Private Truck Council of America, Inc. v. Oklahoma Tax Commission

1994 OK 96, 879 P.2d 137, 65 O.B.A.J. 2539, 1994 Okla. LEXIS 113, 1994 WL 387378

• Court: Supreme Court of Oklahoma
• Decided: July 19, 1994
• Docket: 68401
• Status: Published

Opinions

PER CURIAM.

This ease is before us on remand from the United States Supreme Court, 501 U.S. 1247, 111 S.Ct. 2882, 115 L.Ed.2d 1048. The judgment was vacated and the cause remanded for our consideration in light of Dennis v. Higgins, 498 U.S. 439, 111 S.Ct. 865, 112 L.Ed.2d 969 (1991). We held in our original opinion in this appeal, Private Truck Council, Inc. v. Oklahoma Tax Commission, 806 P.2d 598 (Okla.1991), that 68 O.S.Supp.1982 § 607.1 and 47 O.S.Supp.1986 § 1120(E) were unconstitutional because they violated the fundamental requirement of nondiscrimination against interstate commerce.¹ Based upon that holding, we found it unnecessary to address plaintiffs’ constitutional challenge of the tax statutes under the Privileges and Immunities Clause. We affirmed the trial court’s denial of plaintiffs’ federal claim for refund under 42 U.S.C. § 1983 because Oklahoma has an adequate state remedy affording the requested relief. We allowed a refund to plaintiffs based upon the refund procedures in 68 O.S.1981 § 226, from the payment of the 1987 taxes, based upon American Trucking Ass’ns., Inc. v. Scheiner, 483 U.S. 266, 107 S.Ct. 2829, 97 L.Ed.2d 226 (1987), and American Trucking Ass’ns., Inc. v. Smith, 496 U.S. 167, 110 S.Ct. 2323, 110 L.Ed.2d 148 (1990).

The trial court denied plaintiffs’ motion for summary judgment, finding that the two statutes did not violate the Commerce Clause, and dismissed Count III of plaintiffs’ petition, which sought a refund under 42 U.S.C. § 1983, for failure to state a claim. Plaintiffs’ Count III asserted that the defendants violated the Commerce Clause and the Privileges and Immunities clauses of the United States Constitution, as set out in Counts I and II of their petition, under color of state law, and threatened to deprive plaintiffs of rights guaranteed by the United States Constitution. Thus, plaintiffs alleged that defendants were liable to plaintiffs under 42 U.S.C. § 1983. Plaintiffs prayed for: 1) a declaratory judgment that the two statutes were null and void because they violated the United States Constitution and other laws, 2) a permanent injunction enjoining the Oklahoma Tax Commission from assessing or collecting the retaliatory taxes and fees on nonresident motor carries under the above-referenced statutes, 3) a refund of all retaliatory taxes and fees collected by the Oklahoma Tax Commission pursuant to 68 O.S. 1981 § 607.1 and 47. O.S.Supp.1986 § 1120(K), plus interest, and 4) attorneys’ fees under 12 O.S.1981 § 18(C) and 42 U.S.C. § 1988, and costs.

The trial court dismissed plaintiffs’ claim for refund under 42 U.S.C. § 1983, relying on Consolidated Freightways of Delaware v. Kassel, 730 F.2d 1139 (8th Cir.1984), in which the Eighth Circuit had held that violations of the Commerce Clause were not a basis for bringing a civil rights action under 42 U.S.C. § 1983. We affirmed the trial court’s denial of plaintiffs’ claim for refund under § 1983, because Oklahoma has an adequate state remedy affording the relief plaintiffs requested. We reversed the trial court’s summary judgment to defendants on Counts I and II of plaintiffs’ petition, finding that the two statutes violated the Commerce Clause. We denied the plaintiffs claim for attorneys’ fees, however, because plaintiffs had no civil rights claim under § 1983 and, accordingly, no right to attorneys’ fees under 42 U.S.C. § 1988. We also denied plaintiffs’ claim for attorneys’ fees under state law on the ground that the statute upon which plaintiffs relied, 12 O.S.1981 § 18(C) was repealed before plaintiffs filed their action.

