Opposition Brief — Austin, Nichols & Co. v. Georgia

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No. 00-493

In The

Supreme Court of the United States

AUSTIN, NICHOLS & CO., INCORPORATED; et al.,

Petitioners,

STATE OF GEORGIA; et al.,

Respondents.

On Petition For Writ Of Certiorari

To The Supreme Court Of Georgia

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

Davip A. RUNNION

Senior Assistant Attorney General

Counsel of Record

THURBERT E. BAKER

Attorney General

DanieL M. Formby

Deputy Attorney General

Georgia Department of Law

132 State Judicial Building

40 Capitol Square, S.W.

Atlanta, Georgia 30334-1300

(404) 651-6148

Bruce M. EDENFIELD

Special Assistant Attorney General

Gray, Hedrick & Edenfield, L.L.P.

2408 Mt. Vernon Road

Atlanta, Georgia 30338

(770) 351-0090

Attorneys for Respondents

State of Georgia and the

State Officials

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

1. Whether this Court has jurisdiction to review a state

trial court judgment involving a federal question where

Petitioners failed to follow the State’s discretionary

appeal statute to seek a judgment by the highest state

court in which a decision could be had?

2. Whether certiorari is precluded by adequate and

independent state grounds, including the petitioning

manufacturers’ lack of standing to obtain a refund of

taxes they have already collected from the liable whole-

salers?

3. Whether a substantial federal question is properly

presented on petition for certiorari where petitioners’

alleged discriminatory purpose or effect Commerce

Clause challenge to a State tax was based upon hearsay,

unauthenticated documents, and other inadmissible evi-

dence that was excluded by the trial court?

4. If certiorari is not precluded in this case, whether it is

warranted to review a-trial court decision upholding

under the Twenty-first Amendment and the precedent of

this Court, against a Commerce Clause challenge, Geor-

gia’s tax upon the importation of liquor into the State for

use, consumption, or final delivery therein?

LIST OF PARTIES

Age International, Inc., Plaintiff

Austin, Nichols & Co., Incorporated, Petitioner /Plaintiff

Bacardi Imports, Inc., Petitioner /Plaintiff

The Black Prince Distillery, Inc., Plaintiff

Brown-Forman Corporation, Petitioner/ Plaintiff

Carillon Importers Ltd., Plaintiff

Charles Jacquin Et Cie., Inc., Plaintiff

Collins, Marcus E., Respondent /Defendant

David Sherman Corporation, Petitioner/Plaintiff

E. & J. Gallo Winery, Plaintiff

The Fleischmann Distilling Company, a Division of

Fourth Colchester, Inc., f/k/a Whitbread North America,

Inc., Plaintiff

Fourth Colchester, Inc., f/k/a Whitbread North America,

Inc., in its own right and as successor to Buckingham

Wile Co., Plaintiff

Heaven Hill Distilleries, Inc., Plaintiff

Heublein, Inc., Plaintiff

Hiram Walker & Sons, Inc., in its own right and as suc-

cessor to Hiram Walker Incorporated, also successor to

Maidstone Wine & Spirits Inc., also successor to W.A.

Taylor & Company, Plaintiff

Jim Beam Brands Co., Petitioner / Plaintiff

Joseph E. Seagram & Sons, Inc., Plaintiff

oe oe i:

iii

LIST OF PARTIES - Continued

McCoy, Steven N., Respondent /Defendant

Miller, Zell, Respondent /Defendant

The Paddington Corporation, Plaintiff

Remy Amerique, Inc., Petitioner /Plaintiff

Sazerac Company, Inc., Plaintiff

Schieffelin & Somerset Co., Plaintiff

Sidney Frank Importing Company, Inc., Plaintiff

Southern Wine & Spirits of America, Inc., d/b/a Shaw

Ross International Importers, Petitioner /Plaintiff

State of Georgia, Respondent /Defendant :

Vickers, Claude L., Respondent /Defendant

William Grant & Sons, Inc., Plaintiff

TABLE OF CONTENTS

Page

CURTIS PO ioc cic cccapeanciascancs i

Gee SA WI 9 6 ova Week h bee cdsksunasevcessane ii

TABLE OF AUTOR Ce 6 acc cves sc cenncccvedeas Vv

eo tt Sf PECTTT TIT TTT e ee 1

PF MII sks cvs cavenntndatnnnssaeapewsueesaes 1

STATUTES AND OTHER PROVISIONS INVOLVED... 2

STATEMENT GP THUD CAM gona cece cacasswensees 2

Response To Petitioners’ Statement Of The Case.... 6

REASONS FOR DENYING THE WRIT............. 9

A. Petitioners’ Failure To Seek Discretionary

Review By The Georgia Supreme Court Deprives

Tees Cert: Ge BUI sg < vn a can caer cadences 9

B. The Judgment Was Based Upon Adequate And

Independent State Grounds, Including Lack Of

Standing To Obtain A Refund Of Taxes Already

Collected From The Wholesalers ............... 15

C. The Asserted Federal Questions Are Not

Properly Presented By The Facts In The

ONE 5 ki. sis Nvivanuwakocdebuhinesasasncdendass 18

D. The Trial Court Correctly Upheld The Tax Under

The Twenty-First Amendment And This Court's

NN oi is Sacnee koa seu wees eee 19

E. There Is No Merit To Petitioners’ Other

RABID oo oo sc canseccessenseususecenseeaneas 24

Cee ons cdi cevisk Was chekeeeeesbecusenees 28

APPENDIX

el Nan a t rit tas” in eA,

ee ee ee a ee a

reo ee

TABLE OF AUTHORITIES

Page

Cases

324 Liquor Corp. v. Duffy, 479 U.S. 335 (1987)........ 26

44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484

Se ET Ee ERE ET eee Cen AnT aie ee a eae, 20

Achor Ctr., Inc. v. Holmes, 219 Ga. App. 399, 465 ;

PE Te SINE 8 0b sen bv ccbdka Chad 54ESsAzo RSI 18

Anderson v. Creighton, 483 U.S. 635 oy Sea ery 4

Atlanta Americana Motor Hotel Corp. v. Undercofler,

222 Ga. 295, 149 S.E.2d 691 (1966) ................ 16

Bacchus Imports, Ltd. v. Dias, 468 U.S. 263

Co Re EEE Te Te Enea OF cnn ACE ee 2, 21, 24

Bankers Trust Co. v. Jackson, 236 Ga. App. 490, 512

POE PO I si siecki ir pides ounceecalenveccaucs 10

Banks v. California, 395 U.S. 708 (1969) ............... 9

Blackmon v. Georgia Indep. Oilmen’s Ass'n, 129 Ga.

App. 171, 198 S.E.2d 896 (1973)................... 16

Blackmon v. Premium Oil Stations, Inc., 129 Ga.

App. 169, 198 S.E.2d 900 SRE ERAS cee 16

Bridenbaugh v. Freeman-Wilson, Nos. 00-1044 &

00-1046, 2000 U.S. App. LEXIS 22991 (7th Cir.

We le Ciena et iu iineth weal oo vind nda as 25

Brown-Forman Distillers Corp. v. New York State

Liquor Auth., 476 U.S. 573 (1986)................5. 27

Butler v. Bolton Rd. Partners, 222 Ga. App. 791, 476

PE I MN rik 5 lis ve in uch bak GUN kis kas 18

C. W. Matthews Contracting Co. v. Collins, 210 Ga.

Hag. 1, GOS Se B20 CLOG R a oi cc is vcs ccicscce 10

TABLE OF AUTHORITIES - Continued

Cagle v. Davis, 236 Ga. App. 657, 513 S.E.2d 16

Seer ee ene ere rer eer rere Pee re

California Retail Liquor Dealers Ass'n v. Midcal Alu-

peinum, Inc., 445 U.S. 97 (1986)... «0... .ceccccsens

Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691

aia s 5 i sank nse Kaah edad sa haEE een Ke NRE NeeS

City of Atlanta Bd. of Zoning Adjustment v. Midtown

North, Ltd., 257 Ga. 496, 360 S.E.2d 569 (1987) ....

Coleman v. Thompson, 501 U.S. 722 (1991).........

Commonwealth Edison Co. v. Montana, 453 U.S. 609

| Rr ener Terre rer eee e eres eee re

Container Corp. of Am. v. Franchise Tax Bd., 463 U.S.

ST EN eo Kinnkee ek Concanayaskbewehateneennns

Conway. v. California Adult Auth., 396 U.S. 107

SE SA aWac kn any ranch deecsreedieaedeneEseueses

Cooper v. McBeath, 11 F.3d 547 (5th Cir. 1994) ....

Cramp v. Board of Pub. Instruction of Orange County,

Se Rs Se CRE 4 5b secccencwncsar cexsanienta

Daniel v. Family Sec. Life Ins. Co., 336 U.S. 220

SL A b66 kh tnrhdasedg sss nhek coud ik ernees

Department of Rev. v. James B. Beam Distilling Co.,

ee WN PE CI a ns 5 yk ncodcg nud dens 'enage ies

DeSaussure v. Gaillard, 127 U.S. 216 (1888)........

Edelman v. California, 344 U.S. 357 (1953).........

Eimco BSP Services Co. v. Chilivis, 241 Ga. 263, 244

ee Ce cca cibcencebee dbus ka vek Rae eeee

cae @ Dea, SOP US. SOG CII S) oc oes ccc cewsncns

Page

Vii

TABLE OF AUTHORITIES - Continued

Page

Enterprise Irrigation Dist. v. Farmers Mut. Canal Co.,

ee SO Oe IE oh os dine ok cued Kebdbdndwas ob GKéess 10

FCC v. Beach Communications, Inc., 508 U.S. 307

SN ho hee Hels cae wRaebe) ROS Gaba kde eAe bh Anas 22

Foster-Fountain Packing Co. v. Haydel, 278 U.S. 1

Sd cE RECRAR CES ek Nee Rin ehrkak cee es daekknek 26

Fox Film Corp. v. Muller, 296 U.S. 207 (1935) ........ 15

Gorman v. Washington Univ., 316 U.S. 98 (1942)....... 9

Hambrick v. B. G. Swing Games Mgmt., Inc., 267 Ga.

we oe eB) rrr er ere 27

Hammerstein v. Superior Ct. of Calif., 341 U.S. 491

Ss Or eee rire me Ce ee fOr Re 9

Hawes v. Bigbie, 123 Ga. App. 122, 179 S.E.2d 660

EEG SNES SERA Ae ath eee boc eebeck even =v. 16

Hawes v. Shepherd Constr. Co., 117 Ga. App. 842,

ee ee ee RR ok sh cesium kaw nue ceasd wcdud 11

Healy v. Beer Inst., Inc., 491 U.S. 324 (1989)....... 26-27

Herb v. Pitcairn, 324 U.S. 117 (1945) ..............2.. 15

Heublein, Inc. v. Georgia, No. D-20634 (Fult. Super.

Sept. 23, 1985), aff'd, 256 Ga. 578, 351 S.E.2d 190

(1987), appeal dismissed, 483 U.S. 1013 (1987)........ 4 .

Heublein, Inc. v. Georgia, 256 Ga. 578, 351 S.E.2d

190 (1987) (“Heublein”), appeal dismissed, 483

IN I ga a passim

Heublein, Inc. v. South Carolina Tax Comm’n, 409

ee ec a a ea em ok 20

(cg ER PEE re Ae ga ary tn aor enn Oenr eae aa, af

Vill

TABLE OF AUTHORITIES - Continued

Page

Ivey v. Bacardi Imports, Co., 541 So.2d 1129 (Fla.

ee MULNREREED Rakes Staeee een a eimaal 24, 25

James B. Beam Distilling Co. v. Ceorgia, 259 Ga. 363,

382 S.E.2d 95 (1989) (“Beam (Ga. I)”), rev'd &

remanded for consid. of remedial issues, 501 U.S.

ee GIOOR Ssh nkad bWewiet kobcceeducauuce sen 2, 7, 13, 14

James B. Beam Distilling Co. v. Georgia, 501 U.S. 529

(1991) (“Beam (U.S.)”), rev’g 259 Ga. 363, 382

SRE OF SID 605 4dn 660 ds Wad ond s HOARE RKSS base ne 8

James B. Beam Distilling Co. v. Georgia, 263 Ga. 609,

437 S.E.2d 782 (1993) (“Beam (Ga. II)”), cert.

Gonted, 313 US. WOS6 (SPE) ois ids cave nds 7, & Sy 17

joan @. Pawial, Zi VD. FES CIPI) «i esc cesececacs 9

Lanier v. City of Newton, 842 F.2d 253 wie Cir.

i eR er ee er ie wire rear hero 21

Limbach v. Hooven & Allison Co., 466 U.S. 353

CRE Wi kad 0464 see CEOOEEG EH RREER EEA RCRR TE RES SOE 27

Lindsey v. Normet, 405 U.S. 56 (1972)................ 15

Madden v. Kentucky, 309 U.S. 83 (1940) .............. 23

Mahoney v. Joseph Triner Corp., 304 U.S. 401 (1938) .... 23

Maine 0. Taylor, 477 US. 131 (1966) .............006: 25

McMaster v. Gould, 276 U.S. 284 (1928)............... 9

Michelin Tire Corp. v. Wages, 423 U.S. 276 (1976)..... 27

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

Miles v. Collins, 259 Ga. 536, 384 S.E.2d 630 (1989) .... 10

Miller v. Georgia Dep’t of Pub. Safety, 265 Ga. 62,

' oe Re Oe er re errr Sere 10

————————————————EEE

TABLE OF AUTHORITIES - Continued

Page

Milton S. Kronheim & Co. v. District of Columbia, 91

F.3d 193 (D.C. Cir. 1996), cert. denied, 520 U.S.

