Jurisdictional Statement — Equitable Life Assurance Society of the United States v. Finance Administration

Oftice . Supreme

82-290

No.

AUG 20

_e,-

CLERK

ILFEn

Court, US )

1982

STEVAsS.

Supreme Court of the United States

October Term, 1982

THE EQUITABLE LIFE ASSURANCE SOCIETY

OF THE UNITED STATES,

v.

THE FINANCE ADMINISTRATION AND THE

TAX COMMISSION OF THE CITY OF NEW YORK,

and

ROBERT ABRAMS,

Attorney General of the State of New York,

Appellees.

On Appeal From the Court of Appeals of New York

JURISDICTIONAL STATEMENT

Counsel of Record:

Davip A. Ross

DecHEerT Price & RHOADS

Lieven Broadway

New York, NY 10004

(212) 425-3510

Attorney for Appellant

The Equitable Life Assurance

Society of the United States

Of Counsel:

GaLe G. Moscow

H. FRANcIs DELONE, JR.

Appellant,

August 20, 1982

international Printing Co., 711 So. 60th St., Phila., Pa, 19143 — Tel. (215) 727-8711

—

The underlying issue in this appeal is whether a State

constitutionally may enact a statute (1) the effect of which

is to insulate from challenge unauthorized inequality in

rea! property assessment practices (“inequality of assess-

ment”), by precluding the only viable—and most proba-

tive—proof of such inequality, and (2) the result of which

is to deny taxpayers the right to Equal Protection and

Due Process of law. The State of New York, on December

3, 1981, enacted precisely such a statute, Act of December

3, 1981, ch. 1057, §7, McKinney's 1981 N. Y. Session

Laws (Mar. 1982 Supp. 1 at 1981-233) (“L. 1981, ch.

1057, §7”). This case challenges the constitutionality of

that statute.

QUESTION PRESENTED

Whether the New York State statute, L. 1981, ch.

1057, § 7, which effectively denies to a taxpayer in New

York City the right to prove inequality of assessment with

respect to real property taxes levied prior to the enactment

of the statute, denies that taxpayer the Equal Protection

or Due Process of law guaranteed by the Fourteenth

Amendment of the Constitution of the United States.

(i)

LIST OF PARTIES

The parties in the Court of Appeals of New York are

set forth in the caption of the case in this Court.’

1. The Court of Appeals of New York held joint oral argument

and issued a joint opinion in this case and the case of Colt

Industries, Inc. v. Finance Administrator of the City of New York,

54 N. Y. 2d 533, 446 N. Y. S. 2d 237 (1982). The joint opinion,

however, contained separate orders. Moreover, these two cases

were not consolidated below and were separately briefed in the

Court of Appeals.

The Appellant has notified the Clerk of this Court that it does

not consider Colt Industries a paiiy to the proceeding in the Court

from whose judgment this appeal is being taken, and has served

Colt Industries with a copy of this notice. Should this Court

conclude that Colt Industries was a party to that proceeding

within the meaning of Rules 10 and 15 of the United States Su-

preine Court Rules, Colt Industries should be deemed a party with

no interest in the outcome of this appeal which has received proper

notice in accordance with Rule 10.4 of the United States Supreme

Court Rules.

(ii)

TABLE OF CONTENTS

Page

Question Presented ..........cccccccccccccccccccseccecs i

ET BENE nnn 6c vccscupaveancesdecbscusopecépeeseces ii

EE on vokc ba004604,60saceindnbateoesetas Vv

SD ED cccdecccccdcocsscsacncesgepesevenade cence 1

DEL danncndceesencadacnsedesiyseaceetusehesence 1

Constitutional and Statutory Provisions Involved .......... 2

Ne ENGINED oc cub oc dcnaccncdcencceccccccecccce 4

How the Federal Question Was Presented ................ 7

The Question Is Substantial ..............seeeeeeseeeees 10

A. Due Process Issue Presented by this Appeal ........ 15

B. Equal Protection Issue Presented by this Appeal .... 16

SID. dnc dc cwcccics Séattaccdntbccas¥esnsciceticcs 21

Appendix:

