Opposition Brief — Clark v. Jenkins

No, 92-69

IN THE

Supreme Court of the United States

OCTOBER TERM, 1992

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Eighth Circuit

JOINT BRIEF IN OPPOSITION OF RESPONDENTS

KANSAS CITY, MISSOURI SCHOOL DISTRICT, ET AL.

KALIMA JENKINS, ET AL.. AND AMERICAN

FEDERATION OF TEACHERS, LOCAL 691

ARTHUR A. BENSON, I]

$I

ARTHUR BENSON & ASSOCIATES \I NR

Suite 1125 PATRICIA A. BR

1000 Walnut Street DANIEL BKB. KOTRM

Kansas City, Missour) 6410¢t HOGAN & HAR

R16) 842-7603 5 7] \\

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C unsel for Resp ndernt Wa i b n, UU

Kal ma Jenk ns. ef 202 ' (-07¢41

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Scott A. RAISHER SHIRLEY WARD K

JOLLEY, WALSH & HAGEPR BLACKWELL SANDERS M

, ; Vrapy ann ] sRAt

204 W. Linwood ; WEARY AND LOMBAR

Kansas City, Missouri 64111 wo Pershing Squa

816) 561-3755 . Main Street

: Kay { ‘ \I CA ‘

Counsel for Respor Lent 1 me . ° . ; . 4 si"

Federation of Teacher OLN (4-081

Local 691 Counsel for R ts K

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WILSON - EPES PRINTIN IN 789 3 Wa

SS Se ee ey A eT

COUNTERSTATEMENT OF QUESTIONS PRESENTED

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TABLE OF CONTENTS

COUNTERSTATEMENT OF

SENTED

TABLE OF AUTHORITIES

OPINIONS BELOW

COUNTERSTATEMENT OF THE CASE

A. The Underlying Funding Orders

B. Actions Pursuant to the Modified Procedures

C. The Tax Protests

D. The Tax Refund Proceedings

REASONS FOR DENYING THE WRIT

|. THERE ARE NO SPECIAL AND IMPOR.

TANT REASONS FOR THIS COURT TO

REVIEW THE LOWER COURTS’ DECISION

rO LIMIT REFUNDS OF 1987-88 KCMSD

PROPERTY TAXES TO TAXPAYERS WHO

PAID UNDER PROTEST

Il. GRANTING CERTIORARI TO REVIEW THE

DENIAL OF KCMSD PROPERTY TAX RE-

FUNDS FOR 1988-89 WOULD BE INCON-

SISTENT WITH THIS COURT'S TRADI-

TIONAL DEFERENCE TO FINDINGS OF

FACT BY LOWER COURTS, AND WITH

THE COURT’S BROAD REMAND ORDER

CONCLUSION

QUESTIONS PRE-

9 Ce

ayt

iv

TABLE OF AUTHORITIES

CASES:

A mie rican Tr eh ng A SSOC ations . Smit] A 196 1).

167 (1990)

Ge Oorge Moore Ice Cream Co. v. Rose : 289 U.S. 373

(1933) 13

Goodman v. Lukens Steel Co., 482 U.S. 656

(1987) 16,18

Graver Tank & Manufacturing Co. v. Linde Air

Products Co., 336 U.S. 271 (1949) 18

Jenkins v. Missouri, 672 F. Supp. 400 (W.D. Mo.

1987), aff'd in part and modified in part, 855

F.2d 1295 (8th Cir. 1988), aff’d in part and rev'd

in pa rt, 495 USS. 33 ( 1991 ) zy 3

Jenkins v. Missouri, 807 F.2d 657 (8th Cir. 1986)

(en banc), cert. denied, Kansas City, Missouri

School District v. Missouri, 484 U.S. 816 (1987) 3

Jenkins v. Missouri, 855 F.2d 1295 (8th Cir. 1988),

cert. granted in part on other issues, 490 US.

1034 (1989) 3, 4

Mathews v. Eldridge, 424 U.S. 319 (1976) 15

McKesson Corp. v. Division of Alcoholic Beverages

and Tobacco, 496 U.S. 18 (1990) 8, 12, 13, 14

Missouri v. Jenkins, —— U.S. ——, 112 8S. Ct. 437

(1991) 3

Missouri v. Jenkins, 495 U.S. 33 (1990) pa

NCAA v. Board of Regents, 468 U.S. 85 (1984) 18

North Laramie Land Co. v. Hoffman, 268 U.S. 276

(1925) 15

Rogers v. Lodge, 458 U.S. 613 (1982) 19

Texaco, Inc. v. Short, 454 U.S. 516 (1982) 15

Tiffany Arts, Inc. v. United States, 469 U.S. 310

(1985) 18

United States v. Ceccolini, 435 U.S. 268 (1978) 19

Zinermon v. Burch, 494 U.S. 113 (1990) 15

STATUTES:

Mo. Rev. Stat.

