Jefferson County v. Acker – Oral Argument – March 29, 1999

Media for Jefferson County v. Acker

Audio Transcription for Opinion Announcement – June 21, 1999 in Jefferson County v. Acker

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William H. Rehnquist:

We’ll hear argument first this morning in No. 98-10, Jefferson County, Alabama v. William Acker.

Mr. Sewell.

Jeffrey M. Sewell:

Mr. Chief Justice, and may it please the Court:

I want to speak to you first this morning about the jurisdiction issues in this case.

This case presents the question of how, not whether, but how the Tax Injunction Act applies to a tax collection case removed to Federal court.

That, in turn, depends on whether the act is interpreted and applied as a broad jurisdictional barrier or simply as a limitation on a court’s remedial power.

We say that the… the act should be applied broadly to keep collection cases out of Federal court altogether because any lesser approach, any more narrow approach is just… is unworkable.

William H. Rehnquist:

Well, in this case, Mr. Sewell, the… the county brought the action in State court, didn’t it, to collect the taxes?

Jeffrey M. Sewell:

Yes, sir.

William H. Rehnquist:

And then the defendants… the judges removed it to Federal court.

Jeffrey M. Sewell:

That’s right.

William H. Rehnquist:

And so, it… you say at that point the Tax Injunction Act applied to prevent the State from… from collecting a tax?

Jeffrey M. Sewell:

I say that the Tax Injunction Act ought to apply to a tax collection case whether it’s removed by a defendant by a taxpayer to Federal court or whether we had brought the case ourself in Federal court.

I think the Tax Injunction Act should bar… should keep these cases out of Federal court for a number of reasons.

The–

Go ahead.

Jeffrey M. Sewell:

–The reason is, is because if you have some lesser approach, it’s just not workable.

The Tax Injunction Act is going to apply in some form or fashion if a case is removed, a collection case is removed.

For… for example, if you go into Federal court in a tax collection case, the… it seems to me that that would allow the taxing authority, me in this case, the government, to use the Tax Injunction Act as both a sword and a shield to whipsaw a taxpayer.

William H. Rehnquist:

Well, what… what if this action had been brought in State court to collect taxes on the basis, say, of diversity of citizenship, and it was removed on that basis to the Federal court and there was no claim that the tax was unconstitutional?

Maybe there was just a claim that it had been paid and the county said, no, it hasn’t been paid.

You think the Tax Injunction Act would still apply?

Jeffrey M. Sewell:

Yes, Your Honor, I do.

I believe… and I look to footnote 22 partially of the Grace Brethren Church opinion.

William H. Rehnquist:

Well, that’s not the greatest place to look for controlling law.

[Laughter]

Jeffrey M. Sewell:

I thought it was a good place to look.

[Laughter]

And… and when I went back and read that footnote, that footnote gives a very thorough history and analysis of the Tax Injunction Act, and it quotes the Senators and the Members of Congress that were responsible for enacting that act.

And that footnote demonstrates… demonstrated to me conclusively that the purpose of the Tax Injunction Act, the central purpose, was to keep a Federal court from interfering in any manner in a State tax if there’s an adequate State remedy.

Jeffrey M. Sewell:

That seems to me to be the… the clear purpose.

Ruth Bader Ginsburg:

Well, then why didn’t the act simply say the Federal courts have no jurisdiction in State tax cases?

Jeffrey M. Sewell:

I think that the act… I wish that the act had… had said that, and I think that that’s… you know, the act talks in terms of Federal courts not having the jurisdiction to… to enjoin, suspend or restrain a levy, assessment, or collection of a State tax.

But, in effect, Your Honor, that’s what happened here.

Ruth Bader Ginsburg:

I don’t understand that because the… the suit didn’t change its shape from being a suit to collect, not a suit to enjoin, but a suit to collect.

That’s what it was.

Jeffrey M. Sewell:

That’s right.

Ruth Bader Ginsburg:

And that was what was removed, and it remains a suit to collect.

Jeffrey M. Sewell:

It does, and the… I’m assuming that the purpose of the Tax Injunction Act, the overreaching purpose, is to prevent a Federal court from interfering with the collection or the administration of State tax, and I believe that’s what the Court’s Grace Brethren Church opinion, specifically footnote 22… that’s exactly what it said.

Now, the… the way I see this, the… in this case, the Federal court did interfere with the collection, not only of our tax.

In this case… this case has stopped us from collecting the tax not only from the respondents, but from all the Federal judges in the Northern District.

It’s exposed us to refund suits from the other judges who paid the tax other… other than these two respondents.

It’s resulted now in hundreds of Federal employees that work in Jefferson County refusing now to pay the tax, demanding explanations from us as to… as to why they have to pay if the judges don’t have to pay.

We’re having now to respond to all of that, and it looks as though we may… we may have to–

Anthony M. Kennedy:

Well, why would that be any different as if it were just in State court and a State court judge said, well, I have real problems with this?

I’m going to take it under submission, and the word gets out.

It’s the same thing.

Jeffrey M. Sewell:

–I think that there would… we may have some… some of the same results, but I think again the purpose of the Tax Injunction Act is to keep the Federal court from doing that.

William H. Rehnquist:

But the purpose of diversity jurisdiction is to provide a… basically a more neutral forum perhaps than the State court but to resolve the case in exactly the same way that the State court would have resolved it.

So, if… if there had been a decision of the Alabama court saying that this was… couldn’t be applied to… you’d have the same claims, wouldn’t you, on the part of Federal employees?

Jeffrey M. Sewell:

I think that you may have some of the same results and you may have some of the same displeasure from the Federal employees, certainly.

Certainly.

Antonin Scalia:

What if the Alabama Supreme Court finally decides that the tax can be collected and then certiorari is sought here?

I mean, it stays in the Alabama court.

It goes all the way–

Jeffrey M. Sewell:

This case.

Antonin Scalia:

–Yes.

It goes all the way to the supreme court, and the supreme court says the tax can be collected.

And then the judges seek certiorari.

We grant certiorari.

Antonin Scalia:

If we reverse the Alabama Supreme Court, would we be enjoining a State tax?

Jeffrey M. Sewell:

Well, Your Honor, I think that–

Antonin Scalia:

Under your analysis, we would I suppose.

Jeffrey M. Sewell:

–I think this Court would certainly have appellate jurisdiction to review the decision of the Alabama Supreme Court.

Antonin Scalia:

Yes, but under your broad definition of what constitutes the… the… enjoining of a State tax… namely, to give a judgment against a person who is resisting the collection of a State tax… we would be violating the Anti-Injunction Act.

Jeffrey M. Sewell:

I think that your jurisdictional… and I understand your point and you’re correct, but your… your basis for an appellate review of a State court decision is different from what I’m suggesting to you.

I’m talking about jurisdiction at the trial level, the initial Federal jurisdiction.

Perhaps I’m using… I’m painting with too broad of a brush.

Maybe I am.

Sandra Day O’Connor:

Do you plan to argue that removal was improper under section 1442(a)(3)?

Jeffrey M. Sewell:

Yes, ma’am.

Sandra Day O’Connor:

I’m not sure you’re going to win on your tax injunction argument.

I wondered if you wanted to pursue that other inquiry.