Court of Appeals, State of New York, Opinion and Order,

Entered January 7, 1982 ............ceeeeeeeeess Al

Supreme Court of the State of New York, Appellate

Division: First Department, Opinion and Order,

te Bite TR, BIE occ scvcccdcecnccccecevesss Al0

Supreme Court of the State of New York, County of New

York, Transcript of August 7, 1980 Hearing on

Motions, Containing Verbal Order Denying Motions A1l2

Supreme Court of the State of New York, County of New

York, Order and Memorandum Opinion (Colt In-

dustries), Entered June 12, 1980 ................. A20

Court of Appeals, State of New York, Order Denying

Motion for Reargument, Entered March 23, 1982 .. A32

Court of Appeals, State of New York, Decree Appealed

From, Entered January 7, 1982 ...............55 A33

Court of Appeals, State of New York, Notice of Appeal A34

(iii)

TABLE OF CONTENTS (Continued)

Page

Supreme Court of the United States, Order Extending

Time for Docketing Appeal ..............ss005: A36

Petitioner's Affidavit in Support of Motion, Block 1374,

Lot 49 S.E. (“Greenfeld Affidavit I”) ............ A37

Petitioner's Affidavit in Support of Motion, Block 1291,

Lot 69 (“Greenfeld Affidavit IT’) ..............5. A42

Petitioner's Affidavit in Support of Motions (“Haims

DEED cccbscpeaevakebeedeontodeusytacetes te A47

Decision of the Appellate Division in Matter of Colt

Industries, Inc. (a companion case) ............. A5O

Opinion of Judge Farley (Sup. Ct. Nassau Co.) in

Canigiani v. Board of Assessors, Slip Opinion ..... AS58

Administrative Code of the City of New York, Vol. 2,

ee > SB Perey rer A70

Act of December 3, 1981, ch. 1057, §§ 305(2), 706,

707, 1801(a), McKinney's 198] New York Session

Laws (Mar. 1982 Supp., at 1981-219, 232, 233) A70

(iv)

TABLE OF AUTHORITIES

Cases Cited: Page

Canigiani v. Board of Assessors, N. Y. L. J., July 9, 1981, at

13, col. 2 (Sup. Ct. Nassau Co., June 29, 1981) ........ 13

Colt Industries, Inc. v. Finance Administrator, 54 N. Y. 2d

F | Ae | 2) errr ii,1

Colt Industries, Inc. v. Finance Administrator, 81 A. D. 2d

777, 439 N. Y. S. 2d 385 (1st Dept. 1981) ............. 1

Colt Industries, Inc. v. Finance Administrator, N. Y. L. J.,

June 4, 1980, at 10, col. 2 (Sup. Ct. N. Y. Co., June 12,

BUEEE Kivabcdccecccccedenacaesevecbnancseersdene 1, 14, 15

Cox Broadcasting Corp. v. Cohn, 420 U. S. 469 (1975) ..... 1, 20

Davis v. Wechsler, 263 U. S. 22 (1923) ..........sceeeeee 19

Ed Guth Realty, Inc. v. Gingold, 34 N. Y. 2d 440, 358 N. Y. S.

BE EEUU cédrodsveccecddactouneoseoans 5, 6, 13, 14, 15

860 Executive Towers, Inc. v. Board of Assessors, 53 A. D. 2d

463, 385 N. Y. S. 2d 604 (2d Dept. 1976), affd sub nom.