Mo. Rev. Stat.

Mo. Rev. Stat.

139.031

139.031.1

139.031.2

g

3

g

s

g

>

passim

10

LO

TABLE OF AUTHORITIES—Continued

RULES: Page

Fed. R. Civ. P. 23 7

Sup. Ct. R. 10.1 10

IN THE

Supreme Court of the United States

OCTOBER TERM, 1992

No. 92-69

ICELEAN CLARK, et al.,

Petitioners,

V.

KALIMA JENKINS, et al.,

Re spond nts,

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Eighth Circuit

JOINT BRIEF IN OPPOSITION OF RESPONDENTS

KANSAS CITY, MISSOURI SCHOOL DISTRICT, ET AL.,

KALIMA JENKINS, ET AL... AND AMERICAN

FEPERATION OF TEACHERS, LOCAL 691

OPINIONS BELOW

The decision below by the Court of Appeals has been

reported as: Jenin . Missoun, 962 F.2d 762 (8th Cir.

> rl 1, & patie tuceen arn suet? 2 ee . : . ot ]

1992). The district court’s opinion is unreported.

COUNTERSTATEMENT OF THE CASE

Petitioners Icelean Clark, et al., ask this Court to re-

view the tax refund rulings that followed the Court’s

remand ord: 4 in Missouri uv. Je nkins, 495 U.S. 33 (1990)

“Jenkins 11°), The decisions below involved the inter-

pretation of a state statute, the application of clear prin-

ciples of federal law, and judgments well within the dis-

cretion of the lower courts. These orders are unworthy

of this Court’s scrutiny because Petitioners have pre-

sented no ‘special and important reasons” justifying this

Court’s review. Sup. Ct. R. 19.1.

In Jenkins IT this Court held unlawful a district court

decision to directly raise property taxes in the Kansas

City, Missouri School District (“KCMSD” or the “Dis-

trict’) ,' Jenkins v. Missouri, 672 F. Supp. 400 (W.D. Mo.

1987), and reversed the Court of Appeals, Jenkins v.

Missouri, 855 F.2d 1295 (Sth Cir. LOSS), “insofar as it

allowed the tax increase imposed by the District Court

to stand.” 495 U.S. at 58. However, this Court affirmed

“the modifications to the District Court’s order made by

the Court of Appeals,” id. at 52, and remanded “for fur-

ther proceedings consistent with | Jenkins [7|,” id. at 58.

On remand, the lower courts handled Petitioners’ tax re-

fund claims in a manner consistent with the commands

of this Court.

A. The Underlying Funding Orders

The district court ordered an increase in KCMSD prop-

erty taxes as a last resort, and as a measure to fund

desegregation obligations which the District otherwise

could not meet, because of state law constraints on its

capacity to raise revenues. Sce 495 U.S. at 40-41.

KCMSD’s funding obligations arose from a= series of

court orders holding both KCMSD and the State of Mis-

souri liable for expenditures necessary to remedy severe

conditions of school segregation within the KCMSD. /d.

at 37-41.°

'The Kansas City, Missouri School District respondents include

the school district itself and its Superintendent, Dr. Walter L.

Marks.

“KCMSD brought the original complaint in this action against

the State and a group of suburban school districts surrounding

Kansas City, Missouri: KCMSD later was realigned as a defendant

and separate counsel was retained to represent the plaintif£{school-

children. The case went to trial on the plaintiffs’ claims and the

eross-claims of KCMSD against the State. Jd. at 37. Following the

On September 15, 1987, the district court ruled that

KCMSD needed an increase in its property tax levy,

among other measures, in order to fund desegregation.

After taking into account various factors, including

KCMSD’s historical property tax rates and rates pre-

ailing in other school districts in the KCMSD region,

the district court concluded that an increase in KCMSD’s

levy rate from $2.05 to $4.00 ‘per $100 of assessed valua-

lon! Was appropriate. The district court ordered such an

increase into effect through fiscal year 1991-92. Jenkins

-

Vissouri. 67 |

2h. Supp. at 411-1335 see Jenkins Il, 495

In an opinion issued August 19, 1988, the U.S. Court

of Appeals for the Kighth Circuit “affirm|ed| the actions

hat the |district| court had taken to thl|at| point.” 495

U.S. at 42-483. The Eighth Circuit “held that ... state-

law limitations |preventing KCMSD from raising funds

sufficient to meet its desegregation obligations] must fall

+ ;

0 the command of the Constitution.” /d. at 42. The

Court of Appeals also left untouched the district court’s

g that a 84.00 property tax rate was reasonable and

necessary for the KCMSD. See 855 F.2d at 1314-16. In

addition, the Court of Appeals sustained the district

court’s decision to directly order such a tax increase; how-

ever, it “required that in the future, the District Court

should not set the property tax rate itself.”” /d. at 43.

