Amicus Curiae Brief — Spencer v. South Carolina Tax Commission

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Office ED

FIL

ne JAN B 1985

J ALEXANDER L. STEVAS,

CLERK

No. 84-249

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1984

ROGER L. SPENCER and SHIRLEY L. SPENCER,

Petitioners,

SOUTH CAROLINA TAX COMMISSION, et al.,

Respondents,

On Writ of Certiorari to the

Supreme Court of South Carolina

BRIEF OF AMICI CURIAE

In Support of Respondents

FRANCIS X. BELLOTTI

ATTORNEY GENERAL

Commonwealth of Massachusetts

THOMAS R. KILEY

First Assistant Attorney General

One Ashburton Place

Boston, Massachusetts 02108

(617) 727-1224

Counsel of Record

JUDITH S. YOGMAN

Assistant Attorney General

(See inside front cover for additional

counsel. )

NORMAN C. GORSUCH

ATTORNEY GENERAL

State of Alaska

STEVE CLARK

ATTORNEY GENERAL

State of Arkansas

DUANE WOODARD

ATTORNEY GENERAL

State of Colorado

JIM JONES

ATTORNEY GENERAL

State of Idaho

THOMAS J. MILLER

ATTORNEY GENERAL

State of Iowa

DAVID L. ARMSTRONG

ATTORNEY GENERAL

ALEX W. ROSE

ASSISTANT ATTORNEY GENERAL

State of Kentucky

STEPHEN H. SACHS

ATTORNEY GENERAL

State of Maryland

HUBERT H. HUMPHREY, III

ATTORNEY GENERAL

State of Minnesota

BRIAN MCKAY

ATTORNEY GENERAL

State of Nevada

(See inside back cover for additional

counsel. )

TABLE OF CONTENTS

TABLE OF AUTHORITIES iii

INTEREST OF AMICI CURIAE l

SUMMARY OF ARGUMENT 7

ARGUMENT

I. AN ACTION SEEKING A REFUND OF

STATE TAXES ON THE GROUND THAT

THE APPLICABLE STATE STATUTE

VIOLATES THE PRIVILEGES AND

IMMUNITIES CLAUSE IS NOT AN

ACTION TO ENFORCE THE

PROVISIONS OF 42 U.S.C.

§ 1983, GIVING RISE TO

ATTORNEY'S FEES UNDER 42

U.S.C. § 1988. 10

A. Congress Did Not Intend

§ 1983 to Be Used as a

Remedy for Unconstitutional

Taxation Where State Law

Provides an Adequate Remedy

for Such Constitutional

Claims. 12

B. Congress Did Not Intend

§ 1983 to be Used to

Enforce the Privileges

and Immunities Clause. 20

C. Congress Did Not Intend

§ 1983 to Apply to Actions .

Against a State. 27

II. THE SOUTH CAROLINA COURT WAS NOT

REQUIRED TO ADJUDICATE

PETITIONERS’ § 1983 CLAIM. 33

III.

CONCLUSION

The South Carolina Court

Did Not Decline to En-

force the Federal

Constitution. 34

Congress Did Not Intend

to Require State Courts

to Entertain § 1983

Claims in Tax Cases

Against the State. 38

The State Court Had Several

"Valid Excuses" for De-

Clining to Entertain

Petitioners’ § 1983

Claim. 48

THE STATE COURT ACTED WiTH-

IN THE SCOPE OF ITS DIS-~

CRETION IN DECLINING TO

AWARD ATTORNEY'S FEES

PURSUANT TO 42 U.S.C.

§ 1988. 57

TABLE OF AUTHORITIES

CASES

Allen v. McCurry,

449 U.S. 90 (1980)

Ancerson v. Thompson,

658 F.2d 1205

(7th Cir. 1981)

Backus v. Chilivis,

236 Ga. 500,

224 S.E.2d 370 (1976)

Bland v. McHann,

463 F.2d 21

(Sth Cir. 1972),

cert. denied,

410 U.S. 966 (1973)

Boland v. City of Rapid City,

315 N.W.2d 496

(S.D. 1982)

Boldt v. State,

101 Wis. 2d 566,

305 N.W. 2d 133,

cert. denied,

454 U.S. 973 (1981)

Brown v. Gerdes,

321 U.S. 178 (1944)

Brown v. Hornbeck,

54 Md. App. 404,

458 A.2d 900 (1983)

- ili -

25,

26,

37,

l7,

40,

63,

60,

Brown v. Stackler,

612 F.2d 1057

(7th Cir. 1980)

California v. Grace Brethren

Church,

457 U.S. 393 (1982)

Carter v. Greenhow,

114 U.S. 317 (1885)

Chapman v. Houston Welfare Rights

Organization,

441 U.S. 600 (1979)

Claflin v. Houseman,

93 U.S. 130 (1876)

Consolidated Freightways Corp.

v. Kassel,

730 F.2d 1139

(8th Cir.),

cert. denied,

105 s. Ct. 126 (1984)

Copeland v. Housing Authority,

316 S.E.2d 408

(S.C. 1984)

Cunningham v. Macon & Brunswick

Railroad Co.,

109 U.S. 446 (1883)

De Bleecker v. Montgomery County,

292 Md. 498,

438 A.2d 1348 (1982)

- iv -

District of Columbia v. Carter,

409 U.S. 418 (1973) 44

Douglas v. New York, New Haven &

Hartford Railroad Co.,

279 U.S. 377 (1929) 41, 49

Edelman v. Jordan,

415 U.S. 651 (1974) 31, 54

Edgar v. State,

92 Wash. 2d 217,

595 P.2d 534 (1979),

cert. denied,

444 U.S. 1077 (1980) 28

Employees of the Department

of Public Health & Welfare

v. Department of Public

Health and Welfare,

411 U.S. 279 (1973) 32

Ex parte New York,

256 U.S. 490 (1921) 30

Fair Assessment in Real Estate

Association v. McNary,

454 U.S. 100 (1981) passim

FERC v. Mississippi,

456 U.S. 742 (1982) 36, 41,

First National Bank v. Marquette

National Bank,

636 F.2d 195

(8th Cir. 1980),

cert. denied,

450 U.S. 1042 (1981) 27

Fitzpatrick v. Bitzer,

519 F.2d 559 | Hodel v. Virginia Surface Mining

(2d Cir. 1975), & Reclamation Association,

aff'd in part > 452 U.S. 264 (1981) 54

rev'd in par |

427 U.S. 44 =t 1976) 51 Hopkins v. Clemson Agricultural

College,

Ford Motor Co. v. Department 221 U.S. 636 (1911) 30 633

of Treasury,

323 U.S. 459 (1945) 33, $i Hornbeak v. Hamm,

283 F.Supp. 549

Garcia v. San Antonio Metropolitan (M.D. Ala.),

“Transit Authority, aff'd, 393 U.S. 9 (1968) 26

104 S. Ct. 3582 (1984) 53

Hutto v. Finney,

Georgia Railroad & Banking Co. 437 U.S. 678 (1978) 32, 58

v. Musgrove,

335 U.S. 900 (1949) 51 Kokoszka v. Belford,

417 U.S. 642 (1974) 18

Great Lakes Dredge & Dock Co.

v. Huffman, Kristensen v. Strinden,

319 U.S. 293 (1943) 2 343 N.W.2d 67

(N.D. 1983) 51

Green v. Carbough,

460 F.Supp. 1193 Lynch v. Household Finance Corp.,

(E.D. Va. 1978) 63 405 U.S. 538 (1972) 25, 26

Hans v. Louisiana, Maine v. Thiboutot,

134 U.S. 1 (1890) 30, 5l 448 U.S. 1 (1980) 26, 39,

61, 62

Haring v. Prosise,

462 U.S. 306 (1983) 14, 19, Martin v. Hancock,

44 466 F.Supp. 454

(D. Minn. 1979) 63

Hensley v. Eckerhart,

103 S. Ct. 1933 (1983) 60 Martinez v. California,

444 U.S. 277 (1980) 39

Hicklin v. Orbeck,

437 U.S. 518 (1978) 24 McKnett v. St. Louis & San Francisco

Railway Co.,

279 U.S. 230 (1934) 41, $3

- vi - ~

- vii -

casas aia iiiiiie iia

M'Culloch v. Maryland,

17 U.S. (4 Wheat.) 316 Pennhurst State School & Hospital

(1819) 54 v. Halderman,

451 U.S. 1 (1981) ll, 13,

Middlesex County Sewerage Authority 20, 21

v. National Sea Clammers

Association, Platt v. Union Pacific Railroad

453 U.S. 1 (1981) a. £d, Co., 99 U.S. 48 (1879) 46

Prigg v. Pennsylvania,

Missouri v. Mayfield 41 U.S. (16 Pet.)

