Opposition Brief — Richards v. Jefferson County

- Supreme Comt,US. |

| FILED

J

UCT 1 2001-

No. 01-370

OFFICE Of THE CLERK

ect ad

In The

Supreme Court of the United States

*

JASON RICHARDS, ET AL.,

Petitioners,

V.

JEFFERSON COUNTY, ALABAMA, ET AL.,

Respondents.

¢

On Petition For A Writ Of Certiorari

To The Alabama Supreme Court

+

JEFFERSON COUNTY’S BRIEF IN OPPOSITION

¢

WittiAM M. SLAUGHTER

Counsel of Record

J. VERNON Patrick, JR.

HASKELL SLAUGHTER YOUNG

& Repiker, L.L.C.

1200 AmSouth/Harbert

Plaza

1901 6th Avenue North

Birmingham, Alabama

35203-2618

(205) 251-1000

Atterneys for Respondent

Jefferson County, Alabama

Epwin A. STRICKLAND

Jerrrey M. Sewett

CHARLES S. WAGNER

Jefferson County

Attorney's Office

Jefferson County

Courthouse

716 Richard Arrington

Boulevard

Room 280

Birmingham, Alabama 35203

(205) 325-5688

Attorneys for Respondent

Jefferson County, Alabama

COMKLE

LAW BRIEF PRINTING, CQ) (Sot) 225-e%,

KR CALL COMLECT (402) “22s

QUESTIONS PRESENTED FOR REVIEW

Whether as the result of murky understanding or

sensationalist exaggeration, the questions presented for

review in the Petition (at pp. i-ii) are prolix and confus-

ing. The respondent Jefferson County considers the fol-

lowing to be a fair and comprehensive statement of the

questions presented for review:

I.

Do the exemptions frorn Jefferson County’s Occupa-

tional Tax mandated by Section 4 of Act No. 406 enacted

at the 1967 Regular Session of the Legislature of Alabama

(“Act No. 67-406”) or allowed by Section 1(B) of the

County’s Ordinance No. 1120 (1987) (“Ordinance No.

1120”) deprive petitioners of equal protection, in viola-

tion of the Fourteenth Amendment to the United States

Constitution?

II.

In reviewing the trial court’s ruling on whether the

exemptions from the County’s occupational tax deny

equal protection to petitioners (plaintiffs below), was the

Alabama Supreme Court limited to the record at trial,

bound by a county commissioner’s “uncontradicted testi-

mony,” or bound by the trial court’s findings of fact and

conclusions of law?

ii

QUESTIONS PRESENTED FOR REVIEW - Continued

III.

In reviewing the trial court’s ruling on whether the

exemptions from the County’s occupational tax deny

equal protection to petitioners (plaintiffs below), was the

Alabama Supreme Court entitled to conduct an indepen-

dent, de novo review of the “facts” and, consistent with

the separation of powers between the judicial and legisla-

tive branches, recognize that the Alabama Legislature

had no obligation to articulate its purpose or rationale for

the exemptions and, further, recognize that, in enacting

tax legislation, particularly with respect to occupational

taxes, the Legislature has broad discretion to classify

businesses, trades and professions and tax them at differ-

ent rates or to exempt them altogether from taxation?

IV.

Does Jefferson County’s enforcement of Ordinance

No. 1120 deny equal protection to petitioners (plaintiffs

below) in violation of the Fourteenth Amendment?

V.

Does Jefferson County’s failure to date to sue a few

ordained ministers who refuse to pay the occupational

tax constitute a violation of the equal protection rights of

“Muslim clerics” or “tent evangelists” that can be

asserted in this case by petitioners (plaintiffs below) who

are not “Muslim clerics” or “tent evangelists”?

ill

QUESTIONS PRESENTED FOR REVIEW - Continued

VI.

Does the Alabama Supreme Court’s decision below

“overrule” or conflict with this Court’s decision in Jeffer-

son County v. Acker, 527 U.S. 423 (1999)?

VII.

Does the Alabama Supreme Court’s decision below

conflict with this Court’s decisions in F.S. Guano Co. v.

Virginia, 253 U.S. 412 (1920); Plyler v. Doe, 457 U.S. 202

(1982); Village of Willowbrook v. Olech, 528 U.S. 562 (2000);

Hooper v. Bernalillo County Assessor, 472 U.S. 612 (1985);

Metropolitan Life Ins. Co. v. Ward, 470 U.S. 869 (1984);

WHYY, Inc. v. Borough of Glassboro, 393 U.S. 117 (1968);

Sioux City Bridge Co. v. Dakota County, Nebraska, 260 U.S.

441 (1923); Mayflower Farms, Inc. v. Ten Eyck, 297 U.S. 266

(1936); Zobel v. Williams, 457 U.S. 62 (1982); City of

Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985);

or Sunday Lake Iron Co. v. Wakefield Township, 247 U.S. 350

(1918)?

iv

THE COUNTY’S CORRECTION OF PETITIONERS’

CERTIFICATE OF INTERESTED PERSONS

The County’s counsel listed in the Petition should include

the following:

J. Vernon Patrick, Jr.

Jeffrey V. Havercroft

Matthew T. Franklin

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW ........... i

THE COUNTY’S CORRECTION OF PETITIONERS’

CERTIFICATE OF INTERESTED PERSONS....... iv

Re Ge GONE EE 8 coh isc odes cand edaeknesdicn, Vv

pe OR ee Past ee eee Vii

JEFFERSON COUNTY’S CORRECTIONS TO PETI-

TIONERS’ STATEMENT OF THE CASE.......... 1

I. The County’s corrections to petitioners’

statement of prior proceedings ............ 1

A. This Court did not articulate the basis

for its 1996 order limiting oral argu-

PFET TCT eC eT PCr Pee eer er ee 1

B. The decision below does not overrule or

conflict with this Court’s Acker decision 2

II. The County’s corrections to petitioners’

ODRRNINE OF TUNE oie i ds ins ash adie eek 3

TES 6 6 <6 bkxdnndeki seek ke 5

I. This case does not merit review by certiorari

because the decision below does not conflict

with prior decisions of this Court or raise a

novel question which has not been, but

should be, settled by this Court........... 5

Il. The decision below (which upholds certain tax

exemptions mandated by the Alabama Legisla-

ture’s Act No. 67-406 and other exemptions

allowed by the County’s Ordinance No. 1120) is

consistent with, and supported by, well-estab-

lished rules of law enunciated in prior deci-

UT GE Se GE occa dncddacdesnsaneeess 8

vi

TABLE OF CONTENTS - Continued

Page

III. The Alabama Supreme Court’s decision

below is not in conflict with, and does not

purport to “overrule”, this Court’s decision

in Jefferson County v. Acker, 527 U.S. 423

(MGDE sc cncconcsovesocusesontssdinseebenias 21

IV. Petitioners are not “Muslim clerics” or “tent

evangelists”. Accordingly, petitioners do not

have legal standing to seek certiorari with

respect to whether the County’s enforcement

and collection efforts deprive “Muslim

clerics” and “tent evangelists” of equal pro-

OSTEO cccccccccctecacendsncenséaccisessece 24

V. The exemptions mandated by Section 4 of

Act No. 67-406, the exemptions allowed by

Ordinance No. 1120, and the County’s

enforcement and collection efforts to date

with respect to the County’s occupational tax

do not deprive petitioners of equal protec-

tion and do not raise novel and unsettled

questions which warrant, require or justify

issuance of the writ of certiorari requested

by petitioners (plaintiffs below)............ 28

CRIWR RAINES cccccccvecenstsdeceescsisécceeseasen 30

Vil

TABLE OF AUTHORITIES

Page

CASEs:

Allen v. Wright, 468 U.S. 737 (1984) ..............444. 7

Baylor v. Centre County (Commonwealth Court of

Pennsylvania), 1993 WL 73687 (decided March

ey PEGE bbc ccnbssetunsdbsssascusdedatensucasuibas 25

Bedingfield v. Jefferson County, 527 So. 2d 1270 (Ala.

