Petition for Writ of Certiorari — ANR Pipeline Co. v. Oklahoma Board of Equalization

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Supreme Court, U.S.

/\ FILED

041 990 JUN 5 - 1995)

tia OFFICE OF THE CLERK

IN THE

Supreme Court of the Hnited States

OCTOBER TERM, 1994

ANR PIPELINE COMPANY and

COLORADO INTERSTATE GAS COMPANY,

Petitioners,

V.

THE STATE BOARD OF EQUALIZATION

and THE OKLAHOMA TAX COMMISSION,

Respondents,

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF OKLAHOMA

PETITION FOR A WRIT OF CERTIORARI

REBECCA H. NOECKER*

KAREN L. PAULEY

VIRGINIA G. AMEND

P.O. Box 1087

COLORADO SPRINGS, CO

80944

(719) 520-4767

Counsel for Petitioners

June 5, 1995 * Counsel of Record

Balmar Legal Publishing Services, Washington, D.C., (202) 682-9800

ee

i

QUESTION PRESENTED

Whether, under the federal Equal Protection Clause, a

state’s decision to elect one method of compliance with a

federal anti-discrimination statute constitutes a rationally based

legitimate state interest sufficient to justify discriminatory tax

treatment of similarly situated taxpayers, even though the state

could elect other methods of compliance which treat similarly

situated taxpayers the same.

4 ie a so

See oii” Westie

SA a ia Sete lime

PARTIES TO THE PROCEEDING

The following parties participated in the proceedings be-

low and are petitioners: ANR Pipeline Company and Colorado

Interstate Gas Company. !

DISCLOSURE STATEMENT PURSUANT

TO RULE 29.1

The Coastal Corporation, through wholly owned interme-

diate subsidiaries, is the ultimate parent company of ANR

Pipeline Company and Colorado Interstate Gas Company, nei-

ther of which has subsidiary Corporations other than those

wholly owned.

Additionally, the following parties were in the proceedings below:

Petitioners—Williams Natural Gas Company, Williams Pipeline Company,

and Williams Telecom Group; Respondents—The State Board of Equaliza-

tion and The Oklahoma Tax Commission: and other Intervenors—E] Paso

Natural Gas Company, Transwestern Pipeline Company, Enron Oil and Gas

Marketing, Black Marlin Pipeline Company, Explorer Pipeline Company,

Aquila Gas Systems, Inc., Sun Pipeline Company, Mid-Continent Pipeline

Company, Northern Natural Gas Company, Natural Gas Pipeline Company

of America, and Western Gas Resources, Inc.

acai intitle

ree a ee

Feabitiand WEG hie

ili

TABLE OF CONTENTS

QUESTION PRESENTED .........-.-..-

PARTIES TO THE PROCEEDING ........

DISCLOSURE STATEMENT PURSUANT

TO Rape ek i PEN OU es

TABLE OF AUTHORITIES ............-

CRUE 5 ne ee ttt ee

Pi 8 ae ae ee

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ..........-.--

PAE cinta ele Whe FP a a

A. Factual Background .............

B. Proceedings Below ......5.2'.-%.

REASONS FOR GRANTING THE PETITION . .

CREE Goa os 6 oe ee we 6 eee 0

iV

TABLE OF AUTHORITIES

Cases Page

Allegheny Pittsburgh Coal Co. v. Webster County,

SP ith SPER EEE O86 Ae incere te 5,6,9,11,14

Cumberland Coal Co. v. Board of Revision,

ee UID. Ey Ae USO oy ieiaacs «ss 10

Department of Revenue of Oregon v. ACF Indus.,

Inc., 127 L. Ed. 2d 165, 171 (1994)(citing

Western Air Lines, Inc. v. Board of

Equalization, 480 U.S. 123, 131 (1987)) ... 6,7,11

Edelman v. Jordan,

Qt tie Gt, OF (1974) woe ae 12

F.S. Royster Guano Co. v. Virginia, 253 U.S. 412,

May Cs Ss Ake ge ie Gee 9

Federal Express Corp. v. Tennessee State Bd. of

Equalization, 717 S.W.2d 873 (Tenn. 1986) . 6

Hooper v. Bernalillo County Assessor, 472 U.S.

Che, BOR 6 a eee a eS 9

In re ANR Pipeline Co., 866 P.2d 1060 (Kan.),

cert. denied, 115 S. Ct. 296 (1994) ...... 6

Jackson Water Works, Inc. v. Public Utilities

Comm’n, 793 F.2d 1090 (9th Cir.),

cert. denied, 479 U.S. 1102 (1986) ...... 12

Jimenez v. Weinberger, 417 U.S. 628, 636-38 (1974) 13

Kennecott Corp. v. Utah State Tax Comm’n,

GOS F.-26 13ST UG TSF ee es 6

Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S.

Si, SG FED a cenit eedo e ewee Ses 9

Mathews v. Lucas, 427 U.S. 495, 510 (1967)... 9

Cases Pages

Metropolitan Life Ins. Co. v. Ward,

WI TOES ee ee 9

Nordlinger v. Hahn, 120 L. Ed. 2d 1 (1992)... . 5,6,9,12

Northern Natural Gas Co. v. State Bd. of Equaliza-

tion & Assessment, 443 N.W.2d 249 (Neb.

1989), cert. denied, 493 U.S. 1078 (1990) . . 5,7,8

Rinaldi v. Yeager, 384 U.S. 305, 308 (1966)... . 13

Shapiro v. Thompson,

394 U.S. 618, 641 (1969), overruled in

part on other grounds, Edelman v. Jordan,

WADE Goa als CPE a 7,12

Sioux City Bridge Co. v. Dakota County,

NE RP Ig odo ce ge en a 7

State v. Colonial Pipeline Co., 471 So. 2d 408

CA SP ROIED in ko kk we ke es 6

Western Air Lines, Inc. v. Board of Equalization,

SAE We La ED is de ss 7

Western & Southern Life Ins. Co. v. State Bd.

of Equalization, 451 U.S. 648, 668 (1981) . . 12

Williams v. Vermont, 472 U.S. 14 (1985) ..... 9,13

Zobel v. Williams, 457 U.S. 55 eee a eS 9

vi

STATUTES

49 U.S.C. § 1513 (recodified at 49 U.S.C. § 04116

CES 6 GE hc y's a's Sa Be ek 2,3,11

ie ee BREED 0 4. 0 oe cea eka 88 2,3

ie Sas ee sii is a. «056 4.4 ok 0 1]

es I i ee a es 14

Okla. Stat. Ann. tit. 68, § 2808 (West 1992) .... 2

Okla. Stat. Ann. tit. 68, § 2864(C) (West 1992) . . 2,3

i.e CO. ORE a SE eke ee ek eel es 2,9

] No.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1994

ANR PIPELINE COMPANY and

| COLORADO INTERSTATE GAS COMPANY,

Petitioners,

Vv .

| THE STATE BOARD OF EQUALIZATION

| and THE OKLAHOMA TAX COMMISSION,

| Respondents,

’

1

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF OKLAHOMA

PETITION FOR A WRIT OF CERTIORARI

Petitioners ANR Pipeline Company and Colorado Inter-

state Gas Company hereby petition for a writ of certiorari to

review the judgment of the Supreme Court of the State of

Oklahoma in this case.

OPINION BELOW

The Supreme Court of the State of Oklahoma assumed

original jurisdiction in this case. That opinion is reported at 891

P.2d 1219 and is included in the Appendix beginning at p. A-1.

JURISDICTION

The decision of the Oklahoma Supreme Court was entered

on December 20, 1994. Rehearing was denied on March 7,

9

-

1995. App. beginning at p. B-1. The jurisdiction of this Court

is invoked pursuant to 28 U.S.C. § 1257(a).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fourteenth Amendment to the United States Constitu-

tion provides, in pertinent part:

No State shall . . . deny to any person within its

jurisdiction the equal protection of the laws.

U.S. Const. amend. XIV, § 1.

The Railroad Revitalization and Regulatory Reform Act,

49 U.S.C. § 11503 (1988), is included in the Appendix begin-

ning at p. C-1.

The Tax Equity and Fiscal Responsibility Act, 49 U.S.C.

§ 1513 (recodified at 49 U.S.C. § 40116 (1994)), is included in

the Appendix beginning at p. D -1.

The relevant section of the Oklahoma Ad Valorem Tax

Code, Okla. Stat. Ann. tit. 68, § 2864(C) (West 1992), is

included in the Appendix beginning at p. E-1 .

STATEMENT

A. Factual Background

Railroad carriers, air carriers and interstate natural gas

pipelines are all interstate common carriers which transport

goods for hire. Historically, the Oklahoma Ad Valorem Tax

Code has classified railroad carriers, air carriers and natural gas

pipelines as public service corporations and assessed all three in

the same manner. Okla. Stat. Ann. tit. 68, § 2808 (West 1992).

The Oklahoma Supreme Court recognized that all three have

been similarly situated. App. at p. A-9 . Indeed, railroad carri-

ers transport fuels, such as coal and propane, which compete

with natural gas. Yet, for tax year 1994, pipeline property was

assessed in Oklahoma at a ratio of 22.85% while railroad and

3

air carrier property was assessed at a ratio of only 12.08%. App.

at p. A-7.

Congress has passed two acts which are designed to prevent

tax discrimination against interstate common carriers. The Rail-

road Revitalization and Regulatory Reform Act, 49 U.S.C.

§ 11503 (the “4-R Act”), prevents a state from taxing interstate

railroad carriers more than that state taxes other commercial and

industrial property. The Tax Equity and Reform Act, 49 U.S.C.

§ 1513 (“TEFRA”), prevents a state from taxing interstate air

carriers more than that state taxes other commercial and indus-

trial property. The 4-R Act and TEFRA both provide that

certain discriminatory taxation acts against interstate common

carriers “unreasonably burden and discriminate against inter-

State commerce.”

In response to these two federal acts, the Oklahoma legis-

lature passed the following statute:

In determining the assessment ratio for all air carrier

property and all railroad property, the State Board

shall only consider the ratio of the aggregate assessed

value of the fair cash value of the locally assessed

commercial/industrial real property of the state.

Okla. Stat. Ann. tit. 68, § 2864(C). The Oklahoma Supreme

Court’s interpretation of this section was that it created a sepa-

rate property tax classification for railroad carriers and air

carriers, but not for pipelines. App. at p. A-9. As a result,

railroad carriers and air carriers are to be spared from burden-

some tax discrimination, but interstate pipelines are not.

B. Proceedings Below

Petitioners challenged in the Court of Tax Review their

property tax assessments by the State Board of Equalization for

tax year 1994, seeking to have their assessment ratios lowered

to that ratio applied to railroad carriers and air carriers. Petition-

ers argued that the lower assessment ratios given to railroad

——————

4

carriers and air carriers, but not given to pipelines, violated the

Equal Protection Clause of the Fourteenth Amendment to the

United States Constitution. Three public service companies

brought a similar 1994 tax challenge before the Oklahoma

Supreme Court on an Application to Assume Original Jurisdic-

tion and Petition for Writ of Prohibition and Petitioners inter-

vened. The Oklahoma Supreme Court assumed original

jurisdiction and concluded that in response to the two federal

acts, the Oklahoma legislature had created a separate subclass

for railroad carriers and air carriers within the public service

corporation tax classification. App. at. p. A-9. The state was

permitted to give the lower assessment rate to railroad carriers

and air carriers which was not given to other similarly situated

public service corporations such as natural gas pipelines. The

Writ of Prohibition was denied. App. at p. A-13.

The Oklahoma Supreme Court stated that because pipe-

lines are “outside the protection afforded by Congress” that they

are “no longer similarly situated to airlines and railroads.” App.

at p. A-9. The court held that the state legislature’s compliance

with the federal laws by creating a separate classification for

railroad carriers and air carriers rationally furthered a legitimate

State interest. App. at p. A-10. The Oklahoma court treated the

federal anti-discrimination laws as a justification for tax dis-

crimination against pipelines, resulting in its holding that there

was no equal protection violation. App. at p. A-10. The Okla-

homa court summarily concluded, without analysis of the ele-

ments of the applicable legal test and without citing to any

supportive United States Supreme Court precedent, that a fed-

eral anti-discrimination statute can justify discriminatory treat-

ment among otherwise similarly situated taxpayers even though

the state could elect other methods of compliance which treat

similarly situated taxpayers the same.

5

REASONS FOR GRANTING THE PETITION

The decision of the Oklahoma Supreme Court raises a

significant question of federal law: Whether federal statutes

designed to prevent tax discrimination can operate as an excuse

under principles of the Equal Protection Clause for affirmative

tax discrimination by a state. More particularly, may a state’s

voluntary election of one method of compliance with a federal

Statute permit a state to discriminate against similarly situated

taxpayers even though the state could elect another method of

compliance that treats similarly situated taxpayers the same?

In the instant case, the Oklahoma Supreme Court decision

conflicts with both a decision of the Nebraska Supreme Court

and with the decisions of this Court. The Oklahoma court’s

ruling conflicts with the Nebraska Supreme Court’s ruling in

Northern Natural Gas Co. v. State Bd. of Equalization & As-

sessment, 443 N.W.2d 249 (Neb. 1989), cert. denied, 493 U.S.

1078 (1990). The Nebraska court addressed the question of

whether the 4-R Act justified discriminatory taxation among

similarly situated taxpayers. The Nebraska court ruled that

despite the federal statute, the Equal Protection Clause was

violated when similarly situated taxpayers were not treated the

same. In contrast, the Oklahoma Supreme Court held that

because of the 4-R Act, railroad carriers and pipelines are no

longer similarly situated. The Nebraska Court’s decision is in

compliance with both the 4-R Act and with the Equal Protection

Clause. The Oklahoma Court’s decision, however, complies

with only the federal statutes, but not with the federal constitu-

+. re ANR Pipeline Co., 866 P.2d 1060 (Kan.). cert. denied, 115 S. Ct.

