Bailey v. State

BAILEY STATE OF NORTH CAROLINA (1991)] reason, to poll jury individually. For he is entitled to a new sentencing proceeding. Accordingly, we need not address the remaining sentencing phase assignments of error. stated,

For the reasons we phase find no error the guilt trial, capital defendant’s but for a new capital sentencing remand proceeding. phase:

Guilt No error.

Sentencing phase: New sentencing proceeding. BAILEY, GODWIN, UNDERWOOD, A. JAMES H. POU PILSTON HARRY L. MUNN, BENSON, KLEU, MELVIN T. FRED JAMES H. JOSEPH GILMER BINKLEY, BULLARD, WELL, JONES, EULA G. MILDRED C. SEA EMILY B. ARRINGTON, CARTWRIGHT, BRITT, T. SAMUEL JOHN W. DAVID L. LASSITER, SALISBURY, JR., MATTIE E. PAUL LEE CHARLES S. MANOOCH, JR., THOMPSON, SHOOK, E. ROY AND R. CLYDE H. JOHN ALLEN, ALMON, GUY, SMITH, JESSE M. EDWIN C. GEORGE ERNEST CAIN, JOHNSON, BAKER, P. DALE THOMAS BILLY A. and ROSALIE ADAMS, ALDRIDGE, SR., ANDERSON, T. VICTOR CLIFTON A. HELEN ANDREWS, ARRINGTON, ARRINGTON, L. CHARLES E. B. LILLIAN JR., AUBRY, BARBER, JR., BARE, K. WILLIAM W. PRESTON PARKER N. BARKLEY, BARRETT, BARRETT, H. D. MARGARET JACKIE JAMES B. BEAMON, BENDER, BERG, C. FRANK ARTHUR M. D. WILLIAM THOMAS BERRIER, BLACKBURN, CHFIELD, W. PAULINE J. W. BRENDA BL AN BLEVINS, BOLICH, BOST, ROBERT L. ELIZABETH F. L. ELLIE JUNIOUS BOYLES, BRIDGES, BRIDGES, L. HENRY L. LAWRENCE R. H. CAREY BROADWELL, BROWN, BROWN, T. CHANCEL JOAN W. MARGARET BROWN, BUCHAN, BULLARD, M. JOHN W. EUNICE W. DEWEY L. BUTLER, BYRUM, CAHOON, McCAULEY C. GERTRUDE G. JOSEPH H. CALDER, CANN, CARMICHAEL, CATHERINE N. DOROTHY T. MAURICE CATON, CAUDLE, CHAPMAN, A. O. ROBERT MARGARET H. ODELL CHILDRESS, CLARKE, SR., CLINE, CLAY, L. CARL EDWARD L. SHARI T. CLODFELTER, COLEY, COLLETTE, SELMA C. D. HAROLD MATALINE COOK, COOPER, COOPER, M. ROBERTA ANNA L. BERTIE R. CHARLIE COOPER, CRAVEN, CREWS, C. CARLYLE C. N. CHRISTEL C. DONALD CURTIS, DANIEL, DAVIS, DICKEY, E. VIOLET H. MILDRED K. HOWARD DILLARD, DUNCAN, DUNCAN, JOHN B. ESTHER P. DUPREE, T. J. HELEN M. DUPREE, EDWARDS, ELKS, JOSEPH E. W. JESSE CHARLES B. EMORY, ENGLISH, ERICSON, DAN R. CHARLES F. W. MARTIN JAMES EUBANKS, JR., FARTHING, FOUNTAIN, M. RUTH U. NELLIE D. J. FRANKLIN, FRANKLIN, FURCHES, WARREN ZENNA H. EMMA LEE GARNER, GARRISON, GENTRY, ALFRED H. EVELYN FRED C. W. GILBERT, GILBERT, GORDON, CATHERINE M. MEREDITH H. IVEY B. GORDON, GOSSELIN, GREEN, S. IZORIA LOUIS N. P. GLADYS THE IN SUPREME COURT v. STATE OF NORTH CAROLINA