BOG CRPPFD C MOMMINOIE Fe ove cic ctcunscccvadans, 21, 25

Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456

oe) Ee POPE hE eer ere er ene eee es ee 21, 22

National Private Truck Council, Inc. v. Oklahoma Tax

Commew a, SES US. SUF C008). viv. on an vce nc cccccne, 3

North Dakota v. United States, 495 U.S. 423 (1990) .... 20

Oklahoma Tax Comm'n v. Jefferson Lines, Inc., 514

Sa MOE CEOS 6550 ny 0 tn ue ielaxnesnuadeec, 22, 23

Olin Corp. v. Collins, 261 Ga. 849, 413 S.E.2d 193

PENNS A tre Reet a aes wee ee ly seu ao.) 10

Oregon Waste Sys., Inc. v. Department of Envtl. Qual-

ae RO I ss wok wie'e i's daWuloea vend cn ce 22

O'Sullivan v. Boerckel, 526 U.S. 838 (1999)............ 15

Owens v. Okure, 488 U.S. 235 (1989).................. 4

Parker v. Illinois, 333 U.S. 571 (1948)............ errr 15

Plantation Pipe Line Co. v. Strickland, 249 Ga. 829,

PE IE OR GOED nis oi vit de stan scuvonaneusees. 10

Prison Health Servs., Inc. v. Georgia Dep’t of Admin.

Servs., 265 Ga. 810, 462 S.E.2d 601 (1995) ......... 10

Rankin v. Composite State Bd. of Med. Exam’rs, 220

Ga. App. 421, 469 S.E.2d 500 (1996)............... 10

Rebich v. Miles, 264 Ga. 467, 448 S.E.2d 192 (1994)....10

Reich v. Collins, 263 Ga. 602, 437 S.E.2d 320 (1993)

(“Reich II”), rev'd, 513 U.S. 106 (1994)............ 7, 8

TABLE OF AUTHORITIES - Continued

Page

Sharp & Dohme, Inc. v. United States, 144 F.2d 456

Se GN SUE Seda be dacbeccenthng subwsessnepesune 16

Southern Elec. Co. v. Stoddard, 269 U.S. 186 (1925) ..... 9

State Bd. of Equal. of Calif. v. Young’s Market Co., 299

A SUED SNe cS shevesec cnn eveshccdcceanecvece 19

Steve M. Solomon, Jr., Inc. v. Edgar, 92 Ga. App. 207,

Se EO UPD bcc Sec iwanadecscccnavenecsnnss 7

Stratton v. Stratton, 239 US. SS (I9IS)......ccsssecees )

Street v. New York, 394 U.S. 576 (1969) .............. 27

Travel Indus. of Kansas, Inc. v. United States, 425

Fa GOT COU Ge BONO haces cnecccincctscosenes 16

Tri-State Bldg. & Supply, Inc. v. Reid, 251 Ga. 38, 302

Pe GOP 00h 66 ead eden cccdeucsvnceneesende 10

United States v. Frankfort Distilleries, 324 U.S. 293

PEPE RK A ONS MOA RAR RRASHOURD OheNORERERs Reine 20

United States v. Jefferson Elec. Mfg. Co., 291 U.S. 386

SRE 6 45.04900556 ch 0 hb 0655 b0 Re CAREK EERE ERR ONSEN 16

United States v. Johnston, 268 U.S. 220 (1925)......... 18

United States v. O’Brien, 391 U.S. 367 (1968) ......... 22

Waldron v. Collins, 788 F.2d 736 (11th Cir. 1986),

cert. Gented, 479 U.S. GB4 (19GB) .....scccccccnsccccs 4

Webb v. Webb, 451 U.S. 493 (1981)........ 6.0.0. eee 15

Wheeler v. Strickland, 248 Ga. 85, 281 S.E.2d 556

GEES Sho csc buon nasdscekednnnbaasaseeedecssendstes 10

Will v. Michigan Dep’t of State Police, 491 U.S. 58

be PPT PeTTeT TT TT TTT ee Teer Eee TTT rere 3

Wisconsin v. J. C. Penney Co., 311 U.S. 435 (1940) .... 24

TABLE OF AUTHORITIES -— Continued

Page

CONSTITUTIONAL PROVISIONS

GA. CONST. art. VI, § V, Pete TES escanisoocecei y

GA. CONST. art. VI, § VI, para. Il........ phos. 9

GA. CONST. art. VI, Sve eee Be. 2, 13

way Gare CNR cic ee 24

U.S. CONST., Commerce Clause................. passim

U.S. CONST., Due Process Clause................. 3, 23

U.S. CONST., Equai Protection Clause......... 3, 21, 23

U.S. CONST., Import-Export Clause................. 27

U.S. CONST., Twenty-first Amendment.......... passim

STATUTES

19 U.S.C. § 3512(b)(2)(A) & (c)...... 00000000000. 2, 24

Pe ee TE Ma sricice cecil peek ee 1, 9

Oe Weis Ih Ws xn tind skn dann apedrecesuat tua 3

Ga. L. 1985, p. 665 .................. 2, 3, 5, 21, 26, 27

Com. L. 200R, mw. BOB ooo c cc eccccccs 2, 8, 11, 12, 13, 17

Senin isc 046 peda ewe'skee aa bucabccis: 2, 16

I I sissy te ce eg 2, 8, 16, 17

ee > | =, 3, 11, 12, 13

CaM. 6 OOOD. oo oc: 3, 4, 8, 23, 24, 27

O.C.G.A. § 3-4-60(2) ..........0.. ees. ene 3, 23

PRIM, © DOG onic ccciscaccccccascoacccc.. 27

xii

TABLE OF AUTHORITIES —- Continued

Page

ye EG CaN a AEURE A SA aN ee kens 65% 2, 6, 16, 28

O.C.G.A. § 3-4-61 (pre-1992 version) .............. 2, 16

oS SE Ree Tere T Tee ete eee 2, 5, 23-24

J ot ES | OTT CRT eT TT Teer 2, 6, 10

ee NRA ee oe eee er 2, 4

siete el Sree eer 2, 18

CRs SP ED § oa Lange tnectdaca cask sence 2, 18

ota ee | rere Tt ere eee ee eee 2, 18

CR Aah, Bs s Gibb e sees eacnsreneeerscanenss 2, 18

Ge Ec hod kc bhcdeeensceeceesseesteawes 2, 18

OLGA, § GBF. oo cc ccscccces 3, 10, 11, 12, 13, le, 17

GR ec, BEE 6 o.c ns onc 6 eee snconstasasensasasces cus 4

MISCELLANEOUS

Ga. S. J. 1985, pp. 1446-55, 2125-28............. ees 5

General Agreement on Tariffs and Trade (“GATT”) . .8, 24

H. Reg. Bevs. Comm. Minutes, 1985 Legis. Sess.

7 fe 0 ye ee ee ee eee 3

PB. Gam. GR. Th. BG yo since nicasscieniccasdessnenas 2

OED. Be. Gh. Ti. TOG acces ceedesenssscevessccnsseseas 2

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

The Petition should be denied due to lack of jurisdic-

tion, adequate and independent state grounds for the

judgment, lack of a properly presented federa! question,

and a correct application by the trial court of this Court's

precedent.

OPINIONS BELOW

The Georgia Supreme Court's unreported Order of

June 30, 2000 states in full: “Upon consideration of the

Motion to Dismiss filed in this case, it is ordered that this

appeal be hereby dismissed.” App. B.! The unreported

Final Order of May 21, 1998 by the Superior Court of

Fulton County is set out in Appendix A.

JURISDICTION

Petitioners do not make clear which Order is sought

to be reviewed. The jurisdictional statement refers to the

Georgia Supreme Court’s Order dismissing the appeal

(on procedural grounds), but their Petition patently

addresses the Superior Court’s Final Order. In any event,

jurisdiction is wanting under 28 U.S.C. § 1257 due to the

lack of a decision on any federal question by the highest

state court in which a decision could be had, and by the

‘ Appendices A-U are attached to the Petition and

Appendices 1-20 are attached to this Brief.

existence of independent and adequate state grounds for

both Orders.?

STATUTES AND OTHER PROVISIONS INVOLVED

In addition to the constitutional provisions and Ga.

L. 1985, p. 665 (Appendix N at N41-N44) appended to the

Petition, the following are also involved and are

appended hereto: GA. CONST. art. VI, § V, para. III; GA.

CONST. art. VI, § VI, paras. II-V; Ga. L. 1992, p. 14583;

O.C.G.A. §§ 3-2-11, 3-2-13, 3-2-14, 3-4-61, 3-4-61 (pre-1992

version), 3-4-152, 5-6-35, 9-3-33, 9-11-26(b)(1) & (3),

9-11-56(e), 24-9-21(2), 24-9-24, 24-9-25; and 19 U.S.C.

§ 3512(b)(2)(A) & (c).

STATEMENT OF THE CASE

After Bacchus Imports, Ltd. v. Dias, 468 U.S. 263 (1984)

invalidated a Hawaii excise tax exemption for local alco-

hol products, Georgia repealed its 1938 liquor tax law4

2 Petitioners’ failure to address known jurisdictional

defects (alluded to in their Motion to Stay Remittitur below)

cannot be remedied by a reply brief allegedly responding to

new points. See U.S. Sup. Ct. R. 14.4 & 15.6.

3 Petitioners’ Appendix N at N21 is a Bill, not the 1992 Act.

4 The 1938 law was subsequently held invalid. James B.

Beam Distilling Co. v. Georgia, 259 Ga. 363, 382 S.E.2d 95 (1989)

(“Beam (Ga. I)”) (prospectively invalid), rev’d & remanded for

consid. of remedial issues, 501 U.S. 529 (1991) (retroactively

invalid).

and enacted a new liquor tax system, imposing two dis-

tinct taxes: an excise tax on the first sale, use, or final

delivery of distilled spirits; and the disputed tax on the

importation of distilled spirits for use, consumption, or

final delivery in the State. Ga. L. 1985, p. 665.

Heublein, Inc., a liquor manufacturer, immediately

filed a declaratory judgment challenge to the 1985 Act on

Commerce Clause, due process, and equal protection

grounds. The tax was upheld, and this Court dismissed

the appeal. Heublein, Inc. v. Georgia, 256 Ga. 578, 351

S.E.2d 190 (1987) (“Heublein”), appeal dismissed, 483 U.S.

1013 (1987).

Despite Heublein, in 1992 and 1993 Heublein, Inc. and

other distilleries located outside Georgia filed administra-

tive claims for refund with the Georgia Revenue Depart-

ment for liquor taxes paid during 1988 through January

31, 1993, again asserting that the “import tax” in O.C.G.A.

§ 3-4-60(2) (Ga. L. 1985, Pp. 665) was invalid.

The two instant suits for refund were filed in Fulton

Superior Court by those liquor manufacturers under

O.C.G.A. §§ 48-2-35 and 3-2-14 after the Revenue Depart-

ment refused to grant the refunds. See R-70-179 &

1439-1737, 9181-9286, 11321-571, 8934-35, 8968-71. The

refund suits also included declaratory, injunctive, and

other related claims for relief, all founded on the asserted

invalidity of the tax under the U.S. and Georgia Constitu-

tions. R-5-56, 1363-1752.5

° An initially pled 42 U.S.C. § 1983 claim was shown by

Respondents not to lie in this case. See Will v. Michigan Dep't of

State Police, 491 U.S. 58 (1989); National Private Truck Council, Inc.

After lengthy discovery, the State moved for sum-

mary judgment on the following facts in the Record.

Georgia Code Section 3-4-60 is both a revenue mea-

sure and an integral component of Georgia’s current reg-

ulatory system to govern the importation and

distribution of alcoholic beverages.® This tax component

and the overall system combine to aid the State’s control

of alcohol. R-8923-28, 8954-55, 8959-60; Heublein, Inc. v.

Georgia, No. D-20634, slip op. at 6 (Fult. Super. Sept. 23,

1985) (R-298-306), aff'd, 256 Ga. 578, 351 S.E.2d 190 (1987),

appeal dismissed, 483 U.S. 1013 (1987).

It was unrebutted that the liquor imported into Geor-

gia creates special problems - including bootlegging and

contraband, and generates greater costs to the State, that

the challenged tax (together with the general excise tax)

promotes temperance, aids the State in regulating and

controlling imported liquor, and helps recoup the State's

greater costs. R-8964, 8923-28, 8937-51, 8954-55, 8959-60,

8906-07, 20829-30.7

v. Oklahoma Tax Comm'n, 515 U.S. 582 (1995) and Waldron v.

Collins, 788 F.2d 736, 738 (11th Cir. 1986), cert. denied, 479 U.S.

884 (1986); Anderson v. Creighton, 483 U.S. 635 (1987); Owens v.