Pierre Pellaton Apartments, Inc. v. Board of Assessors of

County of Nassau, on opinion below, 43 N. Y. 2d 769, 401

TE BO OE URES. CIIWND «6 vcs ccccccocccveccccncccssce 12, 13

Gibbes v. Zimmerman, 290 U. S. 326 (1933) .............. 16

Helierstein v. Assessor of Town of Islip, 37 N. Y. 2d 1, 371

i CIIID bhin cnincecdnceadcoadaccons 4, 10, 11

Hillsborough Township v. Cromwell, 326 U. S. 620 (1946) .. 19

J. A. Green Construction Corp. v. Finance Administrator, 56

Say GG CHEE i cccucocedsedenceeoccccesean 15, 17, 18

Missouri v. Lewis, 101 U. S. 22 (1879) ..........65005 16, 17, 18

People ex rel. Parklin Operating Corp. v. Miller, 287 N. Y. 126

GEES vans cdecncdetessogubaenpatecosévcocescned 4,10, 11

Pope v. Atlantic C. L. R. Co., 345 U. S. 379 (1953) ........ 1,20

~ Pritchard v. Norton, 106 U. S. 124 (1882) ............005. 15

Salsburg v. Maryland, 346 U. S. 545 (1954) ............ 16, 17, 18

(v)

TABLE OF AUTHORITIES (Continued)

Cases Cited (Continued): Page

Slewett & Farber v. Board of Assessors, 78 A. D. 2d 403, 435

N. Y. S. 2d 313 (2d Dept. 1981), affd in part, modified

in part, upon reargument, 80 A. D. 2d 186, 438 N. Y. S.

2d 544, modified, 54 N. Y. 2d 547, 446 N. Y. S. 2d 241

SD sabendbvedessecedaihaven oed> coseeseneatohes 12, 13

Sioux City Bridge Co. v. Dakota County, 260 U. S. 441 (1923) 19

Sunday Lake Iron Co. v. Wakefield, 247 U. S. 350 (1918)

17, 18, 19

Ward v. Love County, 253 U. S. 17 (1920) ............... 19

Constitutional Provisions Cited:

United States Constitution Amendment XIV, §1.......... passim

Statutes Cited:

Act of December 3, 1981, ch. 1057, §§ 7, 305(2), 706, 707,

1801(a), McKinney's 1981 New York Session Laws (Mar.

1982 Supp., at 1981-219, 232, 233) ............cceuee passim

Act of January 29, 1981, ch. 3, § 1, McKinney's 1981 New York

ID odocédevccoseaseetessoeesecsoegoesas 5,7

Act of May 15, 198', ch. 107, § 1, McKinney's 1981 New York

IED oc tdccncdachede coBtoceseecceeceees 5,7

Act of June 16, 1981, ch. 259, § 1, McKinney's 1981 New York

NEED vcavnonmependc cocceoceccosesaceces 5,7

Act of May 22, 1979, ch. 126, § 2, McKinney's 1979 New York

SEE IR GED ccccccecsccedsccqesccescccccccnces 5, 6,7

Act of April 27, 1969, ch. 302, McKinney's 1969 New York

SD BAD GD 6 ccc cccccccceccccccccccccscscosece 7

N. Y. Real Property Tax Law, § 307 (McKinney Cum. Supp.,

DEED ‘panned pcccebbbbdeccceccescoccecsoceccecse 4,5

N. Y. Real Property Tax Law, § 720 (McKinney Cum. Supp.,

DEED Shncnd cccnceceusedbese coco ccectccescsd 6, 7,8, 12

N. Y. Real Property Tax Law, § 1200 (McKinney 1972) ..... 5

(vi)

TABLE OF AUTHORITIES (Continued)

Statutes Cited (Continued): Page

Administrative Code of the City of New York, Vol. 2A, ch. 17,

es Es FEED 0c cove cs ceccsndnsecébedecesocsoce 4

Administrative Code of the City of New York, Vol. 2, ch. 7,

PP TEED covedcescosesedsouscoeccocecte 1

i EE Ee aM 1

Miscellaneous:

New York State Legislative Annual—I981 ................ 4

Study for City Calls Realty Tax Hideously Inequitable, N .Y.

Times, Apr. 24, 1981, § 1, at 1, col. 2 .............045. 16

( vii)

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(1)

U. S. 379, 381-83 (1953).

2 Const. & Statutory Provisions

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Constitutional Provisions involved are the Equal

Protection and Due Process Clauses of the Fourteenth

Amendment of the United States Constitution:

No state shall . . . deprive any person of life, liberty,

or property, without due process of law; nor deny to

la ama ae ia

ws.

