Opposition Brief — Wake County v. Edward Valves, Inc.

Supreme Court, U.S

FILED

JAN 3 1997

No. 96-887

CLERK

In The

Supreme Court of the United States

ca

October Term, 1996

WAKE COUNTY and EMMETT CURL, in his capacity as

Wake County Assessor,

Petitioners,

vs.

EDWARD VALVES, INC.,

Respondent.

On Petition for a Writ of Certiorari to the Supreme Court

of North Carolina

RESPONDENT?’S BRIEF IN OPPOSITION

PRESSLY McAULEY MILLEN

Counsel of Record

WOMBLE CARLYLE SANDRIDGE

& RICE, PLLC

Attorneys for Respondent

P.O. Box 831

Raleigh, North Carolina 27602

(919) 755-2100

70265

ervices, inc

utz

(890) 3 APPEAL + (800) 5 APPEAL + (800) BRIEF 21 Eprgetat

RULE 29.6 LISTING

Respondent Edward Valves, Inc. has no nonwholly owned

subsidiaries. Its parent corporation is M&FC Holding Co., Inc.,

whose parent corporation is BTR Inc., whose parent corporation

is BTR Dunlop Inc., whose parent corporation is BTR Dunlop

Holdings (Delaware), Inc., whose parent corporation is BTR

International Ltd., whose parent corporation is BTR plc.

ii |

TABLE OF CONTENTS

Page |

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emneneet OF Ge GRO oc occcaccctdceanesouaceeulen ] '

Reasons for Denying the Writ ..................05. 5

I. The interlocutory order of the North Carolina

Supreme Court is not a final judgment. ....... 5

Il. The judgment of the North Carolina Supreme

Court rests on independent and adequate state law

BIORRED. oo occneccéectnusansneeeuseaneuns 8

ear ee — eo eee ——s

Ill. The decision of the North Carolina Supreme Court

is not in conflict with a decision of this Court or a

decision of a state court of last resort. ......... 10 |

CORGIOED oc cnccccscsnnectanceussesestesswetees 14 |

TABLE OF CITATIONS

Cases Cited:

Allegheny Pittsburgh Coal Co. v. County Commission of

Webster County, 488 U.S. 336 (1989) ............ 3, 7,8

ili

Contents

Page

Buckley Powder Co. v. Colorado, 924 P.2d 1133 (Colo.

App. 1996), cert. granted in part, 1996 Colo. LEXIS

483 (Colo. Oct. 15, 1996) ...................... 13

Daniels y. Williams, 474 U.S. 327 a ee 4, li

Flynt v. Ohio, 451 U.S. 619 (1981) ................ 6

Fox Film Corp. v. Muller, 296 U.S. 207 ae 8

General Motors Corp. v. City of Linden, 143 N.J. 336,

671 A.2d 560, cert. denied, 117 S. Ct. 66 (1996) .. 13

Herb y. Pitcairn, 324 U.S. 117 ihn ottiis baie wena 8

Jade Aircraft Sales, Inc. v. Crystal, 236 Conn. 701, 674

EE ARR SR na 12

Kerr v. Waddell, 185 Ariz. 457, 916 P.2d 1173 (Ariz.

iT iM badewag ss etwosweeberesececceees 13

Michigan v. Long, 463 U.S. 1032 (1983) ........... 8,9

NAACP y. Williams, 359 L S. 550 (1959) ........... 7

National Private Truck Council, Inc. v. Oklahoma Tax

Commission, 115 S. Ct. 2351 (1995) ...... 5, 10, 11, 12, 13

New England Legal Foundation vy. City of Boston, 423

Mass. 602, 670 N.E.2d 152 (1996) .............. 12

= re

Contents

Page

PPG Industries, Inc. v. Tracy, 74 Ohio St. 3d 449, 659 |

Pa A BOE CEE evel wkecWadededeadnraceveus 12

Radio Station WOW, Inc. v. Johnson, 326 U.S. 120 |

ee PREIS eee: Bet ann Wee NE AS 6 |

|

Republic National Gas Co. v. Oklahoma, 334 U.S. 62 |

ESEED -cdneecestchenéncdveeusdecbadssdubec ens 6

Rice v. Sioux City Memorial Park Cemetery, Inc., 349

Gels MP CUUEES nu bUCaNaks eden bs ccdaudeneseeess 10

Rosewell v. LaSalle National Bank, 450 U.S. 503 (1981)