1, the Court of Appeals declared, KCMSD should

district court’s hability order, the American Federation of Teachers,

Local 691, was allowed to intervene. This Court has on thre

OCCa

ions declined to review rulings approving the components of. the

district court’s reme ay. See Jenkin wv. Missour , 807 F.2d 657 (8th

wif LYR6 en banc), cert den ed, Kan as Cit '- Missouri School

District v. Missouri, 484 U.S. 816 (1987); Jenkins v. Missouri, 855

F.2d 1295 (&th Cir. 1988), cert. granted in part on other } ‘sues, 490

U.S. 1034 (1989); Missouri v. Jenkins, ORLY bin wo GA

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omised. KCMSD on ¢

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own had approved a levy rate of $4.00 for 1988-89, and

submitted it to county tax collection officials. Pet. App. 6

A43. Neither any of the original parties to this case, nor

even Petitioners, objected to KCMSD’s actions. On the

contrary, in December 1988, Petitioners informed the dis-

trict court they “agree! d]” with KCMSD that it had been

the “appropriate course of action” for the District itself

to certify the present $4.00 rate... for the 1988-89

vear,”” once the October 11, 1988 deadline had passed with

out the Court ol Appeals mandate being issued.”

On January 3, 1989, the district court denied KCMSD’s

still-pending motion to set a maximum tax levy rate of

$4.23. The district court declared that because 1988-89

tax bills reflecting the $4.00 rate already had been sent, |

Was too late to authorize a new maximum levy for that

vear. Pet. App. As6.'

C. The Tax Protests

)

In 1987-SS8 and 1988-89, large numbers of KCMSD tax

pavers paid the court-authorized $1.95 portion of their

property taxes under protest, pursuant to state law, Mo.

lity of

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tux increases associated with funding desegregation, Ap-

Rev. Stat. £ 139.031, in order to challenge the Jega

proximately 9,000) taxpayers protested approximately

$10.7 million in property tax payments for 1987-88. For

1988-89, approximately 10,000 taxpayers protested their

S Like KCMSD, Petitioners endorsed the $4.00 rate as reasonabl

inder the circumstances, “pursuant to thle District} Court's S

tember 15, 1987 order” approving that rate. See “Amici Curia

Icelean Clark Et Ai’s Memorandum in Opposition to KCMSD’s Mo

tion for Approval of a Maximum Property Tax Levy Rate and Fi

an Order Regarding Tax Abatements” (served December 7, 1988

at 4. Petitioners indicated they would challenge all desegregat

related tax increases not approved by the voters, but they didn

contend the 1988-89 increase violated the Court of Appeals’ modifi

procedure s

‘The district court also held that KCMSD’s r¢

est for a furthes

increase in the levy rate to 4.23 for 1989-90 was premature. Jd

property tax payments of approximately $9.4 million, Pet.

tf n.4:6n.5. For both years, protests accounted for be-

tween 20°) and 25% of all KCMSD property tax revenues

trinutable to the challenged tax = ' One of the

reasons so Maly taXpayvers relied on state law tax protest

procedures Was public statements by Petitioners’ counsel,

al multip le press conferences, urging tuxpayers to do so.

See Pet. App. AG.

D. The Tax Refund Proceedings

The district court permitted Petitioners, eight individ-

uals and three corporations subject to KCMSD’s tax levy,

to intervene in the Jenkins litigation to seek tax refunds

for 1987-88 and 1988-89. Pet. App. A24, Although the

Petition alleges the entitlement of all KCMSD tax payers

to refunds for the two years, Aged never sought

class certification pursuant to Fed. R. Civ. P. 23, and no

such relief ever was granted by the Betetet court. The

laintiff schoolchildren, KCMSD and the State all opposed

Petitioners’ request for tax refunds, except for 1987-88

taxes paid under protest; none of the respondents opposed

Petitioners’ intervention request. See Pet. App. A13-A14.

The district court rejected Petitioners’ claim for a full

refund of all 1987-88 KCMSD property taxes collected

pursuant to the $1.95 tax increase, regardless of whether

iiled under protest. Based on a careful analysis of state

statutory and decisional law, the district court held that

Mo. Rev. Stat. § 139.031, which limits refunds to tax-

pavers who paid under protest, “controls this case.” Pet.