BAILEY

[330 HAIRSTON, GREENWOOD, HAIRSTON, A. L. RUTH JOHN CONSUELLA HAUSER, HAMMONS, HARMON, ELMO L. MARY J. A. SAMUEL JAMES HODGE, HICKS, HIGH, F. LUCY O. CARLEE GREENE F. ID ALIA ISENBERG, HURT, HUBBARD, HUNT, D. KAY HAROLD J. C. HUGHES ISENHOUR, JACKSON, ISENHOUR, LILLIAN MARY P.H. M. MARY G. BEN JOHNSON, JR., JOHNSON, JOHNSON, C. P. WALTER C. K. VIRGINIA JONES, JONES, JONES, JONES, P. E. JUNE R. ROBERT MYLES JOE KESSLER, JOYCE, KEARNEY, SR., H. M. RUTH WALTER C. ODELL KOOMEN, KING, KISER, KIGER, VELMA D. S. JACOB FRANCES JOHN JR., LATTA, LAWSON, LAMBERT, WALTON S. TRUDIE J. DAVID T. LEWIS, LEINBACH, JR., LEMING, WALTER VIRGINIA P. T. G. CLARENCE McCORMICK, LOWE, LYERLY, HARRIETTE B. W. JAMES A. YATES McKEE, ANIEL, McKAY, R. B. W. S. E. HARRY L. JAMES McD MCKINNEY, McMILLIAN, McLAMB, T. F. W. JOSEPH JAMES DORIS MARCH, MALCOLM, MANNING, VAN JAMES H. ELZA EDWARD G. MAST, MARION, MARTIN, MASENCUP, HELEN H. LESTER G. S. MARY MAYER, JR., MAUNEY, MAST, B. MELVILLE L. ROBERT A. JAMES MINICK, MICKEY, MILLER, F. NONA S. RUTH MOORE, GROVER VIRGINIA H. MINOR, MORETZ, MIRACLE, T. B. K. LOLA CHARLES JACK MULLINAX, SR., MORGAN, MORGAN, W. WILLIAM F. BRADY LEO G. NOWLIN, OVERCASH, NICHOLS, L. DONALD S. I. JOHN LUCINDA PADGETT, PEEK, PEARCE, W. W. CALVIN C. WILLIAM GEORGE DWIGHT PEOPLES, PELECH, PENN, PEELER, B. S. JUANITA DIANE W. MICHAEL AN, PIERCE, PIERCE, D. SYLVIA S. PINY MILDRED B. EVELYN CHARLES POINDEXTER, POTTS, POWELL, WINNIE D. LEVI GLEN THOMAS R. RAY, REYNOLDS, PRATT, RANKIN, W. M. RALPH L. PATSY CHARLES C. RICHARD, ROSE, SACRINTY, EDNA B. ELNA FRANCES T. MATTIE C. SEATS, SCALES, SCALES, SCHMITT, J. VALDA E. WORTH G. MELVIN G. SHEAROUSE, SHELTON, SELLE, H. L. NELSON CONRAD CHARLES SHIPP, SHELTON, SHERMER, L. ELIZABETH H. BLANCHE S. MARY SIMMONS, SHUE, SIMMONS, N. L. RALPH C. JOE HAROLD FRANCIS SLADE, SIMPSON, SIMPSON, GARNET N. E. SMART, H. REUBEN E. RICHARD SMITH, SMITH, SMITH, H. MATTIE LENORA S. LONNIE S. SOLOMON, SMITH, SNOW, M. T. VANCE PAUL J. EULALIA G. FRANCES SOLOMON, SPEED, SPEAS, SPIVEY, W. J. DAVID CHARLES A. LUCILE THOMPSON, SPENCER, THOMAS S. ELLA BELLE G. CAROLINE TILLMAN, TUCKER, TUCKER, TUCKER, E. M. L. DORIS JUSTUS RUTH UPRIGHT, UPRIGHT, TUGMAN, P. M. FRANK L. WALTER MARGARET WACKERHAGEN, WALKER, M. W. ELIZABETH W. WALKER, MARTHA NORMAN WALLS, WALKER, A. B. ELIZABETH JEAN RALPH G. WATSON, WHEELER, WHITEHEAD, W. S. M. DANIEL SAMUEL CORA WILLIAMS, WILLIAMS, WILLIAMS, LEE ELIZABETH ELIZA S. HARRY WILSON, WILSON, WILSON, A. MARIAN B. WILBUR HOYT L. G. SR., WISEMAN, WISEMAN, WOOD, A. ERNEST B. HOWARD VIRGINIA WORSHAM, ZIMMERMAN, WOOTERS, JACK D. L. THOMAS S. GRIFFIN, individually KENNETH A. benefit on behalf similarly v. STATE NORTH OF Situated, Petitioners-Plaintiffs all others REVENUE, CAROLINA, THE NORTH DEPARTMENT OF CAROLINA capacity A. BETSY JUSTUS in her HELEN POWERS Individually, REVENUE, THE DEPARTMENT OF OF NORTH CAROLINA SECRETARY TREASURER, DEPARTMENT OF THE NORTH CAROLINA STATE BAILEY v. STATE OF NORTH CAROLINA individually BOYLES, capacity HARLAN E. and in his as TREASURER CAROLINA, OF THE STATE OF NORTH THE NORTH CAROLINA FUND, FIREMEN’S AND RESCUE WORKER’S PENSION LEGISLATIVE SYSTEM, SYSTEM, RETIREMENT NATIONAL GUARD RETIREMENT COUNTIES, CITIES, TOWNS, RETIREMENT SYSTEMS FOR AND RETIRE EMPLOYEES, MENT SYSTEM FOR AND TEACHERS STATE SUPPLEMEN TAL RETIREMENT INCOME ACT OF SEPARATE INSURANCE BENEFIT PLANS FOR STATE AND LOCAL GOVERNMENTAL LAW EN OFFICERS, FORCEMENT SHERIFF’S SUPPLEMENTAL PENSION FUND EMPLOYEES, OF ANNUITIES FOR STATE REGISTER OF DEEDS FUND, SUPPLEMENTAL PENSION UNIFORM CONSOLIDATED JUDICIAL SYSTEM, RETIREMENT and PUBLIC EMPLOYEES BENEFITS SERV CAROLINA, ICES OF NORTH FIREMAN’S SUPPLEMENTAL FUND (HICKORY), SYSTEM, CHARLOTTE FIREFIGHTERS’ RETIREMENT OP TIONAL RETIREMENT PROGRAM FOR STATE INSTITUTIONS OF Respondents-Defendants EDUCATION, HIGHER

No. 105PA91 (Filed 1991) 6 December (NCI3d)— § 1. State 4.2 against action Department of Revenue— sovereign immunity

An action against the Department of Revenue is an action State, against and the State cannot be sued without its permission. 2d, States,

Am Territories, Jur Dependencies §§ 104. (NCI3d)—

2. § Taxation challenge to tax as unlawful — remedy When a tax is challenged as unlawful rather than ex- incorrect,

cessive or the appropriate remedy is to bring suit under N.C.G.S. 105-267. § 2d,

Am Jur State and §§ Local Taxation 1065. (NCI3d)— § 3. Taxation 38.3 necessity for demand of refund A taxpayer with a valid defense to the enforcement of tax, the collection of a tax must first pay then demand a refund of that thirty days within payment. Only after when the Secretary of Revenue fails to refund the tax within ninety days may sue taxpayer Secretary of Revenue for the amount demanded. N.C.G.S. 105-267. § 2d,

Am Jur § State and Local Taxation 609. CAROLINA STATE OF NORTH

BAILEY v. (NCI3d)— refund —individual action for tax § 38 class 4. Taxation compliance with statute class, a tax refund as a seeking when taxpayers

Even conditions individually satisfy prece- must each member 105-267. dent to suit mandated § 51; § 2d, Local Taxation 1074. § Parties State and Am Jur to recover taxes. action in state courts Propriety of class 10 ALR4th 655. (NCI3d)— —insufficiency refunds class demand for

5. Taxation 38 of taxes collected demands for refunds Plaintiffs’ class participants vested exemption for repealed because of the were plans retirement invalid and local government state 105-267where for refunds under N.C.G.S. purposes suing (1) was instituted not made before an action the demands were statute, Revenue required in- failed to include information about the demands regulations adopted reasonable required taxpayers dividual Secretary of Revenue. by the 2d, 51; and Local Taxation 1074.

