Petition for Writ of Certiorari — General Motors Corp. v. City of Linden

Supreme Court brief1996

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Text

ro FILED ee

951930 MAY 29 1%

No. 95- EOS 5 iif ULiRK

In the Supreme Court of the Anited States

OCTOBER TERM, 1995

GENERAL f:. XTORS CORPORATION,

Petitioner,

Vv.

CITY OF LINDEN, THE ASSESSOR OF LINDEN, AND

RICHARD CHAIKEN, AGENT, SERVANT OR

EMPLOYEE OF LINDEN,

Respondents.

On Petition for a Writ of Certiorari to the

Supreme Court of New Jersey

PETITION FOR A WRIT OF CERTIORARI

HOWARD FRIEDLAENDER KENNETH S. GELLER*

General Motors Corporation CHARLES A. ROTHFELD

Mail Code 482-114-262 JOHN J. SULLIVAN

3044 West Grand Blvd. Mayer, Brown & Platt

Detroit, MI 48202 2000 Pennsylvania Ave., N.W.

(313) 556-1553 Washington, D.C. 20006

(202) 463-2000

JOHN E. GARIPPA

PHILIP J. GIANNUARIO

Garippa & Davenport, P.C.

66 Park Street

Montclair, NJ 07042

(201) 744-1688

* Counsel of Record

lated

en. ie

woes

QUESTION PRESENTED

Whether the Supreme Court of New Jersey correctly held

that a taxpayer is foreclosed from bi‘nging an action for

damages under 42 U.S.C. § 1983 to tullenge the constitu-

tionality of a state tax assessment because « state tax refund

action is available, where the state refiwid action (a) may not

apply to remedy the constitutional violation, (b) imposes an

extraordi: arily high burden of proof o1 ihe taxpayer, and (c)

cannot offer relief against individual state officials whd are

responsible for the deprivation of constitutional rights.

(I)

* ORE 6

‘3

RULE 29.6 STATEMENT

Pursuant to Supreme Court Rule 29.6, petitioner General

Motors Corporation states that it has no parent companies.

General Motors has several non-wholly owned subsidiaries,

which are set forth in the Appendix, infra, 57a-63a.

aed

ili

TABLE OF CONTENTS

Page

QUESTION PRESENTED .........----+:++:+:: (I)

RULE 29.6 STATEMENT .......--- ++ sees: il

TABLE OF AUTHORITIES ........-----++++:. iv

SU EEO Ce eee were re eerees ]

De ab web vee ceo e cece o ees l

STATUTORY PROVISION INVOLVED ......... l

EE ae ee ee ee l

REASONS FOR GRANTING THE PETITION ..... 9

A. The Court Below Endorsed A Regime That

Does Not Provide Adequate Remedies For The

Deprivation Of Federal Constitutional Rights . 10

B. The Issue Presented Here Is An Important And

Recurring One That Warrants Review ...... 21

CEC sew we eeuv bee eererceceeres 24

iii iia,

TABLE OF AUTHORITIES

Pages

Cases

423 South Salinas Street, Inc. v. City of

Syracuse, 68 N.Y.2d 474,

503 N.E.2d 63 (1986), cert.

ee 5

Addington v. Texas, 441 U.S. 418 (1979) ......... 15

Aetna Life Ins. Co. v. Newark, 10 N.J.

a Fw FF eae ree 5, 13

Alid, Inc. v. Township of North Bergen,

89 N.J. 388, 446 e }. 2). | ee 3, 20

Allegheny Pittsburgh Coal Co. v. County |

Comm’n of Webster County, 488

Ore ek a a as ie oa siae ce 5

Allison v. Board of County Commissioners, |

teig © fp. eee ee rr 22

Arkansas Writers’ Project v. Ragland, Inc. .,

738 S.W.2d 402 (Ark. 1987), aff'd,

eee eee. 22, 23 |

Backus v. Chilivis, 224 $.E.2d 370 |

gk gaia Spc ag A a 22

Beverly Bank v. Board of Review, 453

Wk36 91 OE Aue. OO... .... ss. se 22

Blackledge v. Perry, 417 U.S. 21 (1974) ......... 5

Bloomingdales by Mail Ltd. v. Huddleston, |

848 S.W.2d 52 (Tenn. 1992),

cert. denied, 113 S.Ct. 3002 (1993) ......... 22

Boise Artesian Water Co. v. Boise City,

BAe SPs BO EE RS 15

TABLE OF AUTHORITIES — Continued

Pages

Brower v. Wells, 690 P.2d 1144 (Wash.

SOE 6s oO DE Ce DRAG Ee OSes Ow 22

Burrell v. Mississippi State Tax Comm’n,

$36 So.2d S46 Clies. 1965) 2. we ce cee 22

California v. Grace Brethren Church, 457

Th See 8 be ere eee ese 12, 16

Carey v. Piphus, 435 U.S. 247 (1978) .........- 15

Carlson v. Green, 446 U.S. 14 (1980) .......... 17

Cook v. Tax Appeals Tribunal,

635 N.Y.S.2d 355 (App. Div. 1995) ......... 21

Deakins v. Monaghan, 484 U.S. 193 (1988) ....... 20

Dean v. State, 826 P.2d 1372.(Kan. 1992) ........ 21

Department of Treasury v. Campbell, 411

N.W.2d 722 (Mich. Ct. App. 1987) ......... 22

Dows v. Chicago, 78 U.S. (11 Wall.) 108

CR a guia eb ew ee 4 ewe 10, 16, 18

Exxon Corp. v. Township of East

Brunswick, 192 N.J. Super.

329, 470 A.2d 5 (App. Div. 1983),

certif. denied, 96 N.J. 312 (1984) ........... 3

Fair Assessment in Real Estate Ass’n v.

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

Felder v. Casey, 487 U.S. 131 (1988) ........ 10, 19

General Motors Corp. v. City of Linden,

No. A-583-91 (N.J. Super.

Ct. App. Div. July 7, 1993),

certif. denied, 134 N.J. 561 (1993) .......... 2

TABLE OF AUTHORITIES — Continued

Great Lakes Dredge & Dock Co. v. Huffman,

Bae Ws A 6 ha CEN eee) ee 10, 12

Grosjean v. American Press Co., 297 U.S.

Bee CER 6 iia 0s OS CPT S ss 4S Se 23

Harlan Sprague Dawley, Inc. v. Indiana

as of State Revenue, 583

N.E.

eee GB Gs BPE R tcc taecese 22

Hillsborough v. Cromwell, 326 U.S. 520

CSUR sic 6:h CE eRe ES 12, 14

Hogan v. Musolf, 471 N.W.2d 216

CHRIG SOON. ack x ae eas be ita asd 02d OH 22

Holden Arboretum v. City of Kirtland, 483

N.E.2d 167 (Ohio Ct. App. 1984) .......... 22

Howlett v. Rose, 496 U.S. 356 (1990) ........... 10

In re Cook County Collector, 229

Ill. App.3d 138, 593 N.E.2d 878

Ca. Se Rk SL ee Fs SSP aes 21

Jade Aircraft Sales, Inc. v. Crystal,

eae GORE. Fee CE Noes SCS whites 21

Johnston v. Gaston County, 323 S.E.2d 381

GC... A: Ce Soke eee EEN Seles 22

Kurtz v. Burlington County Board of

Taxation, 4 N.J. Tax 343

CO GA. See i oe ao cee eka oe oe 5

Linderkamp v. Bismarck School Dist.

No. 1, 397 N.W.2d 76 (N.D. 1986) ......... 22

Martinez v. California, 444 U.S. 277

CHI nc ce heme eee ek eee 10, 17

Vii

TABLE OF AUTHORITIES — Continued

Marx v. Truck Renting & Leasing Ass'n,

520 So.2d 1333 (Miss. 1988) ........---:

McManus v. Iowa, 499 N.W.2d 726 (lowa

1993), cert. denied, No.

93-562 (Nov. 29, 1993) .....------+ee:

Memphis Community School Dist. v.

Stachura, 477 U.S. 299 (1986) ........--

Minneapolis Star & Tribune Co. v.

Minnesota Commissioner of Revenue,

UE a: Fo, SP i a ee

Murdock v. Pennsylvania, 319 U.S. 105

ee a er ee ee

National Private Truck Council, Inc. v.

Oklahoma Tax Comm’n, 115 S.

oe 8. ee

Neiman Marcus Group, Inc. v. Meehan, 1991

Conn. Super. LEXIS 2135

(Conn. Super. Ct. Sept. 19, 1991) ........

Newport v. Fact Concerts, Inc., 453 U.S.

Bee CEE. so 6S ow ee eee ee ee a ees

North Dakota v. Quill Corp. , 500 N.W.2d

196 (N.D.), cert. denied,

i> Rs. By. bs Fa ee a

Nutbrown v. Munn, 811 P.2d 131 (Or. 1991) ....

Pantasote v. City of Passaic, 100 N.J.

408, 495 A.2d 1308 (1985) ..........----

Perez v. Ledesma, 401 U.S. 82 (1971) ........

Pages

Viii

TABLE OF AUTHORITIES — Continued

Pages

Pleasantville City v. California

Apartment Assocs., 4 N.J. Tax

I ee 5 ds oe dw © WO 8 16

Porter v. Treasurer & Collector, 431

Ee Se CE 6b wk kb wee oe aes 22

Raschke v. Blaucher, 491 N.E.2d 1171

Sh I MI a 0d 8d hina dd 's 050-0 kWh aie 22

Rosewell v. LaSalle National Bank, 450

ie Re oe th ee 12, 16, 23

Sands v. Township of East Windsor, 9 N.J.

Bee Se Se es BP we ee eee eae 3, 13 i

Santosky v. Kramer, 455 U.S. 745 (1982) ........ 15

Satellink of Chicago v. City of Chicago,

523 N.E.2d 13 (Ill. App.

ig ara ai anche ek eo ee org ig wane aN 22

Smith v. Wade, 461 U.S. 30 (1983) ............ 17

Spencer v. South Carolina Tax Comm’n, 316

S.E.2d 386 (S.C. 1984), aff'd

by an equally divided Court,

ae ee a a 0 ow os ce ee 22

State Railroad Tax Cases, 92 U.S. 575

US So ait a ene dk a ate hie} a ewe 10

Stone v. City of Chicago, 738 F.2d 896

2, 4° 36. FP ew ea re re 15

Stufflebaum v. Panethiere, 691 S.W.2d 271

(Mo. BR 20 Pe hd ee ck a ew ow ae 22

Texas Monthly, Inc. v. Bullock, 489

See EE a ee de eo 23

TABLE OF AUTHORITIES — Continued

Pages

Township of West Milford v. Van Decker,

120 N.J. 354, 576 A.2d 881 (1990) ......-. 4, 13

Transcontinental Gas Pipe Line Corp.

v. Bernards Township, 111 N.J. 507,

545 A.2d 746 (1988) ....-.-- eee reer eres 5

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

1 SRST ane wr ee eae a ae ee ee ae 15

Uretsky v. Baschen, 361 N.E.2d 875 (ill.

pe |) 6) Pre ee a ea ee 22

Weisbrod v. Township of Springfield,

eee eS es. ee 4

Zarda Vv. State, 826 P.2d 1365 (Kan. 1992) ..... 21-22

Zizka v. Water Pollution Control Auth..,

490 A.2d 509 (Conn. 1985) .....---- +++: 22

Statutes

OES Oe) 6 pce hicle cress eee |

TE OU cn cr eee sere these nren errs 11

Pig Pom 2 | area ar ire ie a eee ee 18

Oe Oe de Roe Oo ee eee ke passim

Conn. Gen. Stat. Ann. § 7-250 ......-----++:> 21

Va. Cote Ame. § 58.1-1621 .. 1. ee eee eee 2i

Va. Code Ann. § 58.1-1822 .......-----+++:: 21

Va. Code Ann. § 58.1-1825 .....-.------+-+:: 21

Va. Code Ann. § 58.1-1826 .......-----++++-: 21

TABLE OF AUTHORITIES — Continued

Pages

Miscellaneous

Rothfeld, Section 1983: The Civil Rights

Alternative to Constitutional

Challenges, State Tax Notes,

ye a BE Ber er ere a amen wi 21

PETITION FOR A WRIT OF CERTIORARI

OPINIONS BELOW

The opinion of the Supreme Court of New Jersey (App.,

infra, 1a-13a) is reported at 143 N.J. 336, 671 A.2d 560.

The opinion of the Appellate Division of the Superior Court

of New Jersey (App., infra, 14a-30a) is reported at 279 N.J.

Super. 449, 653 A.2d 568. The opinion of the Law Division

of the Superior Court of New Jers y (App., infra, 31a-56a)

is unreported.

JURISDICTION

The judgment of the Supreme Court of New Jersey was

entered on February 29, 1996. The jurisdiction of this Court

is invoked under 28 U.S.C. § 1257.

STATUTORY PROVISION INVOLVED

42 U.S.C. § 1983 provides in relevant part:

Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State or Territory or

the District of Columbia, subjec's, or causes to be

subjected, any citizen of the United States or other

person within the jurisdiction thereof to the deprivation

of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party injured

in an action at law, suit in equity, or other proper

proceeding for redress.

STATEMENT

1. Petitioner General Motors Corporation owns and

operates an automobile assembly plant in the City of Linden,

New Jersey. In each of the years 1983, 1984, and 1985, GM

challenged the property tax assessment on this facility through

the state judicial process.’ Although the assessments were

upheld (indeed increased) by the New Jersey Tax Court,

GM’s position was vindicated on appeal when the Appellate

Division of the New Jersey Superior Court reversed the Tax

Court decision and remanded for reconsideration. See

General Motors Corp. v. City of Linden, No. A-583-91 (N.J.

Super. Ct. App. Div. Juty 7, 1993), certif. denied, 134 N.J.

561 (1993).

The City increased GM’s assessment in 1986 by means

of an added assessment — this time raising the assessed value

of the property by $17 million. App., infra, 3a. The Mayor

of Linden subsequently acknowledged that the added

assessment had been imposed to retaliate against GM for its

protests against the prior tax increases; he stated (with

astonishing candor) that “‘[t]he additional increased

assessment was placed on General Motors’ plant because

[GM] filed the tax appeal.’” PA 34A.? The Mayor’s

admission was consistent with the highly irregular

methodology used to arrive at the $17 million increase.’ GM

" Under New Jersey law, a taxpayer may challenge a property

tax assessment — after paying the disputed tax — by appealing to

the county board of taxation. N.J.S.A. 54:4-63.11. If not satisfied

with the decision of the county tax board, the taxpayer may appeal,

in turn, to the New Jersey Tax Court, the Appellate Division of the

Superior Court, and the New Jersey Supreme Court. N.J.S.A.

2B:13-3(b), 2B:3-4. “If the taxpayer succeeds at any level, the

taxing district must refund the excess taxes plus five-percent

interest.” App., infra, 12a.

? Citations in this form refer to the petitioner’s Appendix in the

Appellate Division. Citations to “PSA” refer to petitioner’s

Supplemental Appendix in the Appellate Division.

> In testimony before the Union County Board of Taxation, a

consultant hired by the City stated that he had guessed that GM’s

facility was worth $55 per square foot and that he multiplied that

accordingly filed a state-law challenge to the 1986 added

assessment as excessive. That challenge is now pending in

New Jersey Tax Court.

2. The New Jersey Tax Court is “an inferior court of

limited jurisdiction” (N.J.S.A. 2A:3A-3), which is restricted

in the claims it may entertain and in the relief it may provide.

The court’s “primary function” is to “review decisions of the

various county boards of taxation.” Exxon Corp. v. Township

of East Brunswick, 192 N.J. Super. 329, 335, 470 A.2d 5, 9

(App. Div. 1983), certif. denied, 96 N.J. 312 (1984). In

cases in which a tax appeal is joined with another claim over

which the Tax Court does not have jurisdiction, New Jersey

law authorizes the Tax Court judge hearing the case to be

assigned temporarily to the Law Division of the Superior

Court, which is the state trial court of general jurisdiction, for

purposes of deciding both claims. Alid, Inc. v. Township of

North Bergen, 89 N.J. 388, 446 A.2d 126 (1981).

When a property assessment is challenged in the Tax

Court, the issue before the court is not whether the assessor

used an illegal or unconstitutional method of assessment,

instead, the court may determine only whether the valuation

selected by the assessor fairly reflects the value of the

taxpayer’s property. Under this regime — as the City of

Linden has acknowledged (see pages 13-14, infra) — the

number by the facility’s total square footage. In choosing this

figure the consultant conducted no cost comparison, issued no

appraisal report, and offered no justification of any kind for his

analysis. PSA 659-663. The city tax assessor, who stated that he

simply accepted the valuation number supplied by the consultant

(PSA 683), acknowledged that the only written record supporting

the $17 million figure was “some scribbling on napkins” done

while the assessor and the consultant drank coffee one afternoon.

PSA 682. In contrast, GM submitted reports from three expert real

estate appraisers demonstrating the unprofessional and irregular

nature of the 1986 added assessment. PSA 939-1020.

constitutionality of the assessment method, and the assessor’s

motivation in making the assessment, are irrelevant. The sole

relief available to an aggrieved taxpayer in Tax Court is a

revision of the taxable value of his property and a refund of

any excess taxes paid if the assessment exceeds the property’s

taxable value. See N.J.S.A. 54:51A-6; Sands v. Township of

East Windsor, 9 N.J. Tax 652, 655 (Law Div. 1988).* Even

in cases where a property tax assessment violates the federal

Constitution, the remedy for claims brought in Tax Court “is

to strike the Township’s assessment * * * and restore the

[prior] assessed valuation.” Township of West Milford. Van

Decker, 120 N.J. 354, 365, 576 A.2d 881, 887 (1990).°

There are additional limits on remedies available in the

Tax Court. Under New Jersey law, no relief is provided to

a complaining taxpayer if the assessment falls within a zone

of reasonableness; an assessment will not be disturbed so long

as it does not exceed the taxable value of the property by

more than 15%. N.J.S.A. 54:3-22, 54:51A-6, 54:1-35a. As

a consequence, even if the assessor uses a plainly

unconstitutional method of valuation — for example, if he

chooses to assess black property owners at the upper end of

the zone of reasonableness, while assessing white owners at

* The jurisdiction of the Tax Court was expanded in 1992 to

permit the award of “actual direct economic damages suffered by

the taxpayer” in cases where “an employee of the Division of

Taxation knowingly disregards any tax law, any provision of this

subtitle, or any regulation promulgated thereunder, in the collection

of any tax.” N.J.S.A. 54:51A-23. This statute has no application

here, because it reaches only “employee actions taken on or after”

July 1, 1993. NJ. P.L. 1992, c. 175, § 42(e). In addition, the

statute does not authorize the Tax Court to award damages for

violations of federal law.

