Missouri v. Jenkins Supplemental Brief for Respondents

    No. 88-1150

In  The

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October Term, 1988

State of Missouri, et al,
Petitioners,

Kalima Jenkins, et at.,
_________ Respondents.

On Petition for a Writ of Certiorari to the United States 
Court of Appeals for the Eighth Circuit

SUPPLEMENTAL BRIEF FOR RESPONDENTS

A rthur A. Benson II *
100 Walnut Street 
Suite 1125
Kansas City, MO 64106 
(816) 842-7603

James S. Liebman
Columbia University School 

of Law
435 West 116th Street 
New York, N Y  10027 
(212) 854-3423

Julius L. Chambers 
James M. Nabrit, III 
Norman J. Chachkin 

99 Hudson Street 
16th Floor
New York, NY 10013
(212) 219-1900

T heodore M. Shaw 
Eighth Floor 
634 South Spring Street 
Los Angeles, CA 90014
(213) 624-2405 

Counsel for Respondents
Jenkins, et al.

* Counsel of Record

David S. Tatel 
Allen R. Snyder *
Walter A. Smith, Jr .
Patricia A. Brannan 

Hogan & Hartson 
555 Thirteenth Street, N.W. 
Washington, D.C. 20004 
(202) 637-5741

Shirley W. Keeler 
Blackwell Sanders 

Matheny Weary 
& Lombardi 

Two Pershing Square 
Suite 1100 
2300 Main Street 
Kansas City, MO 64141 
(816) 274-6816 

Counsel for Respondent 
Kansas City, Missouri 
School District

* Counsel of Record

W i l s o n  - E p e s  P r i n t i n g  C o . ,  I n c . -  7 8 9 - 0 0 9 6  - W a s h i n g t o n , D . C .  2 0 0 0 1



In  T he

Olmtrt of tlj? Inttpli
October Term, 1988

No. 88-1150

State of Missouri, et al,
Petitioners,

Kalima Jenkins, et al.,
_________ Respondents.

On Petition for a Writ of Certiorari to the United States 
Court of Appeals for the Eighth Circuit

SUPPLEMENTAL BRIEF FOR RESPONDENTS

Pursuant to Rule 22.6, we submit this Supplemental 
Brief responding to the Supplemental Brief recently filed 
by the State of Missouri. The State contends that this 
Court’s decision in Davis v. Michigan Department of the 
Treasury, No. 87-1020 (March 28, 1989) “ confirms the 
impropriety of court-imposed taxes, whether designed to 
fund a remedy or otherwise”  and that this Court should 
grant review to determine “whether any differences” be­
tween Davis and Griffin v. County School Board, 377 
U.S. 218 (1964), justify the Eighth Circuit’s judgment in 
this case.

In fact, Davis broke no new ground at all, but simply 
reaffirmed a point this Court recognized long ago in 
Moses Lake Homes, Inc. v. Grant County, 365 U.S. 744 
(1961)— that where a state tax is found to unconstitu­
tionally discriminate against a federal interest (in con­
trast to the tax’s treatment of a state interest), a federal



2

court may not remedy the violation by restructuring the 
State’s taxation scheme and ordering imposition of a new, 
equal tax on the state interest; rather, the court should 

Simply declare the current state tax unconstitutional and 
leave to the local authorities the choice whether to re­
move all taxes on the state and federal interests, raise 
the tax on the state interest to match that on the federal 
interest, or impose a new, equal tax on both interests. 
Davis slip op. at 13-14 (citing Moses Lake Homes, 365 
U.S. at 752). For the court to act otherwise, Davis held, 
would constitute “ the direct imposition of a state tax, a 
remedy beyond the power of a federal court.” Slip op. at 
13-14. For three reasons, Davis’ reiteration of the Moses 
Lake holding has no implications whatever for the pres­
ent case.

First, as we explained in our briefs opposing cer­
tiorari,1 the judgment below certainly did not uphold 
“direct imposition of a [new] state tax” by the district 
court; 2 to the contrary, the Eighth Circuit expressly 
modified the district court’s order simply to set aside 
State laws which prevented local authorities from using 
an existing tax statute to select and impose a tax they 
found necessary to remedy their constitutional violation.

Second, quite unlike Davis and Moses Lake, this is cer­
tainly not a case in which several choices were available 
to the local authorities regarding the remedying of their 
constitutional violation. Rather, as both the district court 
and the Eighth Circuit expressly found, all other poten­
tial remedies except a property-tax increase by KCMSD 
had been tried and had failed, and only such an increase 
would meet KCMSD’s constitutional obligation.

Finally, far from the circumstances described in Davis, 
the lower courts have not ordered the “ direct imposition

1 KCMSD Brief at 6-8, 19-20; Jenkins Brief at 53 n.42.

2 The Eighth Circuit in fact reversed the district court’s income 
tax surcharge because that remedy “restructure [d] the State’s 
scheme of school financing” (Pet. App. 40a).



3

of a state tax” ; rather, relying on this Court’s decision 
in Griffin, those courts directed the local authorities to 
exercise the taxing power “that is theirs” to ensure 
vindication of the constitutional rights at issue. Griffin, 
377 U.S. at 232-33.

Accordingly, Davis adds nothing new to the State’s 
petition, does not stand for the proposition claimed by 
the State, and in no way calls into question the lower 
courts’ decision to set aside State laws which prohibited 
local authorities from using their taxing power to rem­
edy the constitutional violations at issue.

CONCLUSION

For the foregoing reasons, as well as those stated in 
our briefs in opposition, the petition should be denied.

Respectfully submitted,

A rthur A. Benson II *
100 Walnut Street 
Suite 1125
Kansas City, MO 64106 
(816) 842-7603

James S. Liebman
Columbia University School 

of Law
435 West 116th Street 
New York, N Y  10027 
(212) 854-3423

Julius L. Chambers 
James M. Nabrit, III 
Norman J. Chachkin 

99 Hudson Street 
16th Floor
New York, N Y  10013
(212) 219-1900

T heodore M. Shaw 
Eighth Floor 
634 South Spring Street 
Los Angeles, CA 90014
(213) 624-2405 

Counsel for Respondents
Jenkins, et al.

*  Counsel of Record

David S. Tatel 
A llen R. Snyder *
Walter A. Smith, Jr.
Patricia A. Brannan 

Hogan & Hartson 
555 Thirteenth Street, N.W. 
Washington, D.C. 20004 
(202) 637-5741

Shirley W. Keeler 
Blackwell Sanders 

Matheny Weary 
& Lombardi 

Two Pershing Square 
Suite 1100 
2300 Main Street 
Kansas City, MO 64141 
(816) 274-6816 

Counsel for Respondent 
Kansas City, Missouri 
School District

*  Counsel of Record