Hibbs v. Winn Brief Amicus Curiae in Support of Respondents

    No. 02-1809

In  THE

Supreme Court of the United States

J. Elliott H ibbs , Director, Arizona 
Department of Revenue, 

Petitioner, 
v.

K a th leen  m . W in n , et al, 
R espo n d en ts .

On Writ Of Certiorari To The 
United States Court of Appeals for the Ninth Circuit

BRIEF OF THE NAACP LEGAL DEFENSE & 
EDUCATIONAL FUND, INC. AS AMICUS 

CURIAE IN SUPPORT OF RESPONDENTS

El a in e  R. Jon es 
Director-Counsel 

T h eo d o r e  M. Sh a w  
*No rm a n  J. Ch a c h k in  
NAACP L e g a l  D efen se  
a n d  E d u c a tio n a l  Fu n d , 
In c .
99 Hudson Street, 16th FI. 
New York, NY 10013 
(212) 965-2200

*Counsel o f Record 

Counsel for Amicus Curiae



1

Table of Authorities.......................................................  I

Interest of Amicus Curiae ............................................. 1

Summary of Argument......................................................2

ARGUMENT..................................................................  3

Conclusion.............................   7

TABLE OF AUTHORITIES

Cases:

Allen v. County Sch. Bd. of Prince Edward 
County, 198 F. Supp. 497 (E.D. Va.
1961), a ff  d in pertinent part sub nom.
Griffin v. County Sch. Bd. of Prince
Edward County, 377 U.S. 218 (1964) . . . .  1,3-4

Allen v. Wright,
468 U.S. 737 (1 9 8 4 )................................  4, 5n, 6

Bob Jones Univ. v. United States,
461 U.S. 57 4 (1 9 8 3 ).................................. .. . 2, 5

Brown v. Board of Educ.,
347 U.S. 483 (1954) ......................................  1,3

TABLE OF CONTENTS

Page



Cases (continued):

Committee for Pub. Educ. v. Nyquist,
413 U.S. 75 6 (1 9 7 3 )..................................  2 , 4 , 6

Green v. Kennedy,
309 F. Supp. 1127, appeal dismissed 
sub nom. Cannon v. Green, 398 U.S.
956(1970)............................................................ 4

Green v. Connally,
330 F. Supp. 1150, a ff d mem. 
sub nom. Coit v. Green, 404 U.S.
997(1971).........................   4

Jean v. Nelson,
472 U.S. 846 (1985) ........................................... 6

Mitchum v. Foster,
407 U.S. 225 (1 9 7 2 )..........    2 ,7

Mueller v. Allen,
463 U.S. 388 (1 9 8 3 )..................................  2 , 4 , 6

Norwood v. Harrison,
413 U.S. 455 (1973) ......................................  1,4

South Carolina v. Regan,
465 U.S. 367 (1984) .........................................  5n

ii

TABLE OF AUTHORITIES (continued)
Page



Ill

Cases (continued):

Wright v. Miller,
480 F. Supp. 790 (D.D.C. 1979),
rev’d sub nom. Wright v. Regan, 656
F.2d 820 (D.C. Cir. 1981), rev’d sub
nom. Allen v. Wright, 468 U.S. 737
(1984) ............................................................ 5n-6n

Wright v. Regan, 656 F.2d 810 (D.C. Cir.
1981), rev’d sub nom. Allen v.
Wright, 468 U.S. 737 (1984) .......................... 5n

Statutes:

28U.S.C. § 1341 .................................... .............. .. . 1,3

28U.S.C. § 7421(a).......................................................  3

TABLE OF AUTHORITIES (continued)
Page

42 U.S.C. § 1983 1,2,7



BRIEF OF THE NAACP LEGAL DEFENSE & 
EDUCATIONAL FUND, INC. AS AMICUS CURIAE 

IN SUPPORT OF RESPONDENTS1

Interest o f  Amicus Curiae

The NAACP Legal Defense & Educational Fund, 
Inc. (LDF) is the nation’s oldest civil rights law firm. LDF 
and its Director-Counsel, Thurgood Marshall, litigated 
Brown v. Board o f Educ., 347 U.S. 483 (1954) and 
numerous other civil rights cases before this Court and the 
lower federal courts, including suits brought pursuant to 42 
U.S.C. § 1983.

In the period following Brown, LDF or the NAACP 
were involved in hundreds of lawsuits through which 
Brown was implemented in our nation. Among these were 
cases that invalidated various aid programs or other 
stratagems by which the Brown mandate was sought to be 
evaded. E.g., Norwood v. Harrison, 413 U.S. 455 (1973) 
(state-provided textbooks for students attending all-white 
private schools established in the wake of public school 
desegregation orders); Allen v. County Sch. Bd. o f  Prince 
Edward County, 198 F. Supp. 497 (E.D. Va. 1961) (tax 
credits for contributions to all-white private schools 
established after public schools were closed in the face of 
federal court desegregation order).