Am Jur Parties courts to recover taxes. of class action state Propriety 10 ALR4th 655. (NCI3d)— pensions injunctive income taxes on

6. Taxation 38.1 — relief unavailable by were taxpayers precluded Plaintiff injunctive grounds relief on constitutional obtaining from of income taxes on state and local future collection prevent that statute bars courts retirement benefits since government any kind for suits of absolutely entertaining from imposed collection purpose preventing in I. Subchapter 2d, §§ 1117.

Am Jur State and Local Taxation — (NCI3d)— Secretary Treasurer Public 7. Officers —constitutionality of with tax statute —compliance Revenue capacities immunity statute not determined —individual — grounds suit on constitutional Revenue The State Treasurer and from civil immunity capacities in their individual entitled to BAILEY v. STATE OF NORTH CAROLINA liability on federal and state grounds constitutional for their with the compliance repealing act the income tax exemption for state and government local retirement benefits where the constitutionality of the repealing yet act has not been exam- by ined by federal courts or the appellate courts of this state. 2d, State, Territories,

Am Jur Dependencies §§ 104; §§ State and Local Taxation 1063.

Justice MITCHELL concurring part dissenting part. discretionary

On review prior by determination the Court of Appeals pursuant N.C.G.S. 7A-31 of an order of class cer- tification entered on 31 December 1990nunc pro tunc for 29 October 1990 and an order granting partial summary judgment for Lake, J., by entered on November presiding at the 29 Oc- Court, tober 1990 Superior County. session of Heard in WAKE May Supreme Court 1991. Womble, Rice, Carlyle, Sandridge Eugene & G. Boyce, Smith; and Donald L. Young, Wallace R. Charles H. Taylor, and Huskins, J. Frank plaintiff-appellees. for General, H. Lacy Thornburg, Attorney Edwin Speas, M. Jr., General, Senior Deputy Attorney George Boylan, Special W. General, Harrell, Deputy Attorney Special Deputy Norma S. At- General, Johnston, torney A. Douglas Attorney Assistant General, defendant-appellants.

Robinson, Hinson, P.A., Bradshaw & John R. Wester and III, David Wright, C. Helen A. defendant-appellant Powers. EXUM, Chief Justice.

In this appeal class challenge validity under the North Carolina repealed Constitution of a tax exemption for vested participants state and local government retirement We plans. do not reach the constitutional issue because failed to 105-267, comply under which an arguably invalid tax can be challenged remedial action taken. We therefore hold plaintiffs’ claims for a refund of taxes collected of because OF NORTH CAROLINA

BAILEY v. STATE the collec- injunction prohibiting exemption and for an repealed have been dismissed. tion of such taxes should

I. Carolina, 329 N.C. Like v. State North Swanson of (1991), Davis v. Dept. arose in the wake of S.E.2d 791 this case (1989). In Davis the 103 L. Ed. 2d 891 Treasury, U.S. of employees’ state exempting held a state statute Supreme Court exemp the same granting retirement from taxation but benefits violated the constitutional doc counterparts tion to their federal 111. immunity and 4 U.S.C. Under trine tax intergovernmental to the taxation of government statute the federal “consents employee service as an officer or pay compensation personal or if not discriminate States ... the taxation does United pay because of the source of the employee the officer or 111. compensation.” U.S.C. § Davis, Assembly the in- repealed In the General response plans, for state and local retirement Sess. exemption come tax (hereinafter 792), 3.9 and substituted a Chapter Laws ch. federal, state, $4,000 local government annual exclusion for 105-134.6 In Swanson this Court held retirees. N.C.G.S. § retroactively to 792. Because apply Chapter that Davis did not until 28 repealed applicable statute was held to have been decided, appellants March when Davis was classes —two — federal were not entitled to refunds on taxes employees years 1989. through in this case are North Carolina state and local Class retirement vested on or before government employees whose benefits 792. Chapter the ratification date of Plaintiffs’ August February filed named as defendants complaint, Carolina; Department the North of Revenue and of North Carolina Treasurer; Powers, Helen A. Department the North of State Carolina Revenue, in her the North Carolina Boyles, E. individual and official Harlan Treasurer capacities; Carolina, capacities; North in his individual and official State of plans. retirement government and numerous state and local their action is maintainable as a class action allege Plaintiffs 1A-1, Rule 23: the class consists of “tens of under N.C.G.S. readily whose identities are ascertainable people” thousands records, critical to the action questions defendants’ of law and fact THE SUPREME COURT

IN CAROLINA OF NORTH BAILEY v. STATE (1991)] [330 class, claims representatives’ to all members are common members, relief would sought and the class those of unnamed typify gravamen The for all class members. appropriate effective and engaged state officials of law defendant under color is that alleged unconstitutionally unlawfully and policy or pattern, practice, in a retirement that defendant benefits and pension taxing plaintiffs’ exempt benefits would be plaintiffs’ that violated assurances plans rest for relief tax. Plaintiffs’ claims income from North Carolina theories,1 of relief: they seek two forms and of legal on a number taxation from such exempted on benefits the refund of taxes the future collec- injunction against and an August to prior such taxes. tion of of whether knowledge disclaim defendants

In their answer They deny engaging a class action. is suitable as action plaintiffs’ unlawfully or practice, policy in pattern, of law under color Defend- pension benefits. unconstitutionally taxing plaintiffs’ and plaintiffs defendants and any contract between deny further ants or, taxes alter- from income exemption an provided plaintiffs obligations impaired have ever natively, that defendants any such contract.2 class cer- order for conditional to a court superior Pursuant March,