Okure, 488 U.S. 235 (1989) and O.C.G.A. § 9-3-33.

6 Georgia has historically been a “dry” state, in whole or in

part. It currently has a partial-prohibition, three-tier system to

regulate and control importation and distribution of alcohol,

which may only be sold in a city or county after voter approval,

with a license and under strict conditions. R-8923-24; see

O.C.G.A. Title 3.

7 While debating some cost factors, Petitioners admitted

the overall greater costs vis-a-vis imported brands. R-11660.

Reasons for the higher costs include: greater bootleg and

The 1985 Act itself and the Legislative Journals,

where any true legislative history is found, show the

concern over greater costs for imports and alcohol’s

adverse effects.® E.g., H. Reg. Bevs. Comm. Minutes, 1985

Legis. Sess. (Ga. Feb. 11, 1985), R-20797; Ga. S. J. 1985, pp.

1446-55, 2125-28, R-20799-804.

Petitioners benefited from the State’s use of the taxes

to maintain a stable distribution system in “wet” areas, to

provide exclusive sales territories for their products, and

for other State protections. R-8925-28, 8937-51, 8906-07.

See O.C.G.A. § 3-4-152. If the State were now required to

refund these taxes, its governmental programs and ser-

vices would suffer, while Petitioners would obtain a

windfall — because they have already collected these taxes

from the wholesalers (and received the other benefits

from State use of the taxes). R-8906-07, 9071-81, 8925-32,

8937-51. :

During the claim period, liquor taxes were adminis-

tered by the sale of stamps by the Revenue Department.

counterfeit problems, R-8938-39; greater costs to prevent brand

competition in designated sales territories and to control unfair

business practices, R-8939-40, 8945-46; greater volume of

brands, licensees, and marketing combinations, R-8940, 8942;

more travel routes into the State and unknown hours of arrival,

R-8938; and higher expenses for auditing, travel, and other

regulatory requirements, R-8940-45. See also R-8897-8901,

8927-28, 8937-53. Such costs are greater for imported alcohol in

total and on a per liter basis. R-8951.

® The 1985 Act’s stated purposes were “to provide for the

increased cost of administration and collection of revenues; to

aid in the exercise of the police power; [and] to promote

temperance;” and it contained explicit findings as to the greater

costs for regulating imported alcohol. Ga. L. 1985, p. 665.

R-8928. Either a wholesaler or manufacturer could pur-

chase stamps, but when a manufacturer did so, it would

then collect the tax from the Georgia wholésaler — the

ultimately liable party. R-8928-29. Petitioners collected

these taxes by billing their wholesalers for “state

stamps,” “State tax,” or the like. R-6186-88, 9745-11311,

8929-31, 8983-9068.?

The Superior Court entered summary judgment for

the State, ruling that Petitioners lack standing to obtain

the refund sought and that the tax is constitutional under

the Twenty-first Amendment and Heublein. App. A.

Twelve (12) of the 23 Plaintiffs appealed, by filing a

direct appeal to the Georgia Supreme Court, which the

State moved to dismiss solely for failure to comply with

the discretionary appeal statute, O.C.G.A. § 5-6-35. R-1;

Mot. to Dismiss Appeal. No federal issue was raised in

opposition to that motion, which was granted on June 30,

2000. No motion for reconsideration was filed. A motion

to stay remittitur was granted on July 17, 2000. The

petition for certiorari by 7 Plaintiffs was docketed in this

Court on October 3, 2000.

Response To Petitioners’ Statement Of The Case

The evidence does not support the asserted history,

statements, intent, or action by putative legislators, State

officials, and others set out (without supporting cites) at

pages 2-6, 15-16, and elsewhere in the Petition; such

9 This fact situation will not recur. Liquor taxes are now

collected exclusively from wholesalers through a reporting

system. See O.C.G.A. § 3-4-61. Thus, manufacturers no longer

buy tax stamps or collect liquor taxes from the wholesalers.

assertions are Petitioners’ own argued, but unproven

views. Their proffered informal audiotapes of purported

legislator statements - and edited transcript thereof

(adding names and document references as they chose)

from which they quote in the Petition - were neither

authenticated nor reliable. The trial court properly

excluded such “evidence” and other inadmissible docu-

ments. See, e.g., Steve M. Solomon, Jr., Inc. v. Edgar, 92 Ga.

App. 207, 211-12, 88 S.E.2d 167, 171 (1955); Final Order,

App. A at Al4-15; R-21166-68, 20720, 20661-733.1°

The “extensive evidentiary materials,” Pet. at 14,

offered to oppose the State’s summary judgment motion

were mainly boxes of State budget records, which sup-

ported Movants’ explanation of the costs incurred by the

many relevant State (and local) agencies. See R-8946-51,

12814-20660.

Petitioners’ current law firm also represented them in

Heublein and the other prior alcohol suits. Their mislead-

ing comments regarding Beam (Ga. II)" and Reich I[2

wrongly indicate that the error reversed in Reich II was

present in, and that any new procedural bar was applied

in, Beam (Ga. II). This Court reversed Reich II for trying to

read the refund statute to exclude certain constitutional

10 Also, Petitioners mix putative remarks (which cannot be

tied to any version of a Bill or passed Act) about the 1938 law

with purported 1985 debate over new bills. They also wrongly

imply that Beam (Ga. I) (invalidating the 1938 law) related to the

1985 law.

11 James B. Beam Distilling Co. v. Georgia, 263 Ga. 609, 437

S.E.2d 782 (1993) (“Beam (Ga. II)”), cert. denied, 513 U.S. 1056

(1994).

12 Reich v. Collins, 263 Ga. 602, 437 S.E.2d 320 (1993) (“Reich

II”), rev'd, 513 U.S. 106 (1994).

challenges, but after deciding Reich II denied certiorari in

Beam (Ga. II) which had found (as have Georgia’s other

post-Reich II cases) the refund statute available.'s

As the Record and trial court decision show, Peti-

tioners failed to “demonstrate[] that the finding [by the

Legislature of greater regulatory costs] was false,” Pet. at

22; the evidence proved the higher costs.!4 Respondents

never indicated that the per liter cost was less for out-of-

state beverages; the evidence was directly to the contrary.

E.g., R-8951, 15286-90.

The trial court wrote and rendered its own order. The

GATT matter, discussed infra, did not involve O.C.G.A.

§ 3-4-60. And no issue is presented to this Court as to the

1992 Act.35

13 Compare Reich v. Collins, 263 Ga. 602, 437 S.E.2d 320

(1993) (“Reich II”), rev'd, 513 U.S. 106 (1994), with James B. Beam

Distilling Co. v. Georgia, 263 Ga. 609, 610 n.3, 437 S.E.2d 782, 784

n.3 (1993) (“Beam (Ga. II)”), cert. denied, 513 U.S. 1056 (1994).

And in Beam (U.S.) this Court protected a State’s normal

procedural bars to refund suits, James B. Beam Distilling Co. v.

Georgia, 501 U.S. 529, 544 (1991).

14 E.g., Final Order, Finding of Fact No. 6: “The State incurs

greater expenses in regulating imported alcoholic beverages

than domestic alcoholic beverages,” App. A at A6; R-8897-8901,

8927-28, 8937-53 (explaining many reasons for the higher costs,

such as greater contraband problems), 14848-52 (monitoring

and auditing; distance; number of shipments), 14921-27 (greater

volume, brands, licensees, processing costs; multiple divisions

and agencies needed), 15209-10 & 15286-90, 15212-17 (auditors

sent around U.S.).

15 But States can protect their fisc through shorter statutes

of limitation. Further, the 1992 Act was refined in 1993 to add

the refund option. See O.C.G.A. § 3-2-13(c).

REASONS FOR DENYING THE WRIT

A. Petitioners’ Failure To Seek Discretionary

Review By The Georgia Supreme Court

Deprives This Court Of Jurisdiction.

Title 28 U.S.C. § 1257(a) limits this Court’s review to

the judgment of the highest State court in which a deci-

sion could be had.

In this suit for refund raising federal and state consti-

tutional questions, the Georgia Supreme Court was the

highest State court in which a decision could have been

had.16 Review of the trial court’s judgment was available

by application for discretionary appeal; but Petitioners

failed to file such an application, thereby waiving the

opportunity for a State Supreme Court decision and

depriving this Court of jurisdiction. See, e.g., John v. Paul-

lin, 231 U.S. 583, 585-87 (1913) (no jurisdiction where

State Supreme Court did not pass upon any ruling below

because its appellate jurisdiction was not invoked in

accord with state law; “[T]he case stands as though no

appeal had been prosecuted from the judgment rendered

by the trial court” [internal quotes omitted]).17 To avoid

such lack of jurisdiction, in their Motion to Stay Remit-

titur below Petitioners cited inapplicable decisions of this

16 See GA. CONST. art. VI, § VI, para. II.

17 See also Banks v. California, 395 U.S. 708 (1969);

Hammerstein v. Superior Ct. of Calif., 341 U.S. 491 (1951); Gorman

v. Washington Univ., 316 U.S. 98, 100-01 (1942); McMaster v.

Gould, 276 U.S. 284 (1928); Southern Elec. Co. v. Stoddard, 269 U.S.

186, 188-90 (1925); Stratton v. Stratton, 239 U.S. 55, 56-57 (1915)

(no jurisdiction where appellant failed to seek discretionary

review by State Supreme Court).

Court rejecting “arbitrary” state procedural devices used

to thwart review of a federal question.'®

Georgia Code Section 5-6-35(a)(1) has long been held

to require that appeals from superior court decisions

reviewing state administrative agency decisions and the

proceedings leading to such decisions be by application

for discretionary review, regardless of whether declara-

tory, injunctive, or other claims are also brought.!9 The

statute has consistently been applied to decisions review-

ing administrative tax proceedings, including Superior

Court review of tax assessments and of claims for refund

of taxes.?°

Here, Petitioners’ administrative claims for refund

were denied by operation of law one year (or sooner for

18 E.g., Enterprise Irrigation Dist. v. Farmers Mut. Canal Co.,

243 U.S. 157, 164 (1917) (but, “where the non-federal ground has

fair support, we are not at liberty to inquire whether it is right or

wrong, but must accept it”).

19 E.g., Prison Health Servs., Inc. v. Georgia Dep't of Admin.

Servs., 265 Ga. 810, 811, 462 S.E.2d 601, 603 (1995); Miller v.

Georgia Dep't of Pub. Safety, 265 Ga. 62, 453 S.E.2d 725 (1995);

Rebich v. Miles, 264 Ga. 467, 448 S.E.2d 192 (1994); Tri-State Bldg.

& Supply, Inc. v. Reid, 251 Ga. 38, 302 S.E.2d 566 (1983); Rankin v.

Composite State Bd. of Med. Exam’rs, 220 Ga. App. 421, 469 S.E.2d

500 (1996).

20 E.g., Olin Corp. v. Collins, 261 Ga. 849, 413 S.E.2d 193

(1992) (suit for refund under O.C.G.A. § 48-2-35); Miles v.

Collins, 259 Ga. 536, 384 S.E.2d 630 (1989) (appeal to superior

court from tax assessment); Plantation Pipe Line Co. v. Strickland,

249 Ga. 829, 294 S.E.2d 471 (1982) (same); Wheeler v. Strickland,

248 Ga. 85, 281 S.E.2d 556 (1981) (same); Bankers Trust Co. v.

Jackson, 236 Ga. App. 490, 512 S.E.2d 378 (1999) (suit for refund

of taxes); C. W. Matthews Contracting Co. v. Collins, 210 Ga. App.

1, 435 S.E.2d 221 (1993) (same).

some under Ga. L. 1992, pp. 1458, 1464-65) after their

filing with the Revenue Department. See O.C.G.A.

§§ 48-2-35, 3-2-14; Hawes v. Shepherd Constr. Co., 117 Ga.

App. 842, 844-45, 162 S.E.2d 231, 233 (1968). Indeed, that

was the prerequisite for bringing the instant suits for

refund prior to affirmative action by the Revenue Com-

missioner. See O.C.G.A. §§ 48-2-35(b)(4), 3-2-14(b).

The administrative claims were reviewed and audi-

ted by the Department, with additional audit work being

done after the refund suits were filed.2! R-8936. In addi-

tion to Heublein’s having previously upheld the tax, the

Department's audit also found that the claims contained

“duplication, miscalculations, and mathematical errors”

and other flaws and omissions. E.g., R-8936. Thus, the

Department determined that the claims were without

merit and could not be granted, although Petitioners filed

their suits for refund prior to issuance of a written denial.

Pursuant to the refund statutes, the suits were filed at the

point in time when the administrative claims were denied

by operation of law, to seek Superior Court review of the

Department's refusal to grant the refund claims. See

R-16-17, 1370-73. _

Petitioners attached the refund claims to their Com-

plaints and presented such matters to the court for judi-

cial review, which subsequently involved (on motion for

summary judgment) a full legal and factual review of the

refund claims, of the asserted unconstitutionality of the

21 For this group, the Department had to audit 94 claims by

26 companies involving many thousands of manufacturer/

wholesaler transactions over a 5-year period. E.g., R-70-179,

1439-1737, 9749-11311.

tax (which was the legal basis for the claims), and of

Petitioners’ contention that the claimed refunds should

be granted. R-70-179, 1439-1737, 8721-9286, 9741-11312,

8968-71. The Superior Court reviewed and resolved the

merits of the refund claims in its Final Order, by granting

the State’s motion for summary judgment and by finding

no merit to the grounds asserted for the refund claims

and that the other defenses thereto also barred the

requested refunds. App. A. Notable among the bars was

the fact that claimants had already recovered from the

wholesalers the taxes for which they were seeking a

refund, R-6186-88, 8929-31, 8983-9068, 9745-11311, and

thus lacked standing to recover again from the State,

App. A at A5, Al13-A14.