340 U.S. 1 (1950) 49 539 (1842) 35

Mitchum v. Foster, Quern v. Jordan,

407 U.S. 225 (1972) 14, 21, 440 U.S. 332 (1979) 4, 27,

44 , 29, 32

Monaco v. Mississippi, Redd v. Lambert,

292 U.S. 313 (1934) 18 522 F. Supp. 608,

610 (N.D. Miss. 1981),

Mondou v. New York, New Haven & aff'd, 674 F.2d 1032

Hartford Railroad Co., (5th Cir. 1982) 47

223 U.S. 1 (1912)

Roberts v. Mills,

291 Or. 21,

Monroe v. Pape, 628 P.2d 714 (1981) 60

365 U.S. 167 (1961)

Rosewell v. LaSalle National

Bank,

National League of Cities v. 450 U.S. 503 (1981) 2, 3,

Usery, 16, 46

426 U.S. 833 (1976)

Slaughter-House Cases,

NLRB v. Allis-Chalmers 83 U.S. (16 Wall.) 36 (1873) 22, 23

Manufacturing Co.,

388 U.S. 175 (1967) Smith v. Robinson,

104 S. Ct. 3457 (1984) ll, 12,

Palmer v. Ohio, 13, 20,

248 U.S. 32 (1918) 33, 59

State v. Green, 633 P.2d 1381

(Alaska 1981) 28

- vili -

- 1X -

statea7 oc2d 7i2 ons intuit CONSTITUTIONAL PROVISIONS

(Miss. 1980),

cert. denied sub. nom.

Articles of Confederation,

Article IV

450 U.S. 926 (1981) 17, 40, re ee

48, 56 Article I, 29. 23

erce Clause ’

Testa v. Katt, one 24

330 U.S. 386 (1947) 36, 41 Contract Clause 21

; Article IV, .

Thiboutot v. State, Privileges and Immunities

405 A.2d 230 (Me. 1979), Clause passim

aff'd sub nom,

Maine v. Thiboutot, Article VI, Supremacy

448 U.S. 1 (1980) 29, 51, Clause passim

i £ Fj Tenth Amendment Se Be

Tully v. Griffin, Inc.,

429 U.S. 68 (1976) 2, 16 Eleventh Amendment 28, 29,

30, 56

United Building & Construction ;

Trades Council v. Mayor & Fourteenth Amendment 21, 22,

Council of Camden, 23, 25,

104 S. Ct. 1020 (1984) 24 29

Werch v. City of Berlin,

673 F.2d 192 STATUTES

(7th Cir. 1982) 15

S.C. Code Ann. § 12-7-750 38

Woodbridge v. Worcester State

Hospital, S.C. Code Ann. § 12-47-220 34, 50

384 Mass. 38,

423 N.F.2d 782 (1981) 28, 5l 28 U.S.C. § 1341 passim

Younger v. Harris, U.S.C. 1343 26

410 U.S. 37 (1971) 6 - .

42 U.S.C. § 1983 passim

42 U.S.C. § 1988 passim

- xi-

TREATISES

Case Comment, Statutory

Non-Civil Rights Violations

of Section 1983 and

Awards of Attorneys'

Fees After Maine v.

Advisory Commission on Inter-

governmental Relations,

Significant Features of

oe Ta Sree ‘ Thiboutot, 61 B.U.L. Rev.

P. Bator, P. Mishkin, D. Shapiro 1069 (1981) 63

tart S Weubebee*e the feteres | Developments in the Law, Section

vy ly * yee lnpeeel™ 90 Harv. L. Rev, 1133 (1977) 21, 44,

M. Derfner & A. Wolf,

Court Awarded Attorney eee ye Ay ag Commerce

’

Fees (1983) 58 91 Yale L. J. 425 (1982) 24

J. Nowak, R. Rotunda, J. Young,

Constitutional Law

(2d ed. 1983) 22

Field, The Eleventh Amendment &

Other Sovereign Immunity

Doctrines: Part One, 126

L. Tribe, American Constitu- U. Pa. L. Rev. 15 (1977) 31

ca atone Gordon & Gross, Justiciability of

22, 23, Federal Claims in State Court,

24 59 Notre Dame L. Rev. 1145

(1984) 56

PERIODICALS

Hart, The Relations Between

State & Federal Law,

Brillmayer & Underhill, 54 Colum. L. Rev. 489

Congressional Obligation

to Provide a Forum for (1954) .

Constitutional Claims: , .

; “fae : Liberman, State Sovereign Immunit

Discriminatory Jurisdictional in Suits to inde sodas) ‘

Rules & the Conflict of Rights

the Laws, :

69 Va. L. Rev. 819 (1983) 56 1977 Wash. U.L.Q. 195 30, 37

Note, State Enforcement of

Federally Created Rights,

73 Harv. L. Rev. 1551

(1960) 6, $5

- xii - - xiii -

Redish & Muench,

Adjudication of Federal Causes

of Action in State Court,

75 Mich. Le Rev. 31l j

(1976)

Sandalow, Henry v. Mississippi

and the Adequate State

Ground: Proposals for a

Revised Doctrine,

1965 S. Ct. Rev. 187

Tribe, Intezgovernmental Immuni-

ties in Litigation, Taxation

& Regulation: Separation of

Powers Issues in Controver-

sies About Federalism,

89 Harv. L. Rev. 682 (1976)

42, 49,

52, 55

5, 32,

43, 55

43, 53,

CONSTITUTIONAL AND LEGISLATIVE HISTORY

121 Cong. Rec. (1975)

122 Cong. Rec. (1976)

The Debates in the Several State

Conventions on the Adoption

of the Federal Constitution

(J. Elliot ed. 1836)

The Federalist No. 8l

The Federalist No. 82

H.R. Rep. No. 1558,

94th Cong. 2d Sess. (1976)

- xiv -

31, 54

58, 61

H.R.

S. Rep.

Rep.

No.

1503,

75th Cong., lst

No.

2d Sess,

U.S. Code Cong.

5908

No.

lst Sess.

10il,

1035,

Sess.

(1937)

94th oy ote

reprinted in 19

& Ad.

News

75th Cong.,

16,

No. 84-249

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1984

ROGER L. SPENCER and SHIRLEY L. SPENCER,

Petitioners,

SOUTH CAROLINA TAX COMMISSION, et al.,

Respondents.

On Writ of Certiorari to the

Supreme Court of South Carolina

BRIEF OF AMICI CURIAE

In Support of Respondents

INTEREST OF AMICI CURIAE

The primary interest of the amici

states=— in this case is one that

1/ The states participating in this

brief as amici curiae are: Alaska, Ar-

kansas, Colorado, Idaho, Iowa, Kentucky,

Maryland, Massachusetts, Minnesota, Ne-

vada, North Dakota, New Hampshire, Ohio,

Pennsylvania, and South Dakota.

has long been recognized by this Court

as fundamental--"the imperative need of

a State to administer its own fiscal

Operations. . . . ‘especially when the

State .. . has set up its own adequate

procedure for securing to the taxpayer

the recovery of an illegally collected

taz."* The "compelling nature" of

this interest, Rosewell v. LaSalle Na-

tional Bank, 450 U.S. 503, 527 (1981),

is based on both practical and theoret-

ical considerations. States are, of

course, dependent on the efficient and

expeditious collection of taxes for their

day-to-day operation.= Even more

2/ Tully v. Griffin, Inc., 429 U.S. 68,

73 6) (quoting from Great Lakes

Dredge & Dock Co. v. Huffman 31

333-398 TSE) Bl cia

3/ States derive most of their revenue

from state taxes. Advisory Comm'n on

(footnote continued)

fundamentally, the states' ability to

administer their systems of tax collec-

tion, free from undue federal interfer-

ence, is essential to their sovereign

status within our federal system. Fair

Assessment in Real Estate Association Vv.

McNary, 454 U.S. 100, 102 (1981).

