IN THE SUPREME COURT OF MISSISSIPPI
NO. 2011-CA-01274-SCT
COMMONWEALTH BRANDS, INC., THE CORR-
WILLIAMS COMPANY, AND VICKSBURG
SPECIALTY COMPANY
v.
J. ED MORGAN, COMMISSIONER OF REVENUE
OF THE DEPARTMENT OF REVENUE
DATE OF JUDGMENT: 08/18/2011
TRIAL JUDGE: HON. PATRICIA D. WISE
COURT FROM WHICH APPEALED: HINDS COUNTY CHANCERY COURT
ATTORNEYS FOR APPELLANTS: LUTHER T. MUNFORD
FRED L. BANKS, JR.
ROBERT GREGG MAYER
ROBERT J. BROOKHISER
ELIZABETH B. MCCALLUM
STEPHEN J. CARMODY
LOUIS G. FULLER
ATTORNEYS FOR APPELLEE: GARY WOOD STRINGER
BRIDGETT THOMAS
NATURE OF THE CASE: CIVIL - OTHER
DISPOSITION: ON DIRECT APPEAL: REVERSED AND
REMANDED. ON CROSS-APPEAL:
REVERSED AND REMANDED - 04/04/2013
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE DICKINSON AND RANDOLPH, P.JJ., AND PIERCE, J.
RANDOLPH, PRESIDING JUSTICE, FOR THE COURT:
¶1. Appellants raise a constitutional challenge to a fee legislated on cigarettes distributed
through Mississippi for sale outside the state, claiming separate violations of the Commerce
and Due-Process Clauses. In 2009, the Mississippi Legislature passed a law imposing a fee 1
on the sale, purchase, and distribution in Mississippi of cigarettes manufactured by
companies that did not enter into settlement agreements with the State of Mississippi as a
result of a 1997 lawsuit (the “nonsettling manufacturer” or “NSM” law), “including
cigarettes sold, purchased or otherwise distributed in this state for sale outside of this state.” 2
Miss. Code Ann. § 27-70-5 (Rev. 2010) (amended in 2010) (emphasis added).
¶2. In 2009, one nonsettling manufacturer – Commonwealth Brands, Inc.
(“Commonwealth”) – and one distributor – the Corr-Williams Company (“Corr-Williams”)
(collectively “Appellants”) – sued Ed Morgan, in his capacity as Commissioner of Revenue
of the Department of Revenue (“Commissioner”) in Hinds County Chancery Court.
Appellants claimed that the imposition of the NSM fee on products sold, purchased, or
distributed in Mississippi, but ultimately sold to consumers or users outside Mississippi,
violated the Commerce and Due-Process Clauses of the United States Constitution. They
sought a declaration that the imposition of the NSM fee on cigarettes for sale outside
Mississippi is unconstitutional; an injunction to prevent the State from collecting the fee from
1
The parties and chancellor have used the terms “tax” and “fee” interchangeably
throughout this litigation. For purposes of this opinion only, this Court does likewise. The
issue of whether they are legally the same for purposes of this case is not before the Court.
We are expressing no opinion in this regard. This opinion should not be cited for the
proposition that this Court has declared that they are the same.
2
The Legislature has since amended the NSM law to remove the provision that applied
the fee to cigarettes sold outside Mississippi. See infra, ¶ 11.
2
them for cigarettes distributed in Mississippi for sale outside the state; and damages,
expenses, and attorney fees under 42 U.S. Code Sections 1983 and 1988.
¶3. In October 2009, the chancery court entered a temporary restraining order enjoining
the Commissioner from assessing and collecting the challenged fee. In November 2009, the
chancery court held an evidentiary hearing, after which it granted Appellants a preliminary
injunction and ordered them to post surety bonds. The chancery court found as follows:
(A) There is a substantial likelihood that Plaintiffs will prevail on their
constitutional challenges to the assessment and payment of fees on the sale of
NSM cigarettes sold, purchased or otherwise distributed in Mississippi for sale
outside of Mississippi . . . ;
(B) Corr-Williams and Commonwealth Brands will suffer immediate and
irreparable harm with such threat being imminent if the MSTC assesses and
demands payment of fees on the sale of [such] cigarettes . . . in that Corr-
Williams may lose its ability to distribute NSM cigarettes and other grocery
products in the State of Louisiana, with an accompanying loss in competitive
advantage, business reputation, and goodwill and that Commonwealth Brands
also faces the threat of immediate loss of competitive advantage, market share,
business reputation, and good will with respect to cigarettes sold, purchased
or otherwise distributed in this state for sale outside of this state.
