# Petition for Writ of Certiorari — Buchbinder v. Franchise Tax Board of California

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1998
- **Citation:** 525 U.S. 817

## Text

9 VLDL MAY 271998

No.

OFFICE OF THE CLERK

In The
Supreme Court for the United States

October Term, 1997
=

BRUCE BUCHBINDER, et ux.,

Petitioner,

FRANCHISE TAX BOARD, et al.,
Respondent.

+

Petition For A Writ Of Certiorari To The
United States Court Of Appeals
For The Ninth Circuit

=

PETITION FOR WRIT OF CERTIORARI

*

Bruce BucHBINDER

ELAINE BUCHBINDER

1178 Via Ferrari Drive
San Jose, California 95122
(408) 279-4054
Petitioners In Pro Se

tone

QUESTIONS PRESENTED

1. Whether the United States Court of Appeals for the
Ninth Circuit properly affirmed the United States District
Court's order dismissing the action for lack of jurisdiction
where:

(a). the United States District Court failed to discern the
distinction between the jurisdictional issues petitioner raised for
adjudication and issues of constitutionality as perceived by the
court relative to state direct taxation of income, and where the
Tax Injunction Act that barred petitioners’ claims before the
court did not apply to petitioners' persona, the court being
without evidence of a judicial determination that petitioner was
a taxpayer or that there was a tax liability in the instant matter;
and,

(b) the United States Court of Appeals gravely erred by
affirming the lower court's order dismissing the action over the
issue of substantibility, in that the state was a party in interest
to the outcome of the controversy, and in that the outcome of
petitioners’ case in a federal related matter attached to the
instant case, these issues being substantial issues leading to an
issue of violation of petitioners’ Right to due process secured by
the Constitution for the United States of America.

2. Does the arbitrary dismissal of petitioners' cause of action
before the United States District Court and the Ninth Circuit
Court of Appeals constitute a denial of proper due process and
right to meaningful access to the courts, in light of the
circumstances as a whole in the instant case?

3. Is federal jurisdiction proper for a case where the
petitioner has a secured Constitutional Right to due process,
pursuant to Amendment V of the Constitution for the United
States of America, such as in the instant case?

4. In that the Tax Injunction Act and Eleventh Amendment
did not apply to petitioners’ persona, was petitioner justified in
invoking its due process Right under the Constitution for the
United States of America, and raising a Federal Question of due
process right violation in response to state authorities violating
that right, especially when those state authorities have quasi-
judicial, legislative and executive powers, and especially in that
the state authonties are a party in interest to the outcome of the
controversy in the instant matter?

5. Can one Amendment of the Constitution of the United
States of America deny to a citizen, a Right guaranteed under
another Amendment, in a cause of action where the Eleventh
Amendment used to support respondent's motion to dismiss
would deny petitioner of a guaranteed due process Right under
Amendment V, and especially where the Amendment denying
the right did not apply to petitioners’ persona in the first place?

6. Is Statutory Law used to defeat constitutional law in
cases raising federal questions of due process right violations,
such as in the instant case, unconstitutional and of no effect?

7. Is federal jurisdiction proper for a case where issues of
law and fact in a related federal judiciary proceeding are
controlling, in that the state follows federal judiciary outcome in
matters of direct taxation of income, such as in the instant case;
in that respondent defaulted by waiver in the related federal
judiciary proceeding touching the instant case?

8. Does the waiver issue in a related federal case, attach to
the instant case in that the state follows federal judiciary
outcome in matters pertaining to direct taxation of income,
giving the federal judtciary jurisdiction in the matter?

SRF PALLET

«e*

9. Is federal jurisdiction proper for a case raising the waiver
issue, having its nexus in federal judiciary proceedings, properly
denominating such a case for federal subject matter jurisdiction,
such as in the instant case?

10. Is federal jurisdiction proper for a case where federal
law is the basis of the action at the state level, and does this
circumstance constitute a waiver of the Tax Injunction Act 28
U.S.C. 1341 and vice versa relative to 26 U.S.C. 7421; and
where federal law is the basis of state direct taxation of income
is it therefore an exception to 28 U.S.C. 1341?

11. Does the federal judiciary have original jurisdiction
pursuant Article III, Section 2, Clause 1, in such cases as the
instant case, in that the state follows the federal judiciary
outcome in matters of direct taxation of income, creating an
exception to the Tax Injunction Act?

iV
LIST OF PARTIES
Pursuant to Supreme Court Rule 14.1(b), Petitioner lists the

parties to the proceeding in the court below as follows:

Plaintiffs-Appellees

Bruce Buchbinder
Elaine Buchbinder

Defendants-Appellants

Franchise Tax Board, State of California
Board of Equalization, State of California

Table of Contents

Crees Freee ee eae

Table of Authorities. ......
Preliminary Statement

ORE NO 5. ORG os
Bn a tere ee geen Si ery tia ae

Constitutional and Statutory
Provisions Involved. ..... ee ae ge

Statement of the Case 2 ove ss
Reasons for Granting Writ

Concumon oS,

Index of Appendices

A. Ninth Circuit Order Summarily Affirming
District Court's Order Dismissing Action.

B. District Court Order Dismissing Action

A-1
B-1

a

vi

pag tee ee

Table of Authorities
Cases
Page
American Fire and Casualty v. Finn, (1950) 34 U.S.
6, 18; 71 S. Ct. 534; 95 L. Ed. 702; 19 ALR 738. . 14
American Water States Service Co. of California v.
Johnson (1939), 31 Ca 2d 606,88 P2d 770... . 9
Bialack v. Harsh, (1973) 463 F.2d 1185, 1186 (9th Cir.
1972 cert. den. 1973), 409 U.S. 1060, reh. den.
RUD Bi cs ie ee ae es ete iy 14 F
Boyd v. United States, (1886) 116 U.S. 616,635... . 22
Buchbinder v. Commissioner of Internal Revenue,
1145. Ct. GaSe: 126 LB 2660s a Eee {
Cole v. Macfarland, 337 S.W. 2d 453,455,456... . 10
Eisner v. Macomber (1920), 252 U.S. 189 | 8
Fisher v. U.S., (1976) 425 U.S.391 ... ; 13
Griffin v. Matthews, 310 F. Supp. 341, affd. 423
FE ess SP a er et eee oe 14
Haines v. Kerner (1972), 404U.S.519........ |
Lonas v. State 50 Tenn., 287,307 ..... 10
Maine v. Thibutout, (1979) 448 U.S. 1. ierahiys 14
Maxfield's Lessee v. Levy, U.S. 308........ 14
McNutt v. GMAC, (1936) 298 U.S. 178, 189: 56S. Ct.
Te, TO Bs BAO oe a oe ee ea
Merchants Loan and Trust v. Smietanka (1921), 255