The pertinent portion of the challenged State statute,

L. 1981, ch. 1057, § 7, reads as follows:

ence to their assessed values, or shall determine the

number of witnesses, or both, as the case may be

Before any testimony is given by either party as to

the value of such parcels, each party shall simultane-

ously file with the court or referee, on a date fixed by

the court or referee, a written statement or tabulation

of the appraised values placed upon such parcels by

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Const. & Statutory Provisions 3

such statement or tabulation of values stated by his

witnesses. The parties shall be limited in their proof

on the trial of such issue to such parcels and witnesses,

except that in any event, whether or not parcels are

selected as hereinabove provided, evidence may be

given by either party as to the following:

(a) im all assessing units, actual sales of real

property within the assessing units that occurred

during the year in which the assessment under review

was made;

(b) in all assessing units other than special as-

sessing units as defined in section eighteen hundred

one [App., infra, A72] of this chapter [assessing units

with a population of over 1,000,000, i.e., New York

City and Nassau County], the state equalization rate

established for the roll containing the assessment

under review; or

(c) in all special assessing units as defined in

4 Statement of the Case

STATEMENT OF THE CASE

As set out in the introductory paragraph, the under-

lying issue in this appeal is whether a State constitutionally

may enact a statute the effect of which is to insulate from

which is to deny taxpayers the right to Equal Protection

and Due Process of law.

On December 3, 1981, the c,tislature of the State of

New York (“State”) enacted a comprehensive real prop-

erty assessment scheme, Act of December 3, 1981, ch.

1057, McKinney's 1981 N. Y. Session Laws (Mar. 1982

Supp., at 1981-219, et seq.) designed to overrule the

decision of the Court of Appeals of New York in Heller-

stein v. ae Regal, hin. 37 N. Y. 2d 1, 371

N. Y. S. 2d epic ee which required full value assess-

percentage of value (fractional assessment). Id., § 305(2)

(App., infra, A70). At all times pertinent hereto, the

City of New York, pursuant to Chapter 7, Title E, § E17-

8.0 of the Administrative Code of the City of New York,

was required to assess real property at uniform full value,

see People ex rel. Parklin Operating Corp. v. Miller, 287

N. Y. 126, 128-29 (1941); the City did not have an

authorized classification system of assessment.*

3. L. 1981, ch. 1057 was enacted over the veto of Governor

4. The City has contended that pursuant § 307(3) of the Real

Property Tax Law of New York, enacted in 1978 (expired on

October 30, 1981), it was excused from complying with the full

value assessment mandate of its Administrative Code. In any

value, utilized by New York City in its real property

able from a single source: the State Board of Equalization

and Assessment (“SBEA”), a permanent State agency

created in 1960. Pursuant to § 1200 of the Real

Tax Law of New York (“RPTL”), the SBEA

if

Rate in real estate tax proceedings. Act of May 22, 1979,

ch. 126, §2, McKinney's 1979 N. Y. Session Laws 351;.

Act of January 29, 1981, ch. 3, §1, McKinney's 1981

N. Y. Session Laws 4; Act of May 15, 1981, ch. 107, § 1,

McKinney's 1981 N. Y. Session Laws 220; Act of June 16,

1981, ch. 259, § 1, McKinney's 1981 N. Y. Session Laws

441; L. 1981, ch. 1057, § 7 (preclusion in New York City

and Nassau County only),

Prior to the legislative enactments precluding use of

the State Equalization Rate in real estate tax

6 Statement of the Case

“[W]hile the primary purpose of the State equaliza-

tion rate may be to facilitate uniform State aid to

localities, there is no discernible reason why it also

may not be used in individual inequality cases.” 34

N. Y. 2d at 451, 358 N. Y. S. 2d at 373.

Against this background, the Appellant, the Equitable

Life Assurance Society of the United States (“Equitable”),

commenced proceedings to review the tax assessments of

its real property located at 717 Fifth Avenue, City and

State of New York, for the tax years 1977-78 through

1979-80, inclusive. Similarly, proceedings challenging the

tax assessments for the tax years 1972-73 through 1979-80,

inclusive, of the real property located at 645 Madison

Avenue, City and State of New York, were commenced

by timely service and filing of petitions for the respective

tax years. The petitions relative to each of these two

properties alleged, inter alia, that the assessments were

erroneous by reason of inequality in that they were made

at a higher proportionate valuation than were the assess-

ments of other property in New York City generally.