cacedae G60 4o6esscnendabdisigeccadinaebuews 11

Sharp v. Direct Resources for Print, Inc., 910 S.W. 2d |

S55 Cis, Be, WUD aiiciicckiinddnwiedanseses 13 |

Spector Motor Service, Inc. v. O'Connor, 340 U.S. 602

GSRED cunceccigcadeevécdyes bécesenesiseenets 1]

Sunamerica Financial Corp. v. Bonham, 328 N.C. 254,

et le ee Se CHEE kd ncdezicccbedeenesebess 8

Swanson v. North Carolina, 335 N.C. 674, 441 S.E. 2d

537, cert. denied, 115 S. Ct. 662 (1994) .......... 12

Uphaus v. Wyman, 360 U.S. 72 (1959) ............. 7

Williamson County Regional Planning Commission v.

Hamilton Bank, 473 U.S. 172 (1985) ............ 7

aman ake radia Neen anaemia an

Contents

Page

Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S.

PE PTSD ve x06 Chines pecasewenwecidceseoean, 9

Zinermon v. Burch, 494 U.S. 113 (1990) ........... 4

Statutes Cited:

Se ae EE wos cecaadabadvenehewonscdceeue, 5,8

es EE Gann bs aude dcanenaseaai ce 1]

St Ses ME cnvdsucaccesectvnes 2, 4, 6, 9, 10, 12, 13

Oe ie EE oa veka dnc dcbuunkiseweess tele 7, 12

Oe See Sh SE nb.6 utes cuhaesitese une cums 7

North Carolina General Statutes sec. 6-21.5 ......... 7

North Carolina General Statutes sec. 105-284(a) ...... 9

Rule Cited:

Federal Rule of Civil Procedure 56 ................. 6

STATEMENT OF JURISDICTION

For the reasons set forth in Points I & II, infra, Respondent

Edward Valves, Inc. (“Edward Valves”) contends that this Court

lacks jurisdiction under 28 U.S.C. § 1257(a) to review the

interlocutory order of the North Carolina Supreme Court.

STATEMENT OF THE CASE

Edward Valves commenced this action in the state trial court

in 1991 by the filing of a Complaint against Petitioners Wake

County and Emmett Curl, in his capacity as Wake County

Assessor, (collectively referred to herein as “the County”). The

Complaint contained seven claims for relief, principally, but not

exclusively, related to the County’s actions with regard to the

ad valorem taxation of Edward Valves’ engineering drawings

for the 1990 tax year. Specifically, Edward Valves contended

that the taxation of its engineering drawings violated the equal

protection clauses of the federal and North Carolina Constitutions

(Second Claim) and 42 U.S.C. § 1983 (Sixth Claim), that the

County was estopped from taxing the engineering drawings

(Third Claim), and that their taxation constituted clerical error

(Fourth Claim); Edward Valves also challenged the propriety of

the participation of a contingency-fee auditor in a 1990 audit of

the company (First Claim). In addition to the claims relating to

the taxation of the engineering drawings, Edward Valves

separately challenged the circumstances under which the County

denied it a hearing on an appeal to the County Board of

Equalization and Review of its 1990 real property assessment

(Seventh Claim) and further sought a refund on amounts paid in

1989 on certain personal property which Edward Valves

contended was then located outside of the County and thus not

subject to ad valorem taxation by the County (Fifth Claim).

