Motion — Walz v. Tax Comm'n of City of New York

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(89427) —— - Le a

IN THE JOHN F. BAVIB, C

Supreme Court of the United States

‘k: Octoser TERM, 1968

ation No. mee | O/ 3

e a << -

ci FREDERICK WaALz,

Appellant,

against

Tax CoMMISSION OF THE City oF New York,

Appellee.

ON APPEAL FROM THE COURT OF APPEALS

OF THE STATE OF NEW YORK

MOTION TO DISMISS APPEAL

J. Lee Rankin,

Corporation Counsel,

Counsel for Appellee,

Municipal Building,

New York, N. Y. 10007.

SranLEY BucusBaum, }

Epwarp J. McLAvGHLIn,

Eprrn I. Sprvack,

of Counsel.

INDEX

PAGE

Preliminary Statement 1

Statutes Involved 2

Statement of the Case 2

The Facts 3

ARGUMENT:

Tax exemptions for property of religious organi-

zations do not violate the United States Constitu-

tion 4

ConcLusION 6

CASES CITED

Abington School Dist. v. Schempp, 374 U.S. 203 (1963) 5

Engel v. Vitale, 370 U.S. 421 (1962) 5

Garrett Biblical Institute v. Elmhurst State Bank, 331

Ill. 308, 163 N.E. 1 (1928) 5

General Finance Corp. v. Archetto, 93 R.I. 392, 176 A.

2d 73, app. dism., 369 U.S. 423 (1962) eee 4

Lundberg v. County of Alameda, 46 Cal. 2d 644, 298 P.

2d 1, app. dism. sub. nom. Heisey v. County of Ala-

meda, 352 U.S. 921 (1956) 4

a

Methodist Episcopal Church, South v. Hinton, 92 Tenn.

188, 21 S.W. 321 (1893)

Murray v. Comptroller of the Treasury, 241 Md. 383,

216 A. 2d 897 (1966), cert. den., 385 U.S. 816 (1966) ..

People ex rel. Church of St. Mary v. Fettner, 168 N.Y.

494, 61 N.E. 762 (1901)

People ex rel. Watchtower Soc. v. Haring, 8 NY 2d

350, 170 N.E. 2d 677 (1960)

Trustees of Griswold College v. State of Iowa, 46 Iowa

275 (1877)

PAGE

In THE

Supreme Court of the United States

OctoserR TERM, 1968

No. 1415

—_—

FREDERICK WALz,

Appellant,

against

Tax CoMMISSION OF THE City oF NEW YorK,

Appellee.

ON APPEAL FROM THE COURT OF APPEALS

OF THE STATE OF NEW YORK

<<

MOTION TO DISMISS APPEAL

The appellee moves pursuant to Rule 16 of the Rules

of the Supreme Court of the United States to dismiss the

appeal on the ground that some of the questions presented

were not raised in the Courts below and all of them are so

unsubstantial as not to need further argument.

Preliminary Statement

The appellant has appealed from the order of the Court

of Appeals of the State of New York, dated February 20,

1969, affirming an order of the Appellate Division of the

Supreme Court of that State.

2

The opinion of the Court of Appeals is reported in 24

N Y 2d 30, 246 N.E. 2d 517, and its text is set forth in

Appendix B of the appellant’s jurisdictional statement

(pp. 4a-5a). The Appellate Division decision is officially

reported in 30 A D 2d 778, and the text of the order of

affirmance is set forth in Appendix C of that statement (p,

6a). The memorandum opinion of the Special Term of the

Supreme Court is not officially reported and is set forth

in Appendix I to this motion.

By this appeal, the appellant challenges the constitutional

validity of New York State Constitution, Article 16, {1,

and New York Real Property Tax Law, §420, subd. 1,

providing for exemption from taxation of real property

owned by a religious corporation and used exclusively for

religious purposes. It contends that such exemption con.

travenes the First and Fourteenth Amendments of the Con-

stitution of the United States.

Statement of the Case

The action was commenced or June 15, 1967, by the ser-

vice of a summons and verified complaint upon the Tax

Commission (9-12).* The Tax Commission served a veri-

fied answer containing three separate and distinct defenses,

on June 28, 1967 (1, 13-15). Thereafter, appellant moved

under CPLR, §§3212 and 3213, for an order striking out

defendant’s answer and directing the entry of summary

judgment for appellant upon the cause of action set forth in

the complaint (17-25). The appellee opposed the motion

and under CPLR, $3211, also requested summary judgment

* Numbers in parentheses refer to pages in the New York Court

of Appeals record on appeal.

3

dismissing the complaint (25-30). Agiiant submitted an

affidavit in reply (31-32).

The Special Term of the Suprem'ourt denied the ap-

pellant’s raotion for summary judgyt and granted the

appellee’s cross-motion for summarydement dismissing

the complaint. Passing over the tecl,,) infirmities of the

action, the Court upheld the constitu ality of the exemp-

tion, stating in a brief opinion, ‘{,, exemptions are

granted in pursuance of long-standit,,p};¢ policy of this

State, under a statute which is Pumptively constitu-

tional, and which is hereby sustaine, Appendix I to this

motion).