Jeffrey M. Sewell:

Yes, ma’am.

I had planned to argue that.

We feel that under 1442 that… that neither test is met because refusing to pay taxes is not an act done under the color of a judge’s office, and it’s not done in the performance of any judicial duty.

I know of no Federal statute, I know of no act of Congress that… that instructs a judge to not pay his or her taxes.

Sandra Day O’Connor:

I guess the inquiry under 1442 is pretty much tied up with the merits of whether the tax can be imposed.

Jeffrey M. Sewell:

I think that… that perhaps it is, and I certainly… and I don’t suggest to you that… that… that the judge would have to win on the merits to… to have jurisdiction.

But I… I do suggest to you that there has to be something colorable about the defense that’s pled, and to me if… if… if the people in Mesa v. California couldn’t convince the Court that… that when they ran over somebody in their… in their postal buggies that they were engaged in their official function, I don’t see how not paying a tax would satisfy that.

Certainly if these judges didn’t pay Alabama’s income tax–

Anthony M. Kennedy:

But… but this tax says that it’s unlawful to perform the function, i.e., it’s unlawful to be a judge if you don’t pay the tax.

Jeffrey M. Sewell:

–No, sir.

I disagree with that.

The tax… the ordinance says that it’s unlawful to work in the county without paying the tax.

The court of appeals seized on that language, but that… what they failed to do… they failed to do two things.

One of those things was they failed to recognize the difference between a license tax which is for revenue purposes, which is what ours is, which stems from our taxing power, versus a license tax for regulatory purposes which stems from the police power.

Sandra Day O’Connor:

Let me ask you this.

Does the county have any authority to impose an income tax?

Jeffrey M. Sewell:

No, ma’am.

Jeffrey M. Sewell:

We’re prohibited from doing that by the Alabama constitution.

Sandra Day O’Connor:

And yet, for you to prevail, you have to persuade us that this is in fact an income tax.

Jeffrey M. Sewell:

Under Federal law it clearly is an income tax.

Sandra Day O’Connor:

Even though the county lacks the power to–

Jeffrey M. Sewell:

Under State law.

Sandra Day O’Connor:

–impose an income–

Jeffrey M. Sewell:

Just as in Howard v. Commissioners, yes, ma’am.

Stephen G. Breyer:

–Why is it clearly an income tax?

It doesn’t say it’s an income tax.

Jeffrey M. Sewell:

No, sir.

It is clearly under Alabama law a license tax.

Stephen G. Breyer:

Yes, fine.

So, you said, to win, which I think you’re right, that you’d have to persuade us it’s an income tax.

All right.

Why is it an income tax?

Persuade us or me.

Jeffrey M. Sewell:

I will persuade you, Your Honor.

I’ll try to persuade you with the… with the Howard v. Commissioners decision where you all persuaded me–

[Laughter]

–that a… that a license–

Stephen G. Breyer:

I must not have written that.

[Laughter]

Jeffrey M. Sewell:

–that a license tax in Louisville, Kentucky that is indistinguishable from our tax was an income tax under the Buck Act.

Stephen G. Breyer:

And why… why is it… I mean, this… why is it basically an income tax?

Jeffrey M. Sewell:

Because the Buck Act makes it an income tax.

Congress… Congress converted all State and local license taxes to be income taxes under Federal law.

Stephen G. Breyer:

So… so, if you pass a tax that says anybody who… anybody… take an unpopular matter.

Anyone who applies the Federal sentencing guidelines will pay a tax measured by their income.

Is that an income tax?

Jeffrey M. Sewell:

That is a… I would think, a discriminatory tax that would violate the–

Stephen G. Breyer:

Yes, but is it an income tax?

Jeffrey M. Sewell:

–I don’t know.

Stephen G. Breyer:

All right.

Now, here they’re… we read the opposition’s brief and they say, first, it doesn’t say it’s an income tax, and second, there are vast numbers of employees who don’t pay it measured by their income.

They pay it measured by $50 a year.

They include… we just have the A’s I guess… architects, attorneys, auctioneers, automobile dealers, automobile accessory dealers, and that’s only the A’s and I’m only halfway through.

All right?

So… so, vast numbers of people pay $50 a year, $125 a year.

Some people pay it measured on their income, and it’s also not called an income tax and it would be illegal to… to have one under State law.

Okay, now, why is it an income tax?

Jeffrey M. Sewell:

Your Honor, in answer to your question, I disagree first with the word vast.

92 percent of the people who earn wages in our county pay our tax.

92 percent.

8 percent pay license fees to the State of Alabama, and those are predominantly Federal employees.

Stephen G. Breyer:

Where does that number come from?

Jeffrey M. Sewell:

It comes… that is… that number is not in the record because this issue was never raised until we got to this Court.

Stephen G. Breyer:

Well, how would I find out whether… you know, I see a big list of occupations.

How do I know… how am I supposed to find that out?

Jeffrey M. Sewell:

Well, this… this information is not in the record, nor is the fact that 1,209 of the 12,000 Federal employees in Jefferson County… 1,209 of them… pay State license fees and do not pay our tax.

Anthony M. Kennedy:

In the Howard case that you rely on, were there categories by business as… as your ordinance has it?

Jeffrey M. Sewell:

Exemptions.

Some, yes, there are some.

Some of them were.

Some were, of course, domestic servants–

Anthony M. Kennedy:

So, you could be either an employee in sort of a catchall group or a person with a specific business and you had to pay different rates according–

Jeffrey M. Sewell:

–As I understand it, yes.

–to your business?

That… that was… that was the… the pattern of ordinance in Howard?

Jeffrey M. Sewell:

There was… there was… yes, sir.

There was a separate law, and whether it was a State law or whether it was a city law, that I don’t know.

Jeffrey M. Sewell:

But it… but when you read it carefully, you see that it applies to insurance companies and then other corporations, persons that are taxed by these other sections of Louisville law or by Kentucky law.

So, the Louisville occupational tax had exemptions.

I don’t know how broad they were.

I don’t know how narrow they were.

I know how narrow ours are.

It’s only 8 percent of the people.

I don’t know how… how broad or narrow Louisville’s was.

Anthony M. Kennedy:

Yours… yours doesn’t look like an income tax because it’s… it’s on gross receipts.

There are no deductions.

But that was also true of the Howard case.

Jeffrey M. Sewell:

That’s right.

William H. Rehnquist:

And the Buck Act defines income tax very broadly, doesn’t it?

Jeffrey M. Sewell:

It does.

William H. Rehnquist:

It’s any tax levied on with respect to or measured by net income, gross income, or gross receipts.

Jeffrey M. Sewell:

And ours is, yes, sir.

There’s no dispute about that.

John Paul Stevens:

But don’t you have the additional problem, your license fee or tax or whatever it is is arguably discriminatory under Davis against Michigan?

Jeffrey M. Sewell:

No, sir.

Our tax does not… our tax does not discriminate against any person, Federal or otherwise.

John Paul Stevens:

All the people… all the people on the list that Justice Breyer referred to don’t pay it.

Jeffrey M. Sewell:

The… I understand.

John Paul Stevens:

The architects, barbers, hair dressers, all that list.