* The Tax Court, however, may pass upon the constitutionality

of a tax statute and provide relief if the tax is held invalid. See

Weisbrod v. Township of Springfield, 1 N.J. Tax 583, 590 (1980).

the lower end — the disfavored taxpayers will not be entitled

to relief if the assessments do not in fact exceed the taxable

value of their properties by more than 15%.

The New Jersey Tax Court also imposes an unusually

high burden of proof on taxpayers: assessments are presumed

correct, and “[t]he strength of the presumption is exemplified

by the nature of the evidence that is required to overcome it.

That evidence must be ‘definite, positive and certain in

quality and quantity to overcome the presumption.’”

Pantasote v. City of Passaic, 100 N.J. 408, 413, 495 A.2d

1308, 1310 (1985), quoting Aema Life Ins. Co. v. Newark,

10 N.J. 99, 105, 89 A.2d 385, 387 (1952). This presumption

is applied even if the taxing authority “utilized a flawed

valuation methodology, so long as the quantum of the

assessment is not so far removed from the true value of the

property or the method of assessment itself is so patently

defective as to justify removal of the presumption.”

Transcontinental Gas Pipe Line Corp. v. Bernards Township,

111 N.J. 507, 517, 545 A.2d 746, 751 (1988). And because

the taxing jurisdiction is the only permissible defendant in

Tax Court, assessors, their consultants, and other municipal

officials cannot be held personally liable for constitutional

violations. See N.J.S.A. 54:3-21; Kurtz v. Burlington County

Board of Taxation, 4 N.J. Tax 343, 348 (1982).

3. GM maintained that the 1986 increase in its property

assessment — which singled it out for a retaliatory tax

increase — violated its rights under the Due Process and

Equal Protection Clauses of the U.S. Constitution.° Because

° Respondents have never denied that GM’s factual allegations,

if proved, would make out a violation of the Due Process and

Equal Protection Clauses. See generally Allegheny Pittsburgh Coal

Co. v. County Comm’n of Webster County, 488 U.S. 336 (1989);

Blackledge v. Perry, 417 U.S. 21 (1974); 423 South Salinas Street,

Inc. v. City of Syracuse, 68 N.Y .2d 474, 503 N.E.2d 63 (1986),

cert. denied, 481 U.S. 1008 (1987).

the limitations on the Tax Court’s jurisdiction precluded the

complete vindication of those federal rights in Tax Court

proceedings, GM initiated this separate action against the City

of Linden, the City’s tax assessor, and the consultant who

advised the assessor regarding the revised assessment. GM

brought the suit under 42 U.S.C. § 1983 in the Law Division

of New Jersey Superior Court. To avoid duplicative

proceedings, GM suggested that this Section 1983 suit be

consolidated with the pending Tax Court challenge. See

App., infra, 23a-24a.

The Law Division dismissed GM’s constitutional claims,

holding that it had no jurisdiction to entertain an action

challenging a state tax under Section 1983. App., infra, 33a-

42a. The court reasoned that an action under Section 1983 is

precluded if New Jersey provides a state-law remedy for

constitutional violations involving state taxation that is

“adequate, speedy and efficient.” Jd. at 38a. Noting that

GM_’s suit in Tax Court sought “a lowering of its assessment

and a return of monies it claims are due to it for

overassessment” (id. at 38a), the Law Division concluded that

“constitutional issues could and should be addressed in the tax

appeal process.” Jd. at 41a. The court therefore held that

GM was limited to its Tax Court remedies.’

On appeal, the Appellate Division of the Superior Court

reversed. App., infra, 14a-30a. Noting the limited

jurisdiction of the Tax Court (see id. at 19a), the Appellate

Division observed that

’ Alternatively, the court went on to hold that the City’s tax

assessor and his consultant are entitled to absolute immunity under

Section 1983 and that the City of Linden could not be liable for any

Section 1983 violation by the individual defendants. App., infra,

42a-55a. These holdings were reversed by the Appellate Division

and were not addressed by the New Jersey Supreme Court. They

are not at issue here.

the Tax Court lacked the authority to award the full

range of remedies authorized by §1983. Although the

Tax Court could correct an assessment made in violation

of federal constitutional rights, * * * its jurisdiction

would not extend to awarding compensatory and punitive

damages against a tax assessor or other public official

who had violated a taxpayer’s constitutional rights or

granting equitable relief broader in scope than the simple

correction of an erroneous tax assessment.

Id. at 19a-20a. The court therefore held that a Tax Court

appeal was not an adequate substitute for an action under

Section 1983. The court added that “if we were to hold that

a § 1983 action is not maintainable in a state court solely

abit an alleged deprivation of constitutional rights relates

to a tax assessment, it would mean that a tax assessor could

engage in a practice of racially discriminatory tax assessments

without being subject to personal liability.” Jd. at 22a. The

court concluded by directing that the Section 1983 action in

the Law Division be assigned to the Tax Court judge hearing

the related tax assessment appeal and that the judge be

assigned to the Law Division of the Superior Court for

purposes of deciding the consolidated cases. Moreover, the

court stated that the judge could stay proceedings in the

Section 1983 action until the tax appeal had been completed.

Id. at 23a-24a.

The New Jersey Supreme Court then granted review and

reversed in turn (App., infra, l1a-13a), holding that the case

was controlled by this Court’s decision in National Private

Truck Council, Inc. v. Oklahoma Tax Comm’n, 115 S. Ct.

2351 (1995), which was decided after the Appellate Division

had issued its opinion. Although the New Jersey Supreme

Court found the decision in National Private Truck Council

“somewhat enigmatic” (App., infra, 6a), it concluded

that the [Supreme] Court has determined that Congress

did not intend claims involving state tax administration to

be actionable under section 1983 in state or federal court,

whether those claims arise from alleged violations of the

interstate commerce or due process clauses. The United

States Supreme Court has recognized an exception under

section 1983 for challenges to a state tax system when a

State provides a plain, adequate, and complete remedy.

Id. at 6a.

The New Jersey Supreme Court then turned to the

question whether proceedings in the New Jersey Tax Court

offer an adequate alternative to Section 1983. It began by

observing that “courts consistently have analyzed the

adequacy of the remedy in terms of the process provided by

the state.” App., infra, 10a. To satisfy the adequacy

requirement, the court continued, “[a] state remedy need not

be identical to section 1983 remedies. * * * It need not be

the best remedy available, * * * the most convenient remedy,

* * * or equal to or comparable with federal remedies

*** ” Td. at 10a-1 la.

Viewed against this background, the New Jersey Supreme

Court held that New Jersey’s state remedy is adequate. The

court below found it crucial that either the county board of

taxation or the Tax Court may correct an excessive

assessment, and that the taxpayer may obtain a “refund of the

excess taxes” if the assessment is found improper. App.,

infra, 12a. Thus, the court measured the adequacy of the

remedy solely be whether a refund was available. In reaching

this conclusion, the court “recognize[d] that GM alleges that

defendants intentionally discriminated against it in violation

of GM’s substantive due process rights,” but nevertheless

held that “GM’s pending appeal in the Tax Court provides an

adequate remedy for any alleged violation of its federal

rights. In that proceeding, GM may also seek to introduce

evidence to overcome the presumptive validity of the

assessment.” Jd. at 12a.

REASONS FOR GRANTING THE PETITION

This case presents a recurring issue of great practical

importance: in what circumstances may a taxpayer invoke 42

U.S.C. § 1983 to bring a challenge in state court to the

constitutionality of a state tax? We submit that the New

Jersey Supreme Court’s answer to that question rests on a

fundamental misunderstanding of this Court’s recent decision

in National Private Truck Council, Inc. v. Oklahoma Tax

Comm’n, 115 S. Ct. 2351 (1995). The Court there held that

Section 1983 is unavailable to a state taxpayer only when the

state provides an adequate alternative remedy. In this case,

however, the court below held that the preclusive rule of

National Private Truck Council applied — and therefore found

that a taxpayer could not proceed under Section 1983 —

where the allegedly adequate state remedy offers no relief at

all for certain constitutional violations, imposes an

extraordinary burden of proof on the taxpayer, and cannot be

pursued against the individual state officials who are

responsible for violating the federal Constitution.

As a consequence, under the New Jersey Supreme

Court’s holding, a state taxing official who, for example,

engages in intentional racial discrimination cannot be held

liable either under state law or under Section 1983; thus, a

tax assessor who imposes added assessments on blacks to

force them out of a community is entirely shielded from civil

liability. Similarly, under the holding below a mayor may

order increased assessments for anyone who opposes his

reelection without fear of personal liability. Or — as in this

case — the mayor or city assessor may decide that anyone

who invokes his right to challenge a property tax assessment

will have that assessment increased as punishment. The only

remedy in New Jersey for these gross and intentional

constitutional violations is a tax refund, and even that remedy

may be unavailable if the final assessment (however

unconstitutionally selected) falls within some acceptable zone

of reasonableness.

Because the New Jersey Supreme Court’s ruling guts the

principal remedy that Congress created to deter

unconstitutional state action, because the decision below is

manifestly inconsistent with National Private Truck Council

and the decisions upon which that case relied, and because it

is enormously important that the Court clarify the rules

governing constitutional challenges to state taxation, further

review is warranted.

A. The Court Below Endorsed A Regime That Does

Not Provide Adequate Remedies For The

Deprivation Of Federal Constitutional Rights

1. This Court has held that a state court cannot refuse

to entertain “one discrete category of § 1983 claims, when

the court entertains similar state-law actions against state

defendants.” Howlett v. Rose, 496 U.S. 356, 375 (1990).°

At the same time, however, the Court has “long recognized

that principles of federalism and comity generally counsel that

courts should adopt a hands-off approach with respect to state

tax administration.” National Private Truck Council, 115 S.

Ct. at 2354.

These comity principles initially were articulated in cases

where taxpayers sought injunctive or declaratory relief against

the application of a state tax, and were “based upon the

traditional doctrine that courts of equity will stay their hand

when remedies at law are plain, adequate, and complete.”

Fair Assessment in Real Estate Ass’n, Inc. v. McNary, 454

U.S. 100, 108 (1981). See id. at 127 (Brennan, J.,

concurring in the judgment).’ This rule was codified in the

* See, e.g., Felder v. Casey, 487 U.S. 131, 143, 151 (1988);

Martinez v. California, 444 U.S. 277, 284 (1980).

* See, e.g., Great Lakes Dredge & Dock Co. v. Huffman, 319

U.S. 293, 298 (1943); State Railroad Tax Cases, 92 U.S. 575, 614

(1876); Dows v. Chicago, 78 U.S. (11 Wall.) 108, 110 (1871).

Tax Injunction Act, 28 U.S.C. § 1341, which provides that

federal district courts may not enjoin the collection of a state

tax “where a plain, speedy and efficient remedy may be had

in the courts of such State.” More recently, the Court held

in Fair Assessment that related principles of comity bar

federal courts “from granting damages relief in such cases”

(454 U.S. at 107) — although the Court again emphasized

that this rule of preclusion applies only if the state remedies

are “plain, adequate, and complete.” /d. at 116.

In National Private Truck Council, the Court held that

similar principles may preclude recourse to Section 1983 in

state court, explaining that “the background presumption that

federal law generally will not interfere with administration of

state taxes leads us to conclude that Congress did not

authorize injunctive or declaratory relief under § 1983 in state

tax cases when there is an adequate remedy at law.” 115 S.

Ct. at 2355. The Court found this interpretation of Section

1983 “supported not only by the background principle of

federal non-interference discussed in Fair Assessment, but

also by the principles of equitable restraint discussed at length

in that case.” Jd. at 2356. In reaching this conclusion,

however, the Court once more emphasized that the State must

provide a meaningful alternative remedy to Section 1983; the

Court declared no fewer than /3 times in its brief opinion that

use of Section 1983 is precluded only “when an adequate

remedy is available under state law.” Ibid. (emphasis added).

See id. at 2354-2357 & n.6. The Court had no occasion to

address the nature of this adequacy requirement in National

Private Truck Council because it was undisputed that the State

“offered an adequate remedy in the form of refunds.” /d. at

2355. Refunds were the only form of relief requested by the

taxpayers for the constitutional violation in that case; they did

not seek compensatory damages, nor did they attempt to hold

state taxing officials personally liable for the deprivation of

constitutional rights.

2. The issue of the adequacy of the state remedy is

squarely presented here, and the New Jersey Supreme Court’s

resolution of that issue cannot be reconciled with the purposes

of Section 1983 or the principles that underlay National

Private Truck Council. The nature of an adequate state

remedy is illuminated by several sources, including equitable

““principies articulated even before enactment of § 1983’”

(National Private Truck Council, 115 S. Ct. at 2356, quoting

Fair Assessment, 454 U.S. at 115) and decisions interpreting

the Tax Injunction Act.'° These sources establish that in

assessing the adequacy of the state remedy, the “issue is

‘whether the State affords full protection to the federal

rights.’” Rosewell v. LaSalle National Bank, 450 U.S. 503,

513 (1981), quoting Hillsborough v. Cromwell, 326 U.S.

620, 625 (1946). At a minimum, the taxpayer in such a suit

must have the opportunity to “assert his federal rights and

secure a review of them by this Court” (Great Lakes, 319

U.S. at 301; see Rosewell, 450 U.S. at 513); for federal relief

to be unavailable, the State must “provide[ ] the taxpayer

with a ‘full hearing and judicial determination’ at which she

may raise any and all constitutional objections to the tax,”

and it must offer meaningful relief when the taxpayer’s

complaint is well taken. Rosewell, 450 U.S. at 514, 515 n.9

(citation omitted). See California v. Grace Brethren Church,

457 U.S. 393, 411 (1982).

The New Jersey regime falls far short of satisfying this

requirement. The state remedy plainly is inadequate here

‘© The Court has indicated that the “plain, speedy and efficient”

formulation of the Tax Injunction Act does not differ significantly

from the pre-Act “plain, adequate, and complete” standard that

governed actions seeking equitable relief. Fair Assessment, 454

U.S. at 116 n.8. But see id. at 129 n.15 (Brennan, J., concurring

in the judgment) (“The Tax Injunction Act sets forth a more

deferential standard by which to evaluate the adequacy of the state

remedy”).

because it is not really aimed at the correction of

constitutional violations at all. The issue before the New

Jersey Tax Court is mot whether the assessor acted

unconstitutionally in making the assessment, much less

whether he knowingly violated the Constitution; instead, the

only question in the state proceeding is whether the valuation

number selected by the assessor fairly reflects the value of the

taxpayer’s property (or, more precisely, whether it falls

somewhere within a range of reasonableness). Cf. Rosewell,

450 U.S. at 521 n.26. The nature — and the constitutional

validity — of the assessment method, and the assessor’s

motivation for selecting a particular assessed value, are

wholly irrelevant.

Thus, as the Appellate Division explained, “{a]lthough

the Tax Court could correct an assessment made in violation

of federal constitutional rights, * * * its jurisdiction would

not extend to * * * granting equitable relief broader in scope

than the simple correction of an erroneous tax assessment.”

App., infra, 19a-20a. See N.J.S.A. 54:51A-6; Township of

West Milford v. Van Decker, 120 N.J. 354, 365, 576 A.2d

881, 886-887 (1990); Sands v. Township of East Windsor, 9

N.J. Tax 652, 654-655 (Law Div. 1988) (plaintiffs withdrew

complaint filed with Tax Court when they “determined that

they were not contesting the assessed valuation of their

property”). Indeed, counsel for the City of Linden conceded

this point during argument before the Union County Board of

Taxation, stating that

[aJs I understand the law, and I think the Board will

agree, they [GM] have the burden of going forward with

evidence that is definite and responsive and certain in

quality so that they can demonstrate to you what the

correct assessment is, since they allege that the present

assessment is incorrect.

The one thing that is not in issue, as I understand the

law, is how the assessor arrived at the assessment. If the

assessor arrived at the assessment with a Ouija board, *

* * it would still be the burden of this taxpayer to come

in here and tell you that the number was too high, too

low, whatever.

PA 94A (emphasis added).

As a consequence, in many cases the New Jersey system

provides no remedy at all even for blatant and palpable

constitutional violations. Cf. Hillsborough, 326 U.S. at 624-

625 (remedy is inadequate where availability of relief is

uncertain). If an assessor unconstitutionally selects out black

homeowners for new and increased assessments, for example

— or (as here) if he unconstitutionally increases assessments

to retaliate against taxpayers who previously have challenged

his decisions — the taxpayers may have no recourse so long

as the number chosen by the assessor falls within an

acceptable zone of reasonableness."

In contrast, Section 1983 would provide meaningful relief

that would cure the constitutional violation. At a minimum,

Section 1983 would offer the taxpayer nominal damages, the

'' The New Jersey Supreme Court acknowledged that “GM

alleges that defendants intentionally discriminated against it” but

nevertheless held — despite the deficiencies in the New Jersey

refund scheme outlined above — that “GM’s pending appeal in the

Tax Court provides an adequate remedy for any alleged violation

of its federal rights.” App., infra, 12a. The court went on to state

that it “need not reach the question whether discrimination, based

on race, religion, gender, or the like, could constitute a violation

of the taxpayer’s constitutional rights. The issue is not before us.

Suffice it to state that we do not read the decisions of the United

States Supreme Court as legitimizing any form of invidious

discrimination.” Ibid. Despite these empty assurances, the court

below did not identify any aspect of the regime for challenging state

taxes that would provide special remedies for those sorts of equal

protection violations, and such a suggestion would, in any event,

find no support in the New Jersey statutes.

mechanism by which “the law recognizes the importance to

organized society that these [constitutional] rights be

scrupulously observed.” Carey v. Piphus, 435 U.S. 247, 266

(1978). See Memphis Community School Dist. v. Stachura,

477 U.S. 299, 308 n.11 (1986). Absent such a remedy in the

New Jersey tax appeals process, constitutional violations may

go entirely unredressed, and the federal rights at issue could

not be “‘preserved unimpaired.’” Fair Assessment, 454 U.S.

at 109, quoting Boise Artesian Water Co. v. Boise City, 213

U.S. 276, 282 (1909).

Moreover, while the plaintiff in a Section 1983 action

ordinarily must establish his case under a preponderance of

the evidence standard (see, e.g., Stone v. City of Chicago,

738 F.2d 896, 900 (7th Cir. 1984)), the New Jersey tax

appeals process imposes a different and much higher burden

on a taxpayer who challenges his assessment. As the court

below recognized (see App., infra, 12a), in New Jersey Tax

Court the assessment is presumed correct, and “[t]he strength

of the presumption is exemplified by the nature of the

evidence that is required to overcome it. That evidence must

be ‘definite, positive and certain in quality and quantity to

overcome the presumption.’” Pantasote Co. v. City of

Passaic, 100 N.J. 408, 413, 495 A.2d 1308, 1310 (1985),

quoting Aetna Life Ins. Co. v. Newark, 10 N.J. 99, 105, 89

A.2d 385, 387 (1952). This elevated standard “allocate[s] the

risk of error” to the taxpayer (Addington v. Texas, 441 U.S.