Ne 54 dha sede roc nulssds cebu bedssedaaibesnsbasys 23

Bell’s Gap R. Co. v. Pennsylvania, 134 U.S. 232

IED 5s 64o cecdesiesedubsblinssnndesacsesheksbuaks 11

Bradley v. City of Richmond, 227 U.S. 477 (1913)...... 12

Brown-Forman Co. v. Kentucky, 217 U.S. 563 (1910) .... 13

Carmichael v. Southern Coal & Coke Co., 301 U.S. 495

CRUD 66000045 00690 andseeecesecenesesansre 12, 14, 20

City of Cleburne v. Cleburne Living Center, Inc., 473

Cis Se CE Kerra tederidcceckssdecedasacceerds iii, 6

DHR of Oregon v. Smith, 494 U.S. 872 (1990)......... 25

Douglas v. City of Jeannette, 319 U.S. 157 (1943)...... 25

Estes v. City of Gadsden, 266 Ala. 166, 94 So. 2d 744

CTD 60 pccxcpscectadupocteusndsesesencuceeexad 18, 23

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

FCC v. Beach Communications, 508 U.S. 307 (1993) ...10, 11

Follett v. Town of McCormick, 321 U.S. 573 (1944)..... 25

Hendrick v. Maryland, 235 U.S. 610 (1915)...... 7, 27, 29

Vili

TABLE OF AUTHORITIES - Continued

Page

Hooper v. Bernalillo County Assessor, 472 U.S. 612

(ROG os db cdesacvcsenadaccndcccasdpessenasnnesanas iii

Howard v. Commissioners of Sinking Fund of

Louisville, 344 U.S. 624 (1953) ....... 2. cece eee eee 22

Jefferson County v. Acker, 527 U.S. 423

CDDP EP a. 6000.50 00b6064n ceassen sbckeertnandecenas passim

Jimmy Swaggert Ministries v. Board of Equalization of

California, 493 U.S. 378 (1990).......... 6. cece ee eee 25

Jones v. City of Opelika, 319 U.S. 105 (1943).......... 25

Leathers v. Medlock, 499 U.S. 439 (1991).............. 13

Mayflower Farms, Inc. v. Ten Eyck, 297 U.S. 266

CRO in 65 6s 6 dnt cede cdesnRdagtesinsesevenneseces iii, 6

McPheeter v. City of Auburn, 288 Ala. 286, 259

we fo. 7: Wey PPerrrr rr rre rere yer eee Per eee 23

Metropolitan Life Ins. Co. v. Ward, 470 U.S. 869

GRINNED voc dik bbis006hssekncdes sancanscdapadneesanves iii

Murdock v. Pennsylvania, 319 U.S. 105 (1943)......... 25

New York Transit Corp. v. City of New York, 303 U.S.

SP CRUOUD hv cc necsandbncdenccssnsivnnavivecse sts 13, 14

Oliver Iron Mining Co. v. Lord, 262 U.S. 172

ey ry eer rrrry erry errr rrr 7, ty ate

Parker v. Jefferson County, __ So. 2d __ (Ala. Nov.

7, 2000) [Resp. App. 1-6.], rehearing denied,

___ So. 2d ___ (Ala. April 20, 2001)

PRO. AMD: FT TEA, cnc cncstaassccscseccenenss aa 23

ix

TABLE OF AUTHORITIES - Continued

Philadelphia & Southern Mail S.S. Co. v. Common-

wealth of Pennsylvania, 122 U.S. 326 (1887)...... 23, 24

Paper @. Den, G57 US. 20s (IGG). ow vnc secccccccen iii, 6

Quong Wing v. Kirkendall, 223 U.S. 59 (1912)......... 12

Richards v. Jefferson County, 516 U.S. 983 (Nov. 22,

1995 order granting certiorari), 516 U.S. 1167

(March 15, 1996 order vacating as improvi-

dently granted certiorari with regard to equal

protection issue), 517 U.S. 793 (June 10, 1996

opinion on res judicata issue) ................... 1, 30

Sioux City Bridge Co. v. Dakota County, Nebraska,

ER EE COUN 65.5 Gdns KaN a acs aspadoaneaanaed iii

Southwestern Oil Co. v. Texas, 217 U.S. 114 (1910).... 12

Stajkowski v. Carbon County Board of Assessment,

ee ae Os SE hank eke ann ds odcdessees’s 25

Sunday Lake Iron Co. v. Wakefield Township, 247 U.S.

EE Pav tAb 02 on k ERA RRNA Ks WS bs Need kdb Ads p00 iii

Village of Willowbrook v. Olech, 528 U.S. 562

DE Casati h Nee sdCi eee rahe chenenensesabens iii, 6, 28

WHYY, Inc. v. Borough of Glassboro, 393 U.S. 117

chi ceec Tana n Sek NECA SARRA DE KS ORES AKD AR aD ASO iii

Williams v. Fears, 179 U.S. 270 (1900)................ 12

Zobel v. Williams, 457 U.S. 62 (1982)........... iii, 7, 19

Unrtep States STATUTES:

Eee ee EG PAGE Pv kiko es cases encdedesas 22

ake Ros i geht aaah eles ea ce ee 22

X

TABLE OF AUTHORITIES —- Continued

Page

4 U.S.C. § 111 (“Public Salary Tax Act”) ............. 2

Oe Wes EM ces kn chvececbuicnstueseeureadacues bes 3

ALABAMA CODE PROVISIONS:

Ala. Code 1940, § 51-176, now Ala. Code 1975,

Fe Pere rere eer err er Erte 15

Ala. Code 1940, § 51-177, now Ala. Code 1975,

Fo Re er re err ere er rere hie Serre 15

Ala. Code 1940, § 51-178, now Ala. Code 1975,

oy 05 ck nda ke eu emhe bade esCseveabeencears 15

Ala. Code 1940, § 51-180, recodified as Ala.

Code. 1975, § 40-21-57, but repealed in 1994...... 15

Ala. Code 1940, § 51-182, recodified as Ala.

Code. 1975, § 40-21-58, but repealed in 1992...... 15

Ala. Code 1940, § 51-183, recodified as Ala.

Code. 1975, § 40-21-59, but repealed in 1992...... 15

Ala. Code 1940, § 51-184, now Ala. Code. 1975,

G O21-60 .. «5.45 Ent Sp mon ne teresa bee reer 15

Feed CA. Ts eh aa base cbces soneetakensaves 15

Ala. Code 1940, § 51-429, now Ala. Code 1975,

Re Oe Rr ere mney mire par my parr 15

Ala. Code 1940, § 51-826, recodified as Alla.