(C) The threat of irreparable injury to Corr-Williams and Commonwealth
Brands far outweighs any potential harm to the State . . . , even considering the
present economic conditions of the State of Mississippi and the potential
implications of . . . reduced revenues that this [preliminary injunction] might
have on the State budget, and moreover, . . . the threat of injury to the
Defendant is minimal in that if the MSTC ultimately prevails, it will be able
to assess and collect the tax that accrues during the pendency of this litigation;
and
(D) The public interest is served by the entry of the [preliminary injunction]
because if the MSTC assesses and demands payment of fees on the sale of
NSM cigarettes sold, purchased or otherwise distributed in Mississippi for sale
outside of Mississippi . . . from Commonwealth Brands or by Corr-Williams,
there may be a resulting loss of jobs and tax revenue when Corr-Williams and
distributors in situations similar to Corr-Williams move all or some of its
operations to the State of Louisiana and other states to avoid the effect thereof,
or when Commonwealth and manufacturers in situations similar to
3
Commonwealth shift some or all of their business to distributors in other states
to avoid the effect thereof.
In January 2010, the chancery court allowed Vicksburg Specialty to intervene, entered a
preliminary injunction enjoining the Commissioner from imposing the NSM fee on NSM
cigarettes distributed by Vicksburg Specialty, and required Vicksburg Specialty to post a
surety bond.
¶4. In May 2010, the chancery court issued a “Stipulated Order Regarding Schedule and
Procedures,” in which the parties agreed, in lieu of trial, to submit proposed stipulations of
facts and proposed findings of fact and conclusions of law to the chancellor. In August 2010,
the chancery court issued an order denying Appellants a permanent injunction and
declaratory relief, and finding all other issues moot. The chancery court found that the NSM
fee did not violate the Commerce Clause or the Due-Process Clause, based on its findings
that: (1) there was “a substantial nexus between the tax and the transaction within
Mississippi”; (2) the fee was fairly apportioned, because, even if other states had an identical
statute, those states would not tax Commonwealth for the “same purpose” – distribution
through Mississippi; (3) the fee did not discriminate against interstate commerce, because,
(like its reasoning for finding fair apportionment) even if other states had an identical statute,
they would not impose a fee on the same transaction as the Mississippi law – distribution
through Mississippi; and (4) the fee was fairly related to distribution activities and services
in Mississippi.
4
¶5. Subsequently, the Commissioner filed a “Motion for Entry of Final Judgment,”
seeking fees, interest, and penalties from Appellants for the two years that it was enjoined
from collecting fees under the preliminary injunction, and Appellants filed a motion for
reconsideration. The chancery court held a hearing on both motions in December 2010. The
chancery court reserved ruling on the motions until the end of the 2011 Mississippi
Legislative Session, during which the Legislature amended the statute to provide that the
NSM fee does not apply to cigarettes sold, purchased, or distributed in Mississippi for sale
outside the state. Miss. Code Ann. § 27-70-5 (Supp. 2012).
¶6. In May 2011, the chancery court found that the legislative amendment did not apply
retroactively, denied Appellants’ motion for reconsideration, and granted the Commissioner’s
motion for final judgment. However, the chancery court did not enter final judgment at that
time. Rather, three months later, on August 30, 2011 (upon the parties’ request for a status
conference), the chancellor entered final judgment, which incorporated the August 2010
order (denying Appellants’ request for a permanent injunction and declaratory relief) and the
May 2011 order (denying motion for rehearing and granting motion for final judgment).
Commonwealth, Corr-Williams, and Vicksburg Specialty appeal the final judgment, and the
Commissioner cross-appeals.