On May 20, 1993, the trial court issued its Order and

Judgment with respect to the County’s motion to dismiss,

2

granting the motion with respect to Edward Valves’ First and

Third Claims relating to the contingency-fee auditor and

estoppel. (Petitioners’ Appendix (“Pet. App.”), at 25a.) That

Order and Judgment was not appealed. On November 19, 1993,

the County filed a motion for summary judgment with respect

to the four remaining claims.' That motion for summary

judgment was granted by the trial court by Order dated December

1, 1993, with respect to Edward Valves’ four remaining claims:

the Second, Fourth, Sixth and Seventh Claims for Relief. Edward

Valves appealed that Order to the North Carolina Court of

Appeals.

In an opinion filed on January 3, 1995, the North Carolina

Court of Appeals reversed the grant of summary judgment in

favor of the County and remanded the action for further

proceedings in accordance with its opinion. (Pet. App. 24a.) With

respect to the taxation of the engineering drawings, the Court of

Appeals held that the methodology used by the County violated

both the federal and North Carolina Constitutions and also

violated 42 U.S.C. § 1983 and § 105-284(a) of the North Carolina

General Statutes. (Pet. App. 23a.) The Court of Appeals held

that the County's practice of taxing intangible and self-created

intellectual property, such as Edward Valves’ engineering

drawings, only when it was capitalized by the taxpayer

constituted “a purposeful, though somewhat informal,

classification based upon an improper distinction between

1. Prior to the hearing on the motion for summary judgment, the County

agreed to refund taxes paid in 1989 on certain personal property located

outside of the County (Fifth Claim). That agreement was embodied in a

Consent Order and Judgment, entered by the trial court on December 1,

1993. (Pet. App. 26a.)

2. The Court of Appeals also ruled that Edward Valves’ claim of clerical

error (Fourth Claim) had been abandoned. (Pet. App. 20a.) Edward Valves

did not contest that ruling.

3

taxpayers who owned the same class of property, self-created

intan’,ibles that have been sold and similar intangibles that have

not been sold.” (Pet. App. 21a.) The court also noted that the

County itself conceded that it was aware of no other county in

North Carolina which sought to implement a methodology such

as the one challenged by Edward Valves. (Pet. App. 15a.) In

ruling that the methodology was unconstitutional, the Court of

Appeals stated that the holding of this Court in Allegheny

Pittsburgh Coal Co. v. County Commission of Webster County,

488 U.S. 336 (1989), was “virtually dispositive” of the issues

concerning the taxation of the engineering drawings in this case.

(Pet. App. 21a-22a.) The North Carolina Court of Appeals also

reversed and remanded the action on the issue of whether the

County denied Edward Valves an opportunity to appeal the

assessment of its real property. (Pet. App. 23a-24a.)

The County sought review of the opinion of the Court of

Appeals in the North Carolina Supreme Court by way of petition

for discretionary review and appeal. (See Pet. App. 6a.)

Specifically, the County sought review of three questions: (1 )

“whether the Court of Appeals erred in holding that the County’s

taxation of [Edward Valves’] engineering drawings constitutes

an illegal tax in violation of the Equal Protection Clause of the

United States Constitution . . . and uniformity requirements . . .

of the North Carolina Constitution” (Pet. App. 6a-7a); (2)

“whether the Court of Appeals erred in reversing the trial court's

order dismissing [Edward Valves’) real property claim” (i.e.,

the denial of Edward Valves’ appeal of the assessment of its real

property (Pet App. 7a); and (3) “whether 42 U.S.C. § 1983 is an

available avenue of relief upon which [Edward Valves] may base

[its] equal protection claim.” (Pet. App. 7a.)

In its opinion, issued June 13, 1996, the North Carolina

Supreme Court ruled that it had improvidently allowed

discretionary review with respect to the first two questions, (Pet.

