Opposition Brief — American Trucking Assns. v. Conway

Supreme Court brief1987

Ask Donna

What actually matters in this document.

Text

AMERICAN TRUCKING ASSOCIATIONS, et al.,

Petitioners,

WILLIAM Conway, et al.,

Respondents.

On Petition for a Writ of Certiorari

to the Supreme Court of Vermont

BRIEF IN OPPOSITION

JErrRey L. AMESTOY

Attorney General

THOMAS R. VIALL

ROBERT C. SCHWARTZ

Assistant Attorneys General

State of Vermont

133 State Street

Montpelier, VT 05602

MICHAEL H. GOTTESMAN

(Counsel of Record)

ROBERT M. WEINBERG

BREDHOFF & KAISER

1000 Cionnecticut Avenue, N.W.

Washimgton, D.C. 20036

(202) 833-9340

Attorweys for Respondents

Wiieon - Eras Parma Co.. lnc. - 769-0086 - Wasnincron, O.C. 20001

a ~

TABLE OF CONTENTS

STE | cidiitesenetinicctdshdacsctinssisihesneaiiicitisnenitnnnintocesi 1

I. THE FEDERAL QUESTION SOUGHT TO BE

PRESENTED HERE WAS NEVER RAISED

IN THE VERMONT COURTS OR AD-

DRESSED BY THOSE COURTS, AND THIS

COURT ACCORDINGLY CANNOT CON-

SIE TEE ibis lshacinihatacierinllatpiliiaduidniniaadlbcnnienesiniaiegieee 2

A. Petitioners Never Raised the Issue Sought to

Be Presented Here in the State Courts, and

Those Courts Did Not Address It —................. 2

B. Because the Issue Sought to Be Presented

Here Was Neither Raised Nor Addressed in

the Vermont Courts, This Court Cannot Con-

ET AER <A A ee ee 9

Il. EVEN IF THE QUESTION SOUGHT TO BE

PRESENTED HERE HAD BEEN PROPERLY

RAISED IN THE VERMONT COURTS, THAT

QUESTION WOULD NOT WARRANT THIS

COURT’S CONSIDERATION ..................... sain 18

IIT sists cincintsennanisespicnceshcpcdeasajessbiepmrosiénstndenicbmnneces 24

APPENDIX—BRIEFS IN THE VERMONT STATE

COURTS IN WHICH THE REFUND ISSUE WAS

ADDRESSED

TABLE OF AUTHORITIES

Cases Page

American Trucking Associations, Inc. v. Conway,

Dkt. No. S-95-86 WnC [Vt.] (Vt. Super. Ct.

PX ie) | | ee 23

American Trucking Associations, Inc. v. Conway,

Dkt. No. S-147-86 WnC [Vt.], St. Tax Rep.

(CCH) {200-263 (Vt. Super. Ct. May 21,

I ice chore seccreictactaeseinci te soenetenicnsciinipaiiaiiarimmtants 23

Atascadero State Hosp. v. Scanlon, —— U.S. ——,

SO TG, SEG CIO | aiecccctccimstntctcnipeitiiaatinmanintns 20

Bacchus Imports, Ltd. v. Dias, 468 U.S. 263

CD sc sneiccissienitennsciciasivienennsctaiiancgecatiamiinndesionshesitauamataies 18

Beck v. Washington, 369 U.S. 541 (1962) —............. 15

Beers v. Arkansas, 61 U.S. 527 (1858) -................... 19, 22

Brinkerhoff-Faris Trust & Sav. Co. v. Hill, 281 U.S.

CID insinccsciscetiinacesseciopuceulntndiestudaksbansdeacreausenticdien 15

Cardinale v. Louisiana, 394 U.S. 437 (1969) -....... 10-11, 17

Carpenter v. Shaw, 134 Okla. 29, 272 Pac. 393

(1928), rev’d, 280 U.S. 363 (1930) ..........-........ 23

Carpenter v. Shaw, 280 U.S. 363 (1930) -............... 23

Chisolm v. Georgia, 2 U.S. 419 (1973) -.................... 21

Consolidated Freightways Corp. of Del. v. Kassel,

730 F.2d 1139 (8th Cir.), cert. denied, —— U.S.

———=, 105 S.Ct. 126 (1964) .....---ccccenennnnnccecesesesee 19

County of Lincoln v. Luning, 133 U.S. 529 (1890) .. 23

Cunningham v. Macon & B.R. Co., 109 U.S. 446

RIED |. scinnscusssciincrecuncstainiendiabiuedcamcaaeieeielentae 19, 21-22

Eddings v. Oklahoma, 455 U.S. 104 (1982) -............ 11

Edelman v. Jordan, 415 U.S. 651 (1974) ................ 19, 20

Estate of Wilson v. Aiken Industries, 439 U.S. 877

ee anccuen soi siepcibcigie aod casabcasaaagidaatiatdaaiaaddelaladigaiitbia 14

Fitzpatrick v. Bitzer, 427 U.S. 445 (1976) .............-- 19 |

Ford Motor Co. v. Department of Treasury, 323

Oe ee IID ncns-cocieccsiadisscsinsesneononeaheiedeasenenbaiesias 20, 22

Great Northern Insurance Co. v. Read, 322 U.S.

WF I tina sacdaccereccdetesnaicianinhosdieneananiaatianiidinss 22

Great Northern R. Co. v. Sunburst Oil & Refining

ee 6 OR Oy; PR ee 15

Hans v. State of Louisiana, 134 U.S. 1 (1890) ........ 20-21

ili

TABLE OF AUTHORITIES—Continued

Page

Heath v. Alabama, —— U.S. ——, 106 S.Ct. 433

NEES RS A 11

Herndon v. Georgia, 295 U.S. 441 (1935) ..... 15

Illinois v. Gates, 462 U.S. 213 (1983)... 11, 12, 17-18

In re Maher, 132 Vt. 560, 326 A.2d 142 (1974)... 16

lowa-Des Moines Nat. Bank v. Bennett, 284 U.S.

AS ES a 22

J & J Anderson, Inc. v. Town of Erie, 767 F.2d

EE 19

Memphis & C.R. Co. v. Tennessee, 101 U.S. 337

EEE RIESE SS 19

Missouri ex rel. Missouri Insurance Co. v. Gehner,

i cuimasancence 15

Monaco v. Mississippi, 292 U.S. 313 (1934) _........... 22

Moor v. County of Alameda, 411 U.S. 693 (1973) .... 23

Nevada v. Hall, 440 U.S. 410 (1979) 00 19

Pennhurst State School & Hosp. v. Halderman, 465

a cscnmmuresce 20

Picard v. Connor, 404 U.S. 270 (1971) ............... 12

Quern v. Jordan, 440 U.S. 332 (1979) .....000 19, 20

Smith v. Reeves, 178 U.S. 436 (1900) 22

Spaulding et al. v. Mut. Life Ins. Co. of N.Y., 94 Vt.

De nscuncavascors 16

Terminiello v. Chicago, 337 U.S. 1 (1949) 11

Vachon v. New Hampshire, 414 U.S. 478 (1974)... 11

Ward v. Love County, 253 U.S. 17 (1920) -........... 22

Webb v. Webb, 451 U.S. 493 (1981) _......... 10-11, 12-13

Wilson v. Cook, 327 U.S. 474 (1946) 0... 15

Wood v. Georgia, 450 U.S. 261 (1981)... 11

Constitution and Statutes

Constitution of the United States

Ce GO 3, 7, 9, 17, 22, 23

Eleventh Amendment _.....000000 7, 20, 21

i sodulensbuwdamaessonesins 10, 16

SE ES EES 19

EE ea 5, 13

ol hin snsnrevisicinseneiecinetiaminaseraictng 4,5,7

TABLE OF AUTHORITIES—Continued

Miscellaneous Page

Rule 21.1(h), Supreme Court Rules ......................-- 9-10

Rule 40, Vermont Rules of Appellate Procedure.... 16

Stern, Gressman & Shapiro, Supreme Court Prac-

ef Aree eee ee 15-16

- IN THE

Supreme Court of the United States

OCTOBER TERM, 1986

No. 86-69

AMERICAN TRUCKING ASSOCIATIONS, et al.,

Petitioners,

WILLIAM Conway, et al.,

Respondents.

On Petition for a Writ of Certiorari

to the Supreme Court of Vermont

BRIEF IN OPPOSITION

ARGUMENT

Respondents urge that the petition for a writ of certi-

orari in this case be denied. As we show in part I of this

brief, this Court is without jurisdiction to review this

case, because the question sought to be presented here

was neither raised nor decided in the state courts. As

we show in part II, even were there jurisdiction, the

question petitioners seek to have reviewed is not worthy

of this Court’s consideration, because the answer to that

question is well-settled, adversely to petitioners’ position,

by numerous decisions of this Court.

I. THE FEDERAL QUESTION SOUGHT TO BE PRE-

SENTED HERE WAS NEVER RAISED IN THE

VERMONT COURTS OR ADDRESSED BY THOSE

COURTS, AND THIS COURT ACCORDINGLY CAN-

NOT CONSIDER IT.

In the Vermont courts, petitioners argued that they

were entitled to a refund on the basis of state law. At

no point did they suggest that the Federal Constitution

entitled them to a refund. The Supreme Court of Ver-

mont ruled that petitioners were not entitled to a refund

as a matter of state law. It addressed no other question.

Now petitioners seek to bring to this Court, as their sole

question presented, a claim that the Federal Constitution

entitled them to a refund. As petitioners never presented

that claim to the Vermont courts, and those courts did

not address that claim, this Court is without jurisdiction

to entertain it.

We begin by setting forth the history of petitioners’

quest in the Vermont courts for a refund, to establish

that the issue tendered here was never presented to or

addressed by those courts. We then show that in these

circumstances this Court lacks jurisdiction to entertain

the Petition.

A. Petitioners Never Raised the Issue Sought to Be

Presented Here in the State Courts, and Those

Courts Did Not Address It.

ATA I and ATA II were briefed to the Supreme Court

of Vermont concurrently, and were decided by that Court

in separate opinions on the same day. The parties briefed

petitioners’ claimed entitlement to a refund only in A7’A

II, and the Supreme Court of Vermont resolved that

claim in ATA II and merely applied that ruling by ref-

erence in ATA I. Accordingly, we describe the proceed-

ings in ATA II first. We have appended to this brief the

pertinent portions of the briefs filed in the state courts,

and cite thereto as “Br. Opp. App. ——.”

3 “

ATA Il

The complaint in ATA II, filed in the Superior Court

of Washington County, Vermont, challenged, as violative

of the Commerce Clause of the Federal Constitution, the

$50 user fee enacted by the Vermont Legislature in 1982

(Act 172). The prayer for relief in the complaint sought,

inter alia:

plaintiffs and members of the plaintiff class any fees

or penalties wrongfully, illegally or unconstitution-

ally collected from said plaintiffs by defendants pur-

suant to the statutes complained of herein.

The parties entered into numerous stipulations, includ-

ing the following:

2. That in the event said Act Number 172 is fi-

nally declared to be unconstitutional and void in

whole or in part, by Order of a Vermont Superior

Court or any higher court having competent appeals

jurisdiction thereof, any fees and penalties wrong-

fully or illegally obtained by the State of Vermont

and its instrumentalities and ordered to be repaid

thereby may be refunded pursuant to 23 V.S.A. 3020

as enacted by said Act Number 172, 23 V.S.A. 328

or in any other manner ordered by such Court. [Br.

Opp. App. 32a-33a; emphasis added. ]

On the basis of a stipulated record, the Superior Court

entered a declaratory judgment that the $50 user fee

violated the Commerce Clause (Pet. App. 60).

Petitioners promptly filed a Motion to Alter Judgment

Order, requesting that the Order be amended to compel

respondents to repay the fees and penalties that had been

collected under Act 172 (Br. Opp. App. 29a). In an

accompanying memorandum, petitioners argued that the

State had agreed in the above-quoted stipulation to repay

the fees if Act 172 were found unconstitutional (id. 30a-

31a). Respondents opposed the motion. They argued,

inter alia, that the “stipulation does not agree that any

fees or penalties shall be repaid, but merely sets forth

a methodology by which they could be repaid, if so ordered

by the Court” (id. 34a-35a; emphasis in original).

The Superior Court denied petitioners’ motion (Pet.

App. 3la-33a). The Court reasoned (id. 32a) : i

[T]his is a case where an award of a monetary

judgment is barred by the doctrine of sovereign im-

munity of the type found in Stoneman v. Vergennes

School Dist. #5, 189 Vt. 50, 54-55 [421 A.2d 1307]

(1980).

The Superior Court observed that “[a]rguably” 23 V.S.A.

§ 3023 would empower a court “to determine whether

taxes should be refunded,” but courts have only “appel-

late jurisdiction” under that provision to review decisions

of the Commissioner of Motor Vehicles, and “there has

been no decision on the Commissioner’s part in this case”

(id.).