> Bp | SEIN eee eg SUR ony en cn 9
Pollock v. Farmers Loan and Trust, 158 U.S 601 8
Price v. Johnson (1948), 344 U.S.266 ...... Pettey
Rosemary Properties (1947), 29C2d677...... 9
Smith v. Richert, 35 F. 3d 300 (7th Cir. 1994) . ‘ 13
Southern Pacific v. Lowe, 247 US 330,335... . 9

Vil

Thompson v. Gaskell, (1942) 315 U.S. 442, 446;
62 S. Ct. 673; 83 L.Ed. 1111 .. |
Thor Electronics, Inc, Cal. St. Bd. of Equal,

a eo) RE ae a ee ea ea fie Leics ape
West Publishing Co. v. McColgam (1946), 27
C2d 705 affd 328 U.S. 823 . .

Constitutional Provisions

Preamble to the Constitution of the United States
Article III

Article IV

Amendment |

Amendment V

Statutes
42 U.S.C Section 1983

The Corporate Excise Tax Act of 1909 (36 Stat
S ch. 11, 12)

Other References

"What Has Happened to Federal Jurisprudence”,
by Albert J. Schweppe, American Bar Association
Journal, Vol XXIV No. 6, June 1938. . .

9

9

ws we

db &

tN

PRELIMINARY STATEMENT

Petitioner Bruce Buchbinder and Elaine Buchbinder, who
are not trained in the complexities of legal practices, hereby
petition for a Writ of Certiorari, to the United States Court of
Appeals for the Ninth Circuit, for the purpose that a supervisory
Opinion may issue from this Honorable Court, reviewing the
actions of the United States District Court, and the United
States Court of Appeals for the Ninth Circuit.

The relief sought results from the subsequent ruling of the
District Court and the Ninth Circuit Court of Appeals, which
have effectively and substantially denied petitioners’
constitutionally protected and secured right to Redress of
Grievance and Due Process.

Additionally this case involves an issue of a waiver filed in
a previous Supreme Court case, Buchbinder v. Commissioner
of Internal Revenue, 114 S. Ct. 696; 126 L.Ed 2d 663, to
which the instant case is related in that the state follows federal
judiciary outcome in such matters, wherein respondent in the
previous case, knowingly and without coercion, waived its right
to file in the face of petitioners’ asserted facts and conclusions;
respondent thereby defaulting by waiver, pursuant to Supreme
Court Rule 15.5. This issue also involves a question of whether
such waiver attaches to the instant case from the previous case
above referenced.

The Petitioner, in appearing pro se, relies on Haines vy.
Kerner (1972), 404 U.S. 519, Price v. Johnson (1948), 344
U.S. 266, plus many others, in that "pro se," "pro per" litigants

are not held to the same standards as attorneys, appearing on
‘appeal’ in this Court.

ee ee eee

5

s
OPINIONS BELOW

The Order of Court of Appeals for the Ninth Circuit has not
been reported. It is copied and attached to the appendix hereto,
APP. A, infra. The Order Dismissing Action of the United
States District Court has not been reported. It is copied and
attached to the appendix hereto, APP. B, infra.

*
JURISDICTION

The Franchise Tax Board's Notices of Additional Tax
Proposed to be Assessed issued to the Buchbinders on
September 21, 1983. Thereafter, it was agreed to hold the case
in abeyance pending resolution of a related Tax Court case and
that the appeal be deferred pending the outcome of said case
before Tax Court; the State Board of Equalization agreeing to
defer further proceedings in the matter pending the related court
action. Upon resolution of the federal matter, the State Board
reopened the case, not cognizing the implication of the waiver
issue inherent in the federal proceeding. Subsequently, the
petitioner filed a timely petition to the Board of Equalization.
The final determination of the Board of Equalization was |
entered on June 26, 1997. Thereafter, the Buchbinders filed a
timely petition with the United States District Court raising a
federal question of violation of due process nghts. The
respondent by motion and memorandum argued for dismissal of
the Buchbinders' appeal for failure to state a claim citing to the |
Tax Injunction Act and Eleventh Amendment. The Order
Dismissing Action of the Court was entered on November 24,
1997. The Buchbinders then filed a timely Notice of Appeal to
the Ninth Circuit Court of Appeals. The case was filed and
docketed and a Time Schedule Order was issued by the court.
However, before the Buchbinders could submit their opening
brief, the court clerk raised the issue of ‘substantibility’ and
ordered the petitioner to show cause why the judgment in the

Ee ee ee

3

appeal should not be summarily affirmed. The order of the court
affirming the Order Dismissing Action of the District Court was
entered on February 26, 1998, with no further filings permitted.

Jurisdiction in the instant case is established under the
Preamble to the Constitution for the United States of America,
wherein it specifies responsibilities of the government for whom
the judges of this Land now labor under oath of office.

Jurisdiction of this Court to review the judgment of the
Ninth Circuit is invoked under 28 U.S.C. §1254(1).

Authority to proceed in this Court is by authority of the
people of the united States by their Constitution, Article III
section 2, clauses | and 2 in which this Court has Appellate
Jurisdiction.

e

CONSTITUTIONAL AND STATUTORY PROVISIONS
INVOLVED

Preamble to the United States Constitution
The Preamble to the United States Constitution provides:

We the People of the United States, in Order to
form a more perfect Union, establish Justice, insure
domestic Tranquility, provide for the common
defense, promote the general Welfare and secure
the Blessings of Liberty to ourselves and our
Posterity, do ordain and establish this Constitution
for the United States of America.

Articles to the United States Constitution
Article III, Section 2, Clause 1 provides in pertinent part:

The judicial Power of the United States, shall be

4

vested in one supreme Court, and in such inferior
Courts as the Congress may from time to time
ordain and establish.

Article IV, Section 2, Clause | of the United States Constitution
provides:

The Citizens of each State shall be entitled to all
Privileges and Immunities of Citizens of the several
States.

Amendments to the United States Constitution
Amendment I of the United States Constitution provides in
pertinent part:

Congress shall make no law respecting . . . the
right of the people peaceably to assemble, and to
petition the government for a redress of grievances

Amendment V of the United States Constitution provides in
pertinent part:

No person shall.... be deprived of life, liberty. or
property, without due process of law.

