# Opposition Brief — Richards v. Jefferson County

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2001
- **Citation:** 534 U.S. 1019

## Text

- 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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_2391%3A2. Public record. Not legal advice.