FACTS
¶7. Mississippi has long imposed and collected taxes on the sale of tobacco within the
state under the Tobacco Tax Act. The Tobacco Tax Act provides that:
5
The . . . tax is levied upon the sale, use, gift, possession or consumption of
tobacco within the State of Mississippi, and the impact of the tax levied by this
chapter is hereby declared to be on the vendee, user, consumer or possessor of
tobacco in this state; and when said tax is paid by any other person, such
payment shall be considered as an advance payment and shall thereafter be
added to the price of the tobacco and recovered from the ultimate consumer or
user.
Miss. Code Ann. § 27-69-13 (Rev. 2010) (emphasis added). The Tobacco Tax Act also
specifies that “[t]he provisions of this chapter shall not apply to dealers in tobacco made the
subject of interstate sales, except as provided in Chapter 70, Title 27, Mississippi Code of
1972.” Miss. Code Ann. § 27-69-19 (Rev. 2010).
¶8. In 1997, the State of Mississippi entered into a settlement agreement with the four
largest U.S. cigarette manufacturers. The settling manufacturers agreed to pay the State
certain sums, to be adjusted by domestic tobacco product volume sales.
¶9. In 1998, forty-six other states and territories entered into a separate settlement
agreement with the same four cigarette manufacturers that were parties to the 1997
Mississippi agreement (“Master Settlement Agreement” or “MSA”).3 Under the Master
Settlement Agreement, as under the 1997 agreement, the manufacturers agreed to pay certain
sums to the settling states and territories. Id. The MSA based these sums on national tobacco
sales, net of, inter alia, amounts paid to Mississippi under the 1997 agreement. Id.
3
Master Settlement Agreement, available at
http://web.archive.org/web/20080625084126/http://www.naag.org/backpages/naag/tobacc
o/msa/msa-pdf/1109185724_1032468605_cigmsa.pdf (last visited Mar. 28, 2013).
6
Manufacturers other than the four originally sued were permitted to join the MSA
voluntarily. Id. Commonwealth elected to do so.4
¶10. In 2009, the Mississippi Legislature enacted the NSM law, imposing on manufacturers
that were not parties to the 1997 agreement a fee for sales, purchases, and distribution of
tobacco products in Mississippi. Miss. Code Ann. §§ 27-70-1 to 27-70-23 (Rev. 2010). The
stated purpose of the NSM law was to:
(a) Prevent nonsettling manufacturers from undermining this state’s policy of
discouraging underage smoking by offering cigarettes at prices that are
substantially below the prices of cigarettes of other manufacturers;
(b) Protect the tobacco settlement agreement, and funding, which has been
reduced because of the growth of sales of nonsettling-manufacturer cigarettes,
for programs that are funded wholly or partly by payments to this state under
the tobacco settlement agreement and recoup for this state settlement payment
revenue lost because of sales of nonsettling-manufacturer cigarettes;
(c) Provide funding to enforce and administer this chapter and any legislation
relating to nonsettling manufacturers; and
(d) Provide funding for any other purpose the Legislature determines.
Miss. Code Ann. § 27-70-1 (Rev. 2010). The statute imposed a fee as follows:
(1) A fee is imposed on the sale, use, consumption or distribution in this state
of:
(a) Nonsettling-manufacturer cigarettes if a stamp is required to be
affixed to a package of those cigarettes under the Tobacco Tax Law;
and
(b) Nonsettling-manufacturer cigarettes that are sold, purchased or
distributed in this state but that are not required to have a stamp affixed
4
The amounts Commonwealth must pay under the MSA are not net of any payments
to Mississippi, as Commonwealth was not a party to the 1997 agreement. Master Settlement
Agreement.
7
to a package of those cigarettes under the Tobacco Tax Law, including
cigarettes sold, purchased or otherwise distributed in this state for sale
outside of this state.
(2) The fee imposed by this chapter does not apply to cigarettes that are
included in computing payments due to be made by a settling manufacturer
under the tobacco settlement agreement.
(3) The fee imposed by this chapter is in addition to any other privilege,
license, fee or tax required or imposed by state law.
(4) Except as otherwise provided by this chapter, the fee imposed by this
chapter is imposed, collected, paid, administered, and enforced in the same
manner, taking into account that the fee is imposed on nonsettling
manufacturers, as the taxes imposed by the Tobacco Tax Law, as appropriate.