Both sides appealed, respondents from the ruling that

the user fee violated the Commerce Clause, and petition-

ers from the denial of a refund. Petitioners’ statement

of the “issue presented” respecting remedy was as fol-

lows:

Did the Washington Superior Court err in refusing

to order the Defendants to repay to Plaintiffs and

members of the Plaintiff class all fees, fines or penal-

ties collected by Defendants pursuant to the Diesel

Fuel Tax Act (23 V.S.A. 415, 3007 and 3010 all as

enacted or amended pursuant to Act No. 172)? ,[Br.

Opp. App. 8a.]

Petitioners’ opening brief in support of their appeal from

the denial of a refund is set out in full text at Br. Opp.

App. 9a-16a. As is apparent, petitioners made no conten-

tion that a refund was required as a matter of federal con-

stitutional law. Their entire argument was predicated on

state law grounds. They made the following points: under

Vermont law, monetary relief can be awarded in a de-

claratory judgment action (id. 9a-12a); that principle

empowered the Superior Court to award such relief de-

spite the inapplicability of 23 V.S.A. § 3023 (id. 18a) ;

respondents agreed in the stipulation that if Act 172

were declared unconstitutional the taxes would be re-

funded (id. 12a); the trial court’s ruling that monetary

relief was barred by sovereign immunity was wrong be-

cause the court had read the Vermont Supreme Court’s

decision in Stoneman too broadly (id. 14a-15a); in any

event sovereign immunity can be waived, and was waived

here, by the Vermont legislature’s inclusion of 23 V.S.A.

§ 3020(b) in Act 172 (id. 15a-16a).

Respondents’ brief vigorously defended the Superior

Court’s ruling that the refund was barred by sovereign

immunity (id. 2la-23a). To petitioners’ argument that

23 V.S.A. § 3020(b) represented a waiver of sovereign

immunity, respondents replied that petitioners, by insti-

tuting this action, had made an election of remedies and

thereby “forfeited any right they may have had to get a

refund under the . . . statutory scheme” (id. 21a). Re-

spondents further argued that even if sovereign immu-

nity were inapplicable, this was an equitable action and

the question whether to award monetary relief was com-

mitted to the Superior Court’s discretion (id. 18a-19a).

That discretion was not abused here in denying monetary

relief, because the fees collected were used for road main-

tenance, petitioners enjoyed the benefit of that road main-

tenance, and a refund order would substantially increase

the state deficit (id. 20a).

In reply, petitioners disputed that under Vermont law

abuse of discretion is the appropriate standard of review

(id. 25a >, disputed that under Vermont law the ben-

efit they received from road maintenanee justified deny-

ing a refund (id. 26a-27a), suggested that an alternative

means of refund was available under Vermont law that

would mitigate the impact on the state deficit (id. 27a),

and disputed that they had made an election of remedies

within the meaning of Vermont law (id. 27a-28a).

With the arguments thus poised, the Supreme Court of

Vermont decided ATA IJ. After affirming the Superior

Court’s ruling that the user fee violated the Commerce

Clause, the Court turned to the refund issue. The Court

construed the stipulation as not conceding petitioners’

entitlement to a refund (Pet. App. 10a):

[T]he stipulation only recites possible repayment

methods should the named courts order the refund.

This stipulation has no effect until a court orders

the refund of the taxes. [Emphasis in Court’s opin-

ion. |

The Court found that under well-settled Vermont deci-

sional law it was without power to order a refund, be-

cause of the State’s sovereign immunity (id. 10a):

In Vermont, the State cannot be sued without its

consent for injuries resulting from the exercise of

functions essentially governmental in character...

The imposition of a tax on fuel users for highway

maintenance is an essential governmental activity,

which could be performed only by a governmental

entity.

The Court went on to explain that suits against state

officers seeking a declaration as to the unconstitutionality

of a state statute or an injunction against its enforcement

“are not considered suits against the State for purposes

of sovereign immunity” (id.).

But an action to recover money which would be pay-

able from state funds may be barred as a suit against

the State...

This distinction is grounded in the principle of

sovereign immunity that the state legislature should

determine the State’s liability for money judgments.

(Id. 10a-11a.]

The Court found analogous the line drawn by this Court

for determining “when a suit is against a state for

Eleventh Amendment purposes” (id. 1la).

Finally, the Court rejected the contention that the

state legislature had waived the State’s sovereign immu-

nity by its enactment of 23 V.S.A. § 3023(b). The Court

reasoned (id. 12a):

This section has the clear purpose of redressing

errors in the enforcement or implementation of the

diesel fuel tax. It merely provides for a refund

mechanism if errors are made in determining what

tax is imposed. “Although it has been stated that

‘the courts will adjudge monetary claims founded

upon statute, because the Legislature has inferenti-

ally indicated an intent to provide the sums needed

to make good the statutory scheme’, in this case

such an inference is negated by the fact that the

Legislature denied funding.” Stoneman, supra, 139

Vt. at 54, 421 A.2d at 1310 (citation omitted).

Here, the Vermont legislature has not inferentially

indicated its intent to provide the amounts paid to

the state under a statute later declared invalid. The

legislature may be presumed to rely on the receipt

of tax revenues received from valid properly admin-

istered enactments. The power to levy taxes and ap-

propriate the resulting funds is a fundamental

attribute of sovereignty. That power would be

sorely compromised if private citizens were able to

do what the executive branch may not do—spend

state funds without legislative appropriation. “Where

no appropriation has been made, no action for a

money judgment can be maintained.” Jd.

ATA I

The complaint in A7A I, also filed in the Superior

Court of Washington County, challenged, as violative of

the Commerce Clause of the Federal Constitution, the

entry fees imposed by the 1981 Act (Act 87). Paragraph

7(c) of the complaint’s Claim for Relief requested:

3, —

7. A temporary restraining order and preliminary

and permanent injunction:

* * *

the payors the difference between the fee

levels provided for in 23 V.S.A. 415, 415a

and 417 prior to amendment and the

amended fee levels as provided in [Act 87]

A temporary restraining order was sought and denied, as

described at page 4 of the Petition.

The Superior Court rejected petitioners’ constitutional

challenge to Act 87 and dismissed the complaint (Pet.

App. 70a-79a). Petitioners appealed to the Supreme

Court of Vermont. The brief on appeal addressed only

the constitutionality of Act 87, and not any remedial

issues. The “Conclusion” of petitioners’ brief (Br. Opp.

App. 38a) merely recited:

The precise relief sought by Plaintiffs-Appellants is

the reversal of the said Judgment Order, and the

remand of the herein action to the Washington Su-

perior Court for the purposes of granting to Appel-

lants appropriate relief as—requested in their com-

plaint.

The Supreme Court of Vermont found the Superior

Court’s findings of fact inadequate to determine the con-

stitutionality of Act 87, and remanded for further fact

findings (Pet App. 24a-30a).

On remand, the trial court made additional findings of

fact (Pet. App. 65a-69a), and on the basis thereof again

upheld the constitutionality of the Act, dismissing the

complaint with prejudice (id. 16a). Petitioners again

appealed to the Supreme Court of Vermont, and briefing

on that appeal took place concurrently with that in

ATA II. While the petitioners’ entitlement to a refund

was briefed extensively in ATA II, as described above,

there was no separate briefing of that issue in ATA I.

Petitioners’ opening brief merely noted, in the Statement

of Case, that the trial court in denying temporary in-

junctive relief had reasoned that “a methodology existed

by statute for payment of refunds of fees paid in under

the statutes attacked” (Br. Opp. App. 40a, emphasis

added), and that “the monetary relief requested by the

Plaintiffs is a refund to all Plaintiffs” of the fees col-

lected (id. 40a). The only other reference to refund was

in the Conclusion to petitioners’ brief (id. 43a), which

recited:

The precise relief sought by the Plaintiff-Appellants

is a declaration that the statutes in question are un-

constitutional, the reversal of the above Judgment

Order, and the remand of the herein action to the

Washington Superior Court for the purposes of

granting to Appellants appropriate monetary and

other relief as requested in their Complaint.

The Supreme Court of Vermont reversed the Superior

Court and concluded that Act 87 violated the Commerce

Clause. With respect to petitioners’ claim for monetary

relief, the Court ruled:

Plaintiffs’ claim for monetary relief is controlled

by our opinion in [A7'A II], in which we held that

sovereign immunity barred a similar claim. Ac-

cordingly, we deny this claim for monetary relief

[Pet. App. 21a].

B. Because the Issue Sought to Be Presented Here

Was Neither Raised Nor Addressed in the Vermont

Courts, This Court Cannot Consider It.

The Petition virtually concedes what the foregoing reci-

tation makes clear—that “petitioners did not . . . argue

[in the state courts] that the Constitution requires a

refund remedy for taxes collected in violation of the

Commerce Clause” (Pet. 5, n.3). Most assuredly, the

Petition does not contain a statement conforming to this

Court’s Rule 21.1 (h) :

If review of the judgment of a state court is

sougni, the statement of the case shall also specify

the stage in the proceedings, both in the court of

first instance and in the appellate court, at which

the federal questions sought to be reviewed were

raised; the method or manner of raising them and

the way in which they were passed upon by the

court; such pertinent quotation of specific portions

of the record, or summary thereof, with specific

reference to the places in the record where the mat-

ter appears... as will show that the federal ques-

tion was timely and properly raised so as to give

this Court jurisdiction to review the judgment on

writ of certiorari. [Emphasis added.]

In these circumstances, the controlling principle is as

stated in Webb v. Webb, 451 U.S. 493, 495 (1981):

Because this case comes to this Court from a state

court, the relevant jurisdictional statute is 28 U.S.C.

§ 1257. As applied to the circumstances of this case,

that statute requires that in the state courts peti-

tioner have “specially set up or claimed under the

Constitution... of . . . the United States” that

right which she now seeks to have this Court en-

force. 28 U.S.C. § 1257(3).

In Webb, the lone question presented to this Court had

been argued in the state courts solely as a matter of

Georgia law. 451 U.S. at 497-98. Accordingly, “the

federal question was not raised below and . . . we are

without jurisdiction in this case.” Id. at 495.

We cannot conclude on this record that petitioner

raised the federal claim that she now presents to

this Court at any point in the state-court proceed-

ings. Thus, we confront in this case the same prob-

lem that arose in Cardinale v. Louisiana, 394 US.

437, 438 (1969) : “Although certiorari was granted to

consider this question, . . . the sole federal question

argued here has never been raised, preserved, or

passed upon in the state courts below.” Citing a

eace, . pi ciitapant

i ec Bits eels 0 nL te A at a AM INI ak A gett itit Cle

long history of cases, we stated there that “[t]he

Court has consistently refused to decide federal con-

stitutional issues raised here for the first time on

review of state court decisions.”

Webb, 451 U.S. at 498-99.

Here, as in Webb and Cardinale, where the sole ques-

tion presented is one that was not raised or decided be-

low the defect is jurisdictional. Petitioners, who did not

ask the Vermont Supreme Court to consider whether the

Federal Constitution entitled them to a refund, now ask

this Court to find that that Court committed error be-

cause it did not sua sponte rule that there is a federal

constitutional entitlement to a refund (Pet. 17-18). It

is surely ironic that the Vermont Court—which adopted

the constitutional arguments petitioners did advance en

toto, indeed gave petitioners far more than was their

due in those respects (as we explain in our conditional

cross-petition)—should be condemned by petitioners for

not enforcing a federal claim that petitioners did not

present to it. It would be inconsistent with basic prin-

1The uncertainty expressed by this Court in Illinois v. Gates,

462 U.S. 213, 219-23 (1983), as to whether the Court’s disinclina-

tion to reach an issue in Gates was jurisdictional or prudential, arose

only because the pet’‘ion in Gates presented another issue that had

been raised below—thus vesting this Court with jurisdiction over

the “judgment” below. 28 U.S.C. § 1257(3). It was in that posture

that the Court in Gates reserved the question whether, as a juris-

dictional matter, it had power to address other claims “not pressed

or passed upon” in the state courts. That likewise was the posture

in Terminiello v. Chicago, 337 U.S. 1 (1949) and Vachon v. New

Hampshire, 414 U.S. 478 (1974), cited in Gates, 462 U.S. at 219; in

Wood v. Georgia, 450 U.S. 261 (1981) and Eddings v. Oklahoma,

455 U.S. 104 (1982), cited in Justice White’s concurring opinion in

Gates, 462 U.S. at 247; and in Heath v. Alabama, US. ’

106 S.Ct. 433, 436-37 (1985), where the Court again left unresolved

the “jurisdictional or prudential?” issue.

Of course, in the instant case, even if the defect were not juris-

dictional, prudential considerations would dictate that the issue not

be considered, just as this Court concluded in Gates and Heath.

ciples of federalism were this Court to grant certiorari

and sit in judgment of the Supreme Court of Vermont

for failing to make a ruling it was never asked to make.

The statutory requirement that issues be presented to

the state courts before they are brought here exists

precisely to avoid that sort of friction between this Court

and the state courts. As explained in Webb, 451 USS.

at 499-500:

[A]lthough the States are sovereign entities, they

are bound along with their officials, including their

judges, by the Constitution .... Principles of comity

in our federal system require that the state courts

be afforded the opportunity to perform their duty,

which includes responding to attacks on state au-

thority based on the federal law .... As the Court

has elsewhere observed, this princip[le] of comity

requires

‘a proper respect for state functions, a recogni-

tion of the fact that the entire country is made

up of a Union of separate state governments,

and a continuance of the belief that the National

Government will fare best if the States and

their institutions are left free to perform their

separate functions in their separate ways.’