Code 1975, § 27-4-9, but repealed in 1993 and

oe i | Peer rere Tree re Tee reer Te 15

Ala. Code 1940, Tit. 51, Chap. 20, Art. 1,

recodified as Ala. Code. 1975, Tit. 40, Chap.

SR PR Rs cn cea Gee nese eek eeered © Tere

Ala. Code 1975, Tit. 40, Chap. 12, Art. 2....... 3, 9, 14

xi

TABLE OF AUTHORITIES - Continued

Page

ALABAMA ACTs:

Act No. 406 enacted at 1967 Regular Session of

the Alabama Legislature (“Act No. 67-406”)... passim

ORDINANCES:

Jefferson County Ordinance No. 1120........... passim

OTHER:

Rule 10 of Rules of the U.S. Supreme Court ......... 5

Black’s Law Dictionary (6th ed. 1990)................. 23

JEFFERSON COUNTY’S CORRECTIONS TO

PETITIONERS’ STATEMENT OF THE CASE

I. The County’s corrections to petitioners’ statement of

prior proceedings

A. This Court did not articulate the basis for its

1996 order limiting oral argument

In an effort to persuade this Court that Jefferson

County’s occupational tax raises novel and important

questions which should be, but have not been, settled by

this Court, the Petition argues (at p. 2):

This Court granted certiorari on the res judicata

issue and also on the exact equal protection

issue which is now embraced by this petition.

Richards, 516 U.S. 983 (1995). But before oral

argument, this Court determined that neither

the trial court nor the Alabama Supreme Court

had opportunities to address the merits of peti-

tioners’ equal protection claims, and on that

basis dismissed the writ as improvidently

granted. Richards, 516 U.S. 1167 (1996)... .

It is far from clear that the Petition correctly states

the “basis” for this Court’s 1996 Order directing the par-

ties to limit oral argument to the res judicata issue. The

1996 Order may well have been prompted by the

County’s having demonstrated that petitioners Richards

et al. had erroneously represented to this Court (at p. 8 of

petitioners’ Brief on the Merits submitted to this Court in

1996 in connection with Richards v. Jefferson County, 517

U.S. 793 (1996)) that Section 1(B) of Ordinance No. 1120

not only exempted “insurance companies, express com-

panies, railroads, banks and pubic utilities” but also

“completely exempts, without explanation, all employees

i

of these powerful business interests. .. .” The employees

are not now exempt and never have been exempt.

B. The decision below does not overrule or con-

flict with this Court’s Acker decision

The Petition (at p. 3) erroneously states that the Ala-

bama Supreme Court’s June 22, 2001, Opinion below:

rejected this Court's factual interpretation of the

same tax and exemption scheme set forth in

Jefferson County v. Acker... .

The opinion below for the Alabama Supreme Court

does not cite or discuss this Court’s opinion in the Acker

case. In Parker v. Jefferson County, ___ So. 2d __ (Ala. Nov.

7, 2000) [Resp. App. 1-6.], rehearing denied, __ So. 2d __

(Ala. April 20, 2001) [Resp. App. 7 ff.]} - an independent

case generated by an opportunistic response to this

Court’s Acker opinion - the Court had earlier concluded

that the Acker opinion dealt solely with a question of

federal law in holding that the County’s occupational tax

constituted a non-discriminatory, revenue-raising tax to

which Congress had consented in the Public Salary Tax

Act, 4 U.S.C. § 111. This Court noted in Acker that the

Public Salary Tax Act “does not require the local tax be a

typical ‘income tax’.” 527 U.S. at 442.

1 References to the Appendix to the Petition, which is

bound with the Petition, are indicated by Pet. App., followed by

the relevant page numbers in the Appendix (e.g., Pet. App.

2-36). References to the Appendix to Jefferson County’s Brief in

Opposition, which is separately bound with an orange cover,

are indicated by Resp. App., followed by the relevant page

numbers in the Appendix (e.g., Resp. App. 1-6).

Applying Alabama law, the Alabama Supreme Court

held, in Parker, that Jefferson County’s Ordinance No.

1120 serves a revenue raising function, but is valid under

Alabama law because it imposes permissible “occupa-

tional” or “privilege” taxes or “licensing fees” rather than

impermissible “income taxes.” Chief Justice Moore dis-

sented from the opinion below in this case and also

dissented from the Alabama Supreme Court’s opinion

denying rehearing in Parker.

II. The County’s corrections to petitioners’ statement

of facts

Petitioners’ Statement of Facts (at pp. 3-8 of the Peti-

tion) is misleading when it argues (at p. 5) that:

At trial, it was established, without contradic-

tion, that when Jefferson County enacted its

occupational tax, it did so with the inclusion of

“loopholes” for a “sizable number of profes-

sions, with no apparent rationale.”

A former county commissioner merely testified at trial he

did not understand the rationale for exempting “lawyers,

sleight-of-hand artists, psychic healers and playing card

salesmen.” The former commissioner’s testimony is irrel-

evant, because the Legislature, not the County Commis-

sion, had mandated in Act No. 406 (Ala. Acts 1967) that

lawyers, doctors, and other professionals already being

taxed by the State, as well as other specified businesses

and occupations that had been subject to state and county

business license taxes since 1935 (Ala. Code 1975, Tit. 40,

Chap. 12, Art. 2), should be exempted from the new

license taxes that the Legislature by Act No. 406 was then

authorizing the County to levy on previously exempt

businesses.

The Petition (at p. 7) misstates the record in purport-

ing to summarize the testimony of the “county’s chief

financial officer.” In fact, the cited testimony was given

by Wayne Averitt,2 the Chief Financial Officer of the

Birmingham-Jefferson Civic Center Authority. [Resp.

App. 13-26.] Moreover, the hotel referred to in the Peti-

tion (at p. 7) was purchased by the Civic Center Author-

ity out of its bond proceeds, and not by the County out of

tax revenues, as misrepresented by the Petition. [Resp.

App. 22.]

The Petition (at p. 8) misstates the testimony of

Edwin A. Strickland, the County Attorney. In his testi-

mony, Mr. Strickland did not, as the Petition (at p. 8)

claims, express the “opinion that the purpose of the tax is

to raise revenue and exercise police power.” Instead, Mr.

Strickland testified as follows (at pp. 555-556) of the trial

transcript [Resp. App. 61-62.]:

Q. Based on your reading of Act 406, what is

its purpose? Does it have the purpose of

raising revenue, the purpose of regulating

occupations in Jefferson County, or some

combination of both?

A. I think its purpose is to raise revenues.

Q. That’s purely its function in your evalua-

tion?

A. It is.

2 The trial transcript contains a number of misspellings,

including the name of Mr. Averitt.

* * »

Q. And did the County Commission in 1987

adopt Ordinance 1120 for the sole purpose

of raising revenues?

A. That’s correct.

ARGUMENT

I. This case does not merit review by certiorari

because the decision below does not conflict with

prior decisions of this Court or raise a novel ques-

tion which has not been, but should be, settled by

this Court.

Rule 10 of this Court’s Rules, read in conjunction

with 28 U.S.C. § 1257, makes it clear that

Review on a writ of certiorari is not a matter of

right, but of judicial discretion. A petition for a

writ of certiorari will be granted only for com-

pelling reasons.

Rule 10 goes on to provide that this Court may, in the

exercise of its discretion, grant certiorari when a state

court of last record has decided an important federal

question “in a way that conflicts with relevant decisions

of this Court” or has decided an important question of

federal law “that has not been, but should be, settled by

this Court.”