296 (1994): Kennecott Corp. v. Utah State Tax Comm’n, 858 P.2d 1381 (Utah

1993): Federal Express Corp. v. Tennessee State Bd. of Equalization, 717

S.W.2d 873 (Tenn. 1986); State v. Colonial Pipeline Co., 471 So. 2d 408

(Ala. Civ. App. 1984). To the extent that these cases held that the 4-R Act

mandates separate tax classification, it appears they have been impliedly

overruled by this Court’s decision in Department of Revenue of Oregon v.

ACF Indus., Inc., which strictly construed the 4-R Act and limited its

pre-emptive effect to its express language. 127 L. Ed 2d 165, 176 (1994).

6

tion. For this reason, the Oklahoma court’s decision is worthy

of this Court’s review. A more detailed discussion of the state

court conflict is set forth in Part I, infra.

The Oklahoma Supreme Court’s ruling also conflicts with

the Equal Protection principles outlined by this Court in

Nordlinger v. Hahn, 120 L. Ed. 2d 1 (1992), and Allegheny

Pittsburgh Coal Co. v. Webster County, 488 U.S. 336 (1989).

Allegheny holds that taxpayers placed in the same tax classifi-

cation may not, under the Equal Protection Clause, be arbitrarily

singled out for discriminatory treatment not imposed on others

in the same tax classification. Nordlinger takes this principle

further, providing that, regardless of whether the state has

chosen to place taxpayers in the same classification or not, there

must be a rationally based legitimate state interest for treating

similarly situated taxpayers differently. Oklahoma’s court

ruled, without discussion of relevant precedent from this Court,

that the federal anti-discrimination laws constituted such a ra-

tionally based legitimate state interest justifying discrimination

against pipelines. In short, the 4-R Act and TEFRA, statutes

designed to prevent tax discrimination, were treated by the

Oklahoma court as permission to discriminate against some

interstate common carriers while affording favorable tax treat-

ment to other interstate common carriers. Thus, the Oklahoma

decision conflicts with the Equal Protection principles set out

by this Court and is worthy of review. A more detailed discus-

sion of the conflict with this Court’s decisions is set forth in Part

Il, infra.

Finally, this Court should consider this Petition because

several states other than Oklahoma have rendered similar deci-

sions interpreting the breadth of federal anti-discrimination

statutes and have used such statutes as justification for discrimi-

As a result of three federal district court decisions, the Nebraska tax

officials were required under the 4-R Act to reduce the taxes of railroad

property to match the levels of other commercial and industrial property.

5

natory state tax practices. The courts of Kansas, Utah, Tennes-

see and Alabama have all interpreted either TEFRA or the 4-R

Act to permit burdensome taxation of public service corpora-

tions other than railroads and airlines.2 Like other interstate

common Carriers, pipelines are “easy prey for State and local tax

assessors in that they are nonvoting, often nonresident targeis

for local taxation, who cannot easily remove themselves from

the locality.” Department of Revenue of Oregon v. ACF Indus.,

Inc., 127 L. Ed. 2d 165, 171 (1994)(citing Western Air Lines,

Inc. v. Board of Equalization, 480 U.S. 123, 131 (1987)).

Hence, because such interpretation of the federal statutes runs

afoul of the Equal Protection Clause and results in widespread

tax discrimination by states, this Court should render a definitive

ruling to guide the states as to the constitutionally permissible

effect of such federal statutes.

The Oklahoma court’s decision is inconsistent with the

Nebraska Supreme Court’s holding in Northern. The Northern

court held that even though the state taxing officials were “acting

involuntarily and under compulsion of federal law,” by taxing

a pipeline differently from railroads, the state had denied “equal

protection of the law contrary to the 14th amendment to the U.S.

Constitution.”> 443 N.W.2d at 255. In considering the cases

interpreting the effect of the 4-R Act on Nebraska’s property tax

scheme, the Nebraska court did not find that the federal act

created or was justification for creating separate tax classifica-

tions. Several pipelines had challenged the state tax commis-

sioner’s provision of favorable tax treatment to railroads. The

Nebraska Supreme Court relied upon Sioux City Bridge Co. v.

Dakota County. 260 U.S. 441 (1923), in holding that failure to

treat the property of railroads and pipelines in the same manner

violated the Equal Protection Clause. Northern, 443 N.W.2d at

256. This Court stated in Sioux City:

8

The purpose of the equal protection clause of the

Fourteenth Amendment is to secure every person

within the State’s jurisdiction against intentional and

arbitrary discrimination, whether occasioned by ex-

press terms of a Statute or by its improper execution

through duly constituted agents.

260 U.S. at 445 (emphasis added). Therefore, even though the

Oklahoma Legislature professed to be acting under compulsion

of the federal laws, the discriminatory tax treatment still consti-

tuted an equal protection violation.

The Oklahoma court tried to distinguish Northern by ex-

plaining that Oklahoma “enjoys a different system of taxation”

because the Oklahoma legislature has the power to establish

different tax classes. App. at. p. A-11. This is a distinction

without a legal difference. The Nebraska Constitution required

that all tangible property, except for motor vehicles, was to be

taxed uniformly. Thus, all pipeline and railroad tangible prop-

‘erty was in the same tax class with most other tangible property.

It makes no difference if the state constitution places tangible

property in one tax class or if the state legislature places all

public service corporation property in one tax class — either

way pipelines are in the same tax class as railroad carriers and

air carriers and are entitled to equal treatment. More impor-

tantly, and despite state designated classifications, interstate

pipelines, railroad carriers and air carriers are similarly situated

taxpayers. For example, interstate pipelines and railroad carri-

ers transport competitive fuels in interstate commerce. Under

the Equal Protection Clause they should be treated the same.

9

The Equal Protection Clause of the United States Consti-

tution provides:

No State shall . . . deny to any person within

its jurisdiction the equal protection of the laws.

U.S. Const. amend. XIV, § 1. This Court stated the test under

the Equal Protection Clause for constitutionality of tax classifi-

cations in Nordlinger. In order to pass constitutional muster,

disparate tax treatment among similarly situated taxpayers must

“rationally further a legitimate state interest” and cannot be

“arbitrary or irrational.” 120 L. Ed. 2d at 13. The Equal

Protection Clause “does not forbid classifications, but simply

keeps governmental decisionmakers from treating differently

persons who are in all relevant aspects alike.” /d. at 12 (citing

F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920)).

The standard of review for challenges to state taxing regimes

under the Equal Protection Clause is properly deferential and

the states have “great leeway in making classifications and

drawing lines which in their judgment produce reasonable sys-

tems of taxation.” Lehnhausen v. Lake Shore Auto Parts Co.,

410 U.S. 356, 359 (1973). Deference, however, is not the same

as abdication, and scrutiny under the “rationally based legiti-

mate state interest” standard is still scrutiny. Mathews v. Lucas,

427 U.S. 495, 510 (1967)(rational basis standard is not tooth-

less); Nordlinger, 120 L. Ed. 2d at 25-26 (Stevens, J., dissent-

ing). This Court has on several occasions invalidated tax

schemes under such a standard of review. See, e.g., Hooper v.

Bernalillo County Assessor, 472 U.S. 612, 618 (1985); Williams

v. Vermont, 472 U.S. 14 (1985); Metropolitan Life Ins. Co. v.

Ward, 470 U.S. 869 (1985); Zobel v. Williams, 457 U.S. 55

(1982). When the “alikeness” of similarly situated taxpayers is

reaffirmed by the state legislators placing them in the same tax

classification, the constitutional directive to treat them the same

is even stronger. See, Allegheny Pittsburgh Coal Co., 488 U.S.

10

at 343-45; Cumberland Coal Co. v. Board of Revision, 284 U.S.

23, 28-30 (1931). The Oklahoma Supreme Court’s conclusion

cannot pass these well-established constitutional tests.

The court opined that the Oklahoma Legislature’s “com-

pliance” with the 4-R Act and TEFRA by enacting Section

2864(C) of the Oklahoma statues, which the court interpreted as

creating a new tax sublclass, was enough of a rationally based

legitimate state interest to avoid an Equal Protection Clause

violation. Yet, the 4-R Act and TEFRA do not contain any

language of classification. These acts do not attempt to tell the

states how to classify or give direction on how to manage their

property tax systems. These acts do not even tell the states how

to tax railroad carriers and air carriers; these acts only prevent

states from taxing railroad carriers and air carriers more than

they tax commercial and industrial property. The 4-R Act

provides in relevant part:

The following acts unreasonably burden and dis-

Ccriminate against interstate commerce, and a State,

subdivision of a State, or authority acting for a State

or subdivision may not do any of them:

(1) assess rail transportation property at a value that

has a higher ratio to the true market value of the rail

transportation property than the ratio that the assessed

value other commercial and industrial property has to

the true market value of the other commercial and

industrial property.

(2) levy or collect a tax on an assessment that may

not be made under clause (1) of this subsection.

(3) levy or collect an ad valorem property tax on

rail transportation property at a tax rate that exceeds

the tax rate applicable to commercial and industrial

property in the same assessment jurisdiction.

1]

49 U.S.C. § 11503(b). Similarly, TEFRA provides in relevant

part:

(1) The following acts unreasonably burden and

discriminate against interstate commerce and a State

... may not do any of them:

(c) levy or collect an ad valorem property tax on air

carrier transportation property at a tax rate that ex-

ceeds the tax rate applicable to commercial and indus-

trial property in the same assessment jurisdiction.

49 U.S.C. § 1513. The two federal acts serve as a guideline or

measuring stick as to which taxing acts are discriminatory

against interstate common carriers under the anti-discrimination

principles of the federal Commerce Clause. See, Department of

Revenue of Oregon v. ACF Indus., Inc., 127 L. Ed. 2d 165, 173

(1994). Significantly, the federal Equal Protection Clause is

founded in anti-discrimination principles paralleling those of the

Commerce Clause. This basic premise that similarly situated

taxpayers, such as interstate common carriers, should be treated

the same is consistent with the philosophies of both the Equal

Protection and Commerce Clauses, as well as the goals of the

4-R Act and TEFRA in preventing tax discrimination against

interstate common carriers.

The Oklahoma Supreme Court’s holding, however, is in-

consistent with these anti-discrimination proclamations. The

Oklahoma decision was rendered with knowledge that railroad

carriers, air carriers and other commercial and industrial prop-

erty owners’ ad valorem taxes are to be assessed at a ratio of

12.08% of the property value while pipelines’ ad valorem taxes

are to be assessed at a ratio of 22.85% of the property value. The

Oklahoma court recognized that under the rule of Allegheny, if

the state legislature has left the pipelines within the same tax

class as railroad carriers and air carriers, “the difference in the

assessment percentages cannot withstand scrutiny under the

12

Equal Protection Clause.” App. at p. A-8. . The Oklahoma

court also admitted that absent the federal statutes, pipelines are

similarly situated with railroads and air carriers. App. at. p. A-9.

The only excuse, under the Oklahoma court’s ruling, for sepa-

rately classifying railroad carriers and air carriers from pipe-

lines, and thereby imposing discriminatory taxes upon pipelines,

is the existence of two federal anti-discrimination statutes.

These federal statutes cannot be read in isolation from the

broader U.S. Constitutional mandate that calls upon the states

to comply with equal protection guarantees. “Congress may not

authorize the States to violate the Equal Protection Clause.”

Shapiro v. Thompson, 394 U.S. 618, 641 (1969), overruled in

part on other grounds, Edelman v. Jordan, 415 U.S. 651, 671

(1974). There is something intuitively wrong and patently

illogical in an analysis which uses compliance with an anti-dis-

crimination statute as the justification for discrimination, espe-

cially where other methods of compliance are available.

There are two distinct prongs to the Nordlinger test: first,

the discriminatory treatment must further a legitimate state

interest; and second, the classification must rationally relate to

that legitimate state interest. Western & Southern Life Ins. Co.

v. State Bd. of Equalization, 451 U.S. 648, 668 (1981); Jackson

Water Works, Inc. v. Public Utilities Comm’n, 793 F.2d 1090

(9th Cir.), cert. denied, 479 U.S. 1102 (1986). The discrimina-

tory treatment of pipelines in Oklahoma does not meet either

prong of the test. There is no doubt that compliance with a

federal statute is a legitimate state interest, however, such com-

pliance must not at the same time violate the federal constitution.

The new subclass created in Oklahoma does not further an

interest in compliance with federal law, it simply violates the

Equal Protection Clause. If the state truly wished to further its

interest in complying with the federal statutes, it could have

chosen two other methods which do not violate the Equal

Protection Clause. First, it could have lowered the assessment

eee

13

ratio for interstate pipelines, along with railroad carriers and air

carriers, to match that of commercial and industrial property.

Second, it could have raised the assessment ratio for commercial

and industrial property to match that of the interstate pipelines,

railroad carriers and air carriers. The expressed interest is not

furthered, however, by discrimination among similarly situated

taxpayers. An interest which violates the United States Consti-

tution can hardly be defined as “legitimate.”

The only interest furthered by the separate classification of

railroad carriers and air carriers is the state’s interest in main-

taining its tax discrimination against pipelines. The Oklahoma

legislature has not in the past recognized any pre-existing dif-

ferences among pipelines, railroad carriers and air carriers for

ad valorem tax purposes. A classification must find justification

outside itself; it must reflect pre-existing differences and cannot

create new ones that are supported by only their own bootstraps.

Williams v. Vermont, 472 U.S. at 27. The Equal Protection

Clause requires more of a state law than nondiscriminatory

application within the class it establishes. Rinaldi v. Yeager,

384 U.S. 305, 308 (1966). Oklahoma must do more than

arbitrarily create a separate class for railroad carriers and air

carriers to deflect an equal protection challenge.