+
STATEMENT OF THE CASE

This case arose on September 21, 1983, when petitioner
received a Notice of Additional Tax Proposed to be Assessed
from the Franchise Tax Board. Petitioner filed a protest to the
Notice on November 16, 1983. Subsequently, petitioner
received a Notice of Action on June 10, 1987, stating that if
petitioner did not agree with the Notice, petitioner could file an

ie era eee

appeal with the State Board of Equalization. On or about July
31, 1987 the State Board acknowledged an appeal had been
filed, and it was later agreed that this case was to be held in
abeyance pending federal judiciary outcome of a related federal
matter and court action. Such related matter ultimately resulted
in petitioner appealing its federal case to the United States
Supreme Court in Buchbinder v. Commissioner of Internal
Revenue, 114 S. Ct. 696, 126 L.Ed 2d 663, leading to issues
bearing on the instant matter; in particular, the waiver issue

Petitioner alleged before the State Board that the waiver in
the above referenced case attached to the instant case and
therefore, in that the state follows the outcome of the federal
judiciary in matters of direct taxation of income, it followed that
the matter was resolved upon the issue of the waiver, that being
the primary threshold issue in the instant case. (Petitioner would
later contend in taking its case before U.S. District Court that
this issue was one of the main issues that made the instant case
proper for federal jurisdiction and determination. )

A secondary issue brought before the State Board of
Equalization was the issue of jurisdiction, wherein petitioner
challenged the Franchise Tax Board and State Board's
jurisdiction and alleged that personam jurisdiction relative to the
matter had been invoked by fraud.

The State Board of Equalization ignored petitioners’
specifically worded issues and denied any review on any of
those issues, other than to raise their incredulousness on the
issue of the waiver, and thereafter issued their arbitrary and
capricious decision on April 10, 1997.

On May 5, 1997, petitioner filed a Petition for Rehearing to
the State Board and in its Petition for Rehearing, petitioner took
issue with the State Board's determination, and pointed out to

6

the Board material points of law and fact overlooked in their
decision. Nevertheless, the State Board on June 26, 1997
denied the Petition for Rehearing and affirmed its order of April
10, 1997.

Petitioner, subsequently on September 23, 1997, filed a
Petition for Judicial Determination and Declaratory Judgment on
Issues of Law in United States District Court for the Northern
District of California, invoking its Due Process rights under
Amendment V, on the jurisdictional grounds that the U.S.
District Court was the proper forum for its grievances, in that
petitioner had exhausted all administrative appeals with the State
Board of Equalization, citing authority to proceed in that court
by authority of the people of the united States by their
Constitution, Article III, Section 2, Clause 1, in which the court
had original jurisdiction; petitioner thereby exercising its
secured Right to petition for Redress of Grievance pursuant to
Article IV, Section 2, Clause 1, Amendment I, and IX of the
Constitution for the United States of America. The petitioner
took the appeal from the final decision entered by the State
Board of Equalization, raising a case and controversy arising
under the Constitution for the United States, therefore the case
was properly brought before the court under the provisions of
Article III, Section 2 of the Constitution for the United States,
and was. entitled to be treated as such. As a result of the
constitutional nature of the case, it was entitled to be reviewed
by Judges completely endowed with the powers and immunities
of Article III, Section 1 of the Constitution. This Constitutional
guarantee of review was an impossibility before the State Board
of Equalization, and completely denied the Buchbinders' full
Due Process of the Law. None of the legal and factual issues
raised by the Buchbinders were given any substantial legal
analysis by the State Board nor was a well-reasoned conclusion
relative to these issues entered by the Board.

7

Petitioner claimed in its petition to the U.S. District Court
that:

1. Petitioners’ appeal to the State Board raised more than
a single argument, involving mixed questions of law and fact,
of Constitutional import, that were not properly addressed in
the decision issued by the State Board of Equalization, in
particular the issue of the Franchise Tax Board not informing
petitioner of the nature of the "Excise Taxable Activity" it was
involved in to create a basis for a proper and valid assessment.
Specifically, the Franchise Tax Board did not inform petitioner
WHAT Excise Taxable Activity it was involved in that would
create an "income tax liability" to provide a basis for a proper
and valid assessment.

2. Petitioners’ appeal to the State Board also raised the
waiver issue, accompanied by supporting documentation, and
the State Board's decision did not reflect an adequate review of
this issue, nor the other issues raised by petitioner

3. In its Memorandum of Decision, filed April 10, 1997, the
State Board reduced petitioners’ multiple arguments to a single
issue, namely whether petitioner presented any evidence
showing that the Federal Government truly waived the related
assessments, and further arguing that the Franchise Tax Board's
assessments were not based upon Federal assessments, but
rather based upon the Franchise Tax Board's own audit of
petitioner, ignoring the important issue of WHAT constitutes a
valid and proper assessment relative to the Franchise Tax
Board's failure to identify the "Excise Taxable Activity" that
would provide such basis, and thus keep State statutes in
harmony with Federal statutes relative to taxation of income,
this being the basis of petitioners’ claim that said assessments
were in error. Further, petitioner in raising its contentions,
was arbitrarily characterized as raising frivolous arguments by
the State Board, arguments the State Board characterized as not

8

being supported by the statutes and cases cited by petitioner in
its Reply Brief, this characterization being patently UNTRUE.
This arbitrary and unfair treatment of petitioner gave the State
Board of Equalization the excuse to deprive petitioner of any
legal analysis to the arguments raised by petitioner in its Reply
Brief, and pre-empted the State Board from producing any
evidence to the contrary. Therefore, the State Board, because
it perceived the petitioner as having failed to present any
evidence demonstrating that the Franchise Tax Board's
assessments were erroneous, when in fact petitioner documented
the fact that the state personal income tax was in the nature of
a corporate income tax and thus not applicable to the petitioner,
and therefore lacking in personam jurisdiction and grounded in
fraud; nevertheless the State Board took it upon itself to
unjustifiably characterize petitioners’ unpopular contentions as
being frivolous and without merit, thus depriving petitioner of
proper Due Process of Law.