After our decision in the case at bar, the United States Supreme Court handed down the case of Dennis v. Higgins, 498 U.S. 439, 111 S.Ct. 865, 112 L.Ed.2d 969 (1991). In Dennis, the United States Supreme Court held, contrary to our earlier opinion in this matter, that claims for violations of the Commerce Clause may be brought under § 1983. In Dennis the trial court held that the Nebraska taxing statutes at issue violated the Commerce Clause, for essentially the same reasons that we held in our first opinion in the case at bar. The Dennis trial court permanently enjoined the Nebraska Department of Motor Vehicles from assessing, levying or collecting the taxes and fees. The Nebraska trial court awarded the plaintiffs attorneys’ fees and expenses under the “common fund” doctrine, but denied the § 1983 claims under Kassel. Both sides appealed, although the unconstitutionality of the taxing statutes was not appealed. The Supreme Court of Nebraska affirmed the dismissal of plaintiffs’ § 1983 claim, but reversed the allowance of attorneys’ fees under the common fund doctrine. The Nebraska Supreme Court held, despite § 1983’s broad language, that there was no cause of action under § 1983 for violation of the Commerce Clause. As in Dennis, the trial court in the case at bar ruled that plaintiffs failed to state a claim under § 1983.

In Dennis v. Higgins, Id., the United States Supreme Court decided that the Commerce Clause creates rights that can be asserted under 42 U.S.C. § 1983 because the Commerce Clause confers rights, privileges or immunities within the meaning of § 1983. Thus, suits for violation of the Commerce Clause may be brought under § 1983 to obtain injunctive and declaratory relief from state action that violates the Commerce Clause. We directed the parties to file supplemental briefs addressing the affect of Dennis on plaintiffs’ claims.

Here, plaintiffs sought declaratory and in-junctive relief, a refund of taxes paid, and an attorneys’ fee, under both state law, and § 1983. In our first opinion we held the two taxing statutes unconstitutional and granted plaintiffs a partial refund. It is clear to us that the United States Supreme Court vacated our opinion because of our reliance on Kassel, which the Supreme Court repudiated in Dennis. Dennis, however, did not address the critical issue of whether a state court, under the principles of comity, should decline to grant relief under § 1983, a federal law, when a federal court would have been prohibited from granting such relief under The Tax Injunction Act, 28 U.S.C. § 1341.

I.

We now reconsider whether plaintiffs are entitled to assert federally created remedies under §§ 1983 and 1988 in this state court action. We hold, under the principles of comity and federalism, that plaintiffs are not entitled to relief under §§ 1983 and 1988.

We have not previously addressed this issue, but the Supreme Court of North Dakota recently considered it. State v. Quill, 500 N.W.2d 196 (N.D.1993) Cert. Denied — U.S. -, 114 S.Ct. 173, 126 L.Ed.2d 132 (1993), was virtually identical to the case at bar. There, as here, 1) the matter came before the court following reversal by the United States Supreme Court of an earlier opinion, which had erroneously held that a state tax act did not violate the Commerce Clause of the U.S. Constitution; 2) the taxpayers sought an attorneys’ fee under § 1983 and § 1988; and 3) the parties did not dispute that state statutes provided the parties full relief from the uneonstitutionality of the involved tax acts. The Quill court denied an attorneys’ fee to Quill, on the ground of comity and federalism, because a federal court would have been prohibited from granting such relief under the Tax Injunction Act, 28 U.S.C. § 1341.² The Quill court concluded that, while § 1341 did not expressly prohibit state courts from granting federally created relief, state courts should decline to exercise such jurisdiction. Relying on its earlier opinion in Linderkamp v. Bismarck School District No. 1, 397 N.W.2d 76 (N.D.1986), the Quill court held that the taxpayer could not obtain § 1983 relief in the state court action.

We find the language of the North Dakota Supreme Court’s Linderkamp opinion convincing:

Recognition that the proscriptions of the Tax Injunction Act are based at least in part upon deference to state remedial schemes leads to the conclusion that a state court § 1982 action, which applies a federal remedial statute for alleged violations of federally-created rights, is no less of a burden upon the state remedial scheme than would be a § 1982 action brought in federal court.... [Emphasis added.] Linderkamp, 397 N.W.2d at 80.