tification, April, and February, letters dated Powers, Secretary the North A. to Helen 1990 were sent April contract include: breach of plaintiffs’ claims for relief legal bases for 1. The prop- plans; taking employers pension governmental their between and protection guarantees in the United process equal erty and in violation of due Constitution; obligations prohibited Article impairment of contractual States addition, allege I, In States Constitution. Section 10 of United Constitution, in- provisions of the North Carolina Chapter numerous 792 violates done; I, I, previously Article Section taxing in acts cluding Article Section against impairing equal protection, process, violating guarantees to due in IV, contract; diminishing the salaries of members in Article Section obligations of office; Article in during their continuance judicial government branch of of the V, is to be object which the levied tax stating special Section V, authorizing of retirement funds the use applied; purposes Article Section benefits. than retirement other immunity sovereign include: answer 2. Defenses asserted defendants’ officials; Carolina; immunity the unen- qualified of its the State of North Constitution, V, any Article Section forceability North Carolina under the suing pay before exemption; plaintiffs’ taxes failure right to a tax contractual collection; of N.C.G.S. of limitations the statute prevent and a bar their thirty days prior recovery paid more than sought of taxes regarding refund demand. to the date of their BAILEY v. STATE OF NORTH CAROLINA Carolina of Revenue. Citing authority of N.C.G.S. 105-267, the letters demanded “a refund of all taxes on pen- sion, benefits, or monies received from present or former retire- system ment of the State of North Carolina heretofore paid for year the tax 1989 by any named or unnamed class member.” They by were signed individuals whose names are not among those of letters, plaintiffs named in this action. Similar dated 26 April which made collective demands for refunds under 147-84, N.C.G.S. were sent to Harlan E. Boyles, Treasurer of the State of North Carolina. Among affidavits offered as ex- hibits, only one named plaintiff averred he had sent an individual demand for refund of those taxes alleged by to be invalid letters, class. Like the demand, collective demand the individual dated 30 April postdated the filing plaintiffs’ date of complaint.

An order of class certification was filed 31 December nunc pro tunc October 1990.

2On November 1990 the superior court granted partial sum- mary judgment for plaintiffs on two grounds: the removal of income tax exemptions on pensions under Chapter 792 is a retroactive Constitution, tax in I, violation of the North Carolina Article Sec- tion and it diminishes judges’ salaries in violation of the North Constitution, IV, Carolina Article Section 21. The court ordered should recover taxes paid on retirement benefits enjoined defendants from further collection of these taxes. 31On December 1990 the court granted summary judgment favor of defendants Helen A. Powers and Harlan E. Boyles as against claims them in their individual capacities. Plaintiffs and defendants each timely filed notice of appeal. On 4 March 1991 this Court allowed the parties’ joint petition for discretionary review prior to determination the Court of Appeals.

We hold the trial court erred in granting partial summary judgment for plaintiffs and in failing grant summary judgment for defendants. Insofar plaintiffs’ as complaint seeks a refund of paid, taxes it should have been dismissed for failure plain- tiffs satisfy precedent conditions to such an action required by N.C.G.S. 105-267. Insofar as the complaint injunctive seeks relief to prevent tax, the future collection of the challenged it should have been dismissed because N.C.G.S. 105-267 forecloses this kind of relief. We hold further the trial court properly

IN THE SUPREME COURT BAILEY v. STATE OF NORTH CAROLINA summary for defendants granted judgment Powers Boyles capacities. their individual Treasurer

H. procedures contend failed to follow the Defendants tax. mandated 105-267for the refund an invalid agree. We

[1] against 317, An action State, against Buchan v. Shaw, of Revenue is an action 78 S.E.2d (1953), permission. and the State cannot be sued without its Com., Unemployment Compensation Insurance Co. statutory provision

When has been made for an action State, statute must be fol- procedure prescribed lowed, right and the remedies thus afforded are exclusive. The right, prescribed to sue the State is a conditional terms Legislature precedent are conditions to the institution of the action. Gold, Insurance, 168,

Insurance Co. v. Commissioner 254 N.C. 792, (1961), 173, on other grounds, 118 S.E.2d 795 overruled Smith (1976) (when 303, State, v. 289 222 412 enters N.C. S.E.2d contract, into thereof). it consents to be sued for its implicitly valid breach Revenue, Currie, See also Comr. 250 Kirkpatrick (1959); 213, 216, Shaw, 211 Duke v. 108 S.E.2d Comr. N.C. Revenue, 236, 239, (1957); 247 100 S.E.2d 508 Insurance N.C. Com., 217 8 S.E.2d Unemployment Compensation Co. N.C. at (1928). 622; State, 291, 296, at Rotan v. 141 S.E. 735 [2, When rather excessive challenged a tax is as unlawful than 3] incorrect, remedy is to suit under appropriate bring or N.C.G.S. Coble, 565, 568, Co. v. 238 S.E.2d 105-267. Coca-Cola § 780, (1977). County, See also Comm. v. Redevelopment Guilford (1968). 585, 589, 164 S.E.2d constitutional “[A] mandatory a from the exempt plaintiff defense to a tax does not in 105-267.” for the tax set out N.C.G.S. procedure challenging Jp7th Photo, Powers, App. Street Inc. v. denied, (1990), rev. S.E.2d disc. Section 105-267 provides: any kind

No court of this State shall entertain a suit of any for the the collection of brought purpose preventing BAILEY v. STATE OF NORTH CAROLINA Whenever a shall have imposed Subchapter. person tax this the enforcement of the collection of a tax a valid defense to property, person or him or his such charged against assessed officer, proper payment shall such tax to the and such pay any may defense of he prejudice rights shall be without any days pay- in the At time within 30 after premises. have ment, may demand a refund of the tax taxpayer Secretary if the writing from the of Revenue and same shall thereafter, days may Secretary within 90 sue the not be refunded Revenue in the courts of the State for the amount so demand- may in the of Wake Superior ed. Such suit Court County, county taxpayer or in the in which the resides at years 90-day any expiration time within three after the allowed for the refund. If the trial it shall period making upon any tax thereof part be determined that such a or was levied illegal purpose, or assessed for an or unauthorized or was excessive, reason judgment invalid shall be rendered therefor, interest, and the same shall be collected as The judgment other cases. amount of taxes for which shall State; be rendered in refunded such action shall be in this section shall be construed to conflict provided, nothing supersede provisions with or of G.S. 105-241.2. (1986). A taxpayer with “a valid defense to the enforcement of the collection of tax” must first pay tax, then in writing thirty demand a refund of that within days Only Secretary when payment. after of Revenue fails ninety days may to refund the tax within sue the taxpayer Revenue protest amount demanded. Absent refund, voluntarily the form of a demand for a tax is paid, “voluntary payments of unconstitutional taxes are not refund- Coble, 569, able.” Coca-Cola Co. v. at 238 S.E.2d 783. at The right right; prescribed to sue is a conditional the terms are precedent conditions to the institution of the action. Plaintiffs must they thirty days demanded a refund within after allege prove Failure to do so forfeits the to sue. payment. right Kirkpatrick Revenue, 216, Currin, 211; v. Comr. 250 N.C. at 108 S.E.2d at 280, 281, Lynch, Stenhouse v. 245 S.E.2d App. IN THE COURT SUPREME CAROLINA BAILEY v. STATE OF NORTH ^[4] requisites Even when of N.C.G.S. taxpayers 105-267 must be seeking a tax refund met. In Stenhouse as a class,3 a class of who Appeals v. the Court of held that Lynch, were compensation on unemployment a refund of taxes sought make the req failure of member of the class to foreclosed complained of cannot be uisite demand for refund. taxes “[T]he even, voluntarily compulsion where and without paid recovered unlawfully, were in absence of demand the taxes levied though App. with the statute.” 37 N.C. at compliance for refund 831. 245 S.E.2d at