Pursuant to the rules of the Supreme Court of New

York, Equitable timely advised the Court of its intent to

proceed to trial of each matter on the claim of inequality.

On July 28, 1980, Equitable, seeking to use the State

Equalization Rate to establish the inequality of its real

property assessments, moved to dismiss certain defenses

to its inequality claims and for partial summary judgment.

Upon denial of its motions by the trial court, Equi-

table proceeded through the appellate process of the

State, arguing that it had a Constitutional right to use

the State Equalization Rate to establish the inequality

of its assessments.°

5. The statute initially challenged by Equitable in the Supreme

Court of New York was RPTL § 720(3) (Act of May 22, 1979, ch.

How Question Was Presented 7

HOW THE FEDERAL QUESTION WAS

PRESENTED

The federal question raised by Equitable at each

judicial level of this case was whether the State, in pre-

cluding Equitable from using the State Equalization Rate

to establish the inequality of its real property assess-

ments, denied to Equitable its right to the Equal Protec-

tion and Due Process of law guaranteed by the Fourteenth

Amendment of the Constitution of the United States.

The federal question was raised initially in the papers

submitted in support of July 28, 1982 motions made before

the Supreme Court of New York. Equitable asserted

therein that the Act of May 22, 1979, ch. 126, § 2, 1979

McKinney’s N. Y. Session Laws 351 (“RPTL § 720(3)”)

(a predecessor of L. 1981, ch. 1057, §7) need not be

read in a fashion so as to preclude use of the State

Equalization Rate and that if so read the statute violated

the right of Equitable to the Equal Protection and Due

Process of law guaranteed by the Fourteenth Amendment

5. (Cont'd.)

126, § 2, McKinney's 1979 N. Y. Session Laws 351. This statute

amended the Act of April 27, 1969, ch. 302, § 2, McKinney's 1969

N. Y. Session Laws 399, which had permitted a taxpayer to

pon the State Equalization Rate for proceedings com-

nuk ater feck 1969. The 1979 amendment eliminated

use of the State Equalization Rate and was declared

applicable to any proceeding commenced after January 1, 1970 and

not finally determined as of May 22, 1979. By its terms, the 1979

the amendment, however, were extended repeatedly by the Legis-

lature. Act of January 29, 1981, ch. 3, § 1, McKinney's 1981 N. Y.

Session Laws 4; Act of May 15, 1981, ch. 107, § 1, McKinney's N. Y.

een ee Cone ee ch. 259, § 1, McKinney's

‘ Laws 441. On October 30, 1981, L. 1981,

On December 3, 1982, RPTL §720(3) was

repealed and the statute challenged herein, L. 1981, ch. 1057, § 7,

was enacted.

a

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rons

tie

8 How Question Was Presented

of the Constitution of the United States. The trial court

rejected these positions, denied Equitable the relief sought

and, on August 12, 1980, entered an order to that effect.

Equitable appealed the order of the Supreme Court

of New York to the Appellate Division, First Judicial

Department, of that Court on September 10, 1980.

Equitable continued its challenge of the constitutionality

of RPTL §720(3), as amended, and again asserted its

right to Equal Protection and Due Process of law. On De-

cember 11, 1980, the Appellate Division granted the

motion of Robert Abrams, Attorney General for the State

of New York, to intervene in the appeal.’ The Appellate

Division, on May 14, 1981, affirmed the order of the trial

court on the verbal opinion of that court. Presiding Judge

Murphy dissented, determining RPTL § 720(3) to be un-

constitutional insofar as it operated retroactively against

pending petitions for tax periods prior to May 22, 1979.