The Alabama Supreme Court’s opinion below does not

involve a new and novel question that has not been, but

should be, settled by this Court. Instead, the opinion below

follows, and properly applies, long-established and well-

settled rules of law established by this Court’s prior deci-

sions in holding that the exemptions mandated by Section 4

of Act No. 406 enacted at the Regular Session of the Legisla-

ture of Alabama (hereinafter “Act No. 67-406”) and the

exemptions allowed by Section 1(B) of Ordinance No. 1120

enacted by the Jefferson County Commission on November

6, 1987 (hereinafter “Ordinance No. 1120”) do not violate the

Equal Protection Clause of the Fourteenth Amendment.

The Alabama Supreme Court’s decision below does

not “overrule” or in any other way conflict with this

Court’s prior decision in Jefferson County v. Acker, 527 U.S.

423 (1999), as argued by petitioners (at pp. i, ii, 3, and

14-16 of their Petition). Because the Petition places such

great emphasis on the supposed conflict between the

decision below and this Court's decision in Acker, we will

demonstrate below (in Part III of the Argument) that

there is no conflict.

Petitioners cite a number of other decisions of this

Court which petitioners argue are in conflict with the

Alabama Supreme Court’s decision below. None of these

decisions exhibit the claimed conflict. City of Cleburne v.

Cleburne Living Center, 473 U.S. 432 (1985), involved an

equal protection challenge to a zoning ordinance; May-

flower Farms, Inc. v. Ten Eyck, 297 U.S. 266 (1936), involved

an equal protection challenge to state legislation regulat-

ing the price of milk; Village of Willowbrook v. Olech, 528

U.S. 562 (2000), involved an equal protection challenge to

a municipality's demand for an easement in order to

obtain access to a municipal water system; and Plyler v.

Doe, 457 U.S. 202 (1982), involved an equal protection

challenge to legislation excluding the children of illegal

aliens from obtaining access to the state’s public schools.

None of the above cited cases involved the enactment of

tax legislation, in which this Court has long recognized

that state legislatures have broad discretion. The remain-

der of the equal protection decisions of this Court cited in

the Petition as conflicting with the decision of the Alabama

Supreme Court below do not involve occupational taxes,

with respect to which this Court has repeatedly held that

state and local governments have particularly broad discre-

tion, and all of the decisions cited by petitioners are distin-

guishable. For example, Zobel v. Williams, 457 U.S. 62

(1982), involved heightened scrutiny because the state’s

legislation infringed upon the constitutional right of U.S.

citizens to travel or settle in another state.

In addition, petitioners have not carried their burden

of showing that Jefferson County’s enforcement and col-

lection efforts under Act No. 67-406 and Ordinance No.

1120 deprive petitioners of equal protection, or that the

County’s collection and enforcement efforts raise novel

and important issues which have not been, but should be,

settled by this Court.

Petitioners (who are neither “Muslim clerics” nor

“tent evangelists”) do not have legal standing to seek

certiorari with respect to the question whether Muslim

clerics and tent evangelists have been deprived of equal

protection as a result of the county’s enforcement and

collection efforts under Act No. 67-406 and Ordinance

No. 1120, in light of this Court’s prior decisions in Allen v.

Wright, 468 U.S. 737, 751 (1984); Oliver Iron Mining Co. v.

Lord, 262 U.S. 172, 180 (1923); and Hendrick v. Maryland,

235 U.S. 610, 621 (1915), which impose a “general prohibi-

tion on a litigant’s raising another person’s legal rights”

and which establish that “[o]nly those whose rights are

\

directly affected can properly question the constitu-

tionality of a state statute and invoke [the United States

Supreme Court's] jurisdiction in respect thereto”.

II. The decision below (which upholds certain tax

exemptions mandated by the Alabama Legislature’s

Act No. 67-406 and other exemptions allowed by the

County’s Ordinance No. 1120) is consistent with,

and supported by, well-established rules of law

enunciated in prior decisions of this Court.

Petitioners (plaintiffs below) concede in their Petition

to this Court (at p. 8) that petitioners are not members of

a suspect or quasi-suspect class. Petitioners also concede

(at pp. 9-14) that they have the burden to establish that

the exemptions of which petitioners complain are so irra-

tional and wholly arbitrary that the exemptions violate

the Equal Protection Clause.

In their Petition, the petitioners argue (at pp. ii, 5-8,

and 12-15), as they did in the Alabama Supreme Court

below, that any appellate court, in reviewing a trial

court’s determination that a statute or ordinance violates

the Equal Protection Clause, is bound by the trial court's

finding of fact and conclusions of law, and may not

conduct an independent de novo review of the facts. The

Alabama Supreme Court correctly rejected this argument

[See Pet. App. 7-10.].

Petitioners argue (at p. 5 of the Petition):

At trial, it was established, without contradic-

tion, that when Jefferson County enacted its

occupational tax, it did so with the inclusion of

“loopholes” for a “sizable number of profes-

sions, with no apparent rationale.” (Tr. 32) The

only commissioner available at trial who was

present when the tax was enacted testified: “I

would have a hard time determining what

sleight of hand artists, psychic healers, playing

card salesmen and lawyers have in common.

There is no rationale.” (Tr. 39)

Also, at p. 7, the Petition argues that “[n]o expert

witness testified that the County’s exemption scheme was

rational” and argues at p. 14 that it is “impossible” for the

County to “articulate a rational basis for its exemption of

the odd group it has chosen to evade taxation... ”

Nowhere does the Petition mention or discuss the

fact that the Alabama Legislature (not the governing

body of the County) mandated exemptions for persons

already subject to the state license tax. Nowhere does the

Petition mention or discuss the fact that the lawyers,

doctors, and persons engaged in other specified profes-

sions whom the Legislature required to be exempted from

the County’s occupational tax are now being taxed (and

since the 1930’s have been taxed) by the state pursuant to

the State License Code (Ala. Code 1975, Tit. 40, Chap. 12,

Art. 2). Moreover, the Petition nowhere discusses prior

decisions of this Court which have held that the legisla-

ture is vested with discretion in levying taxes, the strong

presumption of validity which the judiciary must give to

the validity of legislative enactments (particularly in the

field of taxation), and the fact that the legislature need

not articulate or state its rationale for a legislative classi-

fication.

10

As this Court held in its opinion in FCC v. Beach

Communications, 508 U.S. 307 (1993):

On rational-basis review, a classification in a

statute such as the Cable Act comes to us bear-

ing a strong presumption of validity, see Lyng v.

Automobile Workers, 485 U.S. 360, 370, 108 S. Ct.

1184, 1192, 99 L. Ed. 2d 380 (1988), and those

attacking the rationality of the legislative classi-

fication have the burden “to negative every con-

ceivable basis which might support it,”

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

356, 364, 93 S. Ct. 1001, 1006, 35 L. Ed. 2d 351

(1973) (internal quotation marks omitted). See

also Hodel v. Indiana, 452 U.S. 314, 331-332, 101

S. Ct. 2376, 2387, 69 L. Ed. 2d 40 (1981). More-

over, because we never require a legislature to

articulate its reasons for enacting a statute, it is

entirely irrelevant for constitutional purposes

whether the conceived reason for the challenged

distinction actually motivated the legislature.

United States Railroad Retirement Bd. v. Fritz,

supra, 449 U.S. at 179, 101 S. Ct. at 461. See

Flemming v. Nestor, 363 U.S. 603, 612, 80 S. Ct.