[5] In this case all class demand letters sent to the Secretary complaint. preceded by filing plaintiffs’ of Revenue were he by the sole member who averred Even the letter sent class nearly individually April a refund was dated had demanded 1990— February filing plaintiffs’ date of two months after satisfy the condition prece We hold that this failure to complaint. demand a refund taxpayer dent of N.C.G.S. Secretary Revenue fore an action instituting before closed action. plaintiffs’ Moreover, expressly pro- 105-267does not although N.C.G.S. § class, refunds as a it includes no seeking hibit taxpayers by taxpayers refund to be made either for a tax demand provision case, by others. In this represented as a class or as because, in her explained as she rejected plaintiffs’ class demands of 26 response April 105-267, valid demand for refund under G.S.

to constitute a include sufficient information to request must taxpayer’s whether of this case this Court need decide 3. Under the circumstances Nevertheless, may we note a class action. for a tax refund a suit jurisprudence. position North support in both the federal and Carolina some for this Co., Inc., Citicorp Acceptance See Crow (“When Assembly prevent actions to has wished to class our General , expressly unequivocally!;] for relief ... it has said so enforce claims Assembly expressly prohibit class actions . . . the failure of the General it relief intended the statutes under which claim [indicates] enforce (D.C.N.C. Maxwell, purposes); Gramling 52 F.2d to allow them for such 1931) (remedy North law under the Revenue Act of Carolina of individual actions at (Pub. 427) recovery inadequate compared protest of taxes under L. ch. act, cumbersome so much useless and action under that which “eliminates class however, taxpayers emphasize, class of seeks to sue litigation”). that when a We 105-267, satisfy individually member must each for a refund under N.C.G.S. § precedent to suit mandated in that statute. conditions 238

BAILEY STATE OF NORTH CAROLINA may permit Department to determine whether a refund and, so, if in what Such be made amount. information would normally security consist of the name and social taxpayer’s number, year for which the tax was on paid, date which the return was filed or the tax was and the amount paid, by of state retirement income received the taxpayer during year. Assembly The General did not prescribe precise manner Secretary in which refund a demand for is to be made to the Revenue. authority “This Court has held that under general to formulate an administrative regulations, agency of may by by rule the prescribe procedure right granted which a may be exercised.” Comr. Insurance v. North Carolina Rate Bureau, 381, 403, 547, 563, denied, reh’g S.E.2d 107, 273 S.E.2d 300 The of Revenue is 150B-2(1) an (1987). agency administrative of thé State. See N.C.G.S. § only must expect Legislature legislate so far

“[W]e as is practical reasonable and to do and we must leave to executive authority accomplish officers the legislative purpose, guided of course Id. proper standards.” at S.E.2d at 563. for requiring Reasons that refund demands include the infor- Secretary evidently mation identified Revenue spring stability a concern for the of the fisc: Where protest interposed, has been the [taxing authority] may notified that it obliged to refund the taxes and is required prepared to be to meet that If contingency. protest no has been it is lodged, generally assumed that taxes can be retained to meet public expenditures, authorized and finan- provision cial is not made for contingent refunds. 596, 598, Conklin v. Town Southampton, A.D.2d 529 N.Y.S.2d 517, 519 (quoting Mercury Mach. Importing Corp. City York, 418, 426, New N.Y.2d N.E.2d 165 N.Y.S.2d (1957)). 517, 521 The for a valid requirements stipulated demand of Revenue good evince both judgment good faith, and under such circumstances this Court cannot interfere. were not authority created vested to act “[C]ourts as supervisory agencies to control and direct the action of executive and administrative agencies or officials.” Comr. Insurance v. Bureau, North Carolina Rate at 563. S.E.2d at We hold plaintiffs’ class demands for refunds followed neither 239

BAILEY v. OF NORTH STATE CAROLINA (1991)] 227

[330 required by the letter of the statute nor the reasonable criteria Revenue were properly rejected and deemed of for refunds under 105-267.4 purposes' suing invalid of N.C.G.S. § attempted challenge by 4. When class have to taxes lawsuits states, held, have, appellate generally other cannot be maintained unless courts have as we that such suits notice, by preceded protest an individual or demand. (Ariz. Corrections, 321, See, e.g., Dept. Evans v. Arizona 139 Ariz. 678 506 P.2d of 1983) satisfy statutory App. requirement, (legislature did not intend for class claim to notice by entity having which must be satisfied each individual or contract state); State, 688, negligence against App. claim Bozaich v. 32 Cal. 3d 108 Cal. (5 1973) (if condemnation, tort, Rptr. 392 Dist. inverse or breach of contract against permitted requirements suits state class claim is in order to defeat time claims, presentation requirements meaningless); of such would be v. Hoffman (Colo. 1984) Appeals, (property Colorado State Bd. Assessment 683 783 P.2d of contemplates tax assessment statute individualized treatment of claims rather than general protest plaintiffs; jurisdic examination of class court therefore lacked relief); Commonwealth, 244, grant tion to tax Aronson v. 401 Mass. 516 N.E.2d (1987) (where attempt 137 is made to obtain refunds substantial amounts money taxpayers, procedures on behalf of numerous unidentified ad denied, 818, process bypassed), ministrative should not be cert. 488 U.S. 102 (N.Y. (1988); Wetzler, 459, Duffy L. Ed. 2d 36 v. 148 Misc. 2d 555 N.Y.S.2d 543 1990)(commencement Sup. purportedly similarly of action on behalf of all situated taxpayers appropriate protest by proposed does not constitute indication each class); Yonkers, 188, City member of v. 101 475 429 A.D.2d N.Y.S. Gandolfi (N.Y.A.D. 1984) (tax only Dept. personal taxpayer; 2 refund claim is to the those refund), dismissed, may appropriate protest appeal who have filed an obtain a tax 882, 529, 865, 604, 62 N.Y.2d 532, 467 N.E.2d and 62 467 N.Y.S.2d N.Y.2d N.E.2d 699, aff'd, 478 N.Y.S.2d order 62 N.Y.2d 468 N.E.2d 479 N.Y.S.2d Falls, Niagara 517 (N.Y. See also Mervak v. 101 Misc. 2d 420 N.Y.S.2d 1979)(class by statutory Sup. precluded requirements action notice of claim contemporaneously because claims did not occur must be dealt with on and timeliness of notice of claims basis); case-by-case Salvaggio Indep. v. Houston School (Tex. 1986) (class Dist., Houston, App. 14th S.W.2d Dist. certification of taxpayers penalty properly findings who had denied where fact as to payment required, properly granted taxpayers voluntariness of would be but against penalties paid). whom had been assessed but not And see Lunsford (8th 1977)(class States, adequate United 570F.2d 221 claim under did not Cir. FTCA ly present the claims of unnamed class members because not all claimants iden tifiable, authority by by represented no asserted non-named to be claim claim). named, respect of those and no sum certain stated with to class San Cf. Court, Superior Rptr. Jose v. 3d 115 Cal. 525 P.2d 701 Cal. (under providing presented statute that “claims shall be the claimant or behalf,” person acting representative representa on his class claim that included name, address, date, occurrence, claimed, plus tive’s information to precondition and amount “sufficient identify statutory and make ascertainable the class itself” satisfies state); Lattin v. to inverse condemnation and nuisance suit (1 1977) (no Bd., App. Rptr. Franchise Tax 3d 142 Cal. 130 Dist. Cal. jurisdiction representa to maintain class action when claim for refund made class class). behalf, only yet complaint putative tives in their own filed on behalf of Court, Arena, Superior But see Andrew Inc. v. 163 Ariz. S. P.2d (1990)(when discoverable, to allow identities and locations of class members so as IN THE SUPREME COURT