Jeffrey M. Sewell:

As I understand–

John Paul Stevens:

And they do not pay it.

Jeffrey M. Sewell:

–Well, I think that there is… I think that there is factual discrimination because we have… our tax applies to this group and the State levies its license fee on the others.

And what that is is just a simple division of taxing authority.

John Paul Stevens:

Yes, but the… but the amount that is paid by the respective people in the different jobs is quite different from the amount the judges have to pay.

Jeffrey M. Sewell:

Some.

Some are and… and some are not.

John Paul Stevens:

Well, they all are, aren’t they?

Jeffrey M. Sewell:

It depends on how–

John Paul Stevens:

They’re all flat fees, aren’t they?

Jeffrey M. Sewell:

–It depends on how much… how much money a person makes.

John Paul Stevens:

Are there any of those which the license fee is as high as the income tax on the judges?

Jeffrey M. Sewell:

Well, if… if a… yes.

Depending on… depending on a… how much a person would make, they could pay more instead of less–

John Paul Stevens:

Well, you know what Federal judges make and you know what the license fees are.

I was under the impression that none of the license fees were as high as the tax on the judge.

Jeffrey M. Sewell:

–Okay, I’m with you, and I don’t… I don’t know if it is.

I really don’t.

I doubt that it is, but–

John Paul Stevens:

But assuming that’s true, why… how then do you get around Davis against Michigan?

Jeffrey M. Sewell:

–Because I read Davis v. Michigan as… as the problem with that tax was that it discriminated against Federal employees by favoring State employees–

Right.

Jeffrey M. Sewell:

–because of the source of the compensation, which is what the Public Salary Tax Act says.

There may be other forms of factual discrimination.

William H. Rehnquist:

That wasn’t the basis, though, of the Eleventh Circuit’s decision here, was it, that it discriminated?

Jeffrey M. Sewell:

The Eleventh Circuit said… noted that the trial court found that the tax did not discriminate and went on to say the judges didn’t appeal it, and so they were not going to address it.

Ruth Bader Ginsburg:

And is it true, Mr. Sewell… Mr. Sewell, is it true that this tax would apply to State court judges in the same way it applies to Federal judges?

Jeffrey M. Sewell:

It applies to all constitutional officers of the State of Alabama.

Ruth Bader Ginsburg:

And the same with prosecutors.

Jeffrey M. Sewell:

Yes, ma’am, who work in Jefferson County, Alabama.

David H. Souter:

So, the State court judges are taxed on their income in the same–

Jeffrey M. Sewell:

Just like the Federal judges, and the Alabama Supreme Court Justices, three of those who have offices in our county, satellite offices, pay the–

Stephen G. Breyer:

–Prosecutors are not.

The prosecutors are not.

Jeffrey M. Sewell:

–Prosecutors may be… I think prosecutors are required to have a State law license.

Stephen G. Breyer:

So, they pay… they don’t pay one-half of 1 percent of their income.

Jeffrey M. Sewell:

They pay the State law license.

Stephen G. Breyer:

They pay $200 a year flat or something like that.

Stephen G. Breyer:

That would be the same for the U.S. Attorney, though, wouldn’t it?

Jeffrey M. Sewell:

Yes, ma’am.

That’s very important.

It’s also true for the doctors who work at the VA hospital.

We have a large VA hospital.

All of the doctors and all of the nurses are required by their Federal job descriptions to have a State physician’s license to practice medicine and the nurses are required to have a State nursing license to be a nurse for the Federal Government.

Antonin Scalia:

Mr. Sewell–

Jeffrey M. Sewell:

Yes, sir.

Antonin Scalia:

–I want to erase a… a stupid question I asked.

The answer to my question about the supreme court in deciding this case would be violating the Tax Injunction Act.

Unfortunately, the act was not reproduced in your brief.

Having dug it out, I find it only applies to district courts, doesn’t it?

Jeffrey M. Sewell:

Yes.

Antonin Scalia:

That’s the right answer.

Jeffrey M. Sewell:

Yes, sir.

Thank you.

I wish I had thought of that.

[Laughter]

I would like to reserve the rest of my time, please, if there’s no more questions.

William H. Rehnquist:

Very well, Mr. Sewell.

Mr. Jones, we’ll hear from you.

Kent L. Jones:

Mr. Chief Justice, and may it please the Court:

The Tax Injunction Act bars only anticipatory relief against State taxation in Federal courts.

As Justice Stone said for this Court in Matthews v. Rodgers, which is cited in the legislative history of the Tax Injunction Act, although injunctions against State taxes should not be heard in Federal courts, Federal courts remain competent to decide questions of State law, and therefore can adjudicate collection and refund cases brought in Federal court so long as the essential elements of Federal jurisdiction are present.

It’s our position that in this case, the essential elements of Federal jurisdiction are not present.

The only asserted basis for Federal jurisdiction is the Federal removal statute which does not apply here because the action of the judge in refusing to pay a tax on his private income is not an act taken under color of authority or pursuant to his duties as a Federal officer.

In the removal petition, respondents incorrectly stated that the tax was imposed on the act of performing their official duties.

That’s not correct.

The tax is imposed on, it’s calculated on and assessed on their earnings.

And this Court made clear in the O’Malley v. Woodrough case that the responsibility of Federal judges to pay taxes on their earnings derives from their private responsibilities as citizens and that they have the same responsibility as everyone else to share in the costs of paying for the benefits the government provides.

Anthony M. Kennedy:

But the way the tax is designed is that you are… it is illegal to engage in the duties unless you pay the tax.

You don’t have simply a financial liability for the tax.

Kent L. Jones:

I don’t–

Anthony M. Kennedy:

There… there is a prohibition to… against engaging on the duties themselves.

Kent L. Jones:

–What it really says is it’s unlawful to do it without paying the tax, and then you have to see what that means.

What that means is if you don’t pay the tax, you have to pay interest and penalties.

There are no other enforcement mechanisms in this case.

We would have a vastly–

Sandra Day O’Connor:

Does it matter at all that under State law the county is prohibited from imposing an income tax?

Do we care about that?

Kent L. Jones:

–Not on–

Sandra Day O’Connor:

They can’t do it.

It’s ultra vires.

Kent L. Jones:

–Well, let’s go right to the merits.

I’ve just been talking about jurisdiction.

But on the merits, no.

The income–

Sandra Day O’Connor:

I think the removal argument is tangled up a little bit with–

Kent L. Jones:

–Well, it shouldn’t be because the… there is no question that they… they need to show a colorable Federal defense.

But the existence of a colorable Federal defense doesn’t dispose of the requirement that the act for which they were sued be one that they took in their official capacities.

And it’s our position that… that any Federal officer who doesn’t pay his Federal… his State or local taxes is acting in a private capacity.

Antonin Scalia:

–Some judges in this jurisdiction have paid the tax.

Right?

And… and presumably would have been violating their duties if… if resisting the tax was part of the Federal responsibilities of these people.

Kent L. Jones:

I just don’t think Federal duties apply in any direction on… on the private decision about paying your tax on your personal income.

The Supreme Court in… in O’Malley seems to me to have made that point.

David H. Souter:

It seems to me a Federal judge could have taken the position that it is simply unlawful to condition under State law my performance of my Federal powers and exercise of my Federal responsibility.