To require state courts to provide

relief under 42 U.S.C. § 1983 for claims

based upon allegedly unconstitutional

state taxes “would disrupt the process

of local taxation and create burdensome

and unnecessary chaos in local govern-

ment." Backus v. Chilivis, 236 Ga. 500,

224 S.E.2d 370, 375 (1976). In addition

to the potential for damages and attor-

ney's fees that “would place ‘enormous

(footnote continued)

Intergovernmental Relations, Significant

Features of Fiscal Federalism 53, 56

—————

,» cited in Rosewell, 450 U.S. at

527.

fiscal burdens on the States,'" cf. Quern

v. Jordan, 440 U.S. 332, 345 n. 16

(1979), “the very maintenance of the

(§ 1983] suit itself would intrude on

the enforcement of the state [tax]

scheme," Fair Assessment, 454 U.S. at

114, by permitting aggrieved taxpayers

to evade the mechanisms established by

State legislatures for resolving tax

disputes.

A second interest shared by the amici

states is in the independence and integ-

rity of their state judiciaries. While

in no way questioning the obligation of

state courts to uphold and enforce fed-

eral law, as the South Carolina Supreme

Court did here, the amici ask the Court

to recognize their prerogative, under

Our federal system, to determine how

those rights are to be enforced. In so

doing, the Court is urged to consider

the enormous and unnecessary burden that

would be imposed on state courts4’ by

requiring them to adjudicate § 1983

claims in tax cases where state law al-

ready provides an adequate, but less

burdensome, remedy for violations of

federal law.2/ As noted by one com-

mentator, the problem should be viewed

as one of accommodation be-

tween the somewhat conflicting

constitutional purposes of

securing the effective en-

forcement of federally created

rights in the manner which

4/ Affirming the lower court's judgment

in this case would not increase the bur-

den on federal courts, since, as recog-

nized by petitioners, Petitioners’ Brief

at 46-47, this type of case could not be

brought in federal court.

5/ Hart, The Relations Between State

and Federal Law, 54 Colum. L. Rev. 489,

507-08 (19£+); Sandalow, Henry v. Missi-

ssippi_ and the Adeguate State Ground:

Proposals for a Revised Doctrine, i965

S. Ct. Rev. 187, 207 n. 187.

to Congress seems proper and,

at the same time, maintaining

the states as viable political

units with the ability to di-

rect the ends for which their

judicial systems may be used,

Note, State Enforcement of Federally

Created Rights, 73 Harv. L. Rev. 155l,

1555 (1960).

Accordingly, the amici urge this

Court, in resolving the important ques-

tions presented by this case, to adhere

to the principles of "Our Federalism,"

under which

there is sensitivity to the

legitimate interests of both

State and National Govern-

ments, and in which the Na-

tional Government, anxious

though it may be to vindicate

and protect federal rights

and federal interests, always

endeavors to do so in ways

that will not unduly inter-

fere with the legitimate ac-

tivities of the States.

Younger v. Harris, 401 U.S. 37, 44

(1971). As in Fair Assessment, 454 U.S.

at 102, “[{t]Jhis Court [should continue

to] . . . recognize[] the important and

sensitive nature of state tax systems

and the necessity for . . . restraint

when deciding cases that affect such

systems." As will be shown below, ad-

herence to those principles requires that

the decision of the South Carolina Su-

preme Court be affirmed .£/

SUMMARY OF ARGUMENT

The threshold question presented by

this case is whether it is an action to

enforce the provisions of 42 U.S.C.

§ 1983, giving rise to eligibility for

attorney's fees under 42 U.S.C. § 1988.

The legislative history of § 1983 and of

26 U.8.C- § 1341 demonstrates that

6/ In contrast to the larger interests

Shared by the amici and the respondents,

the sole interest of the petitioners in

this case is in having their attorney's

fees paid by the state.

Congress did not intend § 1983 to be used

as a remedy for unconstitutional taxation

where, as here, state law provides an

adequate remedy for such constitutional

Claims. Nor was § 1983 intended to be

used to enforce the Privileges and In-

munities Clause or to apply to actions

against a state. Since this case there-

fore cannot be characterized as an action

to enforce the provisions of § 1983, no

attorney's fees were available under

§ 1988. Pp. 10-33.

Even if this tax case were cognizable

under § 1983, the South Carolina court

was not required to adjudicate peti-

tioners' § 1983 claim. Although the

Supremacy Clause requires state courts

to enforce substantive federal law, it

does not require that they use § 1983 to

do so where state law provides an ade-

quate remedy for federal constitutional

claims. Congress did not intend to re-

quire state courts to entertain § 1983

claims in tax cases against the state;

and, even if Congress did so intend, the

South Carolina court had several “valid

excuses" for declining to do so, includ-

ing the state's sovereign immunity, its

sovereign status under the Tenth Amend-

ment, and the fact that even the federal

courts would not have been required, or

permitted, to adjudicate petitioners’

§ 1983 claim. Pp. 33-57.

Finally, even if the South Carolina

court was required to entertain peti-

tioners' § 1983 claim, it acted within

the scope of its discretion in declining

to award attorney's fees under 42 U.S.C.

§ 1988. Congress expressly intended to

give trial courts the discretion to deny

fees in appropriate circumstances. De-

nial of fees was particularly appropriate

here since petitioners’ § 1983 claim was

entirely superfluous to their success in

obtaining a tax refund and since their

interests in this matter were more in

the nature of property than personal

rights. Pp. 57-63.

ARGUMENT

I. AN ACTION SEEKING A REFUND OF STATE

TAXES ON THE GROUND THAT THE APPLI-

CABLE STATE STATUTE VIOLATES THE

PRIVILEGES AND IMMUNITIES CLAUSE IS

NOT AN ACTION TO ENFORCE THE PRO-

VISIONS OF 42 U.S.C. § 1983, GIVING

RISE TO ATTORNEY'S FEES UNDER 42

U.S.C. § 1988.

The Civil Rights Attorney's Fees

Awards Act of 1976, 42 U.S.C. § 1988,

applies only to actions or proceedings

to enforce the provisions of 42 U.S.C.

§ 1983 (and other specified statutes not

at issue here). Where § 1983 does not

« 10

afford a remedy, attorney's fees are not

available under § 1988. See, e.g., Smith

v. Robinson, 104 S. Ct. 3457, 3468-74

(1984). Therefore, although the ultimate

question raised by this case is whether

the South Carolina Supreme Court properly

declined to award fees under § 1988, the

threshold question is whether this action

was cognizable under § 1983.2/

In recent cases defining the scope

of § 1983, this Court has clarified that

§ 1983 does not always provide a remedy

for the deprivation of all _ federal

rights.0/ Rather, in determining

7/ As discussed in section III, infra,

even if this action could be viewed as

one to enforce the provisions of § 1983,

the court nevertheless was justified in

declining to award fees on other grounds.

8/ See Pennhurst State School & Hosp.

v. Halderman, 451 U.S. I (1981); Middle-

sex County Sewerage Auth. v. Nat'l Sea

Clammers Ass'n, 453 U.S. 1 (1981); Smith

Vv. Robinson, 104 S. Ct. at 3468-74.

~—) oe

whether § 1983 applies, “(t]he crucial

consideration is what Congress intended.”

Smith v. Robinson, 104 S. Ct. at 3469-70.

As will be shown here, Congress did not

intend § 1983 to be used as a remedy in

this type of case. Section 1983 was not

intended to apply to cases seeking re-

funds of state taxes where an available

state law remedy is adequate to redress

any violations of federal constitutional

rights. Nor was § 1983 intended to pro-

vide a remedy for violations of the Pri-

vileges and Immunities Clause or to apply

to any actions against a state,

A. Congress Did Not Intend § 1983

recognized by this Court is that § 1983

does not apply where the remedial devices

provided in another federal statute are

sufficiently comprehensive to demonstrate

congressional intent to preclude suits

under § 1983. Pennhurst, 451 U.S. at 28;

Sea Clammers, 453 U.S. at 13-21; Smith

v. Robinson, 104 S. Ct. at 3468-74.

to Be Used as a Remedy for Un-

constitutional Taxation Where

State Law Provides an Adequate

Remedy for Such Constitutional

Claims.

One exception to the otherwise broad

reach of § 1983 that has been repeatedly

eo AZ «

Where such congressional intent is found

to exist, this exception applies regard-

less of whether the federal right that

the plaintiff seeks to enforce is statu-

tory, Pennhurst; Sea Clammers, or con-

stitutional. Smith v. Robinson. Simi-

larly, actions seeking tax refunds under

§ 1983 are precluded because of the con-

gressional intent that adequate state-law

remedies be the exclusive means for re-

solving state tax disputes.

» AB e

Examination of the legislative his-

tory of § 1983 reveals that it was ori-

ginally intended ») provide “a uniquely

federal remedy," Mitchum v. Foster, 407

U.S. 225, 239 (1972), for civil rights

violations where state remedies were

either inadequate or unavailable. Monroe

v. Pape, 365 U.S. 167, 174-80 (1961).