Miss. Code Ann. § 27-70-5 (Rev. 2010) (emphasis added).
¶11. In 2011, during the pendency of this litigation, the Mississippi Legislature amended
the NSM law. Miss. Code Ann. § 27-70-5 (Supp. 2012). Those amendments included the
removal of the language explicitly imposing the NSM fee on cigarettes for sale outside of the
state (Section 27-70-5(1)(b) of the 2009 law), and the addition of the following language:
“[t]he tax imposed by this chapter does not apply to cigarettes that are sold, purchased or
otherwise distributed in this state for sale outside of this state.” Id.; Miss. Code Ann. § 27-
70-5(2) (Supp. 2012) (emphasis added).
ISSUES
¶12. All Appellants raise the following three issues on appeal:
1. Whether a law imposing a fee on certain cigarette manufacturers for the in-
state sale, purchase, or distribution of cigarettes for retail sale outside of the
state violated the Commerce Clause.
8
2. Whether the fee on the in-state sale, purchase, or distribution of cigarettes
to be sold out of state was an impermissible exercise of extra-territorial
jurisdiction that violated the Due-Process Clause.
3. Whether Commonwealth, Corr-Williams, and Vicksburg Specialty are
entitled to relief under 42 U.S.C. § 1983 and attorney fees under 42 U.S.C. §
1988, because state law provides them no plain, speedy, and efficient remedy.
¶13. Appellants Corr-Williams and Vicksburg Specialty raise a fourth issue:
4. Whether the final judgment of the chancery court is invalid to the extent that
it allows the State to seek unpaid NSM fees, interest, and penalties from Corr-
Williams and Vicksburg Specialty.
¶14. On cross-appeal, the Commissioner raises the following issue:
5. Whether the chancellor erred by failing to include in the final judgment a
monetary judgment in favor of the State against Commonwealth, Corr-
Williams, and Vicksburg Specialty in the amount of the fees and interest the
State was enjoined from collecting due to the temporary restraining order and
preliminary injunctions, plus ten percent under Mississippi Code Section 11-
13-15.
¶15. Finding the first and third issues dispositive, we decline to address issue two. Our
disposition moots issues four and five.
DISCUSSION
I. Standard of Review
¶16. This Court applies a de novo standard of review when addressing a statute’s
constitutionality. Johnson v. Sysco Food Servs., 86 So. 3d 242, 243 (Miss. 2012) (citations
omitted).
II. Commerce Clause
9
¶17. To comply with the Commerce Clause, a tax must: (1) be imposed on an activity with
a substantial nexus with the taxing state; (2) be fairly apportioned, based on the activity
within the taxing state; (3) not discriminate against interstate commerce; and (4) be fairly
related to services provided by the taxing state. Complete Auto Transit, Inc. v. Brady, 430
U.S. 274, 97 S. Ct. 1076, 51 L. Ed. 2d 326 (1977). This Court and the United States Supreme
Court have recognized that, to satisfy these basic Commerce-Clause requirements, a tax also
must be “internally consistent.” 5 See, e.g., Thomas Truck Lease, Inc. v. Lee County, 768 So.
2d 870, 876 (Miss. 1999); Okla. Tax Comm’n v. Jefferson Lines, Inc., 514 U.S. 175, 185,
115 S. Ct. 1331, 131 L. Ed. 2d 261 (1995); Tenn. Gas Pipeline Co. v. Marx, 594 So. 2d 615,
618 (Miss. 1992). The U.S. Supreme Court has provided that “internal consistency is
preserved when the imposition of a tax identical to the one in question by every other State
would add no burden to interstate commerce that intrastate commerce would not also bear.”
Jefferson Lines, 514 U.S. at 185 (emphasis added). Phrased slightly differently, we have
explained that, “[t]o be internally consistent, a tax must be structured so that if every State
were to impose an identical tax, no multiple taxation would result.” Thomas Truck Lease,
768 So. 2d at 876 (emphasis added). Thus, internal consistency broadly asks whether, if all
states enacted an identical statute, interstate commerce would bear a burden that purely
5
The U.S. Supreme Court has provided that a tax must be both internally and
externally consistent. Okla. Tax Comm’n v. Jefferson Lines, Inc., 514 U.S. 175, 185, 115
S. Ct. 1331, 131 L. Ed. 2d 261 (1995). However, a tax that does not satisfy the internal
consistency test is unconstitutional, and there is no need to assess whether it is externally
consistent. Id. (noting that the U.S. Supreme Court asks “whether the tax is ‘internally
consistent’ and, if so, whether it is ‘externally consistent’ as well.”) (emphasis added).