The 1992 amendment to the Alcohol Code reinforces

the applicability of the discretionary appeal statute. Pre-

viously, there was a potential question as to whether the

general refund statute in the Revenue Code, Section

48-2-35, or the one in the Alcohol Code, Section 3-2-14,

was controlling vis-a-vis refund claims for alcohol

taxes.22 The 1992 Act clarified that the Alcohol Code

would henceforth be controlling. To effectuate a prompt

transition, the Act directed that, if no suit for refund or

credit had yet been filed on pending alcohol tax claims,

then any such action was to be brought within 90 days

from the effective date of the Act. Thus, that Act rein-

forced the legal result that pending claims for credit or

refund of alcohol taxes, which had not previously been

granted by the Commissioner, were denied by operation

of law within (either the one year period otherwise

22 Petitioners sued for refund under both provisions.

provided by Sections 48-2-35 and 3-2-14 or) the 90 day

transition period prescribed by the 1992 Act. See Ga. L.

1992, pp. 1458, 1464-65.

The 1992 Act applied to all alcohol tax claims for

credit or refund, and to both affirmatively denied claims

and claims denied by operation of law. After the Act’s

passage, but prior to its effective date, Petitioners made

the instant new filings of administrative claims for

refund, to specifically time their claim options according

to the law (that was in effect at a given time) which they

preferred. See R-8968, 9181-9286, 11321-572. Nevertheless,

under both prior and current law applicable to Peti-

tioners’ claims, the denial by operation of law was dis-

positive here.

The Beam case?3 argued below (see App. U) does not

aid Petitioners, as no discretionary appeal issue was

raised therein. That an appellee in a prior case missed

this defense does not change the Georgia courts’ consis-

tent application of the law whenever the issue has been

raised. Also, the filing of a cross-appeal in Beam is irrele-

vant to the propriety of the initial appeal therein; and

which appellate court has subject matter jurisdiction

under Georgia’s Constitution is distinct from the pro-

cedure for pursuing an appeal.24

23 James B. Beam Distilling Co. v. Georgia, 259 Ga. 363, 382

S.E.2d 95 (1989) (“Beam (Ga. I)”), rev'd & remanded for consid. of

remedial issues, 501 U.S. 529 (1991).

24 City of Atlanta Bd. of Zoning Adjustment v. Midtown North,

Ltd., 257 Ga. 496, 497 n.1, 360 S.E.2d 569, 570 n.1 (1987). Compare

GA. CONST. art. VI, § V, para. III, with GA. CONST. art. VL § VL

paras. II-V.

The fact situations in the cases Petitioners cited

below (see App. U) were different from the instant non-

ad-valorem-tax refund situation. In the Revenue Code

and Alcohol Code refund provisions, the Legislature pre-

scribed the one year period to both provide substantial

time for administrative review of a State tax claim and so

that at the end of said year such claim, if not granted

within that time, would be deemed denied as a matter of

law so as to authorize judicial review. In such instance,

where the Superior Court does thereafter receive and

resolve a suit for refund - as was done here, the discre-

tionary appeal statute is applicable.

Therefore, under state law the Georgia Supreme

Court properly granted the motion to dismiss for failure

to comply with the discretionary appeal statute. Further,

that court’s decisions on the merits in the earlier chal-

lenges to both Georgia’s prior and current alcohol tax

statutes belie any argument that such court has

“thwarted” review of these very federal questions.?5

Petitioners’ failure to present their federal questions

to the Georgia Supreme Court by application for appeal

deprives this Court of jurisdiction to review the trial

court’s judgment.?6

25 See Heublein, 256 Ga. 578, 351 S.E.2d 190 (upholding

current alcohol tax statute), appeal dismissed, 483 U.S. 1013; Beam

(Ga. I), 259 Ga. 363, 382 S.E.2d 95 (holding 1938 alcohol tax

statute prospectively invalid), rev'd & remanded, 501 U.S. 529.

26 Such failure can also be viewed in terms of waiver and as

an independent and adequate state ground (see next section of

this Brief) for the resulting final Superior Court judgment. See

Ellis v. Dixon, 349 U.S. 458, 462 n.5 (1955); Edelman v. California,

B. The Judgment Was Based Upon Adequate And

Independent State Grounds, Including Lack Of

Standing To Obtain A Refund Of Taxes Already

Collected From The Wholesalers.

“This Court will not review a question of federal law

decided by a state court if the decision of that court rests

on a state law ground that is independent of the federal

question and adequate to support the judgment. . . . In

the context of direct review of a state court judgment, the

independent and adequate state ground doctrine is juris-

dictional.” Coleman v. Thompson, 501 U.S. 722, 729 (1991).

See also Michigan v. Long, 463 U.S. 1032, 1038 n.4 (1983);

Herb v. Pitcairn, 324 U.S. 117, 125-26 (1945); Fox Film Corp.

v. Muller, 296 U.S. 207, 210 (1935).

While Petitioners may want to recharacterize this

lawsuit, the gravamen of the action was a suit for refund

or credit of liquor taxes. The state grounds for the trial

court's judgment included these manufacturers’ lack of

standing to obtain a refund of taxes which their whole-

salers had already repaid to Petitioners to satisfy the

344 U.S. 357, 361-62 (1953); Parker v. Illinois, 333 U.S. 571, 575-76

(1948). The discretionary appeal statute furthers legitimate State

interests in the administration of the courts and control of

judicial resources. Cf. O'Sullivan v. Boerckel, 526 U.S. 838, 845,

848 (1999); Lindsey v. Normet, 405 U.S. 56, 78 (1972) (“We do not

question here reasonable [appellate] procedural provisions”).

This Court also lacks jurisdiction to review the Georgia

Supreme Court’s dismissal Order, because it addressed no

federal question; it was based upon established law applying

the State’s discretionary appeal statute to cases of judicial

review of administrative tax proceedings. Cf. Webb v. Webb, 451

U.S. 493, 495-502 (1981).

wholesalers’ own tax liability. Under Georgia law, it is

well established that when a vendor who remits a tax to

the State has collected it from another party, the vendor

does not have standing to recover the tax in a refund

action against the State. See James B. Beam Distilling Co. v.

Georgia, 263 Ga. 609, 437 S.E.2d 782 (1993) (“Beam (Ga.

II)”), cert. denied, 513 U.S. 1056 (1994).27 See also O.C.G.A.

§ 3-2-13(b) (“No person shall receive a credit for taxes

paid or stamps purchased . . . where an amount equal

[there]to . . . has been charged to or paid by any pur-

chaser of the person seeking a refund or credit”).78

Ultimate liability for Georgia’s liquor taxes has

always been on the wholesaler, whatever the arrange-

ment between the manufacturer and wholesaler for pur-

chasing and affixing tax stamps. See O.C.G.A.

§§ 3-2-11(2), 3-4-61, 3-4-61(a)(2) (pre-1992 version). When

a manufacturer would purchase and affix stamps prior to

27 Accord Eimco BSP Services Co. v. Chilivis, 241 Ga. 263, 268,

244 S.E.2d 829, 832 (1978); Blackmon v. Georgia Indep. Oilmen’s

Ass'n, 129 Ga. App. 171, 174-75, 198 S.E.2d 896, 899-900 (1973);

Blackmon v. Premium Oil Stations, Inc., 129 Ga. App. 169, 170, 198

S.E.2d 900, 902 (1973). See also Atlanta Americana Motor Hotel

Corp. v. Undercofler, 222 Ga. 295, 149 S.E.2d 691 (1966).

28 The Georgia rule is similar to that under federal refund

statutes, upon which O.C.G.A. § 48-2-35 was modeled. See Hawes

v. Bigbie, 123 Ga. App. 122, 122, 179 S.E.2d 660, 661-62 (1970);

United States v. Jefferson Elec. Mfg. Co., 291 U.S. 386, 400, 402-03

(1934) (“We cannot assent to the view that a court

may .. . award[] the taxpayer a refund without inquiring whether

he has borne the burden of the tax or has reimbursed himself by

collecting it from the purchaser”); Travel Indus. of Kansas, Inc. v.

United States, 425 F.2d 1297, 1300 (10th Cir. 1970); Sharp & Dohme,

Inc. v. United States, 144 F.2d 456, 458-59 (3d Cir. 1944).

shipment to the Georgia wholesaler, the manufacturer

was the State’s agent in collecting the tax from the whole-

saler. The price of the alcohol product to the wholesaler

did not change, and the wholesaler did not pay the tax to

acquire the goods, but to Satisfy its own tax liability.

Thus, when “the manufacturer remits tax payment to the

revenue commissioner and subsequently, in an itemized

billing statement, requires the wholesaler to remit pay-

ment for ‘state stamps’ or ‘state tax,’ it is the wholesaler

which is the taxpayer,” and the manufacturer lacks stand-

ing to obtain the tax from the State. Beam (Ga. II), 263 Ga.

at 611, 437 S.E.2d at 784.

Petitioners recovered the claimed taxes from their

wholesalers in that manner. R-6186-89, 8929-31, 8983-85,

9745-11311, 8989-9015. Thus, Petitioners were not the

“taxpayer” and “lack standing to obtain a refund from

the State of the taxes in question, because they have

already recovered them from the liable Parties, i.e., the

Georgia wholesalers.” Final Order, App. A at A13-14;

O.C.G.A. §§ 48-2-35(a), 3-2-13(b).29

In addition, portions of these refund claims were

barred by the State’s three-year statute of limitations. See

O.C.G.A. § 48-2-35(b)(1); Ga. L. 1992, pp. 1458, 1464-65;

R-8934-35, 8968, 11321-572.

29 The standing bar serves legitimate State interests,

including protection of the public treasury against claims that

would result in unjust enrichment. It does not preclude recovery

for absorbed taxes, but only for taxes collected by the seller

from the ultimately liable purchaser, thus preventing a double

recovery of the taxes by a seller.

Therefore, the judgment for the State in this suit for

refund rests on adequate and independent state grounds.

See also DeSaussure v. Gaillard, 127 U.S. 216, 232-34 (1888).

C. The Asserted Federal Questions Are Not

Properly Presented By The Facts In The Record.

“This Court has often refused to decide constitutional

questions on an inadequate record,” Ellis v. Dixon, 349

U.S. 458, 464 (1955), and will “not grant a certiorari to

review evidence and discuss specific facts,” United States

v. Johnston, 268 U.S. 220, 227 (1925).

The heart of this refund suit was Petitioners’

renewed Commerce Clause argument that the Georgia tax

had a discriminatory purpose or effect. However, their

proffered evidence to support such allegation was inad-

missible and was excluded by the trial court as hearsay,

unauthenticated documents, or otherwise inadmissible.

See O.C.G.A. § 9-11-56(e) (“opposing affidavits shall

. set forth such facts as would be admissible in the

evidence”); Butler v. Bolton Rd. Partners, 222 Ga. App. 791,

794, 476 S.E.2d 265, 267 (1996) (“hearsay evidence, unsup-

ported conclusions, and the like, must be stricken or

eliminated from consideration in a motion for summary

judgment”).5°

30 Due to Petitioners’ waiver of proof, all excluded

documents lacked authentication; they were also hearsay and

each inadmissible for further reasons (like attorney-client

privilege, work product, conclusions, etc.). See, e.g., R-20720,

21467-68; O.C.G.A. §§ 24-9-21(2), 24-9-24, 24-9-25, 9-11-26(b)(1)

& (3); Achor Ctr., Inc. v. Holmes, 219 Ga. App. 399, 401, 465 S.E.2d

451, 454 (1995) (unauthenticated transcript may not be

As to their other federal arguments against the tax,

Petitioners either had no evidence or also offered inad-

missible, excluded evidence.

Therefore, since the Record is inadequate to support

Petitioners’ arguments, the asserted federal questions are

not properly presented to this Court for review.3!

D. The Trial Court Correctly Upheld The Tax

Under The Twenty-First Amendment And This

Court’s Precedents.

The Georgia tax is a valid exercise of core Twenty-

first Amendment State powers.32 That Amendment par-

ticularly limits the Commerce Clause as to alcohol impor-

ted into a State. E.g., State Bd. of Equal. of Calif. v. Young’s

Market Co., 299 U.S. 59, 62-63 (1936) (“Can it be doubted

that a State might . . . discourage importation by laying a

considered on summary judgment). The hazards of considering

such “evidence” were apparent. Petitioners’ purported

legislative tapes and edited transcripts thereof were unofficial,

unverified, and involved only portions of alleged debates in the

Georgia House (and not the Senate) in 1985.

31 Petitioners’ failure to satisfy basic rules of evidence is

also a supporting, adequate and independent ground for the

trial court’s rejection of the constitutional arguments, all of

which were founded upon unproven factual allegations. See,

e.g., App. A at A14-A15; R-20720.

