dissenting.
Neither the defendants nor the majority of this Court dispute the fact that the defendants have unlawfully collected taxes from the plaintiffs through the application of an unconstitutionally discriminatory tax. The issue is whether the defendants must return the money they have unlawfully taken from the taxpayer-plaintiffs, or may keep that money because the plaintiffs have not sought to recover it in strict accordance with the requirements set forth in N.C.G.S. § 105-267. I believe that under the particular facts presented by this case, the plaintiffs have been denied due process of law. Therefore, I must dissent from the opinion of the majority which holds to the contrary and denies relief to the taxpayer-plaintiffs.
At the outset, I take exception to the apparent view of the majority that by failing to comply with the procedural prerequisites of N.C.G.S. § 105-267, the' plaintiffs somehow voluntarily paid the unconstitutional taxes in question. When, as here, a tax is paid to avoid financial sanctions or a seizure of real or personal property, the tax is paid under duress. McKesson v. Division of Alc. Bev., 496 U.S. 18, 39 n.21, 110 L. Ed. 2d 17, 37 n.21 (1990).
In contrast, if a State chooses not to secure payments under duress and instead offers a meaningful opportunity for taxpayers to withhold contested tax assessments and to challenge their validity in a predeprivation hearing, payments tendered may be deemed “voluntary.” The availability of a predeprivation hearing constitutes a procedural safeguard against unlawful deprivation sufficient by itself to satisfy the Due Process Clause, and taxpayers cannot complain if they fail to avail themselves of this procedure. ,
*694Id. As the opinion of the majority concedes, North Carolina law did not provide the plaintiffs with any form of predeprivation remedy. Therefore, they may not be denied recovery on the basis of any ruling grounded in the notion that they have somehow voluntarily paid the unconstitutional taxes in question, thereby rendering those unlawfully collected taxes nonrefundable.
When, as here, the State places
a taxpayer under duress promptly to pay a tax when due and relegates him to a postpayment refund action in which he can challenge the tax’s legality, the Due Process Clause of the Fourteenth Amendment obligates the State to provide meaningful backward-looking relief to rectify any unconstitutional deprivation.
Id. at 31, 110 L. Ed. 2d at 32 (footnotes omitted). “In providing such relief, a State may either award full refunds to those burdened by an unlawful tax or issue some other order that ‘create[s] in hindsight a nondiscriminatory scheme.’ ” Harper v. Virginia Dept. of Taxation, 509 U.S. —, 125 L. Ed. 2d 74, 89 (1993) (quoting McKesson, 496 U.S. at 40, 110 L. Ed. 2d at 38). Any such postdeprivation procedure provides all of the process due, if it provides “an opportunity to contest the validity of the tax and a ‘clear and certain remedy’ designed to render the opportunity meaningful by preventing any permanent unlawful deprivation of property.” McKesson, 496 U.S. at 40, 110 L. Ed. 2d at 38. I am convinced under the facts presented by the present case, however, that N.C.G.S. § 105-267 does not provide these plaintiffs the type of meaningful backward-looking relief required by the Due Process Clause.
The opinion of the majority concludes that the taxpayer-plaintiffs were required under N.C.G.S. § 105-267 to make a postdeprivation demand upon the administrative functionaries responsible for collecting the taxes in question and then wait the required period of time thereafter before initiating any court action seeking to recover money taken from them unlawfully pursuant to an unconstitutional tax. However, courts have uniformly held that plaintiffs will not be required to exhaust administrative remedies before bringing suit, where pursuing such administrative remedies would be futile. Pursuing an administrative remedy is “futile” when it is useless to do so either as a legal or practical matter.. See Honig v. Doe, 484 U.S. 305, 327, 98 L. Ed. 2d 686, 709 (1988). For me, this clearly is a case in which it would have been futile for the *695plaintiffs to exhaust their administrative remedies under N.C.G.S. § 105-267 before seeking relief in the courts.
In the present case, neither of the State functionaries who have been made defendants in this case — the Secretary of Revenue and the State Treasurer — have or have ever had the authority to grant the relief sought by the taxpayer-plaintiffs. Those defendants, who have administrative responsibilities with regard to the tax at issue, did not and do not have the power to pass upon the constitutionality of that tax, since decisions as to the constitutionality of tax statutes are exclusively for the judiciary. Bailey v. State of North Carolina, 330 N.C. 227, 246, 412 S.E.2d 295, 306 (1991), cert. denied, — U.S. —, 118 L. Ed. 2d 547 (1992). Thus, it is clear beyond question that the conclusion of the majority requiring these taxpayers to “jump through the procedural hoops adopted and applied by the State bureaucracy under N.C.G.S. § 105-267” amounts to a holding that they were entitled to relief only if they did an utterly vain and useless act. Bailey, 330 N.C. at 248-49, 412 S.E.2d at 308 (Mitchell, J., dissenting). That being the case, I reject the majority’s view that the statute provides meaningful backward-looking relief of the sort which is adequate to satisfy minimum due process requirements. See id.; Reich v. Collins, 437 S.E.2d 320, 322-25 (Ga. 1993) (Carley, J., joined by Sears-Collins, J., dissenting). Therefore, I also reject the majority’s conclusion that the defendants are entitled to the entry of a judgment dismissing the taxpayers’ action against them.
Under the opinion of the majority, these taxpayer-plaintiffs would be entitled to a refund only if they had foreseen at an early stage that the tax in question was unconstitutional — foresight which would have exceeded that of the legislature, the defendants who are experts in such matters, and this Court. See Swanson v. State of North Carolina, 329 N.C. 576, 407 S.E.2d 791 (1991), vacated and remanded, — U.S. —, 125 L. Ed. 2d 713 (1993) (in which a majority of this Court held that these plaintiffs were not entitled to refunds of the taxes in question because the decision of the Supreme Court of the United States in Davis v. Michigan Dept. of Treasury, 489 U.S. 803, 103 L. Ed. 2d 891 (1989), declaring taxes such as that at issue here unconstitutional, did not apply retroactively). I am completely aware that a concern for the ability of taxing entities such as the various states and local governments to engage in sound fiscal planning has led to the adoption of rules which are heavily weighted against the taxpayers and in favor *696of the taxing entity in cases such as this. I believe, however, that the opinion of the majority in the present case goes well beyond any legitimate need supporting such concerns and upholds a sham procedure for postdeprivation relief which was futile from the outset in this case. Surely, this unseemly result may only be properly characterized as tilting the scales too far in favor of the taxing entity and denying these taxpayers fundamental due process.
For the foregoing reasons, I believe that the taxpayer-plaintiffs have been denied due process of law by the majority’s interpretation and application of N.C.G.S. § 105-267. Therefore, I respectfully dissent.
Justice Parker joins in this dissenting opinion.