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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386002_1409%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1996
- **Citation:** 519 U.S. 816

## Text

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
7
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

ix

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

x

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

2

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

en

3

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.

4

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).

5

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.

7

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,

8

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.

9

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.

10

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).

11

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.

12

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”).

13

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

14

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.

15

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).

16

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

17

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

18

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).

19

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.

20

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

21

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.

22

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).

23

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).

24

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

la

APPENDIX A

SUPREME COURT OF NEW JERSEY
A-66/109 September Term 1995

GENERAL MOTORS CORP.,
Plaintiff-Respondent,
v.

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).

2a

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.

3a

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.

I

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.

4a

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.

II

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.

5a

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

6a

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

7a

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).

8a

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

9a

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,

Ve

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
H
5
-
£
¥
é

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.

IV

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.

,

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.

ee

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.’

I
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 distributed equitably among the taxpayers in
accordance with the law; and

WHEREAS, it is recognized that no other single
factor is so important in insuring the competent and equitable
administration of the property tax as that the tax assessment
be made by a well-qualified person.

[L.1967. ¢.44.]

In Steward v. Case, 54 N.W. 938 (Minn. 1893) the court
addressed the specific question of whether a tax assessor has
absolute immunity and concluded that he does, expressing this
rationale for its conclusion:

The same reason which justifies the rule of exemption in this
case of judges of courts applies to assessors, when they are
determining the value of property for the purposes of taxation.
Protection is not extended to the judge for his own sake, but
because the public interest requires full independence of action
and decision on his part, uninfluenced by any fear or appre-

49a

hension of consequences personal to himself, except in so far
as he may be accountable to the state for the manner in which
he shall discharge the duties intrusted to him. It is also for
the public interest that assessors, in determining values for
purposes of taxation, should possess the same independence.
If they were liable to have the considerations upon when they
make the valuations impeached at the suit of every dissatisfied
property owner, it is doubtful if men fit to hold the office
could be induced to take it. Upon both reason and authority,
therefore, we hold that the exemption includes assessors in
making assessments to the same extent that it does judges in
exercising their judicial functions. The assessment being
unimpeachable in this action, in contemplation of law the
alleged agreement of combination to make an excessive
assessment, even if in so agreeing defendants were acting
outside their quasi judicial functions, did not result in any
injury to appellant, and without injury the action cannot be
maintained. If there were an overvaluation, the law affords
another remedy.

[Id. at 938-939.]

The statutes and case law make it clear that the role of the tax
assessor encompasses attributes of the legislature and of the
judiciary. He is, on one hand, an arm of the legislature, perform-
ing not merely an administrative function but a legislative one, and
on the other hand, an official directed by statute to use his own
judgment and thereby acting in a quasi-judicial role. Thus, he is
entitled to the same absolute immunity as is afforded to judges and
legislators.

The reason that a legislator has absolute immunity is because
he must be free to speak and act without fear of criminal and civil
liability. Similarly, a judge has absolute immunity because society
must ensure the integrity and independence of the judiciary. These
reasons equally apply to the tax assessor.

There is also a very practical reason why tax assessors must
be afforded absolute immunity and that is because without such
immunity a tax assessor would constantly be subject to suits, forced
to undergo the rigors of the discovery process, and be liable for

50a

damages all on the mere allegation that he had made a discriminato-
ry assessment.

In this regard, the court’s comments ir Anastasio v. Planning
Board of Tp. of West Orange, 209 N.J. Super. 499 (App. Div.
1986), are appropriate. In that case, the Appellate Division held
that planning board members were immune from a § 1983 suit
brought by a developer who was aggrieved by the decision of the
board. In doing so, the court stated:

But there is another and more fundamental reason why
we should not rule that municipal officials are liable for
damages under 42 U.S.C.A. § 1983 merely because a review-
ing court finds their action in rejecting an application for
development under the Municipal Land Use Law was arbitrary
and capricious. Frequently in our law a court on an appeal
from action of a public agency will determine if the agency
acted arbitrarily or capriciously. Accordingly while the words
“arbitrary and capricious” may sound harsh, they are simply
the standard of appellate review in particular cases. Further,
as happened here, New Jersey law granted the victim of such
a mistaken action a complete remedy, so there was no
derivation of any interest, only a delay. if we held that public
officials are liable under 42 U.S.C.A. § 1983 merely for
erroneously exercising power under state law remediable
under state law, public officials in this state on all levels
would face numerous possible claims and indeed would serve
in office at great financial peril.