Also, the classification must rationally relate to the legiti-

mate state interest by displaying some “fit” between the dispa-

rate treatment and the legislative purpose. Although the fit must

not be made with mathematical precision, failure to include

within a class those similarly situated may be so severe that it

cannot be said that the legislative distinction “rationally furthers

the posited state interest.” Jimenez v. Weinberger, 417 U.S. 628,

636-38 (1974). The Oklahoma court failed to address how the

expressed “compliance” is rationally related to a legitimate state

interest when the state action taken was not even required by the

federal laws. The federal laws only require that the state refrain

from taxing railroad carriers and air carriers more than commer-

14

cial and industrial property; they do not require separate classi-

fication. They do not require continued discrimination against

other interstate common carriers. Oklahoma’s classification

does not “fit” the stated goal of compliance with the 4-R Act

and TEFRA.

Additionally, despite the Oklahoma Supreme Court’s in-

terpretation of it, even the plain language of Section 2864(C)

does not compel separate classification. Like the 4-R Act and

TEFRA, it simply directs the state to refrain from taxing railroad

carriers and air carriers more than commercial and industrial

property. The Oklahoma Constitution permits broad discretion

in choosing assessment ratios, allowing a range of 0-35%. Okla.

Const. art. X, § 8. The Oklahoma taxing officials could have

complied with the 4-R Act, TEFRA and state law without

creation of a tax subclass simply by ending discriminatory

taxation against all similarly situated public service corporations

and taxing all of them no more than the commercial and indus-

trial property owners. The contrived explanation that the federal

Statutes required reclassification of railroad carriers and air

Carriers is not only inaccurate, it is also not rational to use

anti-discrimination statutes as the foundation for discrimination.

Oklahoma’s ill-conceived attempt at “compliance” with

federal law defies logic, and is no more than an excuse for

continued discrimination. It does not alter the fact that railroad

Carriers, air carriers and pipelines have all been placed in the

same tax Classification of public service corporations, and under

Allegheny Pittsburgh Coal Co., must be taxed uniformly. It is

important that this Court review the effect of the 4-R Act and

TEFRA on equal protection principles; the trend in Oklahoma

and a few other states is to use these statutes as justification for

singling out certain interstate common carriers to bear a vastly

disproportionate tax burden.

: :

: 1S

CONCLUSION

: For the foregoing reasons, this petition for a writ of certio-

i rari should be granted.

2

Respectfully submitted,

REBECCA H. NOECKER*

KAREN L. PAULEY

VIRGINIA G. AMEND

P.O. Box 1087

Colorado Springs, CO 80944

(719) 520-4767

Counsel for Petitioners

June 5, 1995 * Counsel of Record

:

A-1

Appendix A

No. 84,097

Iu the Supreme Court of the

State of Oklahoma

WILLIAMS NATURAL GAS COMPANY,

WILLIAMS PIPE LINE COMPANY and

WILLIAMS TELECOM GROUP,

Petitioners,

V.

THE STATE BOARD OF EQUALIZATION

and THE OKLAHOMA TAX COMMISSION,

Respondents.

APPLICATION TO ASSUME ORIGINAL JURISDICTION

AND PETITION FOR WRIT OF PROHIBITION

Public service corporations filed original action to protest

difference in ad valorem tax ratio applied to them and ratio

applied to airlines and railroads.

Filed Dec. 20, 1994

ORIGINAL JURISDIC1 ION ASSUMED;

PETITION FOR WRIT OF PROHIBITION DENIED.

Hall, Estill, Hardwick, Gable, For Petitioners

Golden & Nelson

By: Graydon Dean Luthey, Jr.

and

Kenneth L. Hunt

Tulsa, Oklahoma

and

William G. von Glahn

Associate General Counsel

The Williams Companies

Tulsa, Oklahoma

Susan Brimer Loving

Attorney General of Oklahoma

and

Douglas F. Price

Assistant Attorney General

Oklahoma City, Oklahoma

David Allen Miley

Assistant General Counsel

Oklahoma Tax Commission

Oklahoma City, Oklahoma

Stipe Law Firm

By: Gene Stipe

and

J. Rick Faling

Oklahoma City, Oklahoma

and

Stuart Strasner

Oklahoma City, Oklahoma

For Respondent

State Board of

Equalization

For Respondent

Oklahoma Tax

Commission

For Intervenors

Oklahoma State School

Board Association

and

Association of County

Commissioners of Oklahoma

McKenzie, Moffett, Elias

& Books

By: William K. Elias

Oklahoma City, Oklahoma

Gable & Gotwals

By: Oliver S. Howard

and

Teresa D. Adwan

Tulsa, Oklahoma

Cleeta John Rogers

General Counsel

and Jon D. Sellers

Oklahoma City Public Schools

Oklahoma City, Oklahoma

Doerner, Stuart, Saunders,

Daniel, Anderson & Biolchini

By: John B. Turner

and

Rebecca M. Fowler

Tulsa, Oklahoma

-3

For Intervenors

ANR Pipeline Company

Colorado Interstate Gas Company

E] Paso Natural Gas Company

Transwestern Pipeline Company

Enron Oil & Gas Marketing

Black Marlin Pipeline Company

Explorer Pipeline Co.

Aquila Gas Systems, Inc.

Sun Pipeline Company

Mid-Continent Pipe Line Company

Northern Natural Gas

Company

Natural Gas Pipeline Company

of North America

Western Gas Resources, Inc.

Additional Counsel

for Intervenors

ANR Pipeline Company

and

Colorado Interstate Gas

Company

For Intervenors

Independent School

District No. 89 of

Oklahoma County,

Oklahoma

For Intervenor

Public Service

Company of Oklahoma

A-4

HODGES, C.J.

Three public service corporations, Williams Natural Gas

Company, Williams Pipe Line Company, and Williams Tele-

com Group (Williams Companies) ask this Court to assume

original jurisdiction. They request a writ prohibiting the State

Board of Equalization (Board) from assessing their public serv-

ice property at a greater ratio than that applied to public service

property owned by railroads and airlines. Original jurisdiction

is assumed and the petition for a writ of prohibition is denied.

The Williams Companies assert that the assessment of their

property at a ratio higher than that used to assess railroad and

airline property is unlawfully discriminatory. They have chal-

lenged the Board’s assessment in the Court of Tax Review.

There are seventy to ninety other challenges pending in that

court. All were brought by public service corporations seeking

to have their assessment ratio lowered to the ratio applied to

railroad and airline companies.

The Board has responded through the Attorney General to

the Williams Companies’ application to this Court to assume

original jurisdiction. The Oklahoma Tax Commission has

adopted that response. Motions to intervene have been granted

to the State School Board Association, the Association of

County Commissioners, several pipeline companies with cases

pending before the Court of Tax Review, the Oklahoma City

Public Schools, and Public Service Company of Oklahoma. Oral

arguments were heard on this matter on October 19, 1994.

ORIGINAL JURISDICTION

The Williams Companies, the Board, the School Board

Association, and the Oklahoma City Schools ask this Court to

assume original jurisdiction on the basis of publici juris. They

point to the many other challenges pending in the Court of Tax

Review which raise the issues presented by this original action.

They urge resolution of the “pure questions of law” raised in this

A-5

action which must ultimately be determined by this. Court.

Further, they point out that if the matter is not resolved before

April 1, 1995, when the ad valorem taxes are due, the taxes will

be paid under protest. Those funds will then be placed in an

escrow account and will be unavailable to schools and county

governments.

Every recipient of ad valorem tax revenue is potentially

impacted by this action. These include common schools (K-12),

vocational technical education, county government, county

health departments, emergency medical service districts, solid

waste management districts, county and city/county libraries,

and cities (sinking funds only). The projected revenue shortfall

for these institutions is $63.8 million. This represents 6.8% of

total property tax revenue.

This Court has assumed original jurisdiction pursuant to

the doctrine of publici juris to address ad valorem tax issues

emanating from the Board. See State ex rel. Poulos v. State Bd.

of Equalization, 646 P.2d 1269 (1982); State ex rel. Poulos v.

State Bd. of Equalization, 552 P.2d 1134 (1975). The public

importance of the issues presented by this action are heightened

by the adverse impact on school districts and county government

if the controversy is not rapidly resolved. In addition, judicial

economy will be served by today’s resolution of the central

issues in numerous ad valorem tax protests. Original jurisdiction

is therefore assumed to address the issues raised by the Williams

Companies.

BACKGROUND

In Oklahoma’s Ad Valorem Tax Code, the Legislature has

listed three classes of property: 1) real property; 2) personal

property; and 3) public service corporation property. Okla. Stat.

tit. 68, § 2803(A) (1991). Real and personal property are as-

sessed locally by county officials. The Board, however, is

“responsible for valuation of railroad, airline and public service

A-6

corporation property and the adjustment and equalization of all

property values both centrally and locally assessed.” Jd. at §

2802(26). The Board assesses ad valorem taxes on public serv-

ice corporations by 1) establishing a fair cash value for property

and 2) fixing an assessment percentage for property. The second

step is challenged in this action.

During the 1960s and 1970s, Congress became concerned

about the number of failing railroads. See Chrysler Rail Transp.

Corp. v. Holt, 845 F. Supp. 463, 465 (W.D. Mich. 1994).

Congress found that the states had been forcing railroads to carry

more than their share of the tax burden. To prevent discrimina-

tory taxation of railroad property by the states, Congress enacted

the Railroad Revitalization and Regulatory Reform Act of 1976

(4-R Act), 49 U.S.C. § 11503 (1988). The Act provides in part:

The following acts unreasonably burden and dis-

criminate against interstate commerce, and a State,

subdivision of a State, or authority acting for a State

or subdivision may not do any of them:

(1) assess rail transportation property at a value that

has a higher ratio to the true market value of the rail

transportation property than the ratio that the assessed

value other commercial and industrial property has to

the true market value of the other commercial and

industrial property.

(2) levy or collect a tax on an assessment that may

not be made under clause (1) of this subsection.

(3) levy or collect an ad valorem property tax on rail

transportation property at a tax rate that exceeds the

tax rate applicable to commercial and industrial prop-

erty in the same assessment jurisdiction.

Id. at § 11503(b)(emphasis added).

Tax discrimination against airline property which burdens

interstate commerce was similarly remedied under provisions of

—_— |

A-7

the Tax Equity and Fiscal Responsibility Act of 1982 (TEFRA),

49 U.S.C. § 1513 (1988). That Act provides in part:

(1) The following acts unreasonably burden and dis-

criminate against interstate commerce and a State . . .

may not do any of them:

(c) levy or collect an ad valorem property tax on air

Carrier transportation property at a tax rate that ex-

ceeds the tax rate applicable to commercial and indus-

trial property in the same assessment jurisdiction.

Id. at § 1513(d)(1)(c).

In response to these federal acts, the Oklahoma Legislature

enacted section 2864(C) of title 68. That section provides that

“[i]n determining the assessment ratio for all air carrier property

and all railroad property, the State Board shall only consider the

ratio of the aggregate assessed value of the fair cash value of the

locally assessed commercial/industrial real property of the

state.”

In June of this year, the Board adopted an assessment ratio

of 12.08% for airline and railroad property. In July, the Board

adopted a ratio of 22.85% for the Williams Companies and other

public service corporations.

The Williams Companies claim the assessments 1) violate

the Equal Protection Clause of the Fourteenth Amendment to

the United States Constitution, 2) violate article X, section 5 of

the Oklahoma Constitution which requires uniform taxation

within a tax class, and 3) violate sections 2803(C) and 2847 of

the Ad Valorem Tax Code, Okla. Stat. tit. 68, §§ 2801-3152

(1991), which require uniform treatment in ad valorem taxation.

EQUAL PROTECTION

The Williams Companies assert that the Board’s assess-

ments violate the Equal Protection Clause of the Fourteenth

A-8

Amendment to the United States Constitution because their

property subjects them to a higher assessment percentage than

the assessment percentage applied to the property of airlines and

railroads. Thus, they argue, their property has been subjected to

discriminatory treatment. The Board responds that the Legisla-

ture has created a subclass of property for ad valorem taxation

purposes of public service corporations, the railroad and airline

companies, in response to the federal legislation.

The Equal Protection Clause of the Fourteenth Amendment

requires that no state “deny to any person within its jurisdiction

the equal protection of the laws.” State legislatures are given

“especially broad latitude in creating classifications and distinc-

tions in tax statutes.” Regan v. Washington, 461 U.S. 540, 547

(1983). Unless a classification “jeopardizes exercise of a funda-

mental right” or it “characterizes based upon an inherently

suspect characteristic,” the Equal Protection Clause requires

only that the classification “rationally further a legitimate state

interest.” Nordlinger v. Hahn, 112 S. Ct. 2326, 2332 (1992)

(citing Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432,

439-441 (1985); New Orleans v. Duke, 427 U.S. 297, 303

(1976)). “This standard is especially deferential in the context

of classifications made by complex tax laws.” /d.

ee ee ee Oe ee ee ee ee ee

Ce ew en

The present controversy, however, raises the threshold

issue of whether a classification has occurred. If the Legislature

has made railroads and airlines a subclass of public service

corporations, that is permissible provided that “the relationship

of the classification to its goal is not so attenuated as to render

the distinction arbitrary.” /d. If, on the other hand, the Legis-

lature has left the Williams Companies and other public service

corporations within the same tax class, the difference in the

assessment percentages cannot withstand scrutiny under the

Equal Protection Clause. See, e.g., Allegheny Pittsburgh Coal

Co. v. Webster County, 488 U.S. 336, 345 (1989) (“The equal

protection clause . . . protects the individual from state action

| |

A-9

which selects him out for discriminatory treatment by subjecting

him to taxes not imposed on others of the same class.” Hillsbor-

ough v. Cromwell, 326 U.S. 620, 623 (1946)).