418, 423 (1979)). Thus, while a standard like that applicable

in New Jersey Tax Court ordinarily is used to “protect

particularly important individual interests” (id. at 424

(emphasis added)); see Santosky v. Kramer, 455 U.S. 745,

756 (1982)), in New Jersey it often will have the ironic effect

of making it impossible for taxpayers to prevail on their

meritorious constitutional claims. In this situation, recourse

to Section 1983 is essential because the “asserted federal right

might otherwise be lost.” Tully v. Griffin, Inc., 429 U.S. 68,

73 (1976).

3. The New Jersey system is defective for yet another

important reason. To be “adequate,” a state remedy must

offer more than a cure for the immediate effects of a

constitutional violation. That is clear from National Private

Truck Council itself, which indicated that even federal

injunctive relief will be available where the state’s legal

remedy does not preclude repetitive constitutional violations.

See 115 S. Ct. at 2357 n.6. That conclusion was grounded

on the historical recognition that federal injunctive remedies

may be invoked where “enforcement of the tax would lead to

a multiplicity of suits, or produce irreparable injury, or * *

* throw a cloud upon the title” of real estate. Dows, 78 U.S.

(11 Wall.) at 110. See Grace Brethren Church, 457 U.S. at

412; Rosewell, 450 U.S. at 517, 518 n.22.

This requirement means that a state remedy, if it is to

serve as an adequate substitute for Section 1983, must act to

preclude or deter repeated constitutional violations. The state

tax refund remedy is woefully deficient in this respect. As

we noted above, under the New Jersey regime the taxpayer

is entitled only to a refund of excessive taxes, payable by the

city or county. Tax assessors and their consultants cannot be

held personally liable for constitutional violations; indeed, an

assessor May not even be a party to a property tax challenge

in Tax Court. See Pleasantville City v. California Apartment

Assocs., 4.N.J. Tax 519, 523 (1982); N.J.S.A. 54:3-21 (only

municipality and taxing district may file tax appeals).

This regime plainly is inadequate and ineffective in

accomplishing one of the principal purposes of Section 1983:

deterrence. There is nothing to discourage an assessor from

engaging in one (or, for that matter, repeated) constitutional

violations. If the taxpayer challenges the violation and

prevails in Tax Court, the taxing jurisdiction will (at most)

have to refund taxes to which it was not entitled in the first

place. A taxing jurisdiction and its assessor therefore have

nothing to lose by engaging in a pattern of unconstitutional

violations — which may explain why the City of Linden

repeatedly has over-assessed petitioner.

In fact, money damages — the only remedy sought by

GM in this case —- may be effective as a deterrent only if a

cause of action is available directly against the state official

responsible for the constitutional violation. This Court has

recognized that damages “recoverable against individuals” are

“a more effective deterrent” than a remedy against the

government; “[ijt is almost axiomatic that the threat of

damages has a deterrent effect, * * * surely particularly so

when the individual official faces personal financial liability. ”

Carlson v. Green, 446 U.S. 14, 21 (1980). See Newport v.

Fact Concerts, Inc., 453 U.S. 247, 269 (1981). For just this

reason, Section 1983 allows for the imposition of damages

liability directly on individual state and local officials, subject

to immunity defenses recognized under federal law. See id.

at 269-270; Martinez, 444 U.S. at 283-284 & n.8. Section

1983 also provides for punitive damages: “([b]y allowing

juries and courts to assess punitive damages in appropriate

circumstances against the offending official, based on his

personal financial resources, the statute directly advances the

public’s interest in preventing repeated constitutional

violations.” Newport, 453 U.S. at 269. See Smith v. Wade,

461 U.S. 30, 36 n.5 (1983); Stachura, 477 U.S. at 306 n.9,

308 n.11. Against this background, the sole remedy available

in New Jersey’s Tax Court — a refund payabie by the city or

county — is not an adequate substitute for the remedies

granted by Congress in Section 1983.

This conclusion is confirmed by a consideration of the

policy underlying Section 1983 — an inquiry that is important

because National Private Truck Council is, after all, an

interpretation of that statute. “{T]he deterrence of future

abuses of power by persons acting under color of state law is

an important purpose of § 1983.” Newport, 453 U.S. at 268.

See Stachura, 477 U.S. at 307; Smith, 461 U.S. at 49. And

while the Court concluded in National Private Truck Council

that Congress did not intend the statute to run roughshod over

the mechanisms of state tax administration, there is every

reason to believe that Congress sought both to remedy and to

deter constitutional violations involving state taxation. “By

its terms [Section 1983] gave a federal cause of action to

prisoners, taxpayers, or anyone else who was able to prove

that his constitutional or federal rights had been denied by

any State.” Fair Assessment, 454 U.S. at 103-104 (emphasis

added). Indeed, 42 U.S.C. § 1981, which was enacted in

1868, just three years prior to Section 1983, expressly

provides that “[aJll persons * * * shall be subject to like

punishment, pains, penalties, faxes, licenses, and exactions of

every kind, and to no other” (emphasis added).'? It is

unlikely that Congress would have considered a state remedy

an adequate substitute for Section 1983 if it did not punish

and deter constitutional violations involving state taxation.

There is, as well, no ground to doubt that Congress

viewed the availability of compensatory relief against

individual wrongdoers as an important part of an adequate

and effective remedy — an issue that was not involved in

National Private Truck Council, where the plaintiff advanced

claims only for injunctive and declaratory relief under Section

1983. See 115 S. Ct. at 2355. In fact, the pre-Section 1983

law upon which the Court relied in National Private Truck

Council regarded the availability of an action against taxing

officers for compensatory damages to be an important part of

the adequate legal remedy that precluded federal injunctive

relief: “[i}f the tax was illegal, the plaintiff protesting against

its enforcement might have had his action, after [the tax] was

paid, against the officer or the city to reccver back the

money, or he might have prosecuted either for his damages.”

Dows, 78 U.S. (11 Wall.) at 112 (emphasis added). This

‘2 The reference to taxes in Section 1981 was added in 1870, the

year before enactment of Section 1983. See Fair Assessment, 454

U.S. at 123 n.9 (Brennan, J., concurring in the judgment).

means that, “[iJn enacting § 1983, Congress entitled those

deprived of their civil rights to recover full compensation

from the government officials responsible for those

deprivations.” Felder v. Casey, 487 U.S. 131, 153

(1988).

4. While recourse to Section 1983 is essential to the

preservation of federal rights, invocation of the statute will

not interfere at all with state tax administration. In other

settings, the Court has withheld federal equitable relief out of

fear that “‘state tax administration might be thrown into

disarray, and taxpayers might escape the ordinary procedural

requirements imposed by state law. During the pendency of

the federal suit the collection of revenue under the challenged

law might be obstructed * * * .’” Fair Assessment, 454 U.S.

at 109 n.6, quoting Perez v. Ledesma, 401 U.S. 82, 128 n.17

(1971) (Brennan, J., concurring in part and dissenting in

part). The Court similarly has held that an action in federal

court for money damages is unavailable in circumstances

where taxpayers would be able to obtain a federal judgment

“without first permitting the State to rectify any alleged

impropriety” and where “the very maintenance of the

[federal] suit itself would intrude on the enforcement of the

'° The Court in Fair Assessment concluded that taxpayers could

not seek recovery in federal court from individual state officers

under Section 1983. 454 U.S. at 113-114. But that holding is far

from dispositive here. The Court in Fair Assessment was

concerned that the federal court damages action would allow

taxpayers to circumvent state remedies and interfere with

enforcement of the state taxing scheme. See ibid. As we explain

below, however, that concern has no bearing in this case. In fact,

the Court in Fair Assessment noted with evident approval that the

taxpayers in that case could assert their Section 1983 claim in state

court. See id. at 116-117. The New Jersey Supreme Court’s

decision rejects this Court’s assumption.

state scheme.” Fair Assessment, 454 U.S. at 114. But those

concerns have no application in a case like this one.

Here, GM has not attempted to circumvent state

procedures; to the contrary, it has pursued its challenge to the

assessment under state law through the state administrative

and judicial processes, where its action remains pending

before a Tax Court judge who could be assigned to the Law

Division. See Alid, supra; page 3, supra. Nor will

maintenance of GM’s Section 1983 action interfere either with

the collection of state taxes (GM long ago paid its 1986

property taxes) or with the state remedial scheme. Indeed, as

the Appellate Division noted below, GM’s Section 1983

action may be assigned to the Tax Court judge who is hearing

the tax assessment appeal, and proceedings in the Section

1983 suit may be stayed pending completion of that appeal.

See App., infra, 23a, 3la. Cf. Fair Assessment, 454 U.S. at

136-137 (Brennan, J., concurring in the judgment). In these

circumstances, the state interest in effective tax administration

is not advanced in any respect by precluding resort to Section

1983. Cf. Deakins v. Monaghan, 484 U.S. 193, 206 (1988)

(White, J., concurring) (“To permit dismissal of a claim for

damages when such relief may not be obtained in any pending

state proceeding is surely not required by any notions of

comity. ”)

5. Against this background, it is plain that the decision

of the Supreme Court of New Jersey simply gives state taxing

officials a license to violate the federal Constitution. It

entirely frustrates the federal interest in the deterrence and

punishment of constitutional violations by state officials that

is expressed in Section 1983. It assures that in many cases

taxpayers will obtain no remedy at ail for the deprivation of

federal constitutional rights. And while purporting to

interpret Section 1983, it endorses a regime where the focus

of the court’s inquiry is the state-law question of valuation

rather than the federal-law question whether the Constitution

was violated. This manifest misinterpretation of National

Private Truck Council should not stand.

B. The Issue Presented Here Is An Important And

Recurring One That Warrants Review

The issue presented here warrants this Court’s review.

First, the inadequacies in New Jersey’s tax remedies are

found in state systems across the Nation. See, e.g., Cook v.

Tax Appeals Tribunal, 635 N.Y.S.2d 355 (App. Div. 1995)

(plaintiff challenging tax assessment must present clear and

convincing evidence); In re Cook County Collector, 229 Ill.

App.3d 138, 593 N.E.2d 878 (Ct. App. 1992) (same); Conn.

Gen. Stat. Ann. § 7-250 (reviewing court may only confirm

or alter tax assessment, and no damages suit permitted against

tax officials); Va. Code Ann. §§ 58.1-1821-1822, 58.1-1825-

1826 (only state tax department, not state taxing officials,

“shall be named as defendant” in suit challenging tax

assessment, and remedy is that “assessment be corrected”).

Second, constitutional challenges to state taxation are

brought with great frequency — and, if anything, are likely

to become more common at a time when state and local

budgets are tight and taxing officials are experimenting with

novel (and in some cases constitutionally suspect) forms of

taxation. See Rothfeld, Section 1983: The Civil Rights

Alternative to Constitutional Challenges, State Tax Notes,

March 21, 1994, at 751, 752. This point is proved by the

volume of recent cases in which state taxpayers have invoked

Section 1983. See Jade Aircraft Sales, Inc. v. Crystal, 236

Conn. 701 (1996).'* In saying this, we recognize that in

4 Prior to the decision in National Private Truck Council, courts

in a number of states permitted Section 1983 suits to proceed so

long as the taxpayer first exhausted state remedies. See, ¢.g.,

McManus v. lowa, 499 N.W.2d 726, 728 (Iowa 1993), cert.

denied, 114 S. Ct. 580 (1993); Dean v. State, 826 P.2d 1372,

1377-1378 (Kan.), cert. denied, 504 U.S. 973 (1992); Zarda v.

many cases state remedies will be entirely adequate; indeed,

in the vast majority of cases, as in National Private Truck

Council itself, taxpayers request only refunds from state

State, 826 P.2d 1365, 1371-1372 (Kan.), cert. denied, 504 U.S.

973 (1992); Allison v. Board of County Commissioners, 737 P.2d

6, 15 (Kan. 1987); Nutbrown v. Munn, 811 P.2d 131, 138-139

(Or. 1991), cert. denied, 502 U.S. 1030 (1992); Bloomingdales by

Mail v. Huddleston, 848 $.W.2d 52 (Tenn. 1992), cert. denied,

113 §.Ct. 3002 (1993); Hogan v. Musolf, 471 N.W.2d 216 (Wisc.

1991), cert. denied, 502 U.S. 1030 (1990); Raschke v. Blaucher,

491 N.E.2d 1171 (ill. App. 1986); Harlan Sprague Dawley, Inc.

v. Indiana Dept. of State Revenue, 583 N.E.2d 214, 224-225 (Ind.

Tax Ct. 1991). Other courts allowed Section 1983 suits to proceed

without discussion of an exhaustion requirement. See, e.g.,

Arkansas Writers’ Project v. Ragland, Inc. , 738 $.W.2d 402, 403

(Ark.), aff'd on other grounds, 481 U.S. 221 (1987); Porter v.

Treasurer & Collector, 431 N.E.2d 934 (Mass. 1982); Burrell v.

Mississippi State Tax Comm’n, 536 So.2d 848, 863 (Miss. 1988);

Marx v. Truck Renting & Leasing Ass’n, 520 So.2d 1333, 1346

(Miss. 1988); Brower v. Wells, 690 P.2d 1144 (Wash. 1984);

Neiman Marcus Group, Inc. v. Meehan, 1991 Conn. Super. LEXIS

2135 (Conn. Super. Ct. Sept. 19, 1991); Satellink of Chicago v.

City of Chicago, 523 N.E.2d 13 (Ill. App. 1988); Beverly Bank v.

Board of Review, 453 N.E.2d 96 (Ill. App. 1983); Uretsky v.

Baschen, 361 N.E.2d 875 (Ill. App. 1977); Department of Treasury

v. Campbell, 411 N.W.2d 722, 723 (Mich. Ct. App. 1987);

Holden Arboretum v. City of Kirtland, 483 N.E.2d 167 (Ohio Ct.

App. 1984). Still other States refused to entertain Section 1983 tax

challenges. See, e.g., Zizka v. Water Pollution Control Auth. , 490

A.2d 509, 513 (Conn. 1985); Backus v. Chilivis, 224 $.E.2d 370

(Ga. 1976); Stufflebaum v. Panethiere, 691 S.W.2d 271 (Mo.

1985); North Dakota v. Quill Corp. , 500 N.W.2d 196 (N.D.), cert.

denied, 114 S. Ct. 173 (1993); Linderkamp v. Bismarck School

Dist. No. 1, 397 N.W.2d 76 (N.D. 1986); Spencer v. South

Carolina Tax Comm’n, 316 S.E.2d 386 (S.C. 1984), aff'd by an

equally divided Court, 471 U.S. 82 (1985); Johnston v. Gaston

County, 323 S.E.2d 381 (N.C. App. 1984).

coffers and do not seek to hold taxing officials personally

liable for constitutional violations. But state remedies are

most likely to be inadequate in those important cases where

state officials should be held personally liable because (as is

alleged in this case) they engaged in intentional deprivations

of settled constitutional rights. And it is, in any event,

essential both for taxpayers and for the states that the rules

governing state tax litigation be clear and unambiguous.

Third, while there sometimes may be a temptation to

regard tax cases as principally involving commercial disputes

that fall outside the central policy of Section 1983 (cf.

National Private Truck Council, 115 S. Ct. at 2357

(Kennedy, J., concurring)), that does not reflect the reality of

State-tax challenges. Taxpayers have made credible

allegations that state tax laws have been applied in a manner

that discriminates on the basis of race,’* that suppresses free

speech,'® that interferes with the free exercise of religion,’

and that otherwise violates the most fundamental constitu-

tional rights. Because the holding of the court below does not

provide an adequate remedy for such violations, frustrates the

intent of Congress in enacting Section 1983, is premised on

an erroneous reading of this Court’s opinions, and is likely to

serve as a source of (highly misleading) guidance for state

courts across the Nation, review by this Court is imperative.

'S See, e.g., Rosewell, 450 U.S. at 507.

"© See, e.g., Minneapolis Star v. Minnesota Commissioner of

Revenue, 460 U.S. 575 (1983); Arkansas Writers’ Project v.

Ragland, Inc., 481 U.S. 221 (1987); Grosjean v. American Press

Co., 297 U.S. 233 (1936).

'” See, e.g., Texas Monthly, Inc. v. Bullock, 489 U.S. 1 (1989);

Murdock v. Pennsylvania, 319 U.S. 105 (1943).

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

HOWARD FRIEDLAENDER

General Motors Corporation

Mail Code 482-] 14-262

3044 West Grand Bivd.

Detroit, MI 48202

(313) 556-1553

May 1996

KENNETH S. GELLER*

CHARLES ROTHFELD

JOHN J. SULLIVAN

Mayer, Brown & Platt

2000 Pennsylvania Ave., N.W.

Washington, D.C. 20006

(202) 463-2000

JOHN E. GARIPPA

PHILIP J. GIANNUARIO

Garippa & Davenport, P.C.

66 Park Street

Montclair, NJ 07042

(201) 744-1688

* Counsel of Record

APPENDICES

APPENDIX A

SUPREME COURT OF NEW JERSEY

A-66/109 September Term 1995

GENERAL MOTORS CORP.,

Plaintiff-Respondent,

CITY OF LINDEN and The

Assessor of Linden,

Defendants-Appellants and

Cross-Respondents,

and

RICHARD CHAIKEN, Agent, Servant

or Employee of the City of

Linden,

Defendant-Respondent

and Cross-Appellant.

Argued October 24, 1995 - Decided February 29, 1996

On certification to Superior Court, Appellate Division, whose

opinion is reported at 279 N.J. Super. 449 (1995).

Donald P. Jacobs argued the cause for appellants and cross-res-

pondents, City of Linden and the Assessor of Linden (Budd Larner

Gross Rosenbaum Greenberg & Sade, attorneys; Mr. Jacobs and

Carl Greenberg, on the briefs).

Michael H. Cohen argued the cause for respondent and cross-ap-

pellant (Morgan, Melhuish, Monaghan, Arvidson, Abrutyn &

Lisowski, attorneys; Mr. Cohen and Meredith Kaplan Stoma, on the

briefs).

Kenneth S. Geller, a member of the District of Columbia bar,

argued the cause for respondent (Garippa & Davenport, attorneys;

Howard Friedlaender, a member of the Michigan bar, of counsel:

John E. Garippa and Philip J. Giannuario, on the brief).

John R. Lloyd argued the cause for amicus curiae Association of

Municipal Assessors of New Jersey (Rosenblum Wolf & Lloyd,

attorneys).

Julian F. Gorelli, Deputy Attorney General, argued the cause for

amicus curiae Director, Division of Taxation (Deborah T. Poritz,

Attorney General of New Jersey, attorney; Joseph L. Yannotti,

Assistant Attorney General, of counsel).

The opinion of the Court was delivered by POLLOCK, J.