On June 9, 1981, the Court granted, as a matter of law,

the motion of Equitable for leave to appeal its decision

to the Court of Appeals of New York.

The Equal Protection and Due Process arguments,

made to the two lower courts, were presented to the

Court of Appeals of New York. Subsequent to briefing

and oral argument before the Court of Appeals, the Legis-

lature repealed the challenged statute, RPTL § 720(3),

and enacted L. 1981, ch. 1057, §7. Upon the Necember

3, 1981 enactment of the statute herein challenged, the

Cheat ef Reals weed einai Geis te he

parties to the appeal regarding the newly-enacted statute.

Equitable made two arguments. First, it urged that

L. 1981, ch. 1057, § 7, which precludes use of the State

Equalization Rate in New York City and Nassau County,

was not applicable retroactively to the proceedings at

6. Mr. Abrams sought permission to intervene since the appeal

challenged the constitutionality of a State statute.

How Question Was Presented 9

issve in the appeal. Alternatively, Equitable demonstrated

that even if the law were deemed retroactively applicable

to assessment challenges commenced prior to its enact-

ment, it was of no effect because it violated the right of

Equitable to Equal Protection and Due Process of law in

that it precluded use of the only viable—and most pro-

bative—method of establishing inequality of assessment.

The Court of Appeals, on January 7, 1982, modified

the order of the Appellate Division of the Supreme Court,

First Department, in ways not directly relevant to this

appeal, and, as so modified, affirmed it. In so doing, the

Court of Appeals held that L. 1981, ch. 1057, §7 was

retroactively applicable to the assessment challenges of

Equitable and specifically further held that the statute

did not violate the Equal Protection and Due Process

Clauses of the Fourteenth Amendment of the Constitu-

tion of the United States. From this portion of the deci-

sion of the Court of Appeals, Equitable took this appeal.

10 The Question Is Substantial

THE QUESTION IS SUBSTANTIAL

The question of the scope of protection of the Due

Process and Equal Protection Clauses of the Fourteenth

Amendment against arbitrary and coufiscatory real prop-

erty taxation is substantial. The issue regarding this pro-

tection, presented in this case, is a novel one which falls

in the interstices of prior decisions by this Court on the

subject. In order to aid the Court in understanding the

issue invoived in this case and its novelty, a summary of

the important provisions and recent developments in the

State property tax law follows.

In New York City and the rest of the State, challenges

to tax assessments may be predicated on one or more of

three grounds: (1) overvaluation, (2) illegality, and (3)

inequality. See Act of December 3, 1981, ch. 1057, §§ 706,

707, McKinney’s 1981 N. Y. Session Laws (Mar. 1982

Supp., at 1981-232-33) (App., infra, A71-A72); Ad-

ministrative Code of the City of New York, Vol. 2 ch. 7,

Title A, § 166-1.0(b) (App., infra, A70). As a practical

matter, the grounds of overvaluation and illegality are

illusory means of redressing confiscatory and arbitrary

tax assessments.

Overvaluation is a non-viable basis for relief from

excessive taxation because the prevalent practice of assess-

ing jurisdictions within the State has been to assess real

property at differing fractions of the legally mandated full

value rate of assessment, which was required at all times

pertinent hereto. See Hellerstein v. Assessor of the Town

of Islip, supra 37 N. Y. 2d at 13, 371 N. Y. S. 2d at 398.

This practice has resulted in two different assessment

standards being applied by the taxing authorities and the

courts: a full value standard of assessment has been

applied by the courts in ruling on tax assessment chal-

lenges, while some fraction of that standard has been used

by the taxing authorities. Id.; People ex rel. Parklin

The Question Is Substantial ll

Operating Corp. v. Miller, supra, 287 N. Y. at 128-29.

Thus, overvaluation is an illusory remedy for assessment

review inasmuch as the challenging taxpayer, by proceed-

ing with such a challenge, will have conceded the assess-

ment ratio to be 100% of full value, which it is not.