Younger v. Harris 401 U.S. 37, 44 (1971).

It is, accordingly, “unseemly in our dual system of gov-

ernment for a federal . . . court to upset a state court

[decision] without an opportunity to the state courts to

correct a constitutional violation.” Webb, 451 U.S. at

500, quoting Picard v. Connor, 404 U.S. 270, 275 (1971).

See also, Illinois v. Gates, 462 U.S. 218, 219 (19838).?

2 Beyond the principle of comity, there are also “very practical

reasons for insisting that federal issues be presented first in the

state-court system.” Webb, 451 U.S. at 500. Requiring presentation

of federal issues first in the state courts

permits the state courts to exercise their authority, which

federal courts, including this one, do not have at least to the

The Petition seeks to excuse the failure to present the

issue to the state courts in two ways, neither of which -

bears analysis.

First, petitioners claim that “it appeared unnecessary”

to raise in the state courts the question brought here,

because neither respondents nor the lower courts “ques-

tioned . . . that a finding of unconstitutionality would

lead to a refund .. . until the Supreme Court of Ver-

mont rendered the decisions here challenged” (Pet. 5,

n.3). But this is not a case where a constitutional issue

was created for the first time by an unexpected ruling of

the highest court in the State. Petitioners’ constitutional

claim to a refund did not arise by virtue of the ruling

of the Supreme Court of Vermont: that claim could

have been asserted at any time during the course of the

litigation in the state courts. Petitioners were on notice

in both the Superior Court and the Vermont Supreme

Court that respondents were opposing their refund claim

as unauthorized under Vermont law.* Yet petitioners

same extent, to construe state statutes so as to avoid or obviate

~ federal constitutional challenges ... [Jd. at 500.]

The court below was asked by petitioners to construe the state

refund statute, 23 V.S.A. § 3020(b), without any notice that peti-

tioners would later contend in this Court that the absence of a

refund is a violation of the Federal Constitution.

3 Petitioners are simply not correct in contending that their

entitlement to a refund under state law was not “questioned...

until the Supreme Court of Vermont rendered the decisions here

challenged.” When petitioners first moved for a refund order in

the Superior Court, respondents opposed it (see pp. 3-4, supra).

The Superior Court denied the motion for a refund order, ruling

that petitioners’ quest for a refund in this litigation was barred by

sovereign immunity (Pet. App. 32a). And while that court, in

dictum, observed that “[a]rguably” petitioners might be able to

seek a refund through a different proceeding—an application to the

Commissioner of Motor Vehicles, which could then be appealed to

the Superior Court which in turn could then address “whether taxes

should be refunded” (id. at 32a; emphasis added)—that dictum

In the instant case, petitioners elected not to file a

petition for rehearing (styled “motion for reargument”

in Vermont). Thus, even were they correct, as they are

not, that the occasion for invoking their constitutional

claim arose for the first time as a result of the decision

of the Supreme Court of Vermont, petitioners failed to

take the necessary steps thereafter to confer jurisdiction

on this Court.°®

rather generalized federal claim that had been presented to

the state courts.

5 Nor can petitioners take comfort in the wording of Rule 40, Vt.

Rules of Appellate Procedure:

The motion [for reargument] shall state with particularity the

points of law or fact, presented in the briefs upon the original

argument, which in the opinion of the moving party the court

has overlooked or misapprehended and which would probably

affect the result. [Emphasis added. ]

The italicized language serves an obvious purpose for the general-

ity of cases, but the Supreme Court of Vermont has made clear that

it does not bar the presentation of a new claim “if a material

mistake of law is made by the Court in deciding questions of law.”

Spaulding et al. v. Mut. Life In. Co. of N.Y., 94 Vt. 42, 54, 109

A. 22, 28 (1920).

The general rule undoubtedly has such a limitation .. . It

should be, and we have no doubt is, the desire of courts to

rectify any mistakes into which they may fall, when they may

do so without contravening public policy and without working

further injustice ... No mere pride of opinion will be suffered

to stand in the way of accomplishing this result. [Jbid.]

The Court also indicated in Spaulding that new claims can be made

on reargument where the Court’s opinion rests on a ground that

could not have been anticipated. Ibid. See also, In re Maher, 132

Vt. 560, 562, 326 A.2d 142, 143-44 (1974) (despite rule against

consideration on appeal of claims that were not made in the pro-

ceeding below. “questions of alleged constitutional import” will be

considered on appeal although not raised below).

There is thus no doubt that the Supreme Court of Vermont would

have entertained a motion for reargument raising the federal claim.

But even if there were doubt, that would not excuse petitioners’

failure to file such a motion. The purpose of 28 U.S.C. § 1257(3)

is to afford state courts the opportunity to consider federal claims

———

Second, petitioners seek to excuse their failure to raise

below the issue that they seek to present here by suggest-

ing that that issue was subsumed in their attack on the

constitutionality of the taxes: “As the lawsuits were origi-

nally filed, the claim of entitlement to a refund was made

as an integral part of the constitutional attack on the

validity of the taxes.” (Pet. 5, n. 3.) See also, id. (“the

sub-issue of remedy”). This effort, too, is without merit,

for as petitioners concede, the issue they tender here is “a

distinct federal question” from that presented to and

decided by the Vermont courts (Pet. 5 n.3).

Petitioners’ complaints in ATA I and ATA II were

cast in the usual form: in the body they alleged that the

state fee statutes were unconstitutional, and in the prayer

for relief they requested a refund, without identifying

the source of their alleged entitlement to a refund. No

doubt these complaints were broad enough to have enabled

petitioners thereafter to contend that the Federal Consti-

tution was the source of their entitlement. But the fact is

that they never made that contention. Instead, when it

came time for petitioners to particularize their claim for

relief, they urged exclusively that Vermont law entitled

them to a refund as a remedy for the constitutional vio-

lation. The consequence is that the Vermont courts never

understood that there was a federal remedy issue to ad-

dress, and they did not address any such issue. They

focused exclusively, as petitioners asked them to, on the

state law grounds for refund invoked by petitioners.®

before they are brought to this Court, not to require those courts

to decide them. See, e.g., Cardinale, supra, 394 U.S. at 439.

® The analytical considerations that go into deciding whether a

state fee statute violates the Commerce Clause are entirely distinct

from those that go into deciding whether the Federal Constitution

requires state courts to enter monetary awards against state funds

in the face of the States’ invocation of sovereign immunity from

such awards (see pp. 18-23, infra). And as this Court explained

in Gates, supra:

. “{D]ue regard for the appropriate relationship of this Court

to state courts,” McGoldrick v. Compagnie Generale Transatlan-

II. EVEN IF THE QUESTION SOUGHT TO BE PRE-

SENTED HERE HAD BEEN PROPERLY RAISED

IN THE VERMONT COURTS, THAT QUESTION

WOULD NOT WARRANT THIS COURT’S CONSID-

ERATION.

The Supreme Court of Vermont has held that the

State’s sovereign immunity precludes the state courts of

Vermont from entering monetary awards that would be

paid from state funds to recompense those injured by

state statutes ultimately held to contravene the Federal

Constitution. Under Vermont’s system of separated pow-

ers, only the state legislature can waive the State’s sov-

ereign immunity, and the court below concluded that the

state legislature had not waived that immunity to allow

the courts to enter a monetary award in this case.

Petitioners ask this Court to reverse that holding, con-

tending that the Federal Constitution required the state

courts of Vermont to enter a monetary award to be paid

from state funds notwithstanding the State’s assertion

that its sovereign immunity foreclosed its courts from

entering such an award. Petitioners’ contention does not

warrant this Court’s attention, for it has been settled in

this Court for more than a century that the Constitution

did not take away the States’ sovereignity in their own

courts.’

tique, 309 U.S. [480], at 434-485 [1940)], demands that those

courts be given an opportunity to consider the constitutionality

of the actions of state officials, and, equally important, proposed

changes in existing remedies for unconstitutional actions. _

[462 U.S. at 221-22; emphasis added. ]

Here, as in Gates, there never occurred in the state courts “the ad-

versarial dispute necessary to apprise the state court of the argu-

ments’’ sought to be presented here, and petitioners’ remedy claim

is “a separate claim that had to be specifically presented to the

state courts,” 462 U.S. at 228. See also, Bacchus Imports, Ltd. v.

Dias, 468 U.S. 263, 276-77 (1984).

7In addition to seeking a change of this well-settled proposition,

for petitioners to prevail they would have to establish a second

That proposition was first established in Beers v. Ar-

kansas, 61 U.S. 527 (1858), holding that the Arkansas

state courts were not obliged to entertain a monetary

claim against the State for impairing the obligation of

contracts in violation of the Federal Constitution:

It is an established principle of jurisprudence in

all civilized nations that the sovereign cannot be

sued in its own courts . . . without its consent and

permission; but it may, if it thinks proper, waive

this privilege, and permit itself to be made a de

fendant in a suit by individuals, or by another State.

And as this permission is altogether voluntary on

the part of the sovereignty, it follows that it...

may withdraw its consent whenever it may suppose

that justice to the public requires it. [/d. at 529.]

Accord: Memphis & C.R. Co. v. Tennessee, 101 U.S. 337,

339 (1880) ; Cunningham v. Macon & B.R. Co., 109 U.S.

446, 451 (1883). \

That this remains the Court’s understanding today is

evident from Nevada v. Hall, 440 U.S. 410 (1979), which

described the States’ immunity from suit in their own

courts as follows:

The immunity of a truly independent sovereign

from suit in its own courts has been enjoyed as a

matter of absolute right for centuries. Only the

proposition as well: that the Federal Constitution creates an im-

plied cause of action for monetary relief against States in thcii

own courts. Compare, Edelman v. Jordan, 415 U.S. 651, 672 (1974) ;

Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976). For Congress has

not created a statutory cause of action that would be applicable here.

The complaint in ATA II invoked 42 U.S.C. § 1983. But it is doubt-

ful that Commerce Clause claims are maintainavle under § 1983, as

that Clause does not secure individual rights of the type protected

by § 1983. See, e.g., Consolidated Freightways Corp. of Del. v.

Kassel, 730 F.2d 1139, 1142-47 (8th Cir. 1984), cert. denied,

U.S. ——, 105 S.Ct. 126 (1984); J & J Anderson, Inc. v. Town of

Erie, 767 F.2d 1469, 1476 (10th Cir. 1985). In any event, Congress

did not in §1983 create a cause of action for monetary relief

against state funds. Edelman v. Jordan, supra, 415 U.S. at 672,

675-77; Quern v. Jordan, 440 U.S. 332, 340-41 (1979).

sovereign’s own consent could qualify the absolute

character of that immunity.

[N]o sovereign may be sued in its own courts

without its consent. [440 U.S. at 414, 416; emphasis

added].

Indeed, this premise lies at the heart of this Court’s

Eleventh Amendment jurisprudence. It is, of course, set-

tled beyond peradventure that, by reason of that Amend-

ment, a federal court may not, in a suit against state

officers, require a State to refund taxes collected under a

statute violative of the:Commerce Clause. Ford Motor

Co. v. Department of Treasury, 323 U.S. 459 (1945).*

To conclude that the Federal Constitution requires state

courts to order the refund of such taxes would mean that

the Eleventh Amendment is simply a forum-selector, re-

flecting a preference that monetary awards against States

be imposed in the state courts rather than the federal.

But the controlling decisions of this Court have recog-

nized that that is not the significance of the Eleventh

Amendment. Rather, the framers recognized and ac-

cepted that the States could not be sued in their own

courts without their consent, and the purpose of the

Eleventh Amendment was to assure that the sovereignty

thus retained in the state courts would not be vitiated by

the entertaining of unconsented to suits against States

in the federal courts.

In Hans v. State of Louisiana, 134 U.S. 1 (1890),

which this Court has identified as the source of the cur-

rent understanding of the meaning of the Eleventh

Amendment,’ the Court described the “anomalous result”

* Ford Motor Co. was quoted as authoritative in Edelman v.

Jordan, supra, 415 U.S. at 663, in Quern v. Jordan, supra, 440

U.S. at 346 n.17, and in Pennhurst State School & Hosp. v. Halder-

man, 465 U.S. 89, 101 (1984).

* See, e.g., Pennhurst, supra, 465 U.S. at 98 (1984); Atascadero

State Hosp. v. Scanlon, —— U.S. ——, 105 S.Ct. 3142, 3145, 3148

n.3 (1985).

that would be produced were the Constitution construed

to permit federal question suits against States in federal

court, id. at 10:

{[Wle should have this anomalous result, that in

cases arising under the Constitution or laws of the

United States, a State may be sued in the federal

courts by its own citizens, .. . although not allowing

itself to be sued in its own courts. [Emphasis

added. }

The Hans Court recounted at length the historical sup-

port for the proposition that States are not suable in

their own courts without their consent, as we detail in

the margin."”” That understanding was reiterated, on

1° The Hans Court cited as authoritative Justice Iredell’s under-

standing of the original intent of the Constitution’s framers, ex-

pressed in his dissent to the decision that was overturned by the

Eleventh Amendment, Chisholm v. Georgia, 2 U.S. 419 (1793).