7 Pursuant to Mo. Rev. Stat. § 129.031, these protested funds were

held in escrow by Jackson County, Missouri officials. Pet. App. Al4

A21. Petitioners acknowledged below that by fiscal vear 1989-90,

over 18,000 taxpayers made use of the protest process provided |

Mo. Rey. Stat. §$ 139.031. See “Memorandum in Support of Inte

venor Icelean Clark, Et Al.’s Motion to Recover Full Refund

Court-Ordered Property Taxes” (served June 15, 1990), at 7 n.d

&th Circuit Joint Appendix at 59

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\ 11s ne : cou) uso denied Petitioners

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( I} ap A O¢ Ind process desitoned HN ne ¢ 11} Sel]

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f na NilCe nm Ol ne §s e statute Was requ red

¥ DD A44343 ] ai .

io | | I ¢ IO?) rs due Process inde? Me Ke Tay. ( 0)

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j/ : Praolve AY f “des and T haces 19¢ | ~

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i | : SLECaAU t iis { ( l) ¢ | q LOSSES

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this Court, Petitioners’ claim th: hey were denied due

? cess ‘ e } } i¢ i t ! Ct Ul nN Va-

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App. A9

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With respe YSS8-S9 KCMSD prone kes, tne

r ec A . 4} ve ot? . ‘

i i i < ©» ou ii cu (lis 4 \ i = Lit i |

— Pos 77 Petitione) Bot} ;

iny relund to f loners OLN COUrlts rerused to accep

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P loners Claims regarding the purpose and effe

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¢ ( j - mlor orders Likewise. ney reyected

8) — eo ny | pee kT} erie ak aii a =

DOoalra Oo] MmaUuUcatlon i € i0oWer COUrls also rOUNad VDaseless

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P ners Clalm tn: j i al establisnes thelr entitle

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ment to a full refund. Pet. App. A9-A10, A19-A?]

P ‘ . 4 — rt ,

f WMers Co? Ue ( rely on a variety ol ractua

ntentions that were rejected hy the Inwar annes First

COnLEe nS that were revected bp\ ne iower Courts. LE Oks

Pantset; : ‘ t +h of +] @ aa) £%. 2.9 1° . +7 ] +

Pe MIOHers asse) tna tne KK MSD Board premised Its

solution adopting a 1988-89 tax levy on the distri

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courts 1YS% direct aX INCrease id . which Was Ilale}

} : 3 ; ) ae ee aa a oa 5 ee :

held invalid. Peti loners argue that this coneciusion Tol-

\t ry +h lin . ] } aa ) ) }

LOW Prom ne Wording I AX ieVY resoiullons acgoptead Dv

} > ] Pon +1. = 4 4 L. 6) x7)

tne Board, and also from the date tne Board

4.00 rate for 1988-89: October 11, 1988, three days b

fore the Eighth Cireuit’s mandate issued. Pet. 5. 6. 18-22.

Both lower courts held otherwise, concluding that KCMSD

acted iccordance with the moditied procedures first

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res e } satisfied for 1988-89 be-

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REASONS FOR DENYING THE WRI'I

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: er courts on remand of Je) :

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1) nalysis of Missouri tax law,

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f e QQ on I clea) prineiples of

nique imstances of this complex

eon ‘ay, CASE

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lq “ } Past ‘ } C€se relund requests

10

Yet the clarity of Jen/ins J's unanimous holding that a

direct judicial tax increase was unlawful means that the

issues Petitioners ask the Court to address likely will

ver arize again. Moreover. Petitioners have demon-

strated no error in the lower courts’ ruling much less an

important question of federal law. Thus, no “special and

Important reasons” for review are posed by the Petition

for Certiorari, Sup. Ct. R. 10.1, and it should be denied.

I. THERE ARE NO SPECIAL AND IMPORTANT REA-

SONS FOR THIS COURT TO REVIEW THE LOWER

COURTS’ DECISION TO LIMIT REFUNDS OF 19s 7-

ss KCMSD PROPERTY TAXES TO TAXPAYERS

WHO PAID UNDER PROTEST

4

Instead of showing “special and important reasons”

justifving review of the lower courts’ decisions limiting

refunds of 1987-88 KCMSD property taxes, Sup. Ct. R.

10.1, Petitioners have presented theoretical alternative

rulings or a variety of factual and legal issues. The Peti-

tion fails to demonstrate any adequate grounds for tht

Court to explore these questions.

The lower courts both held that provisions of a Missouri

statute governing tax protests and refunds, Mo. Rev. Stat.

< 139.031, apply to this case. The statute provides, in

pertinent part:

Any taxpayer may protest all or any part of any

xes assessed against him, except taxes collected by

director of revenue of Missouri. Any such tax-

siver desiring to pay any taxes under protest shall,

at the time of paying such taxes, file with the col-

ector a Written statement setting forth the grounds

on which his protest is based. ...

Mo. Rev. Stat. § 139.031.1 (1987 Supp.) (amended

1989).° Based on a careful review of the text of the

S Mo. Rev. Stat. § 139.031.2 requires public officials to maintain

protested funds in escrow and sets forth procedures for taxpayers

1]

statute, of State court decisions interpreting it, and of

the unique circumstances of this case, the lower courts

held that only those KCMSD taxpayers that protested

their 1987-88 property tax increase were entitled to a

refund. Pet. App. Al0-Al11, A18.