4

App. 6a-7a), thereby reinstating the decision of the Court of

Appeals in favor of Edward Valves on those claims. With respect

to the third question, the Supreme Court modified the opinion

of the Court of Appeals concerning 42 U.S.C. § 1983 and

affirmed the earlier determination that the actions of the County

violated that statute as well. (Pet. App. 12a.)

In analyzing the section 1983 question, the North Carolina

Supreme Court summarized the County’s contentions as (a) that

Edward Valves was “not entitled to relief under section 1983 . .

. absent an allegation or evidence demonstrating that [Edward

Valves] does not have ‘plain, adequate or complete’ remedies at

state law and (b) that Edward Valves was required to seek relief

by first “exhausting state law remedies.” (Pet. App. 7a.) The

North Carolina Supreme Court explicitly rejected both

contentions. Notwithstanding the existence of “overlapping state

remedies,” (Pet. App. 10a), the court held that the “type of

Fourteenth Amendment interest that is implicated has important

effects on the nature of the constitutional claim and the

availability of § 1983 relief.” (Pet. App. 10a, quoting Daniels v.

Williams, 474 U.S. 327, 337 (1986) (Stevens, J., concurring).)

The determination as to whether section 1983 relief was available

would turn on whether Edward Valves was claiming a violation

of its procedural due process rights — in which circumstance

the constitutional violation “is not complete when the deprivation

occurs [but only] unless and until the State fails to provide due

process,” (Pet. App. lla, quoting Zinermon v. Burch, 494 U.S.

113, 124 (1990)) —— or “a violation of a substantive constitutional

right.” (Pet. App. 11a.) In the latter circumstance, “the

constitutional violation is complete as soon as the prohibited

action is taken.” (Pet. App. lla, quoting Daniels, 474 U.S. at

338 (Stevens, J., concurring).) Here, the North Carolina Supreme

Court found, Edward Valves had demonstrated “a substantive

violation” of its constitutional right to equal protection and,

therefore, it could “pursue Section 1983 remedies regardless of

5

the state statutory or administrative remedies provided for by

the North Carolina Machinery Act.” (Pet. App. 11a.) The court

refused the invitation to declare those statutory and administrative

remedies “plain, adequate and complete” as requested by the

County. Instead, the court remanded the action to the trial court,

noting that “on remand to the trial court, [Edward Valves] may

only recover the amount of taxes illegally assessed once.” (Pet.

App. 1 la-12a.)

The County thereafter filed a timely petition for rehearing

solely on the grounds that the North Carolina Supreme Court’s

decision conflicted with this Court’s decision in National Private

Truck Council, Inc. v. Oklahoma Tax Commission, 115 S. Ct.

2351 (1995), again asserting that the state law provided an

adequate remedy. That petition for rehearing was denied without

opinion. (Pet. App. 28a.) Thereafter, the County filed its Petition

for a Writ of Certiorari with this Court.

REASONS FOR DENYING THE WRIT

I.

THE INTERLOCUTORY ORDER OF THE NORTH

CAROLINA SUPREME COURT IS NOT A FINAL

JUDGMENT.

The sole basis of jurisdiction upon which the County relies

in its Petition for a Writ of Certiorari is 28 U.S.C. § 1257. Under

that statute, the United States Supreme Court has jurisdiction to

review “[flinal judgments or decrees rendered by the highest

court of a State in which a decision could be had ... .” This

Court has interpreted the final judgment requirement to “preclude

reviewability . . . where anything further remains to be

determined by a State court, no matter how dissociated from the

only federal issue that has finally been adjudicated by the highest

6

court of the State.” Flynt v. Ohio, 451 U.S. 619, 620 (1981)

(ellipsis in original, quoting Radio Station WOW, Inc. v. Johnson,

326 U.S. 120, 124 (1945)). This “prerequisite to review derives

added force when the jurisdiction of this Court is invoked to

upset the decision of a State Court.” Radio Station WOW, 326

U.S. at 124. The requirement was “[d]esigned to avoid the evils

of piecemeal review,” and its “[h]istory bears ample testimony

that it is an important factor in securing harmonious State-federal

relations.” Republic Natural Gas Co. v. Oklahoma, 334 U.S. 62,

67 (1948). Although a decree is regarded as final “if nothing

more than a ministerial act remains to be done, such as the entry

of a judgment upon a mandate,” id. at 68, “the requirement of

finality has not been met merely because the major issues in a

case have been decided and only a few loose ends remain to be

tied up — for example, where liability has been determined and

all that needs to be adjudicated is the amount of damages.” Jd.