1367, 1373, 4 L. Ed. 2d 1435 (1960). Thus, the

absence of ” ‘legislative facts’” explaining the

distinction “[o}n the record,” 294 U.S. App. D.C.

at 389, 959 F.2d at 987, has no significance in

rational-basis analysis. See Nordlinger v. Hahn,

505 U.S. 1, 15, 112 S. Ct. 2326, 2334, 120 L. Ed. 2d

1 (1992) (equal protection “does not demand for

purposes of rational-basis review that a legisla-

ture or governing decisionmaker actually articu- f

late at any time the purpose or rationale

supporting its classification”). In other words, a

legislative choice is not subject to courtroom

fact-finding and may be based on rational spec-

ulation unsupported by evidence or empirical

11

data. See Vance v. Bradley, supra, 440 U.S. at 111,

99 S. Ct. at 949. See also Minnesota v. Clover Leaf

Creamery Co., 449 U.S. 456, 464, 101 S. Ct. 715,

723, 66 L. Ed. 2d 659 (1981). “ ‘Only by faithful

adherence to this guiding principle of judicial

review of legislation is it possible to preserve to

the legislative branch its rightful independence

and its ability to function.’ ” Lehnhausen, supra,

410 U.S. at 365, 93 S. Ct. at 1006 (quoting Car-

michael v. Southern Coal & Coke Co., 301 U.S. 495,

510, 57 S. Ct. 868, 872, 81 L. Ed. 1245 (1937)).

508 U.S. at 314-15.

Earlier, this Court held in Bell’s Gap R. Co. v. Pennsyl-

vania, 134 U.S. 232, 237 (1890):

[The Equal Protection Clause] was not intended

to prevent a state from adjusting its system of

taxation in all proper and reasonable ways. It

may, if it chooses, exempt certain classes of

property from any taxation at all... . It may

impose different specific taxes upon different trades

and professions and may vary the rates of excise

upon various products; it may tax real estate

and personal property in a different manner; it

may tax visible property only, and not tax secu-

rities for payment of money; it may allow

deductions for indebtedness or not allow them.

All such regulations, and those of like character,

so long as they proceed within reasonable limits

and general usage, are within the discretion of

the state legislature. . . . We think that we are

safe in saying that the fourteenth amendment

was not intended to compel the states to adopt

an iron rule of equal taxation. If that were its

proper construction, it would not only super-

sede all those constitutional provisions and laws

of some of the states, whose object is to secure

iJ.

12

equality of taxation, and which are usually

accompanied with qualifications deemed mate-

rial, but it would render nugatory those discrim-

inations which the best interests of society

require; which are necessary for the encourage-

ment of needed and useful industries, and the

discouragement of intemperance and vice, and

which every state, in one form or another,

deems it expedient to adopt. [Emphasis added.]

See also Carmichael v. Southern Coal & Coke Co.,

495, 509 (1937):

It is inherent in the exercise of the power to tax that

a state be free to select the subject of taxation and to

grant exemptions. Neither due process nor equal

protection imposes upon a state any rigid rule of

equality of taxation. [Citations omitted.] This

Court has repeatedly held that inequalities which

result from a singling out of one particular class for

taxation or exemption, infringe no constitutional

limitation. [Citations omitted.] [Emphasis

added.]

301

It is well established that a state does not deny equal

protection of the laws merely because the state (a)

imposes a license tax on a class of persons engaged in one

business but exempts others engaged in a similar busi-

ness, or (b) discriminates in favor of one class and against

another class of persons. See, e.g., Quong Wing v. Kirken-

dall, 223 U.S. 59, 62-64 (1912) (upholding a statute which

levied a license tax on persons working in hand laun-

dries, but which exempted those persons working in

steam laundries); Bradley v. City of Richmond, 227 U.S. 477

(1913); Southwestern Oil Co. v. Texas, 217 U.S. 114 (1910);

Williams v. Fears, 179 U.S. 270 (1900).

Fg tr wy OOS fphent ee con t, aeRca amae

lene

13

This venerable rule has been repeatedly reaffirmed

by this Court:

“ “The broad discretion as to classification possessed

by a legislature in the field of taxation has long been

recognized. . . . [T]he passage of time has only

served to underscore the wisdom of that recog-

nition of the large area of discretion which is

needed by a legislature in formulating sound tax

policies. Traditionally classification has been a

device for fitting tax programs to local needs

and usages in order to achieve an equitable

distribution of the tax burden. It has, because of

this, been pointed out that in taxation, even more

than in other fields, legislatures possess the greatest

freedom in classification.’” [Emphasis added.]

Leathers v. Medlock, 499 U.S. 439, 451 (1991) (quoting

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

547-48 (1983) (quoting Madden v. Kentucky, 309 U.S. 83,

87-88 (1940))).

Moreover, as this Court has frequently observed:

A state may exercise a wide discretion in select-

ing the subjects of taxation . . . [Citations omit-

ted.]“particularly as respects occupation taxes”.

[Emphasis added. ]

New York Transit Corp. v. City of New York, 303 U.S. 573,

578 (1938); Oliver Iron Mining Co. v. Lord, 262 U.S. 172, 179

(1923).

In Brown-Forman Co. v. Kentucky, 217 U.S. 563, 573

(1910), this Court reasoned:

oa

14

A very wide discretion must be conceded to the

legislative power of the states in the classifica-

tion of trades, callings, businesses, or occupa-

tions which may be subjected to special forms of

regulation or taxation through an excise or

license tax. If the selection or classification is

neither capricious nor arbitrary, and rests upon

some reasonable consideration of difference or

policy, there is no denial of the equal protection

of the law.

Furthermore, as this Court observed in Carmichael v. \

Southern Coal & Coke Co., supra at 509: |

A legislature is not bound to tax every member of a

class or none. It may make distinctions of degree

having a rational basis, and when subjected to judi-

cial scrutiny they must be presumed to rest on that

basis if there is any conceivable state of facts which

would support it. [Emphasis added.]

Likewise, in New York Transit Corp. v. City of New York,

supra at 578, a tax classification subject to rational basis

review must be held valid “if any state of facts reasonably

can be conceived that would sustain it”.

It is wholly irrelevant, therefore, that a former county

commissioner testified below that he did not understand

the rationale for the exemptions for lawyers, sleight-of-

hand artists, etc. After all, those exemptions were not the

result of an “exemption scheme” devised by the Jefferson

County Commission, but instead were mandated by the

Alabama Legislature. As part of the general revenue act

of 1935, the Alabama Legislature enacted the State

License Code (now codified as Ala. Code 1975, Tit. 40,

Chap. 12, Art. 2) under which state-licensed professionals

(such as attorneys, doctors, architects and accountants),

Oy ee ee ee

15

together with many ordinary businesses (such as abstract

companies, building contractors, lumberyards, service

stations, etc.), were (and are today) required to pay

license taxes to the state for the purpose of raising reve-

nue and not for the purpose of regulation. The State

License Code also included a number of marginal and

transient occupations and businesses - common in the

1930s but sounding quaintly anachronistic today - such

as fortune tellers, itinerant peddlers, magic shows, tran-

sient moving picture shows, and vaudeville shows.

Except for certain specified state-licensed professionals,

the State License Code also levies on the state taxpayers a

“piggy back” tax that is paid to the counties of the state.