The dispositive issue is whether General Motors Corporation

(GM) may maintain an action under 42 U.S.C.A. 1983 (section

1983)' against defendants: City of Linden; Emanuel Frangella,

Linden’s tax assessor; and Richard Chaiken, a property appraiser

retained by Frangella. Essentially, GM claims that defendants

discriminated against it by assessing GM’s automobile assembly

plant in violation of GM’s due process rights. Underlying that

claim is GM’s contention that defendants reassessed the plant at an

excessive value in retaliation for GM’s appeals from prior assess-

ments.

The Law Division granted summary judgment for defendants,

reasoning that it lacked jurisdiction to entertain GM’s section 1983

action and that defendants enjoyed absolute immunity. The

Appellate Division reversed and remanded, holding that the Law

Division had jurisdiction of the claim and that defendants’ immunity

was not absolute. 279 N.J.Super. 449, 653 A.2d 568 (1995). We

granted defendants’ petition for certification, 142 N.J. 454, 663

A.2d 1361 (1995).

In the interim, the United States Supreme Court decided

National Private Truck Council v. Oklahoma Tax Commission, ___

' Section 1983 provides in relevant part:

Every person who, under color of any statute, ordinance, regulation,

custom, or usage, of any State or territory or the District of Columbia,

subjects, or causes to be subjected, any citizen of the United States or

other person within the jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the Constitution and laws,

shall be liable to the party injured in an action at law, suit in equity, or

other proper proceeding for redress.

U.S. __, 115 S.Ct. 2351, 132 L.Ed. 2d 509 (1995), which

prohibits state courts from providing relief under section 1983, if

state law provides an adequate remedy for relief from unconstitu-

tional tax assessments. New Jersey’s system provides such a

remedy. Consistent with National Private Truck, we reverse the

judgment of the Appellate Division and reinstate the judgment

dismissing GM’s complaint.

In 1985-86, GM, at a cost of approximately $3.5 million,

renovated and added 200,000 square feet to its 2.4 million

square-foot plant in Linden. Linden retained Chaiken to assist

Frangella in reassessing the property for 1986. Based on Chaiken’s

recommendation, Frangella increased the 1986 assessment by

$17.69 million. The increase resulted in a prorated assessment for

the last four months of 1986 in the amount of $5,896,667. On

GM’s appeal, the Union County Board of Taxation affirmed the

assessment. GM appealed to the Tax Court, where the matter

remains pending.

On October 1, 1993, GM filed this action seeking compensa-

tory and punitive damages under section 1983. The complaint

alleged that Chaiken and Frangella (“the individual defendants” )

had engaged in discriminatory, arbitrary, and unconstitutional

conduct in reassessing GM’s property. GM sought damages of $2

million, plus interest, costs, and attorneys fees.

Because of the appeal pending in the Tax Court, the Law

Division held that the entire-controversy doctrine deprived it of

jurisdiction to determine GM’s section 1983 claim. The Law

Division also declared that the individual defendants enjoyed

absolute immunity. It dismissed the complaint against Linden,

reasoning that it was not subject to liability for Frangella’s alleged

violation of GM’s due process rights.

In reversing and remanding, the Appellate Division held that

the Law Division had jurisdiction of GM’s section 1983 claim.

The court further stated that the individual defendants were not

entitled to absolute immunity. Finally, it reversed the dismissal of

the complaint in favor of Linden, asserting that because Frangella

was the final policy maker on tax matters, Linden could be liable

for his conduct.

Four months later, the United States Supreme Court decided

National Private Truck, supra, __-; U.S. __—s, 115 S.Ct. 2351, 132

L.Ed. 2d 509. That decision renders moot the issues that divided

the lower courts: whether the Law Division had jurisdiction of

GM’s section 1983 action and whether the individual defendants

were entitled to immunity.

Two federal statutes govern this action, section 1983 and 28

U.S.C.A. 1341 (section 1341),’ the Tax Injunction Act. Generally

speaking, section 1983 provides a cause of action in state or federal

courts to redress federal constitutional and statutory violations by

state officials. By comparison, section 1341 prohibits federal

courts from enjoining the collection of a state tax “where a plain,

speedy and efficient remedy may be had in the courts of such

State.” GM’s claim arises at the intersection of the two statutes.

Decisions of the United States Supreme Court, most notably

National Private Truck and its predecessors, guide our reading of

the statutes. As those decisions make clear, Congress preserved an

essential attribute of federalism by directing federal courts not to

interfere in the administration of state tax systems. Fair Assessment

in Real Estate Ass’nv. McNary, 454 U.S. 100, 103, 102 S.Ct. 177,

179, 70 L.Ed. 2d 271, 275 (1981). Relying on the principle of

comity, the United States Supreme Court has held that federal

courts must refrain from interfering with state tax systems whether

the taxpayer seeks an injunction, 28 U.S.C.A. § 1341; declaratory

relief, Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S. 293,

299, 63 S.Ct. 1070, 1073, 87 L.Ed. 1407, 1412 (1943); or

damages, Fair Assessment, supra, 454 U.S. at 113, 102 S.Ct. at

184, 70 L.Ed. 2d at 281-82.

In Fair Assessment, a taxpayers association filed a federal

court action challenging the assessment of real estate in Missouri.

Claiming that the assessment violated their equal protection and due

? U.S.C.A. 1341 provides:

The district courts shall not enjoin, suspend or restrain the assess-

ment, levy or collection of any tax under State law where a plain, speedy

and efficient remedy may be had in the courts of such State.

process rights, the taxpayers sought damages. In rejecting their

claim, the United States Supreme Court held

that taxpayers are barred by the principle of comity from

asserting § 1983 actions against the validity of state tax

systems in federal courts. Such taxpayers must seek protec-

tion of their federal rights by state remedies, provided of

course that those remedies are plain, adequate and complete,

and may ultimately seek review of the state decisions in this

Court.

[454 U.S. at 116, 102 S.Ct. at 186, 70 L.£d. 2d at 283.)

Drawing on principles underlying section 1341, the Court

explained:

“The statute ‘has its root in equity practice in principles of

federalism, and in recognition of the imperative need of a

State to administer its own fiscal operations.’ Tully v. Griffin,

Inc., 429 U.S. [68], 73 (97 S.Ct. 219, 222, 50 L.Ed. 2d 227

(1976) ]. This last consideration was the principal motivating

force behind the Act: this legislation was first and foremost

a vehicle to limit drastically federal district court jurisdiction

to interfere with so important a local concern as the collection

of taxes. 81 Cong.Rec. 1415 (1937) (remarks of Sen.

Bone)....”

[Fair Assessment, supra, 454 U.S. at 110, 102 S.Ct. at 183,

70 L.Ed. 2d at 279-80 (quoting Rosewell v. LaSalle Nat'l

Bank, 450 U.S. 503, 522, 101 S.Ct. 1221, 1233, 67 L.Ed. 2d

464 (1981) (footnote omitted)).]

The Court reasoned that the award of damages, like the issuance of

an injunction, would unduly interfere with the collection of state

taxes. Fair Assessment, supra, 454 U.S. at 111, 102 S.Ct. at 184,

70 L.Ed. 2d at 280.

Last year, the Court extended the principle of non-interfer-

ence. It held that when an adequate state remedy is available,

section 1983 does not provide a cause of action in state courts.

National Private Truck, supra, ___ U.S. at_, 115 S.Ct. at

2355, 132 L.Ed. 2d at 517. In National Private Truck, non-resid-

ent motor carriers for truckers successfully challenged an Oklahoma

tax as a violation of the commerce and privileges and immunities

clauses of the United States Constitution. The truckers alleged that

Oklahoma imposed the tax in retaliation for taxes imposed by

twenty-five other states on trucks registered in Oklahoma. In

addition to seeking a tax refund under Oklahoma law, the truckers

sought declaratory and injunctive relief under section 1983.

Earlier, the Oklahoma Supreme Court had concluded that the

truckers were not entitled to relief under section 1983. The United

States Supreme Court had vacated the Oklahoma Supreme Court’s

opinion and remanded for further consideration in light of Dennis

v. Higgins, 498 U.S. 439, 111 S.Ct. 865, 112 L.Ed. 2d 969

(1991).

In Dennis, the Court recognized a trucker’s challenge to a

Nebraska truck tax under section 1983 as violative of the commerce

clause. The Court held that commerce clause violations can give

rise to a cause of action under section 1983. It explained that

section 1983 “‘provide[s] a remedy, to be broadly construed,

against all forms of official violation of federally protected rights.’”

Id. at 445, 111 S.Ct. at 869, 112 L.Ed. 2d at 977 (quoting Monell

v. Department of Social Services, 436 U.S. 658, 700-01, 98 S.Ct.

2018, 2044, 56 L.Ed. 2d 611, 641 (1978)). The Court stated that

“the Nebraska Supreme Court erred in holding that petitioner’s

claim could not be brought under 42 U.S.C. § 1983.” Jd. at 451,

111 S.Ct. at 873, 112 L.Ed. 2d at 981.

Notwithstanding the holding in Dennis, the Oklahoma

Supreme Court on remand denied relief under section 1983.

Without discussing Dennis, the United States Supreme Court

affirmed. The absence of any discussion of Dennis renders

National Private Truck somewhat enigmatic. Our reading of

National Private Truck leads us to conclude that the Court has

determined that Congress did not intend claims involving state tax

administration to be actionable under section 1983 in state or

federal court, whether those claims arise from alleged violations of

the interstate commerce or due process clauses. The United States

Supreme Court has recognized an exception under section 1983 for

challenges to a state tax system when a state provides a plain,

adequate, and complete remedy.

As the Court explained in National Private Truck, “the

background presumption that federal law generally will not interfere

On are eam

with administration of state taxes leads us to conclude that Congress

did not authorize injunctive or declaratory relief under § 1983 in

State taxcases.” 5s U.S. at__—_—s, 115, S.C?. at 2355, 132 L.Ed.

2d at 517.

The Court explained further:

Just as Fair Assessment relied upon a background principle in

interpreting § 1983 to preclude damage actions in tax cases

brought in federal court, so we rely on the same principle in

interpreting § 1983 to provide no basis for courts to award

injunctive relief when an adequate legal remedy exists. Our

interpretation is supported not only by the background

principle of federal non-interference discussed in Fair Assess-

ment, but also by the principles of equitable restraint discussed

at length in that case. Whether a suit is brought in federal or

state court, Congress simply did not authorize the disruption

of state tax administration in this case.

[National Private Truck, supra, _ U.S. at__, 115 S.Ct. at

2356, 132 L.Ed. 2d at 518.)

Before National Private Truck, some state courts had interpret-

ed Fair Assessment as limiting federal court jurisdiction. See

Burrell v. Mississippi State Tax Comm’n, 536 So. 2d 848, 864

(Miss. 1988) (stating that notwithstanding jurisdictional bar on

federal courts in Fair Assessment, state court must hear section

1983 suits); Bung’s Bar & Grille, Inc. v. Township Council, 206

N.J. Super. 432, 459-61, 502 A.2d 1198 (1985) (noting that neither

Tax Injunction Act nor Fair Assessment prohibits section 1983

access to state courts); see also Note, Clarifying Comity: State

Court Jurisdiction and Section 1983 State Tax Challenges, 103

Harv. L. Rev. 1888, 1902-03 (1990) (observing that limits on

federal jurisdiction in Fair Assessment do not extend to state courts,

which must hear section 1983 state tax challenges). Some federal

courts also understood Fair Assessment as limiting their jurisdiction

and specifically acknowledged the availability of section 1983 state

tax suits in state courts. See Bernard v. Village of Spring Valley,

30 F.3d 294, 297 (2d Cir.1994) (dismissing section 1983 tax suit

in federal court because adequate remedies “such as a § 1983 suit

in state court” are available); Long Island Lighting Co. v.

Brookhaven (LILCO), 889 F.2d 428, 432-33 (2d Cir. 1989) (same).

Other state courts, anticipating the holding in National Private

Truck, interpreted Fair Assessment to preclude section 1983 actions

in any forum so long as the state provides an adequate legal

remedy. See Harlan Sprague Dawley, Inc. v. Indiana Dep’t of

State Revenue, 583 N.E. 2d 214, 221 (ind. Tax 1991) (holding that

principle of equitable restraint in Fair Assessment would bar state

courts from hearing section 1983 state tax challenges if state

remedy were adequate). These state ‘courts, without relying

explicitly on principles of comity, followed the federal courts’

deference to state tax administration and declined to entertain the

section 1983 actions. See, e.g., Zizka v. Water Pollution Control

Auth., 195 Conn. 682, 490 A.2d 509, 514 (1985) (applying

rationale in Fair Assessment to conclude that availability of

adequate state remedy “forecloses the plaintiff's § 1983 claims ...

in state court”); Stufflebaum v. Panethiere, 691 S.W.2d 271, 273

(Mo. 1985) (stating that “the teaching of McNary is that, given a

plain, adequate and complete remedy [under state law], taxpayers

may not seek relief under § 1983”); Hanson v. Quill Corp., 500

N.W.2d 196, 197 (N.D. 1993) (finding that policies underlying

federal bar to section 1983 state tax suits in Tax Injunction Act and

Fair Assessment apply equally to section 1983 actions in state

courts); Hogan v. Musolf, 471 N.W.2d 216, 222 (1991) (same),

cert. denied, 502 U.S. 1030, 112 S.Ct. 867, 116 L.Ed. 2d 773

(1992).

When read in light of National Private Truck, we believe that

Fair Assessment is best understood as limiting not the jurisdiction

of federal courts, but the availability of section 1983 actions in any

court, federal or state. As we read it, National Private Truck states

that a violation of the United States Constitution arising out of an

assessment of a state tax generally will not give rise to a section

1983 action when the state has provided an adequate legal remedy.

In sum, both state and federal courts “must refrain from granting

federal relief under § 1983 when there is an adequate legal

remedy.” __—sU.S. at__s,: 115. S.Ct. at 2357, 132 L.Ed. 2d at

519.

GM seeks to distinguish National Private Truck on the

grounds that it seeks compensatory and punitive damages, not

merely a refund or declaratory relief, as the taxpayers sought in

National Private Truck. We reject the distinction. In Fair

Assessment, as in the present case, the taxpayers sought damages.

Nonetheless, the Court held that when a state provides an adequate

remedy, a federal court may not entertain an action for damages.

The Court reasoned that a damage award would first require a

declaration that the state officials had violated the taxpayers’

constitutional rights. 454 U.S. at 113, 102 S.Ct. at 184, 70 L.Ed.

2d at 281-82. A taxpayer’s right to seek damages would disrupt

the tax system as much as the right to seek declaratory relief. Jbid.

In brief, the Court focused not on the nature of the relief requested,

but on the possible interference of any relief in the administration

of the state tax system. Thus, neither state nor federal courts may

award damages or grant either injunctive or declaratory relief when

a state provides an adequate remedy.

To be adequate, a state remedy need only satisfy “minimal

procedural criteria.” Rosewell v. LaSalle Nat’l Bank, 450 U.S.

503, 512, 101 S.Ct. 1221, 1228-29, 67 L.Ed. 2d 464, 473 (1981).

Courts measure the adequacy of a state remedy by procedural, not

substantive, criteria. Jd. at 512, 101 S.Ct. at 1229, 67 L.Ed. 2d at

473. Further, courts should construe narrowly the exception to the

requirements of an adequate remedy. California v. Grace Brethren

Church, 457 U.S. 393, 413, 102 S.Ct. 2498, 2510, 73 L.Ed. 2d

93, 109 (1982).

In Rosewell, the taxpayer sought injunctive relief in a section

1983 suit involving a tax assessment of her property. She alleged

due process and equal protection violations, claiming that disparities

in assessments were based on race and that the excessive assess-

ment of her property was in retaliation for challenging prior

assessments. 450 U.S. at 507, 101 S.Ct. at 1226, 67 L.Ed. 2d at

470. The municipality contended that the suit was not cognizable

under section 1983 because the state’s refund procedure provided

an adequate remedy. Jd. at 510-11, 101 S.Ct. at 1228, 67 L.Ed.

2d at 472.

In accepting that contention, the Court concluded that the

municipality could require the taxpayer to pay the tax and seek a

refund afterward. Jd. at 512, 101 S.Ct. at 1228-29, 67 L.Ed. 2d

at 473; see also McKesson v. Division of Alcoholic Beverages, 496

U.S.. 18, 39-40 & n. 21, 110 S.Ct. 2238, 2251-52 & n. 21, 119

L.Ed. 2d 17, 37-38 & n. 21 (1991) (noting that due process

requires only that state provide either pre-deprivation process, e.g. ,

10a

a hearing, or post-deprivation process, ¢.g., a tax refund). To be

adequate, a state remedy merely needs to provide an Opportunity

sometime for a “full hearing and judicial determination” at which

the taxpayer may raise all constitutional objections to the tax.

Rosewell, supra, 450 U.S. at 515 & n. 19, 101 S.Ct. at 1230 & n.

19, 67 L.Ed. 2d at 475 & n. 19.

In other contexts, when plaintiffs have alleged substantive due

process or other constitutional violations involving tax matters,

courts consistently have analyzed the adequacy of the remedy in

terms of the process afforded by the state. See, ¢.g., Grace

Brethren Church, supra, 457 U.S. at 415-17, 102 S.Ct. at 2511-12,

73 L.Ed. 2d at 111-12 (observing that First Amendment claim

could be adequately addressed in challenge to constitutionality of

unemployment tax in state court); Fair Assessment, supra, 454 U.S.

at 116, 102 S.Ct. at 186, 70 L.Ed. 2d at 283-84 (finding that

allegations of retaliatory tax increase to penalize taxpayers who

appealed prior assessments could be adequately remedied in state

court); Rosewell, supra, 450 U.S. at 528, 101 S.Ct. at 1237, 67

L.Ed. 2d at 483 (stating that allegations that tax assessor taxed

minority-owned buildings at higher rate were adequately addressed

in state’s refund procedure); LILCO, supra, 889 F.2d at 431

(determining that refund was adequate to remedy allegation of

discriminatory tax); Garrett v. Bamford, 582 F.2d 810 (3d Cir.

1978) (stating that equal protection claim alleging disparate

property assessments was properly addressed through adequate

administrative and judicial review in state court); Moore v. Trippe,

743 F. Supp. 201 (S.D.N.Y. 1990) (finding refund adequate to

address allegations of religious discrimination as evidenced by

unfair tax assessment).