And… and if the case is looked at that way, then the… the removal I suppose is in a different posture.

Kent L. Jones:

If… we have… in deciding whether removal is proper, you have to look at what case was brought in State court.

If there were a case brought in State court that said that this judge should be enjoined or should be prevented from performing his official functions, then the judge could remove the case and say that what’s at issue is my official acts, whether I can perform my official function.

David H. Souter:

Well, here the judges I suppose could have taken the position that the… that the disposition of the case that was brought was simply a… a predicate to what could have been an injunction against their performance of their… their Federal responsibilities.

Kent L. Jones:

Well, I don’t think it is a predicate to an injunction.

I don’t think and none of the courts below thought that an injunction could possibly be issued.

David H. Souter:

Why not?

Kent L. Jones:

Well, if for no other reasons, inequity wouldn’t… the legal remedy of collecting the tax is sufficient, but beyond that, what this tax says is what’s unlawful… what happens when it’s unlawful and the tax isn’t paid is interest and penalties.

It doesn’t say anything beyond that.

David H. Souter:

Well, it provides for interest and penalties, but I suppose if there is arguably a prohibition against the exercise of the… of the professional responsibilities, State equity would… would enforce it.

Kent L. Jones:

If this… again, if the State… if the suit in State court arose in connection with that act, that would be the act at issue in the removal.

The act at issue in this case was paying the tax and that was a private act, not an official act.

On the merits–

Anthony M. Kennedy:

Well, just… just… on… on that point, in… this district has multiple locations.

If the chief judge of the district says you must come to Birmingham and try this class action for a year and a half, the judge has no choice.

That’s… he’s exercising his official duty.

Kent L. Jones:

–That may well be and it may well be true too that when a Federal judge goes to different States… I mean, an appellate judge goes to different States, he might become subject to their taxes also.

On the merits–

Stephen G. Breyer:

Doesn’t it say on… the language of it is it is called a license fee for the privilege of engaging in or following such vocation or occupation.

It doesn’t… it says in the statute that it’s for the privilege of engaging in the vocation.

Kent L. Jones:

–The… this issue is already well plowed in this Court’s cases.

In Howard v. County Commissioner, the Court upheld a similar business privilege tax against the very objection that the tax was an improper license fee on Federal workers.

Stephen G. Breyer:

No.

The objection here is it isn’t income tax.

They don’t even measure it by income.

They measure it by gross receipts.

Kent L. Jones:

Well, the tax doesn’t have to be an income tax to be valid.

The Public Salary Tax Act authorizes a tax on pay or compensation.

The Buck Act authorizes a tax on… authorizes an income tax but defines that by statute to mean any tax on income.

Stephen G. Breyer:

Or gross receipts.

Kent L. Jones:

Yes, and… well, income as used in the broadest sense, as near as we can tell from looking at that statute.

And this Court has defined that term to mean any accretion to wealth.

So, this tax doesn’t have to be a Federal income tax or a State income tax.

Kent L. Jones:

It has to be a tax on income, which it is.

And in… in Howard v. Commissioner, the Court said the fact that the tax is described is in the form of or labeled as a license fee doesn’t make it invalid.

What is… what matters is that it’s practical operation is to tax the income of Federal officers.

If in its practical operation it taxes their income, it is valid regardless of the form or label applied.

Antonin Scalia:

Do you have any thoughts on the merits?

Kent L. Jones:

That’s what I was kind of working on there, Justice Scalia.

[Laughter]

The only other thought I have on the merits is that their contention that discrimination prohibits this tax is simply wrong.

In Davis v. Michigan, the kind of discrimination the Public Salary Tax Act prohibits is discrimination based on the sovereignty of the employees.

This is not like the pension discrimination involved in Davis v. Michigan where State workers were treated better than Federal workers.

Under this tax scheme, it appears that regardless of whether you’re a Federal worker, a State worker, a private worker, the tax applies the same way to you.

It’s true that there are exemptions in the State… in the county tax provision for undertakers and barbers, for people who are already licensed under the State licensing scheme, and the evident purpose of those objections is to avoid a double tax on these previously licensed professions.

Those kinds of equalizing adjustments don’t discriminate on the basis of sovereignty.

They apply equally and this case does not present any question about equal protection issues whether these kinds of discriminations satisfy the rational basis standard because those issues weren’t raised below.

The only discrimination issue involved under the Buck Act is… under the Public Salary Tax Act is whether the statute discriminates because these are Federal workers, and the answer to that is not.

Ruth Bader Ginsburg:

Mr. Jones, if we should agree with you about that issue on the merits, what about the issue that the Eleventh Circuit didn’t decide and that is the diminution of compensation?

Would we–

Kent L. Jones:

Well, the O’Malley v. Woodrough, the Court held that… that a tax on the incomes of Federal judges would not be a diminishment of their compensation for Article III purposes.

John Paul Stevens:

–Mr. Jones, I don’t think the tax in Michigan discriminated against the Federal workers because they were Federal workers.

It just treated them like every other citizen in the State, discriminated in favor of a very small group of State workers.

Kent L. Jones:

It did discriminate on the basis of sovereignty, though, and I believe you dissented in this case.

John Paul Stevens:

I did.

[Laughter]

I think the cases are quite similar.

Kent L. Jones:

It’s the majority’s view is what I was trying to describe.

[Laughter]

John Paul Stevens:

Yes.

You’re not asking us to reexamine Davis, though.

Mr. Jones, you’ve repeated several times about your reliance on O’Malley against Woodrough, and yet it isn’t cited in the government’s brief.

Could you file a citation to that with the clerk?

Kent L. Jones:

It’s certainly cited, if not in our brief, in one of the briefs.

But I will… I’ll provide you with the citation, and… and perhaps Mr. Sewell can give it to you in his reply.

William H. Rehnquist:

Thank you, Mr. Jones.

Mr. Morrison, we’ll hear from you.

Alan B. Morrison:

Mr. Chief Justice, and may it please the Court:

Before turning to the merits, I want to deal with the justiciability Tax Injunction Act issue and the removal which are all kind of tied together in our view.

This case was removed from the small claims division of the State court of Alabama by the respondents, two Article III Federal judges, and they alleged in their removal petition that the provision that the… both the Justice Kennedy and Justice Souter focused on about the unlawful… making it unlawful to engage in the occupation was tantamount to an imposition of a licensing requirement by the county upon Federal judges, which if carried out, would interfere with their Federal… carrying on the duties of Federal judges.

For purposes of removal, that is clearly a kind of Federal immunity defense, saying that the Constitution does not allow Jefferson County to do that.

If ultimately we are wrong on the merits… and I’ll try to explain why we don’t think we are… that would not have allowed us… that would not defeat the removal.

But significantly for removal I want to point out that at no time did Jefferson County in the district court or in the court of appeals suggest that removal was improper.

And the rules… the statute requires that removal be objected to within 30 days or at least by the… if you allege that this is subject matter jurisdiction, which I’m not sure whether it is or not, that has to be done by the time of final judgment.

So, even this Court’s decision in the Caterpillar case… Mr. Chief Justice, I do not cite that in my brief, but it was a recent decision a couple of years ago… allowing these removal issues to be raised later–

William H. Rehnquist:

You do not cite decisions that are only 2 years old?