10
intrastate commerce would not, such as multiple taxation. Id.; Jefferson Lines, 514 U.S. at
185.
¶18. The U.S. Supreme Court has further explained that:
[the internal-consistency] test asks nothing about the degree of economic
reality reflected by the tax, but simply looks to the structure of the tax at issue
to see whether its identical application by every State in the Union would place
interstate commerce at a disadvantage as compared with commerce intrastate.
A failure of internal consistency shows as a matter of law that a State is
attempting to take more than its fair share of taxes from the interstate
transaction, since allowing such a tax in one State would place interstate
commerce at the mercy of those remaining States that might impose an
identical tax.
Jefferson Lines, 514 U.S. at 185.
¶19. The chancellor analyzed compliance with the Commerce-Clause requirements set
forth in Complete Auto Transit, 430 U.S. 274, and concluded that the NSM law did not
violate the Commerce Clause. However, the chancellor erred, as a matter of law, by failing
to apply the internal-consistency test mandated by Jefferson Lines, 514 U.S. at 185, and
Thomas Truck Lease, 768 So. 2d at 876.
¶20. We find that the NSM law, as enacted by the Legislature and acted upon by the
Commissioner, failed to satisfy the internal-consistency test as a matter of law. For the NSM
fee to be internally consistent, interstate commerce must not bear a burden that intrastate
commerce does not (such as multiple taxation) if other states were to adopt statutes identical
to the NSM law, including the following provision:
A fee is imposed on the sale, use, consumption or distribution in this state of
. . . [n]onsettling-manufacturer cigarettes that are sold, purchased or distributed
in this state but that are not required to have a stamp affixed to a package of
11
those cigarettes under the Tobacco Tax Law, including cigarettes sold,
purchased or otherwise distributed in this state for sale outside of this state.
Miss. Code Ann. § 27-70-5(1)(b) (Rev. 2010). The distribution of cigarettes in Mississippi
for ultimate sale outside the state involves separate transactions: (1) the Mississippi
distributor’s acquisition of products from Commonwealth and (2) the sale of those products
in another state – say, Louisiana. If Louisiana enacted a statute identical to the Mississippi
NSM law, then Mississippi would impose a fee on transaction (1) and Louisiana would
impose a fee on transaction (2).6 Thus, if another state adopted a law identical to the NSM
law, two fees would be imposed on the same cigarettes. Stated simply, this interstate
application involves two fees on the same cigarettes. In contrast, if the cigarettes acquired by
the Mississippi distributor were sold intrastate, they would be subject to only one fee – under
the Mississippi NSM law. Although each state would impose its fee on a separate
transaction, cigarettes sold in interstate commerce would bear a second fee that those sold
in intrastate commerce would not. Thus, if another state enacted a statute identical to the
challenged NSM law, interstate commerce would bear a burden that purely intrastate
commerce would not also bear: multiple fees on the same cigarettes. We conclude that the
provision of the NSM law imposing a fee on NSM cigarettes distributed through Mississippi
for sale outside the state was not internally consistent, in violation of the Commerce Clause.
6
The inverse also would be true: if NSM cigarettes were distributed through Louisiana
for sale to retail customers in Mississippi, then Louisiana would impose a fee for the
distribution under the Louisiana NSM law, and Mississippi would impose a fee for the sale
under the Mississippi NSM law.
12
Accordingly, Appellants were entitled to the requested permanent injunction and declaratory
relief.
III. 42 U.S.C. Section 1983 Claims
¶21. Appellants claim that they are entitled to attorney fees under 42 U.S.C. Section 1988 7
for their claims under Section 1983 challenging the constitutionality of the NSM law. Section
1983 reads as follows, in relevant part:
Every person who, under color of any statute, ordinance, regulation, custom,
or usage, of any State . . . subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof to the deprivation
of any rights, privileges, or immunities secured by the Constitution and laws,
shall be liable to the party injured in an action at law, suit in equity, or other
proper proceeding for redress . . . .