The Williams Companies argue that the Legislature has not

created a separate tax class or subclass for railroads and airlines

because it did not amend section 2803. That section lists only

three ad valorem tax classes. However, it is the intent of the

Legislature to create a tax class that controls rather than the

Statutory format it chooses.

Section 2864(C) provides a different taxing method for a

clearly defined subclass of public service corporations, the

railroads and airlines. No longer are other public service corpo-

rations of the same class. They are outside the protection af-

forded by Congress and are no longer similarly situated to

airlines and railroads. The fact that the Legislature chose to

include the provision in section 2864 rather than section 2803

does not change that. Just as the Legislature made public service

corporation property a subset of the larger set of commercial and

industrial property, it made railroad and airline property a subset

of public service corporation property.

The Legislature was required to recognize the supremacy

of federal law. It responded by creating a subclass for railroads

and airlines. This is not a situation where federal law has

preempted a state statute due to a conflict. The Oklahoma

Legislature responded to the federal act by amending the ad

valorem tax scheme so that it would not conflict with federal

law.

There is nothing arbitrary or irrational in that classification.

It is limited to those protected by the federal acts. The Legisla-

ture’s method of creating the class was consistent with the “large

leeway” states are given “in making classifications and drawing

lines which in their judgment produce reasonable systems of

taxation.” Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S.

356, 359 (1973).

A- 10

The classification furthers a legitimate state interest. The

Legislature enacted section 2864(C) to bring Oklahoma’s ad

valorem taxing scheme into compliance with federal laws which

gave special protection to railroads and airlines. Compliance

with federal law achieved by legislative creation of a tax sub-

class does not violate the Equal Protection Clause.

The parties have cited four state court decisions which have

addressed equal protection and uniformity of taxation issues in

this context. The Williams Companies rely upon Northern Nat-

ural Gas Co. v. State Board of Equalization and Assessment,

433 N.W. 2d 249 (Neb. 1989) cert. denied, 493 U.S. 1078

(1990). There, a pipeline company sought to have its property

assessment equalized with railroads. On appeal from the State

Board of Equalization and Assessment the Supreme Court of

Nebraska found the decision denied equal protection to the

pipeline company. It held:

The State Board of Equalization and Assessment, by

not taxing the personal property of certain property in

a class, although acting involuntarily and under com-

pulsion of federal law, nevertheless, by complying

with that mandate, has denied another taxpayer in that

same class the equal protection of the law contrary to

the 14th amendment to the Constitution of the United

States.

Id. at 251 (Syllabus by the Court n.8)(emphasis added).

The key distinction between the facts of that case and the

present one is that the Nebraska Board treated taxpayers of the

same class differently. The Nebraska Constitution requires that

“{t]axes shall be levied by valuation uniformly and proportion-

ately upon all tangible property ... .”” Neb. Const. art. VIII, § 1.

Essentially, the Nebraska taxing scheme treats all tangible prop-

erty as being within the same class unless certain property, such

as motor vehicles and agricultural land, has been exempted.

Thus, when a federal court enjoined the state of Nebraska from

A- ll

assessing the personal property of railroads, the result was that

the assessments upon others within the class became dispropor-

tionately higher. 443 N.W.2d at 256.

When the Nebraska Supreme Court ordered that pipelines

be given the same exemption as railroads, it created a revenue

crisis. The Nebraska Legislature responded by making the per-

sonal property of railroads “a separate and distinct class of

property and exempt/ed] the class from property taxation .. . .

“See Neb. Rev. Stat. § 77.202.47 (4) (1990).

Oklahoma enjoys a different system of taxation. Our Con-

stitution permits the Legislature to establish different tax classes

in which property can be valued differently. See Okla. Const.

art. X § 22. Airlines and railroads are in a legislatively created

subclass of public service corporation property. This factual

distinction brings this case under the persuasive authority of

cases cited by the Oklahoma Board. See In re ANR Pipeline Co.

866 P.2d 1060 (Kan. 1994), cert. denied, 115 S. Ct. 296 (1994).

See also State v. Colonial Pipeline Co., 471 So. 2d 408 (Ala.

Civ. App. 1984); Federal Express Corp. v. Tennessee State

Board of Equalization, 717 S.W.2d 873 (Tenn. 1986). Those

cases held that legislative tax classifications of railroads and

airlines on one hand and other entities on the other hand, did not

violate the Equal Protection Clause.

Specifically, the Kansas Supreme Court in ANR rejected a

pipeline’s request to have its real property assessed on the same

basis as railroad property. In doing so, that court held that taxing

railroad property differently from pipeline property did not

violate either the Equal Protection Clause or the equal taxation

provision of the Kansas Constitution.

The ANR court refused to follow the Nebraska decision

noting that “(t]he Nebraska Constitution does not have property

classifications.” 866 P.2d at 1067. It observed that, unlike the

Nebraska tax scheme, the Kansas Constitution “classifies all real

and personal property and fixes the assessment rate for each

A- 12

subclass.” /d. at 1066. A 1992 amendment to the Kansas Con-

stitution made railroad real property an exception to the public

utility subclass to which it belonged. /d. at 1066-1067. The ANR

court held that the challenged assessments did not violate the

Kansas or United States Constitutions.

Oklahoma’s tax scheme is similar to that of Kansas in that

railroad property has been separately classified for different tax

treatment. While the Kansas classification is found in its consti-

tution, the Oklahoma classification is statutory pursuant to the

express power to classify granted to the Oklahoma Legislature.

Finally, the Williams Companies’ equal protection chal-

lenge to Oklahoma’s Ad Valorem Tax Code constitutes an

indirect attack on the validity of the 4-R Act and TEFRA. It

should be noted that the constitutionality of the 4-R Act has been

upheld in federal courts. See Arizona v. Atchison T. & S.F.R.,

656 F.2d 398 (9th Cir. 1981); Louisville & N.R. v. Louisiana

Tax Comm’n, 498 F. Supp. 418, 421 (D.La. 1980); Tennessee

v. Louisville & N.R., 478 F. Supp. 199 (D. Tenn. 1979), aff'd,

652 F.2d 59 (2d Cir. 1981), cert. denied, 454 U.S. 834 (1981).

No state or federal court has declared either the 4-R Act or

TEFRA unconstitutional. Oklahoma’s classification of rail-

roads and airlines presents no equal protection violation.

OKLAHOMA CONSTITUTION

The Williams Companies next urge that the Board’s assess-

ments violate article X, section 5 of the Oklahoma Constitution.

That section requires that “[t]axes be uniform upon the same

class of subjects.” However, because this Court has determined

that a subclass of public service corporations was created by the

Legislature, the applicable provision is section 22 of article X.

It provides that “[n]Jothing in this Constitution shall be held, or

construed, to prevent the classification of property for purposes

of taxation; and the valuation of different classes by different

means or methods.” Railroads and airlines are a distinct subclass

A- 13

of public service corporations whose property may, under the

Oklahoma Constitution, be valued with a different assessment

ratio.

OKLAHOMA’S AD VALOREM TAX CODE

The Williams Companies also argue that the Board’s as-

sessments violate sections 2803 (c) and 2847 of the Ad Valorem

Tax Code. Section 2803 (c) requires that “[c]lassification as

provided by this section shall require uniform treatment of each

item within a class or any subclass as provided in Article X,

Section 5 of the Oklahoma Constitution.” Section 2847 requires

in part that the assessment ratio “shall be selected by the State

Board of Equalization and, subject to the requirements of federal

law, uniformly applied to calculate the taxable values of public

service corporation property within the state for the applicable

assessment year.”

These sections are statutory requirements of uniform ad

valorem taxation within a class. Again, this case does not present

an intra-class disparity of treatment. The airlines and railroads

are within a legislatively created tax subclass. Therefore, no

conflict with these sections is presented.

The Williams Companies have failed to demonstrate a

violation of equal protection or ad valorem uniformity require-

ments. The Petition for Writ of Prohibition is denied.

ORIGINAL JURISDICTION ASSUMED; PETITION

FOR WRIT OF PROHIBITION DENIED.

Concur: HODGES, C.J., SIMMS, HARGRAVE,

SUMMERS, WATT, JJ.

Concur in Result: KAUGER, J.

Dissent: LAVENDER, V.C.J.,OPALA, WILSON, JJ.

A-14

No. 84,097

In the Supreme Court of the

State of Oklahoma

WILLIAMS NATURAL GAS COMPANY,

WILLIAMS PIPE LINE COMPANY and

WILLIAMS TELECOM GROUP,

Petitioners,

V.

THE STATE BOARD OF EQUALIZATION

and THE OKLAHOMA TAX COMMISSION,

Respondents.

Filed Dec. 20, 1994

KAUGER, J. concurring in result:

Although the majority’s discussion of equal protection rights

has been centered upon the protection afforded by the United States

Constitution and cases discussing its provisions, it has long been

recognized that the due process clause found in art. 2, $7 of the Okla.

Const.’ has a definitional range which is coextensive with its federal

counterpart. The United States Constitution and the Oklahoma Con-

stitution each contain built-in anti-discrimination components which

afford protection against unreasonable or unreasoned classifications

which serve no important governmental interests.” * The same equal

protection component found in the fourteenth amendment of the United

States Constitution is present in the due process clause of art. 2, §7.°

| The Okla. Const. art. 2, §7 provides:

“No person shall be deprived of life, liberty, or property,

without due process of law.”

2 Fair School Finance Council v. State, 746 P.2d 1135, 1148 (Okla. 1987).

> Callaway v. City of Edmond, 791 P.2d 104, 106 (Okla. 1990); Fair

School Finance Council v. State, see note 2, supra; McKeever Drilling Co.

v. Egbert, 170 Okla. 259, 40 P.2d 32, 35 (1935).

A- 15

The Williams Companies are entitled to the privileges and

guarantees found both in the United States and the Oklahoma

Constitutions. Nevertheless, there is nothing arbitrary or irra-

tional in the Legislature’s classification providing a different

taxing method for public service corporations, the railroads and

airlines. The ad valorem tax scheme furthers a legitimate state

interest aligning Oklahoma’s tax laws with federal legislation.

It does not violate the protections afforded by the Okla. Const.

art. 2, §7. My conclusion that the Williams Companies have

failed to demonstrate a violation of equal protection or ad

valorem uniformity requirements is based on the Oklahoma

Constitution which provides bona fide, separate, adequate and

independent grounds upon which to rest the holding.

Michigan v. Long, 463 U.S. 1032, 1042, 103 S.Ct. 3469, 3476, 77

L.Ed.2d 1201, 1214 (1983).

A- 16

No. 84,097

In the Supreme Court of the

State of Oklahoma

WILLIAMS NATURAL GAS

COMPANY, WILLIAMS PIPE

LINE COMPANY and WILLIAMS

TELECOM GROUP,

Petitioners,

V.

THE STATE BOARD OF

EQUALIZATION and

THE OKLAHOMA TAX COMMISSION,

Respondents.

Fiied Dec. 20, 1994

OPALA, J., with whom LAVENDER, V.C.J., and WILSON,

J., join, dissenting.

The court holds today that the Legislature’s compliance

with certain federal statutes ! — by creating a separate subclass

of public service corporations? (comprised only of railroads and

air carriers),> which alone qualify for a lower ad valorem

assessment ratio than that afforded others (pipelines) in the same

class of public service corporations—does not violate the Equal

| See 49 U.S.C. § 1513(d)(1) [Tax Equity and Fiscal Responsibility Act

of 1982], infra note 17, and 49 U.S.C. § 11503(b) [Railroad Revitalization

and Regulatory Reform Act of 1976}, infra note 16.

> For a statutory definition of public service corporation, see 68

O.S.1991 § 2808, infra note 43. For another definition of the term, though

in a different context, see Ari. 9, § 34, Okl.Const.

3 The terms of 68 O.S.1991 § 2864 (C) provide:

“In determining the assessment ratio for all air carrier property

and all railroad property, the State Board shall only consider the

A-17

Protection Clause of the 14th Amendment, U.S. Const.4 The

court’s rationale for sanctioning the disparity of treatment in the

ad valorem tax scheme under scrutiny in this case rests on federal

law preemption. The court assumes original cognizance and

denies the petitioners’ [pipelines’] quest to prohibit the State

Board of Equalization [State Board] from subjecting their prop-

erty to an assessment ratio greater than that applied to railroad

and air carrier property.°

I must recede from the court’s pronouncement. The dis-

positive first impression issue in this original proceeding is

whether the federal-law mandate — that the states not discrimi-

nate against railroads and air carriers by assessing their prop-

erty at a higher ratio than the assessed value of other

“commercial and industrial property” — violates the anti-dis-

crimination component of the 5th Amendment’s Due Process

Clause® by not affording the same protection to other common

carriers in interstate commerce. If I were writing for the court

today, I would (a) hold that the congressional acts’ invoked by

the State are fatally infirm for an impermissible underinclusion

ratio of the aggregate assessed value to the fair cash value of the

locally assessed commercial/industrial real property of the

state.” (Emphasis added.)

The Equal Protection Clause of the 14th Amend., § 1, U.S. Const.,

commands that no State shall “deny to any person within its jurisdiction the

equal protection of the laws.” Nordlinger v. Hahn, 505 U.S. _, 112 S. Ct.

2326, 2331 n.1, 120 L.Ed.2d 1 (1992).

An assessment ratio of 12.08 percent (12.08%) for public service

corporation property owned by air carriers was adopted by the State Board

on June 20, 1994. Then, on July 15, 1994 a 22.85 percent (22.85%)

assessment ratio was ratified for property owned by the petitioners (pipe-

lines). Taxes calculated under these ratios will be due after April 1, 1995.