[Id. at 521-522) (emphasis added).]

It of course must be understood that affording absolute
immunity to a tax assessor in the making of his appraisals and
assessments does not mean that a tax assessor has the authority to
do whatever he wishes. He does, in fact, have someone “looking
over his shoulder.” For example, he is subject to investigation by
the Director of the Division of Taxation with respect to his
methods,’ and he is required to give public notice of his assess-

* When the Director of the Division of Taxation has reason to believe
that any property, including the property of railroad and canal companies,
has been assessed at a rate lower than is consistent with the purpose of

5la

ment list and to give the public an opportunity to inspect it.
N.J.S.A. 54:4-38. And of course, the law provides a taxpayer with
a plain, speedy and efficient remedy for the correction of an
improper tax assessment in the Tax Court. And as with judges and
legislators, he is subject to removal and to criminal prosecution for
improper or unlawful conduct.

In assessing General Motors’ property, the defendant Fran-
gella was clearly acting in his quasi judicial and quasi legislative
capacity. Frangella is thus entitled to absolute immunity.

General Motors also argues that, even if the tax assessor is
immune from suit, immunity does not extend to the defendant
Chaiken, the independent appraiser.

Plaintiff cites as authority for this position the case of Dennis
v. Sparks, 449 U.S. 24, 101 S.Ct. 183, 66 L.Ed. 2d 185 (1980).
In that case, the plaintiff brought a civil rights action against a state
court judge and others who were alleged to have illegally conspired
with the judge to obtain a favorable ruling. The Court dismissed
the claim against the judge, holding that he was absolutely immune
from suit, but held that his immunity did not extend to the co-
conspirators. The Dennis case is distinguishable from the instant
case. In this case, Chaiken was employed by the City to act as its
agent in making property assessments on its behalf. This is a
remarkably different situation from that in which private persons
corruptly conspire with a judge to violate the law and then seek
immunity for that criminal act on the basis that their conspirator
has immunity. There is no evidence in this case that Chaiken
conspired with the tax assessor and the City to discriminate against
the plaintiff. And since his role was that of an agent of the City
and of the tax assessor, logic and common sense would dictate that

securing uniform taxable valuation of property according to law for the
purpose of Taxation, or that the assessment of property according to law
in a taxing district is not in substantial compliance with the law and that
the interests of the public will be promoted by a reassessment of such
property, he may, after due investigation, order or make a reassessment
of any property undervalued or a reassessment of all the property in the
taxing district. N.J.S.A. 54:1-26.

52a

he should be afforded the same absolute immunity from suit for the
same reasons, that immunity is given to the tax assessor.

In the case of Backus v. Chilivis, 224 S.E. 2d 370 (Ga. 1976),
the Georgia Supreme Court held that aggrieved taxpayers could not
bring a § 1983 claim for an alleged unequal assessment against the
company who did the appraisal work on behalf of the county.
Although the court’s decision did not turn on the issue of immuni-
ty, the court did make it clear that an independent tax appraisal
should be accorded the same protection as that given to one
performed by the governmental unit and its employees:

We hold that the procedures provided by Georgia
statutes for resolving ad valorem tax disputes bar taxpayers
from instituting a § 1983 action founded only on the claim
that the assessments are unequal. A complete remedy for
such a defect in a tax digest is already provided by state
law...

This conclusion also leads us to rule against a suit for
damage’s against a private company such as Yoh which has
contracted with the county to do appraisal work needed for the
ad valorem taxation process. Any irregularities in Yoh’s
appraisal work affecting appellants would relate only to the
equality of the tax assessments. Consequently, § 1993 claim
against Yoh for alleged appraisal derelictions in effect seeks
to litigate the failure of the county tax digest to conform to
legal requirements. The essence of such a claim is unequal
taxation. All the persuasive factors mitigating against
permitting § 1983 claims involving c

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386002_1409%3A1. Public record. Not legal advice.