Plaintiffs’ contentions here, are virtually identical to those of the plaintiff in Quill. Plaintiffs contend that the Quill-Linderkamp rationale is contrary to the holdings of the U.S. Supreme Court in Dennis, and Howlett v. Rose, 496 U.S. 356, 110 S.Ct. 2430, 110 L.Ed.2d 332 (1990). We disagree. Neither Dennis, nor Howlett, addressed the issue of whether a state court should decline to impose federal remedies when state remedies are adequate and a federal court would, therefore, be prohibited from enforcing such remedies under the Tax Injunction Act.³

The Dennis court’s majority did not address whether state remedies were adequate, or the effect of the Tax Injunction Act on the issue of whether the state court should grant § 1983 relief, although a federal court could not do so. Justice Kennedy’s dissent in Dennis, in which the Chief Justice concurred, however, expressed concern that ignoring the Tax Injunction Act risks “destruction of state fiscal integrity in a manner which may require congressional correction.” Dennis, 498 U.S. at 464-65, 111 S.Ct. at 880.

In Howlett> the U.S. Supreme Court held that the Supremacy Clause of the Constitution is “the supreme law of the land” and requires state courts to enforce federally created remedies “according to their regular modes of procedure.” Howlett, 496 U.S. at 367, 110 S.Ct. at 2438. As noted in Quill, however, Howlett makes clear that “the Supremacy Clause precludes state courts from applying state procedural rules that would necessarily produce a different result than if the case had been brought in federal court.” [Emphasis added.] Quill, 500 N.W.2d at 199. Our holding today, applying the Quill-Linderkamp rationale, is perfectly consistent with the federal interest, and this State’s interest, in having state courts apply the law no differently than would federal courts. Clearly, state courts are not required to grant attorneys’ fees under §§ 1983 and 1988, when federal courts would be prohibited from doing so.

Plaintiffs argue, correctly, that The Tax Injunction Act applies only to federal courts. Plaintiffs, however, fail to recognize that one of the principles of comity is that potential differences in remedies available in state court and federal court should be avoided. The existence of such differences encourages forum shopping. As the U.S. Supreme Court observed in Felder v. Casey, 487 U.S. 131, 108 S.Ct. 2302, 101 L.Ed.2d 123 (1988), “A law that predictably alters the outcome of § 1983 claims depending solely on whether they are brought in state or federal court within the same State is obviously inconsistent with this federal interest in intrastate uniformity.” To order an attorneys’ fee under § 1988 here, would pervert this wise policy of intrastate uniformity between state and federal courts.

In addition to North Dakota, at least three other states have declined to impose § 1983 remedies in cases in which a federal court could not have also granted such remedies: Ziska v. Water Pollution Control Authority, 195 Conn. 682, 490 A.2d 509 (Conn.1985); Backus v. Chilivis, 236 Ga. 500, 224 S.E.2d 370 (Ga.1976); Raschke v. Blancher, 141 Ill.App.3d 813, 491 N.E.2d 1171, 96 Ill.Dec. 711 (Ill.App.1986) appeal denied (1986). Although there is authority contrary to the views expressed in the cases from these four states, we believe that these cases represent the better view.⁴ We have found no case, which granted § 1983 relief in these circumstances, which satisfactorily explains to us why a state court should do so.

An important distinction exists between a state court’s jurisdiction, and the principles of comity. In State Tax Commission v. Fondren, 387 So.2d 712, 723 (Miss.1981), the Mississippi Supreme Court held that a state court hearing a § 1983 claim lacked jurisdiction to grant more relief than a federal court could have done. The Connecticut Supreme Court, in Ziska, rejected the Fondren court’s analysis, saying, “we believe that the better view is that § 1341 [The Tax Injunction Act] does not deprive state courts of all jurisdiction to hear § 1983 challenges to state taxes. Section 13H is rooted in principles of federalism. It reflects the policy that federal courts should not interfere with the collection of state taxes." [Emphasis added.] 490 A.2d at 513. The Ziska court declined to hear plaintiffs § 1983 claims under the principles of comity and federalism.

The Mississippi Supreme Court later observed, in Burrell v. Mississippi, State Tax Commission, 536 So.2d 848, 863-64 (Miss.1988), that it had implicitly overruled Fondren in Marx v. Truck Renting and Leasing Ass’n., Inc., 520 So.2d 1333, 1346 (Miss.1987). In both opinions, the Mississippi court, as it had in Fondren, limited its discussions to the jurisdiction of state courts to hear § 1983 claims. Neither Fondren, nor the two later opinions discussed the comity and federalism issues.