Concerning the exercise of the power to tax, “the States are

afforded great flexibility in satisfying the requirements of due

process.” National Private Truck, supra, Wane eS ee

S.Ct. at 2355, 132 L.Ed. 2d at 516. A state remedy need not be

identical to section 1983 remedies. Sipe v. Amerada Hess Corp..,

689 F.2d 396, 407 (3rd Cir. 1982). It need not be the best remedy

available, Colonial Pipeline Co. v. Collins, 921 F.2d 1237, 1245

(11th Cir. 1991); Mendel v. Hutchinson, 494 F.2d 364, 367 (9th

Cir. 1974); the most convenient remedy, Behe v. Chester County

Bd. of Assessment Appeals, 952 F.2d 66, 68 (3rd Cir. 1991); or

lla

equal to or comparable with federal remedies, Colonial Pipeline

Co., supra, 921 F.2d at 1245; Mandel, supra, 494 F.2d at 367. A

requirement that plaintiffs exhaust administrative remedies before

filing section 1983 actions does not render the state remedy

inadequate. See Grace Brethren Church, supra, 457 U.S. at 416

n. 35, 102 S.Ct. at 2512 n. 35, 73 L.Ed. 2d at 112 n. 35. Finally,

a taxpayer’s failure to resort to available state procedures does not

render those procedures insufficient. Burris v. City of Little Rock,

941 F.2d 717, 721 n. 4 (8th Cir. 1991).

Here, the tax is an ad valorem real property tax administered

by municipal officials. Although commonly described as a local

property tax, the tax constitutes a state tax for purposes of deter-

mining the availability of section 1983 relief. See New Jersey State

League of Municipalities v. Kimmelman, 105 N.J. 422, 429 (1987)

(stating that “[aJll taxes are state taxes even though levied for

county or municipal purposes”).

New Jersey law provides several opportunities for taxpayers

to raise constitutional objections to an added assessment. A

taxpayer may challenge the added assessment by appealing to the

County Board of Taxation on or before December Ist of the year

of the assessment. N.J.S.A. 54:4-63.11. The County Board must

hear the appeal and render judgment within one month after the last

day for filing such appeals. Jbid. If the taxpayer is still dissatis-

fied, he or she may appeal the Board’s decision to the Tax Court

within forty-five days of the Board judgment. Jbid. In the Tax

Court, the taxpayer is entitled to a de novo hearing before a tax

court judge with expertise in the field of real property valuation.

N.J.S.A. 2B:13-3(e); see Union City Associates v. City of Union

City, 115 N.J. 17, 23 (1989) (stating that Tax Court provides de

novo review).

Even before the recent amendment to N.J.S.A. 2B:13-2, which

expands Tax Court jurisdiction to hear any tax-related matters over

which the Superior Court would have jurisdiction, the Tax Court

could correct an unconstitutional assessment. See, e.g., Township

of West Milford v. Van Decker, 120 N.J. 354, 576 A. 2d 881

(1990) (plaintiffs successfully challenged imposition of property tax

on grounds tax violated their federal equal protection rights). In

brief, a taxpayer may challenge the constitutionality of a state tax

without proceeding under section 1983. See Salorio v. Glaser, 82

12a

N.J. 482, 414 A.2d 943, cert. denied, 449 U.S. 874, 101 S.Ct.

215, 66 L.Ed. 2d 94 (1980).

A taxpayer may appeal from the Tax Court to the Appellate

Division. N.J.S.A. 2B:3-4. If the taxpayer succeeds at any level,

the taxing district must refund the excess taxes plus five-percent

interest within sixty days of the final judgment. N.J.S.A. 54:3-27-

.2; see Rosewell, supra, 450 U.S. at 528, 101 S.Ct. at 1237, 67

L.Ed. 2d at 483 (stating that refund without interest can be adequate

to preclude federal court relief). Based on the Supreme Court’s

“minimal procedural criteria,” Rosewell, supra, 450 U.S. at 512,

101 S.Ct. at 1229, 67 L.Ed. 2d at 473, we believe that the

remedies under New Jersey law are adequate to preclude section

1983 suits in either federal or state courts.

In characterizing GM’s allegations as procedural, we recog-

nize that GM alleges that defendants intentionally discriminated

against it in violation of GM’s substantive due process rights.

GM’s pending appeal in the Tax Court provides an adequate

remedy for any alleged violation of its federal rights. In that

proceeding, GM may also seek to introduce evidence to overcome

the presumptive validity of the assessment. Pantasote Co. v. City

of Passaic, 100 N.J. 408, 417, 495 A.2d 1308 (1985).

We need not reach the question whether discrimination, based

on race, religion, gender, or the like, could constitute a violation

of a taxpayer’s constitutional rights. The issue is not before us.

Suffice it to state that we do not read the decisions of the United

States Supreme Court as legitimizing any form of invidious

discrimination. Furthermore, the Law Against Discrimination,

N.J.S.A. 19:5-1 to 5-42, assures New Jersey citizens protection

against any such discrimination.

Although not essential to our decision, we note that important

policy considerations also weigh in favor of precluding relief under

section 1983 in state tax cases. First, the availability of section

1983 in state tax cases would permit taxpayers to circumvent the

December deadline imposed by N.J.S.A. 54:4-63.11. As discussed

above, the time permitted to file a tax appeal is shorter than other

personal injury actions. The statute of limitations for personal

injury claims based on negligence, including section 1983 claims,

is two years. See Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938,

13a

85 L.Ed. 2d 254 (1985) (stating that statute of limitations for

section 1983 actions is the state’s statute of limitations for personal

injury actions). As this Court has previously stated:

“The policy of applying strict time limitations to tax matters

is based upon the very nature of our administrative tax

structure.... Throughout our tax legislation, it is clear that

our legislature has attempted to set out a well organized

time-table for the purpose of enabling a municipality to

ascertain the amount of taxable ratables within the jurisdiction

in order that it might adopt a responsible and fairly accurate

budget.”

[F.M.C. Stores Co. v. Borough of Morris Plains, 100 N.J.

418, 425 (quoting Township of Galloway v. Petkevis, 2 N.J.

Tax 85 (1980)).]

To permit a longer statute of limitations in section 1983 tax cases

would thwart the express intent of the Legislature and introduce

uncertainty into the administration of the state tax laws. Addition-

ally, allowing section 1983 actions in state tax cases would

circumvent the statutory scheme, which requires that a taxpayer

challenging an added assessment appeal first to the County Board

pursuant to N.J.S.A. 54:4-63.11, then to the Tax Court, and, if

necessary, to the Appellate Division. See N.J.S.A. 54:4-63.11; R.

2:2-3(a)(1).

Finally, the Director of the Division of Taxation, who certifies

all municipal assessors, may suspend an assessor or revoke the

assessor’s certification “for dishonest practices, or willful or

intentional failure, neglect or refusal to comply with the constitution

and laws relating to the assessment and collection of taxes or other

good cause.” N.J.S.A. 54:1-35.29. Thus, a tax assessor who

violates taxpayers’ constitutional rights runs the risk of removal.

In sum, ample reasons support the decision not to recognize a

section 1983 action challenging the conduct of an assessor.

The judgment of the Appellate Division is reversed, and the

matter is remanded to the Law Division for entry of a judgment of

dismissal.

CHIEF JUSTICE WILENTZ and JUSTICES HANDLER,

O’HERN, GARIBALDI, STEIN, and COLEMAN join in JUSTICE

POLLOCK’s opinion.

l4a

APPENDIX B

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

A-5963-92T2

GENERAL MOTORS CORP.,

Plaintiff-Appellant-

Cross-Respondent,

CITY OF LINDEN, THE ASSESSOR

OF LINDEN, AND RICHARD CHAIKEN,

Defendant-Respondents-

Cross-Appellants.

Argued October 5, 1994 - Decided February 3, 1995

Before Judges Shebell, Skillman and Kleiner.

On appeal from Superior Court of New Jersey, Law Division,

Union County.

Kenneth S. Geller, a member of District of Columbia Bar admitted

pro hac vice, argued the cause for appellant-cross-respondent

(Garippa & Davenport, attorneys; John E. Garippa, Philip J.

Giannuario, John J. Sullivan and Mr. Geller, on the brief).

Donald P. Jacobs, argued the cause for respondents-cross-appellants

City of Linden and Tax Assessor of Linden (Budd, Larner, Gross,

Rosenbaum, Greenberg & Sade, attorneys; Carl Greenberg,

Vincent J. Proto and Mr. Jacobs, on the brief).

Michael H. Cohen, argued the cause for respondent-cross-appellant

Richard Chaiken (Morgan, Melhuish, Monaghan, Arvidson,

Abrutyn & Lisowski, attorneys; Heidi P. Rubin Cohen and Mr.

Cohen, on the brief).

The opinion of the court was delivered by SKILLMAN,

J.A.D.

15a

Plaintiff General Motors Corporation brought this action under

the Federal Civil Rights Act, 42 U.S.C.A. § 1983, against defen-

dants City of Linden (“Linden”), its tax assessor, Emanuel

Frangella (“Frangella”), and an independent real estate appraiser

retained by Linden to assist in valuing plaintiff's property, Richard

Chaiken (“Chaiken”). Plaintiff claimed that defendants violated its

rights under the federal and state constitutions by imposing an

arbitrary, discriminatory and excessive property tax assessment on

its automobile assembly plant in Linden. By an amended com-

plaint, plaintiff claimed that Chaiken negligently valued its property

and therefore is also liable under common law tort principles.

The Law Division concluded that it lacked jurisdiction over

plaintiff's § 1983 claims because they relate to a tax assessment.

Despite holding that it lacked jurisdiction, the Law Division also

ruled that the individual defendants have absolute immunity from

suit under § 1983 for an alleged violation of constitutional rights

relating to a tax assessment and that Linden cannot be held

responsible for any constitutional violation which its tax assessor

may have committed. In addition, the Law Division, citing J.H.

Becker, Inc. v. Marlboro Township, 82 N.J. Super. 519, 530, 198

A.2d 463 (App. Div. 1964), dismissed plaintiff's common law

negligence claim against Chaiken on the ground that his valuation

of plaintiff's property was “not binding upon the tax assessor.”

The trial court subsequently denied defendants’ motions for counsel

fees and costs.

Plaintiff has appealed from the summary judgment in defend-

ants’ favor and defendants have cross-appealed from the denial of

their applications for counsel fees and costs.

Initially, we note that the order from which this appeal has

been taken is not a final judgment appealable as of right because it

does not include a final determination of defendants’ applications

for counsel fees and costs. Defendants argued in support of their

applications for attorney fees that even if they did not enjoy

absolute immunity from suit under § 1983, plaintiff's proofs were

“woefully inadequate and could not sustain a cause of action.” In

denying defendants’ applications, the trial court stated:

16a

{[D]efendants also base their request for attorney fees on the

assertion that General Motor’s lawsuit lacked any basis in

mt <i

Plaintiff responds that it would be unfair for this

Court to grant attorney fees ... because discovery has been

stayed and therefore, the facts have not been disclosed. ...

[P]laintiff argues that it has sufficient proofs, or will through

discovery obtain sufficient proofs to show that the defendant’s

assessment was the result of discrimination or retaliation. ...

Plaintiff argues that it should not be stalled from

developing further proofs of a conspiracy and that, under the

circumstances, a motion for attorney fees at this time is

premature. General Motors argues that it should be given the

opportunity to have discovery and to brief and argue the facts

which it alleges demonstrates a conspiracy and bad faith.

This Court accepts the plaintiff's argument at this time

thereby denies the defendants’ request for attorney fees. But

I note once again that the proofs submitted to date are

inadequate and insufficient as a basis for a 1983 claim.

In light of my decision regarding attorney fees, the

issue of costs will be held in abeyance until such time as the

issue of attorney fees is rescived.

Thus, the trial court’s denial of defendants’ applications for counsel

fees was without prejudice to their later renewal, because that

denial was based in part on plaintiff's request to be allowed to

conduct additional discovery.

This decision was memorialized by a “final order,” entered on

June 30, 1993, which stated in part that “defendants’ motions to

include reasonable attorneys’ fees as part of their costs are hereby

denied, and that the issue of defendants’ court costs shall be held

in abeyance.” Considered in light of the court’s prior oral opinion,

we read this order to deny defendants’ applications for attorney fees

without prejudice to their renewal after General Motors completes

discovery. See Church of Scientology of Cal. v. Cazares, 638 F.2d

1272, 1290 (Sth Cir. 1981) (indicating that even though a § 1983

action presents “novel legal issues,” it nevertheless may be

17a

“groundless” and thus warrant an award of counsel fees to a

defendant if plaintiff's claims have no substantial factual founda-

tion). In addition, this order expressly held defendants’ application

for costs in abeyance.

An appeal as of right may be taken to this court only from a

final judgment, which requires a final disposition of all claims as

to all parties. Hudson v. Hudson, 36 N.J. 549, 553 (1962).

Consequently, an order which holds an application for attorneys’

fees or costs in abeyance or which denies the application pending

the completion of further discovery is not a final judgment. See In

re Estate of Johnson, 240 N.J. Super. 134, 136 (App. Div. 1990).

Although the order from which this appeal has been taken is

interlocutory, the appeal has been fully briefed and argued.

Moreover, we are satisfied that the interests of justice will be

served by a decision of this court with respect to certain of the

issues presented. Therefore, we grant plaintiff leave to appeal nunc

pro tunc. See R. 2:4-4(b)(2). However, since the denial of

defendants’ applications for attorneys’ fees and costs were without

prejudice and contemplated further proceedings before the trial

court, we dismiss defendants’ cross appeals.

We conclude that the trial court erred in holding that it lacked

jurisdiction over this matter. The court also erred in its further

holding that defendants enjoy absolute immunity from a suit under

§ 1983 alleging a denial of federal constitutional rights in connec-

tion with a tax assessment. Since the trial court did not decide and

the parties have not addressed whether plaintiff's allegations state

a cause of action under § 1983, we do not pass upon this question.

Finally, we agree with the trial court’s holding that Chaiken may

not be held liable under common law tort principles for negligence

in rendering an opinion to Linden regarding the fair market value

of plaintiff's property.

A plaintiff in a § 1983 action may recover both compensatory

and punitive damages against any municipal official or employee

responsible for a deprivation of federal constitutional rights, Smith

v. Wade, 461 U.S. 30, 35-36, 103 S.Ct. 1625, 1629, 75 L.Ed. 2d

632, 638-39 (1983); Carey v. Piphus, 435 U.S. 247, 254-57, 98

S.Ct. 1042, 1047-49, 55 L. Ed. 2d 252, 259-60 (1978), and also

18a

may recover compensatory, but not punitive, damages against a

municipality. Newport v. Facts Concerts, Inc., 453 U.S. 247, 101

S. Ct. 2748, 69 L. Ed. 2d 616 (1981). In addition, a prevailing

party in an action under § 1983 may recover attorneys’ fees. 42

U.S.C. § 1988; see Farrarv. Hobby, _ U.S. ___, 113 S.Ct.

566, 121 L. Ed. 2d 494 (1992).

“State courts as well as federal courts have jurisdiction over

§ 1983 cases,” Howlett v. Rose, 496 U.S. 356, 358, 110 S.Ct.

2430, 2433, 110 L. Ed. 2d 332, 342 (1990), and “[t}he existence

of this jurisdiction creates an implication of duty to exercise it.”

Id. at 369-70, 110 S.Ct. at 2439-40, 110 L. Ed. 2d at 349 (quoting

Mondou v. New York, N.H. & H.R. Co., 223 U.S. 1, 58, 32 S.Ct.

169, 178, 56 L.Ed. 327, 349 (1912)). § 1983 is enforceable in

State courts “not because Congress has determined that federal

courts would otherwise be burdened or that state courts might

provide a more convenient forum ... but because the Constitution

and laws passed pursuant to it are as much laws in the States as

laws passed by the state legislature.” Jd. at 367, 110 S.Ct. at

2438, 110 L. Ed. 2d at 347. Therefore, New Jersey is required to

provide a forum in which a party may seek the full range of

remedies authorized by § 1983.

However, in exercising jurisdiction over § 1983 claims, “[t]he

States ... have great latitude to establish the structure and jurisdic-

tion of their own courts.” /d. at 372, 110 S.Ct. at 2441, 110 L.

Ed. 2d at 351. Relying upon this principle, the Law Division held

that it lacked jurisdiction over plaintiff's § 1983 claims because

they relate to a tax assessment and thus are within the Tax Court’s

exclusive jurisdiction.

The legislation creating the Tax Court, L. 1978, c. 33,

conferred jurisdiction upon that court “to hear and determine all tax

appeals of such character as [had previously been] heard and

determined by the Division of Tax Appeals,” N.J.S.A. 2A:3A-3

(repealed by L. 1993, c. 74, § 3), formerly an administrative

agency in the executive branch of government, L. 1978, c. 33, §

3. The Tax Court’s jurisdiction was limited under this legislation

to the “[rJeview of actions ... of the county board of taxation or the

Director of the Division of Taxation.” N.J.S.A. 2A:3A-4.1(a)

(repealed by L. 1993, c. 74, § 3). This legislation also provided:

i rrenesienieieenetiaiaienaineimaaasiieaiiaiiiaiiaaill

19a

The tax court, in all causes within its jurisdiction, and

subject to law, may grant legal and equitable relief so that all

matters in controversy between the parties may be completely

determined.

[N.J.S.A. 2A:3A-4(a) (repealed, now N.J.S.A. 2B:13-3(a).]

In Alid, Inc. v. Township of North Bergen, 180 N.J. Super.

592, 436 A.2d 102 (App. Div. 1981), we narrowly construed

N.J.S.A. 2A:3A-4(a) as only authorizing the Tax Court to hear

“equitable defenses and counterclaims” in cases otherwise within

its jurisdiction. Jd. at 601 (quoting Donnelly v. Ritzendollar, 14

N.J. 96, 103 (1953)). Consequently, we held that the Tax Court

had no jurisdiction over an action in lieu of prerogative writs even

if it related to a tax matter. The Supreme Court dismissed an

appeal from our decision as moot, but impliedly approved our

interpretation of N.J.S.A. 2A:3A-4(a) by ordering that “when relief

in lieu of prerogative writ is sought with respect to any matter then

pending in the Tax Court involving a state or local tax, including

enforcement of an order or judgment of the Tax Court or county

board of taxation, the action shall be transferred to the Superior

Court, Law Division.” Alid, Inc. v. Township of North Bergen, 89

N.J. 388, 388-89 (1981).’

Given the limitations upon its jurisdiction imposed by N.J.S.A.

2A:3A-3 and N.J.S.A. 2A:3A-4.1(a), the Tax Court lacked the

authority to award the full range of remedies authorized by § 1983.

Although the Tax Court could correct an assessment made in

violation of federal constitutional rights, see Township of West

Milford v. Van Decker, 120 N.J. 354, (App. Div. 1990), thereby

providing a taxpayer with part of the equitable relief available in a

§ 1983 action, its jurisdiction would not extend to awarding

compensatory and punitive damages against a tax assessor or other

public official who had violated a taxpayer’s constitutional rights or

' We note that a taxpayer may challenge the validity of a state tax

under the United States Constitution in the New Jersey courts without

proceeding under the Federal Civil Rights Act. See, e.g., Salorio v.