6

4

The pertinent terms of the 5th Amend., U.S. Const., are:

. nor [shall any person] be deprived of life, liberty, or

property, without due process of law . . .” (Emphasis added.)

Railroad Revitalization and Regulatory Reform Act of 1976, infra note

16, and Tax Equity and Fiscal Responsibility Act of 1982, infra note 17.

A-18

in the preferred class of other common carriers in interstate

commerce, (b) conclude that the infirm federal acts have no

preemptive effect on state law,® (c) examine the contested state

tax laws for conformity to state fundamental-law equality? and

uniformity! standards, (d) direct that, upon due notice and

hearings, the State Board set an across-the-board assessment

ratio that would apply alike to all public service corporations,

and (e) enjoin that, on the State Board’s failure to do so within

some reasonable period of time to be set by the court, the

petitioners could discharge their ad valorem tax liability at the

assessment ratio now applicable solely to railroads and air

carriers. Because the solution I advance represents a sharp break

with recent practice, | would (a) give prospective effect to the

court’s pronouncement and make it apply to this case, to like

challenges presently pending before the Court of Tax Review

or before any administrative agency and to those challenges that

are now in the appellate litigation process, (b) expressly reject

any refund claims to be pressed by the affected entities for

overpayment of taxes assessed at the impermissible ratio for any

past years!! and (c) postpone the effective date of the new

assessment ratio required by my analysis until the fiscal year

beginning July 1, 1996.

For a discussion of the federal acts’ nonpreemptive effect, see Part IX,

infra.

9 Art. 10, § 22, OkI.Const., infra note 39.

10 Art. 10, § 5, Okl.Const., infra note 38.

'! Fora discussion of the prospective effect I would give to my solution,

see Part IX, infra.

I

UNDER THE FEDERAL OUSTER-OF-JURISDICTION

DOCTRINE, THIS COURT IS NOT DIVESTED OF ITS

INHERENT AUTHORITY TO TEST THE RAILROAD

REVITALIZATION AND REGULATORY REFORM

ACT OF 1976 AND THE TAX EQUITY AND FISCAL

RESPONSIBILITY ACT OF 1982 FOR THEIR CON-

FORMITY TO THE MANDATORY STANDARDS OF

THE U.S. CONSTITUTION

State courts have inherent authority and are presumptively

competent to adjudicate claims arising under the laws of the

United States.'* To exclude state courts from this adjudicative

1?

McKesson v. Div. of Alcoholic Beverages & Tobacco, 496 U.S. 18,

48, 110 S.Ct. 2238, 2246 n.10, 110 L-Ed.2d 17 (1990); Yellow Freights, Inc.

v. Donnelly, 494 U.S. 820, 823, 110 S.Ct. 1566, 1568, 108 L.Ed.2d 834

(1990): Tafflin v. Levitt, 493 U.S. 455, 458-459, 110 S.Ct. 792, 795, 107

L.Ed.2d 887 (1990); Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473,

477-478, 101 S.Ct. 2870, 2875, 69 L.Ed.2d 784 (1981); Charles Dowd Box

Co. v. Courtney, 368 U.S. 502, 507-508, 82 S.Ct. 519, 522-523, 7 L.Ed.2d

483 (1962); Plaquemines Tropical Fruit Co. v. Henderson, 170 U.S. 511,517,

18 S.Ct. 685, 688, 42 L.Ed. 1126 (1898); Chaflin v. Houseman, 93 U.S. 130,

136, 23 L.Ed. 833, 838 (1876); Houston v. Moore, 18 U.S. (5 Wheat.) 1,

25-26, 5 L.Ed. 19 (1820). The Court stated in Howlett By and Through

Howlett v. Rose, 496 U.S. 356, 367, 110 S.Ct. 2430, 2438, 110 L.Ed.2d 332

(1990):

“Federal law is enforceble in state courts not because Congress

has determined that federal courts would otherwise be burdened

or that state courts might provide a more convenient forum .. .

but because the Constitution and laws passed pursuant to it are

as much laws in the States as laws passed by the state legisiature.

The Supremacy Clause makes those laws ‘the supreme Law of

the Land,’ and charges state courts with a coordinate responsi-

bility to enforce that law according to their regular modes of

procedure.”

Testa v. Katt, 330 U.S. 386, 393, 67 S.Ct. 810, 814, 91 L.Ed. 967 (1947),

teaches that the Supremacy Clause compels a state court to exercise jurisdic-

A - 20

arena, Congress must affirmatively divest (or oust) them of their

presumptively concurrent jurisdiction.'> Congressional state-

court ouster may be effected by (1) an explicit statutory direc-

tive, (2) unmistakable implication from legislative history, or

(3) a clear incompatibility between state-court jurisdiction and

federal interests. !4 None of these indicia of ouster is present in

the federal legislation we are called upon to consider in this

case.

Because my examination of the congressional acts, their

legislative history and attendant jurisprudence reveals no federal

ouster of state-court cognizance, I would proceed to test their

validity under the applicable standards of the U.S. Constitution

and hold them fatally infirm for the reasons stated in Parts IV,

VI and VIII, infra.

tion over a federal-law claim because “the policy of the federal Act is the

prevailing policy in every state.” (Emphasis supplied.) Any other result, the

Court notes, “flies in the face of the fact that the States of the Union constitute

a nation.” /d., 330 U.S. at 389, 67 S.Ct. at 812.

'3 Howlett, supra note 12, 496 U.S. at 368 n.15, 110 S.Ct. at 2438:

Yellow Freight, supra note 12, 494 U.S. at 823, 110 S.Ct. at 1568; Tafflin,

supra note 12, 493 U.S. at 459, 110 S.Ct. at 795. See in this connection

McKesson, supra note 12, 496 U.S. at 48 n.10, 110 S.Ct. at 2246 (“* [I]n every

case in which [state courts] were not expressly excluded by the future acts

of the national legislature, they will of course take cognizance of the causes

to which those acts may give birth .. . . [T]he inference seems to be conclusive

that the state courts would have a concurrent jurisdiction in all cases arising

under the laws of the union, where it was not expressly prohibited’”). Id.

(quoting from The Federalist No. 82 at 555 (A.Hamilton) (J.Cook ed. 1961)

(emphasis added).

'4 Tafflin, supra note 12, 493 U.S. at 459, 110 S.Ct. at 795; Chaflin,

supra note 12, 93 U.S. at 136; Houston, supra note 12, 5 U.S. at 68; Gulf

Offshore, supra note 12, 453, U.S. at 478, 101 S.Ct. at 2875.

pxbeiace a &

Ps lh as tate aa

A- 21

II

THIS COURT IS NOT OFFENDING AGAINST THE

ADVERSARY FORMAT OF THE PROCEEDINGS

WHEN IT USES ITS OWN REASONING IN ADDRESS-

ING THE PROPOSITIONS VIGOROUSLY

ADVANCED BY THE PETITIONERS

Whenever in an original proceeding the petitioner vigor-

ously and articulately urges a fully briefed legal proposition, this

court is free to supply its own analysis and reasoning in address-

ing the petitioner’s argument for the relief sought.!5

Even though the petitioners argued that the assessment

ratio affecting their property is violative of the state and federal

fundamental law, they did not expressly call for constitutional

condemnation of the two federal acts under consideration. Their

failure vigorously to press that point in support of the proposi-

tion urged does not preclude this court from applying sua sponte

the analysis I counsel today, which favors granting the relief

petitioners seek by this original action.

Il

THE FEDERAL AND STATE STATUTORY SCHEME

To revitalize the struggling railroad industry and to provide

for “tax equity” in general, Congress enacted the Railroad

Revitalization and Regulatory Reform Act of 1976 [4-R Act]!6

and the Tax Equity and Fiscal Responsibility Act of 1982

'S California v. Rooney, 483 U.S. 307, 311, 107 S.Ct. 2852, 2854, 97

L.Ed.2d 258 (1987), reh. denied, 483 U.S. 1056, 108 S.Ct. 30, 97 L.Ed.2d

819 (1987); Black v. Cutter Laboratories, 351 U.S. 292, 297, 76 S.Ct. 824,

827, 100 L.Ed. 1188 (1956), reh. denied, 352 U.S. 859, 77 S.Ct. 21, 1 L.Ed.2d

69 (1956); see also Chevron U.S.A. Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837, 842, 104 S.Ct. 2778, 2781, 81 L.Ed. 2d 694

(1984), reh. denied, 468 U.S. 1227, 105 S.Ct. 28, 82 L.Ed.2d 921 (1984);

Williams v. Norris, 25 U.S. (12 Wheat.) 117, 120, 6 L.Ed. 571 (1827).

'© ‘The terms of 49 U.S.C. § 11503 (b) [4-R Act] provide in pertinent part:

A-22

[TEFRA].!7 Among other things, these two acts prohibit the

states from assessing railroad and air carrier property at a level

that has a higher ratio to true market worth than that borne by

the assessed value of other “commercial and industrial property”

in the same assessment jurisdiction. The petitioners, who as

pipelines also engage in interstate commerce, are not similarly

shielded by the Congress from a higher state assessment ratio.

“The following acts unreasonably burden and discriminate

against interstate commerce, and a State, subdivision of a State,

or authority acting for a State or subdivision of a State may not

do any of them:

(1) assess rail transportation property at a value that has a

higher ratio to the true market value of the rail transportation

property than the ratio that the assessed value of other commer-

cial and industrial property in the same assessment jurisdiction

has to the true market value of the other commercial and indus-

trial property.

(2) levy or collect a tax on an assessment that may not be made

under clause (1) of this subsection.

(3) levy or collect an ad valorem property tax on rail transporta-

tion property at a tax rate that exceeds the tax rate applicable to

commercial and industrial property in the same assessment ju-

risdiction. * * *” (Emphasis added.)

'7 The pertinent terms of 49 U.S.C. § 1513(d)(1) [TEFRA] are:

“(d) Acts which unreasonably burden and discriminate against

interstate commerce; definitions

“(1) The following acts unreasonably burden and discriminate

against interstate commerce and a State, subdivision of a State,

or authority acting for a State or subdivision of a State may not

do any of them:

(A) assess air carrier transportation property at a value that has

a higher ratio to the true market value of the air carrier trans-

portation property than the ratio that the assessed value of other

commercial and industrial property of the same type in the same

assessment jurisdiction has to the true market value of the other

commercial and industrial property; * * * ” (Emphasis added.)

|

A - 23

Responding to the federal-law mandate, the Legislature

created a subclass of railroad and air carrier property!® and

established for that category an assessment methodology which

is different from that imposed upon the property of other public

service corporations.!? Section 2864(C) of the Ad Valorem Tax

Code provides that in determining the assessment ratio for “all

air carrier . . . and railroad property, the State Board shall only

consider the ratio of the aggregate assessed value of the fair cash

value to the locally assessed commercial/industrial real property

of the state.”*” No other public service corporations are af-

forded the same benefit. Based on the statutory scheme, the State

Board adopted in 1994 an assessment ratio of 12.08% for air

carrier and railroad property and 22. 85% for the petitioners.?!

The petitioners seek relief from the State Board’s action in

assessing their property at a ratio much higher than that applied

to public service corporation property of air carriers and rail-

roads. They urge the State Board’s dissimilar treatment of

members of the same class violates the 14th Amendment guar-

antee of equal protection” as well as the uniformity of taxation

mandate in the state fundamental law.” The State Board asserts

18 See 68 O.S.1991 § 2864 (C), supra note 3; see also the terms of 68

O.S.1991 § 2803 (A), which provide:

“A. The Legislature, pursuant to authority of Article X, Section

22 of the Oklahoma Constitution, hereby classifies the following

types of property for purposes of ad valorem taxation:

1. Real property;

2. Personal property; and

3. Public service corporation property.”

19 Fora statutory definition of public service corporation, see 68 O.S.

1991 § 2808, infra note 43.

70 For the terms of 68 O.S.1991 § 2864(C), see supra note 3.

*

See supra note 5.

*2 For the terms of the Equal Protection Clause of the 14th Amend., U.S.

Const., see supra note 4.

23

Art. 10, § 5, Okl.Const., infra note 38.

A- 24

that its assessment ratios are based on the Legislature’s legiti-

mate response to the mandate of the two federal statutes invoked.

IV

MEASURED BY THE ANTI-DISCRIMINATION

COMPONENT OF THE 5TH AMENDMENT?’S DUE

PROCESS CLAUSE, THE TWO FEDERAL

STATUTES UNDER CONSIDERATION CREATE AN

IMPERMISSIBLE SUBCLASS OF COMMON

CARRIERS IN INTERSTATE COMMERCE

WHICH IS VOID FOR UNDERINCLUSIVENESS

The equal protection command of the U.S. Constitution has

one clear and central meaning — it absolutely prohibits invidi-

ous governmental discrimination. That standard, which, under

the Equal Protection Clause of the 14th Amendment, 24 has to

be met by every state must also be obeyed by the federal |

government under the command of the Due Process Clause in |

the Sth Amendment.*> “Equal protection analysis in the Fifth |

Amendment area is the same as that under the Fourteenth

Amendment.”26

” Nordlinger, supra note 4, 505 U.S. at__, 112 S.Ct. at 2331; Loving

v. Virginia, 388 U.S. 1, 10, 87 S.Ct. 1817, 1822, 18 L.Ed.2d 1010 (1967);

Hill v. Texas, 316 U.S. 400, 405, 62 S.Ct. 1159, 1162, 86 L.Ed. 1559 (1942).