According to the decision in Hans, Justice Iredell correctly

contended that it was not the intention to create new and

unheard of remedies, by subjecting sovereign States to actions

at the suit of individuals (which he conclusively showed was

never done before), but only . . . to invest the federal courts

with jurisdiction to hear and determine controversies and cases

. . . that were properly susceptible of litigation in courts.

{134 U.S. at 12.]

The Hans Court also quoted from Hamilton, in Federalist No. 81,

that

It is inherent in the nature of sovereignty not to be amenable

to the suit of an individual without its consent. That is the

general sense and the general practice of mankind; and the

exemption, as one of the attributes of sovereignty, is now

enjoyed by the government of every State in the Union. Unless,

therefore, there is a surrender of this immunity in the plan of

the convention, it will remain with the States ... [T]here is

no color to pretend that the state governments would, by the

adoption of that plan, be devested of the privilege of paying

their own debts in their own way, free from any constraint

but that which flows from the obligations of good faith. [134

US. at 13.]

The Hans Court quoted Madison and Marshall to the same effect,

134 U.S. at 14, and expressly reaffirmed the declarations in Cunning-

the basis of the same historical materials, in Smith v.

Reeves, 178 U.S. 436, 440-49 (1900), and Monaco v.

Mississippi, 292 U.S. 313, 322-30 (1934) .™

In the face of this uniform decisional law, petitioners

invoke a number of decisions that are wholly inapposite.

In none of the decisions petitioners cite was a State re-

sisting a refund order on the ground thac it enjoyed sov-

ereign immunity from such an award in its courts, and

in none had the state court refused a-refund on the basis

of sovereign immunity. In none of these cases, accord-

ingly, did this Court address the question whether the

Federal Constitution stripped States of sovereign immu-

nity in their own courts in federal question suits. Indeed,

in only three of the cases cited by petitioners did this

Court hold that a refund was required, and two of those—

Ward v. Love County, 253 U.S. 17 (1920) and lowa-Des

Moines Nat. Bank v. Bennett, 284 U.S. 239 (1931)—were

suits to recover money from counties, which were never

understood in this country to share the States’ sovereign

ham v. Macon & B.R. Co., supra, and Beers v. Arkansas, supra, that

states cannot be sued in their own courts without their consent,

134 U.S. at 16-17.

11 See also, Ford Motor Co., supra 323 U.S. at 465, where the

Court took as given that a State’s waiver of immunity is required

for a suit against the State based on the Commerce Clause to be

maintained in state courts. In holding that an action in the federal

courts for refund of taxes alleged to violate the Commerce Clause

was barred by the Eleventh Amendent, the Ford Motor Co. Court

noted that the State legislature had enacted a “tax refund statute as

a waiver of state immunity from suit in state courts” (emphasis

added). The Court added. “ ‘When a state authorizes a suit against

itself to do justice to taxpayers who deem themselves injured by any

exaction, it is not consonant with our dual system for the federal

courts to read the consent to embrace federal as well as state

courts ... [W] are dealing with the sovereign exemption from

judicial interference in the vital field of financial administration

... "Id., quoting Great Northern Insurance Co. v. Read, 322 US.

47, 54 (1944).

immunity.” In the third, Carpenter v. Shaw, 280 U.S.

363 (1930)—the lone case requiring a refund order

against a State—not only was there no claim of sovereign

immunity, but the state legislature had created a statu-

tory cause of action in state court, authorizing its courts

to order refunds of taxes collected by “the state,” and

the claim for a refund was brought in state court on the

basis of that statute. See Carpenter v. Shaw, 134 Okla.

29, 272 Pac. 393, 395 (1928).

In sum, the question petitioners seek to present here

has already been decided by this Court, adversely to peti-

tioners’ position, and that question accordingly does not

warrant this Court’s attention.”

12 See, ¢.g., County of Lincoln v. Luning, 133 U.S. 529 (1890);

Moor v. County of Alameda, 411 U.S. 693, 717-18 (1973).

13 Petitioners state that “without a refund requirement, the

power of the Commerce Clause to deter the enactment of a series

of discriminatory levies is greatly diminished, as the present case

illustrates” (Pet. 13; see also, id. 13-14 nn.7, 8). But now that

the Vermont Supreme Court has definitively settled that there is

not a state law entitlement to refund, the lower Vermont courts

have been issuing escrow orders in suits challenging subsequent

tax statutes, reasoning that such preliminary relief is necessary

because there is no adequate remedy at law. American Trucking

Associations, Inc. v. Conway, Dkt. No. S-147-86 WnC [Vt], St. Tax.

Rep. (CCH) { 200-263 at 10,338-39 (Vt. Super. Ct. May 21, 1986) ;

American Trucking Associations, Inc. v. Conway, Dkt. No. S-95-86

WnC [Vt.] (Vt. Super. Ct. Apr. 14, 1986); petition by State for

review of these orders is pending in Supreme Court of Vermont.

CONCLUSION

For the reasons set forth above, the petition for a

writ of certiorari should be denied.

Respectfully submitted,

JEFFREY L. AMESTOY

Attorney General

THOMAS R. VIALL

ROBERT C. SCHWARTZ

Assistant Attorneys General

State of Vermont

133 State Street

Montpelier, VT 05602

MICHAEL H. GOTTESMAN

(Counsel of Record)

ROBERT M. WEINBERG

BREDHOFF & KAISER

1000 Connecticut Avenue, N.W.

Washington, D.C. 20036

(202) 833-9340

Attorneys for Respondents

APPENDICES

Pe SUR RE Ne Ae eee

. Appellants’ Brief to Supreme Court of Vermont in

APPENDIX

BRIEFS IN THE VERMONT STATE COURTS

IN WHICH THE REFUND ISSUE WAS ADDRESSED

Page

. Appellant’s Brief to Supreme Court of Vermont in

I IE sto delertedadchstnibinkcnninn da sclea ns illiapetanineiglitalialanbnccasss la

. Appellees’ Brief and Appellees’ Cross Appeal to

Supreme Court of Vermont in ATA IJ]... 3a

. Appellant’s Reply Brief to Supreme Court of Ver-

a cachemitaia 17a

. Appellees’ Reply Brief to Supreme Court of Ver-

NI HI isesiicatncagh Spades ac crn baecractdcde emcaeatanomnnes 24a

. Motion to Alter Judgment Order in ATA II (Filed

in Washington Superior Court) .......................00-...--- 29a

. Memorandum in Support of Motion to Alter Judg-

ment in ATA I] (with Stipulation attached) ............ 30a

. Objection to Motion to Alter Judgment Order in

I he iran asics ocicta ctctstenasnabidc cana eaten a 34a

. Appellants’ Brief to Supreme Court of Vermont in

I a Te ir i 36a

Pee I I osiisi ici ictemeabccak 39a

APPENDIX A

IN THE SUPREME COURT

OF THE STATE OF VERMONT

Supreme Court Docket Number 83-484

AMERICAN TRUCKING ASSOCIATIONS, INC., et al.,

Plaintiff-A ppellee

Vv.

WILLIAM CONWAY, VERMONT COMMISSIONER OF

MOTOR VEHICLES, et al.,

Defendant-A ppellant

Appeal From The Washington Superior Court

Docket Number 8185-82 WnC

APPELLANT’S BRIEF

+ * * *

CONCLUSION

For the foregoing reasons the challenged statutes meet

the tests set forth in Complete Auto Transit v. Brady,

supra, 430 U.S. 274, and their constitutionality should

be upheld. Appellant seeks a reversal of the Washington

Superior Court’s Order of August 31, 1983, and entry of

judgment on the merits in favor of the State.

APPENDIX B

IN THE SUPREME COURT OF THE

STATE OF VERMONT

SUPREME COURT DOCKET NUMBER 83-484

[Caption Omitted in Printing]

APPELLEES’ BRIEF AND

APPELLEES’ CROSS APPEAL

Table of Contents

Page

Ree CoA A a a i ON

Table of Cases and Authorities ....................00000....0........e

en PC, 2 soaicentinnmuehitpenioeaiibininantaicon [6a]

I i a a cies cde denaiabinns

Statement of Issues Presented .20..0.000..0..0..cccccccccececeeeeeeeee [8a]

Argument

I. The Trial Court was correct in its conclusion

that the $50 fuel user fees imposed by 23 V.S.A.

415, 3007 and 3010 violate the Commerce Clause

of the United States Constitution because:

1. They discriminate against interstate com-

merce both on their face and in their opera-

tion; and

2. They are not fairly related to the services

provided by the state.

A. Introduction ........... REO

TABLE OF CONTENTS—Continued

Page

B. The Trial Court was correct in its decla-

ration that the fuel user license fees and

single trip fees imposed by 23 V.S.A. 415,

3007 and 3010, when viewed either indi-

vidually or in concert with 23 V.S.A. 367,

facially and invidiously discriminate be-

tween interstate and intrastate motor

C. The Trial Court was correct in its deter-

mination that the fuel user license fees

imposed by 23 V.S.A. 415, 3007 and 3010

are not fairly related to the services pro-

vided by the state to operators of foreign-

based motor trucks, and that they there-

fore violate the Commerce Clause of the

United States Constitution —...............

II. The taxing provisions of 23 V.S.A. 415, 3007

and 3010 unlawfully and unconstitutionally dis-

criminate against interstate motor carriers in

violation of the Privileges and Immunities Clause

of the United States Constitution, Article IV,

Section 2, Clause 3, the Fifth and Fourteenth

Amendments of the United States Constitution

and Chapter 1, Article 9 of the Vermont Consti-

tution. The taxing provisions are also in conflict

with lawful, controlling, and preemptive federal

statutes and regulations and are void pursuant

to the Supremacy Clause of the United States

Constitution, Article 6, Clause 2.

i oo A

B. Equal Protection and “Proportional Contri-

i eceein

C. Privileges and Immunities Clause ..................

es ee I eieleanncinenasenienn

TABLE OF CONTENTS—Continued

III. The refusal of the Washington Superior Court

to order the Defendant to repay to Plaintiffs and

members of the Plaintiff class all fees, fines or

penalties collected by Defendants pursuant to

the Diesel Fuel Tax Act (23 V.S.A. 415, 3007

and 3010 all as enacted or amended pursuant to

Act No. 172) was erroneous for the following

reasons:

1. Monetary relief is an appropriate remedy

in this action.

2. The Trial Court has jurisdiction to award

monetary relief in this action.

3. The doctrine of sovereign immunity does not

apply under the facts in this matter.

A. Introduction

B. Monetary relief is an appropriate remedy

I cine hae ce

C. The Trial Court has jurisdiction to order

monetary relief in this action

D. The doctrine of sovereign immunity does

OEE EEE EEE E EEE EE EEEEEEEEEEEEEEEEEREE EEE

Page

[9a]

{10a}

[13a]

Conclusion ...

not apply in this action. ............................. [14a]

STATEMENT OF THE CASE

On June 2, 1982, the Plaintiffs, American Trucking

Associations, Inc., Chemical Leaman Tank Line Incorpo-

rated and Anderson Trucking Service, Inc. filed a “Com-

plaint for Injunctive and Declaratory Relief” in the

Washington Superior Court challenging the constitution-

ality of 28 V.S.A. 415, 3007 and 3010, all as enacted and

amended pursuant to No. 172 of the Acts of the 1982

(1981 adjourned) session of the Vermont Legislature.

By Stipulation of the parties dated October 7, 1982,

(Printed Case, p. 3), it was agreed that the named

Plaintiffs would represent a class defined as all inter-

state motor carriers whose base-plate truck registrations

are issued by jurisdictions other than the State of Ver-

mont, and who were then, or in the future might become,

subject to the licensing requirements and fees set forth

in the challenged statutes.

The Plaintiffs requested a declaration that the said

statutes, 23 V.S.A. 415, 3007 and 3010, violates the pro-

visions of the Commerce Clause of the United States

Constitution, the Supremacy Clause of the United States

Constitution, the Fifth and Fourteenth Amendments to

the United States Constitution, the Privileges and Im-

munities Clause of the United States Constitution, and

Chapter I, Article 9 of the Vermont State Constitution.

The Plaintiffs further requested that the Defendants be

permanently enjoined from demanding, receiving or ac-

cepting any fees paid to them by Plaintiffs pursuant to

the said statutes, and from the enforcement or execution

of the aforesaid statutes directed against motor trucks

not registered in the State of Vermont, or their owners

or operators. (Printed Case, p. 3). The Plaintiffs also

requested that the Court direct the Defendants to refund

to Plaintiffs and members of the Plaintiff class any fees,

fines or penalties wrongfully, illegally or unconstitution-

ally collected from said Plaintiffs by Defendants pursu-

ant to the statutes in question. The mechanism for such

refunds was stipulated to by the parties on October 7,

1982. (Printed Case, p. 3).