The Republic Natural Gas Court marshaled the rationales

supporting “abstention until what is organically one litigation

has been concluded in the State,” id. at 71, including the

“potentiality of additional federal questions arising out of the

same controversy,” id. at 72, as well as the possibility that the

case may later be resolved in a manner satisfactory to the losing

party. /d. at 71.

Here, the Order of the North Carolina Supreme Court

remanded this action to the trial court for more than a ministerial

entry of judgment upon its mandate. Thus, upon remand, Edward

Valves will be entitled (a) to entry of summary judgment in its

favor with respect to its claim for refund under North Carolina

law or damages under 42 U.S.C. § 1983,’ (b) to move for costs

3. Unlike Rule 56 of the Federal Rules of Civil Procedure, Rule 56 of

the North Carolina Rules of Civil Procedure explicitly provides that

“[s)ummary judgment, when appropriate, may be rendered against the moving

party.” Here, the determination of the North Carolina Court of Appeals clearly

contemplates entry of summary judgment in favor of Edward Valves on the

issue of taxation of the engineering drawings. (See Pet. App. 17a.)

7

and attorney’s fees under 42 U.S.C. § 1988, as well as the

pertinent North Carolina statutory provision concerning costs

and attorney’s fees, and (c) to trial of its Seventh Claim

concerning the assessment of its real property for the 1990 tax

year. (Pet. App. 23a-24a.) These remaining matters are well

beyond anything which this Court has found to be “ministerial”

and, in fact, each contemplates significant remaining discretion

on the part of the trial court upon remand. See, e.g., Uphaus v.

Wyman, 360 U.S. 72, 75 (1959) (refusing to treat question as

final where trial court, upon remand, retained “discretion with

respect to the entry of an order to enforce the command of a

subpoena for the production of correspondence”); NAACP v.

Williams, 359 U.S. 550, 551 (1959) (refusing to find finality

with respect to contempt citation when state court reserved the

power to reduce the amount of the fine).

Even a prospective award of attorney’s fees to Edward

Valves upon remand may be resolved in a manner ultimately

precluding review. First, under 42 U.S.C. § 1988(b), “the court,

in its discretion, may allow the prevailing party . . . a reasonable

attorney’s fee as part of the costs” (emphasis added). Thus, if

the trial court determines, in its discretion, not to allow Edward

Valves attorney’s fees, the County would have no “actual,

concrete injury,” Williamson County Regional Planning

Commission v. Hamilton Bank, 473 U.S. 172, 193 (1985), from

which to seek review. Second, the trial court could award

attorney’s fees to Edward Valves, solely (or jointly under

§ 1988(b)), under section 6-21.5 of the North Carolina General

Statutes which provides that the court “may award reasonable

attorney’s fees to the prevailing party if the court finds that there

was a complete absence of a justiciable issue of either law or

fact raised by the losing party in any pleading.” Here, the

County’s persistence in defending its assessment methodology

in the face of the North Carolina Court of Appeals’ determination

that the holding in Allegheny Pittsburgh Coal Co. v. County

8

Commission of Webster County, 488 U.S. 336 (1989), was

“virtually dispositive” of the issues concerning the taxation of

the engineering drawings in this case, (Pet. App. 21a-22a), could

constitute just such a nonjusticiable issue under the North

Carolina statute entitling Edward Valves to an award of attorney’s

fees. See Sunamerica Financial Corp. v. Bonham, 328 N.C. 254,

258, 400 S.E. 2d 435, 439 (1991). In the event that Edward Valves

was to obtain an award of attorney’s fees solely under state law

or under both state and federal law, such a judgment would be

independently and adequately supported on non-federal grounds

and thus not subject to review by this Court. See Point II, infra.