BAILEY STATE OF NORTH CAROLINA hold, We absent authorization for class or specific demands, tax refund such demands are ineffectual representative satisfy this action for a tax refund precedent legal condition under 105-267. N.C.G.S. §

III. ^[6] Neither is injunctive relief as to future collection of the chal plaintiffs. tax available to lenged begins:

Section 105-267 “No court of this State shall entertain any a suit of kind for the purpose preventing collec- any in imposed Subchapter.” tion of tax this N.C.G.S. 105-267 (1986). The prohibition against injunction absolute to restrain the I, Taxes,” any “Levy governed Subchapter collection of tax (1989), N.C.G.S. 105-1 105-270 differs through significantly §§ II, the conditional prohibition Subchapter “Listing, Appraisal, Property and Assessment of of Taxes on Property,” Collection which provides: tax, may enjoin any

No court the collection of the sale of lien, any any tax or the for property nonpayment sale of authority imposed Subchapter under the of this except (or thereof) upon a the tax some is showing part illegal or levied for illegal purpose. an or unauthorized (1989). The latter statute has been viewed as permitting “equitable exclusionary an to “the exception[]” broad therein,” Vehicles, language Enterprises, Inc. v. Motor Dept. of 450, 455, (1976), 339 S.E.2d an exception that notably from its I. lacking counterpart Subchapter

The appellate frequently courts of this state have reiterated declaratory “the rule that there shall be no general injunctive or tax, i.e., relief prevent taxpayer to collection of a must pay the tax and suit for a refund.” Id. also bring Corp. See Oil Revenue, v. Clayton, Comr. 147 S.E.2d (requiring taxpayer pay to the amount of the disputed county investigate liability,. permissible); claim and assess class claim Santa Optical Equalization, App. Barbara Co. v. State Bd. 47 Cal. 3d 120 Cal. 1975) (when (2 Rptr. require specific 609 Dist. statute does identification of complaint, equated each claimant advance of “claimant” should be with class itself). Taxes,” generally See Annot. “State Class Action to Recover 10 A.L.R.4th (1981); Entity Against Annot. “Maintenance of Action Class Governmental Claim,” by Requirement Affected of Notice of 76 A.L.R.3d 1244

BAILEY STATE OF NORTH CAROLINA recovery, sue the State for its a method available to tax- tax and for appropriate procedure taxpayer since is the payers statute); Insurance constitutionality of a who seeks to test Insurance, Gold, 173-74, Commissioner Co. 254 N.C. at (Declaratory Judgment permitted S.E.2d at 792 Act has not been supplant specific proceeding or substitute Photo, statute); Street constitutionality of a tax 47th testing Powers, Inc. v. App. (requirement at at tax, then demand a refund “is the taxpayer pay ap- for a who seeks to test the constitu- propriate procedure taxpayer him”). tionality of a statute or its application personal relief for the income taxes Injunctive imposition approved on constitutional has never been challenged grounds appellate properly enjoined our courts. Our trial courts have constitutionally only infirm under alleged collection of taxes to be Thus, authority of statutes other than 105-267. under N.C.G.S. § 105-267 in the Revenue antedating statutes the enactment of section 936) (1939 Sess. ch. and its predecessor, Act of Laws 427, 510, plaintiffs Sess. Laws ch. this Court held § perpetual injunction against were entitled to a upon pleadings v. Town Young the collection of unconstitutional town taxes. of Henderson, 420, approved And this has Court invalid, illegal, in the collection of of principle injunctions against 105-379 or 105-406 unauthorized taxes under N.C.G.S. N.C.G.S. 3) by 1971 Laws ch. or their common (repealed N.C. Sess. See, e.g., Redevelopment Comm. statutes. predecessor Guilford (collection (1968) 585, 588-89, 164 County, 274 N.C. S.E.2d 478-79 from an erroneous tax— distinguished of or invalid tax —as illegal Trustees, 594, 599, enjoined); Wynn 122 S.E.2d may when (injunction taxpayer challenged available to tax is invalid, pur levied or for unauthorized illegal, because or assessed Wake, Barbee v. Comrs. 188 S.E. 210 N.C. pose); of (1936) (unless statute, at the provided injunction otherwise remedy an taxpayer regarded appropriate instance of a as the collection levy of invalid assessment or to restrain resist an tax). Assistance Authori See also Nicholson v. Education illegal of an (1969) (“A ty, taxpayer, such, constitutionality may injunction, challenge, suit levied, levied, him for an upon illegal or to be proposed of a tax purpose.”). or unauthorized NORTH CAROLINA v. STATE OF

BAILEY 105-267, contrast, absolutely from enter- courts bars Section preventing purpose for the any kind suits of taining Since the taxes in I. Subchapter imposed collection of taxes, I we hold were Subchapter by plaintiffs challenged further collection enjoining defendants court erred the trial 105-267 section Under benefits. plaintiffs’Tetirement on paid of taxes invalid, any illegal, to a refund of are restricted remedies plaintiffs’ tax, of that statute only if the prerequisites but or unauthorized held, This, to do. failed as we have have been followed.