[Laughter]

Alan B. Morrison:

–Your Honor, I… I didn’t think of it until I saw what their reply brief said, and that… I wasn’t sure that it was going to come up until I was actually preparing for my argument today.

In any event, I’m not sure whether it’s jurisdictional or not, but in any event, it was never raised and we think it’s–

Ruth Bader Ginsburg:

If it is, it’s pretty important because the Court would then have an obligation to remand on its own.

Alan B. Morrison:

–That is correct.

Ruth Bader Ginsburg:

And in Caterpillar, that was… going in, that was recognized that this Court should have remanded.

The problem was we were at the end of the line.

There was at that point complete diversity.

So, it was a very practical oriented decision.

It said that the district court did wrong in not remanding.

It should have done that in the beginning.

Alan B. Morrison:

But in this case they were never asked to remand on the grounds of 1442(a)(3).

The provision that allows officers of the courts of the United States to remove should not have been invoked.

The only basis for saying that the case was not properly in Federal court was the provision of the Tax Injunction Act, and that was what the petitioner relied upon.

In any event–

Ruth Bader Ginsburg:

I don’t follow that because I don’t think the tax collector in Alabama could originally have brought this case in Federal court.

Not… he… he has no Federal question on the face of his complaint.

Ruth Bader Ginsburg:

There is no diversity.

On what basis could it come into Federal court originally?

Alan B. Morrison:

–I think that’s correct, Your Honor.

It could not have come into Federal court originally.

But I believe that the… the… under 1442(a)(3), we must have a colorable Federal immunity claim.

As I’ve explained, we have a colorable Federal immunity claim in this case because we claim that the license fee is tantamount to a licensing requirement which would interfere with our Federal… our Federal duties as Article III judges, if that was imposed.

Ruth Bader Ginsburg:

And even if you’re wrong about that, there’s enough… it’s an arguable–

Alan B. Morrison:

Yes.

Ruth Bader Ginsburg:

–proposition–

Alan B. Morrison:

And as this Court has said on many occasions, the… one should not confuse the issue of jurisdiction with the issue of the merits, and that… and that so long as we have a colorable Federal immunity defense, we would… we would be able to be in court.

Now, if our only claim were, however, that the tax was unduly discriminatory… that is to say, it violated the… the Public Salary Tax Act… and that it was not a license of any kind, we might be in a different situation then.

In any event–

Antonin Scalia:

–I… I don’t think that’s confusing jurisdiction with the merits.

I mean, the… the question of whether, in making this claim, your clients are acting pursuant to their official duties has nothing to do with the… with the merits of the case.

That is a question that just goes to the jurisdiction.

Alan B. Morrison:

–Well, I agree with that, Your Honor.

I was… the… the Government has made a great deal of saying that we… that this is not in fact a license fee and therefore we lose.

And that may be right on the merits.

Right.

Alan B. Morrison:

But… but it is… it doesn’t defeat our jurisdiction.

And I think one ought to take a practical construction of the statute, and the question is did Congress intend to allow Article III judges, who are the principal persons covered by 1442(a)(3), when they are sued and they believe that the suit involves matters directly relating to their official functions.

They raise a claim of Federal immunity, whether they have the right to have that case heard in the Federal courts or, nonetheless, have to have it heard in the State courts.

William H. Rehnquist:

Well, is a colorable claim enough?

Alan B. Morrison:

Yes, it is, Your Honor.

William H. Rehnquist:

What’s the authority for that?

Alan B. Morrison:

Willingham and I believe that Mesa against California also is.

The Willingham case is… is–

William H. Rehnquist:

Well, if you don’t have it handy, you have it covered–

Alan B. Morrison:

–I have–

William H. Rehnquist:

–You cover it in your brief.

Alan B. Morrison:

–Yes, on page 25.

Also, Jamison… Jamison against Willy from the Fourth Circuit, Mesa against California, and Moe against the Salish and Kootenai Tribes, as well as the Willingham case, all stand for the proposition that on issues of… of removal, as long as the colorable Federal defense of a Federal immunity applies, it is… it is sufficient.

Antonin Scalia:

That’s the merits question.

Yes, I think–

–That’s not… that’s not the question of… of whether the official is acting in official capacity in… in bringing the suit.

A purely jurisdictional–

Alan B. Morrison:

Well–

Antonin Scalia:

–I understand the Chief Justice to be asking whether it is enough that you have merely a colorable claim under the jurisdictional provision.

Alan B. Morrison:

–Oh, I’m sorry.

I did not understand your question, Mr. Chief Justice.

Antonin Scalia:

I thought that’s what he was asking.

Alan B. Morrison:

The question is… as I understand it, there’s no question that these persons are covered persons by 1442(a)(3).

Antonin Scalia:

Okay.

You have to establish–

Alan B. Morrison:

We have–

William H. Rehnquist:

–that, period.

Not colorably but–

Alan B. Morrison:

–Period and they are.

They are officers of… of the courts.

All right.

That’s point number one.

Point two is, is the claim that they are raising… are they raising a Federal immunity defense and their claim of Federal immunity defense must not be proven but must be colorable.

And their Federal immunity defense is that the county is trying to license them.

It is not imposing an income tax.

It is trying to license them, and by trying to license them, just as much as if they tried to get an injunction against them, if the end in this case would say they must submit to the licensing scheme, which we contend is unconstitutional, then we have a Federal immunity not to be part of that licensing scheme.

And that is the basis of our Federal defense on which 1442(a)(3) says that we must have one in order to be able to get into the Federal… Federal courts.

And the Congress has said in those circumstances, Federal judges should be entitled to have Federal cases litigated in Federal courts before Article III judges instead of the State courts in which the action happens to be brought.

Now, I want to turn now to the merits of this case which I believe turns on the proper characterization of the ordinance.

Anthony M. Kennedy:

–And in the course of your remarks, please present them as you wanted to, but the Howard case stumps me.

Alan B. Morrison:

Well, let me–

Anthony M. Kennedy:

I… I just don’t know how to get around that.

Alan B. Morrison:

–Well, let me… let me begin with Howard since it has taken up some attention.

The first thing I think we ought to recognize is that the Howard ordinance, insofar as it was before the Court, was only… the single footnote in note 2 in the Howard opinion quotes all of the ordinance that was actually in this Court.

I have gone and looked at the joint appendix, and there is nothing about exemptions in the Howard ordinance at all.

So that insofar as the Court was aware, and despite whatever may have been the actual state of the law at the time in terms of Louisville ordinance, there were no exemptions.

It now appears… and there has been several rounds of submissions on this, but it appears that the Louisville ordinance in effect at that time did have three exemptions.

One for domestic servants and the ordinance specifically says with respect to that that the… the exemption is because of the great costs of administration and difficulty of collection involved, domestic servants are excluded.

Second, there is an exclusion for ministers.

I don’t want to get into another constitutional issue here today, but whatever that exclusion is and the questionable nature of it under First Amendment law, it was not a broad exclusion.

The other exclusion was for insurance companies who had other taxes, and there was another provision that said other businesses that had licenses.