Petitioners urge this Court to reconsider several aspects

of the lower courts’ analysis of Section 139.031. In par-

ticular, they contest determinations that the statute ap-

plies, on its face, to “any taxes,” including a property tax

levy ordered by a federal court, rather than only to cer-

tain taxes levied by state authorities. Pet. 12: Pet. App.

A7. Petitioners also dispute rulings below that a broad

reading of the statute is supported by state court deci-

sions applying Section 139.031 to “a variety of taxes.”

Pet. App. A7; Pet. 12. Third, Petitioners challenge the

lower court’s finding that determining whether a tax is

covered by Section 139.031 is more complex than merely

identifying “the origin of the levy,” and requires an

examination of such factors as how and by which authori-

ties the tax is billed, to which authorities it is paid, which

authorities benefit from revenues collected, and so on.

Pet. App. A7; Pet. 13." Finally, Petitioners dispute the

lower courts’ judgment that in light of the facts at issue.

Section 139.031 applies to their refund requests,

Surely these issues of Missouri tax law are of insuffi-

clent consequence to warrant this Court’s review. Fur-

thermore, in some instances—-such as the question whether

“the federal trial court was the de facto taxing author-

ity,” Pet. 10—the matters raised by Petitioners are so

fact-bound as to be inappropriate for this Court’s docket.

to initiate an action in state court seeking recovery of protested

funds. See Pet. 11.

* Petitioners err in accusing the Court of Appeals of Wholly dis-

counting the importance of the “origin of the levy.” Pet. 12. The

Eighth Circuit simply suggested that the origin of the tax was onl\

one relevant factor when considering the possibl application of

Section 139.031 to the court-ordered tax increase. Pet. App. A7.

12

It would be equally inappropriate for the Court to grant

certiorari te review any of Petitioners’ arguments against

a partial 1987-88 refund that are based on federal law.

The principal federal question on which Petitioners seek

review is whether the district court violated principles of

due process by relying on Section 139.031 and failing 10

devise a refund procedure on its own.

Both of the lower courts correctly ruled that this

Court’s decision in McKesson Corp. v. Division of Alco-

holic Beverages and Tobacco, 496 U.S. 18 (1990), squarely

supports their application of the Missouri tax protest stat-

ute, consistent with principles of due process. Pet. App.

A7-A9. The Court of Appeals noted, in particular, that

“McKesson . . . specifically approves the protest and

escrow procedures that are at the heart of section

139.031.” Id. AY.

MeKesson held unconstitutional the State of Florida’s

refusal to provide certain taxpayers aiy opportunity for

a refund of taxes they paid which were later held unlaw-

ful. This Court declared that a state may impose limits

on taxpayers’ rights to obtain a tax refund, after pay-

ment of taxes assessed, so long as those limits do not deny

taxpayers “a meaningful opportunity to secure postpay-

ment relief for taxes already paid pursuant to a tax

scheme ultimately found unconstitutional.” Pet. App. A&

(citing 496 U.S. at 22, 110 S. Ct. at 2242). As both

lower courts in this case recognized, see Pet. App. A8&,

Al16-A17, WeKesson establishes that reasonable limits on

tax refunds serve important public goals. Such “proce-

dural protections,” the WeKesson Court declared, “secure

la] State’s interest in stable fiscal planning,” and guard

a State and its citizens “against any disruptive effects of

a tax scheme’s invalidation.” 496 U.S. at 45-47, 50.

In describing specific limits on tax refunds that are

consistent with due process, this Court said: “The State

might for example provide by statute that refunds will

be available only to those taxpayers paying under protest

13

. and or place challenged tax payments into an escrow

account.” Pet. App. A8-A9 (citing 496 U.S. at 44-45,

110 S. Ct. 2254-55). Under McKesson, the kind of

mechanism provided by Section 139.031 clearly comports

with due process. In light of this settled point of law,

there exists no significant issue of federal law for the

Court to address.

Nevertheless, Petitioners urge this Court to grant re-

view to consider their assertion that “|t|he clear import

of McKesson is that where a federal court unlawfully

assumes the authority to levy and collect a tax, the federal

court must provide taxpayers with notice and a meaning-

ful opportunity to protest the tax and protect their right

to a refund in order to satisfy [due process!.” Pet. 16.

For a host of reasons, this argument is far-fetched, and

an unworthy basis for granting certiorari. First, be-

cause the court-ordered tax in this case was sii generis,

Pet. 8, even if Petitioners had a plausible legal argument,

there would be no significant value in agreeing to consider

it. That is, no purpose would be served by establishing

a precedent regarding a kind of taxation that is virtually

certain never to recur, much less to require federal courts

to adjudicate refund claims. Second, even if Petitioners

are correct that the district court itself was required to

adopt tax refund procedures that satisfy due process,

then under McKesson, it did just that in relying on See-

tion 139.031."