On August 31, 1983, the Washington Superior Court,

the Honorable James L. Morse presiding, issued its opin-

ion and order. The Court decreed that §§ 415, 3007 and

3010 of Title 23 violate the Commerce Clause of the

United States Constitution. (Printed Case, p. 8). The

Order contained no discussion of the several other con-

stitutional issues raised by Plaintiffs although they were

briefed by the parties. The Defendants appealed from the

said Order by Notice of Appeal dated September 30,

1983. (Printed Case, p. 10).

The said Judgment Order made no reference to Plain-

tiffs’ request for repayment of the fees, fines or penalties

collected by Defendants pursuant to the said statute.

Therefore, Plaintiffs filed a “Motion to Alter the Judg-

ment Order” in the case, dated September 9, 1983.

(Printed Case, p. 9). In their motion, Plaintiffs requested

that the said fees, fines and penalties be refunded by De-

fendants in accordance with the aforesaid Stipulation of

the parties dated October 7, 1982. (Printed Case, p. 3).

The said motion was denied by the Court in its “Opinion

and Order” dated December 7, 1983. (Printed Case, p.

12). The Plaintiffs appealed from that order by Notice

of Appeal dated December 19, 1983. (Printed Case, p.

13).

This matter is therefore the subject of cross-appeals.

The appeal filed by the Defendants relates to the declara-

tion by the Washington Superior Court that the statutes

in question are unconstitutional. The Plaintiffs’ cross-

appeal relates solely to the issue of whether, as a part of

its Judgment Order in this case, the Washington Superior

Court should have awarded to the Plaintiffs and the

members of the Plaintiff class monetary relief in accord-

ance with the requests set forth in their Complaint, and

the October 7, 1982 stipulation of the parties.

* o * *

Il.

Ill.

Statement of Issues Presented

Was the Court correct in its conclusion that the $50

fuel user fees imposed by 23 V.S.A. 415, 3007 and

3010 violate the Commerce Clause of the United

States Constitution?

Do the taxing provisions of 23 V.S.A. 415, 3007 and

3010 unlawfully and unconstitutionally discriminate

against interstate motor carriers in violation of the

Privileges and Immunities Clause of the United

States Constitution, Article IV, Section 2, Clause 3,

the Fifth and Fourteenth Amendments of the United

States Constitution, Article IV, Section 2, Clause 3,

the Fifth and Fourteenth Amendments of the United

States Constitution, and Chapter 1, Article 9 of the

Vermont Constitution? Are these taxing provisions

also in conflict with lawful, controlling, and preemp-

tive federal statutes and regulations and therefore

void pursuant to the Supremacy Clause of the United

States Constitution, Article 6, Clause 2?

Did the Washington Superior Court err in refusing

to order the Defendants to repay to Plaintiffs and

members of the Plaintiff class all fees, fines or penal-

ties collected by Defendants pursuant to the Diesel

Fuel Tax Act (23 V.S.A. 415, 3007 and 3010 all as

enacted or amended pursuant to Act No. 172)?

ARGUMENT

* * * *

Ill. THE REFUSAL OF THE WASHINGTON SU-

PERIOR COURT TO ORDER THE DEFENDANT TO

REPAY TO PLAINTIFFS AND MEMBERS OF THE

PLAINTIFF CLASS ALL FEES, FINES OR PENAL-

TIES COLLECTED BY DEFENDANTS PURSUANT

TO THE DIESEL FUEL TAX ACT (23 V.S.A. 415,

3007 AND 3010 ALL AS ENACTED OR AMENDED

PURSUANT TO ACT NO. 172) WAS ERRONEOUS

FOR THE FOLLOWING REASONS:

1. MONETARY RELIEF IS AN APPROPRIATE

REMEDY INTHIS ACTION —_

2. THE TRIAL COURT HAS JURISDICTION TO

AWARD MONETARY RELIEF IN THIS

ACTION

3. THE DOCTRINE OF SOVEREIGN IMMU-

NITY DOES NOT APPLY UNDER THE

FACTS IN THIS MATTER

A. Introduction—

The matter appealed herein was commenced pursuant

to the Declaratory Judgments: Act, 12 V.S.A. 4711 et seq.

In their Complaint, Appellees requested that the Trial

Court declares 23 V.S.A. 415, 3007 and 3010 unconstitu-

tional. Appellees further requested that the Court direct

the appellants to refund any fees, fines or penalties col-

lected pursuant to the statutes in question.

By stipulation dated October 7, 1982, (Printed Case,

p. 3) the parties to this action agreed as follows:

That in the event the (Diesel Fuel Tax) Act is finally

declared to be unconstitutional and void in whole or

in part, by Order of a Vermont Superior Court or

any higher court having competent appeals jurisdic-

tion thereof, any fees and penalties wrongfully and

10a

illegally obtained by the State of Vermont and its

instrumentalities and ordered to be repaid thereby

may be refunded pursuant to 23 V.S.A. 3020. . .,

23 V.S.A. 328 or in any other manner ordered by

such Court.

While the Trial Court has declared the statutes un-

constitutional ‘Opinion and Order of Washington Su-

perior Court, dated August 31, 1983, Printed Case, p. 8)

it has refused to order refunds of fees, fines or penalties

collected under said statutes (Opinion and Order of

Washington Superior Court, dated December 7, 1983,

Printed Case, p. 12). The Trial Court’s refusal to order

refunds was based on three grounds. First, the declara-

tion of unconstitutionality is a sufficient remedy and

therefore monetary relief is not necessary or appropriate.

Second, the Trial Court does not have jurisdiction to

award monetary relief. Finally, “an award of a mone-

tary judgment is barred by the doctrine of sovereign

immunity.”

Appellees contend that the Trial Court erred in deny-

ing the request to order refunds of all fees, fines or pen-

alties collected pursuant to 23 V.S.A. 415, 3007 and 3010.

B. Monetary Relief is an appropriate remedy in this

action.

The Trial Court cites Neil v. Brockway, 136 Vt. 119

(1978) in support of its conclusion that injunctive and

monetary relief is not necessary in this case. However,

that decision does not limit or remove the Superior

Court’s jurisdiction to issue monetary awards as part

of its judgment in declaratory judgment actions. In

relevant portions, it simply held that claims for monetary

relief are not a required pleading in declaratory judg-

ment actions. It does not stand for the proposition that

a Superior Court is unable to entertain monetary claims

as a part of its declaratory judgment jurisdiction.

lla

Likewise, Auclair v. Vermont Electric Power Co., 133

Vt. 22 (1974) does not limit the ability of the Superior

Court to make monetary awards in the context of this

action. That case construed the jurisdiction of the Su-

perior Court vis-a-vis that of the Public Service Board.

It is of no assistance in our determination of whether

the Washington Superior Court can make monetary

awards within the ambit of the Declaratory Judgments

Act.

It is clear from the interpretation of the Uniform

Declaratory Judgment Act made by the courts of other

jurisdictions that monetary relief is an appropriate result

in the context of declaratory judgment actions. In New

Haven Water Co. v. City of New Haven, 4 A.2d 763, 131

Conn. 456, it was held that Plaintiff was entitled to in-

terest as damages for detention of water charges in an

action for declaratory judgment. Likewise, in another

proceeding for a declaratory judgment, it was held that

a landlord was entitled to a money judgment for rent due

and unpaid even though not prayed for in the original

petition. McNally v. Moser, 122 A.2d 555, 210 Md. 127,

60 A.L.R.2d 388 (1956).

The policy behind this rule is based upon the general

consideration that once equity has attached the court

should give full and complete relief in the interest of

judicial economy. Langevin v. Hillsborough County, 320

A.2d 635 (N.H. 1974). This principle has been held ap-

plicable in declaratory judgment actions, Phil J. Corp. v.

Markle, 241 A.2d 718 (Md. 1968), including such actions

brought to test the constitutionality of a tax statute.

Berry v. Daigle, 322 A.2d 320 (Maine, 1974). In Berry,

the court stated that:

A proceeding for declaratory judgment may be

maintained even though an alternative remedy is

available. The action is not contingent on the ex-

clusivity of the remedy . .. Therefore, despite the

fact that the regular procedure for recovery of taxes

invalidly collected was by a common law action in

12a

assumpsit for money had and received... a de-

claratory judgment may be issued establishing the

legality of the taxing authority and the rights of

the parties with respect to the moneys collected.

This position is in concert with the law of the ma-

jority of jurisdictions which have enacted the Uni-

form Declaratory Judgments Act and have con-

sidered its use in testing the constitutionality of a

state law. Id. at p. 325; see 11 A.L.R.2d 359.

In American Trucking Associations, Inc. v. Common-

wealth of Kentucky, Franklin Circuit Court, Ky. (82-CI-

1033, January 6, 1983), the Court ruled that Plaintiffs

were entitled to refunds of highway use fees after deter-

mining that the statute authorizing the fee was uncon-

stitutional. Furthermore, the Court specifically ordered

the Defendants to refund the fees “without the necessity

of further hearings or orders of the court.”

Similarly, in American Trucking Association, Inc. v.

Quinn, 437 A.2d 623 (Maine, 1981), Plaintiff brought a

declaratory action to test the constitutionality of a high-

way use tax statute. The Maine Supreme Judicial Court,

in affirming the trial court’s judgment that the statute

was unconstitutional, ordered the Trial Court, on remand,

to determine the disposition of fees collected under the

unconstitutional statute and held in escrow. The pro-

priety of monetary relief as an appropriate remedy in

a declaratory action was assumed by the Court.

Finally, Appellees urge that the parties to this action,

pursuant to their Stipulation which is set out in part A

of this section, contemplated an order by the Trial Court

requiring a refund of fees, fines or penalties in the event

the questioned statutes were found to be unconstitutional.

Appellees respectfully request that the Supreme Court

direct the Washington Superior Court to order a refund

of all fees, fines or penalties which have been illegally

collected by the state pursuant to 23 V.S.A. 415, 3007

and 3010.

13a

C. The Trial Court has jurisdiction to order monetary

relief in this action. -

In its Opinion and Order dated December 7, 1983

(Printed Case, p. 12) the Trial Court, in refusing to

order refunds, indicated that it lacked jurisdiction to

“determine whether taxes should be refunded” in this

action. The Court first recognized that it is empowered,

under 23 V.S.A. 3023, to conduct, on the petition of an

aggrieved taxpayer, a de novo review of any “decision,

order or finding of the Commissioner of Motor Vehicles”

made under the Diesel Fuel Tax Act. The Court then

decided that, because the Commissioner has not yet is-

sued a decision pertaining to refunds of fees collected

under 23 V.S.A. 415, 3007 and 3010, it lacked jurisdic-

tion to determine whether the fees should be refunded.

The Appellees respectfully submit that it is not neces-

sary that the Court base its jurisdiction to order a re-

fund in this action solely on the provisions of 23 V.S.A.

3023. There is another basis for jurisdiction, namely the

power of the court in a declaratory judgment action to

afford full and complete relief. The Vermont Supreme

Court has often endorsed the doctrine that the “purpose

of a declaratory judgment action is to enunciate, so far

as is requested, the rights of the parties . .. and in-

junctive relief may be granted in such actions.” Groves

v. Town of Waitsfield, 180 Vt. 292 A.2d 247 (1972).

There is little question that this doctrine completely em-

powers the Trial Court to order refunds in this action

and it need look no further for a jurisdictional nexus

with the refund issue.

It should also be noted that the Trial Court presently

has before it all of the information required to determine

the amount of fees, fines or penalties due as refund, as

well as all parties claiming such refunds. Certainly it is

more appropriate, in the interests of judicial economy,

that the Trial Court proceed with its determination at

this time.

l4a

D. The doctrine of sovereign immunity does not apply

in this action—

In its Opinion and Order dated December 7, 1983, the

Trial Court reaches certain conclusions of law on the

subject of sovereign immunity which are contradictory.

The Court first states that, based upon the doctrine of

sovereign immunity, it is barred from making any mone-

tary award in this matter. However, the Court then

recognizes that, in the event of an appeal from a deci-

sion of the Commissioner of Motor Vehicles, under 23

V.S.A. 3020(b), denying repayment of fees illegally or

wrongfully obtained, the Superior Court would have

jurisdiction to conduct a de novo review of such decision

pursuant to 23 V.S.A. 3023. Although the Trial Court

recognizes the existence of 23 V.S.A. 3020(b) in a foot-

note to its Opinion, it fails to consider the full implica-

tion of that statute. If indeed the doctrine of sovereign

immunity applies at all in this matter, a point which

Appellees explicitly dispute, any protection thereunder

which might otherwise be claimed by the state has been

waived through the enactment of said Section 3020(b).

The Trial Court states that Stoneman v. Vergennes

School District #5, 1389 Vt. 50 (1980) discusses the type

of sovereign immunity found in this case. However, the

character of the statute forming the basis of the Su-

preme Court’s decision in that case (16 V.S.A. 830(a)

(c)), is quite unlike that found at 23 V.S.A. 3020(b).

Section 3020(b) speaks in mandatory language, and is

not based upon any requirement that the legislature ap-

propriate sufficient funds to make repayment under it.

On the other hand, the statute construed in Stoneman

is not mandatory in its language, but rather bases tui-

tion reimbursement to school districts upon the size of

the legislative appropriation for that purpose.