In none of these suits was the Tax Injunction Act, 
28 U.S.C. § 1341, which is the focus of the instant

'Letters of consent by the parties to the filing of this brief 
have been lodged with the Clerk of this Court. No counsel for any 
party authored this brief in whole or in part, and no person or entity, 
other than amicus, made any monetary contribution to its 
preparation.



2

litigation before this Court, a bar to federal jurisdiction. 
LDF files this brief as Amicus Curiae because of its 
concern that the result sought by Petitioner here would 
foreclose the availability of this federal forum for such 
purposes and to vindicate federal Constitutional rights.

Summary o f Argument

The interpretation of the Tax Injunction Act 
advanced by Petitioner here, and supported by the United 
States, has never previously been adopted by this Court. 
It would foreclose the availability of a federal forum to 
enforce Constitutional rights (such as First and Fourteenth 
Amendment rights) that are denied by the mechanism of 
tax deductions, credits, or exemptions. Had this reading of 
the statutes in question been in place at the time, this Court 
could well have been unable to decide Bob Jones Univ. v. 
United States, 461 U.S. 574 (1983), and it would have 
lacked subject matter jurisdiction in Mueller v. Allen, 463 
U.S. 388 (1983) and Committee fo r  Pub. Educ. v. Nyquist, 
413 U.S. 756 (1973), notwithstanding the importance that 
the Congress attached to the federal forum in enacting 42 
U.S.C. § 1983, see Mitchum v. Foster, 407 U.S. 225 
(1972). Particularly in light of the very' substantial time 
that elapsed between the statute’s enactment and the 
articulation of the interpretation now pressed by Petitioner 
and the United States, this result is not required by the 
language or history of the law and should be rejected by 
this Court.



3

ARGUMENT

Amicus files this brief to bring to the Court’s 
attention a perhaps as yet unnoticed and undesirable effect 
of a ruling in favor of Petitioner in this matter, particularly 
if it is grounded to any extent in arguments that have been 
presented to the Court by the United States.

In its filing in support of Petitioner, the United 
States has argued that the statute at issue in this case, the 
Tax Injunction Act, 28 U.S.C. § 1341, was modeled upon 
and should be interpreted in pari materia with the Anti- 
Injunction Act enacted in 1867, 28 U.S.C. § 7421(a). 
Respondents demonstrate in their Brief that the earlier law 
was not intended to, and has never been read by this Court 
to, bar all involvement by federal courts in matters o f tax 
administration, but merely to prevent pendente lite 
interruptions of the flow of federal tax collection and tax 
revenues. Therefore, we believe, the federal tax act offers 
no support for the broad ouster of federal jurisdiction to, 
e.g., enforce constitutional rights in § 1983 suits by 
enjoining the inappropriate granting of tax exemptions or 
tax credits by state officials.

A contrary ruling by this Court — especially if  it 
rests explicitly upon the interpretive model proffered by 
the United States — would have widespread and severe 
consequences. If it had been in force at the time when 
Brown v. Board ofEduc., 341 U.S. 483 (1954) began to be 
implemented, as Respondents point out in their Brief it 
would have foreclosed attacks in federal court on state aid 
to segregated schools through tax exemption or tax credits 
such as were involved in Allen v. County Sch. Bd. o f  
Prince Edward County, 198 F. Supp. 497, 501-03 (E.D.



4

Va. 1961), a ff’d in pertinent part sub nom. Griffin v. 
County Sch. Bd. o f Prince Edward County, 377 U.S. 218, 
232-33 (1964).

As Respondents also observe, this reading of the 
law could create incentives for states to fashion new forms 
of indirect (tax exemption or credit) aid of debatable 
constitutionality. A program of state support, through tax 
deductions or tax credits, for the purchase of textbooks to 
be used by children attending private schools established 
to avoid public school desegregation, for example, see 
Norwoodv. Harrison, 413 U.S. 455 (1973), couldnothave 
been challenged on Fourteenth Amendment grounds in the 
lower federal courts if  the government’s interpretation had 
been accepted at that time.

Far worse, however, is the fact that the 
government’s “in pari materia” argument would support 
a similar interpretation of the federal Anti-Injunction act. 
Just as the government’s argument (had it been the law at 
the time) would have meant that this Court lacked subject 
matter jurisdiction in Mueller v. Allen, 463 U.S. 388 
(1983) and Committee fo r  Pub. Educ. v. Nyquist, 413 U.S. 
756 (1973), the same interpretation of the federal Anti- 
Injunction Act could have meant that the federal courts 
were without subject matter jurisdiction even to entertain 
Green v. Kennedy, 309 F. Supp. 1127, appeal dismissed 
sub nom. Cannon v. Green, 398 U.S. 956 (1970), 
subsequent ruling, Green v. Connally, 330 F. Supp. 1150, 
a ff’d mem. sub nom. Coit v. Green, 404 U.S. 997 (1971) 
and Allen v. Wright, 468 U.S. 737 (1984).

