holding, the Court

wrote:

But we are of opinion that since the right of the

government of the United States to institute such a

suit depends upon the same general principles which

would authorize a private citizen to apply to a court of

justice for relief against an instrument obtained from

him by fraud or deceit, or any of those other practices

which are admitted to justify a court in granting

relief, the government must show that, like the

private individual, if has such an interest in the relief

sought as entitles it to move in the matter. If it be a

question of property, a case must be made in which

the court can afford a remedy in regard to that

property; if it be a question of fraud which would

** However, the scope of the Attorney General’s nonstatutory

authority to bring suit has been the subject of much debate and

controversy. See, e.g., P. Bator, P. Mishkin, D. Shapiro, & H.

Wechsler, Hart & Wechsler’s The Federal Courts and the Federal

System (2d ed. 1973), at 1301-09; Note, Nonstatutory Executive

Authority to Bring Suit, 85 Harv. L. Rev. 1566 (1972).

” See, e.g., United States v. Tingey, 30 US. (5 Pet.) 115, 121, 8

L. Ed. 66 (1831).

; * See, e.g., Benton v. Woolsey, 37 U.S. (12 Pet.) 27, 29, 9 L. Ed.

987 (1838). See also United States v. Gear, 44 U.S. (3 How.) 120,

11 L. Ed. 523 (1845).

3la

render the instrument void, the fraud must operate to

the prejudice of the United States; and if it is

apparent that the suit is brought for the benefit of

some third party, and that the United States has no

pecuniary interest in the remedy sought, and is under

no obligation to the party who will be benefited to

sustain an action for his use; in short, if there does

not appear any obligation on the part of the United

States to the public, or to any individual, or any

interest of its own, it can no more sustain such an

action than any private person could under similar

circumstances. 125 U.S. at 285-86, 8 S. Ct. at 857.

In United States v. American Beil Telephone Co., 128

U.S. 315, 9S. Ct. 90, 32 L. Ed. 450 (1888), the Court relied

on its earlier opinion in San Jacinto in upholding the right

of the United States, again without express statutory

authorization, to bring suit to impeach two patents for

inventions which had allegedly been fraudulently

obtained. Referring specifically to the above quoted por-

tion of the San Jacinto opinion, the Court stated (at

367-68, 9 S. Ct. at 97):

This language is construed by counsel for the

appellee in this case to limit the relief granted at the

instance of the United States to cases in which it has

a direct pecuniary interest. But it is not susceptible of

such construction. It was evidently in the mind of the

court that the case before it was one where the

property right to the land in controversy was the

matter of importance, but it was careful to say that

the cases in which the instrumentality of the court

cannot thus be used are those where the United

States has no pecuniary interest in the remedy

sought, and is also under no obligation to the party

who will be benefited to sustain an action for his use.

and also where it does not appear that any obligation

existed on the part of the United States to the public

or to any individual. The essence of the right of the

Jnited States to interfere in the present case is its

obligation to protect the public from the monopoly of

the patent which was procured by fraud, and it would

be difficult to find language more aptly used to

32a

include this in the class of cases which are not

excluded from the jurisdiction of the court by want of

interest in the government of the United States.

The controversy in Jn re Debs, 158 U.S. 564, 15 S. Ct.

900, 39 L. Ed. 1092 (1895) arose out of the Pullman strike

in Chicago in 1894. The United States brought suit in

federal court seeking to enjoin that strike, alleging a

conspiracy on the part of the strikers to obstruct the

operations of interstate transportation and the carriage of

the mails. The court granted the requested injunction.

Subsequently, certain persons who violated that injunction

were held in contempt and imprisoned. One of the

imprisoned strikers then petitioned for a writ of habeas

corpus in the Supreme Court on the ground that the lower

court had lacked jurisdiction to enter the injunction.

Rejecting that contention, the Supreme Court stated (at

584, 15 S. Ct. at 906):

We do not care to place our decision upon this

ground alone |[i.e., property interest in the mail].