Hellerstein v. Assessor of the Town of Islip, supra,

also demonstrates the illusory nature of an illegality chal-

lenge, a seldom used basis for tax assessment relief. In

N. Y. S. 2d at 389. Although the New York Court of

Appeals agreed that the assessments in Islip were illegal

because they were made at less than full value, it con-

cluded that it would be inappropriate for it to disturb the

assessment roll of the town and, therefore, denied the tax-

payer any relief as to past erroneous assessments. 37

N. Y. 2d at 14, 371 N. Y. S. 2d at 399.

The final ground for challenging the validity of real

property tax assessments is inequality. Pursuant to the

provisions of newly-enacted L. 1981, ch. 1057, §7, in-

equality of an individual assessment may be established

throughout the State by either, or both, of two methods:

(1) the ratio of assessed value-to-full market value, as

determined by appraisals of selected properties within the

assessing unit (“selected parcels method”), or (2) the

ratio of assessed value-to-full market value, as determined

by sales with the assessing unit (“sales method”). Tax-

payers in all assessing units within the State, except New

York City and Nassau County, additionally are permitted

by L. 1981, ch. 1057, § 7 to establish inequality of assess-

ment by utilizing the State Equalization Rate.

As a practical matter, neither the selected parcels

method nor the sales method—the only two methods

12 The Question Is Substantial

statutorily permitted in Nassau County and New York

City—is a viable means of proving inequality of assess-

ment within these two assessing units because of prohibi-

tive costs and the excessive expenditure of time thereby

required. In 860 Executive Towers, Inc. v. Board of

Assessors of County of Nassau, 53 A. D. 2d 463, 385

N. Y. S. 2d 604 (2d Dept. 1976), affd sub nom. Pierre

Pellaton Apartments, Inc. v. Board of Assessors of County

of N: , on opinion below, 43 N. Y. 2d 769, 401 N. Y. S.

2d 1013 (1977), the Court of Appeals of New York deter-

mined that a taxpayer cannot be relegated “to the time-

consuming and expensive selected-parcel method of prov-

ing ratio, which has heretofore served to limit the number

of certiorari proceedings and the amount of relief secured.”

53 A. D. 2d at 471, 385 N. Y. S. 2d at 610.

The plurality of the Appellate Division of the

Supreme Court in Slewett & Farber v. Board of Assessors

of the County of Nassau, 78 A. D. 2d 403, 435 N. Y. S$. 2d

313 (2d Dept. 1981), aff'd in part, modified in part, upon

reargument, 80 A. D. 2d 186, 438 N. Y. S. 2d 544, modified,

54 N. Y. 2d 547, 446 N. Y. S. 2d 241 (1982), reviewed

the costs incurred in using the selected parcels method in

the 860 Executive Towers v. Board of Assessors of County

of Nassau case, supra, and found that the record therein

indicated that: (1) legal research and preparation totalled

2,000 hours; (2) the trial extended over 50 full or partial

days, as reflected by the trial transcript of approximately

7,000 pages; and (3) the total cost attributable to the

selected parcels approach amounted to $484,000. 80 A. D.

2d at 215, 438 N. Y. S. 2d at 565. Upon review of the

foregoing facts, the plurality concluded: “But if parcel

selection seems an unconstitutionally expensive method by

which to prove inequality, it is not the exclusive method,

for the challenged statute [RPTL §720(3), as then

na repealed] also permits proof of actual

sales.” Id.

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of New York, supra (App., infra, at A20-A21).

The State Equalization Rate is the only viable means

of establishing inequality of assessment. Yet its use is

precluded in New York City and Nassau County tax pro-

ceedings by L. 1981, ch. 1057, § 7. This Rate,

propounded by a State agency, is readily available

expense to aggrieved taxpayers

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anit

lilly

(Pritchard v. Norton, 106 U. S. 124, 132), the appellant

has no property, in the constitutional sense, in any par-

ticular form of remedy; all that he is guaranteed by the

8. In addition to its use in tax proceedings outside the City

and Nassau County, the State Equalization Rate is used to deter-

mine the amount of State aid to which political subdivisions within

the State are entitled.