The Appellate Division unanime,, affirmed, without

opinion (37-8). Upon appeal dy apjant to the Court of

Appeals of the State of New Yorthat Coart effrndd

unanimously, with all but one judg, curring in a per

curiam opinion (Appendix to Applty,risdictional State-

ment, pp. 4a-5a).

In essence, the pleadings relate tl appellant, an attor-

ney pro se, is a citizen of the Unites ahen aad (he aun

in fee of real property located in thounty of Richmond

of New York City, designated on the

; px Map as Section 1,

Block 198, Lot 210 (10). His comp ‘t is that the tax ex-

emption granted to religious COTPG ions for real prop-

erty owned and used by them for ligious purposes for

the tax year commencing July 1, L! RE

voluntary payment by plaintiff to ’ Ra SR

ligious organizations, in violation 4 inti ‘

cs . laintiff’s right of re-

ligious freedom” and confiscates his re

ype ‘operty “without due

process of law, in violation of the ~. .

ovisions of the Con-

stitution of the United States of ‘orica” (11-12).

4

The Tax Commission answered that the taxable status of

real property owned by religious corporations was deter.

mined in accordance with the law appertaining thereto and

that the appellant was neither aggrieved thereby nor de.

prived of any rights sufficient to state a cause of action

(16, 30).

ARGUMENT

Tax exemptions for property of religious organiza.

tions do not violate the United States Constitution.

(1)

In two recent cases this Court dismissed for “want of

a substantial federal question” appeals from determina-

tions sustaining the constitutionality of tax exemptions for

religious organizations. General Finance Corp. v. Archetto,

93 R.I. 392, 176 A. 2d 73 (1961), app. dism., 369 US.

423 (1962); Lundberg v. County of Alameda, 46 Cal. 2d

644, 298 P. 2d 1 (1956), app. dism. sub. nom. Heisey v.

County of Alameda, 352 U.S. 921 (1956).

The appellant’s attempt to detract from the force of

these decisions has no merit (App!t’s Jurisdictional State-

ment, p. 4). The comment that the first is distinguishable

because plaintiff was a ‘soulless’ corporation is indeed idle.

There is nothing in the opinion of the Court to lend sub-

stance to the conclusion that the corporate form of the

plaintiff was in any way a persuasive factor. And as for

the second, about which appellant states “the tax exemption

benefited the public purpose of education,” its wider per-

tinence and particular relevance to the issue herein is stated

in the opinion of the Court as follows (298 P. 2d at p. 7):

5

“The practice of granting tax exemptions benefiting re-

ligious sects began in the colonial period. * * * Today,

at least some tax exemption for religious groups is

authorized by statutory or constitutional provisions

in every state and the District of Columbia, as well as

by federal law. See Note (1949) 49 Columb. L. Rev.

968, 969-982. No case has been found holding that the

granting of such exemptions is contrary to state or

federal constitutional provisions prohibiting the sup-

port or estabiishment of religion, and, where the mat-

ter has been raised, the exemptions have been up-

held.”

(2)

Other cases upholding the constitutionality of tax exemp-

tions for religious institutions include the following: Mur-

ray v. Comptroller of the Treasury, 241 Md. 383, 216 A.

2d 897 (1966), cert. den., 385 U.S. 816 (1966); Garrett

Biblical Institute v. Elmhurst State Bank, 331 Ill. 308, 163

N.E. 1, 5 (1928); Trustees of Griswold College v. State of

Towa, 46 Iowa 275, 282 (1877). See concurring opinion of

Brennan, J. in Abington School Dist. v. Schempp, 374 US.

203, 301-302 (1963). Cf. People ex rel. Watchtower Soc. v.

Haring, 8 NY 2d 350, 357-358, 170 N.E. 2d 677 (1960);

People ex rel. Church of St. Mary v. Feitner, 168 N.Y.

494, 497, 61 N.E. 762 (1901); Methodist Episcopal Church,

South v. Hinton, 92 Tenn. 188, 21 S.W. 321 (1893). See,

contra, concurring opinion of Dovatas, J. in Engel v. Vitale,

370 U.S. 421, 437 (1962).

_

6

(3)

The cases relied on by appellan{ while they deal with

the subject of establishment of relizion or freedom of re.

ligion are not in point on the issie here involved (Ap.

plt’s Jurisdictional Statement, p. 3). If anything, they

strengthen the decision of the Couwts below, that the ex.

emption to which appellant objectsdoes not constitute an

advance of religion in violation of my constitutional guar.

anty.

CONCLUSION

The appeal from the order ofthe Court of Appeals

of the State of New York shoul be dismissed.

June 2, 1969.

Respectfully subnitted,

J. Lee Rankin,

Corporation Counsel,

Qunsel for Appellee.

SranLeEY BucHsBavuM,

Epwarp J. McLavuGHuin,

Epitx I. Sprvack,

of Counsel.