4. Petitioner alleged its arguments were neither unitary nor
so simple as that characterized by the State Board's decision. To
the contrary, petitioner argued, among other things, that the
Franchise Tax Board had not identified the "Excise Taxable
Activity" that would give proper and valid basis to the
assessment, and that the state personal income tax was either a
direct tax or indirect tax like the federal income tax, citing to
Pollock v. Farmers Loan and Trust, 158 U.S. 601 and Eisner v.
Macomber (1920), 252 U.S. 189; the enabling legislation of the
Tax Codes being, 7he Corporate Excise Tax Act of 1909 (36
Stat S ch. 11, 12) ; limited by restrictions placed by the
Constitution, and in the nature of a corporate income tax.
Petitioner further contended that the Franchise Tax Board had
not identified that activity which petitioner was involved in that
created the so-called “income tax liability", further arguing that
such cannot be based on what was previously done in former
years, as previous filings may have been actually in error due to

9

fraud and extortion demands made upon petitioner by the
Franchise Tax Board ab initio, relating to some pretended
requirement of filing returns; and that a liability was not created
by a demand to file a return, or that a return was filed
previously, or that conditions of former years apply
automatically in the present year or any subsequent year. The
petitioner further arguing, that the California Courts and the
State Board of Equalization itself, had declared that the
"Franchise Tax" is based on the Profit made within the taxable
year because it was a corporation, citing to American Water
States Service Co. of California v. Johnson (1939), 31 Ca 2d
606, 88 P2d 770; West Publishing Co. v. McColgam (1946), 27
C2d 705 affd 328 U.S. 823; Rosemary Properties (1947), 29
C2d 677, and in particular showing to the State Board that in
the Appeal of 7hor Electronics, Inc, Cal. St. Bd. of Equal, Feb.
4, 1975, the State Board clearly stated on February 4, 1975,
that "the franchise tax is not a tax on property or income; it is an
excise tax on the privilege of exercising the corporate franchise
which is measured by the corporation's net income", petitioner
further showing to the State Board, that it was declared that
income meant corporate profits and that the tax was based upon
the benefit of exercising the corporate privilege, measured by the
corporate profit, citing to Merchants Loan and Trust v.
Smietanka (1921), 255 US 509 wherein the High Court
stated:

"It is obvious that these decisions in a
rule the case at bar if the word ‘income’ has
the same meaning in the Income Tax Act of
1913 that it had in the Corporation Excise Tax
Act of 1909, and that it has the same scope of
meaning was i# effect decided in Southern
Pacific v. Lowe, 247 US 330, 335 ... where it
was assumed for the purposes of decision that
there was no difference in its meaning as used in
the Act of 1909 and in the Income Tax Act of
1913 (38 Stat 114). There can be no doubt that

10

the word must be given the same meaning and
content in the Income Tax Acts of 1916 and
1917 that it had in the Act of 1913. When to this
we add that in Eisner v. Macomber, supra, a
case arising under the same Income Tax Act of
1916 which is here involved, the definition of
‘income’ which was applied was adopted from
Stratton's Independence v. Howbert, Supra,
arising under the Corporation Excise Tax Act of
1909, with the addition that it should include
‘profit gained through the sale or conversion of
capital assets,’ there would seem to be no room
to doubt that the word must be given the same
meaning in all of the Income Tax Acts of
Congress that was given to it in the Corporation
Excise Tax Act, and that what that meaning is
has now become definitely settled by decisions
of this Court." At 519 (Emphasis added).

And, further citing to the Tennessee Supreme Court in Cole v.
Macfarland, wherein that High Court stated:

"Legislature can name any privilege a taxable
privilege and tax it by means other than an income
tax, but the legislature cannot name something to
be a_ taxable privilege unless it is first a
privilege... ‘Privileges are special rights,
belonging to the individual or class, and not the
mass; properly, an exemption from some general
burden, obligation or duty; a right peculiar to
some individual or body.' Lonas w. State 50
Tenn., 287, 307. Since the right to receive income
or earnings is a right belonging to every person,
this right cannot be taxed as a privilege." 337
S.W. 2d 453,455,456.

5. Further, petitioner raised the waiver issue, which had a
determining effect on the instant case in that the State follows

1]

the Federal findings, subject to Federal Judiciary outcome ; and
furthermore touching the issue of whether the federal tax
assessment had been paid, petitioner bringing to the State
Board's notice, that since the Federal Government defaulted
pursuant to waiver, and the Federal Government, based on its
default, and its attempts to further the action blocked by
Estoppel in Pais, Estoppel by Laches and Collateral Estoppel;
therefore, there were no grounds for the Federal tax assessment,
the Federal Government being estopped from further collection
activity in this matter. Therefore, petitioner alleging the matter
was resolved in that the State follows the outcome of the
Federal Judiciary in these matters, this matter was resolved upon
the issue of the waiver, that being the threshold issue in the
instant case. However, relative to this matter, the State Board
chose to ignore this important principle of law; nevertheless, the
State Board's disregard of the waiver issue in no respect
denigrated the issue nor did it eliminate it. In fact, the State
Board's ignoring this issue raised a multiplicity of other issues
impinging upon U.S. Constitutional Law, in particular the issue
of Redress of Grievance and Due Process, this touching the
relationship between Federal and State Law, and the relationship
between the Internal Revenue Service and the Franchise Tax
Board, among other things.

6. Consequently, under authorities cited in petitioners’ brief
and based on its peculiar factual situation, petitioner contended
therein that its proper legal status was that of non-taxpayer, and
that the assessment in question was false and therefore not valid.
Given that status and circumstance, petitioner logically
concluded that there were no grounds for the deficiency
assessment made by the Franchise Tax Board. Furthermore,
notwithstanding anything to the contrary, the State Board's
decision ignored, the relevant issue of the waiver, briefed
extensively in petitioners’ reply brief, and documentation in a
full- blown "Exhibit" to the brief, containing all relevant

12

information, concerning this matter

7. None of the pertinent issues advanced by petitioner
were adequately addressed in the Memorandum of Decision
issued by the State Board, thus resulting in the affirmation of the
Appeal in favor of the Franchise Tax Board, and in violation of
petitioners’ Due Process Rights.

8. Having collapsed all of petitioners’ substantive
arguments, and its contention of case law as well, into the
single proposition that petitioner did not present any evidence
that the Federal Government truly waived the related
assessments and that all the arguments made by petitioner were
frivolous, the State Board's Memorandum of Decision
necessarily left unanswered and unaddressed essentially all of
petitioners’ material points of law and faci which petitioner had
actually raised in its brief, including the relevant waiver issue.