Indeed, this legislation, which was ori-

ginally enacted as one of the Ku Klux

Klan Acts following the Civil War, was

premised on the assumption by Congress

that state remedies for enforcing federal

law were inadequate. Haring v. Prosise,

462 U.S. 306 (1983).

However, in a more recent and spe-

cific enactment, 28 U.S.C. § 1341,2/

9/ That statute provides: “The district

courts shall not enjoin, suspend or re-

strain the assessment, levy or cvliection

(footnote continued)

—"

Congress expressly indicated that no

federal court remedy is necessary (or

even permissible) in cases challenging

state taxes where an adequate remedy is

available in state court. Fair Assess-

ment, 454 U.S. at 116. Even where tax-

payers raise constitutional objections

to a state tax, § 1341 and its underlying

principles of comity require that "[sJuch

taxpayers must seek protection of their

federal rights by state remedies," rather

than by § 1983, 20/

Although § 1341 directly precludes

only federal court jurisdiction, the

(footnote continued)

of any tax under State law where a plain,

speedy and efficient remedy may be had

in the courts of such State.”

10/ Id.; see also, e.g., Werch v. City

of Berlin, 673 F.2d 192, 194 (7th Cir.

1982); Bland v. McHann, 463 F.2d 21 (Sth

Cir. 1972), cert. denied, 410 U.S. 966

(1973).

- 15 -

concerns underlying its enactment argue

just as forcefully against permitting

the use of federal remedies in state

court in state tax cases. As this Court

has previously noted, the enactment of

§ 1341 "was motivated in large part by

comity concerns." Fair Assessment, 454

U.S. at 110. "(T]he statute has its

roots in... . principles of federalisn,

and in recognition of the imperative need

of a State to administer its own fiscal

operations." Tully v. Griffin, 429 U.S.

at 74. In particular, Congress was con-

cerned that, by invoking federal reme-

dies, “‘taxpayers might escape the pro-

cedural requirements imposed by state

law'" and thereby disrupt local financ-

ing. Rosewell, 450 U.S. at 527; S. Rep.

No. 1035, 75th Cong., lst Sess. 1-2

(1937).

» 16 «

a an

These concerns are equally applicable

to state court proceedings contesting

state taxes. As recognized by the Geor-

gia Supreme Court, in refusing to permit

a taxpayer to circumvent state adminis-

trative and judicia] remedies by seeking

relief under § 1983, "§ 1341 .. . mani-

fests a federal policy of deference to

state administrative and judicial reme-

dies in matters of state taxation that

bars a claim for a tax refund under

§ 1983, *21/ Indeed, if taxpayers in

state court proceedings were permitted

to by-pass state procedural requirements

merely by invoking § 1983, Congress' in-

tent in enacting § 134l--that state

ll/ Backus v. Chilivis, 224 S.E.2d at

374; see also State Tax Comm'n v. Fon-

dren, 387 So.2d 712, 723 (Miss. 1980),

cert denied sub nom. Redd v. Lambert,

750 U.S. 926 (1981).

«» i? «

remedies be used to contest~ state

taxes--would be totally frustrated.

Thus, in enacting § 1341, Congress

created an exception to the assumption

of inadequate state remedies underlying

§ 1983. Those two statutes, construed

together ,+2/ evince the congressional

intent that while a federal remedy gen-

erally should be available to enforce

federal law, no federal remedy is per-

missible in cases challenging state taxes

where a “plain, speedy and efficient

remedy" is available under state law.

The purpose of § 1983--to afford a fed-

eral remedy where “state courts were un-

12/ See Kokoszka v. Belford, 417 U.S.

642, 651 (1974) (when interpreting a

Statute Court looks not merely to statute

in question but also to other statutes in

order to effectuate legislative intent);

NLRB v. Allis-Chalmers Mfg. Co., 388 U.S.

, 194 (1967) (later act may limit

reach of earlier act's vaygve language).

- 18 -

able or unwilling to protect federal

rights," Haring v. Prosise, 462 U.S. at

306--is not served by providing a federal

remedy where state courts are willing

and able to protect federal rights. And

the purpose of § 134l--to prevent unnec-

essary disruption of state tax proceedc-

ings--is also ili-served by permitting

taxpayers to seek federal remedies in

such proceedings.

Given this congressional intent that

an adequate state remedy, such as the

one employed here ,23/ be the exclusive

remedy for challenging the validity of a

state tax, it follows, under the same

i3/ Petitioners do not challenge the

adequacy of the state court remedy for

vindicating federal constitutional rights

in tax cases, nor could they, since the

adequacy of that remedy is evident fron

the results of this case--a state tax

statute was struck down by a state court

on federal constitutional grounds.

» 19 «

rationale applied by this Court in Penn-

hurst, Sea Clammers, and Smith Vv.

Robinson, that actions challenging the

validity of a state tax dc not fall

within the ambit of § 1983 as properly

construed. As in Sea Clammers, the ex-

istence of other remedies, to which Con-

gress expressly deferred, demonstrates

that Congress “intended to supplant any

remedy that otherwise would be available

under § 1983." Id. at 21. Therefore,

§§ 1983 and 1988 should not be construed

to apply to cases such as this.

B. Congress Did Not Intend § 1983

U.S. at 28. Again, the crucial question

is one of congressional intent. Id. at

15.

Historically, § 1983 was intended by

Congress to enforce the provisions of

the Fourteenth Amendment to the United

States Constitution. Monroe v. _ Pape,

365 U.S. at 171; Chapman v. Houston Wel-

fare Rights Organization, 441 U.s. 600,

to Be Used to Enforce the Pri-

Vileges and Immunities Clause.

A second exception to the coverage

of § 1983 that has been recognized by

this Court is that not all federal sta-

tutes or constitutional provisions create

"rights secured" by federal law, within

the meaning of § 1983. Pennhurst, 451

- 20 -

611 (1979). Accordingly, the Fourteenth

Amendment is the “centerpiece"®” of the

statute, Mitchum v. Foster, 407 U.S. at

238-39; and the constitutional rights

enforceable under § 1983 are those rights

guaranteed by the Fourteenth Amend-

ment .4/

14/ Developments in the Law, Section

1983 and Federalism, 90 Harv. L. Rev.

1133, 1135, 1169 (1977); cf. Carter v.

Greenhow, 114 U.S. 317 (1885) (violation

of Contract Clause not actionable under

(footnote continued)

o 21 «

Those rights do not include those

protected by the Privileges and Immu-

nities Clause of Article IV. Despite

the similar wording of that clause and

the Fourteenth Amendment itself (which

also refers to “privileges or immu-

nities"), these two clauses have widely

differing and mutually exclusive appli-

cations. J. Nowak, R. Rotunda, J. Young,

Constitutional Law 414 (2d ed. 1983);

L. Tribe, American Constitutional Law

§§ 7-2, 7-4 (1978). Ever since the

Slaughter-House Cases, 83 U.S. (16 Wall.)

36 (1873), it ias been well-established

that the privileges or immunities pro-

(footnote continued)

predecessor of § 1983); iti tet Vv. Hous-

ton Welfare Rights Org., 441 U.S. at 615

(violation of Supremacy Clause not ac-

tionable under § 1983); Consol. Freight-

ways Corp. v. Kassel, 730 F.2d 1139, itis

(8th Cir.), cert. denied, 105 Ss. Ct. 126

(1984) (violation of Commerce Clause not

actionable under § 1983).

» 22 «

tected by the Fourteenth Amendment are

only those rights peculiar to being a

citizen of the United States, such as

the right to vote in a federal election.

Id. at 74, 79. The privileges and immu-

nities protected by Article IV, on the

other hand, comprehend all the privileges

and immunities of state citizenship, such

as the right to acquire and possess pro-

perty, which are not protected by the

Fourteenth Amendment. Id. at 14, Te

As noted by one scholar, “the Slaughter-

house holding . . . removed from the

purview of the [Privileges or Immunities]

clause [of the Fourteenth Amendment |

every civil right traditionally associ-

ated with state protection.” L. Tribe,

American Constitutional Law § 7-4.