They didn’t lose their licenses, but they still had to pay the tax under the ordinance.

Stated another way, instead of the 140 exemptions across a broad range of issues that we have in this statutory scheme here, we had a very narrow set of exemptions, one for obvious administrative convenience reasons.

William H. Rehnquist:

Well, I think your problem isn’t so much the Howard case as the definition in the Buck Act that says an income tax is any tax levied on, respect to, or measured by net income, gross income, or gross receipts, which the Court was simply interpreting in Howard.

Alan B. Morrison:

Well, I want to be clear.

The fact that this is not an income tax like the Federal income tax is not the reason that we say that this is not a tax covered by… by the statute.

Second point.

The Buck Act is principally a provision to remove the possibility that someone would claim, well, you cannot tax someone because you’re working on a Federal enclave.

William H. Rehnquist:

Well, whatever it may be principally, do you dispute the fact that this… this tax was measured by either gross income or gross receipts?

Alan B. Morrison:

I do not, Your Honor.

William H. Rehnquist:

Then why… why doesn’t the Buck Act cover it by its very terms?

Alan B. Morrison:

The Buck Act is not an enabling provision.

The Public Salary Tax Act is an enabling provision.

The Buck Act, which was passed 2 years subsequent to that, was a provision intended to close a possible loophole.

That the argument is that even though in this… in the case of Louisville, the ordinance there was physically within the confines of the City of Louisville.

It was actually… the property was actually owned by the United States, and the concern was that someone would say, as someone did in that case… and that was the principal focus of the issue.

In that case, the… the United States Government has right to the property and therefore no locality may impose the tax.

The Buck Act didn’t impose any tax or authorize it.

It removed an impediment.

Indeed, those are I think the words in the… in the Howard opinion itself.

But even if this is an… and then that gets me to my next question which is while one might think of this as a… as a tax on pay or compensation, that we believe that the fact that there are these massive exemptions, exemptions which are totally unrelated to income–

Ruth Bader Ginsburg:

But they’re also totally unrelated to the source.

You’re not… or maybe you are… making an equal protection case, that it’s arbitrary to let the barbers pay less than the judges.

Alan B. Morrison:

–I am not making an equal protection argument.

Ruth Bader Ginsburg:

But here all the State judges are in the same boat.

The U.S. Attorney pays the… the other fee, and so does the district… local district attorney.

So, there’s no discrimination between like groups.

Alan B. Morrison:

Well, I want to… I want to take on the… the direct thrust of your question, but first I want to make what I believe is a… is a… a clarification.

If you are a lawyer working for the Federal Government and you are assigned to go to Alabama to be an Assistant U.S. Attorney or work in the Small Business Administration of the Internal Revenue Service, you may have to be a lawyer, but you don’t have to be admitted to the bar of the State of Alabama.

You must be a lawyer someplace, and the same I believe is true for doctors and others.

You must have a law license, but Alabama can’t say that you must have an Alabama law license to engage in legal activities in Alabama.

That’s up to the lawyers.

All right.

Leaving that aside, when one looks at the statute initially, the discrimination as to source, one could believe that since Federal judges pay and State judges pay, it’s the same.

I do not believe that this Court’s decision in Davis against Michigan allows that kind of construction.

That was the very argument that was made there, that there was only a narrow group of… of discrimination there.

The Court said… and Justice Stevens is perfectly aware of this because he wrote the dissent there.

He said the Court has adopted, in effect, a most favored nation provision under which if Federal employees are treated worse than State employees, then that is the proscribed discrimination, different from an equal protection discrimination.

And the Court, 8 to 1, said that that is entirely correct.

That is, in essence, what we have here, that there are 140 occupations in the State of Alabama who pay license fees which are not calculated on income.

Anthony M. Kennedy:

We… we began with the case being removed because you have a Federal defense, and now, all of a sudden, it’s discrimination which is–

–Yes.

You didn’t argue–

Alan B. Morrison:

We have two claims.

We have a first claim that it’s a… there are two separate but related claims based on the exemption.

One is that the exemptions destroy the essential licensing aspect… destroy the income tax aspect.

That is, they turn it into a licensing scheme.

It is what it says it is.

It’s an attempt to license, and it’s not a tax on pay or compensation of the kind envisioned in the Public Salary Tax Act.

That is our first argument.

That is the argument that gets us into the Federal court under 1442(a)(3).

Alan B. Morrison:

Our second argument… and I would agree this would not get us into the Federal court.

I believe I said that earlier… is if it is an income tax, there was no question about it being an income tax, there were none of the… of the evidences such as the language making it unlawful to engage in our profession, the language calling it a privilege tax, calling these license fees, we would still have a discrimination argument based on Davis.

William H. Rehnquist:

–But was that… was that argument passed on by the Eleventh Circuit?

Alan B. Morrison:

They said there was no discrimination, Your Honor.

Yes.

Alan B. Morrison:

The argument based on Davis was not.

I was not counsel of record then.

William H. Rehnquist:

Yes, and did you file a cross petition for certiorari?

Alan B. Morrison:

No.

I don’t believe I have to, Your Honor.

I believe that so long as I’m asking for the same judgment, which is that the tax is declared unlawful, that I do not have to file a cross petition.

William H. Rehnquist:

So, you’re asking us to reverse a holding.

The district court said there was no discrimination.

The court of appeals said they would not consider that.

Alan B. Morrison:

Your Honor, I’m asking you to affirm the judgment.

You could do it on either of two grounds: that it’s a license, in which case we’re affirming exactly what the district court and the court of appeals said; or in the alternative, that it’s an unjust discrimination.

And either of those grounds would result in the identical judgment of the district court and of the en banc court of appeals, although–

Anthony M. Kennedy:

If the basis for your removal under the Federal part of the removal statute fails, shouldn’t the district court simply remand to the State court to hear the discrimination issue?

It’s kind of like a pendent issue here.

Alan B. Morrison:

–If the–

Anthony M. Kennedy:

In other… in other words, if your business privilege tax argument falls away, which was the–

Alan B. Morrison:

–On the merits.

Anthony M. Kennedy:

–on the merits, which was the basis for you to get into Federal court, the Federal court… you want it to go on and decide the discrimination issue on the grounds that it’s pendent jurisdiction here at issue?

Alan B. Morrison:

Yes, I would say that would be correct, Your Honor.

And under 28 U.S.C. 1367, the supplemental jurisdiction provision, which… since this question had not been presented, I didn’t… I didn’t note it… allows for pendent jurisdiction for claims arising out of the same transaction or occurrence.

I believe it’s case or controversy.

The terms actually are there.

So long as… as there are no additional facts.

And in the case of Federal questions, which this would be… this is not even… indeed, it’s not even a different claim.

It’s a different defense to the same claim raised by the State given the purpose to promote economy and the fact that we are here and everybody has briefed this issue.

Alan B. Morrison:

There’s no facts in dispute.

There’s no–

Ruth Bader Ginsburg:

Mr. Morrison, may I just interrupt you there because 1367, the supplemental jurisdiction provision, applies when the claim… there is a claim within the original jurisdiction of the Federal court.

This case, whatever, is not within the original jurisdiction.

You agreed with me there was no diversity.

The suit to collect is not based on Federal law.