In addition to the above claims made in its petition to the
U.S. District Court, petitioner further claimed it had not
received the Scope of Review that it was entitled to under State
equivalent Statutes to the Administrative Procedures Act, Title
5, Section 706, and other State Statutes and Government Codes
enacted to protect petitioners’ Due Process Rights pursuant to
Amendment V of the United States Constitution, to effect
harmony between Federal and State law regarding the matter of
Due Process; whereas the United States Constitution is the
Supreme Law of the Land (See U.S. Constitution, Article VI,
Section 2) and recognized as the Supreme Law of the Land by
the California Constitution, in Article III, Section 1.

On October 9, 1997, while petitioners Petition to the United
States District Court was pending, respondent filed a Notice of
Motion to Dismiss Complaint and a Memorandum of Points and
Authorities in Support of Motion to Dismiss Complaint. In its

13

memorandum supporting its motion, respondent cited to the Tax
Injunction Act and the Eleventh Amendment further citing to the
Seminole Indian case. Petitioner opposed the Motion on the
grounds that the Tax Injunction Act and Eleventh Amendment
did not apply to petitioners’ persona in the instant matter.

With reference to the Tax Injunction Act, petitioner had
brought before the lower court an action seeking a
determination of rights and due process. Respondent opposing
petitioner, claimed the lower court lacked jurisdiction in the
matter, and in support of its motion to dismiss the instant case
from the lower court cited to the Tax Injunction Act and
Eleventh Amendment. However, petitioner pointed out the Tax
Injunction Act lacked jurisdiction over it, because no tax liability
had ever been established; therefore, there was no tax to injunct.
Further pointing out as such, respondent's arguments were
unsupported and irrelevant and did not apply to petitioner;
therefore respondent's arguments did not support its motion to
dismiss. The record of the federal courts in enforcing civil
rights made respondent's position a confusing position in this
regard unless the Tax Injunction Act set aside the provisions of
the Bill of Rights, and the rulings of the Supreme Court in
Fisher, Doe, and related circuit cases such as Smith v. Richert.

See Fisher v. U.S., (1976) 425 U.S. 391; United States v.
Doe, (decided 2-28-1984) S.Ct #82-786; and Smith v. Richert,
(7th Cir. 1994) 35 F. 3d 300. Petitioner pointing out that due
process violations are not protected by the Tax Injunction Act
nor the Eleventh Amendment, and fall within the domain of 42
U.S.C Section 1983, a mandate upon the Federal Courts to
protect constitutional rights.

Petitioner originally raised issues of a jurisdictional nature
at the state level, that went to the taxing power of respondent in
the instant case. Jurisdiction once challenged is to be proven by
the party attempting to assert jurisdiction (in this case the

14

respondent). The burden of proof of jurisdiction lies with the
asserter. (See McNutt v. GMAC, 298 U.S. 178, 189. The
origins of this doctrine of law may be found in Maxfield'’s
Lessee v. Levy, U.S. 308. "He who asserts jurisdiction,
upon challenge to same, must plead and prove it"; McNutt v.
GMAC, (1936) 298 U.S. 178, 189: 56S. Ct. 780; 80 L. Ed.
1135; Griffin v. Matthews, 310 F. Supp. 341, aff'd. 423 F. 2d
272; Thompson v. Gaskell, (1942) 315 U.S. 442, 446; 62 S.
Ct. 673; 83 L. Ed. 1111; and is so limited that even the
plaintiff can plead absence of jurisdiction if the ruling is adverse
to him and shall prevail American Fire and Casualty v. Finn,
(1950) 34 U.S. 6, 18; 71 S. Ct. 534;95 L. Ed. 702; 19 ALR 738
and so may a defendant, even if a case is litigated to the end and
a judgment rendered, Bialack v. Harsh, (1973) 463 F.2d 1185,
1186 (9th Cir. 1972 cert. den. 1973), 409 U.S. 1060, reh.
den. 410 U.S. 948. That jurisdiction can be challenged at any
time, is a well settled precept of law. Upon a square challenge,
jurisdiction cannot be assumed and remains an open question.
Maine v. Thibutout, (1979) 448 US. 1.

Since jurisdiction was still an open question in the instant
case, the tax liability alleged by respondent was not established
and the issue of tax collection was moot. Before collection of
taxes, the court had to decide if such collection was lawful and
if there was a lawful tax liability by adjudicating the question of
jurisdiction.

Therefore the pretense of injunction, enjoinment,
suspension, restrainment or interference as relates to state
revenue collection procedures was out of place and without
merit, in addition to being blatantly presumptuous. The lower
court was without evidence that the Tax Injunction Act applied
to petitioner; therefore the judge must have relied on extra
record, heresay material that the Act applied to petitioner. The
Tax Injunction Act not operating upon petitioner in the instant

15

case -- as there was nothing to enjoin the UNLAWFUL
collection of tax. The Tax Injunction Act only operates for the
lawful collection of tax; however, there was no certifiable
evidence of a lawful tax in the instant case as respondent had not
presented any certifiable evidence of a lawful tax, and the court
was without evidence of a judicial determination that petitioner
was a taxpayer or that there was a tax liability in the instant
matter.

The Tax Injunction Act not applying to petitioner because
no tax liability had ever been established; petitioner contesting
respondent's jurisdiction on the basis that personam jurisdiction
had been invoked by fraud; and respondent not objecting in a
timely fashion to petitioners’ claims, the claims were deemed
admitted pursuant FRAP 8 (d); thus tax liability not having been
established and jurisdiction contested and still an open question,
there was no tax liability nor tax to enjoin pursuant to the Tax
Injunction Act. Therefore, the Tax Injunction Act was a moot
issue and should never have been cited by respondent in the
instant matter.

The other argument raised by the respondent involved the
Eleventh Amendment and a cite to the Seminole Indian case.
With respect to the Eleventh Amendment, respondent misled the
lower court citing to the Seminole Indian case, as that case did
not fit the fact pattern of the instant case that was before the
court. The Eleventh Amendment and provisions thereto were
not the issue in the instant case, as the Seminole Indians do not
have an agency relationship with the federal government with
respect to tax matters. The citation on the Seminole Indian case
was an obvious attempt on the part of the respondent to mislead
the lower court. Petitioner is not a Seminole Indian of the
Seminole Indian tribe. Said Seminole Indians and Seminole
tribe exist under separate jurisdiction [Foreign State
jurisdiction]. Petitioner is not within Seminole Indian tribe

16

jurisdiction nor pled to such jurisdiction, nor to their immunities
or protections. Petitioner is domiciled in the State of California,
and therefore, is not Citizens of another State or Foreign State.
Petitioner was bringing suit against the State wherein petitioner
is domiciled, and unlike the Seminole Indians and Seminole
Indian tribe is not domiciled in a State foreign to the States
united, but is a Citizen of one of the several Sovereign
Republican States of the contiguous States united by the
Constitutional compact of the United States of America.
Therefore the issue of the Eleventh Amendment was a moot
issue and should never have been cited by respondent in the
instant matter.