Act No. 67-406 was enacted in 1967 to enable the

County to levy business license taxes - including occupa-

tional taxes on those natural persons who work in an

employer-employee relationship - on all persons who

were not covered by the State License Code and who had

therefore escaped paying any license taxes to the County

since the Code’s 1935 inception. Act No. 67-406 speci-

fically authorized the County to “levy a license or privi-

lege tax upon any person for engaging in any business for

which he is not required by law to pay any license or

privilege tax to either the State of Alabama or the county

by any of the following: Article 1, Chapter 20, Title 51;

Sections 176, 177, 178, 180, 182, 183, 184, 186, 429, and 826

in Title 51 of the Code of Alabama of 1940 as amended”.

Thus, all the businesses that were then, and continue now

to be, taxed under the State License Code were speci-

fically exempted from the County’s taxing authority con-

ferred by Act No. 67-406.

16

The marginal or transient businesses put into the

State License Code in 1935 have not been since removed

by the Legislature, and their continued inclusion in the

State License Code meant that they could not be sep-

arately or additionally taxed by the County pursuant to

its new (in 1967) authority under Act No. 67-406. The

historical inclusion of these marginal businesses in the

State License Code gives the plaintiffs the opportunity to

assemble colorful lists of businesses exempt from Act No.

67-406 and falsely claim that the occupational tax - since

it must exempt natural persons who pursue those busi-

nesses as sole proprietors — is levied on an irrational

collection of taxpayers. In fact, and as fully demonstrated

by the record in this case, the occupational tax (with the

exception of certain state-licensed professionals) is levied

on the compensation of every natural person who works

in Jefferson County as an employee of any business entity

that is legally distinct from its employees. People who

conduct their business as sole proprietors do not pay the

occupational tax because, by the terms of Ordinance No.

1120, they are not employees and because, as sole propri-

etors, they pay business license taxes under either the

State License Code or the County’s business license code

implemented in 1968 pursuant to Act. No. 67-406.

Even though business license taxes and the County’s

occupational tax are merely subcategories of the general

category of privilege, excise and license taxes, several

practical distinctions between these two categories are

relevant to understanding this case. Unlike business

license taxes which are levied on the legal entities (e.g.,

corporation, partnership or sole proprietor) that conduct

particular businesses, the occupational tax is levied only

17

on natural persons who work as employees. Further,

while business license taxes are levied at different rates

using various indices reflecting the scale and nature of

the businesses, the occupational tax is uniformly levied

on all employees at the same rate (1/2-0f 1% of compensa-

tion earned within the County) without distinction as to

the kind of work they perform. Jefferson County, with

only the limited exceptions explained below, has levied

and collected, and continues to levy and collect, the occu-

pational tax from every person who works as an

employee in the County - more than 400,000 persons in

1997 as shown by the evidence presented at trial. Godeke

Testimony [Resp. App. 26-39.]; Defendant’s Exhibit 9

[Resp. App. 101-108.]; Defendant’s Exhibit 12 [Resp. App.

109-110.].

As recognized by the Alabama Supreme Court in its

opinion below [Pet. App. 15.], the occupational tax is

levied and collected with only the following exceptions:

(i) individuals who do business as sole proprietorships

and pay taxes to the County under its general business

license code authorized by Act. No. 67-406; (ii) individ-

uals who do business as sole proprietorships and pay

taxes under the State License Code, which in most

instances include “piggyback” taxes to the County; (iii)

individuals engaged in certain learned professions (e.g.,

lawyers, doctors, accountants, architects, etc.) who are

required to pay state license taxes and are expressly

protected by state law from taxation by the County; and

(iv) persons who are employed as domestic workers in

18

private homes and are expressly exempted from the occu-

pational tax by Ordinance No. 1120.3 The trial record

shows that, at the time of the trial in 1997, the working

population of the County - more than 400,000 people -

contained 9,004 sole proprietors who did not pay the

occupational tax because they paid a County business

license tax instead, 11,556 sole proprietors subject to state

and “piggyback” county license taxes who did not pay

the occupational tax, and 7,835 state-licensed profes-

sionals who paid state license taxes and were exempted

by state law from county taxation.

As recognized in Estes v. City of Gadsden, 266 Ala. 166,

94 So. 2d 744 (1957), the seminal Alabama case concern-

ing occupational taxes, there are at least three rational

bases for legislating an exemption from the occupational

tax for the self-employed who pay existing business

license taxes, which is the situation pertaining to those

exempt persons described in clauses (i) and (ii) of the

preceding paragraph. First, the exemption avoids having

to disturb business license tax classifications — estab-

lished antecedent to the levy of the occupational tax — by

economically integrating such classifications with the

occupational tax; second, it avoids double taxation of the

self-employed who already ‘pay a business license tax;

and third, it reflects the legislative judgment that a differ-

ent rate of occupational tax can be justified, if applied to

3 Although ordained ministers are not expressly exempted

from the occupational tax by Act. No. 67-406 or Ordinance No.

1120, the Alabama Supreme Court interpreted the County’s

failure to date to enforce the tax against ordained ministers as a

recognized exemption. See part IV of the Argument in this brief.

19

gross compensation as a measure of the tax, because sole

proprietors have expenses in the operation of their busi-

nesses, while employees are taxed on a salary free of

expenses. -

Numerous reasons can be adduced as a rational basis

for the Alabama Legislature’s decision, going back to

1927, to exempt state-licensed professionals from county

taxation. By modern standards, the state’s regulation of

these professions was embryonic when the tax exemption

was first instituted. Recognizing that the imposition of

license taxes on the learned professions should either be a

part of the state regulatory system or should be con-

trolled in a manner so that it did not impede objectives of

the regulatory system, the Legislature could have ratio-

nally concluded that counties should not be permitted to

tax independently the learned professions. By analogy to

the right of travel that is an important incident of

national citizenship, Zobel v. Williams, supra, it is readily

conceivable that, as a further rational basis for prohibit-

ing county taxation of professionals, the Legislature

believed that the welfare of the people would be served

by allowing doctors, lawyers, engineers and architects,

etc. to perform their work all over the state without

having to worry about local taxes. Even if such taxes are

not economically oppressive, they could still be an

impediment to the statewide availability of professional

services because they require local knowledge, the com-

pletion of unfamiliar paperwork, and the risk of prosecu-

tion for noncompliance.

Concerning a rational basis for exempting domestic

workers in private homes from the occupational tax, no

20

better statement can be found than that of this Court in

Carmichael v. Southern Coal & Coke Co., supra at 513:

Relatively great expense and inconvenience of

collection may justify the exemption from taxa- -

tion of domestic employers, farmers, and family

businesses, not likely to maintain adequate

employment records, which are an important

aid in the collection and verification of the tax.

In its opinion below, the Alabama Supreme Court

concluded that:

. the prohibition found in Act 406 against

further taxation of persons engaged in profes-

sions and occupations subject to the state-licens-

ing requirements furthers several possible

legitimate governmental purposes. These gov-

ernmental purposes may be those of economic

development, statewide uniformity, or the pro-

tection of a future source of tax revenue. Any

one of these purposes, or all of them, could

serve as the rational and legitimate basis of the

exempt classifications created by Act 406 (and

adopted by legislative mandate in Ordinance

No. 1120), which prohibits further taxation of

persons engaged in the specified professions

and occupations. Because we conclude that a

fair and rational basis supports the challenged

classification, we conclude that the Richards

class has not met its burden of negating any

conceivable set of facts that would support this

challenged classification.