' In Section 139.031, Missouri has codified the traditional common

law rule that protest at the time of payment is a condition precedent

to recovery of an unlawful tax. See George Moore Ice Cream Co. v.

Rose, 289 U.S. 373, 375 (1933). Several cases Petitioners cite for

a contrary proposition, that taxpayers “forced to pay an unlawful

tax against their will” are presumptively “entitled to a full refund.”

Pet. 9-10, simply do not establish any such rule. In fact. none of

Petitioners’ purported authorities say anything about tax refunds,

and only one concerns taxes at all.

In an effort to create a federal legal issue where none exits,

Petitioners grossly distort McKesson, suggesting that it bars meas-

t Petition-

ers seek a ruling by this Court that because the district

court was the author of the unlawful tax increase, it

Was constitutionally prohibited from relying on Section

: z ] ; ] t “)t 1 *y? 1} ‘Si ‘val z

139.031, and was required in order to satisfy due process

to devise a wholly separate tax refund mechanism of its

own ‘and presumably to establish a court-run bureaucracy

to administer it). Petitioners seek certiorari in a quest

for a decision that would undermine both Mckessov,

which approved measures such as Section 139.051, as

well as the federal state comity principles announced in

Jenkins Il. Surely leaving undisturbed the lower court’s

lance on state tax law and administrative practice

would be more consistent with notions of federal judicial

restraint—-which explain this Court’s rejection of a judi-

cial tax increase—than would a ruling that the district

court should have ignored state iaw on tax refund

procedures.

In the past, ‘‘|c]onsiderations of federal state comity’

have led the Court not to intervene in situations such as

this; that is, when the Court has “held state taxes uncon-

stitutional ... it has |made a] practice to abstain from

deciding the remedial effects of such a holding.” Amer-

can Trucking Ass’ns ve. Smith, 496 U.S. 167, 176 (1990).

res such as Section 139.031, affording “remedies falling short o

complete rerul in the event of a tax that ‘was be yond the state

power to impose,”’ and that it sanctions such measures only in

involving taxes that are “discriminatory.” Pet 16. Rather

McKesson simply reaffirmed that government violates due process

whenever it does “ ‘not incur ony obligation to pay ... back’ ”’ unlaw

fully collected taxes. 496 U.S. at 39 (emphasis added cltatior

omitted). Consistent with this principle, Florida was free to adopt

“various procedural requirements on actions for post deprivatio

relief,” such as those imposed by Section 139.031. Jd. at 44. Becaus

Section 139.031 facilitates refunds for those who pay under pro

test, however, Petitioners ure flatly wrong in criticizing the lower

s for permitting the collection of a tax without recognizing

+s ] S . ‘ -

anv obligation to require repayment once it is found unlawf

ll

The Court’s approach also indicates the district court

acted properly in this case by a re to state law,

rather than asserting “itself in th|e] complex area of

State tax structures.” /d. (citation omitted).

Petitioners acknowledge that the due process analysis

they ask this Court to undertake is distinetly fact-based.

ariegieriite ts agree with Petitioners that “|w]hat consti-

tutes a ‘meaningful’ opportunity to be heard is flexible,

depe oie on the procedural protections demanded by par-

ticular situ: itions.”’ Pet. 15 (citing, inter alia, Zinermon

v. Burch, 494 U.S. 118, 127-28 (1990): Mathews

v. Eldridge, 424 U.S. 319, 334-35 (1976)). This observa-

tion simply confirms that it is proper to leave to the lower

courts the question whether Section 139.931 satisfies due

process in this instance. Granting certiorari would

divert the Court from its role as a final arbiter of vital

federal legal issues, and would simply cast the Court in

the role of a fact-finder of last resort.

Finally, there is no merit whatever to Petitioners’ re-

quest that the Court take this case in order to consider

whether they received constitutionally adequate notice of

their obligation to comply with Mo. Rev. Stat. § 139.031.

That question poses no substantial federal legal issue.

Rather, the Court of Appeals was plainly correct in hold-

ing, based on principles this Court established over a half

century ago, that non-protesting KCMSD taxpayers must

be held legally responsible for knowing about statutory

remedies at their disposal. Pet. App. A9 (citing, inter

alia, Texaco, Inc. v. Short, 454 U.S. 516, 532 n. tg (1982) ;

North Laramie Land Co. v. Hoffman, 268 U.S. 276, 283

(1925) (‘“lajll persons are charged with ae edge of

the provisions of statutes and must take note of the pro-

cedure adopted by them”’) ).