IV. mary judgment ^[7] Finally, for defendants appeal the trial court’s Helen A. Powers, Secretary order granting sum Revenue, Boyles, E. and Harlan Department North Carolina Carolina, claims against as to State of North of the Treasurer capacities. in their individual them sent to the class refund demands response In conveyed position Treasury, Department of Justice forth the “simply sets the State Treasurer: error, misinter- by clerical whenever taxes have been principle otherwise, law, into the state collected and pretation state, due the legally of the amount found treasury excess entitled thereto. person refunded to the shall be excess amount due and legally whether amounts The determination of authority within the thereto are not entitled persons determination rejected plain- Powers to make.” of the State Treasurer necessary specific it lacked information class demand because tiffs’ owed. and to ascertain amounts identify the numbers of claimants demands, that, de- their refund rejecting alleged Plaintiffs support “to Boyles failed in their duties Powers and fendants States and laws of the United maintain Constitution Const, VI, 7, Carolina,” they insofar N.C. art. . . . of North § in of federal derogation monies collected to refund tax refused provisions.5 and state constitutional (1) officials “amounts alleged specifically the refusal of both that 5. Plaintiffs arbitrary capricious, just compensation, and property is taking without to a of (2) obligations impairs the equal protection”; process and violation of due is a Constitution, Article States in violation of the United under color of law of contract (3) 10; I, protection guarantees of the North process equal and violates due Section (4) Constitution; prohibitions against retroac- state constitutional violates Carolina Const, I, 16, taxation, during judicial of salaries and the diminution art. tive 243 BAILEY v. STATE OF NORTH CAROLINA Defendants on argue appeal answered that Powers and Boyles their authority acted “within the scope as officers of the State in good they of North Carolina the faith that belief State,” lawfully were in the acting best interests of the and that they were thus entitled to the defenses of qualified immunity and immunity the officials. A public public official is not liable for in 42 damages an action under 1983 unless U.S.C. the conduct complained clearly established “violate[s] rights constitutional which a reasonable would person have 800, 818, v. Fitzgerald, known.” Harlow 457 U.S. 73 L. Ed. 2d 396, 410 “The right violated [allegedly must official] be sufficiently particularized put potential defendants on notice Fairman, their probably conduct Azeez v. unlawful.” 795 (7th 1986). F.2d 1301 also Creighton, Cir. See Anderson v. (1987) (unlawfulness 635, 640, 483 U.S. 97 L. Ed. 2d must law); Johnson, apparent be in the v. light pre-existing Danenberger (7th 1987) (to established,” 821 F.2d be “clearly Cir. right allegedly clearly violated “must be recognized existing law.”). case (4th Powers, 1991),

In Swanson v. F.2d Cir. Fourth Circuit Appeals Court of held that Helen Powers was entitled to immunity from suit for collecting taxes from federal retirees over four-year a period preceding Supreme Court’s Davis decision Dept. Treasury, U.S. 103 L. Ed. 2d and so allegedly violating constitutional doctrine of intergovernmental Swanson, immunity Salary Public Tax Act of 1939. 937 F.2d The at 966. Fourth “[legislative Circuit observed that Swanson, . . are presumed classifications . to be constitutional.” 937 F.2d at 969 New York State (quoting City Club Ass’n (1988)). York, 1, 17, New “Rarely U.S. L. Ed. 2d will a state who simply presumptively official enforces valid statute Swanson, thereby immunity lose her from suit.” 937 F.2d at 968. greater similarity of the existing case law to the situation “[T]he hand, at its to a greater guidance reasonable state official.” Id. at 969. practice “The usual must ... judges ‘[u]ntil otherwise, say carry . . the power state officers . have forward ” directives of state Id. Lemon v. legislature.’ (quoting (1973)). Kurtzman, 36 L. U.S. Ed. 2d Const, (5) office, IV, 21; unconstitutionally continuance art. levies a tax Const, stating specific object without art. purposes applied, the tax is which to be V, 5; unconstitutionally authorizes the use of retirement funds for Const, V, purposes, other retirement art. than benefits and 6.§ IN 244 THE SUPREME COURT OF NORTH CAROLINA BAILEY v. STATE 227 N.C. of the and adopt reasoning We with conclusions concur and and against defendants Powers regard with to all claims Swanson are in the federal Constitution. Public officials Boyles grounded with may knowledge be Although they “charged not seers. [they] required predict not of constitutional developments, Swanson, at 968 of law.” 937 F.2d the future course constitutional (9th 1989)). Jensen, 1385, We 876 F.2d 1389 Cir. (quoting Lum perfect knowledge will of this state to more public not hold officials The constitu- apparent appellate reports. the law is court of than yet by 792 either federal tionality has not been examined Chapter of that, state.6 We hold by appellate or courts of this courts Boyles opinions, of such defendants Powers and guidance absent liability civil for immunity complying were entitled to statute was presumptively that valid. unconstitutionally obligations Chapter impairs 792 6. assertion Plaintiffs’ that contend, by supported, they Board Mathews v. Trustees contract is Fund, 186, Disability App. Asheville Policeman’s Pension and 96 N.C. 385 S.E.2d denied, (1990), (1989), Simpson 814 343 disc. rev. and System, App. v. North Local Governmental Retirement Carolina N.C. (1987), aff’d, 323 In S.E.2d 90 of dicta the Court S.E.2d every jurisdiction Appeals agreed which in Mathews with a Florida court “and voluntary mandatory participation has a the distinction between and addressed [in voluntary pension pension provided employees plan] . . . that ‘benefits under a may legislature or plan created act of the not be modified retirement an amendatory electing subsequent legislation the reason those reduced that voluntary acquire rights participate plans to the in such vested of contract may provided upon acceptance plan rights which not be benefits impaired by subsequent therein ” Mathews, App. to the at amendments act.’ Beach, (quoting City 142 So.2d S.E.2d at 345 Jacksonville (Fla. (Fla. 1963)). 1962), aff’d, App. 151 So.2d relationship Simpson, Appeals In members the Court held between vested government pension of a and the fund itself is contractual that a statute fund employees’ impairs rights. that an calculated benefits those contractual diminished unconstitutional, necessarily may impair impairment Such is not however. “[S]tates police power protect general in order to contracts in the exercise of their Simpson, App. interests 94. at 363 S.E.2d at of the commonwealth.” Impairment contracts violate the Clause when it is “reasonable does not Contract necessary public important purpose.” an Id. at 363 S.E.2d at to serve 94. Simpson plaintiffs’ impairment Although claim demonstrates of contracts law, question indicates whether an act has some basis unconstitutionally impairs state it also right to contract violates Contract Clause circumstances, cognizant one must resolve case. Under such courts case surrendered, power suspended, never or con- that tracted of taxation . . . shall “[t]he Const, V, 2(1), away,” properly Powers enforced art. “clearly regard Chapter 792 because law in this was established.” THE