Such a wrongheaded interpretation of Congress’ 
intent would have meant that the Court would not have



5

been able to decide Bob Jones Univ. v. United States, 461 
U.S. 574 (1983). For in that case, the Court would have 
lost jurisdiction because of mootness had the government 
been permitted —  as it sought to do — to restore the 
school’s tax-exempt status after this Court granted review, 
see 461 U.S. at 585 n.9. The reason this did not happen 
was that the United States Court of Appeals for the District 
of Columbia Circuit did have subject matter jurisdiction2 
to hear a challenge to the government’s tax-exemption 
policy and to issue an injunction pendente lite to preserve 
the status quo ante with respect to Bob Jones University or 
any other institution which maintained a policy of racial 
discrimination. See id.3

2In Wright v. Regan, 656 F.2d 820, 836 n.52 (D.C. Cir. 
1981) (R. Ginsburg, J.), rev ’d on other grounds sub nom. Allen v. 
Wright, 468 U.S. 737 (1984), the Court of Appeals held that the 
Anti-Injunction Act did not apply where the plaintiffs challenged the 
grant of tax exemptions to segregated private schools. This Court 
ultimately ruled in Allen v. Wright that the plaintiffs lacked standing, 
but there appeared to be no question of subject matter jurisdiction.

3It was not until nearly a year after the Bob Jones ruling that 
this Court read into the Anti-Injunction Act — even when its reach 
was confined, as it still is, to suits that would reduce the collection 
of government revenues — an exception where “[Congress] has not 
provided an alternative remedy,” South Carolina v. Regan, 465 U.S. 
367, 378 (1984). Thus, at the time the injunction issued in the 
Wright case, see supra note 2, it is likely that the suit would have 
been barred if the Anti-Injunction Act were interpreted to apply.

Of course, no one (including, apparently, the United States 
or the Internal Revenue Service) thought it did apply, and it was not 
among the reasons given by the District Court for dismissing the 
suit. Wright v. Miller, 480 F. Supp. 790 (D.D.C. 1979), rev’dsub



6

The persuasiveness of the government’s argument 
is further weakened by the fact that it is being urged so late 
in the history of the tax injunction statutes. Because the 
Tax Injunction Act limits subject matter jurisdiction, the 
failure of the parties and of this Court to raise it in Mueller 
or Nyquist underscores that the Act simply has never 
before been read in the manner now advanced by the 
Petitioner and the government.

It is also surprising, if the government is correct, 
that the federal Anti-Injunction Act was neither discussed 
nor relied upon in Allen v. Wright. A holding that the 
lower courts lacked subject matter jurisdiction because of 
the statute — an issue of which the Court must have been 
aware because it was discussed by now-Justice Ginsburg 
in the opinion supporting the judgment being reviewed, 
see supra note 2 — would have avoided the constitutional 
standing decision that the Court announced in Wright, an 
approach to adjudication that under this Court’s 
longstanding traditions is strongly preferable. E.g., Jean 
v. Nelson, 472 U.S. 846, 854 (1985) (Rehnquist, J.) and 
cases cited.4

nom. Wright v. Regan, 656 F.2d 820 (D.C. Cir. 1981), rev’d sub 
nom. Allen v. Wright, 468 U.S. 737 (1984).

4“‘Prior to reaching any constitutional questions, federal 
courts must consider nonconstitutional grounds for decision. ’ Gulf 
Oil Co. v. Bernard, 452 U.S. 89, 99 (1981); Mobile v. Bolden, 446 
U.S. 55, 60 (1980); Kolender v. Lawson, 461 U.S. 352, 361 n.10 
(1983), citing Ashwander v. TV A, 297 U.S. 288, 347 (1936) 
(Brandeis, J., concurring). This is a ‘fundamental rule of judicial 
restraint.’ Three Affiliated Tribes o f Berthold Reservation v. Wold 
Engineering, 467 U.S. 138 (1984).” 472 U.S. at 854.



7

The Court should not change this longstanding 
reading of the tax injunction acts, especially when to do so 
would deprive litigants of a federal forum in which to raise 
Constitutional claims through 42 U.S.C. § 1983. As the 
Court recognized in construing another federal anti­
injunction law, “Section 1983 was . . .  a product of a vast 
transformation from the concepts of federalism that had 
prevailed in the late 18th century when the anti-injunction 
statute was enacted. The very purpose of § 1983 was to 
interpose the federal courts between the States and the 
people, as guardians of the peoples federal rights—to 
protect the people from unconstitutional action under color 
of state law . . . Mitchum v. Foster, 407 U.S. 225, 242 
(1972). Nothing in the language or history of the Tax 
Injunction Act suggests that Congress was departing from 
this historic purpose in 1937.

CONCLUSION

The judgment below should be affirmed.



Respectfully submitted,

E l a in e  R. Jo n es  
Director-Counsel 

T h e o d o r e  M . Sh a w  
*N o r m a n  J. C h a c h k in  
NAACP L e g a l  D e fe n se  
a n d  E d u c a t io n a l  F u n d , 
In c .
99 Hudson Street, 16th FI. 
New York, NY 10013 
(212) 965-2200

*Counsel o f  Record

Counsel for Amicus Curiae