32 Section 2 of the Twenty-first Amendment provides:

The transportation or importation into any State,

Territory, or possession of the United States for

delivery or use therein of intoxicating liquors, in

violation of the laws thereof, is hereby prohibited.

heavy impost[?]”; upholding State fee for privilege of

importing alcohol).

The import tax implicates central concerns of the

Twenty-first Amendment, and thus outweighs any “dor-

mant” Commerce Clause considerations. Heublein, 256

Ga. at 584-85, 351 S.E.2d at 195-96 (reviewing this very

tax and applying U.S. Supreme Court’s precedents),

appeal dismissed, 483 U.S. 1013. See also 44 Liquormart, Inc.

v. Rhode Island, 517 U.S. 484, 516, 532 (1996) (Twenty-first

Amendment iimits dormant Commerce Clause’s effect on

State’s “power over the delivery or use of intoxicating

beverages within its borders”); United States v. Frankfort

Distilleries, 324 U.S. 293, 299-300 (1945) (Amendment

grants State “full authority to determine the conditions

upon which liquor can come into its territory”).

33 See also North Dakota v. United States, 495 U.S. 423, 431

(1990) (“within its . . . jurisdiction, the State has ‘virtually

complete control’ over the importation and sale of liquor”);

Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 712 (1984) (States

have “power to impose burdens on interstate commerce

in . . . liquor that, absent the Amendment, would clearly be

invalid under the Commerce Clause”); California Retail Liquor

Dealers Ass'n v. Midcal Aluminum, Inc., 445 U.S. 97, 107 (1980)

(“Amendment gives the States control over the ‘transportation

or importation’ of liquor into their territories. . . . We should

not . . . lose sight of the explicit grant of authority”); Heublein,

Inc. v. South Carolina Tax Comm'n, 409 U.S. 275, 283 (1972) (“a

State is totally unconfined by traditional Commerce Clause

limitations when it restricts the importation of intoxicants

destined for use, distribution, or consumption within its

borders” [internal quotes omitted]).

‘In contrast to the Hawaii law held invalid in Bacchus

because it was enacted solely for protection of local prod-

ucts, the Georgia Act was enacted to provide for the

increased costs of alcohol regulation, to aid in the exer-

cise of the police power, and to promote temperance. Ga.

L. 1985, p. 665; Heublein, 256 Ga. at 982-85, 351 S.E.2d at

194-96. It was also based upon express legislative find-

ings of greater State costs for imported alcohol. Ga. L.

1985, p. 665; Heublein, 256 Ga. at 584-85, 351 S.E.2d at

195-96.

Petitioners’ assertion of a “tainted” motive by a lob-

byist or individual legislator, and disagreement with the

legislative findings, is negated by the Act itself and the

actual evidence (cited supra). Moreover, even where an

improper motive is alleged, a State alcohol statute is valid

when it implicates a Twenty-first Amendment concern.

Milton S. Kronheim & Co. v. District of Columbia, 91 F.3d

193, 203-04 (D.C. Cir. 1996), cert. denied, 520 U.S. 1186

(1997). See also Bacchus, 468 U.S. at 275-76; Lanier v. City of

Newton, 842 F.2d 253, 256 n.3 (11th Cir. 1988).

Also, in Commerce Clause and equal pYotection anal-

ysis “this Court will assume that the objectives articu-

lated by the legislature are actual purposes of the statute,

unless an examination of the circumstances forces us to

conclude that they could not have been a goal of the

legislation.” Minnesota v. Clover Leaf Creamery Co., 449

U.S. 456, 463 n.7, 471 n.15 (1981) (internal quotes omit-

ted).*4 More broadly,

%4 The Court further noted: “We will not invalidate a state

Statute . . . merely because some legislators sought to obtain

[i]t is a familiar principle of constitutional law

that this Court will not strike down an other-

wise constitutional statute on the basis of an

alleged illicit legislative motive. . .. What moti-

vates one legislator to make a speech about a

statute is not necessarily what motivates scores

of others to enact it.

United States v. O'Brien, 391 U.S. 367, 383-84 (1968).55

Further, the instant tax helps recover the increased

costs generated by the imported liquor. See Oregon Waste

Sus., Inc. v. Department of Envtl. Quality, 511 U.S. 93, 101

n.5 (1994). Petitioners disagree with the amount of the

tax, but that is a matter of legislative inquiry concerning

the mere rate of the tax. E.g., Commonwealth Edison Co. v.

Montana, 453 U.S. 609, 620-21, 627 & n.16 (1981). And,

since the tax only applies to importation for use in Geor-

gia, its relationship to local activities is more than ample.

See id. at 625-26; Oklahoma Tax Comm'n v. Jefferson Lines,

Inc., 514 U.S. 175, 199-200 (1995).

The foreign Commerce Clause argument is also with-

out merit, and it, too, was factually and legally rebutted

votes for the measure on the basis of its beneficial side effects on

state industry.” Id. See also FCC v. Beach Communications, Inc., 508

U.S. 307, 315 (1993) (“[I]t is entirely irrelevant for constitutional

purposes whether the conceived reason for the challenged

distinction actually motivated the legislature. . . . [A] legislative

choice is not subject to courtroom factfinding”).

35 Accord Daniel v. Family Sec. Life Ins. Co., 336 U.S. 220, 224

(1949) (“It is said that the ‘insurance lobby’ obtained this statute

from the South Carolina legislature. But a judiciary must judge

by results, not by the varied factors which may have determined

legislators’ votes. We cannot undertake a search for motive in

testing constitutionality”).

in Respondents’ summary judgment motion. E.g.,

R-8721-9286, 9741-11312, 8940-41 (Petitioners’ brands sold

i. Georgia came from U.S. warehouses). Petitioners had

no factual response. See Cagle v. Davis, 236 Ga. App. 657,

659, 513 S.E.2d 16, 19 (1999) (in response to summary

judgment motion, plaintiff must present contravening

evidence or suffer judgment). They merely asserted the

two foreign Commerce Clause considerations, see, e.g., Itel

Containers Int'l Corp. v. Huddleston, 507 U.S. 60, 74-76

(1993); but since the Section 3-4-60(2) tax is imposed only

with respect to goods coming to rest in Georgia, it cannot

generate multiple taxation on the same transaction, nor

does it prevent the federal government from speaking

with one voice. See also Container Corp. of Am. v. Franchise

Tax Bd., 463 U.S. 159, 194 (1983) (tax that “merely has

foreign resonances” not invalid). Moreover, the Twenty-

first Amendment expressly empowers the States to con-

trol the importation of alcohol therein, and Georgia is the

only State that can tax “importation” into its territory for

consumption there. Cf. Oklahoma Tax Comm'n v. Jefferson

Lines, Inc., 514 U.S. at 184-85 (upholding sales tax on local

sale of bus ticket for interstate travel).

In addition, the equal protection (and a due process)

argument was rejected in Heublein. See also Mahoney v.

Joseph Triner Corp., 304 U.S. 401 (1938). Section 3-4-60(2) is

both regulatory and economic in scope, and is rationally

related to a legitimate purpose. See Heublein, supra. See

generally Madden v. Kentucky, 309 U.S. 83, 87-90 (1940).

And Georgia provides many governmental benefits to

these liquor manufacturers, including exclusive sales ter-

ritories and specific protections for their registered

brands. R-8923-28, 8937-51, 8956, 8960; O.C.G.A.

§ 3-4-152. See Wisconsin v. J. C. Penney Co., 311 U.S. 435,

444-45 (1940).

While effectively abandoned below, the assertion

about a Canada-U.S. trade dispute is incorrect and irrele-

vant. The purported ruling under the General Agreement

on Tariffs and Trade (“GATT”) did not address O.C.G.A.

§ 3-4-60; and federal law negates usage of the GATT by a

private party to challenge a State law, 19 U.S.C.

§ 3512(b)(2)(A) & (c). Further, no GATT panel ruling

could override the Twenty-first Amendment of the U.S.

Constitution.*

E. There Is No Merit To Petitioners’ Other

Arguments.

The arguments to avoid the Twenty-first Amendment

and to posit conflicting decisions or new “subsidiary”

issues for this Court to resolve are without merit. As

shown therein, Ivey v. Bacardi Imports, Co., 541 So.2d 1129

(Fla. 1989) involved a Florida law different from Geor-

gia’s 3-4-60 and not limited to importation for use, con-

sumption, or final delivery into the State like Section

3-4-60; and its stated purposes did not include promoting

36 While the grounds in the text are sufficient to negate

Petitioners’ constitutional arguments, if certiorari were to be

granted then the State will also show that under both the

language and the history of the Twenty-first Amendment

Bacchus was wrongly decided and that there is no “dormant” or

“negative” Commerce Clause restriction upon a State’s laws

pertaining to alcoholic beverages within its territory. See also

U.S. CONST. amend. X.

temperance nor aiding State police power - core Twenty-

first Amendment concerns. The local alcohol industry

situation and regulatory System were different, and there

was no indication of greater costs to control imports, and

no distinct problems caused by them. Here, the uncon-

tradicted evidence showed the massive bootleg, contra-

band, and other greater (and greater cost-producing)

problems caused in Georgia by the imports. E.g., R-8964,

8937-51, 8923-28, 8954-56, 8960, 20822-25, 20828-30.37

Further, there was no decision here by the Georgia

Supreme Court on any federal question; and Petitioners’

effort to pit the prior Ivey decision against the prior

Heublein decision is not an appropriate basis for certiorari

in the instant case. Similarly, the cited decisions of the

Federal Courts of Appeals are neither reviewable nor in

need of review in the instant case.38 This Court does not

37 While not relevant in the Twenty-first Amendment

context, it is noteworthy that there is no adequate lesser

alternative to the Georgia import tax. R-8954-56; cf. Maine v.

Taylor, 477 U.S. 131, 138 (1986). The only other means of

alleviating the special problems and costs caused in Georgia by

the imports would be to ban them in part or in whole - which

would, also, be authorized by the Twenty-first Amendment, but

be an infinitely greater burden than the tax. See Department of

Rev. v. James B. Beam Distilling Co., 377 U.S. 341, 346 (1964) (“We

have no doubt that under the Twenty-first Amendment [the

State] could... completely prohibit the importation of some

intoxicants, or of all intoxicants”).

38 Bridenbaugh v. Freeman-Wilson, Nos. 00-1044 & 00-1046,

2000 U.S. App. LEXIS 22991 (7th Cir. Sept. 13, 2000) upheld a

restriction on wine shipments from outside the State directly to

unlicensed consumers. Kronheim, discussed in the text supra,

upheld a local warehousing requirement. While Respondents

disagree with Cooper v. McBeath, 11 F.3d 547 (5th Cir. 1994),

render advisory opinions. Coleman v. Thompson, 501 U.S.

at 729; Conway v. California Adult Auth., 396 U.S. 107

(1969).

The cases in footnotes 14 and 16, such as Foster-

Fountain Packing Co. v. Haydel, 278 U.S. 1 (1928) and 324

Liquor Corp. v. Duffy, 479 U.S. 335 (1987), cited for means

of examining the purpose of a State statute challenged

under the Commerce Clause and in a Twenty-first

Amendment context, do not help Petitioners. Not only

did the 1985 Georgia Act show its purposes, but Respon-

dents also proved that the legislative findings were cor-

rect and that the Act furthered the stated Twenty-first

Amendment purposes. For both jurisprudential and evi-

dentiary reasons, Petitioners’ excluded evidence, consist-

ing mainly of unauthenticated, alleged individual

legislator statements, could not refute the Act’s stated

purposes and proven substance. Under existing prece-

dent, and under any theoretical standard Petitioners

posit, the trial court’s decision was correct; and their

asserted uncertainty about how to pursue a Commerce

Clause challenge is abstract. That the trial court did not

recite Petitioners’ analytical approach in its order does

not affect the correctness of its ruling.

The other cited alcohol cases involved issues of com-

peting federal regulatory power over commerce or other

statutes and situations different from Georgia’s.°? Fur-

ther, Georgia’s statute is unrebuttedly supported by the

which invalidated a particular residency requirement for an

alcohol license, it, too, provides no basis for granting certiorari.

39 E.g., Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691 (1984),

finding State ban on cable TV alcohol advertising pre-empted

by federal law regulating national cable systems; and Healy v.

additional purpose of promoting temperance. Ga. L. 1985,

P. 665; R-8925-27, 8954-55, 8959-60, 20829-39.

There is no merit to the other implied issues:

1. While subsection (3) of O.C.G.A. § 3-4-60, relating

to spirits manufactured in Georgia for sale there, is con-

Stitutional, Petitioners failed to show injury from or

standing to challenge that provision; and after Respon-

dents moved for summary judgment, Petitioners essen-

tially abandoned that issue, failing to factually and

legally support it or to obtain a ruling on it — which

negates their argument now. ‘Cf. Street v. New York, 394

U.S. 576, 581-82 (1969); Cramp v. Board of Pub. Instruction

of Orange County, 368 U.S. 278, 282-83 (1961); Hambrick v.

B. G. Swing Games Mgmt., Inc., 267 Ga. 597, 481 S.E.2d 816

(1997).