Unaccountably, Petitioners ignore this settled law. In-

stead they rest on a bare emotional appeal that this

Court’s intervention is needed to restore losses incurred

by unwitting taxpayers. Sce Pet. 8-9, 17. Petitioners fail

to demonstrate that this case is fundamentally different

a i i

from any other in whicl pavers have failed to use

} ] ) ]

reme lies } cle i toO ne} ; eT oners WSO Make ne

trivolo assertl1o i Section 139.031 provides “no sate

corporations receive KCMSD property tax notices,

bi weeen Y OOD and LO.000 KCAMSD faxpDaAVelrS invoked Sec-

ion 139.031 in 1987-88 and 1988-89, and moreover, that

Petitioners’ counsel themselves worked o publicize the

ib] of the ate ta yrotest remed Ser pra

at b-(

Il. GRANTING, CERTIORARI TO REVIEW THE DE-

NIAL OF KCMSD PROPERTY TAX REFUNDS FOR

1988-89 WOULD BE INCONSISTENT WITH THIS

COURT'S TRADITIONAL DEFERENCE TO FIND-

INGS OF FACT BY LOWER COURTS, AND WITH

THE COURTS BROAD REMAND ORDER

Petitioners-ask this Court to review numerous findit

ct | he lower courts in connection with the den

f KCMSD property tax refunds for 1988-89. These

ndings concern the e of the ons of the KCMSD

School Board, as w = those of the district court and

he Court of Appeals. The P on fails to justify sucl

1 request for e Cour oO ce fror ts role

Mu} I lav rather than a cou) for correctio?

if errors in fact-finding ( man ] e) Steel (

ig? tS. 6a6.. 665 148 I} fact Ji j IT] o ne

wer courts a broad assignment on remand, thus recog

nizing the Court’s traditional function and establishi1

he lower courts’ primary responsibi for handling suc

questions as tax efunds

B its made fact findings co rv to Peti-

ners’ assertion that the 198&-&9 | ncerease was not

de d he Kansas ( Schoo

5 Ka 2 18. Thev held e Board f se

G22 Ilo ( 11. 1988.” Pet. Ay 410 ( e-

18

Ol Ay eals each held hat KCMSD adopted a levv for

) based « he authority of the Eighth Circuit’s

\ugust 19, L988 opinion, which modified the tax increase

cedures estublished by the district court, but did not

disturb its findings regarding the reasonableness of the

£4.00 pate. Jd. In short, each of the factual premises of

Petitioners’ interpretations of the actions of the KCMSD

Board has been rejected by both lower courts. Pet. App.

l

This Court has often declared that because it is a court

of law. it “cannot undertake to review concurrent findings

of fact by two courts below in the absence of a very obvi-

ous and exceptional showing of error.” Goodman v. Lukens

Steel Co.. 482 U.S. 656, 665 | 1987), quoting Graver Tank

& Mra. Co. ve. Linde Air Products Co., 336 U.S. 271, 275

(1949)... Because Petitioners have failed to make such

August 22, 1989, both establishes KCMSD’s reliance in that year

on the Court of Appeals’ modified procedures, and corroborates

KCMSD’s reliance on the district court’s 1987 order in prior years.

Pet. 22-23. These factual assertions also were presented to and

14 The lower courts have not bothered to address another of the

supposed “inconsistencies” identified by Petitioners. The KCMSD

;

Board’s simultaneous support for two different rates as “reasonable

and necessary” in the Fall of 1988, see Pet, 21, plainly reflects the

Board’s attempt to argue in the alternative for a rate ($4.00 that

already had been found to be reasonable and higher rate $4.23 )

that the Board hoped the district court would find to be reasonable

Onee the KCMSD Board decided time had expired to seek the higher

rate for 1988-85, the Board set the lower rate for 1988-89, pursuant

to the Eighth Circuit’s modified procedures, and supported the

higher rate only for 1985-90. See Pet. App. A4-A5, A9-A10. Pet

tioners’ claim that this amounts to wanting to “have it both ways,”

Pet. 21, is meritless.

See. als e.a.. Tiffany Arts, Inc. v. Ur ited States, 469 U.S. 310,

817-18 nb (1985 noting “reluctance to disturb findings of fact

concurred in by two lower courts”); NCAA v. Board of Regents,

168 U.S. 8&5, 98 n.15 (1984 Court accords “great weight to a

finding of fact which has been made by a district court and approved

19

an “exceptional showing of error” with respect to the

“concurrent findings of fact” discussed above, a decision

to review the lower courts’ rulings on these issues would

be inconsistent with this Court’s “traditional deference to

rts rule.” United States v. Ceccolini, 435

U.S. 268, 273 (1978) (citation omitted).

Petitioners also propose that this Court sift through

the lower courts’ conclusions regarding the purpose and

effect of several of their own rulings. This task also

would put the Court in the inappropriate position of the

One of the key assertions in the Petition is that the

Court of Appeals did not put into effect its modified pro-

lures, first announced August 19, 1988, until after the

billing and collection of the 1988-89 KCMSD property tax

}? ‘ ~))

Increase, Pet. 22. The principal assumption underlying

this contention is that the Court of Appeals intended that

district court issue a separate order explicitly ap-

proving any L9S88-89 levy rate chosen by KCMSD, includ-

ing the $4.00 rate the district court previously had ap-

proved (as reasonable and necessary) in fact-findings the

ighth Circuit had declined to question. Petitioners also

argue that the district court never issued such an order

before the 1988|-89] taxes were levied and paid’; in

short, “KCMSD could not alone set this levy; the District

Court had to approve it.” Pet. 21.

