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Plaintiff’s Draft Hearing Rebuttal
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Plaintiff herein submits this rebuttal to Defense Council’s Motion to Dismiss and closing arguments delivered during the Hearing on the Motion to Dismiss on 3/13/24 at 3:00 PM. Time constraints did not allow for a rebuttal at the hearing.
This rebuttal covers three topics of concern at the hearing :
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The application of Section 1341 of Title 28 of the United States Code’-frequently
referred to as the Tax Injunction Act to bars Plaintiff’s claim of Defendant’s violation of 42 USC 1983 use of a color of law in the deprivation of rights and for monetary relief.
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Plaintiff’s claim of Defendant’s violation of 42 USC 1983 use of a color of law in the deprivation of rights not addressed by Defense Council.
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Plaintiff’s claim of Defendant’s violation of the due process clause of the 14th Amendment not addressed by Defense Council.
Defense Council’s misapplication of section 1341 of Title 28 (the Tax Injunction Act)
Plaintiff offers the following arguments from the University of Chicago Law Review “The Tax Injunction Act and Suits for Monetary Relief” (copy attached).
Defense Council’s misapplication of section 1341 results from the failure to comprehend :
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The legislative history and congressional intent of section 1341 and
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the distinction between anticipated monetary damages as taxes to be collected and monetary damages to be reclaimed because they have already been paid as taxes.
1. Legislative history and Congressional intent
“The legislative history of the Tax Injunction Act does not, however, demonstrate a congressional intention to remove from the federal courts all suits involving state or local tax administration, but
only those that permitted the taxpayer to adjudicate the lawfulness of a levy prior to payment.” (pg 746)
“Thus, Congress sought federal noninterference with the assessment and collection of state and local taxes, but apparently did not seek to withdraw the power of the federal courts to entertain suits challenging a levy once the taxes had been collected.” (pg 746, 747)
2. The distinction between anticipatory and collected taxes as monetary damages
Since Plaintiff is seeking reclamation of monetary damages that have already been paid, and therefore there is no interference with county tax collection, , it would be inappropriate to apply 1341 not only to bar Plaintiff’s reclamation attempt,but also his civil right of protection from deprivation of rights by use of color of law.
“damage actions assert that the taxpayer has suffered injury as a result of an unlawful levy and that he should be compensated, in part, through return of the amount of taxes paid.
Damage actions, however, are usually predicated on section 1983 and thus can be brought under the jurisdictional grant of section 1343(3) of Title 28 of the United
States Code.
Moreover, although state-law refund suits are analytically distinguishable from refund type damage suits, several decisions have cited the state-law cases for the proposition that section 1341 is inapplicable to refund-type damage actions. 95” (pg753)
Plaintiff’s complaint is exactly such a damage action predicated on section 1983 and thus can be brought under the jurisdictional grant of section 1343(3) of Title 28 of the United States Code.
“A countervailing consideration to applying section 1341 broadly to all damage actions is the potentially debilitating impact such an application could have on the effectiveness of section 1983 in the context of state and local taxation. Section 1983 was intended to facilitate the redress of constitutional deprivations by providing access to the more objective federal forum.”
“Courts nevertheless should be reluctant to construe section 1341’s jurisdictional bar broadly when it impinges on the section 1983 cause of action.” (pg 764)
“The reluctance to bar civil rights actions is most appropriate when
refund-type damage actions are at issue. Such actions are on the
periphery of the Tax Injunction Act policies.”
“Any attenuated and hypothetical impact such personal liability might have on state tax administration is not so close to the core of section 1341’s policy as to justify a restriction of section 1983.” (pg 765)
“A majority of the courts have applied section 1341 to damage actions because of the impact such actions have on state tax administration. Many courts, however, have gone too far.”
Plaintiff contends that in this case where incorrect taxes have already been paid and there is no conceivable disruption to collection, and therefore 1341 cannot be a legal bar to 42 USC 1983.
Plaintiff’s claim of Defendant’s violation of 42 USC 1983
Defense Council never addressed this 42 USC 1983 claim in its motion to dismiss, but it is this claim that Defense Council wants dismissed, and it is this 42 USC 1983 claim that is the basis for this monetary damage reclamation action filed in this in Federal Court.
Briefly, this claim is that :
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the Department of Local Affairs provided the JEFFCO Assessor with a non-statutory “color of Law” group assessment method for sold properties,
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which the Assessor then used in place of State law 39-1-103 to calculate and assign the group value to all unsold properties in Plaintiff’s market area including Plaintiff’s property.
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Thus forcing Plaintiff and all other unsold property owners to pay the high tax rates equivalent to the high sale prices of recently sold properties when
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the county Treasurer converted those high assessed values into non-statutory high rate tax payments.
This is an illegal scam designed to deliver maximum tax payments to Special Districts to insure their success as out-sourced alternatives to Title 31 democratic municipalities.
Plaintiff, having filed this 42 USC 1983 monetary damage reclamation action, has forced Defense Council to claim that section 1342 is a shield preventing this federal court from interfering with the collection of county taxes, even though the taxes have already been collected and paid by Plaintiff. This is applied fuzzy logic with the hope that the Court will not have the courage to distinguish between taxes collected and taxes to be collected.
Plaintiff maintains, with the author of the attached law review article, that while 1342 is an appropriate bar to Federal Courts interference with state and local tax collection, it is not a bar to monetary damage reclamation of non statutory taxation payments. Therefore, the motion to dismiss should be dismissed in favor of Plaintiff’s 42 USC 1983 and 14th Amendment violation claim.
Plaintiff’s claim of Defendant’s violation of the due process clause of the 14th Amendment
Does the protection of state and local collection of taxes from Federal Court interference rank as a higher priority than the constitutional right to due process to protect the property of an individual citizen?
That question does not even have to be answered if the Federal Court can protect the 14th Amendment right to due process to protect property without interfering with state and local collection of taxes.
In this 42 USC 1983 case, Plaintiff specifically referenced the failure of any office or branch of government to provide a due process “comment period” prior to the “color of law” method put in place by the Assessor.
Defense Council has countered with section 1342 even when tax collection is not an issue. Plaintiff agrees with the author of the attached law review article that Congress never intended to protect illegal state and local tax collection after taxes had been paid. Fraudulent scams are illegal even after results are achieved and attempts at reclamation are made. This is fair game for the Federal Courts.
Plaintiff submits the foregoing arguments and attached law review article in support of the proposition that section 1342 is not a bar to monetary damage reclamation actions filed under 42 USC 1983, and therefore the Motion to Dismiss should be denied.