It is also pertinent to note that

the Privileges and Immunities Clause of

Article IV, like the Commerce Clause of

- 23-

Article I, historically was designed to

protect the privileges of trade and com-

merce and to assure national uniformity

in such matters .22/ As previously ex-

plained by this Court, the similarity

between the Commerce Clause and the

Privileges and Immunities Clause of Ar-

ticle IV “stems from their common origin

in the Fourth Article of the Articles of

Confederation and their shared vision of

federalism." Hicklin v. Orbeck, 437 U.S.

at 531-32. Since the Privileges and Im-

munities Clause was intended primarily

to protect the national interest in an

efficient economy, rather than the indi-

Vidual rights of citizens who might

15/ Hicklin v. Orbeck, 437 U.S. 518,

531-32 (1978); United Bldg. & Constr.

Trades Council v. Mayor & Council of

Camden, 104 S. Ct. 1020, 1026, 1028

; L. Tribe, American Constitutional

benefit indirectly from this protection,

it should not be construed as creating

rights “secured” by the Constitution,

within the meaning of § 1983. See Con-

solidated Freightways Corp. v. Kassel,

730 F.2d at 1144-45. Accordingly, vio-

lations of the Privileges and Immunities

Clause are not actionable under § 1983.

An additional reason that the rights

at stake here are not enforceable under

§ 1983 is that the right not to be sub-

jected to an illegal tax is not the type

of right protected by the Fourteenth

Amendment. Although this Court has, in

general, rejected the distinction between

personal and property rights for purposes

of Fourteenth Amendment analysis, Lynch

v. Household Finance Corp., 405 U.S. 538,

Law 36 (Supp. 1979); Eule, Laying the

Dormant Commerce Clause to Rest, 91 Yale

L.J. 425 (1982).

e 24 «

543 (1972), it has expressly preserved

that distinction with respect to cases

- 25 -

involving constitutional challenges to

state taxation, "a subject governed by

unique considerations.” Id. at 543 fn,

6 .29/ Thus in tax cases, where prop-

erty rights rather than personal rights

are at stake, § 1983 was not intended to

apply .+//

16/ Although the Lynch case was con-

Struing 28 U.S.C. § 1343 rather than 42

U.S.C. § 1983, its holding and analysis

are equally applicable to § 1983, since

the Court expressly noted that "[dJespite

the different wording of [§ 1983] and

([§ 1343], when the § 1983 claim alleges

constitutional violations . . . both

sections are construed identically”

(emphasis added). Id. at 544 n. 7. CE.

Maine v. Thiboutot, 448 U.S. 1 (1980)

(construing § 1983 more broadly than

§ 1343 where the § 1983 claim alleges

Statutory violations).

17/ See Hornbeak v. Hamm, 283 F. Supp.

549 (M.D. Ala.), aff'd, 393 U.S. 9

(1968); Backus v. Chilivis, 224 S.E.2d

at 374; Consol. Freightways Corp. v.

Kassel, 730 F.2d at 1146; see also Boland

v. City of Papid City, 315 N.W.2aq 496

(S.D. 1982) (inverse condemnation claim

(footnote continued)

- 26 -

Ce Congress Did Not Intend § 1983

to Apply to Actions Against a

State.

Section § 1983, by its express terms,

applies only to a "person" who subjects

a to the deprivation of rights se-

cured by federal law. Although this

Court has never expressly stated that a

state is not a “person” for purposes of

liability under § 1983, its holding in

Quern v. Jordan, strongly intimates that

conclusion, 440 U.S. at 365 (Brennan,

J., concurring) ("the Court resolutely

opines that a State is not a '‘'person'

for purposes of § 1963"), which has also

(footnote continued)

not actionable under § 1983); First Nat'l

Bank v. Marquette Nat'l Bank, 636 F.2d

195 (8th Cir. 1980), cert. cenied, 450

U.S. 1042 (1981) (violation of federal

statute protecting property rather than

personal rights not actionable under

§ 1983).

s 27 «

been drawn by most state courts that

have considered the question. 29/

The conclusion that § 1983 does not

apply to suits against states 1s consis-

tent with the congressional intent un-

derlying that statute, as explicated by

this Court. In Quern v., Jordan, 440 U.S.

at 341, the Court was “simply ... un-

Willing to believe . . . that Congress

intended by the general language of

§ 1983 to override the traditional sov-

ereign immunity of the States." The

18/ See, e.g., Edgar v. State, 92 Wash.

2d 217, 595 P.2d 534 (1979), cert. de-

nied, 444 U.S. 1077 (1980); Boldt v.

State, 101 Wis.2d 566, 305 N.W.2d 133,

L145, cert. denied, 454 U.S. 973 (1981);

State v. Green, 633 P.2d 1381 (Alaska

1S8i;i; De Bleecker v. oe County,

292 Md. ’ . ; Wood-

bridge _v. Worcester State Hosp., 384

Mass. 38, 45 n. 7, 423 N.E.2d 782 (1981).

This question generally does not

arise in federal court, where suits

against states are barred, in any event,

by the Eleventh Amendment. Quern v.

Court's refusal to infer any intent to

override the states' sovereign immunity

was based on a careful examination of

circumstances surrounding the adoption

of the Fourteenth Amendment and from the

legislative history of § 1983 itself.

Id. at 343-44,

Although the- immunity directly at

issue in Quern was the immunity from suit

in federal court guaranteed to the states

by the Eleventh Amendment, the logic and

historical analysis underlying the

Court's holding is equally applicable to

the states’ sovereign immunity from suit

in their own courts, surely one of the

most "traditional" dimensions of state

sovereign immunity. See also Thiboutot

v. State, 405 A.2d 230, 236-37 (Me.

Jordan, 440 U.S. at 338-45.

» 26 «

1979), aff'd sub nom. Maine v. Thiboutot,

448 U.S. 1 (1980). The immunity of

states from suit in their own courts has

eo 26 «

long been recognized by this Court as one

of the attributes of state sovereignty

inherent in our federal system.+2/

That immunity derives not from the Elev-

enth Amendment or any other particular

constitutional provision, but from the

general understandings underlying and

predating the Constitution.22/

Nor did the framers intend to abro-

gate the states’ sovereign immunity in

adopting the Constitution. +)/ To the

19/ See, e.g., Palmer v. Ohio, 248 U.S.

32, 34 (1918); Hopkins v. Clemson Agri-

cultural College, 221 U.S. 636, 642

(1911); Cunningham v. Macon & Brunswick

R.R. Co., 109 U.S. 446, 451 (1883).

20/ Monaco _v. Miss., 292 U.S. 313,

322-23 (1934); Ex parte N.Y., 256 U.S.

490, 497 (1921).

21/ Hans v. La., 134 U.S. 1, 13-18

(1890); see also Liberman, State Sover-

contrary, in the debates preceding rati-

fication, John Marshall flatly stated:

"It is not rational to suppose that the

sovereign power [of a state] should be

0 22/ Alexander

dragged before a court.

Hamilton expressed similar sentiments in

The Federalist No. 81, quoted in Edelman

v. Jordan, 415 U.S. 651, 661 n. 9 (1974).

The vague language of § 1983 cer-

tainly does not constitute a statement

of sufficient clarity to overcome the

states’ traditional sovereign immunity

from suit, particularly in the sensitive

22/3 The Debates in the Several State

Conventions on tne Adoption of the Fed-

eral Constitution -56 (J. Elliot ed.

1836), quoted in Fieid, The Eleventh

Amendment and Other Sovereign Immunity

Doctrines: Part One, 126 U. Pa. L. Rev.

eign Immunity in Suits to Enforce Federal

Rights, 1977 Wash. U.L.Q. 195, 202.

- 30 -

515, 528-29

(1977).

23/

area of state taxation.— As recog-

nized in Hutto v. Finney, 437 U.S. 678,

697 n. 27 (1978), such a clear statement

of congressional intent to abrogate the

states’ immunity is required in order to

"insure .. . that Congress has not im-

posed ‘enormous fiscal burdens on the

States' without careful thought."

There can be no doubt that an action

seeking a refund of allegedly unconsti-

tutional state taxes is an action against

the state itself, regardless of the

identity of the named defendants. Ford

23/ Ford Motor Co. v. Dep't of Treasury,

323 U.S. 459, 465 (1945); Employees of

the Dep't of Pub. Health & Welfare v.

Dep't of Pub. Health & Welfare, 411 U.S.

279, 285 (1973) (clear statement of con-

gressional intent required to abrogate

States’ immunity from suit, not found in

§ 1983); Quern _v. Jordan, 440 U.S. at

345 n. 16; Sandalow, supra at 207.