The Trial Court also cites Edelman v. Jordan, 415

U.S. 651 (1974). It is of little relevance to the consid-

15a

erations in this case. It deals with the more basic sov-

ereign immunity rule under the Eleventh Amendment

of the United State Constitution; i.e. a state must con-

sent to suits in Federal Courts brought by its citizens or

citizens from other states. Edelman also shares no fac-

tual similarity with the present case as it dealt with an

analysis of Federal Regulations controlling the processing

of welfare claims. These Regulations contained no man-

datory reimbursement provision such as that found in

23 V.S.A. 3020(b).

As noted in Stoneman, the doctrine of sovereign im-

munity was “once venerated, resently vilified, and (is)

presently substantially limited” in scope. Supra, p. 53.

(Material in parenthesis added). Sovereign immunity

is not as broad in scope as the Trial Court’s Order im-

plies.

The doctrine of sovereign immunity does not apply

to declaratory judgment suits relating to constitution-

ality. See for example, Grinnell v. State, 485 A.2d 523,

121 N.H. 823 (1981), Larson v. Domestic and Foreign

Commerce Corporation, 337 U.S. 682, 690 (1949). In

addition to that, it may be waived, either by express or

reasonably implied consent of the legislature by statute.

State Employees Association of New Hampshire Inc. v.

Belknapp County, 488 A.2d 969 (N.H. 1982). The policy

consideration behind expressed or implied waiver of sov-

ereign immunity by the legislature of a state is, as so

aptly noted in O’Neill v. State Highway Department, 50

N.J. 307, 235 A.2d 1, 5, N.1 (1967), based upon the

principle that:

The courts will adjudge monetary claims founded

upon statute, because the Legislature has inferen-

tially indicated an intent to provide the sums needed

to make good the statutory scheme. See City of

East Orange v. Palmer, supra., 47 N.J. 329, 200

A.2d 679; Amantia v. Cantwell, 89 N.J. Super. 7,

12-13, 213 A.2d 251 (App. Div. 1965).

l6a

The waiver of sovereign immunity in this case is ex-

plicit. 23 V.S.A. 3020(b) provides:

If the Commissioner determines that a tax, penalty,

interest or fee required by this chapter has been

paid more than once by a licensee, or has been 1I-

legally or erroneously collected or computed, the ex-

cess amount paid or collected shall be credited to the

tax account of the licensee, and the licensee shall

be notified thereof by mail. Any balance of the ex-

cess amount remaining in the licensee’s account af-

ter crediting the overpayment shall be refunded if

requested within 30 days of the date of mailing no-

tice. (emphasis added)

The language of this statute is mandatory, not per-

missive. In light of our earlier discussion relating to

the propriety of an award of monetary damages by the

Superior Court in this case, Appellees would respectfully

request that the Supreme Court reverse the Washington

Superior Court’s decision that sovereign immunity pro-

hibits the refund of any taxes, penalties, or interest or

fees wrongfully collected by the Commissioner pursuant

to the provisions of 23 V.S.A. 415, 3007 and 3010, and

that the Supreme Court direct that appropriate refunds

take place.

CONCLUSION

For the reasons set forth above the Appellees respect-

fully request that the Honorable Court uphold the de-

cision of the Washington Superior Court that the fuel

user license fees imposed by 23 V.S.A. 415, 3007 and 7

3010 are unconstitutional and void, and further that the

Honorable Court direct the Washington Superior Court

to order repayment of all fees, fines or penalties collected

by Defendants pursuant to said unconstitutional statutes

in accordance with the request for relief set forth in

Plaintiff’s Complaint.

[Signatures omitted]

tieeineeennentnnened

17a

APPENDIX. C

IN THE SUPREME COURT OF THE STATE

OF VERMONT

SUPREME COURT DOCKET NUMBER 83-484

[Citation Omitted in Printing]

APPELLANT’S REPLY BRIEF

TABLE OF CONTENTS

Page

pT REO Se ONC ARERR

Arguments—

I. THE DECISION OF THE TRIAL COURT

SHOULD BE REVERSED AS THE TRIAL

COURT, SITTING IN EQUITY, HAD NO JU-

RISDICTION TO DECIDE THE CASE ............

II. THE $50 FEE IMPOSED BY 28 V.S.A. §§ 415,

3007, AND 3010 DO NOT VIOLATE THE COM-

MERCE CLAUSE OF THE U.S. CONSTITU-

a a rE TU ee!

Ill. THE TRIAL COURT DID NOT ABUSE ITS

DISCRETION IN REFUSING TO ORDER

THE DEFENDANTS TO REFUND TO PLAIN-

TIFFS ANY FEES, FINES, OR PENALTIES

COLLECTED PURSUANT TO THE CHAL-

RT CUTIE sstrnpntineanestnnisinciennnensacinapeinebinaites [18a]

AINA Sd SOME Re EEA RR PNR A/T AP OU BRY et MOR TNE eA PR [23a]

18a

III. THE TRIAL COURT DID NOT ABUSE ITS DIS-

CRETION IN REFUSING TO ORDER THE DE-

FENDANTS TO REFUND TO PLAINTIFFS

ANY FEES, FINES, OR PENALTIES COL-

LECTED PURSUANT TO THE CHALLENGED

ACT.

If this Court sustains the trial court in finding the

challenged statutory provisions to be unconstitutional,

this Court should also sustain the trial court in its re-

fusal to order the defendants to repay to the plaintiffs

any fees collected under the Act.

In defining the scope of review of this part of the trial

court’s Order, it is submitted that the proper standard

is whether the trial court abused its discretion. It is

clear that this case is a case in equity, seeking declara-

tory and injunctive relief. In equity, the chancellor has

broad powers to fashion relief in such a manner as he

determines is appropriate. The general principle is

stated at 30 C.J.S. Equity, Section 10:

The sound discretion of the court is the controlling

guide of judicial action in every phase of a suit in

equity, including . . . the propriety of granting re-

lief... . So the granting of equitable relief is or-

dinarily a matter of grace ... and the propriety of

affording equitable relief rests in the sound discre-

tion of the court, to be exercised according to the

circumstances and exigencies of each particular case.

See, Brown v. Douglas, 50 F.Supp. 877 (N.D. Texas

1943).

As similarly stated by the U.S. Supreme Court in

Hecht Company v. Bowles, 321 US 321, 329 (1943):

An appeal to the equity jurisdiction ... is an

appeal to the sound discretion which guides the de-

terminations of courts of equity .... The essence

of equity jurisdiction has been the power of the

19a

chancellor to do equity and to mold each decree to

the necessities of the particular case . . . between

the public interest and private needs... .

See also, Porter v. Warner, 328 US 395, 398 1949).

The New Hampshire Supreme Court has expressed

similar sentiments in Crocker v. College of Advanced

Science, 268 A.2d 844, 847 (Sup. Ct. NH 1970) where it

stated:

The propriety of affording equitable relief in a par-

ticular case rests in the sound discretion of the trial

court to be exercised according to the circumstances

and exigencies of the case. The consequences of

granting relief should be balanced against the need

for it.

As noted above, in exercising its discretion in fashion-

ing relief in an equity case, the trial court should con-

sider the consequences of granting the requested relief as

balanced against withholding relief. See also, DiGiovanni

v. Camden Fire Association, 296 US 64 (1935). More-

over, the effect of granting relief must be weighed

against the public interest, G-eat Lakes Dock Company v.

Huffman, 319 US 293, 297-8 (1943), and “. . . a court

vested with equity jurisdiction may in its sound discre-

tion refuse to assume jurisdiction of a matter when the

interests of justice would be furthered.” Bateman v.

South Carolina Port Authority, 298 F.Supp. 999, 1004

(D.S.C. 1969).

This Court has expressed comyarable sentiments in

reviewing equity decisions of a trial court. In Johnson v.

Johnson, 125 Vt. 470, 473 (1966) this Court stated:

If the chancellor has granted or denied relief by the

exercise of discretion based on such equitable con-

siderations, the result is reviewable only upon a

clear and affirmative showing of abuse.

See also, Sparrow v. Cimonetti, 115 Vt. 292, 304 (1948).

20a

Applying these standards to the trial court’s decision

here, it is clear that the trial court did not abuse its

discretion in granting appellees their requested declara-

tory judgment, but refusing to order a refund of all fees

already paid. As noted earlier, all of the fees collected

under the challenged statutory scheme went to the state

highway fund, and were used for road maintenance, in-

cluding snow plowing, salting, sanding, as well as repairs

and maintenance. Without this money, these tasks could

not have been performed, and obviously, the Appellees

had the full advantage of all the road maintenance per-

formed by virtue of these fees. If these fees were to

be refunded, it would amount to almost $6,000,000 at this

point in time. Obviously, the department does not have

this money, and there is no excess money anywhere in

the state budget to pay for this. This Court can take

judicial notice of the actions of the recent legislative

session in trying to eliminate an already existing state

deficit of approximately $45,000,000.

Thus, since the Appellees had the full benefit of road

maintenance through the expenditure of these funds, and

since a refund would have a most serious impact on the

public interest and the state deficit, it was not at all

unreasonable for the trial court to deny Appellees this

form of requested relief. The trial court properly deter-

mined that “. . . a declaratory judgment is sufficient

without the need for injunctive relief.”

A somewhat analogous situation was presented in

Brattleboro Retreat v. Town of Brattleboro, 106 Vt. 228,

238-9 (1934), where this Court held that a taxpayer

could not recover taxes paid under a statute, because the

taxpayer “. . . could not accept the provisions [of the

Act] beneficial to it without obligating itself to perform

the conditions imposed.” Here, Appellees accepted the

benefits of road maintenance under the stetute, and thus

cannot now seek a refund of the very fees paid that

made road maintenance possible.

2la

The trial court recognized that 23 V.S.A. §§3020 and

3023 authorized the Washington Superior Court to con-

duct a de novo review after a decision by the Commis-

sioner of Motor Vehicles on a refund question. However,

the trial court properly noted that this action was not

brought pursuant to 23 V.S.A. § 3023 and that section

provided the only statutory authority for a refund.

Appellees made a choice in bringing this class action

for declaratory and injunctive relief, rather than proceed-

ing in individual cases to seek refunds pursuant to 23

V.S.A. §§ 3020 and 3023. There were many benefits to

Appellees by pursing this matter in the manner they

chose. They were able to get prompt and class-wide

declaratory relief, which, if upheld, would eliminate the

fees in the future. However, by choosing this route, they

forfeited any right they may have had to get a refund

under the established statutory scheme. If they had pro-

ceeded under 23 V.S.A. $§ 3020 and 3023, there is no

express statutory authority for class relief, and thus, it

is very possible that the broad relief granted here would

not have been available to them. See, Chittenden Trust

Company v. MacPherson, 139 Vt. 281, 285 (1981). The

Appellees, having made their choice of procedure, must

live with the consequences, both favorable and unfavor-

able, of the choice. They cannot have it both ways.

A separate, yet related, basis on which the trial court

denied Appellees request for a refund, is that the refund

is barred by the doctrine of sovereign immunity. Once

again, this determination by the trial court was correct,

and did not amount to an abuse of discretion by the

trial court.

In Stoneman v. Vergennes School District No. 5, 139

Vt. 50, 53 (1980) this Court reaffirmred the basic prin-

ciple that “An action against the state cannot be main-

tained without the state’s consent for injuries resulting

from the exercise of essentially governmental functions,

22a

as opposed to proprietary functions.” There can be no

doubt that the collection of the challenged fees in this

case was the exercise of a governmental function.

Since there is no statutory authority for the relief

sought by Appellees, there is no consent by the state. In

Stoneman this Court noted that the Legislature denied

funding, to show lack of consent. Here too, there is

absolutely no state funding available to pay this refund.

In Stoneman this Court also noted that the state has con-

sented to be liable for certain tort claims, 12 V.S.A.

§ 5601. However, an examination of the exceptions to

the Tort Claims Act buttresses Appellants’ argument

here. There is a specific exception for “Any claim based

upon an act or omission of an employee of the state

exercising due care, in the execution of a statute or

regulation, whether or not such a statute or regulation

be valid. . .”, 12 V.S.A. § 5602(1), as well as an excep-

tion for “Any claim arising in respect to the assessment

or collection of any tax...” 12 V.S.A. § 5602(2). These

two exceptions cover precisely the situation presented by

this case and make it abundantly clear that the state has

not waived its sovereign immunity relative thereto.

The federal courts have reached the same result as

the trial court did by their application of the Eleventh

Amendment to the U.S. Constitution, as clearly set forth

in the leading case of Edelman v. Jordan, 415 US 651

(1974). As the trial court correctly noted, that case,

against a state welfare department, held that it was

appropriate to grant prospective declaratory relief in-

validating a state law or regulation, but that the federal

courts would not order a refund of welfare benefits

wrongfully denied under the state rules.

The relevance of Edelman is most compelling in show-

ing the balancing of interests to be weighed in cases of

this nature, and the trial court here reached the same .

conclusion as did the U.S. Supreme Court in Edelman.

It granted prospective relief, but denied a refund of past

23a

due monies. The same public interest considerations are

present in both cases, and thus the Edelman rationale

does provide further support for the trial court’s determi-

nation.