Glaser, 82 N.J. 482, cert. denied, 449 U.S. 874, 101 S.Ct. 215, 66 L.

Ed. 2d 94 (1980).

| 20a

granting equitable relief broader in scope than the simple correction

of an erroneous tax assessment.”

| Defendants argue that plaintiff is precluded in any event from

| maintaining a § 1983 action in a state court because an appeal to

the Tax Court seeking the correction of the alleged erroneous tax

assessment constitutes an adequate remedy. Defendants rely upon

a line of state court decisions which hold that a § 1983 action for

an alleged violation of federal constitutional rights relating to a tax

? Subsequent to the trial court’s decision in this case, the Legislature

expanded the Tax Court’s jurisdiction to include the review of any action

or regulation of any state, county or municipal official relating to a “tax

matter,” N.J.S.A. 2B:13-2(a), as well as “actions cognizable in the

Superior Court which raise issues as to which expertise in matters

involving taxation is desirable,” N.J.S.A. 2B:13-2(b); L. 1993, c. 74, §

1. These provisions may now provide the requisite authorization for the

Tax Court to entertain a § 1983 action and to award the full range of

remedies available in such an action, including compensatory and punitive

damages. However, the trial court did not have the opportunity to pass

| upon the effect of this new legislation and the parties have not even cited

N.J.S.A. 2B:13-2 in their appellate briefs. Furthermore, this legislation

does not provide for the transfer to the Tax Court of pending actions

which were beyond the Tax Court’s jurisdiction under the former N.J.S.A.

| 2A:3A-3 and N.J.S.A. 2A:3A-4. 1(a) but are now subject to its jurisdiction

under N.J.S.A. 2B:13-2. Compare N.J.S.A. 2A:3A-26, part of the

legislation creating the Tax Court, which transferred all cases then

pending in the former Division of Tax Appeals to the Tax Court.

Therefore, our decision is based solely on the legislation which governed

the Tax Court’s jurisdiction at the time of the trial court’s decision. See

Sutherland Stat. Const. § 41.08 (Sth ed. 1993) (“[C]ourts do not favor

interpretations of jurisdictional statutes which give them retroactive

effect.”).

We note that even if N.J.S.A. 2B: 13-2 were applicable to this action,

the only consequence would be that the Tax Court judge to whom we have

ordered the case assigned would hear the matter as a Tax Court rather

than a Superior Court judge. We also note that the validity of defendants’

| argument that a § 1983 action for an alleged violation of federal constitu-

tional rights relating to a tax assessment is not maintainable in a state

court, discussed on pp. 459-63 of this opinion, does not turn on the scope

of the Tax Court’s jurisdiction as a matter of state law.

ii iii kei en aes one ea

2la

assessment is not maintainable in a state court if the state provides

a “plain, speedy and efficient” remedy for the erroneous assess-

ment. See, e.g., Zizka v. Water Pollution Control Auth. , 490 A. 2d

509, 513-14 (Conn. 1985); Vann v. DeKalb County Bd. of Tax

Assessors, 367 S.E.2d 43 (Ga. App. 1988); Stufflebaum v.

Panethiere, 691 S.W.2d 271 (Mo. 1985); State v. Quill Corp. , 500

N.W.2d 196 (N.D.), cert. denied, _-: U.S. __s, 114. S.C. 173,

126 L. Ed. 2d 132 (1993); Linderkamp v. Bismarck Sch. Dist. No.

1, 397 N.W. 2d 76 (N.D. 1986); L.L. Bean v. Bracey, 817 S.W.

2d 292, 294-97 (Tenn. 1991). These cases are based upon the

Federal Anti-Injunction Act, 28 U.S.C.A. § 1341, which provides

that “[t]he [federal] district courts shall not enjoin, suspend or

restrain the assessment, levy or collection of any tax under State

law where a plain, speedy and efficient remedy may be had in the

courts of such State,” and the Supreme Court’s holding in Fair

Assessment in Real Estate Ass’n v. McNary, 454 U.S. 100, 116,

102 S.Ct. 177, 186, 70 L. Ed. 2d 271, 283 (1981) that even when

§ 1341 does not directly apply, “taxpayers are barred by the

principle of comity from asserting § 1983 actions against the

validity of state tax systems in federal courts.” These cases reason

that although § 1341 and McNary only impose limitations upon the

power of federal district courts, “a § 1983 challenge which could

not be brought in federal court should not be allowed in a state

court,” in order to maintain uniform results in federal and state

courts. Linderkamp v. Bismarck Sch. Dist. No. 1, supra, 397

N.W.2d at 78-79.

We reject this reasoning and hold that neither the Tax

Injunction Act nor the comity rationale of McNary apply to a §

1983 action in state court. The Tax Injunction Act only limits the

authority of a federal district court to grant injunctive relief

regarding the “assessment, levy or collection” of a tax imposed

under state law. It does not in any way limit the power of a state

court. Likewise, nothing in McNary suggests that a taxpayer is

precluded from maintaining a § 1983 action in state court based on

a State tax official’s alleged violation of federal constitutional rights.

To the contrary, the maintainability of a § 1983 action in state

court was an essential premise of the Court’s holding in McNary

that a federal district court should not hear a taxpayer’s § 1983

claims: “Such taxpayers must seek protection of their federal rights

22a

by state remedies, provided of course that those remedies are plain,

adequate and complete, and may ultimately seek review of the state

decisions in this Court.” Fair Assessment in Real Estate v.

McNary, supra, 454 U.S. at 116, 102 S.Ct. at 186, 70 L. Ed. 2d

at 283. In fact, the Court noted that “the Missouri Supreme Court

| has expressly held that plaintiffs such as petitioners may seek a §

1983 claim in state court.” Jd. at 116, 102 S.Ct. at 186, 70 L. Ed.

| 2d at 284, see also Pennhurst State Sch. & Hosp. v. Halderman,

465 U.S. 89, 122, 104 S.Ct. 900, 919, 79 L. Ed. 2d 67, 92 (1984)

(“Challenges to the validity of state tax systems under 42 U.S.C.

§ 1983 ... must be brought in state court.”).

| Moreover, if we were to hold that a § 1983 action is not

| maintainable in a state court solely because an alleged deprivation

of constitutional rights relates to a tax assessment, it would mean

that a tax assessor could engage in a practice of racially discrimina-

tory tax assessments without being subject to personal liability

under § 1983. Since the prevention of racial discrimination by

state officials was the essential reason for the enactment of § 1983,

see Mitchum v. Foster, 407 U.S. 225, 238-242, 92 S.Ct. 2151,

| 2160-62, 32 L. Ed. 2d 705, 715-17 (1972), we are unwilling to

read a limitation into the scope of its operation which would

prevent a state court from granting complete relief, including

compensatory and punitive damages, for such a violation of

constitutional rights.

Our conclusion that a state must provide a forum for a § 1983

action alleging a denial of federal constitutional rights relating to a

tax assessment is supported by the decisions of other state courts,

see, e.g., Beverly Bank v. Board of Review, 453 N.E.2d 96 (ill.

App. 1983), cert. denied, 466 U.S. 951, 104 S.Ct. 2153, 80 L. Ed.

| 2d 539 (1984); Murtagh v. County of Berks, 634 A.2d 179 (1993),

| cert. denied, _ U.S. __, 114 U.S. 1397, 128 L. Ed. 2d 71

(1994), and by scholarly commentaries, Steven H. Steinglass,

Section 1983 Litigation in State Courts § 18.3 at 18-13 to 18-27

(Dec. 1994); Note, Clarifying Comity: State Court Jurisdiction

and Section 1983 State Tax Challenges, 103 Harv. L. Rev. 1888,

1895-1908 (1990). In Murtagh v. County of Berks, supra, the

court stated:

The Tax Injunction Act applies by its very terms to preclude

federal courts, not state courts, from enjoining state tax

——ee

[

;

f -

[

23a

schemes. Therefore, there is no danger of federal court

interference or misunderstanding. Likewise, abstention based

on comity has no application when a section 1983 cause of

action is brought in state courts because there is no risk of

federal court interference.

[634 A.2d at 181-82.]

Professor Steinglass notes:

[R]eliance on the Tax Injunction Act or comity to prohibit use

of § 1983 to challenge state tax policies in state courts takes

doctrines designed to encourage state courts to protect federal

rights and turns them around to limit the power of state

courts.

[Steinglass, supra, § 18.3(a) at 18-17.]

We recognize that the maintenance of a § 1983 action in a

state court, as in a federal district court, may have “chilling effect”

upon a tax assessor’s performance of his official duties and may be

“disruptive of [a state] tax system.” Fair Assessment in Real Estate

Ass’n v. McNary, supra, 454 U.S. at 113, 115, 102 S.Ct. at 184,

185, 70 L. Ed. 2d at 281, 283. However, these dangers are not a

sufficient basis for denying the remedies afforded by § 1983 to a

party whose constitutional rights have been violated. Instead, the

possibility of vexatious use of this kind of litigation can be

substantially ameliorated by effective case management and the

award of counsel fees to defendants in appropriate cases. To

facilitate effective case management and avoid possible conflicting

decisions, a § 1983 action in the Law Division relating to a tax

assessment ordinarily should be assigned to the same Tax Court

judge hearing a related tax assessment appeal. Such an assignment

can be made pursuant to the Chief Justice’s annual order assigning

all Tax Court judges to the Superior Court. See, e.g., 137

N.J.L.J. at 1570 (Aug. 8, 1994).° In addition, the trial judge may

stay proceedings in the § 1983 action until a related tax assessment

3 If the Tax Court now has jurisdiction under N.J.S.A. 2B:13-2 to

entertain a § 1983 action relating to a tax assessment, see n. 2 supra, such

an assignment may be made without reliance upon the Chief Justice’s

order.

24a

appeal has been completed. Cf. Dean v. State, 826 P.2d 1372,

cert. denied, _ U.S. __, 112 S.Ct. 2941, 119 L. Ed. 2d 566

(1992); Nutbrown v. Munn, 811 P.2d 131 (Or. 1991), cert. denied,

502 U.S. 1030, 112 S.Ct. 867, 116 L. Ed. 2d 773 (1992); Hogan

v. Musolf, 471 N.W.2d 216 (Wisc. 1991), cert. denied, 502 U.S.

1030, 112 S.Ct. 867, 116 L. Ed. 2d 773 (1992); see generally,

Steinglass, supra, at § 18.3(d).

As previously noted, the Law Division, after ruling that it

lacked jurisdiction over plaintiffs § 1983 claims, nevertheless

proceeded to consider defendants’ immunity claims. Since we

conclude that the Law Division has jurisdiction, we also address the

court’s further holding that defendants enjoy absolute immunity

from suit under § 1983.

“The presumption is that qualified rather than absolute

immunity is sufficient to protect government officials in the

exercise of their duties.” Burns v. Reed, 500 U.S. 478, 487, 111

S.Ct. 1934, 1939, 114 L. Ed. 2d 547, 558 (1991). Consequently,

an official seeking absolute immunity from suit under § 1983

“bears the burden of showing that such immunity is justified for the

function in question.” Jbid. “Not surprisingly,” the Supreme

Court has been “‘quite sparing’ in recognizing absolute immunity

for state actors in this context.” Buckley v. Fitzsimmons, __ U.S.

: , 113 S.Ct. 2606, 2613, 125 L. Ed. 2d 209, 223 (1993)

(quoting Forrester v. White, 484 U.S. 219, 224, 108 S.Ct. 538,

542, 98 L. Ed. 2d 555 (1988).

The threshold question in determining whether an official is

entitled to absolute immunity under § 1983 is whether that

immunity was recognized “at common law when the Civil Rights

Act was enacted in 1871.” Tower v. Glover, 467 U.S. 914, 920,

104 S.Ct. 2820, 2825, 81 L. Ed. 2d 758, 765 (1984). The

prevailing view in the nineteenth century was that tax assessors

enjoyed only qualified rather than absolute immunity from suit.

See, e.g., Bailey v. Berkey, 81 F. 737, 738 (N.D.Cal.1897)

(“[T]he greater and better weight of authority supports the doctrine

that while assessors are not liable to private suits for mere errors

or mistakes of judgment ..., they will be held liable in damages for

making an excessive assessment with a malicious, corrupt, or other

eee

25a

sinister motive.”); Ballerino v. Mason, 23 P. 530, 530 (1890)

(county assessor not liable for property assessment in absence of

allegation that “he acted maliciously, or with intent to wrong or

injure the owner”); Rowe v. Friend, 38 A. 95, 96 (1897) (statute

accords tax assessors immunity except for want of “personal

faithfulness or integrity”); E. & T. Fairbanks & Co. v. Kittredge,

24 Vt. 9, 12 (1850) (“listers” that act as property appraisers and

assessors incur no personal liability unless “actuated by malice”).

Therefore, defendants have not established the firmly recognized

immunity at common law required to support a claim of absolute

immunity from suit under the Federal Civil Rights Act.

The trial court nevertheless concluded that a tax assessor is

entitled to absolute immunity under § 1983 because he acts as “an

arm of the legislature,” thus qualifying for the absolute immunity

of a legislator, see Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct.

783, 95 L.Ed. 1019 (1951), and uses “his own independent

judgment,” thereby qualifying for the absolute immunity of a judge

and other officials who act in a quasi-judicial capacity; see Pierson

v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L. Ed. 2d 288 (1967).

However, a tax assessor’s responsibilities are neither legislative nor

judicial in nature and hence neither of these immunities applies.

Legislative immunity only extends to official acts which are

both “‘procedurally’ legislative, that is, passed by means of

established legislative procedures,” and “‘substantively’ legisla-

tive,” that is, acts “which involve policy-making decision[s] of a

general scope.” Ryan v. Burlington County, 889 F.2d 1286,

1290-91 (3rd Cir.1989); accord Acierno v. Cloutier, 40 F.3d 597,

610-12 (3d Cir.1994). The assessment of plaintiff's property did

not satisfy either of these tests because it did not involve public

debate or a majority vote by a multi-member body, and it applied

solely to plaintiff. Although a tax assessor performs official duties

pursuant to legislative standards, the same is true of other executive

officials who perform administrative functions beyond the protec-

tive umbrella of absolute legislative immunity. See, ¢.g.,

Cleavinger v. Saxner, 474 U.S. 193, 106 S.Ct. 496, 88 L. Ed. 2d

507 (1985) (prison disciplinary committee members); Wood v.

Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L. Ed. 2d 214 (1975)

(school board members); Scheuer v. Rhodes, 416 U.S. 232, 94

26a

S.Ct. 1683, 40 L. Ed. 2d 90 (1974) (state executive officials,

including governor and university president).

Judicial immunity only extends to the process of “resolving

disputes between parties who have invoked the jurisdiction of a

court,” Forrester v. White, supra, 484 U.S. at 227, 108 S. Ct. at

544, 98 L. Ed. 2d at 565 (1988), or a quasi-judicial tribunal

performing an analogous function. Butz v. Economou, 438 U.S.

478, 511-14, 98 S.Ct. 2894, 2913-15, 57 L. Ed. 2d 895, 919-21

(1978). A tax assessment does not involve any of the usual

hallmarks of an adjudicatory proceeding; there is no presentation

of evidence by affected parties, examination or cross-examination

of witnesses, or findings of fact and conclusions of law. Instead,

a tax assessor acts unilaterally based on his own examination of

properties and public records in much the same fashion as executive

officials who review applications for licenses and permits.

Our conclusion that tax assessors are not entitled to absolute

immunity from suit under § 1983 is also supported by the decisions

of other courts. In Fulton Mkt. Cold Storage Co. v. Cullerton, 582

F.2d 1071, 1080 (7th Cir. 1978), cert. denied, 439 U.S. 1121, 99

S.Ct. 1033, 59 L. Ed. 2d 82 (1979), the court held that a tax

official would be liable for damages under § 1983 “if he violated

the plaintiff's clearly established constitutional rights intentionally

or with reckless disregard of those rights.” The court also stated

that “[qJuite clearly, if a county or state tax official intentionally

and unjustifiably raised an individual’s property tax assessment

merely because of the individual’s race, ethnic background or

political affiliation, the official could be liable for damages under

§ 1983 for the misuse of his authority.” Jd. at 1079. Similarly, in

Werch v. City of Berlin, 673 F.2d 192, 195 (7th Cir. 1982), the

court indicated that municipal officials exercising taxing authority

were entitled to “qualified immunity.” See also Ludwin v. City of

Cambridge, 592 F.2d 606, 610 n.1 (ist Cir. 1979).

Since the absolute immunity of defendant Chaiken, the

consultant retained by Linden to assist in the assessment of

plaintiff's property, was derivative of the tax assessor’s claimed

absolute immunity, see Dennis v. Sparks, 449 U.S. 24, 101 S. Ct.

183, 66 L. Ed. 2d 185 (1980), which we have now rejected, we

also conclude that the trial court erred in dismissing plaintiff's §

1983 claim against Chaiken on the basis of absolute immunity.

27a

The tax assessor argues in the alternative that even if he does

not have absolute immunity from suit under § 1983 for any action

relating to an assessment, the summary judgment in his favor

should be affirmed on the ground of qualified immunity. However,

the trial court did not pass upon this argument. Although the court

stated in a single conclusionary sentence in its written decision of

February 22, 1993, that “even if this suit were maintainable

because Frangella and Chaiken had only qualified immunity, this

court is of the opinion that the plaintiff's proofs are nevertheless

woefully inadequate and could not sustain a cause of action,” the

court subsequently characterized this statement as “dicta, unneces-

sary to its holdings which rested on legal insufficiency,” that is, the

court’s lack of jurisdiction, and defendants’ absolute immunity,

rather than “factual insufficiency.” Therefore, although the

individual defendants may be entitled to prevail on the basis of

qualified immunity, we do not believe that this court should decide

the availability of this defense summarily without the trial court

first reviewing the relevant evidence. The trial court’s consider-

ation of this defense should be governed by the principles set forth

in Harlow v. Fitzgerald, 457 U.S. 800, 815-19, 102 S.Ct. 2727,

2736-38, 73 L. Ed. 2d 396, 408-11 (1982), Mitchell v. Forsyth,

472 U.S. 511, 526, 105 S.Ct. 2806, 2816, 86 L. Ed. 2d 411, 425

(1985), Malley v. Briggs, 475 U.S. 335, 344-45, 106 S. Ct. 1092,

1098, 89 L. Ed. 2d 271, 280-81 (1986) and Anderson v. Creighton,

483 U.S. 635, 639-40, 107 S.Ct. 3034, 3038-39, 97 L. Ed. 2d 523,

530-31 (1987); see also Kirk v. City of Newark, 109 N.J. 173

(1988).

We turn next to plaintiff's § 1983 claim against Linden.

Although a municipality may not be held vicariously liable under

the doctrine of respondeat superior for a claim under § 1983, it

may be liable for a violation of constitutional rights committed by

one of its officers or employees pursuant to official policy. Monell

v. New York City Dept. of Social Servs., 436 U.S. 658, 98 S.Ct.