2. The tax is not a prohibited “impost” under the

Import-Export Clause. See Michelin Tire Corp. v. Wages, 423

U.S. 276 (1976). Respondents showed below how such

issue had no factual or legal merit. E.g., R-8721-9286,

9741-11312, 8940-41. Again, Petitioners had no factual

response. See Cagle v. Davis, 236 Ga. App. at 659, 513

S.E.2d at 19. They only asserted the policy considerations

under such Clause, which are not violated here. See Itel

Containers Int'l Corp. v.-Huddleston, 507 U.S. at 76-77;

Limbach v. Hooven & Allison Co., 466 U.S. 353 (1984). The

Beer Inst., Inc., 491 U.S. 324 (1989) and Brown-Forman Distillers

Corp. v. New York State Liquor Auth., 476 U.S. 573 (1986),

involving State laws restricting alcohol prices outside the State.

But the Twenty-first Amendment “gives the States wide latitude

to regulate the importation and distribution of liquor within

their territories.” Brown-Forman, 476 U.S. at 584.

tax incidence occurs at the wholesale tier inside the State,

R-8928-29, O.C.G.A. § 3-4-61; and, as discussed earlier,

the tax is also authorized by the Twenty-first Amend-

ment.

CONCLUSION

The Petition for Writ of Certiorari should be denied.

Bruce M. EDENFIELD

Special Assistant

Attorney General

Gray, Hedrick &

Edenfield, L.L.P.

2408 Mt. Vernon Road

Atlanta, Georgia 30338

(770) 351-0090

Respectfully submitted,

Davip A. RUNNION

Senior Assistant Attorney

General

Counsel of Record

THURBERT E. BAKER

Attorney General

Daniet M. Formsy

Deputy Attorney General

Georgia Department of Law

132 State Judicial Building

40 Capitol Square, S.W.

Atlanta, Georgia 30334-1300

(404) 651-6148

Attorneys for Respondents State of Georgia

and the State Officials

No. 00-493

In The

Supreme Court of the United States

AUSTIN, NICHOLS & CO., INCORPORATED;

BACARDI IMPORTS, INC.; JIM BEAM BRANDS CO.;

BROWN-FORMAN CORPORATION; DAVID

SHERMAN CORPORATION; REMY AMERIQUE, INC.;

and SOUTHERN WINE & SPIRITS OF AMERICA,

INC., d/b/a Shaw Ross International Importers,

Petitioners,

Vv.

STATE OF GEORGIA; ZELL MILLER, individually and

as Governor of the State of Georgia; MARCUS E.

COLLINS, individually and as Georgia State Revenue

Commissioner; and CLAUDE L. VICKERS, individually

and as Deputy Commissioner of the Administration

Division of the Department of Administrative Services

and as Director of the Fiscal Division of the

Department of Administrative Services and as

State Treasurer for the State of Georgia,

Respondents.

On Petition For Writ Of Certiorari

To The Supreme Court Of Georgia

APPENDIX TO BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

TABLE OF CONTENTS OF APPENDIX

Page

Appendix 1 - GA. CONST., Art. VI, Sec. V, Para.

WP SUAATAGSN EASA COOMA Read Ween Dokeduiasceelok edo 1-1

— 2 - GA. CONST., Art. VI, Sec. VI, Para

POVPES LOLA NEh Cian S hahah dann Wk ouae tad enidacine 2-1

PU FES MANNA Kun bhleL wheat albtiiuts Dania vais cu 3-1

hdd EARL L ELT ETT Se ECC CE eT ee ner 4-1

——e 5S - GA. CONST., Art. VI, Sec. VI, Para es

Appendix 6 — Ga. Laws 1992, pp. 1458-1465......... 6-1

Appendix 7 - O.C.G.A. § 3-2-11 .................... 7-1

Appendix 8 - O.C.G.A. § 3-2-13 .................... 8-1

Appendix 9 - O.C.G.A. § 3-2-14 .................... 9-1

Appendix 10 - O.C.G.A. § 3-4-61 ................. 10-1

Appendix 11 - O.C.G.A. § 3-4-61 (pre-1992 ver-

a PE ee eee Ee EN 11-1

Appendix 12 - O.C.G.A. § 3-4-152 ................ 12-1

Appendix 13 - O.C.G.A. § 5-6-35 ................. 13-1

Appendix 14 - O.C.G.A. § 9-3-33 ................. 14-1

Appendix 15 - O.C.G.A. § 9-11-26(b)(1) & (3)..... 15-1

Appendix 16 - O.C.G.A. § 9-11-56(e).............. 16-1

Appendix 17 - O.C.G.A. § out. EEE TT Oe 17-1

Appendix 18 - O.C.G.A. § 24-9-24................ 18-1

Appendix 19 - O.C.G.A. § 24-9-25 ................ 19-1]

Appendix 20 - 19 U.S.C. § 3512(b)(2)(A) & (c) .... 20-1

1-1

APPENDIX 1

GA. CONST., Art. VI, Sec. V, Para. II. Jurisdiction of

Court of Appeals; decisions binding.

The Court of Appeals shall be a court of review and

shall exercise appellate and certiorari jurisdiction in all

cases not reserved to the Supreme Court or conferred on

other courts by law. The decisions of the Court of

Appeals insofar as not in conflict with those of the

Supreme Court shall bind all courts except the Supreme

Court as precedents.

2-1

APPENDIX 2

GA. CONST., Art. VI, Sec. VI, Para. II. Exclusive appel-

late jurisdiction of Supreme Court.

The Supreme Court shall be a court of review and

shall exercise exclusive appellate jurisdiction in the fol-

lowing cases:

(1) All cases involving the construction of a treaty

or of the Constitution of the State of Georgia or of the

United States and all cases in which the constitu-

tionality of a law, ordinance, or constitutional provision

has been drawn in question; and

(2) All cases of election contest.

3-1

APPENDIX 3

GA. CONST., Art. VI, Sec. VI, Para. III. General appel-

late jurisdiction of Supreme Court.

Unless otherwise provided by law, the Supreme

Court shall have appellate jurisdiction of the following

classes of cases: |

(1)

(2)

(3)

(4)

(5)

(6)

(7)

Cases involving title to land;

All equity cases;

All cases involving wills;

All habeas corpus cases;

All cases involving extraordinary remedies;

All divorce and alimony cases;

All cases certified to it by the Court of

Appeals; and

(8) All cases in which a sentence of death was

imposed or could be imposed.

Review of all cases shall be as provided by law.

FE PT Prag rer

ee ee ee ee ee ea TT ee

sl th acai a a NPT a Ee en eT OR eae ee eR -

oe ee. | hl luce, ee

4-1

APPENDIX 4

GA. CONST., Art. VI, Sec. VI, Para. IV. Jurisdiction over

questions of law from state or federal appellate courts.

The Supreme Court shall have jurisdiction to answer

any question of law from any state or federal appellate

court.

5-1

APPENDIX 5

GA. CONST., Art. VI, Sec. VI, Para. V. Review of cases

in Court of Appeals.

The Supreme Court may review by certiorari cases in

the Court of Appeals which are of gravity or great public

importance.

6-1

APPENDIX 6

Ga. Laws 1992, pp. 1458-1465.

ALCOHOLIC BEVERAGES -

REFUNDS OR CREDITS FOR TAXES;

MANNER OF COLLECTING TAXES.

Code Sections 3-2-13, 3-2-14, 3-4-61, and 48-2-35

Amended.

No. 1036 (Senate Bill No. 774).

AN ACT

To amend Title 3 of the Official Code of Georgia

Annotated, relating to alcoholic beverages, so as to

change the provisions for and limitations upon refunds or

credits for taxes on alcoholic beverages; to change provi-

sions relating to the manner of collecting state excise

taxes on distilled spirits; to amend Code Section 48-2-35

of the Official Code of Georgia Annotated, relating to

refund of taxes, so as to clarify that said Code section

does not apply to taxes paid or stamps purchased for

alcoholic beverages; to provide an effective date; to pro-

vide for applicability; to repeal conflicting laws; and for

other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF

GEORGIA:

Section 1. Title 3 of the Official Code of Georgia

Annotated, relating to alcoholic beverages, is amended by

striking Code Section 3-2-13, relating to the issuance of

refunds or credits for taxes paid on alcoholic beverages or

stamps purchased, and inserting in lieu thereof a new

Code Section 3-2-13 to read as follows:

roerem aia aces eI ee = PURI Gath ies ekcap ec AN BAY ATV es HED I ee ee

6-2

“3-2-13. (a) Notwithstanding any other provi-

sion of this title or any other title to the contrary, the

provisions of this article shall provide the exclusive

remedy and procedure for seeking and obtaining any

and all refunds or credits for taxes paid on alcoholic

beverages and for stamps purchased in payment of

taxes on alcoholic beverages. No refund in the form of

a disbursement from the state treasury shall be allowed

for any such taxes or payments. No credit shall be

allowed for any such taxes or payments unless

expressly authorized by this article.

(b) The commissioner may issue credits for taxes

paid by or due from a wholesaler or, in the case of

taxes on distilled spirits, may issue credits for stamps

purchased by a manufacturer, distiller, or wholesaler

when it is shown to the commissioner’s satisfaction

that any of the following events have occurred:

(1) Alcoholic beverages have been received by

the wholesaler through an error in shipment and the

alcoholic beverages are returned to the shipper prior

to any sale by the wholesaler in this state;

(2) Alcoholic beverages ordered by the whole-

saler have been destroyed in transit prior to entry

into the wholesaler’s warehouse or storage area;

(3) Alcoholic beverages which are unfit for

consumption upon receipt have been received by the

wholesaler and the alcoholic beverages are returned

to the shipper or destroyed prior to any sale by the

wholesaler in this state;

(4) Alcoholic beverages have been destroyed

while in the possession of a wholesaler within the

state by an act of God, such as fire, flood, lightning,

wind, or other natural calamity;

6-3

(5) Wines have been sold by the wholesaler for

delivery and consumption outside the state, pro-

vided the sale and delivery shall in all respects com-

ply with the requirements of Code Section 3-6-26.1;

(6) Taxes were paid or stamps were purchased

under a statute expressly held to be unconstitutional

by a court of last resort and the payments were made

under protest and the ground of the protest was the

same as the basis for the ruling of unconstitutionality

by the court of last resort.

or stamps purchased in any case where an amount

equal to the amount of taxes paid or to the cost of the

stamps purchased has been charged to or paid by any

purchaser of the person seeking a refund or credit.

When an applicant is issued a credit for taxes paid or

stamps purchased, in every case where an amount

equal to the amount of taxes paid or cost of the stamps

purchased has been charged to or paid by any pur-

chaser of the applicant, the applicant shall refund or

credit to the purchaser or customer an amount equal to

the credit allowed by the commissioner.”

Section 2. Said title is further amended by striking

Code Section 3-2-14, relating to limitations on refunds,

and inserting in lieu thereof a new Code Section 3-2-14 to

read as follows:

“3-2-14. (a) No credit for taxes paid on alcoholic

beverages or for stamps purchased in payment of taxes

on alcoholic beverages shall be allowed unless an

application for credit is filed with the commissioner

within 90 days from the date payment is received by

the commissioner. If, in the opinion of the commis-

sioner, an application for credit of taxes paid pursuant

to this title contains a false statement, the application

6-4

shall be denied. When an applicant is indebted to the

state or an applicant is in violation of this title, the

commissioner shall decline to approve the credit until

the applicant has complied with the laws of this state.

In no event shall interest be allowed on any refund or

credit for taxes paid on alcoholic beverages or for

stamps purchased in payment of taxes on alcoholic

beverages. Nothing contained in this Code section shall

be construed so as to allow for a credit or refund of any

license fee lawfully due or paid under this title.

(b) Each application for credit shall be filed in

writing in the form and containing such information as

the commissioner may reasonably require. The com-

missioner or his delegate shall consider information

contained in the application, together with such other

information as may be available, and shall approve or

disapprove the application and notify the applicant of

his action. Any applicant whose claim is denied by the

commissioner or his delegate or whose claim is not

decided by the commissioner or his delegate within

one year from the date of filing the claim shall have the

right to bring an action for a credit in the Superior

Court of Fulton County. No action or proceeding for

the recovery of a credit shall be cominenced before the

expiration of one year from the date of filing the appli-

cation unless the commissioner or his delegate renders

a decision on the application within that time, nor shall

any action or proceeding be commenced after the

occurrence of the earlier of (1) the expiration of one

year from the date the claim is denied, or (2) the

expiration of two years from the date the application

was filed. The time for filing an action for the recovery

of a credit may be extended for such period as may be

agreed upon in writing between the applicant and the

commissioner during the period authorized for bring-

ing an action or any extension thereof. In the event any

application is approved and the taxpayer has not paid

6-5

other state taxes which have become due, the commis-

sioner may set off the unpaid taxes against the credit.

When the setoff authorized in this Code section is

exercised, the credit shall be deemed granted and the

amount of the setoff shall be considered for all pur-

poses as a payment toward the particular tax debt

which is being set off. Any excess credit properly

allowable under this Article which remains after the

setoff has been applied may be credited to the tax-

payer.”