Thus, although the trial court had the authority to

declare the statute to be unconstitutional, Larson v. Do-

mestic and Foreign Commerce Corporation, 337 US 682

(1949), it is clear that the trial court correctly decided

that the doctrine of sovereign immunity barred the re-

fund of monies sought by appellees.

In sum, the trial court properly exercised its equitable

discretion in molding the relief in this case to fit the

circumstances of the case, and the public interest, and

since there was no abuse of this discretion, the trial

court’s determination rejecting Appellees’ request for a

refund should be upheld.

CONCLUSION

For the foregoing reasons, Appellants respectfully sub-

mit that the trial court’s decision holding the challenged

statutes to be unconstitutional under the commerce clause

must be reversed, and this Court should determine that

the challenged statutes are constitutional.

If this Court determines that the trial court was

correct in holding the challenged statutes to be uncon-

stitutional, this Court should also affirm the trial court’s

ruling denying Appellees a refund of all fees, fines or

other monies collected pursuant to said statutes.

[Signatures Omitted]

24a

APPENDIX D

IN THE SUPREME COURT OF THE STATE

OF VERMONT

SUPREME COURT DOCKET NUMBER 83-484

[Caption Omitted in Printing]

APPELLEE’S REPLY BRIEF

TABLE OF CONTENTS

Page

Tallin OF CUB cesiccinsiniinsciniccitisinvicenscncictiscnamaiihdeaecdeaiaiatedainit

Table of Cases and Authorities -.........................--.ssssseeeee- |

ae GE Ce ID ein ccrcinereccetihiccnnniaociianas [25a]

Statement of Issues Presented -........2222222222222222-----000eeeeeeeee [25a]

DAG osistcccncenisncniininicnnstsicssnctenseatiaemanaa [25a]

I. The opinions of the Trial Court should not be

set aside on the ground that Assistant Judges

shame Cite GEIR anccccncceiteremidcctnsenennion

II. The refusal of the Trial Court to order the De-

fendant to repay to Plaintiffs and members of

the Plaintiff class all fees, fines or penalties col-

lected by Defendants pursuant to the Diesel

Fuel Tax Act was erroneous .....................----------- [25a]

CII i icessicctacenciemicnsiccneesncsinentiiecdiaicaaaaa [28a]

25a

STATEMENT OF THE CASE

[The statement is verbatim the same as that in the

opening brief, reprinted supra at pp. 6a-7a.]

* * * *

STATEMENT OF ISSUES PRESENTED

I. Should the opinions of the Trial court be set aside

on the ground that Assistant Judges signed those

opinions?

II. Was the refusal of the Trial Court to order the de-

fendant to repay to Plaintiffs and members of the

Plaintiff class all fees fines or penalties collected by

Defendants pursuant to the Diesel Fuel Tax Act

errroneous?

ARGUMENT

* * * *

Il. THE REFUSAL OF THE TRIAL COURT TO

ORDER THE DEFENDANT TO REPAY TO PLAIN-

TIFFS AND MEMBERS OF THE PLAINTIFF CLASS

ALL FEES, FINES OR PENALTIES COLLECTED BY

DEFENDANTS PURSUANT TO THE DIESEL FUEL

TAX ACT WAS ERRONEOUS.

The Appellees, in their Cross Appeal filed on March

12, 1984, argue that the Trial Court erred in refusing

to award Appellees monetary relief in accordance with

their prayer for relief and the October 7, 1982 stipula-

tion of the parties.

The Appellants, in support of their claim that the Trial

Court’s refusal was proper, advance several propositions

in their Reply Brief filed on April 25, 1984. Appellees

believe that certain of these propositions are misapplied

to the instant case.

The Appellants first suggest that this Court limit its

review of the decision below to a determination of

26a

whether the trial court “abused its discretion” in re-

fusing to order the repayment of fees collected under the

questioned legislation (Appellant’s Reply Brief, Page

25). But a careful reading of the case cited in support

of this proposition, Johnson v. Johnson, 125 Vt. 470

(1966) reveals that appellate review should begin wi.

a determination of whether the lower court based its

grant or denial of equitable relief on equitable considera-

tions relevant to and appropriate for the type of equi-

table proceeding involved. Only if the answer is affirma-

tive is the Court’s action “reviewable only upon a clear

and affirmative showing of abuse.” Johnson, supra at

Page 423.

Appellees contend here, as they did in their cross ap-

peal, that the Trial Court failed to identify any equitable

considerations which override the fact that the parties

herein have stipulated to a definite form of relief (Stipu-

lation, October 7, 1982, Printed Case, Page 3). A declar-

atory judgment decree should render the relief prayed

for where it will clarify the legal relations of the parties.

Commerce Insurance Company of New York v. Pan-

pandrea, 121 Vt. 386 (1960). This Court, therefore,

should expand its review beyond the “abuse of discretion”

standard.

Appellants next suggest that an award of refunds is

barred because the Appellees have benefited from the

expenditure of the challenged fees for highway mainte-

nance and therefore are estopped from recovering the

fees, citing Brattleboro Retreat v. Town of Brattleboro,

106 Vt. 228, 238-9 (1934). But in that case the Plaintiff,

a charitable institution, voluntarily accepted the terms of

its legislative charter of operation and challenged its con-

stitutionality only after decades of operation thereunder.

The Plaintiffs herein challenged the legality of the Diesel

Fuel Tax Act immediately upon its enactment. Also

Plaintiffs had no choice but to pay the fees. Failure to

do so would subject them to sanctions, including fines,

27a

jail terms and license suspensions under 23 V.S.A. 300y,

3022, 3024. The principle enunciated in Brattleboro is

applicable only if a legislative enactment is voluntarily

accepted.

Appellants next argue that the granting of refunds

would have a serious adverse financial impact on the

state treasury and therefore is “against the public in-

terest.” (Appellant’s Reply Brief, Page 28). But Ap-

pellants should be estopped from now asserting this

so-called equitable consideration as they long ago agreed

to a refund of the questioned fees if the statute was

declared unconstitutional (Stipulation, October 7, 1982,

Printed Case, Page 3).

Appellants claim that the Vermont Agency of Trans-

portation cannot afford to refund the fees collected under

the challenged statutes. It must be pointed out that there

is an existing statutory alternative to an outright refund.

Under 23 V.S.A. 3020(b) the Commissioner of Motor

Vehicles is permitted to “credit the account of a licensee

for any fees or taxes “illegally or erroneously collected”.

Appellees, without conceding that refunds of fees assessed

pursuant to an unconstitutional statute should ever be

construed as against the public interest, suggest that the

alternative remedy would alleviate the fiscal burden al-

legedly associated with direct refunds.

Appellants further argue that Appellees, by electing to

bring this class action, have thereby forfeited their rights

to individual refunds under 23 V.S.A. 3020(b). On the

contrary, the parties to this action expressly stipulated

that any fees illegally collected may “be refunded pur-

suant to 23 V.S.A. 3020. . ., 23 V.S.A. 328 or in any

other manner ordered by such court” (Printed Case,

Page 3. Appellants, by stipulating that alternative reme-

dies were in fact acceptable and appropriate, cannot now

claim that Appellees have irrevocably elected a particular

form of remedy. In any event, the case cited by Appel-

28a

lants in support of their “election of remedies argument,

Chittenden Trust Co. v. MacPherson, 139 Vt. 281 (1981),

is inapplicable here. The question in that case was

whether a litigant should be permitted to collaterally

attack, by a class action, an unappealed from probate

decree. The Court’s ruling focused not on the “election

of remedies” principle, but on the doctrine of res ad-

judicata and is therefore not relevant authority for the

appellant’s position.

Appelles submit that the doctrine of sovereign im-

munity does not apply in this action and that monetary

relief is an appropriate remedy and incorporate by refer-

ence those supporting arguments advanced in Appellee’s

Cross Appeal.

Appellees respectfully request that the Supreme Court

reverse the Washington Superior Court’s decision and

direct that any taxes penalties, interest or fees wrong-

fully collected by the Commissioner pursuant to the pro-

visions of 23 V.S.A. 415, 3007, and 3010 be refunded.

CONCLUSION

For the reasons set forth herein the Appellees respect-

fully request that the Honorable Court uphold the deci-

sion of the Washington Superior Court that the fuel user

license fees imposed by 23 V.S.A. 415, 3007 and 3010

are unconstitutional and void, and further that the

Honorable Court direct the Washington Superior Court to

order repayment of all fees, fines or penalties collected

by Defendants pursuant to said unconstitutional statutes

in accordance with the request for relief set forth in

Plaintiff’s Complaint. ~-

[Signatures omitted]

29a

APPENDIX E

STATE OF VERMONT

WASHINGTON COUNTY, SS

WASHINGTON SUPERIOR COURT

DOCKET No. §8185-82Wne

AMERICAN TRUCKING ASSOCIATIONS, INC. and CHEMICAL

LEAMAN TANK LINE, INC. and ANDERSON TRUCKING

SERVICE, INC., Individually and on behalf of all others

similarly situated,

- Plaintiffs

WILLIAM CONWAY, VERMONT COMMISSIONER OF MOTOR

VEHICLES, PAUL PHILBROOK, VERMONT COMMISSIONER

OF PUBLIC SAFETY, RICHARD SNELLING, GOVERNOR OF

THE STATE OF VERMONT, and TOM EVSLIN, SECRETARY

OF THE VERMONT AGENCY OF TRANSPORTATION,

Defendants

MOTION TO ALTER JUDGMENT ORDER

NOW COME the Plaintiffs, American Trucking As-

sociations, Inc., Chemical Leaman Tank Line Incorpo-

rated and Anderson Trucking Service, Inc., by and

through their attorneys, Conley and Foote, and move the

Honorable Court pursuant to V.R.C.P. 59(e) to alter the

Judgment Order in this case dated August 31, 1983 by

ordering that the Defendants repay to the Plaintiffs and

members of the Plaintiff class, any fees, fines or penal-

ties, collected from said Plaintiffs by Defendants pur-

suant to 23 V.S.A. § 3007, 415, and 3010 or as a result

of prosecution of Plaintiffs and the members of the

Plaintiff class for violation of the said statutes, all in

accordance with a certain Stipulation dated October 7,

1982, filed in this cause.

(Signatures omitted]

30a

APPENDIX F

STATE OF VERMONT

WASHINGTON COUNTY, SS

WASHINGTON SUPERIOR COURT

Docket No. 8185-82 Wne

[Caption Omitted in Printing]

MEMORANDUM IN SUPPORT OF MOTION

TO ALTER JUDGMENT

Rule 59(e) of the Vermont Rules of Civil Procedure

provides a basis for any party to request that the Court

alter or amend its judgment on motion served not later

than 10 days after entry of the Judgment Order. The

reporter’s notes in relation to the said Rule indicate

that in the Federal Courts, motions of this type have

been determined to be the appropriate method for modi-

fication of judgment orders or corrections thereto where

in the Court’s discretion such changes seem warranted

in the interests of justice.

In this matter, the parties have agreed pursuant to a

Stipulation dated October 7, 1982, a copy of which is

attached hereto, that upon the declaration by Order of a

Vermont Superior Court that all or any portion of num-

ber 172 of the Acts of the 1982 (1981 Adjourned) Ses-

sion of the Vermont Legislature are unconstitutional, re-

payment of any fees and penalties wrongfully or illegally

obtained by the State of Vermont and its instrumentali-

ties would be refunded pursuant to 23 V.S.A. 3020, 23

V.S.A. 328 or in any other manner ordered by such

3la

Court. The clear implication of the Court’s Opinion and

Order in this case dated August 31, 1983 is that such

fees and penalties as were collected as a result of the

enforcement of 23 V.S.A. 3007, 415 and 3010 will be

refunded to the Plaintiffs and the relevant members of

the Plaintiff class.

The purpose of this Motion is to clarify the method-

ology for such repayment and to avoid any dispute be-

tween the parties in that regard. It should be noted that

in the Complaint in this matter dated June 2, 1982 the

Plaintiffs requested the following relief:

An Order directing Defendants to repay to Plaintiffs

and members of the Plaintiff class any fees or pen-

alties wrongfully, illegally or unconstitutionally col-

lected from said Plaintiffs by Defendants pursuant

to the statutes complained of herein.

For the reasons hereinabove set forth, the Plaintiffs

respectfully request that their Motion to Alter the Judg-

ment Order in this matter be granted.

[Signatures omitted]

32a

STATE OF VERMONT

WASHINGTON COUNTY, SS

WASHINGTON SUPERIOR COURT

Docket No. 8185-82Wnce

[Caption Omitted in Priting]

STIPULATION

NOW COME the parties in the above entitled action,

by and through their respective attorneys, and stipulate

and agree as follows:

1. The class to be represented by the named Plaintiff

in the herein action is the class of all interstate motor

carriers whose base truck registrations are issued by

jurisdictions other than the State of Vermont (that is

the persons owning or operating motor trucks upon the

highways of the State not registered or required to be

registered in this State, in the language of 23 V.S.A.