Although there is no equal protection clause in the Sth Amendment,

the Court recognizes in its provisions the presence of an element of equal

treatment under the law, which “stem[s] from our American ideal of fair-

ness.” Bolling v. Sharpe, 347 U.S. 497, 500, 74 S.Ct. 693, 694, 98 L.Ed. 884

(1954); see also Washington v. Davis, 426 U.S. 229, 239, 96 S.Ct. 2040,

2047, 48 L.Ed.2d 597 (1976); Weinberger v. Wiesenfeld, 420 U.S. 636, 638

n.2, 95 S.Ct. 1225, 1228, 43 L.Ed.2d 514 (1975); Davis v. Passman, 442 U.S.

228, 234, 99 S.Ct. 2264, 2271, 60 L.Ed.2d 846 (1979). The equal protection

component of the 5th Amendment forbids discrimination that is “so unjusti-

fiable as to be violative of due process.” Bolling, supra, 347 U.S. at 499, 74

S.Ct. at 694.

76 Buckley v. Valeo, 424 U.S. 1, 93, 96 S.Ct. 612, 670, 46 L.Ed.2d 659

(1976).

A - 25

Section 5 of the 14th Amendment?” empowers Congress

to enact legislation implementing the commands of that amend-

ment. While the 14th Amendment’s enforcement clause is a

positive grant of power authorizing Congress to exercise its

discretion in determining what statute is needed to shield equal

protection guarantees, the Sth Amendment prohibits that federal

law-making body from assaulting those guarantees by the very

legislation that is meant to secure them. 28

Economic legislation — like that in the two acts tendered

for our consideration today — “that does not employ suspect

classifications or impinge on judgmental rights must [generally]

be upheld against equal protection attack when the legislative

means are rationally related to a legitimate governmental pur-

pose.””” State legislation imposing a tax on one individual but

Section 5 of the 14th Amendment gives Congress the “power to

enforce, by appropriate legislation, the provisions of this article.” See Katzen-

back v. Morgan, 384 U.S. 641, 648-650, 86 S.Ct. 1717, 1722-1723, 16

L.Ed.2d 828 (1966), where the Court upheld Congress’ statutory prohibition

of state-imposed literacy tests because of their discriminatory effect upon

illiterate minorities. There, the Court subordinated its own contrary juris-

prudence to the § 5 implementing legislation.

Shapiro v. Thompson, 394 U.S. 618, 630, 89 S.Ct.1322, 22 L.Ed.2d

600 (1969) (overruled in part on other grounds, Edelman v. Jordan, 415 U.S.

651, 671, 94 S.Ct. 1347, 1359-1360, 39 L.Ed.2d 662 (1974)); Graham v.

Richardson, 403 U.S. 365, 382, 91 S.Ct. 1848, 1857, 29 L.Ed.2d 534 (1971);

Mississippi University for Women v. Hogan, 458 U.S. 718, 732-733, 102

S.Ct. 3331, 3340, 73 L.Ed.2d 1090 (1982) citing Katzenback, supra note 27):

Williams v. Rhodes, 393 U.S. 23, 29, 89 S.Ct. 5, 9-10, 21 L.Ed.2d 24 (1968).

79 Hodel v. Indiana, 452 U.S. 314, 331, 101 S.Ct. 2376, 2387, 69 L.Ed.2d

40 (1981); Schweiker v. Wilson, 450 U.S. 221, 230, 101 S.Ct. 1074, 1080.

67 L.Ed.2d 186 (1981); Western & Southern Life Ins. Co. v. State Board of

Equalization, 451 U.S. 648, 668, 101 S.Ct. 2070, 2083, 68 L.Ed.2d 514

(1981); Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 461-463, 101

S.Ct. 715, 722-723, 66 L.Ed.2d 659 (1981) reh. denied 450 U.S. 1027, 101

S.Ct. 1735, 68 L.Ed.2d 222 (1981); United States R.R. Retirement Bd. v.

Fritz, 449 U.S. 166, 174-79, 101 S.Ct. 453, 459-61, 66 L.Ed.2d 368 (1980)

reh. denied 450 U.S. 960, 101 S.Ct. 1421, 67 L.Ed.2d. 385 (1981); Kotch v.

Board of River Pilot Commr’s, 330 U.S. 552, 564, 67 S.Ct. 910, 916, 91 L.Ed.

A - 26

not on others of the same class may, on the other hand, violate

the Equal! Protection Clause.*° Federal economic legislation

which has a discriminatory tax impact on class members may

similarly infringe on due process rights. Whether Congress’

mandate for nondiscriminatory state tax treatment of railroads

and air carriers was passed in the exercise of its powers under

the Commerce Clause or under the enforcement provisions in

§ 5 of the 14th Amendment, it is clear that the two federal

statutes result in disparate treatment of pipelines, which, though

falling within the congressionally established class of common

carriers in interstate commerce, are denied the same shield

against excessive state tax assessment ratios.>! In sum, pipelines

have been excluded by Congress from the subclass of favored

common carriers who alone enjoy the palladium against burden-

some taxation.>?

1093 (1947) reh.denied 331 U.S. 864, 67 S.Ct. 1196, 91 L.Ed. 1869 (1947);

Regan v. Taxation with Representation of Washington, 461 U.S. 540, 547,

103 S.Ct. 1997, 2001-2002, 76 L.Ed.2d 129 (1983); Exxon Corporation v.

Eagerton, 462 U.S. 176, 195, 103 S.Ct. 2296, 2308, 76 L.Ed.2d 497 (1983); Eaton

v. Jarvis Products Corp., 965 F.2d 922, 929 (10th Cir. 1992).

s Hillsborough Tp. v. Cromwell, 326 U.S. 620, 623, 66 S.Ct. 445, 448,

90 L.Ed. 358, 363 (1946); cf. City of New Orleans v. Dukes, 427 U.S. 297,

303-304, 96 S.Ct. 2513, 2516-2517, 49 L.Ed.2d 511 (1976) (states are given

greater latitude in implementing purely economic regulations challenged as

violative of the Equal Protection Clause of the 14th Amendment).

3! The Interstate Commerce Act, 49 U.S.C. §§ 10101 (1988) er seq.,

governs, among other things, all common and air carriers (if the latter are not

statutorily included within the definition of common carrier) in interstate

commerce. The terms of 49 U.S.C. § 10102 (4) define a common carrier as

“an express career, a pipeline carrier, a rail carrier, a sleeping car carrier, a

motor common carrier, a water common carrier, and a household goods

freight forwarder.” (Emphasis added.) Though there may be some doubt

whether federal legislation includes air carriers under the heading of common

carrier, I refer to the term common carrier as all-inclusive.

*2 See Appeal of ANR Pipeline Co., 254 Kan. 534, 543, 866 P.2d 1060,

1066-1067 (1994), cert. denied, _U.S._, 115 S.Ct. 296, _ L.Ed.2d _

(1994), where the court notes: “The brief of the [Kansas] Department of

A-27

When Congress singles out some members of a class for a

benefit not given to others in the same class and no rational

relation can be shown for the disparate treatment, an impermis-

sible underinclusive class*> is created which denies the ex-

cluded members equal treatment under the law. Legislative

history, interpretive case law and the text of the two statutes

demonstrate no rational relationship between the disparity cre-

ated and some legitimate government aim to be achieved.*4

Congress, while favoring some common carriers, plainly omit-

ted pipelines from the protective shield afforded by the two acts.

When measured against the anti-discrimination component of

the 5th Amendment, the two federal statutes in question are void

for underinclusiveness. / would so hold.

The Supremacy Clause*5 mandates preemption of state

regulation by discordant national legislation that is conformable

to the U.S. Constitution.*° Federal statutory law that would

require this court to violate the equal-treatment command of the

U.S. Constitution need not be obeyed as valid legislation.3”

Revenue states pipeline companies attempted unsuccessfully to obtain like

federal legislation in their favor. The statement is not disputed.” (Emphasis

added).

33 , i , ie

For a discussion of impermissible under inclusive classifications, see

Orr v. Orr, 440 U.S. 268, 272, 99 S.Ct. 1102, 1108, 59 L.Ed.2d 306 (1979);

Stanton v. Stanton, 421 U.S. 7, 13-14, 95 S.Ct. 1373, 1377, 43 L.Ed.2d 688

(1975).

Clements v. Fashing, 457 U.S. 957, 964, 102 S.Ct. 2836, 2844, 73

L.Ed.2d 508 (1982).

35 Art. 6, cl. 2, U.S. Const., states in pertinent part:

“This Constitution, and the Laws of the United States which shall

be made in Pursuant thereof . . . shall be the supreme Law of the

Land; and the Judges in every State shall be bound thereby, . . . . “

Pac. Gas & Elc. v. St. Energy Resources Conserv., 461 U.S. 190,

203-204, 103 S.Ct. 1713, 1722, 75 L.Ed.2d 752 (1983).

Shapiro, supra note 28, 394 U.S. at 630, 89 S.Ct at 1325; Graham.

supra note 28, 403 U.S. at 382, 91 S.Ct at 1857.

ABSENT PREEMPTIVE FEDERAL

LEGISLATION THAT IS FREE FROM

CONSTITUTIONAL INFIRMITY,

ART. 10, § 5, OKL.CONST.,38 COMMANDS THE

INCLUSION OF ALL PUBLIC SERVICE CORPORA-

TIONS IN THE SAME TAX CLASSIFICATION

The State Constitution authorizes the Legislature to class-

ify property for ad valorem taxation°? and requires the State

Board to assess uniformly all public service corporation prop-

erty.40 The Legislature has divided property that is subject to

ad valorem tax into three classes — real, personal and public

service corporation property*! — and has then carved out of the

latter class a subclass embracing only railroad and air carrier

property.42 For ad valorem taxation purposes, railroads, air

38 The terms of Art. 10, § 5, Okl.Const., are:

“The power of taxation shall never be surrendered, suspended,

or contracted away. Taxes shall be uniform upon the same class

of subjects.” (Emphasis added.)

The terms of Art. 10, § 22, Okl.Const., are:

“Nothing in this Constitution shall be held, or construed, to

prevent the classification of property for purposes of taxation;

and the valuation of different classes by different means or

methods. (Emphasis added.)

#0 Art. 10, § 5, Okl.Const., supra note 38. The terms of Art. 10, § 21,

Okl1.Const., are:

39

“A. There shall be a State Board of Equalization consisting of

the Governor, State Auditor, State Treasurer, Lieutenant Gover-

nor, Attorney General, State Inspector and Examiner and Presi-

dent of the Board of Agriculture. The duty of said Board shall

be to adjust and equalize the valuation of real and personal

property of the several counties in the state ... and they shall

assess all railroad and public service corporation property. * *

=>

4! 68 O.S.1991 § 2803(A), supra note 18.

A- 29

carriers and pipeline companies are all integral members of the

same taxpayer category.4° They must hence be treated alike.

Because I believe the federal legislation in question is

constitutionally infirm, I would require that the State Board

comply with our own fundamental law mandating uniform

assessment ratio for all entities within the same class.

VI

CONGRESS MAY NOT AUTHORIZE THE STATES

TO VIOLATE THE EQUAL PROTECTION CLAUSE

Assuming that the two federal acts are not infirm when

tested for conformity to the Sth Amendment’s anti-discrimina-

tion component, they must nonetheless be condemned as imper-

missible congressional commands to the states. This is so

because both statutes clearly call for an unmistakable violation

of the 14th Amendment’s Equal Protection Clause.44 The U.S.

Supreme Court’s jurisprudence inexorably commands the states

to establish and follow an ad valorem tax regime that is not

offensive to equal protection.*> Federal /egislation, on the other

*2 68 0.S.1991 § 2864(C), supra note 3.

43 The terms of 68 O.S.1991 § 2808 provide in pertinent part:

“A. The term public service corporation, as, used in the Ad

Valorem Tax Code, shall include . . . all persons authorized .. .

to use or occupy any right-of-way, street, alley, or public high-

way, along, over or under the same in a manner not permitted to

the general public.”

See Pure Oil Pipe Line Co. v. Cornish, 163 Okl. 79, 20 P.2d 1041, 1043-44

(1933).

For the terms of the Equal Protection Clause of the 14th Amend., U.S.

Const., see supra note 4; Nordlinger, supra note 4, 505 U.S. at__, 112 S.Ct.

at 2331.

Allegheny Pittsburgh Coal Co. v. County Comm’n, 488 U.S. 336,

344, 109 S.Ct. 633, 638, 102 L.Ed.2d 688 (1989); Lehnhausen v. Lake Shore

Auto Parts Co., 410 U.S. 356, 359, 93 S.Ct. 1001, 1003, 35 L.Ed.2d 351

ee ee ee

A - 30

hand, requires that railroads and air carriers not be assessed at a

higher ratio than that prescribed for commercial property.4° The

latter acts cannot be read in isolation from the broader U.S.

constitutional mandate that calls upon the states to comply with

equal protection guarantees.4” Congress’ statutory command

that the states give air carriers and railroads preferential tax

treatment plainly places the states’ assessment regimes in con-

travention of the U.S. Supreme Court’s equal protection juris-

prudence. This is so because no rational basis exists for denying

pipelines (and other similarly situated landowners) the palla-

dium afforded by the constitutional requirement for an assess-

ment regime that would pass equal protection muster.*®

“Congress may not authorize the States to violate the Equal

Protection Clause.”49 Although “deference [must be given] to

congressional decisions and classifications, neither Congress

nor a State can validate a law that denies the rights guarantecd

by the Fourteenth Amendment.”>° The powers granted by the

(1973) reh. denied 411 U.S. 910, 93 S.Ct. 1523, 36 L.Ed.2d 200 (1973).

Hillsborough, supra note 30, teaches that “[t}he equal protection clause of

the Fourteenth Amendment protects the individual from state action which

selects him out for discriminatory treatment by subjecting him to taxes not

imposed on others of the same class. The right is the right to equal treatment.”