» 32 -

Motor Co. v. Department of Treasury, 323

U.S. at 464; Hopkins v. Clemson Agricul-

tural Coliege, 221 U.S. at 642. Since

§ 1983 was not intended to encompass ac-

tions against states, this action does

not fall within the intended scope of

§ 1983; and since this case was there-

fore not an action to enforce the provi-

sions of § 1983, no attorney's fees were

available under § 1988. Smith v. Rohbin-

son, 104 S. Ct. at 3471 .24/

II. THE SOUTH CAROLINA COURT WAS NOT

REQUIRED TO ADJUDICATE PETITIONERS'

§ 1983 CLAIM.

Assuming, contrary to the arguments

made in the preceding section, that pe-

24/ =Since for the reasons discussed

above, § 1983 could not be used as a

remedy for petitioners’ constitutional

claim, the substantiality of that claim

is immaterial. See Smith v. Robinson,

104 S. ct. at 3469 ("Congress intended

to preclude reliance on § 1983 as a rem-

edy for a substantial equal protection

Claim" (emphasis added) to a free appro-

priate public education).

» 33 «

titioners stated a claim cognizable under

§ 1983, the South Carolina court had no

constitutional obligation to adjudicate

that claim.

A. The South Carolina Court Did

Not Decline to Enforce the Fed-

eral Constitution.

Before discussing to what extent

state courts are obligated to enforce

federal law, it must be emphasized that

the state court in this case did not de-

cline to enforce substantive federal

rights. To the contrary, the state court

relied solely on petitioners' federal

constitutional claim in ruling in their

favor. That it did so pursuant to a

State statutory remedy providing for a

refund of state taxes “wrongfully or il-

legally collected for any reason going

to the merits,* $.C. Code Ann.

§ 12-47-220, rather than pursuant to the

remedy afforded by § 1983, is of no con-

stitutional consequence.

It is well-settled that § 1983 itself

provides no substantive federal rights.

As stated by this Court,

No matter how broad the ([§1983]

cause of action may be, the breadth

of its cover- age does not alter its

proce- dural character. ... [I]t

remains true that one cannot go into

court and claim a "violation of

§ 1983"--for § 1983 .y itself does

not pro- tect anyone against

anything.

Chapman v. Houston Welfare Rights Orga-

nization, 441 U.S. at 617. Since § 1983

creates no rights, petitioners cannot

successfully contend that by declining

to address their § 1983 claim, the state

court violated its opligation under the

Supremacy Clause to enforce their

“rights” under § 1983. See Petitioners'

Brief at 20-31.

The only substantive federal rights

involved in this case are the peti-

tioners' constitutional rights under the

Privileges and Immunities Clause,42/

With respect to those rights, the state

court certainly cannot be charged with

having violated its obligations under

the Supremacy Clause, since it refused

to enforce a state law that it found to

be inconsistent with the federal consti-

tution--precisely what the Supremacy

Clause requires. As recognized by Jus-

tice Frankfurter, concurring in the

judgment in Brown v. Gerdes, 321 U.S.

178, 193 (1944):

The federal law in any field

within which Congress is

25/ Compare Testa v. Katt, 330 U.S. 386

(1947), FERC v. Miss., 456 U.S. 742

(1982), and other cased relied upon at

Petitioners’ Brief at 20-31, in which

substantive federal statutory rights were

involved.

» 36

empowered to Jegislate is the

supreme law of the land in

the sense that it may sup-

plant state legislation in

that field, but not in the

sense that it may supplant

the existing rules of litiga-

tion in the state courts.

Congress has full power to

provide its own courts for

litigating federal rignts.

The state courts belong to

the States.26/

To admit that state courts have a duty

to protect federal rights does not

necessarily lead to the inescapable

conclusion that they must do so pursuant

to § 1983.

This crucial distinction--between

declining to enforce substantive federal

rights (which the Supremacy Clause admit-

26/ See also Liberman, supra at 195

("state courts, contrary to a literal

reading of the supremacy clause, are not

compelled to entorce federal rights ex-

cept to the extent that they arise in

connection with state law claims.");

Brown v. Hornbeck, 54 Md. App. 404, 458

A.2d 900, 904 (1983) (state court did

not need to rely on § 1983 to adjudicate

equal protection claim).

e 37 «

tedly requires) and declining to provide

a federal remedy where a constitu-

tionally adequate state remedy

exists--is understandably glossed over

by the petitioners, since recognition of

this distinction undermines the consti-

tutional foundation of their entire ar-

gument. Since in this case federal law

(the Privileges and Immunities Clause)

was accorded the supremacy over state

law (S.C. Code Ann. § 12-7-750)-Tequired

by the Constitution, the state court's

judgment raises no Supremacy Clause con-

cerns and therefore should be affirmed

without reaching the issues discussed

below.

B. Congress Did Not Intend to Re-

quire State Courts to Entertain

§ 1983 Claims in Tax Cases

Against the State.

This Court has never held that state

courts are required to assume jurisdic-

tion over any kind of § 1983 claims .2//

See Martinez v. California, 444 U.S.

277, 283 n. 7 (1980); Maine v. Thiboutot,

448 U.S. at 3 n. 1. Nor are the amici

aware of any other court holding that

State court jurisdiction over § 1983

claims is required in a tax case against

the state .2o/ - Rather, the state

27/ Claflin v. Houseman, 93 U.S. 130

(1876), and The Federalist No. 82, relied

upon by petitioners, Petitioners' Brief

at 22-24, “were concerned with whether

state courts may take jurisdiction [over

federal claims], not with whether they

must do so." PP. Bator, P. Mishkin, D.

Shapiro, & H. Wechsler, Hart & Wechsler's

The Federal Courts and the Federal Systen

434 (2d ed. 1973).

Indeed, in Claflin itself the Court

recognized, without any adverse comment,

that “it is true that State courts have,

in certain instances, declined to exer-

cise the juridiction conferred upon

them."

28/ None of the cases cited by peti-

tioners for the proposition that state

courts must enforce § 1983 are tax cases.

(footnote continued)

= 39 «

courts, in addition to those of South

Carolina, that have considered whether

they are required to entertain § 1983

claims in tax cases have held that they

29/

are not required to do so.— Backus

v. Chilivis, 224 S.E.2d at 374; State

Tax Commission v. Fondren, 387 So.2d at

723. No such requirement should be found

to exist here, since neither the plain

(footnote continued)

Rather, they are all traditional civil

rights cases concerning police misconduct

or prisoners' rights. See Petitioners’

Brief at 37 n. 9. Most state courts have

willingly assumed jurisdiction over §

1983 claims, at least in traditional

civil rights cases. See Petitioners’

Brief, Appendix B.

29/ It is, of course, not necessary to

determine whether state courts are gen-

erally required to assume jurisdiction

over § 1983 claims in order to resolve

the narrower question presented by the

present state tax case. See Backus Vv.

language nor the legislative history of

§ 1983 indicates that Congress intended

to require state courts to adjudicate

§ 1983 claims in state tax cases. Un-

like the federal statutes at issue in

the cases relied upon by the petitioners,

§ 1983 does not even mention concurrent

State court jurisdiction, much less ex-

30/

pressly require it.— Thus it cannot

be said that § 1983 on its face manifests

30/ Cf. Testa v. Katt, 330 U.S. at 387

(Emergency Price Control Act expressly

provides that federal district courts

shall have jurisdiction “concurrently

with State and Territorial courts"); FERC

V. Miss., 456 U.S. at 750-51 (PURPA ex-

pressly requires state administrative

tribunals to enforce rights granted by

that statute); Mondou v. N.Y., New Haven

& Hartford R.R. Co., 223 U.S. 1, 56

2); McKnett v. St. Louis & San Fran-

cisco Ry. Co., 292 U.S. 230 (1934);

Douglas v. N.Y., New Haven & Hartford

—_—_—_—_—_—_——

R.R. Co., 279 U.S. 377 (1929) (FELA pro-

Chilivis, 224 S.E.2d at 373.

e 40 «

Vides that “jurisdiction of federal

courts shall be concurrent with that of

the courts of several states").

"a congressional determination” that it

be enforceable in state court. Cf. FERC

v. Mississippi, 456 U.S. at 76l.

Absent any express mention of state

court jurisdiction in § 1983, no con-

gressional intent to require such juris-

diction in tax cases may be inferred,

see. Redish & Muench, Adjudication of

Federal Causes of Action in State Court,

75 Mich. L. Rev. 311, 348 (1976), par-

ticularly in light of the intrusion on

the sovereignty of the state judiciary

that would follow from such an inference.