It’s in the removal… it’s… it’s removed based on a Federal defense.

And there’s no provision for original entry into the Federal court based on a Federal defense.

So, supplemental jurisdiction I think would not apply because there is no claim here–

Alan B. Morrison:

–Well–

Ruth Bader Ginsburg:

–over which the Federal court has original jurisdiction.

Alan B. Morrison:

–I believe it attained original jurisdiction if the removal was proper in the first instance.

But in any event, 1367… and I was thinking on my feet a little bit… principally relates to additional claims, not to additional defenses.

And what we have here is an additional defense by the judges, the discrimination as opposed to the license defense.

And given that the common nucleus of the operative facts, there would be no reason not to decide this… this question.

Sandra Day O’Connor:

Mr. Morrison, we have held, I guess, that whether the tax should be characterized as an income tax is a matter to be determined on Federal law.

Alan B. Morrison:

That is correct.

Howard so held that.

Sandra Day O’Connor:

And in making the Federal law determination, do we look at all at State law which says that the county has no authority to levy an income tax?

Alan B. Morrison:

I–

Sandra Day O’Connor:

Is that part of the Federal law–

Alan B. Morrison:

–It is certainly–

Sandra Day O’Connor:

–calculus or not?

Alan B. Morrison:

–It is part of it.

Sandra Day O’Connor:

And how have we dealt with that?

Alan B. Morrison:

Well, I think you’ve dealt with it in the context of looking at the statute as a whole which includes both the fact that the… the State forbids the collection of income tax, the fact that this is designated a license fee, that it’s an occupational license tax for the privilege of engaging in the business.

But the Court has made it clear that the labels are certainly not controlling.

They are some… some assistance to the Court in trying to understand… and I think I would put it this way.

When Congress in 1937 passed the Public Salary Tax Act, it permitted States and localities to tax pay or compensation.

And what we are trying to do here is to understand the meaning of that term.

Alan B. Morrison:

Obviously, the pay and compensation tax does not have to be a mirror image of the Federal income tax in whatever iteration we’re talking about, 1937 or 1997.

It must be a tax related to… a tax, for instance, on wages alone that didn’t tax passive income would be perfectly acceptable.

Or conversely, a tax on passive income would be… would be acceptable.

There could be deductions allowed.

They could be the same as Federal.

They could be different.

All of that would be a tax on pay and compensation.

The question is, does a scheme like this one in which there are massive exemptions for persons whose exemptions are not based on anything related to pay or compensation… they are based upon a fixed license fee paid to the State in an amounts that range from $2.50 in fixed amounts up to $250 or $500.

But regardless of what those amounts were–

Anthony M. Kennedy:

Was this not argued in… in the… the Howard case?

Alan B. Morrison:

–No, Your Honor.

Anthony M. Kennedy:

Because the Howard case applied simply to area discrimination.

Alan B. Morrison:

Yes.

It was a… it was a geographic fight.

The principal issue in Howard was whether a complicated annexation by the United States and then giving back to the City of Louisville had somehow made this no longer part of the City of Louisville, and that was the first issue the Court dealt with.

The opinion is only six pages.

The second part was whether the Buck Act applied and whether this was the kind of Federal enclave that permitted it.

There was no question in the majority opinion as to whether this was an income tax.

Mr. Justice Douglass, Mr. Justice Black in their dissent said, I find it hard to understand how there can be an income tax under Federal law that’s not an income tax under State law.

And our answer to that is, all right, we accept that proposition.

The label alone doesn’t control it, but with that plus all of the remaining indicia, we think that this is not the kind of tax that Congress said that Federal employees should have to pay when they cannot get an exemption.

Stephen G. Breyer:

Why does the Buck Act apply, or… or does it, or why does it not apply?

That is, the Buck Act, the Court said, says income tax, any tax measured by gross receipts.

Alan B. Morrison:

Well–

Stephen G. Breyer:

This is a tax–

Alan B. Morrison:

–That definition–

Stephen G. Breyer:

–measured by gross receipts.

Alan B. Morrison:

–That definition, Justice Breyer, applies only to the Buck Act.

The Buck Act is sections 106 through 110 of title 4.

The Public Salary Tax Act, which is the authorizing provision for taxation here, is in section 111, and the definition does not apply to that.

Stephen G. Breyer:

Why does it not apply here?

The Buck Act.

Alan B. Morrison:

The Buck Act is not an authorizing provision.

Stephen G. Breyer:

The Buck Act says it applies only to Federal enclaves.

Alan B. Morrison:

It–

Stephen G. Breyer:

This is not a Federal enclave.

Am I right about that?

Alan B. Morrison:

–Well, I don’t know whether the Federal courthouse is a Federal enclave, Your Honor.

I think the Court has not decided that.

But what the Buck Act does… and I’ll read the language, and this is in the appendix to the petition for certiorari at page 119.

It says, no person shall be relieved from liability on… by reason of his residing within a Federal area or… or receiving income from an area in a Federal enclave, to paraphrase.

It is a relieving… it’s a loophole closing provision.

The Public Salary Tax Act is the imposition or the authorizing provision, the consent or, as the history of the act makes clear, it is confirming that which this Court had decided just a few years ago, just immediately preceding it in the Graves case, that the Constitution did not present any independent barriers.

And they wanted to be sure that there was never any backsliding.

So, the Buck Act in itself doesn’t give them any authority to impose anything.

It simply says, by the way, these two possible exceptions do not apply in this case.

Ruth Bader Ginsburg:

Well, couldn’t one say even though it doesn’t strictly apply, Congress gave a definition of a tax on income there and it didn’t have a different one in the Public Salary Act?

So, one can assume that acting so close together, what they said about what constitutes a tax on income in the one case also applies in the other.

Alan B. Morrison:

They certainly could, Your Honor.

And we do not suggest that simply because this is a gross receipts tax in and of itself, it loses its character as an income tax, and the tax is impermissible.

It’s the fact that it’s a gross receipts tax and there are these massive exemptions and there are the provisions making it a license fee–

Ruth Bader Ginsburg:

If it were called a professional income tax, would your argument be any different?

Alan B. Morrison:

–Based on the exemptions, no, it wouldn’t, Your Honor.

Ruth Bader Ginsburg:

Everything is the same.

The label is different.

Alan B. Morrison:

It would be a little bit less of an indication that this is a licensing scheme which is, after all, what the State says it is, but it wouldn’t be dispositive.

Ruth Bader Ginsburg:

But the county has to say that because of an impediment under State law that it can’t have a, quote, income tax.

Alan B. Morrison:

Well–

Ruth Bader Ginsburg:

But you don’t deny that something can be a tax on income for one purpose and not for another.

Alan B. Morrison:

–I do not deny that at all, Your Honor, and I wanted to be clear.

Alan B. Morrison:

I hope I was clear about that.

We recognize that the county and the State may properly take into account the fact that persons who are licensed by the State and pay fees… in the case of lawyers, a considerable fee; in case of most other professions, a quite modest fee in Alabama… that all of those persons have… the State could properly take the payment of those fees into account.

William H. Rehnquist:

Well, can’t the… doesn’t the State also speak of licensing people who engage in certain kinds of businesses and collect a sales tax from them based on gross receipts?