Id., 326 U.S. at 623, 66 S.Ct. at 448. “[A] taxpayer, although assessed on not

more than full value, may be unlawfully discriminated against by undervalu-

ation of property of the same class belonging to others.” Southern Railway

Co. v. Watts, 260 U.S. 519, 526, 43 S.Ct. 192, 195, 67 L.Ed. 375 (1923).

46 See 4-R Act, supra note 16; TEFRA, supra note 17.

47 For the terms of the Equal Protection Clause of the 14th Amend..,

§ 1, U.S.Const., see supra note 4; see also Nordlinger, supra note 4, 505

US. at, 112 S.Ct. at 2331.

Different treatment of similarly situated taxpayers does not violate

equal protection so long as rational basis exists for the disparity of treatment.

Lehnhausen, supra note 45, 410 U.S. at 359, 93 S.Ct. at 1003.

9 Shapiro, supra note 28, 394 U.S. at 618, 89 S.Ct. at 1325; Graham,

supra note 28, 403 U.S. at 382, 91 S.Ct. at 1857.

A- 31

U.S. Constitution to the Congress or to the states “are always

subject to the limitation that they may not be exercised in a way

that violate[s] other specific provisions of the Constitution.”>!

The court today notes that the 4-R Act has been upheld by

some federal courts°? and that no state or federal court has ever

declared either that act or TEFRA unconstitutional.*> The cases

cited in the court’s opinion are not persuasive as a legal barrier

to the court’s recognition of the constitutional flaw to which I

allude. Inone of the cases, Tennessee v. Louisville,>4 the federal

court applied a two-part test for determining the constitutionality

of federal legislation under the Commerce Clause: such legisla-

tion, the court said, (1) must bear a rational nexus to an activity

that affects interstate commerce; and (2) if Congress finds such

a basis, it must select a reasonable and appropriate means of

eliminating the detrimental effect the offending activity would

exert on interstate commerce. None of these cases addressed the

issue whether the federal legislation under our scrutiny today

would pass constitutional muster either under the rational-basis

test of the 5th Amendment’s anti-discrimination component or

under the 14th Amendment’s Equal Protection Clause. In the

- Mississippi University, supra note 28, 458 U.S. at 732-733, 102 S.Ct.

at 3340 (citing Katzenbach, supra note 27).

>! Rhodes, supra note 28, 393 U.S. at 29, 89 S.Ct. at 9-10.

>? See State of Arizona v. Atchison, Topeka and Santa Fe RR Co., 656

F.2d 398, 405 (9th Cir. 1981); Louisville & Nashville RR Co. v. Louisiana

_ Tax Comm’n, 498 F.Supp. 418, 422 (1980); Tennessee v. Louisville &

Nashville RR Co., 478 F.Supp. 199, 206-207 (M.D.Tenn. 1979), aff'd, 652

F.2d 59 (6th Cir. 1981), cert. denied, 454 U.S. 834, 102 S.Ct. 135, 70 L.Ed.2d

114 (1981).

~ My research reveals no federal TEFRA jurisprudence which ad-

dresses the constitutional validity of the Act against an attack based on the

Sth Amendment’s anti-discrimination component. In Salem Transp. Co. v.

Port Authority of N.Y. & N.J., 611 F.Supp. 254, 258 (S.D.N.Y. 1985), the

court held that a gross receipts fee levied by a market-participant local

A - 32

absence of a binding Supreme Court precedent,>> on substan-

tive federal-law questions we follow, as a matter of pure comity,

the Tenth Circuit pronouncements, and on issues affecting state

action we defer to that court’s constitutional jurisprudence.*°

Because neither the U.S. Court of Appeals for the Tenth Circuit

nor the highest federal Court ever has passed upon the issue

before us here,>’ we need not today give deference to any extant

federal case law. In the exercise of its inherent authority under

the U.S. Constitution, this court is competent to test the two

federal statutes for constitutional orthodoxy.

Vil

THE CONGRESSIONAL COMMERCE-CLAUSE

POWERS DO NOT LEND SUPPORT TO THE

VALIDITY OF THE TWO FEDERAL ACTS

Bacchus Imports, Ltd. v. Dias*® struck down as violative

of the Commerce Clause5? a state excise tax which discrimi-

nated against interstate commerce by bestowing a commercial

government entity violates neither the provisions of TEFRA nor Commerce

Clause principles.

4 Tennessee, supra note 52 at 206-207.

°> No extant U.S. Supreme Court jurisprudence has addressed the con-

stitutional validity of the federal law under scrutiny here (49 U.S.C.A.

§§ 1513(d)(1)(A), | 1503(b)(1)). In Dept. of Revenue of Or. v. ACF Indus-

tries, U.S. __, 114 S.Ct. 843, 849, 127 L.Ed.2d 165 (1994), a recent case

construing the 4-R Act, the Court merely held the act’s definition of “commercial

and industrial property” excludes property exempted under applicable law.

56 Phillips v. Williams, Okl., 608 P.2d 1131, 1135 (1980); McLin v.

Trimble, Okl., 795 P.2d 1035, 1047 (1990)(Opala, J., dissenting).

57 In Atchison, T. & S. F. Ry. Co. v. Lennen, 640 F.2d 255, 258-259

(10th Cir. 1981), the court interpreted the 4-R Act to authorize injunctive

relief to facilitate the Act’s enforcement, but had before it no issues of a

constitutional dimension.

58 468 U.S. 263, 272-273, 104 S.Ct. 3049, 3055-3056, 82 L.Ed.2d. 200

(1984).

A - 33

advantage (excise tax exemption) on sales of wine and liquor

made from local products while imposing a 20% excise tax on

foreign liquor. The Court held that the states may not build up

their domestic commerce by means of unequal and oppressive

burdens placed upon the industry and business of other states.

Bacchus teaches that state economic protectionism cannot be

rested on the legislative “characterization of an industry as

,»”

either ‘thriving’ or ‘struggling as

The 4-R Act’s purpose, stated in the congressional decla-

ration of policy, is “to provide the means to rehabilitate and

maintain the physical facilities, improve the operations and

structure, and restore the financial stability of the railway system

of the United States.”©! TEFRA’s objective is “to provide for

tax equity and financial responsibility.”©2 Congress’ solution to

these goals was (a) § 11503, which prohibits discriminatory state

taxation of railroad property®? and (b) § 1513(d), which simi-

larly shields air carrier property.™ If the states cannot protect

struggling entities by classifying them for a more favorable tax

treatment, neither can Congress (the latter by failing to extend

its protective arm to less deserving public service corporations)

command the states to discriminate against businesses in inter-

state commerce in a manner that offends the U.S. Supreme

Court’s Commerce Clause jurisprudence.® I would hence re-

° The pertinent terms of Art. 1, § 8, cl. 3, U.S.Const., are:

“The Congress shall have power. . . [t}o regulate Commerce with

foreigs, Nations, and among the several States. . . .”

6 Bacchus, supra note 58, 468 U.S at 272-273, 104 S.Ct. at 3056.

Burlington Northern Railroad Company v. Oklahoma Tax Commis-

sion, 481 U.S. 454, 457, 107 S.Ct. 1855, 1857, 95 L.Ed.2d 404 (1987) quot-

ing from § 10i(a), 90 Stat. 31).

62 Public Law 97-248, Sept. 3, 1982, 96 Stat. 324.

63 For the pertinent terms of 49 U.S.C. § 11503, see supru note 16; see

also Burlington Northern, supra note 61, 481 U.S. at 457, 107 S.Ct. at 0858.

For the pertinent terms of 49 U.S.C. § 1513(d), see supra note 17.

|

|

j

A - 34

fuse today to give our imprimatur to federal legislation that

places state governments in violation of the Commerce Clause

by giving some public service corporations favorable tax treat-

ment in an attempt to improve their financial stability, while

denying the same economic advantage to others through an

impermissible regime of thriving/struggling industry classification.

Vill

THE COURT’S ANALYSIS LEADS IT TO

AN INDEFENSIBLE CONCLUSION

The State Board’s underassessment of air carrier and rail-

road property will not pass constitutional muster under the 14th

Amendment. The equal protection component of the 14th

Amendment prohibits that state action which imposes on some

members of a class burdens and liabilities which are not cast

upon others similarly situated. It makes no difference here

whether the underassessment of air carrier or railroad property

comes about because of deliberate action by the State Board,

legislative enactments or by federal-law compulsion. The im-

pact remains the same. The 14th Amendment’s Equal Protection

Clause commands that pipeline property be accorded tax treat-

ment that is the same as that extended to other public service

corporations. In short, by underassessing railroad and air carrier

property, the state has denied the pipelines equal protection of

the law.

Because our constitutional command — that public service

corporation property be taxed uniformly®’ — is not and has not

been shown to offend against any federal fundamental-law

mandate, we cannot use today federal preemption as an excuse

for violating our own fundamental law.

6 Rhodes, supra note 28, 393 US. at 29, 89 S.Ct. at 9-10, teaches that

the powers granted by the Constitution to the Congress or to the states “are

ua dh kde Set cat

IX

NATURE OF RELIEF TO BE GRANTED AS A

REMEDY FOR THE OFFENDING

ASSESSMENT RATIO

I would direct today that, upon due notice and hearings, the

State Board set an across-the-board assessment ratio for all

public service corporations. On the State Board’s failure to do

so within some reasonable period of time to be set by the court,

I would direct that the petitioners could discharge their ad

valorem tax liability at the assessment ratio now applicable

solely to railroads and air carriers.®

Because my solution represents a sharp break with recent

practice, I would give it prospective effect and make it apply to

this proceeding, to like challenges presently pending before the

Court of Tax Review or before any administrative agency and

always subject to the limitation that they may not be exercised in a way that

violate[s] other specific provisions to the Constitution.”

“4 Nordlinger, supra note 4, 505 U.S. at __, 112 S.Ct. at 2331.

6” See Part V, supra.

68 Before promulgating the court’s pronouncement J would require the

petitioners join in this case as parties respondent all railroads and air

carriers presently benefiting from the acts of Congress that are under con-

sideration in this proceeding and would invite all those added entities to show

cause why these acts should not be declared infirm for underinclusiveness.

“Where a statute is defective because of underinclusion . . . there exist two

remedial alternatives: a court may cither declare [it] a nullity and order that

its benefits not extend to the class that the legislature intended to benefit, or

it may extend the coverage of the statute to include those who are aggrieved

by exclusion.” Califano v. Westcott, 443 U.S. 76, 89, 99 S.Ct. 2655, 2663,

61 L.Ed.2d 382 (1979) (quoting Welsh v. United States, 398 U.S. 333, 361,

90 S.Ct. 1792, 1807-1808, 26 L.Ed.2d 308 (1970) (Harlan, J., concurring in

result)); Orr, supra note 33, 440 U.S. at 272, 99 S.Ct. at 1108.

A - 36

to challenges now in the appellate litigation process;®? I would

expressly reject any refund claims to be pressed by the adversely

affected entities for overpayment of taxes assessed against their

property at the impermissible ratio during any past years.””

Changes to be implemented in the assessment ratio would be post-

poned to take effect during the fiscal year beginning July 1, 1996.

X

SUMMARY

Federal legislation which treats differently members of the

same class without a rational basis for the imposed disparity

cannot pass constitutional muster when measured either by the

anti-discrimination component of the Sth Amendment’s Due

Process Clause or by the U.S. Supreme Court’s Commerce

Clause jurisprudence. The two federal acts in question here are

fatally flawed by an impermissible underinclusion which af-

fords some common carriers (railroads and air carriers) protec-

tion from discriminatory state ad valorem tax regime but

excludes out-of-hand other members of the same class. State

wie prospective effect I would give today is known as the “pipeline

doctrine”. That doctrine saves from extinction those interests presently in

litigation (i.e., the case before the court and cases pending before trial

tribunals or in the appellate litigation process) or capable of being litigated

when the new rule is announced. For Oklahoma jurisprudence applying a

new rule of law to cases in the pipeline see Amoco Production v. Corp. Com’n

of Okl., Okl.App., 751 P.2d 203, 208 (1986); Schepp v. Hess, Okl., 770 P.2d

34, 39 (1989); Dow Jones & Co. v. State ex rel. Tax Com’n, Okl., 787 P.2d

843, 847 (1990); Strelecki v. Oklahoma Tax Comm’n, OKI., 872 P.2d 910,

915 n. 44 (1994); Schulte v. Oklahoma Tax Commission, Ok1., 882 P.2d 65,

75 (1994). James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 111 S.Ct.

2439, 2444-2445, 115 L.Ed.2d 481 (1991), is a U.S. Supreme Court refine-

ment of the pipeline doctrine aimed at securing equality for all claims that

are pending, or for those capable of being litigated, when the new rule is

announced; see also Harper v. Virginia Dept. of Taxation, 509 U.S. _, 113

S.Ct. 2510, 2518, 125 L.Ed.2d 74 (1993).

70 Schulte, supra note 69 at 74.

e

|

A - 37

legislation passed in response to these federal-law commands

clearly violates the 14th Amendment. Because under my analy-

sis the two federal acts are clearly constitutionally infirm, |

would hold today that they cannot operate to preempt contrary

state law. The State Board should hence be declared free of

federal-law restraint, and indeed required by our own fundamen-

tal law, to set a reasonable assessment ratio that equally impacts

the property of all public service corporations. On the State

Board’s failure to act timely by establishing the required, even-

handed assessment ratio, I would extend the benefit of the lower

(railroad and air carrier) ratio to all challengers, who on like

grounds are presently pressing claims before the Court of Tax

Review or before any administrative agency, and to all those

whose challenges are now in the appellate litigation process.

