Opposition Brief — St. Ledger v. Kentucky Revenue Cabinet

4

No. 95-1531

AER 19 1996

In The

Supreme Court of the United S

October Term, 1995 o~

.

HERSCHEL ST. LEDGER and Z. NICKI ST. LEDGER,

Individually and on behalf of

Others Similarly Situated,

Petitioners,

COMMONWEALTH OF KENTUCKY, REVENUE

CABINET and MARGARET A. HANDMAKER,

in her official capacity as Secretary of the

Revenue Cabinet, Commonwealth of Kentucky,

Respondents.

SI

On Petition For A Writ Of Certiorari

To The Supreme Court Of Kentucky

.

RESPONSE TO PETITION

FOR WRIT OF CERTIORARI

>

CHartes S. Cassis

STEPHEN R. ScHMIDT

Counsel of Record

Brown, Topp & Heysurn PLLC

3200 Providian Center

Louisville, Kentucky 40202-3363

(502) 589-5400

Fax: (502) 581-1087

JENNIFER SARTOR SMART

Office of General Counsel

Division of Lega! Services

Commonwealth of Kentucky

Revenue Cabinet

P.O. Box 423

Frankfort, Kentucky 40206

(502) 564-3112

Fax: (502) 564-4044

COCKLE LAW BRIEF PRINTING CO. (600) 225-6964

OR CALL COLLECT (402) 342-283!

TABLE OF CONTENTS

Page

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PE SE CP URINE a Nsccncccccesescctscecece ii

RESPONSE TO PETITION FOR WRiT OF CER-

MCSE p oo.4 Cegeuvark isd bdarerddes ssas¢ecee. 1

TABLE OF AUTHORITIES

Page

Cases

American National Bank & Trust Company v. Hanson,

me ue, 12> LBG.26 737, 113 SCL.

SP SWUCSLIDEE Rbehyscoatdcn dy sesdvedseswesevevees |

Darnell v. Indiana, 226 U.S. 390 (1912)................ 1

Fulton Corporation v. Faulkner, 516 U.S.__, 133

ee, ef ee eee errr 1

Hunt v. McNair, 403 U.S. 945, 29 L.Ed.2d 854, 91

i nhs cLeteritehssurudesoorivercerocs 2

Hunt v. McNair, 413 U.S. 734, 37 L.Ed.2d 923, 93

sed ocou> cee pukaeeepescertcececces 2

TXO Corporation v. Alliance Resources, 509 U.S. ____

pe Bk RS es ee). eee 2

asc

RESPONSE TO PETITION

FOR WRIT OF CERTIORARI

For their response to the Petitioners’ petition for writ

of certiorari, Respondents, Commonwealth of Kentucky,

Revenue Cabinet, and Margaret Handmaker, in her offi-

cial capacity as Secretary of the Revenue Cabinet, Com-

monwealth of Kentucky (collectively the “Revenue

Cabinet”), state that Petitioners are correct in stating that

the Supreme Court of Kentucky did not have the benefit

of this Court’s recent opinion in Fulton Corporation v.

Faulkner, 516 U.S.__, 133 L.Ed.2d 796, 116 S.Ct. __

(1996), when it rendered its October 19, 1995, opinion in

this case regarding the Kentucky ad valorem tax on

shares of stock and that it relied on the earlier opinion of

this Court in Darnell v. Indiana, 226 U.S. 390 (1912).!

In light of those facts, the Revenue Cabinet does not

oppose the grant of a writ of certiorari in this case.

However, because the Kentucky ad valorem tax statutes

differ from the North Carolina statutes reviewed in Fulton

Corporation v. Faulkner, the Revenue Cabinet respectfully

submits that the proper course would be for this Court to

vacate the decision of the Supreme Court of Kentucky

and remand the case for further consideration in light of

the Fulton Corporation v. Faulkner de<ision.

This Court followed that course of action recently in

American National Bank & Trust Company v. Hanson, 509

U.S. __, 125 L.Ed.2d 717, 113 S.Ct. __ (1993) (writ

} Although Respondents disagree with many of the

statements in the Petition, such statements are virtually ail

immaterial to the position of the Petition and will not be

pursued before this —ourt.

granted, judgment vacated and case remanded to

Supreme Court of Kentucky for further consideration in

light of TXO Corporation v. Alliance Resources, 509 U.S. __,

125 L.Ed.2d 366, 113 S.Ct. ____ (1993)); and earlier in Hunt

v. McNair, 403 U.S. 945, 29 L.Ed.2d 854, 91 S.Ct. 2276

(1971) (writ granted, judgment vacated, and case

remanded to Supreme Court of South Carolina for recon-

sideration in light of several recently decided cases), sub-

sequent decision affirmed in Hunt v. McNair, 413 U.S. 734,

37 L.Ed.2d 923, 93 S.Ct. 2868 (1973).

Such a disposition will give the parties the opportunity

to brief and argue to the justices of the Supreme Court of

Kentucky the principles enunciated in this Court’s decision

in Fulton Corporation v. Faulkner. If the decision on the merits

by the Supreme Court of Kentucky were to change, this

would also give the parties and that court the opportunity to

address questions of remedy not addressed in the October

19, 1995, opinion of the Supreme Court of Kentucky.

Respectfully submitted,

CHar.es S. Cassis

STEPHEN R. SCHMIDT

Counsel of Record

Brown, Topp & Heysurn PLLC

3200 Providian Center

Louisville, Kentucky 40202

(502) 589-5400

Fax: (502) 581-1087

JENNIFER SARTOR SMART

Office of Generali Counsel

Division of Legal Services

Commonwealth of Kentucky

Revenue Cabinet

P.O. Box 423

Frankfort, Kentucky 40206

(502) 564-3112

Fax: (502) 564-4044