Pet. App. 24.

21

III. The Alabama Supreme Court's decision below is

not in conflict with, and does not purport to “over-

rule”, this Court’s decision in Jefferson County v.

Acker, 527 U.S. 423 (1999).

The petitioners’ Petition for certiorari erroneously

argues (at pp. i, ii, 3, and 14-16) that this Court held in

Jefferson County v. Acker, 527 U.S. 423 (1999), that Jefferson

County’s occupational tax “is an income tax and not a

business license tax.”

Since the Public Salary Tax Act does not use the term

“income tax” it was unnecessary for this Court, in its

opinion in Jefferson County v. Ackcr, supra, to decide

whether the County’s occupational tax is an “income

tax,” and this Court did not do so. Instead, this Court

~ concluded in its opinion in Acker that Congress had con-

sented to the County’s taxation of “pay or compensation

for personal services” rendered within Jefferson County

by U.S. District Judges Acker and Clemon. In reaching

this conclusion, this Court stated in its Acker opinion:

[T]here is no sound reason to deny Alabama

counties the right to tax with an even hand the

compensation of federal, state, and local office-

holders whose services are rendered within the

county.

527 U.S. at 443-44.

This Court did not hold in Acker that the County’s

occupational tax imposed by Ordinance No. 1120 violates

the Alabama Constitution or violates Alabama law, or is

an “income tax” under Alabama law. Instead, this Court

upheld the occupational tax on the compensation of fed-

eral judges based upon the Court’s conclusion that, as a

\

22

matter of federal law, the United States had consented to

the imposition (by the state or by a political subdivision

thereof or by an agency or instrumentality of one or more

of the foregoing) of a nondiscriminatory tax levied for

revenue purposes on, measured by, or with respect to

gross receipts or compensation.

This Court’s opinion in Acker discusses, and is consis-

tent with, this Court’s earlier decision in Howard v. Com-

missioners of Sinking Fund of Louisville, 344 U.S. 624 (1953),

upholding a license fee or privilege tax imposed by state

or local governments on the ground that Congress had

consented, in 4 U.S.C. § 106(a) (the “Buck Act”), to the

imposition of state or local taxes “levied on, with respect

to, or measured by, net income, gross income, or gross

receipts” (which were defined as an “income tax” as a

matter of federal law for purposes of the Buck Act by 4

U.S.C. § 110(c)). The majority’s opinion in Acker noted

that this Court had earlier concluded in Howard that

Congress had consented to the imposition of a tax mea-

sured by income even though the local tax was styled as

“a tax upon the privilege of working within [the munici-

pality]” and even though the local tax was not considered

an “income tax” under state law. 527 U.S. at 438. In Acker,

this Court concluded that. Jefferson County’s occupa-

tional tax “serves a revenue-raising, not a regulatory,

purpose.” 527 U.S. at 440.

In the present case, petitioners (at pp. i, ii, 3, and

14-16) argue that the Alabama Supreme Court's decision

below “overrules” or is in conflict with this Court's deci-

sion in Jefferson County v. Acker, supra, based on peti-

tioners’ premise that the County’s occupational tax must

be regulatory if it is a license tax or, alternatively, an

23

income tax if it merely raises revenue. Petitioners’ prem-

ise is incorrect. See, e.g., Black's Law Dictionary (6th ed.

1990), which defines “license tax” as follows:

The term “license tax” includes both a charge

imposed under [the] police power for the privi-

lege of obtaining licenses to conduct particular

businesses, and taxes imposed upon businesses

for [the] sole purpose of raising revenue.

As the Alabama Supreme Court noted in its Novem-

ber 17, 2000 opinion in Parker v. Jefferson County (Resp.

App. 1-6.], the County’s occupational tax imposes “a tax

upon the privilege of working”; is not an “income tax” as

defined under state law; and deviates from “textbook

income tax characteristics” in that the occupational tax is

measured by one-half of one per centum of “earned com-

pensation,” rather than being measured by “income”

from all sources, including dividends, interest, rental

income, and capital gains. The Alabama Supreme Court's

November 17, 2000 opinion in the Parker case was entirely

consistent with prior decisions of the Alabama Supreme

Court which have held that an occupational tax is not, as

a matter of Alabama law, an “income tax.” Sez, e.g., Estes

v. City of Gadsden, supra; McPheeter v. City of Auburn, 288

Ala. 286, 259 So. 2d 833 (1972); and Bedingfield v. Jefferson

County, 527 So. 2d 1270 (Ala. 1988). Moreover, the Ala-

bama Supreme Court’s November 17, 2000 opinion in

Parker is consistent with prior decisions of this Court,

including Philadelphia & Southern Mail S.S. Co. v. Common-

wealth of Pennsylvania, 122 U.S. 326, 345 (1887), in which

this Court held unconstitutional a tax equal to eight-

tenths of one per centum of the gross receipts from the

24

business of transporting freight or passengers. In its Phil-

adelphia & Southern Mail S.S. Co. opinion, this Court held

that the Pennsylvania tax:

...is not an income tax in the class to which it

refers, but [is] a tax on their receipts for trans-

portation only. Many of the companies included

in it may and undoubtedly do have incomes

from other sources, such as rents of houses,

wharves, stores, and water-power, and interest

on moneyed investments. . . . It is unnecessary,

therefore, to discuss the question which would

arise if the tax were properly a tax on income. It

is clearly not such, but a tax on transportation

only.

IV. Petitioners are not “Muslim clerics” or “tent evan-

gelists”. Accordingly, petitioners do not have legal

standing to seek certiorari with respect to whether

the County’s enforcement and collection efforts

deprive “Muslim clerics” and “tent evangelists” of

equal protection.

At pp. ii, 6, 8, 13, and 14, the Petition seeks a writ of

certiorari based on petitioners’ argument that Jefferson

County’s enforcement of its occupational tax violates the

Equal Protection Clause, because the County has thus far

not brought enforcement actions against ordained minis-

ters who have failed to pay the occupational tax. The

Petition argues (at pp. 13-14) that the County’s enforce-

ment of its occupational tax denies equal protection of

laws to “Muslim clerics”, “tent evangelists”, and other

preachers who don’t evade this tax.

During the trial below, Randy Godeke, the County’s

Director of Revenue, who is responsible for collecting the

Mees te 1. oe eee

25

occupational tax, and Edwin A. Strickland, the County

Attorney, testified that Ordinance No. 1120 and Act No.

67-406 do not exempt preachers or ministers of religion,

that some ministers pay the tax, while others do not, and

that the County has thus far not brought enforcement or

collection proceedings seeking to collect the occupational

tax from ministers or from churches which employ minis-

ters, because of legal uncertainties involving the First

Amendment. [Resp. App. 74-78.]

A number of reported court decisions involve

whether the First Amendment to the United States Con-

stitution prohibits cities and counties from levying a

license or privilege tax on ministers. See, e.g., Follett v.

Town of McCormick, 321 U.S. 573 (1944); Murdock v. Penn-

sylvania, 319 U.S. 105 (1943). See also Jones v. City of

Opelika, 319 U.S. 105 (1943); Baylor v. Centre County (Com-

monwealth Court of Pennsylvania), 1993 WL 73687

(decided March 18, 1993); Stajkowski v. Carbon County

Board of Assessment, 541 A.2d 1384 (Pa. 1988); Jimmy Swag-

gert Ministries v. Board of Equalization of California, 493 U.S.