Every government, entrusted by the very terms of its

being with powers and duties to be exercised and

discharged for the general welfare, has a right to

apply to its own courts for any proper assistance in

the exercise of the one and the discharge of the other,

and it is no sufficient answer to its appeal to one of

those courts that it has no pecuniary interest in the

matter. The obligations which it is under to promote

the interest of all and to prevent the wrongdoing of

one, resulting in injury to the general welfare, is often

of itself sufficient to give it a standing in court. * * *

[citing San Jacinto and American Bell Velaiiaia,

supra. |

In a case rather similar to the case at bar, the Fourth

Circuit relied on those Supreme Court decisions in uphold-

ing the power of the United States to bring suit in the

absence of express statutory authority so to do. In United

States v. Arlington County, Commonwealth of Virginia,

326 F.2d 929 (4th Cir. 1964), the United States and a

naval officer brought suit seeking a declaratory judgment

33a

that a personal property tax assessed against the officer in

contravention of Section 514 of the Soldiers’ and Sailors’

Civil Relief Act of 1940 was illegal. The suit also sought to

enjoin the collection of the tax against the officer and all

other members of the armed forces similarly situated. .

Writing for the Fourth Circuit, Judge Bell noted that the

Supreme Court had expressly upheld the constitutionality

of the tax exemption provisions of the Soldiers’ and

Sailors’ Civil Relief Act in Dameron v. Brodhead, supra.

After quoting extensively from Dameron, Judge Bell

considered whether the United States had standing to

bring the suit. Although the naval officer had been named

as a plaintiff in the suit, he apparently suffered from some

incapacity, not specified in the opinion, which, it is

assumed herein arguendo, deprived him of standing to

maintain the action. Judge Bell concluded that the

Attorney General had standing to bring the action on

behalf of the officer and other aggrieved servicemen, and

seemingly also on behalf of the United States itself:

* * * Does the allegation of the complaint that the

United States brings this action on behalf of Bottom-

ley and other servicemen in order to obtain a proper

implementation of the governmental policy involved

in the Soldiers’ and Sailors’ Relief Act give the

Government standing to bring this action? We think

the answer to this question must be yes. The special

interest of the sovereign United States in the protec-

tion and enforcement of its policies and programs

with respect to the members of the armed forces has

been affirmed by the courts in numerous instances.

citing Dameron v. Brodhead, supra. |.

* * * * ok a

The right of the federal government to bring suit to

enforce its policies and programs even in the absence

of immediate pecuniary interest has been upheld in

numerous other fields of federal activity. | citing, inter

alia, Debs, San Jacinto and American Bell Telephone,

supra. |

* * * * * *

34a

* * * Here we find that the interest of the national

government in the proper implementation of its

policies and programs involving the national defense

is such as to vest in it the non-statutory right to

maintain this action. Under these circumstances the

incapacity of the individual plaintiff to maintain his

action is immaterial since he may find shelter under

the Government’s umbrella.

326 F.2d at 931-33.

In United States v. Solomon, 563 F.2d 1121 (4th Cir.

1977), the Attorney General brought suit on behalf of the

United States against three Maryland officials responsible

for the operation of a state hospital for the mentally

retarded, to obtain injunctive relief against the alleged

deprivation of the patients’ Eighth, Thirteenth, and Four-

teenth Amendment rights. Chief Judge Northrop of this

court concluded that the Attorney General did not have

standing to bring the suit and accordingly dismissed the

complaint. On appeal, Judge Winter, writing for the

Fourth Circuit, affirmed. In so doing, Judge Winter

summarized the historical development of the doctrine

that the Attorney General may bring suit, in appropriate

circumstances, even when not expressly or impliedly

authorized by statute, and noted (at 1127) that “lilf Debs is

given its most expansive possible meaning,” the United

States may sue “whenever the alleged violations ‘affect the

public at large.’ 158 U.S. at 586, 15 S. Ct. at 907 * * *.”

However, Judge Winter refused to give Debs such an

expansive reading:

Except for Brand Jewelers {318 F. Supp. 1293

(S.D.N.Y. 1970)], no court has interpreted Debs as

broadly as we are asked to do in the instant case. In

this circuit we have held that the United States may

sue to effect recovery of federal funds improperly

disbursed. Wilson Clinic & Hospital, Inc. v. Blue

Cross of South Carolina, 494 F.2d 50 (4th Cir. 1974).