See Interest of Amici Curiae and section

IC, supra. As one scholar concluded,

"In the absence of a declaration by Con-

gress that state courts must enforce

rights that Congress has created, there

appears to be no substantial reason why

the Supreme Court should impose such an

e 42 «

obligation.*"24/ Not only does § 1983

lack any clear statement of intent to

require state courts to hear claims under

that statute in tax cases, but no infer-

ence of such intent can be drawn from

the legislative history. Section 1983

was not intended to mandate state courts

to hear federal claims. Quite the con-

trary, as discussed in section IA, supra,

the statute was premised on the unwill-

ingness or inability of state courts to

protect federal rights in the aftermath

31/ Sandalow, supra at 207. See also

Tribe, Intergovernmental Immunities in

Litigation, Taxation & Regulation: Sepa-

ration of Powers Issues in Controversies

About Federalism, 89 Harv. L. Rev. 682,

694, n. 68, 695 (1976) ("courts should

not abrogate state immunity unless they

are sure that Congress has considered

the federalism interests compromised by

Suits against states").

» 63 «

of the Civil War .22/

Primarily for

that reason, that statute sought to pro-

vide a federal-court remedy for violation

of federal rights .22/

Given this con-

gressional understanding, it would be

illogical, at best, to hold that a state

court is required to entertain a cause

of action that owes its very existence

to congressional recognition of the

32/ See Haring v. Prosise, 462 U.S. at

306 (quoting from Allen v. McCurry, 449

U.S. 90, 98-99 (1980)) ("one of the cen-

tral concerns which motivated the enact-

ment of § 1983 [was] . . . the grave

congressional concern that the state

courts had been deficient in protecting

federal rights").

33/ See id. (quoting Allen v. McCurry,

449 U.S. at 101) ("the ‘understanding of

§ 1983' that ‘the federal courts could

step in where the state courts were un-

able or unwilling to protect federal

rights'"); see also D.C. v. Carter, 409

U.S. 418, 427 (1973); Monroe v. Pape,

365 U.S. at 180; Mitchum v. Foster, 407

U.S. at 239-42; Developments in the Law,

Section 1983 & Federalism, supra at 1135.

e 44 «

state courts’ reluctance or refusal to do

so.

Nor can congressional intent to re-

quire state courts to hear § 1983 claims

in tax cases be inferred from 28 U.S.C.

§ 1341. Although, as discussed in sec-

tion IA, supra, that statute was in-

tended to relegate taxpayers challenging

the validity of state taxes to state

remedies, there is no indication that

Congress intended to require state courts

to provide a remedy under § 1983. To

the contrary, Congress appears to have

assumed, in enacting § 134l, that § 1983

remedies might not be available in state

court, since, if that remedy were man-

dated in state court, there would have

been no need to require, as a condition

to precluding federal court jurisdiction,

that "a plain, speedy and efficient

o 4 «

remedy" be available in the~ state

courts .24/

Furthermore, in enacting § 134l,

Congress was well aware that the statute

would subject taxpayers to state tax re-

fund schemes like that of South Caro-

lina,22/ yet it did not require state

courts to provide more comprehensive

remedies, such as those provided by §

1983. Rather, all that is required for

purposes of § 1341 is a “‘full hearing

and judicial determination’ at which {the

taxpayer] may raise any and all consti-

tutional objections to the tax." Rose-

well, 450 U.S. at 512. The unavailabil-

34/ See Platt v. Union Pac. R.R. Co.,

99 U.S. 48 (1879) (legislature is pre-

sumed to have used no unnecessary or

superfluous words in statute).

35/ S. Rep. No. 1035, 75th Cong., lst

Sess. 1 (1937); H.R. Rep. No. 1503, 75th

Cong., lst Sess. 2 (1937); Cal. v. Grace

Brethren Church, 457 U.S. 393, 412

n. 20, 416 (1982).

o @6 «

ity of interest on the example, is not

sufficient to render a state remedy in-

adequate, nor is the unavailability of

attorney's fees. Redd v. Lambert, 522

FPF. Supp. 608, 610 (N.D. Miss. 1981),

aff'd, 674 F.2d 1032 (Sth Cir. 1982).

Requiring state courts to provide a

federal remedy where state remedies are

adequate would also be directly contrary

to the principles of comity and federal-

ism underlying § 1341. See Fair Assess-

ment, 454 U.S. at 103. If those princi-

ples or the provisions of § 1341 itself

preclude even federal court jurisdiction

over § 1983 claims in state tax cases,

there is no reason to infer that Con-

gress intended to require state courts,

which were historically viewed as less

competent tc adjudicate federal claims,

to provide a federal remedy in such

» 47 «

cases. See State Tax Commission VV.

Fondren, 387 So. 2d at 723.

In sum, neither the plain language

of § 1983 nor the legislative intent un-

deriying that statute or 28 u.S.c. § 1341

permit the inference that Congress in-

tended to require state courts to enter-

tain § 1983 claims in tax cases.

Cc. The State Court Had Several

"valid excuses™ for Declining

983

to Entertain Petitioners: §

Claim.

As this Court has repeatedly recog~

nized, even where Congress expressly

confers concurrent jurisdiction on state

courts, state courts may Gecline tO ex-

ercise that jurisdiction, without vio-

lating the Supremacy Clause, if they have

a nondiscriminatory, "valid excuse” for

- 48 -

doing 80 .29/ In general, the “valid

excuse” doctrine has been applied "in

circumstances where requiring the state

courts to hear a federal case would un-

duly burden state fesources without

serving an overriding federal interest."

Redish & Muench, Supra at 344, 354. As

will be shown in this section, the South

Carolina courts had a number of valid

excuses for declining to entertain peti-

tioners' § 1983 claim in this case.

The first legitimate reason for de-

clining to entertain the § 1983 claim in

this case is that to do so would violate

36/ Douglas v. N.Y., New Haven & Hart-

ford R.R. Co., 279 U.S. at 388; Mo. Vv.

Mayfield, 340 U.S. l, 4 (1950).

37/

the state's sovereign immunity.

Unlike in Testa and other cases relied

upon by the petitioners, this case,

seeking a refund of state taxes, is 4a

private action against the state itself,

which is therefore barred by the doctrine

of sovereign immunity. see section IC,

supra. Although by enacting S.C. Code

Ann. § 12-47-220, the state has consented

to be sued for tax refunds, that consent

must be limited to its express terms,

and may not be construed to permit ac~-

tions under § 1983, in which the condi-

tions and procedural limitations on the

37/ The state of South Carolina has not

Sbolished its sovereign immunity by

statute or by judiciai decision. Cope-

land v. Housing Auth., 316 S.E.2d 408

(s.c. 1984).

- 50 -

state's waiver of immunity could be ig-

nored 2e/

The validity of sovereign immunity

as a bar to state-court jurisdiction over

federal claims, including those brought

under § 1983, has previously been recog~-

nized by this and other souste.40

This rationale for declining jurisdiction

is particularly valid here because of

the burden such jurisdiction would impose

38/ See Hans v. La., 134 U.S. at 17

(state “may prescribe the terms and con-

ditions on which it consents to be

sued"); see also Ford Motor Co. v. Dep't

of Treasury, " S25 Uebe OF 465-66.

39/ see Palmer v. Ohio, 248 U.S. at 34;

Ga. R.R. & Banking CO. V- Musgrove, 335

U.S. 0 (1949); Fitzpatrick V. Bitzer,

519 F.2d 559, 571 Qn. 22 (2d Cir. 1975),

aff'd in part, rev'd in part, 427 U.S.

445. (1970); De Bleecker V- Montgomery

County, 438 A. 2d at 1356 n. 4; Kristen-

Sen v. Strinden, 343 N. wW.2da 67, 76 (N.D.

1983); Thiboutot v. State, 405 A.2d at

237; Woodbridge V. Worcester State HOSp.,

384 Mass. at 38, 44.

on state courts and because such juris-

diction would not only fail to serve an

overriding federal interest, it would

also run contrary to the federally rec-

ognized interest in state sovereignty,

particularly in the sensitive area of

state taxation. See Interest of Amici

Curiae, supra; see also Redish & Muench,

supra at 344, 354. Where, as here, the

substantive federal right involved (Ar-

ticle IV privileges and immunities) is

adequately protected by a state remedy,

declining to afford a federal remedy is

not “inimical to the federal substantive

policy expressed in the federal cause of

40/

action."-—- Redish & Muench, supra at

357.

40/ As discussed in section IB, Supra,

§ 1983 creates no substantive rights.

o 42 «

Nor does this rationale for declining

jurisdiction discriminate against federal

claims, since 4 state's immunity from

suit applies equally to state and federal

claims. Cf. McKnett v. St. Louis & San

Francisco Railway Co., 292 U.S. at 234.