378 (1990); DHR of Oregon v. Smith, 494 U.S. 872 (1990);

Douglas v. City of Jeannette, 319 U.S. 157 (1943). In light of

these court decisions, and the potential legal costs, time

commitments, and risks which are inherent in any litiga-

tion, it is entirely understandable, and well within the

discretion of the County’s law enforcement authorities,

that the County has thus far not filed litigation seeking to

collect the occupational tax from ministers (or from the

churches which employ them).

The trial judge below, Circuit Judge John E. Roches-

ter, did not in his November 12, 1998 Judgment or in his

June 17, 1999 Order below mention, discuss or decide

26

whether ministers should or should not be required to

pay the occupational tax or should or should not be

exempted therefrom. The County took an appeal from

Judge Rochester’s June 17, 1999 Order (and his November

12, 1998 Judgment) to the Alabama Supreme Court (No.

1981680) below, arguing that the trial court below erred in

enjoining the County from continuing to collect the occu-

pational tax unless the County began collecting that tax

from persons exempted by Section 4 of Act No. 67-406

and Section 1(B) of Ordinance No. 1120 and, further,

erred in holding that Section 4 and Section 1(B) violated

the Equal Protection Clause. Section 4 of Act No. 67-406

and Section 1(B) of Ordinance No. 1120 do not exempt

preachers. The County’s failure to collect, or to bring

enforcement proceedings seeking to collect, the occupa-

tional tax from ministers is irrelevant and immaterial to

the petitioners’ Petition for certiorari to this Court.

The Petition argues (at p. 6 and at p. 13) that “no

preachers have any rational basis for evading taxation,

whether ordained or not, but some do. Preachers who

don’t evade this tax are discriminated against on an ‘ordi-

nation’ basis which Jefferson County has established on a

completely arbitrary and irrational basis.”

At p. 4, the Petition asserts that the plaintiff Richards

is a law firm courier, and the original complaint [Pet.

App. 43.] asserts that the plaintiff Fannie Hill is a domes-

tic servant. Nowhere does the Petition contend that any

petitioner is a “Muslim cleric” or a “tent evangelist” or a

“minister”, whether ordained or not.

I aia hte og o>

27

Accordingly, petitioners lack legal standing to seek

certiorari from this Court with respect to whether Jeffer-

son County’s enforcement of its occupational tax

deprives “Muslim clerics” or “tent evangelists” or “min-

isters” of equal protection. See, e.g., Hendrick v. Maryland,

235 U.S. 610, 621 (1915):

If the statute is otherwise valid, the alleged dis-

crimination against residents of the District of

Columbia is not adequate ground for us now to

declare it altogether bad. At most they are enti-

tled to equality of treatment, and in the absence

of some definite and authoritative ruling by the

courts of the state we will not assume that, upon

a proper showing, this will be denied... . Only

those whose rights are directly affected can

properly question the constitutionality of a state

statute, and invoke our jurisdiction in respect

thereto.

Accord, Oliver Iron Mining Co. v. Lord, 262 U.S. 172, 181

(1923):

It cannot be merely assumed that mining has

been resumed at those mines, nor that any tax in

respect of them for later years is now threat-

ened. The situation in these cases is therefore such

that none of the plaintiffs is entitled to invoke a

decision of the question. We accordingly leave it

entirely open. [Emphasis added. ]

28

V. The exemptions mandated by Section 4 of Act No.

67-406, the exemptions allowed by Ordinance No.

1120, and the County’s enforcement and collection

efforts to date with respect to the County’s occupa-

tional tax do not deprive petitioners of equal pro-

tection and do not raise novel and unsettled

questions which warrant, require or justify issuance

of the writ of certiorari requested by petitioners

(plaintiffs below).

The Petition argues (at p. 14) that even if Jefferson

County could do the impossible, and could articulate a

rational basis for the exemptions from the occupational ~

tax, the County’s enforcement of the tax would neverthe-

less violate the Equal Protection Clause. As noted above,

this argument ignores the fact that the Alabama Legisla-

ture (rather than the County) exempted from further

taxation by the County those persons already being taxed

pursuant to the State License Code, including attorneys,

doctors and certain other state-licensed professionals.

Petitioners engage in hyperbole when petitioners

suggest (at p. 14) that this Court has recently addressed,

in its per curiam opinion in Village of Willowbrook v. Olech,

supra, the “gravity” of the petitioners’ argument that

Jefferson County’s enforcement of its occupational tax vio-

lates the Equal Protection Clause and raises questions

which are so serious and so important as to merit this

Court’s issuance of a writ of certiorari for review of this

case.

As noted in part IV of the Argument, the trial judge

below did not address the County’s enforcement and

collection efforts and did not make any rulings or make

any findings of fact or rulings of law with respect to such

29

efforts. Instead, the trial judge held that the exemptions

expressly mandated by Section 4 of Act No. 67-406 and the

exemptions expressly allowed by Section 1(b) -of Ordi-

nance No. 1120 violated the Equal Protection Clause. The

appeal by Jefferson County to the Alabama Supreme

Court and the opinion below of the Alabama Supreme

Court did not address the County’s enforcement and

collection efforts.

The petitioners (plaintiffs below) are not federal

judges, corporate house counsel, nurses, geologists,

investment brokers, administrative officers, teachers,

police officers, or real estate appraisers. Accordingly,

petitioners lack standing to invoke the jurisdiction of this

Court to decide whether the County’s enforcement efforts

unlawfully discriminate against federal judges, nurses,

geologists, etc. See Hendrick v. Maryland, supra; and Oliver

Iron Mining Co. v. Lord, supra.

In fact, this Court has already decided, in Jefferson

County v. Acker, supra, in which two federal judges were

before this Court, that Jefferson County may properly

collect and enforce its occupational tax against federal

judges. There is no need for this Court to revisit that

issue.

30

CONCLUSION :

Petitioners have failed to raise any novel or “unset-

tled” question which has not been, but should be, settled

by this Court.

Moreover, petitioners have failed to show that the

Alabama Supreme Court decided the issues presented

below in a way which conflicts with any relevant decision

of this Court. Accordingly, Jefferson County respectfully

submits that this Court should deny both the instant

Petition for a Writ of Certiorari and the petitioners’ alter-

native request that this Court reinstate the writ of cer-

tiorari previously granted with respect to the equal

protection question in 1995 and subsequently dismissed

as improvidently granted in its order in Richards v. Jeffer-

son County, Alabama, 516 U.S. 1167 (1996).

Respectfully submitted,

WiiuiaM M. SLAUGHTER Epwin A. STRICKLAND

Counsel of Record JerFREY M. SEWweELL

J. VERNON PatRICk, JR. CHartes S. WAGNER

HAasKELL SLAUGHTER YOUNG Jefferson County

& Reprker, L.L.C. Attorney’s Office

1200 AmSouth/Harbert __- Jefferson County

Plaza Courthouse

1901 6th Avenue North 716 Richard Arrington

Birmingham, Alabama Boulevard

35203-2618 — Room 280

(205) 251-1000 Birmingham, Alabama 35203

Attorneys for Respondent (205) 325-5688

Jefferson County, Alabama Attorneys for Respondent

Jefferson County, Alabama

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