Most States do I think.

They call it a license tax, but it’s simply measured by gross receipts and it’s a sale tax.

Alan B. Morrison:

Well, that is in addition to all the taxes that are at issue here, and that I don’t think… whatever the State sales tax is, it doesn’t… as far as I am aware, doesn’t distinguish between persons who are licensed under these 140–

William H. Rehnquist:

Just hypothetically, what if… what if a State said that, you know, in order to engage in the following businesses… and it names virtually every business… you need a license and the… you’re going to have to pay a sales tax measured by gross receipts?

That would be an income tax under the Buck Act, would it not?

Alan B. Morrison:

–It… I’m trying to think how it applies to Federal employees or Federal judges.

I assume that nobody is going to talk about them paying taxes on their opinions–

No, no.

Alan B. Morrison:

–that they issue.

William H. Rehnquist:

Just… just assume… assume it applies to… to anybody who engages in certain kinds of businesses that produce gross receipts.

Alan B. Morrison:

Well, the Buck Act, of course, doesn’t talk about how States and localities can do it.

It only applies… the Buck Act only applies when there are Federal officers or employees involved.

William H. Rehnquist:

Yes, but… that’s true of the Public Salary Act too, isn’t it?

Alan B. Morrison:

Yes.

They’re both limited to Federal employees, Your Honor.

William H. Rehnquist:

But it seems to me you’re… you’re trying to say that a license tax is something quite peculiar to just certain professions, and I don’t… don’t think it is at all.

I think–

Alan B. Morrison:

Oh, I didn’t mean to say that.

William H. Rehnquist:

–I think you have a license tax in most places to engage in any kind of business.

It’s called a sales tax.

Alan B. Morrison:

Well, most of them are fixed fees.

William H. Rehnquist:

Certainly a sales tax is not a fixed fee.

Alan B. Morrison:

Of course, not.

But the Public Salary Tax Act doesn’t talk about sales taxes at all.

It’s clear that that’s measured on income.

Now, there–

William H. Rehnquist:

But under the Buck Act, a sales tax would be an income tax.

Alan B. Morrison:

–A gross… a gross receipts tax.

For instance, the court reporter in the City of Pittsburgh case sold transcripts.

We have no question about the fact that the transcripts that were sold to the public are properly taxable under the Public Salary Tax Act, and that’s in large part because it’s not a licensing scheme in any way and also because there are no exemptions for other kinds of reporters and others in similar situations, no arguable discrimination.

In any event, we… we are confident that the State of Alabama can construct a licensing tax scheme, or whatever kind of scheme they want to call it, that takes into account the fact that persons pay licensing fees to the State, and they can do it in a number of ways.

They can give a credit against the payment.

They can allow it as a deduction.

But the one thing they cannot do, consistent with the Constitution and with the Public Salary Tax Act, is to give a total exemption to those who pay State licensing fees that are unrelated to income, while at the same time attempt to tax Federal employees, and in this case Federal judges.

Accordingly, for those reasons, the judgment should be–

Anthony M. Kennedy:

And why can’t they do that?

Alan B. Morrison:

–They cannot do that for two reasons.

One, because the scheme is no longer a scheme… a tax scheme based on pay or compensation, argument number one.

And argument number two, it is discriminatory against Federal employees under this Court’s decision in Davis against Michigan.

William H. Rehnquist:

Thank you, Mr. Morrison.

Mr. Sewell, you have 4 minutes remaining.

Jeffrey M. Sewell:

Yes, sir.

A couple things very quickly.

Our motion to remand does include 1442.

I’m holding a copy of it in my hand.

The Buck Act… Buck Act has to be as broad as the Public Salary Tax Act to accomplish the purpose of putting employees in a Federal area in the same posture as those who are not in a Federal area.

What Mr. Morrison is telling you is, is that the Public Salary Tax Act doesn’t consent to a license tax.

And I say that it does, and I won’t repeat what I’ve told you in my briefs because I think that it’s very clear that it does.

And it… and it has to.

The O’Malley cite that you asked for is 307 U.S. 277.

Also another case on the issue, United States v. Will, W-i-l-l, 449 U.S. 200.

Final thing.

This case… where the trial court went wrong, where the court of appeals went wrong is by blurring the distinction between the Government, the United States, and its employees.

And I think it really is just that simple.

Certainly when you all sit on this Court and you’re asking me questions, you’re performing your duties, but when you all are paying your taxes, you’re acting as citizens.

You’re not… I just don’t think that you’re the United States Government when you pay your taxes any more than you’re the United States Government when you pay your credit card bills.

Ruth Bader Ginsburg:

Mr. Sewell–

Jeffrey M. Sewell:

Yes, ma’am.

Ruth Bader Ginsburg:

–what about the argument that this discriminates against Federal employees?

Because if that were so, there would be a case here, wouldn’t there?

Jeffrey M. Sewell:

If that were so, there would be, but that’s not so.

And this… that argument… every time we go to a different court, that argument changes, and it has changed now.

Now… now, for the first time, we’re claiming that there’s some discrimination, and Mr. Morrison told you that Federal employees can’t get our exemptions.

I told you this morning, a while ago, that 1,209 of the 12,000 Federal employees in Jefferson County have our exemptions.

They can get them.

They have them.

That’s 10 percent.

Stephen G. Breyer:

The point on discrimination I think is not… one point is that it’s unlawful because of that, but the other is that it just… it helps to characterize the tax.

If it were really an income tax, they wouldn’t charge lawyers $250 flat and judges depending on their salary.

If it were really an income tax, they’d run it like an income tax.

What’s your response to that?

Jeffrey M. Sewell:

My response is, is that Kentucky also prohibits its cities by State law from levying an income tax, and that all of the exemptions, the exemptions for insurance companies and the others, in… in the ordinance that this Court considered in Howard… those other exemptions… my understanding is, when you go back… you’ve got the ordinance.

You go back and look at it, you will see that they are flat fees.

It’s the same situation.

John Paul Stevens:

Of course, Holloway was decided long before Davis against Michigan.

Jeffrey M. Sewell:

You mean Howard?

Howard v. Michigan.

1953.

And you all… we struggled to get that ordinance.

You’ve got it now.

You’ve got the actual ordinance that was at issue in that Howard v. Commissioners case.

And it’s just… it’s virtually identical.

How did… how did the Court reach the conclusion in that case, which the Court reached and it had to reach, that there was any basis at all for a Federal employee to pay a license tax if Congress didn’t consent to a license tax?

Anthony M. Kennedy:

Well, was Federal immunity argued other than the fact that it was a former enclave?

Jeffrey M. Sewell:

I think that… that there–

Anthony M. Kennedy:

Maybe that question almost answers itself.

It’s no longer an enclave.

Jeffrey M. Sewell:

–I think it answers.

I think it does answer itself.

I think that there… there’s no… there has to be some… Mr. Morrison says the Buck Act doesn’t consent to anything.

There has to be some consent for the Court to have reached its conclusion in the Howard case that Federal employees must pay a license tax, otherwise there’s–

William H. Rehnquist:

Thank you, Mr. Sewell.

Jeffrey M. Sewell:

–Thank you.

William H. Rehnquist:

The case is submitted.