In any case, the judgment of the North Carolina Supreme

Court is insufficiently final to permit review by this Court under

28 U.S.C. § 1257.

Il.

THE JUDGMENT OF THE NORTH CAROLINA

SUPREME COURT RESTS ON INDEPENDENT AND

ADEQUATE STATE LAW GROUNDS.

This Court has “long recognized that ‘where the judgment

~of a state court rests upon two grounds, one of which is federal

and the other non-federal in character, our jurisdiction fails if

the non-federal ground is independent of the federal ground and

adequate to support the judgment.’ ” Michigan v. Long, 463 U.S.

1032, 1038 n. 4 (1983) (quoting Fox Film Corp. v. Muller, 296

U.S. 207, 210 (1935)). As explained by the Long Court, the

“j»risdictional concerns that we not ‘render an advisory opinion,

and if the same judgment would be rendered by the state court

after we corrected its views of federal laws, our review could

amount to nothing more than an advisory opinion.’ ” 463 U.S.

at 1042 (quoting Herb v. Pitcairn, 324 U.S. 117, 126 (1945)).

This Court has “power . . . to correct wrong judgments, not to

9

revise opinions.” Zacchini v. Scripps-Howard Broadcasting Co.,

433 U.S. 562, 566 (1977). In determining whether an independent

and adequate state ground exists, this Court imposes a

“requirement of a ‘plain statement’ that a decision rests upon”

such grounds. Michigan v. Long, 463 U.S. 1032, 1042 (1983).

Here, the North Carolina Supreme Court allowed the ruling

of the North Carolina Court of Appeals to stand concerning the

illegality of the tax on Edward Valves’ engineering drawings.

(Pet. App. 6a-7a.) That ruling, in addition to its federal

constitutional basis, also found the tax illegal based on violations

of the “uniformity requirements of Article V, Section 2(2) of the

North Carolina Constitution.” (Pet. App. 6a.) In addition, the

Court of Appeals’ ruling explicitly held that the County’s

“methodology for taxing self-created intangible property...

also violates North Carolina General Statutes § 105-284(a).”*

(Pet. App. 23a.) Despite this multiplicity of grounds — both

federal and state — upon which Edward Valves prevailed, the

North Carolina Supreme Court noted that “on remand to the

trial court, [Edward Valves] may only recover the amount of

taxes illegally assessed once.” (Pet. App. 1 la-12a.) The County

has not sought — and indeed could not seek — review of Edward

Valves’ entitlement to “recover the amount of taxes illegally

assessed.”

Any “correction” of the North Carolina Supreme Court’s

views on the subject of 42 U.S.C. § 1983 would “amount to

nothing more than an advisory opinion” inasmuch as “the same

judgment would be rendered by the state court,” Long, 463 U.S.

at 1042: i.e., Edward Valves would recover the amount of taxes

illegally assessed by the County.

4. North Carolina General Statute § 105-284(a) requires that all

Property be assessed at its true value and that taxes be levied uniformly by

counties.

10

Here, the County would have this Court grant certiorari to

review a question, which although perhaps “intellectually

interesting,” Rice v. Sioux City Memorial Park Cemetery, Inc.,

349 U.S. 70, 74 (1955), does not reach “beyond the academic or

the episodic.” Jd. As the North Carolina Court of Appeals stated,

the County is the only one of North Carolina’s one hundred

counties utilizing the methodology challenged by Edward Valves

here. (See Pet. App. 15a.) Moreover, as the North Carolina

Supreme Court held, Edward Valves “may only recover the

amount of illegally assessed taxes once.” (Pet. App. 12a.) Under

such circumstances, the County’s contention that “use of Section

1983 by taxpayers in North Carolina will be intrusive and

disruptive, and will have an undeniable chilling effect upon the

actions of all County officers,” (Petitioners’ Brief (“Pet. Br.”),

at 14, internal quotation omitted), provides nothing more than a

speculative rationale “to satisfy a scholarly interest,” Rice, 349

U.S. at 74, concerning a question that has not arisen under the

facts presented in this case and, indeed, may never arise at all.