42 U.S.C.A. § 1983.
¶22. At issue in the case sub judice is whether the federal Tax Injunction Act precludes a
Section 1983 claim in state court to challenge the constitutionality of a state tax where an
adequate state-law remedy is available. The Tax Injunction Act provides that:
The district courts shall not enjoin, suspend or restrain the assessment, levy or
collection of any tax under State law where a plain, speedy and efficient
remedy may be had in the courts of such State.
7
Section 1988 provides that:
[i]n any action or proceeding to enforce a provision of section[ ] . . . 1983 . .
. of this title, . . . the court, in its discretion, may allow the prevailing party,
other than the United States, a reasonable attorney’s fee as part of the costs .
...
42 U.S.C.A. § 1988(b) (2000).
13
28 U.S.C.A. § 1341 (1940). The language of Section 1341 prevents federal district courts
from granting injunctive relief regarding state tax matters where state law provides a plain,
speedy, and efficient remedy. In National Private Truck Council, Inc. v. Oklahoma Tax
Commission, 515 U.S. 582, 115 S. Ct. 2351, 132 L. Ed. 2d 509 (1995), the United States
Supreme Court “granted certiorari to resolve a conflict among the state courts as to whether,
in tax cases, state courts must provide relief under § 1983 when adequate remedies exist
under state law.” Nat’l Private Truck, 515 U.S. at 585-86 (emphasis added).
¶23. Our review of the cases reveals a conflict not only among the states, but also within
our own jurisprudence. In State Tax Commission v. Fondren, 387 So. 2d 712 (Miss. 1980),
a taxpayer sought to enjoin the Commission from approving county recapitulation of
assessment rolls until the Commission had equalized assessments among counties. Fondren,
387 So. 2d 712. The Fondren Court found that “a state court entertaining a 1983 action has
no more jurisdiction than a federal district court” and that “[i]t is well established that
[Section 1341] is an explicit congressional limitation on the jurisdiction of the federal courts
in [state tax] cases . . . .” Id. at 723. The Court then found that, in the state-tax action before
it:
[Section] 1983 collides full force with a specific congressional limitation on
federal jurisdiction. In such circumstances, we are convinced that [Section]
1341 must prevail.
Id. The Fondren Court cited the holding in Bland v. McHann, 463 F. 2d 21 (5th Cir. 1972),
that “Mississippi law provides a plain, speedy and efficient remedy for claims that
assessments for taxes in a municipality were not equal and uniform[,]” and reasoned that:
14
[o]bviously this action could not have been brought in federal court under
section 1983 because there is a plain, speedy and efficient remedy in
Mississippi courts. Complainants, by filing their action in state court, invoked
the plain, speedy and efficient remedy granted them by the chancery court and
affirmed here.
Id. The Fondren Court presciently concluded that “the section 1983 cause of action must fail
in the state court because it would have failed if it had been filed first in federal court.” Id.
(emphasis added).
¶24. Seven years later, in Marx v. Truck Renting and Leasing Association Inc., 520 So.
2d 1333 (Miss. 1987), this Court applied a contradictory analysis of federal and state courts’
jurisdiction over Section 1983 challenges of state taxes. The Marx Court first recognized that
“[t]he courts of this State have jurisdiction concurrent with that of the federal courts over
actions brought under 42 U.S.C. § 1983.” Marx, 520 So. 2d at 1346 (citations omitted).
However, the Marx Court posited its jurisdictional holding on the antithesis of concurrent
jurisdiction, declaring that:
it is the absence of federal jurisdiction under 28 U.S.C. § 1341 which
operates to open the door to the state courthouse so that the taxpayer may
here assert his § 1983 claim. A federal courthouse door is closed under such
circumstances by 28 U.S.C. § 1341.