Section 3. Said title is further amended by striking

Code Section 3-4-61, relating to the collection of state

excise taxes on distilled spirits, which reads as follows:

“3-4-61. (a) Except as may otherwise be autho-

rized in this title, the state excise taxes imposed by this

part shall be collected in the following manner:

(1) The commissioner shall prescribe suitable

stamps in proper denominations denoting the pay-

ment of taxes imposed by this part, and the tax

provided shall be administered and collected by

means of adhesive stamps lithographed with an

intricate geometric design on safety paper or in a

manner as may be prescribed by the commissioner;

(2) Before shipment or delivery to any retailer,

every manufacturer or wholesaler shall affix or cause

to be affixed to each bottle or container of distilled

spirits a stamp indicating the payment of the proper

amount of tax; and

(3) All manufacturers, distillers, or wholesalers

who sell, ship, or deliver to each other shall affix or

cause to be affixed to each bottle or container of

distilled spirits a stamp indicating the payment of

the proper amount of tax.

aE OP BOG AROSE TE eer Be nee, Cee eee

AP Se Deer ae eee ee te Te. or

6-6

(b) The commissioner may at his discretion

replace mutilated stamps when fully satisfied that the

stamps have not been used.”,

and inserting in lieu thereof a new Code Section 3-4-61 to

read as follows:

“3-4-61. (a) Except as may otherwise be autho-

rized in this title, the state excise taxes imposed by this

part shall be paid by the licensed wholesale dealer in

distilled spirits.

(b) The taxes shall be paid on or before the tenth

day of the month following the calendar month in

which the beverages are sold or disposed of within the

particular municipality or county by the wholesale

dealer.

the excise tax shall file a report itemizing for the pre-

ceding calendar month, by size and type of container,

the exact quantities of distilled spirits sold during the

month within the state. The licensee shall file the report

with the commissioner.

(d) The wholesaler shall remit to the commis-

sioner the tax imposed by the state on the tenth day of

the month following the calendar month in which the

sales were made.

(e) In order to phase in the reporting system of

excise tax payment for distilled spirits and alcohol:

(1) The commissioner shall direct that no later

than January 31, 1993, all persons who made excise

tax payments in respect of distilled spirits and alco-

hol sales in the State of Georgia during the calendar

year 1992 shall make a one-time deposit equal to the

amount of 25 percent of said tax payments. This one-

time advance shall be repaid in full by the state in

equal semiannual installments over the period of 24

6-7

months following August 1, 1993; except that, in the

event wholesalers made payments as provided for in

this paragraph, the commissioner shall repay such

wholesalers in the form of semiannual credits against

future tax liability;

(2) On February 1, 1993, or as soon thereafter

as practicable, the commissioner shall direct that an

inventory be taken of stamped merchandise and tax

stamps held by manufacturers, shippers, and whole-

salers. The commissioner shall issue refunds to all

manufacturers and shippers for the value of tax

stamps in their possession on February 1, 1993, to be

paid in 12 equal installments beginning on August 1,

1993. The commissioner shall issue tax credits to

wholesalers for stamps in inventory on February 1,

1993, which shall be applied as credits against the

wholesaler’s future tax liability for the 12 month

period beginning with the report due on August 10,

1993;

(3) Nothing in this subsection shall be con-

strued to impose an additional excise tax on distilled

spirits and alcohol held in inventory by wholesalers

and retailers above the excise tax paid prior to Feb-

ruary 1, 1993; and

(4) The commissioner shall adopt rules and

regulations for the implementation of a reporting

method of paying distilled spirits and alcohol excise

taxes as well as the elimination of the use of any type

of distilled spirits and alcohol stamp. The commis-

sioner shall have full authority to allow credits or

make refunds as provided for in this subsection.”

Section 4. Code Section 48-2-35 of the Official Code

of Georgia Annotated, relating to refunds of taxes, is

amended by adding a new subsection (d) at the end

thereof to read as follows:

6-8

“(d) This Code section shall not apply to taxes

paid or stamps purchased for alcoholic beverages pur-

suant to Title 3.”

Section 5. (a) Section 3 of this Act shall become

effective February 1, 1993. All other provisions of this Act

shall become effective upon its approval by the Governor

or upon its becoming law without such approval.

(b) With regard to taxes paid and stamps purchased

on or after the effective date of this Act, all provisions of

this Act shall fully apply.

prior to the effective date of this Act and with regard to

which no application for credit or claim for refund was

filed prior to the effective date of this Act, all of the

provisions of this Act shall apply, provided that, with

regard to payments made less than three years prior to

the effective date of this Act, the taxpayer shall have 90

days from the effective date of this Act within which to

file with the commissioner the protest and the application

for credit provided for by this Act, and provided, further,

that no interest shall be allowed on any such taxes paid

or stamps purchased.

(d) With regard to taxes paid and stamps purchased

prior to the effective date of this Act and with regard to

which an application for credit or claim for refund has

been filed prior to the effective date of this Act, the law

which was in effect at the time the application for credit

or claim for refund was filed shall apply, provided that

no interest shall be allowed on any such payments, and

provided, further, that if a suit for refund or credit has

not been filed prior to the effective date of this Act with

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regard to any such application or claim, any suit for

recovery of a credit pertaining to such a claim or applica-

tion must be filed within 90 days after the effective date

of this Act.

Section 6. All laws and parts of laws in conflict

with this Act are repealed.

Approved April 13, 1992.

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APPENDIX 7

O.C.G.A. § 3-2-11. Penalties for failure to file reports or

returns or to pay tax or fee; procedure for assessment of

taxes due, penalties, and interest.

Except as otherwise provided in this title:

(1) When any person required to file a report as

provided by this title fails to file the report within the

time prescribed, he shall be assessed a penalty of $50.00

for each failure to file.

(2) In the event the commissioner determines, upon

inspection of the invoices, books, and records of a

licensed wholesale dealer or importer or from any other

information obtained by him or his authorized agents,

that the licensed wholesale dealer or importer has not

paid the proper tax or the proper amount of taxes, the

wholesale dealer or importer shall be assessed for the

taxes due. After assessment, the person assessed shall be

provided with notice and an opportunity for a hearing as

provided for contested cases by Chapter 13 of Title 50, the

“Georgia Administrative Procedure Act.”

(3) When any person fails to pay any tax or license

fee due as provided by this title, the person shall be

assessed a penalty the same as that provided for in Code

Section 48-2-44.

(4) When any person fails to file a return, files a

false or fraudulent return, or when a tax deficiency or

any part of a tax deficiency is due to a fraudulent intent

to evade any tax imposed or authorized by this title, the

person shall be assessed a specific penalty of 50 percent

of the tax due.

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(5) When any person fails to pay the tax or any part

of the tax due as provided by this title, the person shall

pay interest on the unpaid tax at the rate of 1 percent per

month from the time the tax became due until paid or at

the rate specified in Code Section 48-2-40, whichever is

greater. Interest shall be computed on a monthly basis for

any portion of a month during which payment is delin-

quent.

(6) All penalties and interest imposed by this title

shall be payable to and collected by the commissioner in

the same manner as if they were a part of the taxes

imposed by this title.

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APPENDIX 8

O.C.G.A. § 3-2-13. Issuance of refunds or credits for

taxes paid or stamps purchased.

(a) The commissioner may issue credits for taxes

paid by or due from a wholesaler or, in the case of taxes

on distilled spirits, may issue credits for stamps pur-

chased by a manufacturer, distiller, or wholesaler when it

is shown to the commissioner’s satisfaction that any of

the following events have occurred:

(1) Alcoholic beverages have been received by the

wholesaler through an error in shipment and the alco-

holic beverages are returned to the shipper prior to any

sale by the wholesaler in this state;

(2) Alcoholic beverages ordered by the whole-

saler have been destroyed in transit prior to entry into

the wholesaler’s warehouse or storage area;

(3) Alcoholic beverages which are unfit for con-

sumption upon receipt have been received by the

wholesaler and the alcoholic beverages are returned to

the shipper or destroyed prior to any sale by the

wholesaler in this state;

(4) Alcoholic beverages have been destroyed

while in the possession of a wholesaler within the state

by an act of God, such as fire, flood, lightning, wind, or

other natural calamity;

(5) Wines have been sold by the wholesaler for

delivery and consumption outside the state, provided

the sale and delivery shall in all respects comply with

the requirements of Code Section 3-6-26.1; or

(6) Taxes were paid or stamps were purchased

under a statute expressly held to be unconstitutional by

a court of last resort and the payments were made

8-2

under protest and the ground of the protest was the

same as the basis for the ruling of unconstitutionality

by the court of last resort.

(b) No person shall receive a credit for taxes paid or

stamps purchased in any case where an amount equal to

the amount of taxes paid or to the cost of the stamps

purchased has been charged to or paid by any purchaser

of the person seeking a refund or credit. When an appli-

cant is issued a credit for taxes paid or stamps purchased,

in every case where an amount equal to the amount of

taxes paid or cost of the stamps purchased has been

charged to or paid by any purchaser of the applicant, the

applicant shall refund or credit to the purchaser or cus-

tomer an amount equal to the credit allowed by the

commissioner.

credit under this Code section to a person who has or will

have insufficient tax liabilities to the State of Georgia

against which to offset the credit, the commissioner shall

issue a refund to such person for the unusable portion of

the credit.

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APPENDIX 9

O.C.G.A. § 3-2-14. Limitations on credit; application;

action for recovery of credit; setoff of unpaid taxes

against credit.

(a) No credit for taxes paid on alcoholic beverages

or for stamps purchased in payment of taxes on alcoholic

beverages shall be allowed unless an application for

credit is filed with the commissioner within 90 days from

the date payment is received by the commissioner. If, in

the opinion of the commissioner, an application for credit

of taxes paid pursuant to this title contains a false state-

ment, the application shall be denied. When an applicant

is indebted to the state or an applicant is in violation of

this title, the commissioner shall decline to approve the

credit until the applicant has complied with the laws of

this state. In no event shall interest be allowed on any

refund or credit for taxes paid on alcoholic beverages or

for stamps purchased in payment of taxes on alcoholic

beverages. Nothing contained in this Code section shall

-be construed so as to allow for a credit or refund of any

license fee lawfully due or paid under this title.

(b) Each application for credit shall be filed in writ-

ing in the form and containing such information as the

commissioner may reasonably require. The commissioner

or his delegate shall consider information contained in

the application, together with such other information as

may be available, and shall approve or disapprove the

application and notify the applicant of his action. Any

applicant whose claim is denied by the commissioner or

his delegate or whose claim is not decided by the com-

missioner or his delegate within one year from the date of

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filing the claim shall have the right to bring an action for

a credit in the Superior Court of Fulton County. No action

or proceeding for the recovery of a credit shall be com-

menced before the expiration of one year from the date of

filing the application unless the commissioner or his dele-

gate renders a decision on the application within that

time, nor shall any action or proceeding be commenced

after the occurrence of the earlier of (1) the expiration of

one year from the date the claim is denied, or (2) the

expiration of two years from the date the application was

filed. The time for filing an action for the recovery of a

credit may be extended for such period as may be agreed

upon in writing between the applicant and the commis-

sioner during the period authorized for bringing an

action or any extension thereof. In the event any applica-

tion is approved and the taxpayer has not paid other state

taxes which have become due, the commissioner may set

off the unpaid taxes against the credit. When the setoff

authorized in this Code section is exercised, the credit

shall be deemed granted and the amount of the setoff

shall be considered for all purposes as a payment toward

the particular tax debt which is being set off. Any excess

credit properly allowable under this article which

remains after the setoff has been applied may be credited

to the taxpayer.

10-1

APPENDIX 10

O.C.G.A. § 3-4-61. Payment of tax; report.

(a) Except as may otherwise be authorized in this

title, the state excise taxes imposed by this part shall be

paid by the licensed wholesale dealer in distilled spirits.

(b) The taxes shall be paid on or before the tenth

day of the month following the calendar month in which

the beverages are sold or disposed of within the particu-

lar municipality or county by the wholesale dealer.

excise tax shall file a report itemizing for the preceding

calendar month, by size and type of container, the exact

quantities of distilled spirits sold during the month

within the state. The licensee shall file the report with the

commissioner.

(d) The wholesaler shall remit to the commissioner

the tax imposed by the state on the tenth day of the

month following the calendar month in which the sales

were made.

(e) In order to phase in the reporting system of

excise tax payment for distilled spirits and alcohol:

(1) The commissioner shall direct that no later

than January 31, 1993, all persons who made excise

tax payments in respect of distilled spirits and alco-

hol sales in the State of Georgia during the calendar

year 1992 shall make a one-time deposit equal to the

amount of 25 percent of said tax payments. This one-

time advance shall be repaid in full by the state in

equal semiannual installments over the period of 24

months following August 1, 1993; except that, in the

event wholesalers made payments as provided for in

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this paragraph, the commissioner shall repay such

wholesalers in the form of semiannual credits against

future tax liability;

(2) On February 1, 1993, or as soon thereafter

as practicable, the commissioner shall direct that an

inventory be taken of stamped merchandise and tax

stamps held by manufacturers, shippers, and whole-

salers. The commissioner shall issue refunds to all

manufacturers and shippers for the value of tax

stamps in their possession on February 1, 1993, to be

paid in 12 equal installments beginning on August 1,

1993. The commissioner shall issue tax credits to

wholesalers for stamps in inventory on February 1,

1993, which shall be applied as credits against the

wholesaler’s future tax liability for the 12 month

period beginning with the report due on August 10,

1993;

(3) Nothing in this subsection shall be con-

strued to impose an additional excise tax on distilled

spirits and alcohol held in inventory by wholesalers

and retailers above the excise tax paid prior to Feb-

ruary 1, 1993; and

(4) The commissioner shall adopt rules and

regulations for the implementation of a reporting

method of paying distilled spirits and alcohol excise

taxes as well as the elimination of the use of any type

of distilled spirits and alcohol stamp. The commis-

sioner shall have full authority to allow credits or

make refunds as provided for in this subsection.