Ill.

THE DECISION OF THE NORTH CAROLINA

SUPREME COURT IS NOT IN CONFLICT WITH A

DECISION OF THIS COURT OR A DECISION OF A

STATE COURT OF LAST RESORT.

The County contends that the decision of the North Carolina

Supreme Court “is flatly inconsistent with this Court’s holding

in National Private Truck Council, Inc. v. Ck’ahoma Tax

Commission, 115 §. Ct. 2351 (1995).” (Pet. Br. at 4.) In National

Private Truck Council, this Court — after assuming “without

deciding that state courts generally must hear § 1983 suits,” id.

at 2355 — affirmed the refusal of the Oklahoma Supreme Court

to grant injunctive or declaratory relief under 42 U.S.C. § 1983,

holding that that statute does not “provide for injunctive or

1]

declaratory relief against a state tax, either in federal or state

court, when an adequate legal remedy exists.” 115 S. Ct. at 2357.

The taxpayers in National Private Truck Council had received

refunds of the taxes in question and the Oklahoma Supreme Court

explicitly held that “adequate remedies existed under state law.”

Id. at 2354.

In this case, unlike National Private Truck Council, the

North Carolina Supreme Court twice — both in its original

opinion and in its denial of the County’s petition for rehearing

— declined the County’s explicit invitation to rule that North

Carolina provides an adequate remedy under its state law.

Instead, the North Carolina Supreme Court held, at least

implicitly, that North Carolina’s statutory and administrative

remedies were not adequate in the face of “a violation of a

substantive constitutional right” which is “complete as soon as

the prohibited action is taken.” (Pet. App. 11a, quoting Daniels

v. Williams, 474 U.S. 327, 338 (1986) (Stevens, J., concurring).)

Such a holding is in accord with the rulings of this Court on the

analogous issue of whether a state remedy is “plain, speedy and

efficient” under the federal Tax Injunction Act, 28 U.S.C.

§ 1341.5 See, e.g. Rosewell v. LaSalle National Bank, 450 U.S.

503, 518, 521-22 (1981) (remedy imposing “unusual hardship

... Tequiring ineffectual activity or an unnecessary expenditure

of time or energy” may be “inefficient;” “unusual” wait for

adjudication of refund may not be “speedy”); Spector Motor

Service, Inc. v. O’Connor, 340 U.S. 602, 605 (1951) (“uncertainty

of the adequacy of a remedy in the state courts,” even with later

clarification by state court, provides federal jurisdiction

notwithstanding Tax Injunction Act). Moreover, the North

5. The “principles of federalism and comity” embodied in the Tax

Injunction Act formed the basis of this Court's ruling in National Private

Truck Council. 115 S. Ct. at 2354.

12

Carolina Supreme Court, has, in other contexts, struggled with

the issue of whether North Carolina’s laws provide “meaningful

backward looking relief of the sort which is adequate to satisfy

minimum due process requirements.” Swanson v. North Carolina,

335 N.C. 674, 695, 441 S.E. 2d 537, 549 (Mitchell, J.,

dissenting), cert. denied, 115 S. Ct. 662 (1994). Here, the North

Carolina Supreme Court was within its rights to conclude that a

State remedy that required the taxpayer to pay the contested

amount of taxes and which — six years later — had still resulted

in no refund to the taxpayer was not “adequate” “under the

particular facts presented by the present case,” Swanson, 335

N.C. at 695, 441 S.E. 2d at 549 (Mitchell, J., dissenting).