This string of interpretations conflicts with the lower

courts’ own conclusions regarding the purposes of their

orders. In particular, the Court of Appeals has stated

that its modified procedures were “fully effectuated |in

October 1988] by issuance of its mandate,” and that as a

result, the 1988-89 “taxes were collected lawfully” pur-

suant to those procedures. Pet. App. Al10. Thus, the

ighth Circuit has made clear that in its view, no further

by a court of appeals”) ; Rogers v. Lodge. 458 U.S. 613, 623 (1982

(fame

20)

steps were required by the district court in the Fall of

IMs. With specific regard to district court approval of

he 1988-89 levy rate, the Eighth Circuit has stated that

listrict court already “obviously” had approved the

$4.00 rate as reasonable in 1987, and “tacitly” approved

same rate again in January 1989. Pet. App. A10.

he district court also has ruled that under the circum-

stances presented in 1988, it was unnecessary to Issue a

separate order—pzior to tax billing and_ collection—ap-

roving the 54.00 le\ V ral adopted Vv the KCMSD Board

t the KCMSD

followed the modified proce dure appro ved by the [is ohth

cul firmed ny the Supreme Court. The prope.

cus Is on what action the KCMSD took.’ Pet. App. A19.

Respondents wsdl Ce porters that this Court should

defer to the lower courts’ own judgments regarding im-

plementation of their prior orders in light of the par-

: > » ve rT | ve ~ — ne + «

for LOSS-S9: rlhere is no question tha

es rszraiarw +¢an ata rican? : ae

icular facts presented In 19YSs-s9,

"Fr". 5 ’ /* ¢ ) a +7 ex 104 4+ . ee) 4.

This Court is asked to grant certiorari, with regard to

he denial of refunds for 1988-89 KCMSD property taxes,

he basis of one other claim: that Jevhins 17 contains a

lea inte ev. iO} f t] effect \¢ da for the > leh th

Cireuit’s!| modified tax scheme.” Pet. 23. apc

issertion is belied by the fact that the Jenkins IT Co

ever addressed this issue directly, but only pees it

2 fo tnote, Wnose apparent MUrpose Was to establish

*!t+lhe Court of Appeals’ discussion of the procedures

o be used in the future was not dictum.” 495 U.S. at 52

D a

]

ls. This conclusion served as the predicate for Section

IV of the Court’s opinion, in which the Court affirmed the

modi tic d procedures.

Although this Court was surely “careful” in describing

+ ehh 7 Fg 1) . re % ’ o4 . ] ’ . oe ‘>

events that followed the Court of Appeals’ decision, Peti-

a

unfairly and inaccurately suggest that the Court

had at its dispesal all it needed to compile a thorough

“chronology” of the process of setting a property tax levy

for 19ss-89. Pet. 20. The record before this Court in

)

use

CCa

‘iS s-5 4}

ar 1

une re\

Ol

isea

“MSD property

‘hus, 1t pr

t« t \

) Tf \

AX aw ¥ }

‘

]y73°

roced tae

years Priv o this Courts decision. fre Ap} A20. Che

lower courts acted properly in accordance with these

ay ee |

euldeines

T , } |

Petitioners’ assertion that the lower « Ss misinter-

yveted this Court’s legal and factual rulings in Jenkins

| , ley

vides a wholly

basis for granting the Petition of Certiorari.

CONCLUSION

For the foregoing reasons,

denied.

I

HUR A. BENSON, II |

RTHUR BENSON & ASSOCIATES

Suite 112

1000 Walnut Street I

Kansas City, Missour! 64106

(816) 842-7603

Kalima.

SCOTT A. RAISHER

JOLLEY, WALSH & HAGER, P.C

204 W. Linwood

Kansas City, Missouri 64111

(816) 561-3755

Counsel for Respondent America

Federation of Teachers,

Local 691 f

September 11, 1992

) . foal ley . Ot na

vespectfully submitte

YAVID S. TATEL

ALLEN R. SNYDER

D PATRICIA A. BRANNAN

MANIEL B. KOHRMAN

HOGAN & ILARTSON

555 Thirteenth St., N.W

Washington, D.C. 20004

637-5741

HIRLEY WARD KEELI

BLACKWELL SANDERS MATHENY

WEARY AND LOMBARDI

Two Pershing Square

R

2300 Main Street

ty, Missouri 64141

816) 274-6816

]

Kansas C1

for Respondents Kansas

City, Missouri School

D istrict, et al.

Counsel of Record