The Order Dismissing Action of the District Court was filed
on November 24, 1997. In the Order the judge granted the
respondent's motion on the grounds that petitioners’ claims were
barred by the Tax Injunction Act, and brought up the issue of
constitutionality, thus confusing the issues raised by petitioner.
The judge erred in bringing up the issue of constitutionality of
taxes, when in fact nowhere in the pleadings did petitioner raise
that particular issue. Petitioner would like to point out that they
never challenged the constitutionality of the state's taxing power;
their challenges were instead jurisdictional in nature --
jurisdiction being the threshold issue.

On December 17, 1997, petitioner timely filed a Notice of
Appeal to the Ninth Circuit Court of Appeals. On December
24, 1997, the Ninth Circuit issued a Time Schedule Order
setting April 6, 1998 as the filing date for petitioners’ opening
brief. However, in the interim, on January 17, 1998, the deputy
clerk of the Ninth Circuit issued an order on behalf of the clerk
of the court to petitioner stating therein that in her view the
appeal might be proper for summary disposition because the
questions on which the decision in the appeal depended might be
so ‘insubstantial’ as to not justify further proceedings and

17

ordered the petitioner to show cause why the judgement in the
appeal should not be summarily affirmed.

On January 29, 1998, petitioner filed a response to the
clerk's order, showing the substantial nature of the issues raised
by petitioner. In their response the petitioner showed to the
court among other things, that the U.S. District Court was the
proper court for subject matter jurisdiction in the instant case as
the waiver issue raised by petitioner was an issue rising out
of federal judiciary proceedings; and being that the waiver issue
had its nexus in the federal judiciary process, the federal courts
were best suited to deal with it; the waiver issue being a
complex and delicate question having its nexus in the federal
judiciary process, petitioner arguing that if this question was to
be properly addressed, it had to be addressed on the federal
level; petitioner contending that no state court was proper venue
for complex questions of law and fact raised by petitioner, such
as the waiver issue in the instant case.

Further, petitioner contending the case was a proper case
for federal court jurisdiction because the United States
Constitution is the Supreme Law of the Land and the ultimate
arbitrator on issues of Due Process; petitioner further
contending statutes involving federal income tax are the
controlling law and state law is subordinate, in that the state
follows federal judiciary outcome in matters pertaining to direct
taxation of income, as in the instant case.

Petitioner contending that the case was not a proper case for
the state court system in that the state was a party in interest,
and that notwithstanding anything to the contrary, the petitioner
had exhausted all administrative remedies on the state level and
that the state lost primary jurisdiction in the instant matter
because of due process violation and therefore, it would be
futile to exhaust any further remedies on the state level.

18

In the order issued by the deputy clerk of the Ninth Circuit
on January 17, 1998, petitioner was given twenty-one (21) days :
from the date of the order to file a response, and respondent was
given ten (10) days from the date of service of the response to
file a reply to petitioners’ response. Petitioner timely filed their
response to the clerk's order on January 29, 1998. However,
respondent did not reply and rebut petitioners’ claims and
assertions, and therefore such claims and assertions are deemed
admitted pursuant FRAP 8 (d).

Nevertheless, on February 28, 1998, the Ninth Circuit
summarily affirmed the District Court's Order of November 24,
1997, arbitrarily and capriciously dismissing the action for lack
of jurisdiction without opinion, with no motions for
reconsideration, rehearing, clarification, stay of the mandate, or
any other submissions permitted.

@
REASONS FOR GRANTING WRIT

Petitioner in coming before the federal court system, invoked
jurisdiction of the lower courts pursuant to the United States
Constitution, Article III, Section 2, Amendment I and
Amendment V, petitioner having raised a Federal Question
involving petitioners’ Right to due process secured by the
Constitution for the United States of America.

The questions raised in this appeal by petitioner involve a
matter of due process and a question as to whether statutory law
used to defeat constitutional law in cases raising federal
questions of due process right violations, is unconstitutional and
of no effect, i.e. whether a statute or act such as the Tax

19

Injunction Act can preclude petitioner from a constitutionally
guaranteed right to due process secured by the Constitution for
the United States of America. Further there is a question of
whether the Tax Injunction Act that barred petitioners' claims
before the lower court even applied to petitioners’ persona
because of jurisdictional issues raised by petitioner from the
beginning (this being an issue of contention). As such this
question is a question of paramount importance, and in that the
lower courts did not do their duty and hear the question, it
adversely impacted the due process right of petitioner in this
matter.

Neither the Tax Injunction Act nor Eleventh Amendment
apply to petitioners’ persona as the lower court was without
evidence of a judicial determination that petitioner was a
taxpayer or that there was a tax liability in the instant matter;
and as to the Eleventh Amendment and cite to the Seminole
Indian case, it did not fit the fact pattern of the instant case as
the Eleventh Amendment was not at issue and petitioners were
not Seminole Indians. As the Tax Injunction Act and Eleventh
Amendment were the only grounds for respondent's motion to
dismiss, therefore respondent's motion was groundless and
without merit and as such defective and the lower court (here
the U.S. District Court) should never have granted it, nor should
the Ninth Circuit have affirmed the lower court's order. Further,
the District Court judge confused the issues by characterizing
the jurisdictional issues petitioner had raised as constitutional tax
issues. In light of these errors and the controversial waiver issue
in petitioners’ federal related case, and in that the state was a
party in interest to the outcome of the controversy, the lower
court's action and the Circuit Court's affirmation clearly
_ constitutes a denial of Right to proper due process secured by
the Constitution for the United States of America and Right to
meaningful access to the courts.

20

The Congress of the United States has granted jurisdiction
to the lower federal courts over the issues raised in petitioners’
petition with respect to both state and federal issues pursuant to
28 U.S.C., paragraphs 1331, 1332, and 1333 [savings to suitors
clause]. But more importantly, the Constitution for the United
States of America, and the Constitution for the State of
California demand that these courts enforce the laws of the
United States as enacted by Congress to preserve Constitutional
Rights, and Civil Rights, as well as to due process.

