# Amicus Curiae Brief — Spencer v. South Carolina Tax Commission

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1985
- **Citation:** 471 U.S. 82

## Text

oneal
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,

V.

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

A.

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

64

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 -

44

60

3,
25,
56

15

26,

28

55

37,
61

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,
42

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
20
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
50
; 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
63
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,
55

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 -

62
62

31
31, 54
39

58, 61

H.R.

S. Rep.

S. Rep.

Rep.

No.

1503,

75th Cong., lst

No.

2d Sess,
U.S. Code Cong.

5908

No.

lst Sess.

10il,

1035,

Sess.

(1937)

(1937)

94th oy ote
reprinted in 19
& Ad.

News

75th Cong.,

46

61
16,

46

No. 84-249

IN THE
SUPREME COURT OF THE UNITED STATES

October Term, 1984

ROGER L. SPENCER and SHIRLEY L. SPENCER,
Petitioners,

V.

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

1/

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

2/

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

3/

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,

e
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

46/ See, ©-.G+» Mmderson V. Thompson,
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
more readily in non-civil rights cases

or cases where the interests at stake

(footnote continued)

Cong., 2d Sess. 2s reprinted in 1976
u.S.Code Cong. & Ad. News at 5909-10;
121 Cong. Rec. 26,806 (remarks of Sen.
Tunney) (1975); 122 Cong. Rec. 31,472
(remarks of Sen. Kennedy), 35,115 (re-
marks of Rep. Anderson), 35,124 (remarks
of Rep. Railsback); 35,126 (Remarks of
Rep. Fish), 35,127 (remarks of Rep.
Holtzman) (1976).

» @2.<

are more private than public in na-
49/ | ) |
ture .— Thus, in this case, which
cannot be characterized as a traditional
civil rights action, see section IB,
supra, the South Carolina court's exer-
cise of its discretion to deny fees was

particularly appropriate.

49/ See, e.g., Boland v. City of Rapid
City, 315 N.W. 2d at 503; Green v. Car-
ough, 460 F.Supp 1193, 1194-55 (E.D.
Va. 1978); Martin v. Hancock, 466 F.Supp.
454, 455-56 (D. Minn. 1979); Thiboutot
v. State, 405 A.2d at 240; Case Comment,
Statutory Non-Civil Rights Violations of

Section 1983 and Awards of Attorneys’
Fees After Maine v. Thiboutot, 61 B.U.L.
.

Rev. 1069, 1087-09 (1981).

= 63 -

CONCLUSION

For all of the reasons discussed

above and in the Brief for Respondents,
this Court should affirm the judgment of

the Supreme Court of South Carolina.

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

STEVE CLARK
Attorney General
State of Arkansas

NORMAN C. GORSUCH
Attorney General
State of Alaska

DUANE WOODARD

Attorney General
State of Colorado

= 64 -

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

PETER W. MOSSEAU
Acting Attorney General
State of New Hampshire

ROBERT O. WEFALD
Attorney General
State of North Dakota

ANTHONY J. CELEBREZZE, JR.
Attorney General
State of Ohio

LEROY S. ZIMMERMAN

Attorney General
Commonwealth of Pennsylvania

e @ e

MARK V. MEIRHENRY
Attorney General
State of South Dakota

@ 66 -

PETER W. MOSSEAU
ACTING ATTORNEY GENERAL
State of New Hampshire

ROBERT O. WEFALD
ATTORNEY GENERAL
State of North Dakota

ANTHONY J. CELEBREZZE, JR.
ATTORNEY GENERAL
State of Ohio

LEROY S. ZIMMERMAN
ATTORNEY GENERAL
Commonwealth of Pennsylvania

MARK V. MEIERHENRY
ATTORNEY GENERAL
State of South Dakota

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0049%3A07. Public record. Not legal advice.