Lastly, I would give prospective effect to my pronounce-

ment, making it apply to this case, to like challenges presently

pending before the Court of Tax Review or before any admin-

istrative agency and to challenges now in appellate litigation

process; I would expressly reject any refund claims to be pressed

(by the adversely affected entities) for overpayment of taxes

assessed against their property at the impermissible ratio during

any past period and would postpone the effective date of the

nonoffending ratio to be established to the fiscal year commenc-

ing July 1, 1996.

-

B-1

Appendix B

Iu the Supreme Court of the

State of Oklahoma

FILED

SUPREME COURT

STATE OF OKLAHOMA

MAR 7, 1995

JAMES W. PATTERSON

CLERK

The Clerk is directed to issue to following orders:

82,410

82,671

82,821

82,822

John and Patty McCown etc. v. City of Elk

City et. al.

Petition for certiorari denied.

CONCUR: Hodges, Lavender, Simms,

Hargrave, Opala, Summers, Watt, JJ.

DISSENT: Wilson, C.J., Kauger, V.C.J.

Randy and Patty Martin v. Jack Yates etc. et al.

Petition for certiorari denied.

CONCUR: All Justices concur.

(comp. w/ 82,822) The State of Oklahoma v.

Jiminez Geraldo Escobar v. American

Bankers Life Insurance Company.

Petition for certiorari denied.

CONCUR: All Justices concur.

(comp. w/ 82,821) The State of Oklahoma v.

Gerardo Melchor Madrigal v. American

Bankers Life Insurance Company.

Petition for certiorari denied.

CONCUR: All Justices concur.

B-2

83,143 Floyd Electric Motor Company, Inc. v.

Professional Services Group, Inc.

Petition for certiorari denied.

CONCUR: All Justices concur.

83,255 In the Matter of the Estate of Henry Treisa

and Verda M. Treisa, deceased.

Petition for certiorari denied.

CONCUR: Kauger, V.C.J., Lavender, Simms,

Hargrave, Opala, Summers, JJ.

DISSENT: Wilson, C.J., Hodges, Watt, JJ.

83,420 Warehouse Market, Inc. etc. v. Charles

Daniel Sayre et al.

Petition for certiorari denied.

CONCUR: All Justices concur.

84,097 Williams Natural Gas Company et al. v.

State Board of Equalization and Oklahoma

Tax Commission.

Petitions for rehearing denied. Petitioners and

4 Intervenors motion to stay denied

VOTE ON REHEARING:

; CONCUR: Kauger, V.C.J., Hodges, Simms,

Hargrave, Summers, Watt, JJ.

DISSENT: Wilson, C.J., Lavender, Opala, JJ.

VOTE ON MOTION TO STAY DENIED:

CONCUR: All Justices concur.

Response due: 6-5

Docketed: 3-8 cm ls/_ Alma Wilson _

CHIEF JUSTICE

C-1

Appendix C

49 U.S.C. § 11503.

Tax discrimination against rail transportation property

(a) In this section—

(1) “assessment” means valuation for a property tax

levied by a taxing district.

(2) “assessment jurisdiction” means a geographical

area in a State used in determining the assessed value

of property for ad valorem taxation.

(3) “rail transportation property” means property, as

defined by the Interstate Commerce Commission,

owned or used by a rail carrier providing transporta-

tion subject to the jurisdiction of the Commission

under subchapter I of chapter 105 of this title.

(4) “commercial and industrial property” means prop-

erty, other than transportation property and land used

primarily for agricultural purposes or timber growing,

devoted to a commercial or industrial use and subject

to a property tax levy.

(b) The following acts unreasonably burden and discriminate against

interstate commerce, and a State, subdivision of a State, or authority

acting for a State or subdivision of a State may not do any of them:

(1) assess rail transportation property at a value that

has a higher ratio to the true market value of the rail

transportation property than the ratio that the assessed

value of other commercial and industrial property in

the same assessment jurisdiction has to the true market

value of the other commercial industrial property.

(2) levy or collect a tax on an assessment that may not

be made under clause (1) of this subsection.

(3) levy or collect an ad valorem property tax on rail

transportation property at a tax rate that exceeds that

C-2

tax rate applicable to commercial and industrial prop-

erty in the same assessment jurisdiction.

(4) impose another tax that discriminates against a rail

carrier providing transportation subject to the jurisdic-

tion of the Commission under subchapter I of chapter

105 of this title.

(c) Notwithstanding section 1341 of title 28 and without regard to

the amount in ‘controversy or citizenship of the parties,’ a district

court of the United States has jurisdiction, concurrent with other

jurisdiction of courts of the United States and the States, to prevent

a violation of subsection (b) of this section. Relief may be granted

under this subsection only if the ratio of assessed value to true

market value of rail transportation property exceeds by at least 5

percent, the ratio of assessed value to true market value of other

commercial and industrial property in the same assessment juris-

diction. The burden of proof in determining assessed value and true

market value is governed by State law. If the ratio of the assessed

value of other commercial and industrial property in the assessment

jurisdiction to the true market value of all other commercial and

industrial property cannot be determined to the satisfaction of the

district court through the random-sampling method known as a

sales assessment ratio study (to be carried out under statistical

principles applicable to such a study), the court shall find, as a

violation of this section—

(1) an assessment of the rail transportation property at

a value that has a higher ratio to the true market value

of the rail transportation property than the assessed

value of all other property subject to a property tax

levy in the assessment jurisdiction has to the true

market value of all other commercial and industrial

property; and

(2) the collection of an ad valorem property tax on the

rail transportation property at a tax rate that exceeds

the tax ratio rate applicable to taxable property in the

taxing district.

D-1

Appendix D.

Title 49. Transportation

Subtitle VII. Aviation Programs

Part A. Air Commerce and Safety

Subpart I. General

Chapter 401. General Provisions

49 U.S.C. § 40116 (1994)

Section 40116. State Taxation

(a) Definition. In this section, “State” includes the District of

Columbia, a territory or possession of the United States, and a

political authority of at least 2 States.

(b) Prohibitions. Except as provided in subsection (c) of this

section and section 40117 of this title, a State or political

subdivision of a State may not levy or collect a tax, fee, head

charge, or other charge on - -

(1) an individual traveling in air commerce;

(2) the transportation of an individual traveling in air

commerce;

(3) the sale of air transportation; or

(4) the gross receipts from that air commerce or

transportation.

(c) Aircraft taking off or landing in State. A State or political

subdivision of a State may levy or collect a tax on or related to

a flight of a commercial aircraft or an activity or service on the

aircraft only if the aircraft takes off or lands in the State or

political subdivision as part of the flight.

(d) Unreasonable burdens and discrimination against interstate

commerce.

(1) In this subsection - -

D-2

(A) “air carrier transportation property” means property (as

defined by the Secretary of Transportation) that an air carrier

providing air transportation owns or uses.

(B) “assessment” means valuation for a property tax levied by

a taxing district.

(C) “assessment jurisdiction” means a geographical area in a

State used in determining the assessed value of property for ad

valorem taxation.

(D) “commercial and industrial property” means property (ex-

cept transportation property and land used primarily for agricul-

ture or timber growing) devoted to a commercial or industrial

use and subject to a property tax levy.

(2) (A) A State, political subdivsion of a State, or

authority acting for a State or political subdivision

may not do any of the following acts because those

acts unreasonably burden and discriminate against

interstate commerce:

(i) assess air carrier transportation property at a

value that has a higher ratio to the true market

value of the property than the ratio that the

assessed value of other commercial and indus-

trial property of the same type in the same assess-

ment jurisdiction has to the true market value of

the other commercial and industrial property.

(ii) levy or collect a tax on an assessment that

may not be made under clause (i) of this subpara-

graph.

(iii) levy or collect an ad valorem property tax

on air carrier transportation property at a tax rate

greater than the tax rate applicable to commercial

and industrial property in the same assessment

jurisdiction.

D -3

(iv) Levy or collect a tax, fee, or charge, first

taking effect after the date of the enactment of

this clause, exclusively upon any business lo-

cated at a commerical service airport or operat-

ing as a permittee of such an airport other than a

tax, fee, or charge wholly utilized for airport or

aeronautical purposes.

(B) Subparagraph (A) of this paragraph does not apply to an in

lieu tax completely used for airport and aeronautical purposes.

(e) Other allowable taxes and charges. Except as

provided in subsection (d) of this section, a State or

political subdivision of a State may levy or collect - -

(1) taxes (except those taxes enumerated in sub-

section (b) of this section), including property

taxes. net income taxes, franchise taxes, and

sales or use taxes on the sale of goods or services;

and

(2) reasonable rental charges, landing fees, and

other service charges from aircraft operators for

using airport facilities of an airport owned or

operated by that State or subdivision.

(f) Pay of air carrier employees.

(1) In this subsection - -

(A) “pay” means money received by an employee for services.

(B) “State” means a State of the United States, the District of

Columbia, and a territory or possession of the United States.

(C) an employee is deemed to have earned 50 percent of the

employee’s pay in a State or political subdivision of a State in

which the scheduled flight time of the employee in the State or

subdivision is more than 50 percent of the total scheduled flight

time of the employee when employed during the calendar year.

D-4

(2) The pay of an employee of an air carrier having regularly

assigned duties on aircraft in at least 2 States is subject to the

income tax iaws of only the following:

(A) the state or political subdivision of the State that

is the residence of the employee.

(B) the State or political subdivision of the State in

which the employee earns more than 50 percent of the

pay received by the employee from the carrier.

(3) Compensation paid by an air carrier to an employee de-

scribed in subsection (a) in connection with such employee’s

authorized leave or other authorized absence from regular duties

on the carrier’s aircraft in order to perform services on behalf of

the employee’s airline union shall be subject to the income tax

laws of only the following:

(A) The State or political subdivision of the State that

is the residence of the employee.

(B) The State or political subdivision of the State in

which the employee’s scheduled flight time would

have been more than 50 percent of the employee’s

total scheduled flight time for the calendar year had

the employee been engaged full time in the perform-

ance of regularly assigned dwties on the carrier’s

aircraft.

HISTORY: (July 5, 1994, P.L. 103-272, @ 1 (e), 108 Stat.

1111; Aug. 23, 1994, P.L. 103-305, Title I, @ 112 (e), Title II,

@ 208, 108 Stat. 1576, 1588.)

E-1

Appendix E

68 § 2864 REVENUE AND TAXATION

§ 2864

State Board of Equalization—Membership — Sessions

— Officers — Quorum — Powers, duties and authority

A. The Governor, State Auditor and Inspector, State

Treasurer, Lieutenant Governor, Attorney General, Superinten-

dent of Public Instruction and President of the Board of Agri-

culture shall constitute the State Board of Equalization, and the

State Board of Equalization must hold a session at the Capitol

of the State, commencing at ten o’clock a.m. on December 1, or

the first working day thereafter of each year for the purpose of

equalizing the taxable property values of the several couniies for

the next following assessment year. The State Auditor and

Inspector shall notify all other members of said Board of the

time and place of said annual session as herein required. The

Governor shall serve as chairman and the State Auditor and

Inspector shall serve as secretary of said Board, and vice-chair-

man shall be elected from the other members. In case of tlie

absence or failure of said chairman and secretary, or either of

them, to so act on the statutory meeting date, any four or more

members thereof shall proceed on said date to conduct the

Board’s session and carry on its work as herein required. Any

official action by said Board shall require approval by a majority

of all members of the Board.

B. It shall be the duty of said State Board to examine the

various county assessments and to equalize, correct and adjust

the same as between and within the counties by determining the

ratio of the aggregate assessed value of the property or any class

thereof, in any or all of them, to the fair cash value thereof as

herein defined, and to order and direct the assessment rolls of

any county in this state to be so corrected as to adjust and

E-2

equalize the valuation of the real and personal property among

the several counties during the next succeeding assessment year.

C. In determining the assessment ratio for all air carrier

property and all railroad property, the State Board shall only

consider the ratio of the aggregate assessed value to the fair cash

value of the locally assessed commercial/industrial real property

of the state.

D. In order to equalize, correct and adjust the various

county assessments within the counties as required by this

section, the State Board of Equalization shall analyze the rela-

tionship between the assessed value and the fair cash value for

each use category of real property and separately analyze the

relationship between the assessed value and the fair cash value

for the agricultural use category, the residential use category aud

the commercial/industrial use category. If Article X, Section 8

of the Oklahoma Constitution provides for a system in which

less than one hundred percent (100%) of value is taxable, the

State Board of Equalization shall order any increase or decrease

determined by the State Board of Equalization to be necessary

for equalization of property values within the county, including,

but not limited to, the authority to require an assessment ratio

for a use category bearing a specific relationship to the percent-

age used to determine taxable value of real property in the

county for the applicable assessment year. If Article X, Section

8 of the Oklahoma Constitution provides for a system in which

one hundred percent (100%) of value is taxable, the State Board

of Equalization shall make such order as authorized by Article

X, Section 8 of the Oklahoma Constitution.

E. The State Board of Equalization shall equalize, correct

and adjust the various county assessments as between the coun-

ties as required by this section by ordering any increase or

decrease required as prescribed by this subsection. If Article X,

Section 8 of Oklahoma Constitution provides for a system in

which less than one hundred percent (100%) of value is taxable,

E-3

the State Board of Equalization shall order any increase or

decrease required to comply with the minimum or maximum

acceptable assessment ratio in effect for the applicable assess-

ment year. If Article X, Section 8 of the Oklahoma Constitution

provides for a-‘system in which one hundred percent (100%) of

value is taxable, the State Board of Equalization shall order any

increase or decrease required to ensure that the assessment ratio

for any county is not less than ninety-two percent (92%) and not

greater than one hundred percent (100%) as provided by Article

X, Section 8 of the Oklahoma Constitution.

Laws 1988, c. 162, § 64, eff. Jan. 1, 1992. Laws 1990, c.

212, § 2, eff. Jan. 1, 1992.

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

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