Id. Thus, this Court held in Marx that state courts’ jurisdiction over actions challenging the
constitutionality of state taxes under Section 1983 is available because the federal
courthouse door is closed.8
8
What Marx does not say is that the key to either courthouse door – federal or state
– for a Section 1983 state-tax claim is controlled by the availability, vel non, of a plain,
speedy, and efficient remedy in the courts of the state – as previously held by this Court in
15
¶25. A year after Marx, this Court decided Burrell v. Mississippi State Tax Commission,
536 So. 2d 848, 864 (Miss. 1988). The Burrell Court interpreted the holdings of Fondren
and Marx as follows:
[Fondren] says that the state courts have no authority to entertain claims under
Section 1983 where the suit is one seeking to enjoin unconstitutional state
action with regard to the collection of taxes. Fondren confuses a federal
jurisdictional limitation, 28 U.S.C. § 1341, with the enforceability of a
federally created right and remedy in state court. . . . [O]ur recent decision in
[Marx] may only be read as holding that the Section 1983/1988 discussion in
Fondren stands overruled.
Burrell, 536 So. 2d at 864.
¶26. Subsequently, courts in other states addressing the same issue revealed that
Mississippi was one of only two states to hold that a Section 1983 action could be brought
in state court despite the availability of a state-law remedy. Tatten Partners v. New Castle
County Bd. of Assessment Review, 642 A. 2d 1251, 1265 (Del. 1993); Greenwich Twp. v.
Murtagh, 601 A. 2d 1352, 1356 at n.10 (Pa. 1992). The other state, New Jersey, also had
found that Section 1983 actions challenging state taxes – including actions that could not be
brought in federal court under the Tax Injunction Act – could be brought in state court.
Bung’s Bar & Grille, Inc. v. Florence Twp., 502 A. 2d 1198, 1215 (N.J. 1985). However,
after the U.S. Supreme Court issued its opinion in National Private Truck, discussed infra,
the New Jersey court rejected its prior approach, holding that “both state and federal courts
‘must refrain from granting federal relief under § 1983 when there is an adequate legal
Fondren, and subsequently made clear by the U.S. Supreme Court in National Private
Truck. See infra at ¶ 27.
16
remedy.’” General Motors Corp. v. City of Linden, 671 A. 2d 560, 564-65 (N.J. 1996)
(quoting Nat’l Private Truck, 515 U.S. at 592). We do the same today.
¶27. In 1995, the U.S. Supreme Court issued a definitive statement on this issue. The ruling
is clear and unequivocal (repeatedly declared), and relies on the same principles used by this
Court in Fondren. Nat’l Private Truck, 515 U.S. at 590-92; see Fondren, 387 So. 2d at 723
(relying on concurrent jurisdiction to find that Section 1983 state-tax action must fail in state
court, because it would have failed in federal court due to the availability of a plain, speedy,
and efficient remedy in state court). In National Private Truck, the Court held that Section
1341 restrains both federal and state court jurisdiction over Section 1983 challenges of state
taxes – thus validating the Fondren Court’s approach and rejecting Marx and Burrell. Nat’l
Private Truck, 515 U.S. at 590-92. The National Private Truck Court first stated as follows:
To be sure, the Tax Injunction Act reflects the congressional concern with
federal court interference with state taxation, see 28 U.S.C. § 1341, and there
is no similar statute divesting state courts of the authority to enter an injunction
under federal law when an adequate legal remedy exists. But this silence is
irrelevant here, because we do not understand § 1983 to call for courts
(whether federal or state) to enjoin the collection of state taxes when an
adequate remedy is available under state law. Given the strong background
presumption against interference with state taxation, the Tax Injunction Act
may be best understood as but a partial codification of the federal reluctance
to interfere with state taxation. After all, an injunction issued by a state court
pursuant to § 1983 is just as disruptive as one entered by a federal court.
Id. at 590-91 (emphasis added) (citation omitted). The Court reiterated that:
We simply do not read § 1983 to provide for injunctive or declaratory relief
against a state tax, either in federal or state court, when an adequate legal
remedy exists.
Id. at 591. Again phrasing slightly differently, the Court held that:
17
When a litigant seeks declaratory or injunctive relief against a state tax
pursuant to § 1983, . . . state courts, like their federal counterparts, must refrain
from granting federal relief under § 1983 when there is an adequate legal
remedy.