11-1 3

‘ APPENDIX 11

O.C.G.A. § 3-4-61 (pre-1992 version). Collection of tax;

replacement of mutilated stamps.

(a) Except as may otherwise be authorized in this

title, the state excise taxes imposed by this part shall be

collected in the following manner:

(1) The commissioner shall prescribe suitable

stamps in proper denominations denoting the pay-

ment of taxes imposed by this part, and the tax

provided shall be administered and collected by

means of adhesive stamps lithographed with an

intricate geometric design on safety paper or in a

manner as may be prescribed by the commissioner;

(2) Before shipment or delivery to any retailer,

every manufacturer or wholesaler shall affix or cause

to be affixed to each bottle or container of distilled

spirits a stamp indicating the payment of the proper

amount of tax; and

(3) All manufacturers, distillers, or wholesalers

who sell, ship, or deliver to each other shall affix or

cause to be affixed to each bottle or container of

distilled spirits a stamp indicating the payment of

the proper amount of tax.

(b) The commissioner may at his discretion replace

mutilated stamps when fully satisfied that the stamps

have not been used.

12-1

APPENDIX 12

O.C.G.A. § 3-4-152. Submission of labels; designation of

sales territories and exclusive wholesale distributors;

approval by commissioner.

(a) Every manufacturer or shipper shipping dis-

tilled spirits for the first time into the state shall:

(1) Submit to the commissioner one label for

each brand of distilled spirits to be shipped for the

first time by the manufacturer or shipper into this

state;

(2) Designate in the application for registration

the sales territories for each of its brands sold in this

state; and

(3) Name one licensed wholesaler in each terri-

tory who shall be the exclusive distributor of the

brand within the territory.

(b) Designations of wholesalers and wholesalers’

territories as provided in this Code section shall be ini-

tially approved by the commissioner and shall not be

changed or initially disapproved except for cause. The

commissioner shall determine cause after a hearing under

regulations promulgated by the commissioner for such

purposes.

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APPENDIX 13

0.C.G.A. § 5-6-35. Cases requiring application for

appeal; contents, filing, and service of application;

exhibits; response by opposing party; issuance of appel-

late court order regarding appeal; procedure; super-

sedeas; jurisdiction of appeal.

(a) Appeals in the following cases shall be taken as

provided in this Code section:

(1) Appeals from decisions of the superior

courts reviewing decisions of the State Board of

Workers’ Compensation, the State Board of Educa-

tion, auditors, state and local administrative agen-

cies, and lower courts by certiorari or de novo

proceedings; provided, however, that this provision

shall not apply to decisions of the Public Service

Commission and probate courts and to cases involv-

ing ad valorem taxes and condemnations;

(2) Appeals from judgments or orders in

divorce, alimony, child custody, and other domestic

relations cases including, but not limited to, granting

or refusing a divorce or temporary or permanent

alimony, awarding or refusing to change child cus-

tody, or holding or declining to hold persons in

contempt of such alimony or child custody judgment

or orders;

(3) Appeals from cases involving distress or

dispossessory warrants in which the only issue to be

resolved is the amount of rent due and such amount

is $2,500.00 or less;

(4) Appeals from cases involving garnishment

or attachment, except as provided in paragraph (5) of

subsection (a) of Code Section 5-6-34;

(5) Appeals from orders revoking probation;

13-2

(6) Appeals in all actions for damages in which

the judgment is $10,000.00 or less;

(7) Appeals, when separate from an original

appeal, from the denial of an extraordinary motion

for new trial;

(8) Appeals from orders under subsection (d)

of Code Section 9-11-60 denying a motion to set

aside a judgment or under subsection (e) of Code

- Section 9-11-60 denying relief upon a complaint in

equity to set aside a judgment;

(9) Appeals from orders granting or denying

temporary restraining orders;

(10) Appeals from awards of attorney’s fees or

expenses of litigation under Code Section 9-15-14;

and

(11) Appeals from decisions of the state courts

reviewing decisions of the magistrate courts by de

novo proceedings so long as the subject matter is not

otherwise subject to a right of direct appeal.

(b) All appeals taken in cases specified in subsec-

tion (a) of this Code section shall be by application in the

nature of a petition enumerating the errors to be urged on

appeal and stating why the appellate court has jurisdic-

tion. The application shall specify the order or judgment

being appealed and, if the order or judgment is interlocu-

tory, the application shall set forth, in addition to the

enumeration of errors to be urged, the need for interlocu-

tory appellate review.

petition a copy of the order or judgment being appealed

and should include a copy of the petition or motion

which led directly to the order or judgment being

13-3

appealed and a copy of any responses to the petition or

motion. An applicant may include copies of such other

parts of the record or transcript as he deems appropriate.

No certification of such copies by the clerk of the trial

court shall be necessary in conjunction with the applica-

tion.

(d) The application shall be filed with the clerk of

the Supreme Court or the Court of Appeals within 30

days of the entry of the order, decision, or judgment

complained of and a copy of the application, together

with a list of those parts of the record included with the

application, ‘shall be served upon the opposing party or

parties as provided by law, except that the service shall

be perfected at or before the filing of the application.

When a motion for new trial, a motion in arrest of judg-

ment, or a motion for judgment notwithstanding the ver-

dict has been filed, the application shall be filed within 30

days after the entry of the order granting, overruling, or

otherwise finally disposing of the motion.

(e) The opposing party or parties shall have ten

days from the date on which the application is filed in

which to file a response. The response may be accom-

panied by copies of the record in the same manner as is

allowed with the application. The response may point out

that the decision of the trial court was not error, or that

the enumeration of error cannot be considered on appeal

for lack of a transcript of evidence or for other reasons.

(f) The Supreme Court or the Court of Appeals shall

issue an order granting or denying such an appeal within

30 days of the date on which the application was filed.

13-4

(g) Within ten days after an order is issued granting

the appeal, the applicant, to secure a review of the issues,

shall file a notice of appeal as provided by law. The

procedure thereafter shall be the same as in other

appeals.

(h) The filing of an application for appeal shall act

as a supersedeas to the extent that a notice of appeal acts

as supersedeas.

(i) This Code section shall not affect Code Section

9-14-52, relating to practice as to appeals in certain

habeas corpus cases.

(j) When an appeal in a case enumerated in subsec-

tion (a) of Code Section 5-6-34, but not in subsection (a)

of this Code section, is initiated by filing an otherwise

timely application for permission to appeal pursuant to

subsection (b) of this Code section without also filing a

timely notice of appeal, the appellate court shall have

jurisdiction to decide the case and shall grant the applica-

tion. Thereafter the appeal shall proceed as provided in

subsection (g) of this Code section.

14-1

APPENDIX 14

O.C.G.A. § 9-3-33. Injuries to the person; injuries to

reputation; loss of consortium; exception.

Actions for injuries to the person shall be brought

within two years after the right of action accrues, except

for injuries to the reputation, which shall be brought

within one year after the right of action accrues, and

except for actions for injuries to the person involving loss

of consortium, which shall be brought within four years

after the right of action accrues.

15-1

APPENDIX 15

O.C.G.A. § 9-11-26(b)(1) & (3). General provisions gov-

erning discovery.

(b) Scope of discovery. Unless otherwise limited by

order of the court in accordance with this chapter, the

scope of discovery is as follows:

(1) IN GENERAL. Parties may obtain discovery

regarding any matter, not privileged, which is rele-

vant to the subject matter involved in the pending

action, whether it relates to the claim or defense of

the party seeking discovery or to the claim or

defense of any other party, including the existence,

description, nature, custody, condition, and location

of any books, documents, or other tangible things

and the identity and location of persons having

knowledge of any discoverable matter. It is not

ground for objection that the information sought will

be inadmissible at the trial if the information sought

appears reasonably calculated to lead to the discov-

ery of admissible evidence;

(3) TRIAL PREPARATION; MATERIALS. Subject to para-

graph (4) of this subsection, a party may obtain

discovery of documents and tangible things other-

wise discoverable under paragraph (1) of this sub-

section and prepared in anticipation of litigation or

for trial by or for another party or by or for that

other party’s representative (including his attorney,

consultant, surety, indemnitor, insurer, or agent) only

upon a showing that the party seeking discovery has

substantial need of the materials in the preparation

of his case and that he is unable without undue

hardship to obtain the substantial equivalent of the

materials by other means. In ordering discovery of

15-2

such materials when the required showing has been

made, the court shall protect against disclosure of

the mental impressions, conclusions, opinions, or

legal theories of an attorney or other representative

of a party concerning the litigation. A party may

obtain, without the required showing, a statement

concerning the action or its subject matter previously

made by that party. Upon request, a person not a

party may obtain, without the required showing, a

statement concerning the action or its subject matter

previously made by that person. If the request is

refused, the person may move for a court order.

Paragraph (4) of subsection (a) of Code Section

9-11-37 applies to the award of expenses incurred in

relation to the motion. For purposes of this para-

graph, a “statement previously made” is (A) a writ-

ten statement signed or otherwise adopted or

approved by the person making it, or (B) a stenog-

raphic, mechanical, electrical, or other recording, or

a transcription thereof, which is a substantially ver-

batim recital of an oral statement by the person

making it and contemporaneously recorded; and

16-1

APPENDIX 16

O.C.G.A. § 9-11-56(e). Summary judgment.

(e) Form of affidavits; further testimony; defense

required. Supporting and opposing affidavits shall be

made on personal knowledge, shall set forth such facts as

would be admissible in the evidence, and shall show

affirmatively that the affiant is competent to testify to the

matters stated therein. Sworn or certified copies of all

papers or parts thereof referred to in an affidavit shall be

attached thereto or served therewith. The court may per-

mit affidavits to be supplemented or opposed by deposi-

tions, answers to interrogatories, or further affidavits. All

affidavits shall be filed with the court and copies thereof

shall be served on the opposing parties. When a motion

for summary judgment is made and supported as pro-

vided in this Code section, an adverse party may not rest

upon the mere allegations or denials of his pleading, but

his response, by affidavits or as otherwise provided in

this Code section, must set forth specific facts showing

that there is a genuine issue for trial. If he does not so

respond, summary judgment, if appropriate, shall be

entered against him.

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APPENDIX 17

O.C.G.A. § 24-9-21(2). Confidentiality of certain commu-

nications.

There are certain admissions and communications

excluded on grounds of public policy. Among these are:

(2) Communications between attorney and client;

18-1

APPENDIX 18

O.C.G.A. § 24-9-24. Client’s communications to attorney

privileged.

Communications to any attorney or to his employee

to be transmitted to the attorney pending his employment

or in anticipation thereof shall never be heard by the

court. The attorney shall not disclose the advice or coun-

sel he may give to his client, nor produce or deliver up

title deeds or other papers, except evidences of debt left

in his possession by his client. This Code section shall not

exclude the attorney as a witness to any facts which may

transpire in connection with his employment.

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APPENDIX 19

O.C.G.A. § 24-9-25. When attorney may testify for or

against client.

No attorney shall be competent or compellable to

testify for or against his client to any matter or thing, the

knowledge of which he may have acquired from his client

by virtue of his employment as attorney or by reason of

the anticipated employment of him as attorney. However,

an attorney shall be both competent and compellable to

testify for or against his client as to any matter or thing,

the knowledge of which he may have acquired in any

other manner.

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APPENDIX 20

19 U.S.C. § 3512(b)(2)(A) & (c). Relationship of the

Agreements to United States law and State law

(b) Relationship of Agreements to State law.

(2) Legal challenge.

(A) In general. No State law, or the application

of such a State law, may be declared invalid as to any

person or circumstance on the ground that the provision

or application is inconsistent with any of the Uruguay

Round Agreements, except in an action brought by the

United States for the purpose of declaring such law or

application invalid.

remedies.

(1) Limitations. No person other than the United

States -

(A) shall have any cause of action or defense

under any of the Uruguay Round Agreements or by

virtue of congressional approval of such an agreement, or

(B) may challenge, in any action brought under

any provision of law, any action or inaction by any

department, agency, or other instrumentality of the

United States, any State, or any political subdivision of a

State on the ground that such action or inaction is incon-

sistent with such agreement.

20-2

(2) Intent of Congress. It is the intention of the

Congress through paragraph (1) to occupy the field with

respect to any cause of action or defense under or in

connection with any of the Uruguay Round Agreements,

including by precluding any person other than the United

States from bringing any action against any State or polit-

ical subdivision thereof or raising any defense to the

application of State law under or in conjunction with any

of the Uruguay Round Agreements -

(A) on the basis of a judgment obtained by the

United States in an action brought under any such agree-

ment; or

(B) on any other basis.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.