We have held that the United States may sue to

enforce immunity of the armed forces to certain state

taxes in accordance with a congressionally authorized

35a

program relating to national defense. United States v.

- Arlington County, 326 F.2d 929 (4th Cir. 1964). In

United States v. Marchetti, 466 F.2d 1309 (4th Cir.

1972), cert. denied, 409 U.S. 1063, 93 S. Ct. 553, 34 L.

Ed. 2d 516 (1972), we held that the interest of the

United States in national security where it had

contractual rights to protect that interest permitted it

to sue without explicit authority. In all of these cases,

the United States had a property interest to be

protected or there was a well-defined statutory interest

of the public at large to be protected. * * *

563 F.2d at 1127 (Emphasis added; footnote omitted).

Judge Winter concluded that, since the Attorney General

was not suing to protect “a well-defined statutory interest

of the public,” but rather was seeking merely to advance

the broad constitutional rights of third persons, the federal

government did not possess implied authority to bring the

suit. However, Judge Winter, in so doing, specifically

noted:

It is significant that several attempts extending

over a period of twenty years to enact legislation

empowering the Attorney General to bring the type of

action represented by the instant case have failed of

enactment.

In the instant case, if we were to read Debs to

authorize this. suit, we would not only permit the

executive to take action for which we have concluded

he is neither explicitly nor impliedly authorized to

take, we would also authorize the executive to do

what Congress has repeatedly declined to authorize

him to do. See n.4, supra. Moreover, we would do so in

an area where considerations of federalism and

comity are also present. Although the instant éase is

a suit against certain officials of Rosewood, its effect

on the State of Maryland is manifest. Congressional

concern with federal-state relations in the area of

civil rights is sufficiently great that we are reluctant

36a

to sustain nonstatutory executive acts in all but the

clearest case.”

The Solomon decision rather clearly warns that the

Debs decision not be applied over-broadly. However,

Solomon itself also indicates that Arlington County is still

good law in this Circuit. While Solomon may well bar a

broad-scale executive law enforcement venture into cer-

tain areas of civil rights, particularly after Congress has

expressly declined to authorize such suits, Arlington

County makes it possible for the United States to exercise

implied authority to bring suit to enforce an express and

narrowly-drawn congressional statute granting tax im-

munity to members of the armed forces, in order to insure

the “proper implementation of [the national government’s|

policies and programs involving the national defense.” 326

F.2d at 932. As noted supra,” the tax exemption provisions

of the 1977 legislation are patterned on the very provi-

sions of the Soldiers’ and Sailors’ Civil Relief Act which

were at issue in Arlington County. Indeed, as discussed

supra in this opinion*' Congress intended, in enacting the

1977 legislation, to extend to Members of Congress the

same protections which Congress had provided for service-

men in the earlier Act.

As Judge Winter observed in Solomon, the Fourth

Circuit has permitted the United States to bring suit,

absent express statutory authority, in cases where the

national government has “a property interest to be

protected or there was a well-defined statutory interest of

the public at large to be protected.” 563 F.2d at 1127. As in

the case of servicemen, Congress has expressly determined

that the public interest is served by exempting from the

burdens of Maryland income tax laws those Members of

Congress who maintain Maryland abodes in order better

to enable them to attend to their official duties in

*® See also, United States v. City of Philadelphia, 482 F. Supp.

1248 (E. D. Pa. 1979).

*” See p. 355 supra.

“ See pp. 355-356 supra.

37a

Washington. For reasons stated supra, this Court holds

the 1977 legislation to be valid. It follows that under

ArlingtonCounty, the United States has standing to bring

this action to protect that “well-defined statutory interest

of the public at large” and to ensure the “proper imple-

mentation of [the national government’s] policies and

programs.” The fact that the United States does not have

a direct pecuniary interest in the outcome of the within

litigation does not deprive it of implied authority to bring

suit.