In an article touching on this subject, written by Albert J.
Schweppe, in the American Bar Association Journal, Vol XXIV
No. 6, June 1938, entitled "What Has Happened to Federal
Jurisprudence", Mr. Schweppe made the following point:

"At least, a Federal Court sitting in a particular
state is just as much a court of final adjudication
as is a state court, and such a Federal Court is
quite as competent to determine the law of that
particular state as is a State Court. This the
Constitution clearly intended; and a Federal Court
cannot escape this duty, whether the local law-be
clearly declared on the particular point or not, and
even if it not be declared at all."

This petitioner had no remedy at law at the state level as was
demonstrated by the inability of the State Board to adequately
address the issues brought before it, such issues involving mixed
questions of law and fact by which the historical facts had to be
concluded before the applicable law could be applied; involving
a subcategory of the mixed question doctrine, which is a
"Constitutional fact" question involving applications of
constitutional principles to the factual determinations; involving
important questions concerning the scope and meaning of
United States Supreme Court decisions, relative to the issue of

at a ice Bo a area

2]

taxation touching both federal and state taxing systems, thus
three substantial questions, that all had to be reviewed together
before just findings and conclusions can be arrived at in the
instant matter.

Further, the questions raised in this appeal involve a question
as to whether the outcome of petitioner's case in a federal
related matter attaches to the instant case, and whether issues of
law and fact in that related federal judiciary proceeding are
controlling in the instant case. Significantly, such issues include
the waiver issue involving a question of paramount importance.
In this regard, petitioner initially apprised the Franchise Tax
Board and the State Board of Equalization that issues relating
to the year in question, had been litigated in a federal related
case in United States Tax Court, and that the decision of the Tax
Court had been appealed to the United States Court of Appeals
for the Ninth Circuit, and subsequently to the United States
Supreme Court and that upon appeal to the Supreme Court, the
respondent in that federal related case had defaulted pursuant to
waiver, petitioner claiming that the waiver in face of
petitioners’ asserted facts and conclusions served to leave
petitioners’ allegations uncontested before the Supreme Court,
thereby leaving respondent unable to later act in contravention
to those allegations leaving no grounds for further action in the
matter, petitioner claiming a default judgement against
respondent in that related case; and in that respondent in that
case did not object to petitioners’ claims, petitioners' claims were
deemed admitted pursuant FRAP 8 (d), all touching the instant
case. Upon apprising the Franchise Tax Board and State Board
of Equalization of this, they responded with incredulousness,
apparently not being able to cognize the issue. However,
nonetheless, the State Board's ignoring this issue raised a
multiplicity of other issues impinging upon U.S. Constitutional
Law, in particular the issue of Redress of Grievance and Due
Process, this touching the relationship between Federal and

22

State Law, and the relationship between the Internal Revenue
Service and the Franchise Tax Board, among other things.

The instant case was a proper case for federal court
jurisdiction not only because the state follows federal judiciary
outcome in matters pertaining to state direct taxation of income,
but also because the waiver issue was the primary issue raised by
petitioner before the State Board of Equalization. The waiver
issue is a complex and delicate question that had its nexus in the
federal judiciary process in a federal related case to the instant
case, and if this question was to be properly addressed it had
to be addressed on the federal level due to the nature of the
issue. Therefore, no state court was proper venue for complex
questions of law and fact raised by petitioner, such as the waiver
issue in the instant case.

On the other hand, the case was not a proper case for the
state court system in that the state was a party in interest to the
outcome of the controversy in the instant matter, and that
notwithstanding anything to the contrary, the petitioner had
exhausted all administrative remedies on the state level, and the
state lost primary jurisdiction in the instant matter because of
due process right violations, and therefore, it would have been
futile to exhaust any further remedies on the state level.

The U.S. District Court below erred grievously in dismissing
petitioners’ cause of action. And the Ninth Circuit Court only
served to compound the error. To remember the words of Boyd
v. United States, (1886) 116 U.S. 616, 635 :

It is the duty of courts to be watchful for the
constitutional rights of the citizen, and against
any stealthy encroachments thereon. Their motto

should be Obsta Principiis.

23

Invoking Obsta Principiis, this Court must
exercise its supervisory powers to resolve a far
reaching dilemma in judicial proceedings

There is a far-reaching dilemma that must be resolved in the
instant case. An important issue that bears upon the supervisory
role of this Honorable Court is the issue of the arbitrary
dismissal of petitioners' cause of action before the United States
District Court and Ninth Circuit Court of Appeals, and whether
their action constitutes a denial of proper due process, and Right
to meaningful access to the courts.

The question asks: does the arbitrary dismissal of petitioners’
cause of action before the United States District Court and the
Ninth Circuit Court of Appeals constitute a denial of proper due
process and right to meaningful access to the courts taking into
consideration the circumstances as a whole in the instant case?

This Court should grant certiorari in order to resolve this
important issue and other issues that the lower courts refuse to
address, in order that this petitioner receive a full and meaningful
review and substansive due process as guaranteed to them as a
secured Right of the Constitution for the United States of
America.

i

CONCLUSION

Being that petitioner raised a Federal Question of due
process right violations pursuant Article III, Amendment I and
Amendment V of the Constitution for the United States of
America, and invoked federal jurisdiction to protect their
secured Constitutional Rights, thereby exercising their secured
Rights; and especially in light of the controversial waiver issue

24

in petitioners’ federal related case in that the state follows federal
judiciary outcome in matters of direct taxation of income, and in
that the state was a party in interest to the outcome of the
controversy, and in that the Tax Injunction Act and Eleventh
Amendment did not apply to petitioners’ persona, and in that the
judge confused the issues by characterizing jurisdictional! issues
as constitutional tax issues, the action of the lower courts in the
instant case clearly constitutes a denial of petitioners’ Right to
proper due process secured by the Constitution for the United
States of America and Right to meaningful access to the Courts.

Since neither the Tax Injunction Act nor Eleventh
Amendment applied to petitioners’ persona, these being the
only grounds for respondent's motion to dismiss before the
U.S. District Court, therefore respondent's motion was
groundless and without merit and as such defective, and the
lower court should never have granted it nor should the Ninth
Circuit have affirmed it.

Therefore for the reasons stated herein and in the record,
this petition for a writ of certiorari should be granted.