Id. at 592. Thus, the U.S. Supreme Court firmly established that the constitutionality of a
state tax may not be challenged under Section 1983 in state court if an adequate remedy is
available under state law – as stated in Fondren and overruled in Burrell. Fondren, 387 So.
2d at 723; Marx, 520 So. 2d at 1346; Burrell, 536 So. 2d at 864. To the extent that Marx and
Burrell conflict with the U.S. Supreme Court’s holding in National Private Truck, they are
hereby overruled.
¶28. Was a plain, speedy, and efficient remedy under Mississippi law available to
Appellants? To provide an adequate remedy, a state law must satisfy “minimal procedural
criteria[;]” it must “provid[e] the [party] with a ‘full hearing and judicial determination’[to]
raise any and all constitutional objections to the tax.” Rosewell v. LaSalle Nat’l Bank, 450
U.S. 503, 512-15 101 S. Ct. 1221, 1229-30, 67 L. Ed. 2d 464 (1981) (emphasis in original).
¶29. We first turn to the record to answer the question. We find that all Appellants had an
adequate remedy, which they invoked, seeking a plain, speedy, and efficient remedy:
declaratory relief under Mississippi Rule of Civil Procedure 57.9 In their complaints, all
9
Commonwealth also had a remedy available under Mississippi Code Section 11-13-
11, which provides that:
The chancery court shall have jurisdiction of suits by one or more taxpayers
in any county, city, town, or village, to restrain the collection of any taxes
levied or attempted to be collected without authority of law.
18
Appellants sought “a declaration” that the NSM fee “discriminates against interstate
commerce, unduly burdens interstate commerce, and denies due process of law.” Appellants’
“Motion for Expedited Declaratory and Injunctive Relief,” filed the same day as
Commonwealth’s and Corr-Williams’s complaint, states that “[p]ursuant to Miss. R. Civ. P.
57 and 65, Plaintiffs . . . request that the Court issue a declaration and a preliminary and/or
permanent injunction . . .”and requests, inter alia, that the trial court “[e]nter a judgment . .
. declaring unconstitutional the Mississippi NSM tax law insofar as it requires the assessment
and collection of fees on nonsettling-manufacturer cigarettes sold, purchased or otherwise
distributed in the State of Mississippi for sale outside of Mississippi[.]” In their “Brief in
Support of Motion for Expedited Declaratory and Injunctive Relief,” Appellants “move[d]
. . . for . . . a declaration that . . . [the] NSM fee . . . is unconstitutional . . . .” The brief further
stated that: “As the Supreme Court also held in Marx, in an action under 42 USC § 1983 to
vindicate constitutional rights, successful plaintiffs are also presumptively entitled to
attorneys’ fees pursuant to 42 U.S.C. § 1988. Marx, supra, 520 So. 2d at 1346.” Their
reliance on Marx must fail for the reasons stated supra. There can be no serious debate that
Rule 57 provided a plain, speedy, and efficient remedy, upon which Appellants relied. The
record clearly establishes that Appellants premised their claim for attorney fees in
conjunction with a claim for declaratory relief under Rule 57, and repeatedly referenced Rule
Miss. Code Ann. § 11-13-11 (Rev. 2004). Section 11-13-11 clearly provides persons or
entities upon whom a tax is levied or attempted to be collected a full hearing and judicial
determination at which they may raise their constitutional challenges.
19
57 in their pleadings. Accordingly, we find that adequate remedies under state law were
available to all Appellants. Thus, the courts of this State should refrain from considering
Section 1983 claims in tax cases, mooting Section 1988 claims for fees. That being said, no
basis exists for a claim by Appellants for attorney fees under Section 1988.
CONCLUSION
¶30. For the reasons discussed herein, we reverse the final judgment of the Hinds County
Chancery Court. We remand this case to the Hinds County Chancery Court for entry of
judgment consistent with this opinion.
¶31. ON DIRECT APPEAL: REVERSED AND REMANDED. ON CROSS-APPEAL:
REVERSED AND REMANDED.
WALLER, C.J., DICKINSON, P.J., LAMAR, KITCHENS, CHANDLER,
PIERCE, KING AND COLEMAN, JJ., CONCUR.
20