2018, 56 L. Ed. 2d 611 (1978). The Supreme Court in a plurality -

opinion identified “several guiding principles” to determine whether

a deprivation of constitutional rights by a municipal official or

employee was committed pursuant to municipal policy:

28a

First, ... municipalities may be held liable under § 1983 only

for acts for which the municipality itself is actually responsi-

ble, “that is, acts which the municipality has officially

sanctioned or ordered.” Second, only those municipal

officials who have “final policymaking authority” may by

their actions subject the government to § 1983 liability.

Third, whether a particular official has “final policymaking

authority” is a question of state law. Fourth, the challenged

action must have been taken pursuant to a policy adopted by

the official or officials responsible under state law for making

policy in that area of the city’s business.

[St. Louis v. Praprotnik, 485 U.S. 112, 123, 108 S.Ct. 915,

924, 99 L. Ed. 2d 107, 118 (1988) (quoting Pembaur v.

Cincinnati, 475 U.S. 469, 480, 483, 106 S.Ct. 1292, 1298,

1300, 89 L. Ed. 2d 452, 463, 465 (1986) (Brennan, J.,

plurality opinion).]

The Court also indicated that “an unconstitutional governmental

policy [may] be inferred from a single decision taken by the highest

officials responsible for setting policy in that area of the govern-

ment’s business.” Jd. at 123, 108 S.Ct. at 924, 99 L. Ed. 2d at

117; accord Pembaur v. Cincinnati, supra, 475 U.S. at 480, 106

S.Ct. at 1298, 89 L. Ed. 2d at 464.

A tax assessor’s deprivation of constitutional rights in

assessing property may be found to constitute the official policy of

the municipality which appointed the assessor. N.J.S.A. 54:4-23

confers plenary authority upon a tax assessor to “determine the full

and fair value of each parcel of real property situate in the taxing

district” and to “compute and determine the taxable value of such

real property at the level established for the county pursuant to

law.” After the assessor makes an assessment, the municipality

collects taxes based on that assessment and defends the assessment

on any appeal to the county board of taxation or Tax Court. Thus,

for purposes of property tax assessments, the acts of the tax

assessor are the acts of the municipality. Consequently, a tax

assessor has “final policymaking authority” with respect to

municipal tax assessments and his violation of federal constitutional

rights in making a tax assessment would constitute “a policy

adopted by the official ... responsible under state law for making

policy in that area of the city’s business.” St. Louis v. Praprotnik,

ery 2 me ele

;

’

29a

supra, 485 U.S. at 123, 108 S.Ct. at 924, 99 L. Ed. 2d at 118.

Moreover, plaintiff has alleged that the Mayor of Linden, the

municipality’s chief executive official, participated in the violation

of its constitutional rights. Therefore, the trial court erred in

dismissing plaintiff's complaint against Linden.

We turn finally to plaintiff's common law negligence claim

against Chaiken, the professional real estate appraiser retained by

Linden to assist its tax assessor in valuing plaintiff's property. The

Tort Claims Act confers broad immunity upon public entities and

public employees from liability for their actions relating to the

assessment and collection of taxes:

Neither a public entity nor a public employee is liable

for an injury caused by:

a. Instituting any judicial or administrative proceed-

ing or action for or incidental to the assessment or collection

of a tax.

b. An act or omission in the interpretation or

application of any law relating to a tax.

[N.J.S.A. 59:7-2.]

Therefore, plaintiff could not maintain a tort action against either

the tax assessor or Linden for negligence in the assessment of its

property. Instead, plaintiff's only remedy to correct an error in its

assessment would be an appeal to the Union County Board of

Taxation or the Tax Court. N.J.S.A. 54:3- 21.

Although the Tort Claims Act does not directly apply to

Chaiken because he is not a public employee, N.J.S.A. 59:1-3, the

same policy considerations which underlie the immunity provided

by N.J.S.A. 59:7-2 also preclude a taxpayer from maintaining a

negligence action against an outside consultant retained by a taxing

authority to assist in a property appraisal. Our courts have

recognized that the negligent performance of contractual services

may provide a basis for tort liability to a third party. See, e.g.,

Rosenblum v. Adler, 93 N.J. 324 (1983). However, before a court

recognizes such a cause of action, it must weigh “the relationship

of the parties, the nature of the risk, and the public interest in the

proposed solution.” Jd. at 341 (quoting Goldberg v. Housing Auth.

30a

of Newark, 38 N.J. 578, 583 (1962)). When contractual services

are performed for a governmental entity which is itself immune

from tort liability for that activity, the courts should proceed with

particular caution in recognizing a cause of action against a private

contractor which may undermine the governmental immunity. C7.

Vanchieri v. New Jersey Sports & Exposition Auth. , 104 N.J. 80,

85 (1986) (“[I]ndependent contractors do, under well-recognized

principles, share to a limited extent the immunity of public entities

with whom they contract.”); see also Ornes v. Daniels, 278 N.J.

Super. » (App. Div. 1994) (slip op. at 5-7).

A taxpayer has a readily available and adequate means of

correcting an erroneous tax assessment by appealing to the county

board of taxation and the Tax Court. N.J.S.A. 54:3-21; see Union

City Assoc. v. City of Union, 115 N.J. 17 (1989). Indeed, that is

a taxpayer’s only remedy when an assessor makes an assessment

without the assistance of an outside appraiser. Consequently, a

taxpayer has no substantial need to maintain a tort action against a

private appraiser. On the other hand, the consultants who perform

these kinds of services and the public entities which retain them

have a substantial interest in maintaining immunity from suit

outside the framework of normal tax appeals. A municipality’s tax

assessments involve numerous properties and very substantial

amounts of money. Consequently, if outside consultants who assist

in the performance of this duty were subject to suit for negligence,

their exposure would be substantial. This undoubtedly would cause

such experts to increase the fees they charge to municipalities,

thereby increasing the cost of municipal tax assessments and also

| discouraging municipalities from using outside experts in circum-

| stances where their services may be needed. Therefore, the trial

court correctly held that a taxpayer may not maintain a tort action

| against an appraiser who is negligent in advising a tax assessor as

| to the value of a taxpayer’s property.

Accordingly, we affirm the dismissal of plaintiff's common

law negligence claim against Chaiken, but reverse the dismissal of

plaintiff's § 1983 claims. Defendants’ cross appeals are dismissed.

We remand to the Law Division for further proceedings in

conformity with this opinion and direct that the case be assigned to

the Tax Court judge who is hearing plaintiff's tax assessment

appeals.

< A PLLA SRM eh tee PAL EP AP REED POR ALA REO L OLE. EMIT avy Be TE AE Bo ye aaa.

3la

APPENDIX C

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE COMMITTEE ON OPINIONS

SUPERIOR COURT OF NEW JERSEY

LAW DIVISION - UNION COUNTY

CIVIL ACTION

DOCKET NO. UNN-L-012188-87

GENERAL MOTORS CORP.,

Plaintiff(s),

- VS - OPINION

CITY OF LINDEN, RICHARD

CHAIKEN, et al.,

Defendant(s).

DECIDED: FEBRUARY 22, 1993

JOHN E. GARIPPA, ESQ., for the plaintiff, (Garippa & Trevenen,

P.C., attorneys; JOHN E. GARIPPA, PHILIP J. GIANNUARIO,

CHARLES E. BROWN and HOWARD FRIEDLAENDER, on the

brief).

CARL GREENBERG, ESQ., for defendants, the City of Linder

and Emanuel F. Frangella, (Budd, Larner, Gross, Rosenbauin,

Green & Sade, P.C., attorneys; CARL GREENBERG, DONALD

P. JACOBS, ALAN S. PRALGEVER and ROBERT E. BREN-

NER, on the brief).

MICHAEL H. COHEN, ESQ., for the defendant, Richard M.

Chaiken, (Morgan, Melhuish, Monaghan, Arvidson, Abrutyn &

Lisowski, attorneys; MICHAEL H. COHEN on the brief, JOSEPH

DE DONATO of counsel).

MENZA, J.S.C.

The defendants move for summary judgment.

There are two important and novel questions involved in this

case. The fast is whether a claim alleging a violation of the Civil

Rights Act, 42 U.S.C.A. § 1983, based on a discriminatory tax

32a

assessment, may be brought in the Superior Court. The second

question is whether a tax assessor is immune from liability for an

improper tax assessment.

The plaintiff, General Motors Corporation, owns and operates

an automobile assembly plant in the City of Linden. In the years

§ 1983 to 1988, the City of Linden made various adjustments to the

tax assessment on the property which it contends reflected additions

and improvements made by General Motors to its plant facility.

The assessments were imposed by the defendant, Emanuel F.

Frangella, the tax assessor for the City of Linden, based upon the

recommendations of the defendant, Richard Chaiken, an indepen-

dent appraiser hired by the City to assist in the making of tax

assessments. General Motors has appealed these assessments to the

State Tax Court and the matters are now pending in that court.

General Motors also brought this § 1983 action in the

Superior Court, contending that Frangella, Chaiken and the City of

Linden have violated its constitutional rights by imposing a series

of discriminatory tax assessments on its property.

Specifically General Motors contends that the following facts

constitute a violation of its constitutional rights and a basis for a §

1983 claim.

First, General Motors contends that in 1985 its predecessor in

title, Gordon’s Gin, negotiated a settlement with the City of Linden

subsequent to the sale of its facility to General Motors, which

resulted in a reduction of Gordon’s 1984 tax assessment on the

property, reflecting the sales price. General Motors alleges that,

as the new owner, it was entitled to the benefit of the new assess-

ment, but that the City refused to reduce its assessment to the

amount to which the City had-agreed with Gordon’s Gin.

Second, General Motors contends that the city of Linden

refused to give it an exemption to which it was entitled for a waste

water facility located on its property for the years 1986 through

1988.

General Motors further alleges that it was treated in a

discriminatory manner with respect-to an added assessment imposed

in 1986 after its facility was gutted and remodeled. According to

General Motors, the new assessment was based on certain improve-

ments which had already been considered in the prior assessment

I ecesetiniadenaiaiateiaaaidiiaiaiiaiaiiaiil

33a

in 1985. Furthermore, General Motors alleges that the method

utilized by Chaiken in calculating the assessment was arbitrary, and

violated professional standards and ethical rules established for tax

assessors.

General Motors also contends that no other property in the

City was reevaluated when its facility received a new assessment

and that this clearly demonstrates that it was improperly singled out

by the City.

Finally, General Motors alleges that the City’s Mayor, at a

1989 meeting with General Motors representatives, stated that

“[t]he additional increased assessment was placed on the General

Motors’ plant because you filed the tax appeal.” This statement,

General Motors contends, is proof of a conspiracy by municipal

officials to treat General Motors in a discriminatory manner,

thereby violating its constitutional rights and giving rise to a claim

under the Civil Rights Act.

The defendants, Frangella, Chaiken, and the City of Linden,

now move for summary judgment contending that General Motors

is prohibited from bringing a § 1983 action in the Superior Court

and that in the alternative, the defendants, Frangella, the tax

assessor, Chaiken, the independent appraiser, and the City, are

immune from suit.

THE SECTION 1983 CLAIM

There are no New Jersey cases which have addressed the

question of whether a taxpayer aggrieved by a property tax

assessment may bring a § 1983 civil rights claim in the Superior

Court.

There is, however, one Law Division case which permitted a

§ 1983 claim for an improper sewer tax assessment to be brought

in the Superior Court.

In Bung’s Bar & Grille, Inc. v. Florence Tp. , 206 N.J. Super.

432 (Law Div. 1985), the plaintiffs, who had successfully chal-

lenged a local sewer improvement assessment in the Superior

Court, moved for summary judgment on their claim for counsel!

fees and costs under the Civil Rights Act. The court held that the

34a

plaintiffs, § 1983 claims were cognizable in the Superior Court and

granted the requested relief.

General Motors relies on this case as authority for the

proposition that it may bring a § 1983 action in the Superior Court

for a discriminatory property tax assessment while the appeal of

that assessment is pending in the Tax Court. Its reliance is

misplaced. In Bung’s, the plaintiffs’ challenge to the sewer

improvement assessment was made in the Superior Court because

the Superior Court was the only court in which such a challenge

| could be made. See N.J.S.A. 40:56-54. Since the Tax Court had

no jurisdiction to hear the matter in the first place, there was no

other forum but the Superior Court which could afford the

taxpayers in Bung’s a “plain, speedy and efficient remedy” on their

claim of an improper sewer improvement assessment. The Bung’s

decision is therefore inapplicable to the issue of whether General

Motors’ § 1983 claim is cognizable in the Superior Court.

Since there are no New Jersey cases which address the issue

now before the court, the court has made reference to the Federal

Tax Injunction Act to assist it in its analysis.

The Tax Injunction Act prohibits a federal court from hearing

a § 1983 case involving a tax matter where there exists a speedy

and efficient remedy in the state courts:

The district courts shall not enjoin, suspend or restrain

the assessment, levy or collection of any tax under State law

where a plain, speedy and efficient remedy may be had in the

courts of such State.

[28 U.S.C.A. § 1341.]

In the case of Fair Assessment in Real Estate v. McNary, 454

U.S. 100, 102 S.Ct. 177, 70 L.Ed. 2d 271 (1981), the Supreme

Court explained the applicability of the Tax Injunction Act to

§ 1983 claims brought in the federal courts. In Fair Assessment,

taxpayers brought suit in federal district court under 42 U.S.C.A.

§ 1983, alleging that various government entities had deprived them

| of due process of law by the unequal taxation of their property and

sought damages in the amount of the overassessment, as well as

punitive damages and expenses. The Supreme Court found that the

Act applied to claims for compensatory and punitive damages as

well as to claims for injunctive relief, and held that the plaintiffs

35a

were barred from bringing a § 1983 action in federal court, because

they had a plain, adequate and complete remedy in the courts of the

State of Missouri.

The Supreme Court, quoting from the opinion of the district

court, stated:

To allow such suits would cause disruption of the states’

revenue collection systems equal to that caused by anticipatory

relief. State tax collection officials could be summoned into

federal court to defend their assessments against claims for

refunds as well as prayers for punitive. damages, merely on

the assertion that the tax collected was willfully and malicious-

ly discriminatory against a certain type of property. Allow-

ance of such claims would result in this court being a source

of appellate review of all state property tax classifications.

[Id. at 114, 102 S.Ct. at 185, 70 L.Ed. 2d at 282 (citations

omitted). ]

The Court noted that the doctrine which originated in the case

of Monroe v. Pape, 365 U.S. 1671 81 S.Ct. 473, 5 L.Ed. 2d 492

(1961), states that a plaintiff challenging the constitutionality of

state action is not barred by the principles of comity from bringing

a § 1983 claim in the federal court. The Court went on to say,

however, that:

... despite the ready access to federal courts provided

by Monroe and its progeny, we hold that taxpayers are barred

by the principle of comity from asserting § 1983 actions

against the validity of state tax systems in federal courts.

Such taxpayers must seek protection of their federal rights by

state remedies, provided of course that those remedies are

plain, adequate, and complete, and may ultimately seek

review of the state decisions in this Court.

(Id. at 116, 102 S.Ct. at 186, 70 L.Ed. 2d at 283 (footnote

omitted). ]

Although the Tax Injunction Act limits only the jurisdiction of

the federal courts, the few state courts which have addressed this

issue have applied the Act’s comity rationale to prohibit § 1983

actions in state court where a plain and adequate remedy exists for

an aggrieved taxpayer in the tax appeal process.

36a

In Vann v. DeKalb Cty. Bd. of Tax Assessors, 367 S.E.2d 43

(Ga. App. 1988), the plaintiff brought a § 1983 action in the

Georgia Superior Court while his property tax appeal was in

progress, alleging that the tax assessor’s method of property tax

appraisal violated his rights under the Georgia Constitution. The

court dismissed the § 1983 action holding that those constitutional

issues could be addressed in the statutory tax appeal process which

provided the plaintiff with a plain and adequate remedy for his civil

rights claims. The court stated:

This case clearly involves the conduct of county tax

agents occurring in direct implementation of an established

county ad valorem tax procedure. However, the Supreme

Court consistently has recognized that cases involving the

constitutional challenge to the collection of state taxes are of

a special class. Certainly, such cases usually necessitate

“quick action by the State” and its taxing entities and agents

to avoid substantial jeopardy to the state’s overall financial

structure. In Backus v. Chilivis, 236 Ga. 500, 224 S.E.2d

370, the Georgia Supreme Court recognized these consider-

ations and stated “[t}he overriding interests of the state in an

efficient, expeditious and nondisruptive resolution of ad

valorem tax disputes would be seriously impaired, if not

destroyed, by the allowance of [42 U.S.C.A. § 1983] suits.”

The court then concluded that a § 1983 claim is not available

under Georgia law where the defendants are county taxing

authorities and the basis of the claim is unequal or nonuniform

imposition of ad valorem taxation.

[/d. at 47 (citations omitted). ]

The court concluded that since the “linchpin” to the taxpayer’s

§ 1983 claim was the alleged nonuniform and unequal appraisal

procedure, the § 1983 claim was not cognizable. Jbid.

In Zizka v. Water Pollution Control Authority, 490 A.2d 509

(Conn. 1985), property owners brought a § 1983 claim in the

Connecticut Superior Court alleging that the defendant’s sewer

assessment violated their constitutional rights. The Connecticut

Supreme-Court held that the existence of an adequate state remedy

in the nature of administrative proceedings barred the plaintiffs’

claim for declaratory and monetary relief under 1983.

37a

In reaching its decision, the court turned to the federal Tax

Injunction Act for guidance. The court stated:

Although § 1341 does not operate as a jurisdictional

barrier in state courts, it nonetheless points the way to the

proper standard by which state tax challenges should be

measured. In a § 1983 suit seeking relief from the collection

of state taxes, we may impose limitations that, like those of

§ 1341, inquire into whether the claimants have afforded a

statutory remedy that is “plain, speedy and efficient.”

(Id. at 513-514.]

The Zizka court took note of the fact that the federal court had

already determined that the Connecticut procedure for tax appeals

provided by C.G.S.A. § 7-250 provided a plain, speedy and

efficient remedy which barred a § 1983 claim in federal court under

the Tax Injunction Act. The Zizka court likewise concluded that

the existence of that remedy foreclosed the plaintiff's § 1983 claims

in an action brought in state court:

Since the General Assembly has fashioned an

exclusive adequate remedial system for challenging excessive

sewer assessments, we see no need to subject state tax

collectors to state actions brought under § 1983.

[Ibid]

The rationale of the aforementioned cases suggests that

General Motors should be precluded from bringing this action in

the Superior Court if the State of New Jersey provides a remedy

which is adequate, speedy and efficient.

Does the New Jersey Tax Court afford an aggrieved taxpayer

a “plain, speedy and efficient” remedy for an improper property

tax assessment so as to bar the bringing of a § 1983 claim in the

Superior Court?