Gibbes v. Zimmerman, 290 U. S. 326, 332 (1933) (ox

phasis added).

The Due Process issue presented in this appeal is:

“No state shall . . . deny to any person within its

jurisdiction the equal protection of the laws.” §1, XIV

Amend., U. S. Const.

The challenged State statute, L. 1981, ch. 1057, § 7,

which presently permits the use of the State Equalization

Rate in all assessing units of the State except New York

City and Nassau County, a distinction based on the size of

9. See Study for City Calls Realty Tax Hideously Inequitable,

N. Y. Times, Apr. 24, 1981, § 1, at 1, col. 2

lative discretion, not judicial supervision, except where

there is a clear conflict with constitutional limitations.”

346 U. S. at 552-53 (emphasis added).

The size of population distinction upheld by the

Court of Appeals in concluding that the Legislature could

distinguish betweon New York City and Nassau County

on the one hand, and the rest of the State on the other,

contravenes the restrictions placed on territorial distinc-

tions in Lewis and Salsburg.

As previously set forth, the size of population dis-

tinction (later described by the Court of Appeals of New

York, in J. A. Green Construction Corp. v. Finance Ad-

ministrator and the Tax Commission of the City of New

York, supra, 56 N. Y. 2d at 376-77, as an economic dis-

tinction ) sanctioned by the Court of Appeals in this case

denies Equitable its right to Due Process of the law.

Further, this size of population, or economic, distinction

its right to Equal Protection of the laws

in that it denies to it and other taxpayers in New York City

and Nassau County an effective means of redressing inten-

tionally

Sunday Lake Iron Co. v. Wakefield, 247 U. S. 350, 352-53

The Question Is

18

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lish ide sedis

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quite

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4 -

aH | beret

The Question Is Substantial 19

Finally, that the Constitutional right of equality of

assessment, in the absence of a valid classification system

of assessment, cannot be eradicated directly or retro-

actively is axiomatic. Hillsborough Township v. Crom-

well, 326 U. S. 620, 623 (1946); Sioux City Bridge Co. v.

Dakota County, 260 U. S. 441, 446 (1923); Sunday Lake

Iron Co. v. Wakefield, supra, 247 U. S. at 352-53. It is

just as incontrovertible that a State cannot impinge upon

this right indirectly by declaring the only viable evidence

of violations of this right to be inadmissible, so that tax-

payers effectively cannot challenge unconstitutional dis-

criminatory practices of the assessing authority.

‘lhe words of Justice Holmes in Davis v. Wechsler,

263 U. S, 22, 24 (1923) are particularly apposite here:

“Whatever springes the State may set for those who

are endeavoring to assert rights that the State confers,

the assertion of Federal rights, when plainly and

reasonably made, is not to be defeated

name of local practice... . The state

deal with that as they think proper in

apeLay E

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estestt:

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fail

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20 The Question Is Substantial

The decision of the Court of Appeals in this case is

final; Equitable is precluded from using the State Equali-

zation Rate to establish violation of its right to uniformity

of assessment. For all intents and purposes, the federal

issue presented herein is conclusive of the outcome of the

case. Cox Broadcasting Corp. v. Cohn, supra, 420 U. S.

at 479; Pope v. Atlantic C. L. R. Co., supra, 345 U. S. at

381-83. Further review of this substantial federal issue

cannot be had. Cox Broadcasting Corp. v. Cohn, supra,

420 U. S. at 481.

Conclusion 21

CONCLUSION

For the foregoing reasons, this Court should note

probable jurisdiction of this appeal.

Respectfully submitted,

Datep: August 20, 1982

Davip A. Ross

Member of the Bar of the

United States Supreme Court

Decuert Price & RHOADs

Eleven Broadway

New York, NY 10004

Counsel of Record for Appellant

The Equitable Life Assurance

Society of the United States

Of Counsel:

GaLe G. Moscow

H. Francis DeLong, Jr.