Plaintiffs rely on an unpublished opinion of the Connecticut intermediate appellate court, Neiman Marcus Group, Inc. v. Meehan, 1991 WL 194298, LEXIS 2135 (Conn.Super.1991), which concluded that Zis-ka could not be relied upon as authority to support the state’s claim that Connecticut courts lacked jurisdiction to consider § 1983 claims. As in the later Mississippi opinions, the comity and federalism issues were not considered by the Neiman Marcus court. Our analysis convinces us that if the Connecticut Supreme Court were again presented with the issues of comity and federalism, which it decided in Ziska, it would again conclude, as the North Dakota court did in Quill and Linderkamp, that the state court should not give relief that a federal court sitting in the same state could not give.⁵

We hold that the trial court reached the right result in declining to grant an attorneys’ fee under §§ 1983 and 1988.

II.

Plaintiffs claim that they are entitled to an attorneys’ fee under state law. They contend that they should be granted a fee from the amount of the recovery under the “common fund doctrine.” Plaintiffs made identical claims in the first appeal of this case. The facts concerning this issue are unchanged from the first appeal. Consequently, our conclusion in the first appeal that plaintiffs are not entitled to an attorneys’ fees under state law is the law of the case. “As the ‘law of the ease,’ the original appeal controls all subsequent proceedings, and will not be reversed on a second appeal, [unless not to do so would] result in a gross or manifest injustice” McDonald v. Humphries, 810 P.2d 1262, 1266-67 (Okla.1990); Handy v. City of Lawton, 835 P.2d 870, 873 (Okla.1992). We find no error in our prior opinion on this issue. We are satisfied-that our refusal to revisit the issue will not result in a “gross or manifest injustice.” McDonald, 810 P.2d at 1267. Consequently, we decline to reconsider the issue.

Although the reasons for so doing have changed, our directions to the trial court upon remand following the first appeal remain in effect.

JUDGMENT REINSTATED.

HODGES, C.J., LAVENDER, V.C.J., and SIMMS, HARGRAVE and WATT, JJ., concur. KAUGER and SUMMERS, JJ., concur in part, dissent in part. OPALA and ALMA WILSON, JJ., dissent.

1 . Plaintiffs, who are appellants here, filed suit against defendants for a refund of taxes imposed under 68 O.S.Supp.1983 § 607.1 and 47 O.S.Supp.1983 § 22.5j(K). These statutes imposed fees and taxes on nonresident motor carriers operating in Oklahoma to the same extent carriers resident in Oklahoma were taxed by the nonresident motor carriers’ states of residence. Plaintiffs claimed that these statutes were unconstitutional.

2 . § 1341 directs:

The district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under state law where a plain, speedy and efficient remedy may be had in the courts of such state.

3 . Because of the proscriptions of The Tax Injunction Act, the adequacy of the state remedy in this action complaining of a tax statute, must be measured by what is required by 14th Amendment due process, not by the remedies made available by the Congress in § 1983 actions. State law satisfied due process requirements by providing for a refund of the taxes the state wrongly exacted, interest on those amounts, and an injunction prohibiting the collection of such taxes in the future. No case we have found requires an attorneys' fee to be granted to satisfy due process requirements. Indeed, the Congress did not provide for an attorneys' fee in § 1983 actions until the 1976 amendment to § 1988 so provided. Pub.L. 94-559.

4 . A few state courts have applied § 1983 remedies, despite the adequacy of state law remedies, and the fact that a federal court would have been prohibited from granting such relief because of The Tax Injunction Act. See, for example, Harlan Sprague Dawley, Inc. v. Indiana Dept. of State Revenue, 583 N.E.2d 214 (Ind.Tax 1991) and Murtaugh v. County of Berks, 535 Pa. 50, 634 A.2d 179, cert. denied - U.S. -, 114 S.Ct. 1397, 128 L.Ed.2d 71 (1994). The Dawley and Murtaugh courts justified allowing the plaintiffs to recover § 1983 remedies, “because there is no risk of federal court interference.” Neither court discussed the likelihood of forum shopping created by allowing the parties relief in state court to which they would not have been entitled in federal court.

5 . The Neiman Marcus court relied on the U.S. Supreme Court’s opinions in Dennis and Felder to support its position that Ziska was no longer good law. The comity and federalism issues were not before the U.S. Supreme Court in Dennis, and Felder points out that a policy allowing the choice of a federal or state forum, within the same state, to change the result of a § 1983 case, "is obviously inconsistent with this federal interest in intrastate uniformity.” This desire for intrastate consistency is the basis for our opinion that we should not allow § 1983 remedies here.