The other state court decisions cited by the County as

putatively in conflict with the decision here, (see Pet. Br. 7-8),

were premised, in every case, on an explicit holding by the state

court that the state law remedies at issue were “adequate.” Thus,

in New England Legal Foundation v. City of Boston, 423 Mass.

602, 670 N.E. 2d 152 (1996), plaintiff appealed, in pertinent

part, from the trial court’s decision denying attorney’s fees under

42 U.S.C. § 1988. The Supreme Judicial Court of Massachusetts

held that the Massachusetts procedure for recovery of back taxes

“long ago was seen as providing an adequate remedy.” 670 N.E.

2d at 161 (citing cases). The court specifically found that plaintiff

“had adequate State procedural avenues to bring its Federal law

challenges,” and that under National Private Truck Council,

“§ 1983 would therefore not provide any relief.” Jd.; see also

PPG Industries, Inc. v. Tracy, 74 Ohio St. 3d 449, 659 N.E. 2d

1250, 1252 (1996) (per curiam) (affirming refusal to grant

attorney’s fees under 42 U.S.C. § 1988 on grounds that plaintiff”

did not prove a violation of the commerce clause” and because

“Ohio provides an appellate procedure to determine these

constitutional claims”); Jade Aircraft Sales, Inc. v. Crystal, 236

Conn. 701, 674 A.2d 834, 839 (1996) (affirming dismissal of

plaintiffs § 1983 claim for lack of subject matter jurisdiction on

13

the grounds that the Connecticut statutory scheme provided

plaintiff “an opportunity to receive an adequate legal remedy”);

General Motors Corp. v. City of Linden, 143 N.J. 336, 350, 671

A.2d 560, 566 (refusing “to recognize a section 1983 action

challenging the conduct of an assessor” based on a holding that

“the remedies under New Jersey law are adequate to preclude

section 1983 suits in either federal or state courts”), cert. denied,

117 S. Ct. 66 (1996).°

Unlike National Private Truck Council and the various state

court decisions cited by the County, the North Carolina Supreme

Court did not rule that the state law remedies at issue here were

adequate under the circumstances faced by Edward Valves. For

that reason, the decision of the North Carolina is not in conflict

with any decision of this Court or any decision of a state court

of last resort.

6. The intermediate state appellate court decisions cited by the County

are also each premised on an explicit holding that the state provided an

adequate remedy. See, e.g., Kerr v. Waddell, 185 Ariz. 457, 916 P.2d 1173,

1174 (Ariz. App. 1996) (holding that “Arizona's administrative tax procedure

is an adequate legal remedy,” and therefore the Arizona tax court “did not

have subject matter jurisdiction to hear the taxpayers’ § 1983 claims absent

the exhaustion of their administrative remedies”); Buckley Powder Co. v.

Colorado, 924 P.2d 1133, 1138 (Colo. App. 1996) (holding that “adequate

state remedies” were available to plaintiff and that National Private Truck

Council, “by implication,” required that state courts “could not entertain

damages action under 42 U.S.C. § 1983 in state tax cases when state law

furnishes an adequate legal remedy”), cert. granted in part, 1996 Colo. LEXIS

483 (Colo. Oct. 15, 1996); Sharp v. Direct Resources for Print, Inc., 910

S.W. 2d 535, 541 (Tex. App.1995) (holding that because plaintiff “received

an adequate remedy under state law,” it could not obtain “the declaratory

relief [it] requested pursuant to § 1983”).

14

CONCLUSION

For all the foregoing reasons, Respondent Edward Valves,

Inc. respectfully requests that this Court deny the Petition for a

Writ of Certiorari.

Respectfully submitted,

PRESSLY McAULEY MILLEN

Counsel of Record

WOMBLE CARYLE SANDRIDGE

& RICE, PLLC

Attorneys for Respondent

Post Office Box 831

Raleigh, North Carolina 27602

(919) 755-2100

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