The Tax Injunction Act

Defendants further contend that the within suit is

barred by the provisions of the Tax Injunction Act, 28

U.S.C. § 1341, which provides:

The district courts shal! not enjoin, suspend or

restrain the assessment, levy or collection of any tax

under State law where a plain, speedy and efficient

remedy may be had in the courts of such State.”

But the short answer to defendants’ said position is that

the provisions of the Tax Injunction Act do not erect a

jurisdictional bar to actions brought by the United States

as plaintoff. In Department of Employment v. United

States, 385 U.S. 355, 358, 87 S. Ct. 464, 466-467, 17 L. Ed.

2d 414 (1966), Mr. Justice Fortas wrote:

|W] conclude, in accord with an unbroken line of

authority, and convincing evidence of legislative

purpose, that § 1341 does not act as a restriction upon

suits by the United States to protect itself and its

“ Solomon, supra at 1127. See also, Moe v. Salish & Kootenai

Tribes, 425 U.S. 463, 474 n.13, 96 S. Ct. 1634, 1641 n.13, 48 L.

Ed. 2d 96 (1976); United States v. Lewisburg Area Sch. Dist., 539

F.2d 301 (3rd Cir. 1976).

“ The specific language of the Tax Injunction Act speaks only

in terms of injunctive relief. However, the policy of that statute

similarly bars the grant of declaratory relief. Great Lakes

Dredge and Dock Company v. Huffman, 319 U.S. 293. 299-301,

63 S. Ct. 1070, 1073-1074, 87 L. Ed. 1407 (1943).

38a

instrumentalities from unconstitutional state exac-

tions. * * * [Footnotes omitted. |”

Conclusion

The 1977 statute is valid. The imposition of the

Maryland taxes herein involved is in direct contravention

of the federal act and accordingly is invalid. The United

States has standing and is not otherwise barred from

obtaining injunctive and declaratory relief to enforce the

validity of the 1977 federal act and to restrain the invalid

imposition of the Maryland taxes.” Accordingly, the

United States is entitled to such injunctive and declara-

tory relief. Therefore, judgment will be entered for plain-

tiff and an appropriate Order will be today entered.

“4 See also, United States v. Arlington County, Commonwealth

of Virginia, 326 F.2d 929, 931 (4th Cir. 1964), cited with

approval by the Supreme Court in Department of Employment v.

United States, 385 U.S. at 358 n.6, 87 S. Ct. at 466 n.6.

* In view of the Court’s conclusions with regard to the

validity of the 1977 legislation and the existence of standing on

the part of the United States, it is not necessary to reach the

contentions of the United States that the Maryland taxes violate

the rights of non-Maryland Members of Congress under procedu-

ral due process or equal protection principles because, inter alia,

they are not voters in Maryland.

39a

In The United States District Court

for the District of Maryland

Civil No. K-78-1287

United States of America

State of Maryland; and Louis L. Goldstein,

Comptroller of the Treasury of the

State of Maryland

_—_—_—_

ORDER

(1) Defendants are each enjoined from subjecting any

non-Maryland Member of Congress to any income tax

levied by the State of Maryland or any of its political

subdivisions in contravention of any of the provisions of 4

U.S.C. 113. This Court hereby declares the provisions of

that federal law to be valid.

(2) The refund claims asserted herein by the United

States on behalf of certain Members of Congress with

respect to income taxes of the State of Maryland and of one

or more political subdivisions of that State previously paid

by those Members are hereby separated from all other

issues herein pursuant to Federal Civil Rule 42(b). Those

issues may be pursued by the United States at a later date

if they are timely so pursued. The Clerk is directed,

however, after entering this Order to close the Court file

in this case subject to reopening it at a later date upon

request by any of the parties to this case.

(3) As to the provisions of this Order set forth in

paragraph (1), this Court, pursuant to Federal Civil Rule

54(b), hereby directs the entry of final judgment and finds

40a

and holds that there is no just reason for delay of the effect

thereof.

(4) The Clerk is hereby directed to mail copies of this

Order and of the Opinion filed even date herewith to all

counsel of record. It is so ORDERED, this 31st day of

March, 1980.

FRANK A. KAUFMAN,

United States District Judge.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.