As one scholar rhetorically asked, “How

can a state be charged with discriminat-

ing against a federal claim when it al-

lows no suits in state courts against a

sovereign?" Tribe, Intergovernmental

Immunities, supra at 692 n. 62.

A second “valid excuse” for declining

jurisdiction here is based on the Tenth

Amendment. Although the precise para-

meters of state sovereignty preserved by

that amendment remain unclear ,42/ the

4l/ see Garcia v. San Antonio Metropol-

‘tan Transit Auth., 104 S. Ct. 3582

(1984) (ordering parties to brief the

(footnote continued)

« $3 -

attributes of state sovereignty involved

here--the power to (tax, the power to

control the jurisdiction of state courts,

and the immunity from suit without con-

sent--would be "indisputabl[e] attributes

of state sovereignty," Hodel v. Virginia

Surface Mining & Reclamation Association,

452 U.S. 264, 287-88 (1981), under any

test the Court might articulate.

Since those attributes of sovereignty

(footnote continued)

issue of whether or not the principles

of the Tenth Amendment as set forth in

Nat'l League of Cities V. Usery, 426

U.S. 833 (1976), should be reconsidered),

42/ See, Hamilton, The Federalist No.

$1, quoted in Edelman v. Jordan 415 U.S.

at 661 n. 9 ("inherent in the nature of

sovereignty not to be amenable to the

suit of an individual without its con-

sent); Fair Assessment, 454 U.S. at 102

("important and Sensitive nature of state

tax systems"); M'Culloch Vv. Md., 17 U.S.

(4 Wheat.) 316 (1619) (*power of taxing

(footnote continued)

- 84 -

would be impaired by requiring state

court jurisdiction over § 1983 claims,

see Interest of Amici Curiae, Supra, 4

valid excuse for declining such juris-

43/

diction exists.—

(footnote continued)

eo a incident of sovereignty”);

Pri v. Pa., 41 U.S. (16 Pet.) 539, 614

SUD ("every state .-. > has the ex-

elusive right to prescribe the remedies

in its own tribunals”); Brown V. Gerdes,

321 U.S. at 190 (Frankfurter, J., Con-

curring) (“whether a state court can take

jurisdiction . «+ - [is] wholly within

the control of the State creating the

court and without the power of Con-

gress").

43/ See Tribe, Inter overnmental Immu-

Nities, supra at 692-97; Redish & Muench,

Supra at 344; Note, State Enforcement ot

Federall Created Ric'ts, 73 Harv. L.

Rev. P 8 on. 960); Sandalow,

Supra at 206-07; Developments in the Law,

Section 1983 & Federalism, supra at

1177-80.

- §5 -

A final and equally valid excuse for

declining jurisdiction over petitioners'

§ 1983 claim is that state court juris-

diction over federal claims cannot be

required to any greater extent than is

federal jurisdiction ovec the same

claims. Since federal jurisdiction over

the tax refund claim at issue here would

be barred by the Eleventh Amendment, by

principles of comity, and by 28 U.S.C.

§ 1341, the state courts can legitimately

decline to hear the same claims wihout

creating any Supremacy Clause con-

44/

cerns. As stated in Missouri V.

44/ See Brilimayer & Underhill, Con-

nal Obligation to Provide a Forum

ressio

for Constitutional Claims: Discriminatory

Jurisdictional Rules & the Conflict of

the Laws, 69 Va. L. ReV. 819, 838 (1983);

Gordon & Gross, Justiciability of Federal

Claims in State Court, 59 Notre Dame L.

Rev. 1145, 1154 (1964); State Tax Com-

mission v. Fondren, 387 So. 2d at 723;

Backus v. Chilivis, 224 S.E. 2d at 374.

- $6 -

Mayfield, 340 U.S. at 6 (Jackson, Jer

concurring), “Certainly 4 State is under

no obligation to provide a court for

eg « Be « « COUSe CF action when the

Federal Government, which creates the

cause of action, frees its own courts

within that State from mandatory consid-

eration of the same case."

III. THE STATE COURT ACTED WITHIN THE

SCOPE OF ITS DISCRETION IN DECLIN-

ING TO AWARD ATTORNEY'S FEES PUR-

SUANT TO 42 U.S.C. § 1988.

Even if the South Carolina court was

required to entertain petitioners' § 1983

claim, it does not follow that the court

was also required to award attorney's

fees under § 1988. Section 1988 on its

face does not require that attorney's

fees be awarded to every prevailing party

but only that "the court, in its discre-

tion, may allow the prevailing party

o £7 «

. . « a reasonable attorney's fee" (em-

phasis added). As aptly stated in Brown

vy. Stackler, 612 F.2d 1057, 1059 (7th

Cir. 1980), *'may' sometimes means

'won't'®.

The legislative history of § 1988

also emphasized the value of judicial

discretion in restraining inappropriate

fee awards. The House Report states:

The second feature of the bill is

its mandate that fees are only to be

allowed in the discretion of the

court. Congress has passed many

statutes requiring that fees. be

awarded to a prevailing party.

Again the Committee adopted a more

moderate approach here . + «+ +

H.R. Rep. No. 1558, 94th Cong., 2d Sess.

45/

8. See also Hutto V. Finney, 437

at 709 n. 6 (Powell, Js + concurring)

("there is nothing in the Act’ that

45/ Approximately half of the federal

fee-shifting statutes are expressly man-

datory. M. Derfner & A. Wolf, Court

Awarded Attorney Fees 4 5.02(2] (1983).

= $8 -

requires the routine imposition of

counsel-fee liability on anyone"). As

will be shown here, the lower court

properly exercised its discretion to

deny fees in this case.

First, as in Smith v. Robinson, 104

Ss. Ct. at 3468 n. 12, the § 1983 claim

here “added nothing to petitioners’

claims" and “had nothing to do with

plaintiff's success.” Petitioners pre-

vailed solely on their state-law cause

of action, based entirely on the same

constitutional claims they sought to

raise under § 1983. As recognized in

Smith, the fact that petitioners’ § 1983

claim was superfluous "provides a. -

basis for denying attorney's fees on the

basis of that claim." Id. Indeed,

"where it is clear that tne claims that

provide for attorney's fees had nothing

to do with a plaintiff's success,

- 59 -

Hensley v. Eckerhart, [103 S. Ct. 1933

(1983)], requires that fees not. be

awarded on the basis of those claims"

(emphasis added). Id. Under similar

circumstances a number of courts have

declined to award fees in cases where

the § 1983 claim serves no purpose other

than as a “conduit" for attorney's

sees. 4’ As several members of this

Court anticipated, requiring that fees

be awarded in such circumstances would

enable

ingenious pleaders [to] find ways to

recover attorney's fees in almost

any suit against a state defendant.

Nothing in the legislative history

of the Civil Rights Attorney's Fees

Awards Act of 1976 suggests that

Congress intended to remove so com-

pletely the protection of the

"american Rule" in suits against

658 F.2d ise (24h Cir. 1981); Roberts

vy. Mills, 291 Or. @i, 628 P.2d 714, 715

; Brown V. Hornbeck, 458 A.2d at

904.

- 60 -

state defendants.4//

A second justification for the dis-

cretionary denial of fees in this case

derives from the substantive nature of

petitioners’ underiying claim. Even if

that claim falls within the scope of

§ 1983, but see section I, supra, it is

not the type of civil rights claim that

§ 1988 was primarily intended to en-

cou, age. The legislative history of

§ 1988 clearly indicates that Congress

intended not to shift liability for at-

torney's fees in all cases against state

defendants, but to encourage private en-

forcement of the most “basic” and “fun-

damental" civii rights .22/

47/ Maine _v. Thibdoutot, 448 U.S. at

24-25 (Powell, Burger, & Rehnquist, JJ.,

dissenting). See also Brown Vv. Hornbeck,

458 A.2d at 905.

48/ H.R. Rep. NO. 1558,*94th Cong., 2d

Sess. 9 (1976); S. Rep. No. 1011, 94th

(footnote continued)

» 6) -

Although it is now clear that § 1983 en-

compasses deprivations of at least some

non-civil rights and that such depriva-

tions may give rise to attorney's fees

unger § 1988, see Maine V. Thiboutot,

448 U.S. at 8-ll, it is nevertheless ap-

propriate for courts to give effect to

the limited congressional intent under-

lying § 1988--to protect civil rights--by

exercising their discretion to deny fees