3007(b)), and who are now or may in the future be-

come subject to the requirements and liable for payment

of the fees set forth in 23 V.S.A. 415, 3007, and 3010 and

section 15(c), all as enacted and amended pursuant to

Number 172 of the Acts of the 1982 (1981 adjourned)

session of the Vermont Legislature.

2. That in the event said Act Number 172 is finally

declared to be unconstitutional and void in whole or in

part, by Order of a Vermont Superior Court or any

higher court having competent appeals jurisdiction

a a

er ——

33a

thereof, any fees and penalties wrongfully or illegally

obtained by the State of Vermont and its instrumentali-

ties and ordered to be repaid thereby may be refunded

pursuant to 23 V.S.A. 3020 as enacted by said Act Num-

ber 172, 23 V.S.A. 328 or in any other manner ordered by

such Court.

[Signatures omitted]

34a

APPENDIX G

STATE OF VERMONT

WASHINGTON COUNTY, SS.

WASHINGTON SUPERIOR COURT

Docket No. 8185-82WnC

[Caption Omitted in Printing]

OBJECTION TO MOTION TO ALTER

JUDGMENT ORDER

NOW COME the Defendants by and through their at-

torneys Robert C. Schwartz and Thomas R. Viall, Assist-

ant Attorneys General and object to the Plaintiffs’ Mo-

tion to Alter the Judgment Order in this case. The basis

for the objections are as follows:

1. If payment to the Plaintiffs’ class is made, it will

create an even greater inequity than it is attempting

to rectify in that it will leave Vermont registered trucks,

18,000 pounds and over, still in position of having paid

the fuel tax while out-of-state trucks have not; and,

therefore, creates a discriminatory situation since Ver-

mont registered trucks are not members of the Plaintiffs’

class.

2. A stipulation does not agree that any fees or pen-

alties shall be repaid, but merely sets forth a method-

ology by which they could be repaid, if so ordered by the

Court, and if funds were available.

35a

3. The ruling that the fuel license fee is unconstitu-

tional with regard to the Plaintiffs’ class, does not per

se carry with it an automatic refund of fees and penal-

ties collected. It is necessary to decide the issues of

whether the Plaintiffs’ class had derived a benefit from

this fee and whether a breaking of a law, whether con-

stitutional or not, should be condoned without paying a

penalty.

For all the foregoing reasons, the Defendants respect-

fully object to the Plaintiffs’ Motion to Alter and pray

that the Court will deny the Motion or in the alternative,

conduct a hearing to determine what, if any, limitations

should be put thereon.

[Signatures omitted]

36a

APPENDIX H

IN THE SUPREME COURT OF THE STATE

OF VERMONT

AMERICAN TRUCKING ASSOCIATIONS, INC.; and INTERNA-

TIONAL TRANSPORT, INC., and G.H. HARNUM, INC.,

Individually and on behalf of all others similarly

situated

vs.

WILLIAM CONWAY, VERMONT COMMISSIONER OF MOTOR

VEHICLES, PAUL PHILBROOK, VERMONT COMMISSIONER

OF PurR''c SAPETY, RICHARD SNELLING, GOVERNOR OF

THE STATE OF VERMONT and TOM EVSLIN, SECRETARY

OF THE VERMONT AGENCY OF TRANSPORTATION, Each

Individually and in their official capacities

Supreme Court Docket no. 82-021

Appeal from the

WASHINGTON SUPERIOR COURT

Docket no. S-217-81 Wne

BRIEF [FOR APPELLANTS]

37a

STATEMENT OF THE CASE

This is an action for declaratory judgment seeking

declaratory, injunctive and monetary relief, (Complaint,

Motion to Amend Complaint, Printed Case pp.1, 59)

which was brought pursuant to 12 V.S.A. 4711 et seq.

by American Trucking Associations, Inc., International

Transport, Inc., and G. H. Harnum, Inc., individually

and on behalf of a class defined by Order of the Wash-

ington Superior Court dated July 22, 1981. The Plaintiff

class was defined as including “all interstate motor car-

riers primarily registered outside of the State of Ver-

mont and now or during pendency of this action subject

to payment of fees prescribed by 23 V.S.A. 415, 415a

and 417.” (Printed Case, p. 87). The Plaintiffs’ appli-

cation for temporary injunctive relief was denied by

Order of the Washington Superior Court dated June 4,

1981.

The Washington Superior Court held a hearing on

Plaintiffs’ Motion for Preliminary Injunction and on the

merits on August 6 and 7, 1981. The parties also sub-

mitted a Stipulation of Fact to the Court on August 6,

1981. (Printed Case, p. 103). It was agreed by the par-

ties at the hearing on the merits that all evidence intro-

duced at the hearings on Plaintiffs’ Motion for a Tem-

porary Restraining Order (June 3, 1981), Plaintiffs’

Motion for Class Certification (July 22, 1981), and the

hearing on the merits (August 6 and 7, 1981) should

be considered by the Court in rendering its opinion on

the merits. (Transcript, August 6, 1981; p. 51-2). Af-

ter preparation of the transcripts of all hearings, and

the filing of Memoranda of Law by the parties, Judge

Edwin H. Amidon, Jr., in the Court’s “Findings of Fact,

Conclusions of Law and Judgment Order” dated Janu-

ary 1, 1982, as amended by an “Amendment to Findings

of Fact, Conclusions of Law and Judgment Order” dated

7 January 1982, held that the statutes which were chal-

lenged in this action did not violate either the United

38a

States’ or the Vermont Constitutions, and dismissed the

Plaintiffs’ action with prejudice. It was further ordered

that Defendant recover of Plaintiffs their costs of action.

It is from this order, as amended, that the Plaintiffs

appeal.

CONCLUSION

In its Judgment Order dated January 1, 1982, the

Washington Superior Court upheld the constitutional

validity of the statutes in question and so refused to

grant Plaintiffs the relief requested in their complaint,

stating as follows:

It is hereby ordered and adjudged that Plaintiffs’

action is dismissed with prejudice and that De-

fendants recover of Plaintiffs their costs of action.

(Printed Case, pp. 253-4).

The precise relief sought by Plaintiffs-Appellants is the

reversal of the said Judgment Order, and the remand

of the herein action to the Washington Superior Court

for the purposes of granting to Appellants appropriate

relief as requested in their Complaint.

[Signatures omitted]

39a

APPENDIX I

IN THE SUPREME COURT OF THE

STATE OF VERMONT

AMERICAN TRUCKING ASSOCIATIONS, INC., and INTER-

NATIONAL TRANSPORT, INC., and G. H. HARNUM, INC.,

individually and on behalf of all others similarly

situated

Vs.

WILLIAM CONWAY, VERMONT COMMISSIONER OF MOTOR

VEHICLES, PAUL PHILBROOK, VERMONT COMMISSIONER

OF PUBLIC SAFETY, RICHARD SNELLING, GOVERNOR OF

THE STATE OF VERMONT and ToM EVSLIN, SECRETARY

OF THE VERMONT AGENCY OF TRANSPORTATION, Each

Individually and in their official Capacities

Supreme Court Docket No. 83-452

APPEAL FROM THE

WASHINGTON SUPERIOR COURT

DOCKET NO. S-217-81 Wne

BRIEF [FOR APPELLANTS]

40a

STATEMENT OF THE CASE

This is an action which is being appealed to the Ver-

mont Supreme Court for the second time. It challenges

the constitutionality of certain statutory provisions

adopted in the Act of May 13, 1981, No. 87, secs. 18-19a,

1981 Vt. Acts 329, 340-342 (codified at 23 V.S.A. §§ 415-

419 (Cum. Supp. 1982)), (hereinafter referred to as

Act No. 87). Plaintiffs are seeking declaratory, injunc-

tive and monetary relief on behalf of themselves and a

class defined by the Washington Superior Court by order

dated July 22, 1981. (First Printed Case, p. 87). The

members of the Plaintiff class include “all interstate

motor carriers primarily registered outside of the State

of Vermont and now or during pendency of this action

subject to payment of fees prescribed by 23 V.S.A. 415,

415a and 417.”

At the time of filing of the Complaint, Plaintiffs made

an immediate application for temporary injunctive relief.

The Washington Superior Court denied the Plaintiff’s

Motion for a Temporary Restraining Order on June 4,

1981, ruling that a methodology existed by statute —_

payment of refunds of fees paid in under the statutes

attacked, and that therefore any harm to the Plaintiffs

was not irreparable in nature. It should be noted that

the monetary relief requested by the Plaintiffs is a re-

fund to all Plaintiffs, and members of the Plaintiff class,

of fees paid in under 23 V.S.A. 415, 415a and 417 for

the period during which Act No. 87 was in force, as well

as a refund of all penalties paid by Plaintiffs under

23 V.S.A. 421 for a like time period.

1 Given the extensive record in this case, Appellants have not

repeated the reproduction of items contained in the Printed Case

of the first appeal in this matter (Supreme Court Docket No. 82-

021). Items from the Printed Case in that appeal will be referred

to as “First Printed Case,” and items from the Printed Case in the

herein appeal will be designated “Second Printed Case.” There also

‘are some additional documents to be filed simultaneously with this

Brief, which will be designated “Supplemental Printed Case.”

ee eS ee Ce re ed

2 aE AR ae te eR es Ne ta re Yee he anlaly S .

EAI KOE LON IO AA Se

4la

The hearing on the merits was combined with a hear-

ing on Plaintiffs Motion for Preliminary Injunction on

August 6 and 7, 1981. Certain facts were submitted to

the Trial Court by Stipulation. (First Printed Case, p.

103). It was also agreed by the parties that all evidence

introduced at earlier hearings in the matter, i.e. June 3,

1981 hearing on Plaintiff’s Motion for a Temporary Re-

straining Order, and July 22, 1981 hearing on Class Cer-

tification, would be weighed in the Court’s decision on the

merits. The purpose of that agreement was to prevent

the necessity of reintroducing evidence already in the

record. (Transcript, August 6, 1981; pp. 51-52).

After submission of legal memoranda and Requests to

Find by the parties, the Washington Superior Court, the

Honorable Edwin H. Amidon, Jr., presiding, issued its

“Findings of Fact, Conclusions of Law and Judgment

Order” dated January 1, 1982 and an amendment to

same dated January 7, 1982. (First Printed Case, Pages

243-254, 255). The Trial Court found for the Defend-

ants, upheld the statutes in question, ordered the matter

dismissed with prejudice, and ordered that Defendants

recover of Plaintiffs their costs of action.

Plaintiffs appealed to the Vermont Supreme Court

from the said Order by Notice of Appeal dated Janu-

ary 8, 1982 (First Printed Case, p. 256). In American

Trucking Associations, Inc. v. Conway, 142 Vt. 17, 451

A.2d 42 (September 7, 1982), the Supreme Court vacated

the judgment of the Washington Superior Court, and

remanded the case for further factual findings.

The remanded proceeding was specially reassigned to

Acting Superior Judge Edwin H. Amidon, Jr. on October

1, 1982. Second Printed Case, p. 1). The parties sub-

mitted additional Requests to Find on November 15, 1982

(Second Printed Case, pp. 2-11, 12-36) and on August 5,

1983, the Washington Superior Court issued its “Amended

Findings of Fact.” (Second Printed Case, pp. 55-60).

42a

Since it was unclear at the time of issuance of the

Amended Findings whether they were intended to serve

as a confirmation of the Original Judgment Order in

the case, or indeed as a new Judgment Order, Plaintiffs

filed a notice of Appeal dated August 18, 1983, and

simultaneously requested judgment in their favor in the

Superior Court by Motion of the same date. (Second

Printed Case, pp. 61, 71-72).

On November 16, 1983, Acting Superior Judge Amidon

issued a Judgment Order dismissing Plaintiffs’ action

with prejudice. It was also ordered that Defendants

recover of Plaintiffs their costs of action. In order to

fully protect their rights of appeal, Plaintiffs filed an

additional Notice of Appeal dated November 21, 1983

(Supplemental Printed Case, pp. 1,2). The parties have

stipulated that both Notices of Appeal be consolidated

in one proceeding, and to assure a speedy consideration

of this case by the Supreme Court, have agreed that the

relevant date of commencement of the appeal be August

18, 1983, the date of the first Notice of Appeal. This

brief is being filed in accordance with that stipulation.

(Supplemental Printed Case, p. 3)

Plaintiffs are seeking a reversal of the Washington

Superior Court Judgment Order of November 16, 1983,

and entry of judgment on the merits in their favor.

* * a

Conclusion

In its Judgment order dated November 16, 1983, the

Washington Superior Court upheld the constitutional

validity of the statutes in question and therefore re-

fused to grant Plaintiffs the relief requested in their

Complaint, stating as follows:

“. . . it is hereby Ordered and Adjudged that

Plaintiffs’ action is Dismissed With Prejudice and

er gee RNa asia anita ER eee

43a

that Defendants recover of Plaintiffs’ their costs of

action.”

The precise relief sought by the Plaintiff-Appellants is a

declaration that the statutes in question are unconsti-

tutional, the reversal of the above Judgment Order, and

the remand of the herein action to the Washington Su-

perior Court for the purposes of granting to Appellants

appropriate monetary and other relief as requested in

their Complaint.

[Signatures omitted]

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