General Motors has appealed its tax assessments for the

Gordon’s Gin facility, and for the 1986 added assessment. Those

matters are now pending before the Tax Court.’ The relief the

' General motors also plans to appeal the City’s denial of the tax

exemption for the waste water facility.

38a

plaintiff seeks in the Tax Court is a reassessment of its property

and a lowering of its tax obligations. In this § 1983 suit, it also

seeks a lowering of its assessment and a return of monies it claims

are due to it for overassessment. In addition, it seeks punitive

damages and costs under the authority of the Civil Rights Act —

relief it claims cannot be granted to it by the Tax Court.’ Thus,

General Motors argues that the Tax Court cannot provide an

adequate remedy for the improper assessment.

The Tax Court was established by statute, N.J.S.A. 2A:3A-1

et. seq., on July 1, 1979, pursuant to the New Jersey Constitution

which authorizes the establishment of courts of limited jurisdiction.

N.J. Const. art. V1, § 1, par. 1.

The statute provides in pertinent part:

The tax court shall be a court of record, having a seal

and shall have jurisdiction to hear and determine all tax

appeals of such character as now are taken to and heard and

determined by the Division of Tax Appeals in the Department

of the Treasury. Practice and procedure in the tax court shall

be as provided by rules of the Supreme Court.

[N.J.S.A. 2A:3A-3.]

The statute further provides that:

a. The tax court, in all causes within its jurisdiction,

and subject to law, may grant legal and equitable relief so that

all matters in controversy may be completely determined.

b. The tax court shall hear and determine all issue of

fact and of law de novo.

[N.J.S.A. 2A:3A-4].

? It is to be noted that the burden of proof in the Tax Court is different

than that in the Superior Court. In the Tax Court, the plaintiff has the

burden to overcome the presumption of validity of the tax assessment,

whereas in the Superior Court the plaintiff has the burden of proving its

case by a preponderance of the evidence. Schmertz v. Dover Tp., 4 N.J.

Tax 145, 151 (Tax 1982), (citing Riverview Gardens v. North Arlington,

9 N.J. 167 (1952)).

ie caf a aa ame

39a

Appeals from the Tax Court may be taken to the Appellate

Division of the Superior Court. N.J.S.A. 2A:3A-10. Finally, the

statute expressly provides that the Act “shall be liberally construed

to effectuate the purpose and intent thereof.” N.J.S.A. 2A:3A-29.

The nature and power of the Tax Court has been synopsized

in Weisbrod v. Township of Springfield, 1 N.J. Tax 583, 588 (Tax

1980), where the court held that:

The Tax Court is a court of record, having a seal, and its

practices and procedures are as provided by the rules of the

Supreme Court. It may grant legal and equitable relief so that

all matters in controversy may be determined. Its judges are

appointed by the Governor with the advice and consent of the

Senate. Its presiding judge is appointed by and is subject to

the supervision of the chief Justice. The term of office is co-

extensive with judges of the Superior Court, and Tax Court

judges can be impeached in the same manner as Superior

Court judges. Further, the Tax Court may compel obedience

to its process, orders, judgments and sentences in contempt,

as fully and amply as the Superior Court. (citations omitted).

New Jersey Court Rule 8:2 sets forth the Tax Court's review

jurisdiction:

(a) General Jurisdiction. The Tax Court shall have initial

review jurisdiction of all final decisions including any act,

action, proceeding, ruling, decision, order or judgment

including the promulgation of any rule or regulation of the

County Board of Taxation, the Director of the Division of

Taxation, any other state agency or officer (including the

Director of the Division of Motor Vehicles) with respect’ to

a tax matter, or a county recording officer with respect to the

realty transfer tax. The Tax Court shall have initial jurisdic-

tion to review those local property tax assessments whose

review is sought pursuant to N.J.S.A. 54:51A-2 (direct review

to the Tax Court of certain appeals).

The tone of the statute and court rule along with the plain

language of the statute which gives to the Tax Court authority to

“grant legal and equitable relief so that all matters in controversy

may be completely determined” make it clear that the legislature

40a

intended to give the Tax Court broad jurisdiction over all claims

pertaining to tax assessments.

Although there are no New Jersey cases which have specifical-

| ly stated that the Tax Court has jurisdiction over § 1983 constitu-

tional issues arising out of a tax appeal several cases have hinted

that the Tax Court does indeed have jurisdiction over constitutional

| issues when those issues fall within the “sphere of the Tax Court’s

| subject matter jurisdiction.”

In Weisbrod, supra, the defendant contended that the Tax

| Court did not have jurisdiction to pass upon the constitutionality of

| the Condominium Act, N.J.S.A. 46:8B-1 et. seq. The court

disagreed and held that it had such jurisdiction because:

... the Tax Court has the judicial power to pass upon the

constitutionality of a statute where that statute is properly

within the sphere of the Tax Court’s subject inatter jurisdic-

tion.

{1 N.J. Tax at 590.)

In Alid, Inc. v. North Bergen Township, 180 N.J. Super. 592

(App. Div. 1981), the Appellate Division held that the Tax Court

lacked jurisdiction to entertain a proceeding in lieu of prerogative

writ to compel a governing body to exercise a discretionary

function because prerogative writs were not within the Tax Court’s

jurisdiction. But the court stated that, although prerogative writs

were not within its jurisdiction, the Tax Court did have broad

authority to decide any and all matters that fall with the scope of its

authority:

Thus, the Legislature in providing that

the tax court, in all causes within its jurisdiction, and

subject to law, may grant legal and equitable relief so

that all matters in controversy between the parties

may be completely determined

was obviously authorizing the court to grant legal and

equitable relief” only in those cases lying with its statutory

jurisdiction.

[/d. at 601-602. See also Township of West Milford v. Van

Decker, 120 N.J. 354 (1990), (finding the appropriate remedy

——

4la

in a case of “egregious” constitutional violation is “to strike

the township’s assessment.")]

In fact, the court in Vann, supra, recognized that constitu-

tional issues could and should be addressed in the tax appeal

process:

At the outset, we note that appellant’s challenge to the

constitutionality of the board’s methodology for assessing

taxes, in this instance, is inextricably bound to the basic issue

of uniformity of assessment of real property located within the

county.... The question of whether the board of equalization

has the power to resolve relevant constitutional issues in the

course of fulfilling its statutory appeals function has been

conclusively answered in the affirmative by the Supreme

Court of Georgia....

An assessment based upon an unconstitutional method

of property appraisal would not be valid, and appellant has

been deprived, in this instance, of any reasonable opportunity

to challenge the constitutionality of the method used to

determine the fair market value of his property. This type of

issue generates the kind of constitutional question that [Wilkes

v. Redding, 252 Ga. 78, 247 S.E.2d 872] concluded should

be addressed in the statutory tax appeal process.

(367 S.E£.2d at 48 (citations omitted). ]}

Furthermore, since the New Jersey Tax Court has jurisdiction

to hear all claims which arise out of a tax assessment, the entire

controversy doctrine mandates that all of the plaintiff's claims be

heard in the Tax Court.

In Bung’s, supra, Judge Haines noted that New Jersey law

required joinder of the § 1983 claim with the plaintiff's challenge

to the sewer improvement assessment under the entire controversy

doctrine:

We do not merely permit the joinder of diverse claims, we

demand it under the entire controversy doctrine, which

requires all aspects of a controversy to be included in a law

suit. Falcone v. Middlesex Co. Med. Soc., 47 N.J. 92

(1966); R. 4.27-1. The Failure to join a relevant claim may

constitute its abandonment. /d.

42a

[206 N.J. Super. at 461.]

Judge Haines applied the rationale of the entire controversy

doctrine to the litigation of the plaintiffs’ tax claims and concluded

that:

No logic compels the separate consideration of tax claims and

civil rights claims arising from the same factual setting. Nor

does any decision of the United States Supreme Court or of

our courts compel that approach in such cases.

[Ibid.]

It is therefore consistent with New Jersey’s insistence upon the

joinder of diverse claims to require General Motors to bring all

claims arising out of the property tax assessment in the Tax Court.

Finally, if General Motors had instituted its § 1983 action in

federal court, there is no doubt that the suit would have been

dismissed under the Tax Injunction Act because the New Jersey

Tax Court affords a speedy and adequate remedy for the relief

sought by the plaintiff. It would therefore be anomalous to allow

the plaintiff to circumvent the Tax Court, the recognized and

established state procedure, by simply filing a § 1983 claim in the

Law Division of the Superior Court.’

IMMUNITY

The defendants argue that, regardless of whether General

Motors is entitled to bring a claim under § 1983, the defendants are

entitled to absolute immunity and thus are not liable to General

Motors under the Civil Rights Act.

In Monroe v. Pape, 365 U.S. 167, 172, 81 S.Ct. 473, 478, 5

L.Ed. 2d 492, 497 (1961), Justice Douglas, writing for the Court,

held that the purpose of § 1983 of the Civil Rights Act is “to give

> Aside from the question of whether the Tax Court has jurisdiction

over 1983 claims, is the question of whether, under the facts of this case,

the plaintiff may assert a 1983 claim in the first place. In other words,

would a decision of the Tax Court to reassess the plaintiff's property

provide the plaintiff with a sufficient and adequate remedy to his claim of

an improper and incorrect assessment?

43a

a remedy to parties deprived of constitutional rights, privileges, and

immunities by an official’s abuse of his position.” Certain

officials, however, such as judges and legislators, are afforded

absolute immunity from claims and thus are not subject to suit

under the Civil Rights Act.

In Procunier v. Navarette, 434 U.S. 555, 98 S.Ct. 855, 55

L.Ed. 2d 24 (1978), the Supreme Court synopsized the law as to

which government officials are afforded absolute immunity from

§ 1983 claims and which are afforded only Qualified immunity.

Although the Court has recognized that in enacting

§ 1983 Congress must have intended to expose state officials

to damages liability in some circumstances, the section has

been consistently construed as not intending wholesale

revocation of the common law immunity afforded government

officials. Legislators, judges, and prosecutors have been held

absolutely immune from liability for damages under § 1983.

Tenney v. Brandhove, 341 U.S. 367 (1951); Pierson v. Ray,

386 U.S. 547 (1967); Imbler v. Pachtman, 424 U.S. 409

(1976). Only a qualified immunity from damages is available

to a state Governor, a president of a state university, and

officers and members of a state National Guard. Scheuer v.

Rhodes, supra. The same is true of local school board

members, Wood v. Strickland, supra; of the superintendent of

a hospital, O’Connor v. Donaldson, 422 U.S. 563 (1975); and

of policemen, Pierson v. Ray, supra; see Imbler v. Pachtman,

supra, at 418-419.

[/d. at 561, 98 S.Ct. at 859, 55 L.Ed. 2d at 30.]

In New Jersey, judges are afforded immunity by virtue of the

common law, and legislators by virtue of the New Jersey Constitu-

tion, art. 4, § 4, par. 9. Both of these immunities are absolute,

giving judges and legislators when acting within their jurisdiction

and capacity, not only the right to be free from the consequences

of suit, but also the right to be free from the burden of defending

a suit. This immunity is afforded to them regardless of whether

their conduct was the result of a malicious or corrupt motive. See

46 Am. Jur. 2d Judges § 79 (1969).

The reason for this broad immunity is because:

44a

It is generally recognized that public officers and

employees would be unduly hampered, deterred, and intimi-

dated in the discharge of their duties, if those who act

improperly, or even exceed the authority given them, were

not protected to some reasonable degree by being relieved

from private liability. Accordingly, the rationale for official

immunity is the promotion of fearless, vigorous, and effective

administration of policies of government. The threat of suit

could also deter competent people from taking office. Other

public policy considerations which have lead to the policy of

immunity for public officers have been identitied as the drain

and valuable time caused by such actions, the unfairness of

subjecting officials to personal liability for the acts of their

subordinates, and a feeling that the ballot and removal

procedures are more appropriate methods of dealing with the

misconduct of public office.

[63A Am. Jur. 2d Public Officers and Employees § 358 (1984

(footnotes omitted).)

Does a tax assessor have absolute immunity or only a

qualified immunity which subjects him to claims for tax assess-

ments made as a result of a malicious or a corrupt motive?

The answer to the question depends on an analysis of the tax

assessor’s function. If he is considered to be acting in a judicial or

legislative role,, then he is entitled to absolute immunity. If he is

not, then he is entitled to only a qualified immunity.

The defendants contend that the duties of a tax assessor are

akin to that of a judge or legislator and that the tax assessor must

therefore be afforded absolute immunity from suit with regard to

the tax assessments made by him.

General Motors, on the other hand, contends that a tax

assessor acts only in an executive or ministerial capacity, not a

legislative or judicial one, and therefore is entitled to only a

qualified immunity which is destroyed on a showing of a willful or

corrupt motive. It also argues that, even if a tax assessor is

normally considered to act in a quasi judicial or legislative role,

Frangella did not so act in this matter because his role was limited

to hiring the defendant Chaiken and approving his appraisal, and

————————————eeee

45a

that in this role, Frangella acted in an executive or ministerial

Capacity.

There is authority for the contention that a tax assessor has

only qualified immunity.

In American Jurisprudence, the authors state:

Tax assessors are not personally liable at common law

for errors or mistakes in judgment in making an assessment,

even though it is excessive, if it is within their jurisdiction.

So long as they act within the scope of their authority as

defined by statute, they cannot be held liable to persons who

may be injured as the result of the honest exercise of their

judgement and determination, however erroneous their

judgment may be. Further, the assessment of taxes is a quasi-

judicial act, and assessors are protected by the rule that

officers performing duties of a judicial nature cannot be called

to account for their decisions in any other tribunal.

Although there is some authority that the motive of

the assessor in making an excessive assessment is immaterial,

in many jurisdictions the immunity of a tax assessor from

personal liability prevails only when the assessor acts in good

faith. The general rule is that he may be held civilly liable if

he makes an unlawful assessment maliciously or corruptly,

and in some states statutory or constitutional provisions render

the corrupt assessor criminally responsible.

[72 Am. Jur. 2d State and Local Taxation § 1111 (1974)

(footnotes omitted). See also Brown v. Nelson, et al., 197

N.W. 223 (N.D. 1924); Western Union Telegraph Co. v.

Overy, 142 S.E. 509 (S.C. 1927) (holding that a tax assessor

may be subject to suit where he acts corruptly, fraudulently or

maliciously).)]

However, the New Jersey statutes and case law suggest that

a tax assessor, in making property assessments, acts in a quasi

judicial or quasi legislative role.

N.J.S.A. 40A:9-148.1 provides:

A municipal tax assessor... shall have the duty of

assessing property for the purpose of general taxation.

N.J.S.A. 54:4-23 provides:

46a

All real property shall be assessed to the person

owning the same on October | in each year. The assessor

shall...determine the full and fair value of each parcel of real

property situate in the taxing district at such price as, in his

judgment, it would sell for at a fair and bona fide sale by

private contract an October 1 next preceding the date on

which the assessor shall complete his assessments, as hereinaf-

ter required.... For the purposes of assessment, the assessor

shall compute and determine the taxable value oil such real

property at the level established for the county pursuant to

law. (Emphasis added).

In Arace v. Irvington, 75 N.J. Super. 258 (Law Div. 1962),

the court held that a committee appointed by the town’s governing

body did not have the right to question the tax assessor as to the

manner in which he made his assessments. In doing so, the court

articulated the tax assessor’s legislative and quasi judicial role:

The power of taxation is exclusively a legislative

function. Therefore, when assessing property, the assessor

performs a governmental function and acts as an agent of the

Legislature. Pursuant to this power, the Legislature has

created the office of municipal assessor for the purpose of

valuing property for taxation....

The Legislature, in creating the office of tax assessor

has provided with respect to real property that:

The assessor shall * * * determine the full and

fair value of each parcel of real property situate in the

taxing district at such price as, in his judgment, it

would sell for * * *” N.J.S.A. 54:4-23.

The above statute is a directive to the assessors to

exercise independent judgment in valuing real property.

Thus, the assessment of property partakes, in a sense, of a

judicial quality. In exercising the quasi-judicial functions of

his office, the assessor must feel free to make an independent

judgment....

(Id. at 266-267.]

The Arace court concluded that, in exercising his judgement

in valuing real property, the assessor is acting in a quasi-judicial

| |

47a

authority as an agent of the Legislature. Thus, the court concluded

that a tax assessor should be free to exercise his discretion indepen-

dently. The court stated:

The assessor, in his relation to the municipality, is in

much the same position as a magistrate ... In determining

property values, assessors, like judges, should perform their —

duties without fear or favor. Their quasi-judicial duties

should be exercised free of pressure and harassment. To

insure this protection, they should not be called upon to

explain or justify their methods of calculating assessments.

Those who feel aggrieved or discriminated against as a result

of local assessments are provided with a statutory method of

appeal by which their grievances will be heard and deter-

mined .*

[Id. at 269.]

In Ream v. Kuhlman, 112 N.J. Super. 175 (App. Div. 1970),

the court held that a local governing body was not permitted to

reduce the term of a tax assessor to that which is less than the

statutory term fixed by the Legislature, In doing so, the court said:

The reasons for insulating a tax assessor with a fixed

term of office are manifold. His office, an integral part of

our state, county and municipal governments, is chargeable

with the administration of a statutory systems relating to the

levy, assessment and collection of property taxes. He is an

agent of the Legislature and his discretionary judgment is

reviewable only through the administrative and judicial 4

processes provided by law. Although his jurisdiction is local,

his powers and duties are prescribed by the Legislature, and

* It is to be noted however that the court seemed to suggest that a tax

assessor has only a qualified immunity from suit.

The only limitation of the above rule is that the officer not

act from an improper or corrupt motive. Furthermore, the decisions

of the assessor, being quasi-judicial, are not in the absence of fraud

or other violation of the law subject to collateral attack.

[Arace, supra, 75 N.J. Super. at 267).]

48a

it is of paramount importance that the integrity oil his office

be in no way diluted by local interference.

(Id. at 190.)

The statutes which prescribe the qualifications of a tax

assessor and the requirement that he be certified as a condition of

employment also make it clear that it was the intent of the legisla-

ture to make the tax assessor independent and free of the political

arena and its influence by insisting that only a “well-qualified

person” could be appointed a tax assessor. N.J.S.A. 54:1-35.25.

See also Mun. Assessors of N.J. v. Mullica Tp., 225 N.J. Super.

475, 482 (App. Div. 1988) (statutes regulating tax assessor’s duties

were designed to enhance the assessor’s independence).

The preamble to this statute confirms this intent:

WHEREAS, The local property tax is the major

source of revenue in State-local finance in New Jersey; and

WHEREAS, It is certain that the property tax will

remain vitally important to New Jersey in the foreseeable

future; and

WHEREAS, It is essential that the burden of the

property tax be distrib

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