Respectfully submitted,

Bruce BucHBINDER

ELAINE BUCHBINDER

1178 Via Ferrari Drive
San Jose, California 95122
(408) 279-4054
Petitioners in Pro Se

DATED: May 21, 1998

ee

APPENDIX A-- NINTH CIRCUIT ORDER
SUMMARILY AFFIRMING
DISTRICT COURT'S ORDER
DISMISSING ACTION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT
BRUCE BUCHBINDER, ) No. 97-17393
ELAINE BUCHBINDER, )

) DC# CV-97-20838-SW
Plaintiffs-Appellants, ) Northern California

VS. (San Jose)

)
)

FRANCHISE TAX BOARD, ) ORDER
et al., )
)
)

Defendants-Appellees. (Filed Feb. 26 1998)

Before: PREGERSON, CANBY, and LEAVY, Circuit Judges

Upon review of the record and appellants’ response to this
court's January 12, 1998 order to show cause, this court hereby
summarily affirms the district court's November 24, 1997 order
dismissing the action for lack of jurisdiction. See 28 U.S.C.

§1341; National Private Truck Council v. Oklahoma Tax
Commission, 115 S. Ct. 2351, 2354 (1995).

No motions for reconsideration, rehearing, clarification,

A-1

stay of the mandate, or any other submissions shall be filed or
entertained in this closed docket.

AFFIRMED.

PSMoCal 2/24/98/sg
12

A-2

APPENDIX B -- DISTRICT COURT ORDER
DISMISSING ACTION

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA

)
BRUCE BUCHBINDER, and_ ) CIVIL No. 97-20838 SW
ELAINE BUCHBINDER, )
)
Plaintiffs, )
) ORDER DISMISSING
) ACTION
V. )
)
FRANCHISE TAX BOARD, _) (Filed Nov. 24, 1997)
STATE OF CALIFORNIA, and )

BOARD OF EQUALIZATION, )
STATE OF CALIFORNIA,

)
)
Defendants. )

Pro se plaintiffs Bruce and Elaine Buchbinder
("Plaintiffs") initiated this action seeking a judicial determination
and declaratory judgment on issues brought before the State
Board of Equalization in connection with a Notice of Proposed
Assessment from the Franchise Tax Board.

Defendants Franchise Tax Board and Board of

Equalization ("Defendants") now move to dismiss for lack of

jurisdiction and failure to state a claim upon which relief can be

B-1

granted, pursuant to Federal Rules of Civil Procedure 12(b)(1)
and 12(b)(6). For the reasons set forth below, the Court hereby
GRANTS Defendants’ motion and DISMISSES this action with

prejudice.

I, Background

Plaintiffs invested in two tax shelters, "Financial
Securities Corporation" and "Horticultural Research Ltd." In
1980, Plaintiffs claimed a $20,923 loss on their tax returns in
connection with Financial Securities Corp., and in 1981 they
claimed a $77,558 loss from Financial Securities Corp. and a
$49,500 partnership loss from Horticultural Research Ltd. After
an audit by the State Franchise Tax Board ("FTB"), those
deductions were disallowed, and the FTB sent Plaintiffs a Notice
of Additional Tax Proposed to be Assessed. In addition, an
unsubstantiated 1980 $821 Schedule C deduction was
disallowed.

Plaintiffs filed a protest to the Notice, and subsequently
received a Notice of Action from the FTB. This Notice stated
that if Plaintiffs did not agree with the Notice they could file an
appeal with the State Board of Equalization ("SBE").

Plaintiffs appealed to the SBE in conformity with the

California Revenue and Taxation Code. On April 10, 1997, the

SBE sustained the FTB's decision. On May 5, 1997 Plaintiffs
B-2 *

filed a Petition for Rehearing the Appeal before the StateBoard
of Equalization, and on June 26, 1997 that Petition was denied.
Plaintiffs then filed this action in Federal District Court.

Il. Legal Standard

Dismissal is appropriate under Rule 12(b) (1) when the
district court lacks subject matter jurisdiction over the claim.
Dismissal under Rule 12(b)(6) for failure to state a claim will be
denied unless it appears that the plaintiff can prove no set of
facts which would entitle it to relief. Conley v. Gibson, 355 U.S.
41, 45-45 (1957), Fidelity Financial Corp, v. Federal Home
Loan Bank of San Francisco, 792 F.2d 1432, 1435 (9th Cir.
1986), cert. denied, 479 U.S. 1064 (1987). All material

allegations in the complaint will be taken as true and construed
in the light most favorable to the plaintiff. NL Indus,, Inc. v
Kaplan, 792 F 2d 896, 898 (9th Cir. 1986).

Ill. Discussion
The Tax Injunction Act provides "[t]he district court
shall not enjoin, suspend, or restrain the assessment, levy, or

collection of any tax under State law where a plain, speedy,
and efficient remedy may be had in the courts of such State." 28

U.S.C. §1341. The act applies not only to suits for injunctive

relief, but also to declaratory actions, Nat'l Private Truck
B-3

Council v. OKL Tax Comm'n, 115 S.Ct. 2351, 2354 (1995), and

suits for tax refunds, Marvin F. Poer and Co. v. Alameda, 725
F.2d 1234, 1236 (9th Cir. 1984). Thus, Plaintiffs’ claims for

relief must be dismissed unless no "plain, speedy, and efficient
remedy" is available in State court. The Supreme Court has
directed, however, that the inadequate State remedy exception
be narrowly construed, and that such a remedy is adequate if it
provides a mechanism for obtaining a refund even if declaratory
relief is not available. California v. Grace Brethren Church, 457
U.S. 393, 413 (1982).

California State law provides state court procedures for
corrections, cancellations, and refunds of illegal or
unconstitutionally assessed or collected taxes. Cal. Rev. & Tax.
Code §1401 et seq.

Plaintiff states that because he has already been before
the Franchise Tax Board and the Board of Equalization there is
no remedy at the state level. However, State law permits a
taxpayer to seek relief in the superior court in the county in
which property is located. Cal. Rev. & Tax. Code §4808.
Plaintiff has not sought relief in State court, and that remedy
is still available to him. In addition, questions regarding the
constitutionality of taxes may also be properly addressed to
State courts. In light of the foregoing, it is clear that Plaintiffs

B-4

have an adequate State court remedy, and their claims are

therefore barred by the Tax Injunction Act

IT IS SO ORDERED

DATED: 11/24/97 /s/_ Spencer Williams
SPENCER WILLIAMS
United States District Judge

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386006_1613%3A1. Public record. Not legal advice.