IN SUPREME COURT BAILEY v. STATE OF NORTH CAROLINA (1991)]

[330 We parallel plaintiffs’ draw conclusions regarding claims under the North In jurisdiction Carolina Constitution. this an of- may ficial be held liable when he acts or maliciously corruptly, duties, when he beyond acts of his when he scope or fails to act at long public lawfully all. “As as a official exercises the by and with he judgment discretion which is virtue invested of office, authority, his within the his keeps scope of official and acts without corruption, liability.” malice or he protected is Smith State, v. at 430. S.E.2d at

The Secretary oath of office for both the of the North Carolina Department of Revenue and the Treasurer of North Carolina re- that the “will quires official and support maintain the Constitution Const, VI, and laws” of the nation and the state. N.C. art. 7.§ Among duties and of the of obligations Secretary Revenue responsibility is all executive functions revenue relative to col- (1990). lection. N.C.G.S. 143B-219 These include refunding taxes § by paid taxpayers who have a defense valid to the collection of (1989). such taxes. 105-267 similarly N.C.G.S. The State Treasurer is responsible for “the efficient and exercise the respon- faithful of 147-68(e) office,” (1987), sibilities of his N.C.G.S. including refund- ing erroneously taxes collected: receipts

Whenever taxes or other of are kind or have error, law, by been misinterpretation clerical of the or other- wise, paid treasury collected into the State excess of State, legally amount found due the said excess amount shall be refunded to the entitled person thereto.

N.C.G.S. The of Secretary official duties neither of Revenue nor the Treasurer include to responsibility judge constitutionality statutes their authorizing regulating departmental func- boards, tions. Like administrative these only offices “have such authority as is them properly upon by Legislature. conferred question constitutionality The a the judicial statute is for Insurance, Gold, v. branch.” Insurance Co. Commissioner N.C. at at Oil Corp. Clayton S.E.2d 796. See also Comr. (“The Revenue, at 147 S.E.2d at 526 law does not contemplate upon that administrative boards shall pass con- questions.”). Although stitutional Revenue is by authorized 105-266.1 refund or excessive incorrect paid taxpayer taxes who for such refund applies according

BAILEY v. STATE OF NORTH CAROLINA 105-266.1, she not authorized of section is requisites of an “to order the refund that statute or section 105-267 tax, constitutionality questions since illegal invalid Coble, Co. 293 N.C. at the courts.” Coca-Cola 105-266.1, for the Treasurer 783. Like authorization at section 147-68(e) limited to taxes under refund excess taxes N.C.G.S. § erroneously challenged does include those unconstitutional. we to laws to violate alleged

As have held reference Constitution, and laws officials bear a the federal that valid, duty uphold presumptively regardless to are constitutional of provisions that these laws violate the North Carolina allegations of grounds to such laws on constitutional Challenges Constitution. other- for the alone to decide. our courts indicate courts Until wise, responsibility enforces as a of the office an official who a law carry validity the of “to presumption is. entitled to act on and the We legislature” impunity. forward the directives of state in or Secretary Boyles neither nor Treasurer failed hold Powers performed duty to N.C.G.S. 105-267 or N.C.G.S. wrongfully a enforce § in under refunding Chapter. 147-68 taxes that § sum- entry partial For the reasons the trial court’s of given, mary and the remanded judgment for is reversed case Court, entry summary Superior County, judg- to the Wake for entry summary in court’s ment favor of defendants. The trial Boyles in in Powers and judgment favor Treasurer capacities their individual affirmed. remanded; in part part.

Reversed in affirmed in dissenting part. Justice in concurring part MITCHELL Like I believe the trial was correct majority, court summary judgment in for the Powers and entering defendants Boyles them in their individual as to the claims made Therefore, IV I concur in Part of the capacities. opinion by the trial majority summary judgment which affirms entered of those two defendants. court favor I of the which parts opinion majority dissent from those (1) summary partial judgment plain- reverse the trial court’s Court, County, Superior tiffs and remand this case to the Wake entry defendants. summary judgment remaining in favor of

IN THE SUPREME COURT BAILEY STATE OF NORTH CAROLINA majority The concludes that the taxpayer-plaintiffs could not they suit bring procedures this because failed to follow the man- dated 105-267 I N.C.G.S. for the refund of an invalid tax. do not agree. Clearly, N.C.G.S. 105-267 does not expressly preclude —

collective as to opposed individual--demands for refunds of taxes. view, In my “person” “taxpayer” terms as used in that statute must be held to both encompass individual and collective (1990) (words taxpayers. N.C.G.S. importing singular to be including construed unless inconsistent with plural Assembly). manifest intent of Santa General See Barbara 244, Optical Co. State Bd. Equalization, App. 3d Cal. (2 1975) (terms Cal. Rptr. Dist. a tax statute similar class). Therefore, 105-267 held to include the plaintiffs a could make collective demand for a under the statute. refund

Further, I believe that the de- legislative purpose behind the mand requirement simply the statute is to give of Revenue fair of a possible obligation notice to refund taxes and an opportunity prepare contingency. meet The essen- with, tial requirements of the statute in this regard complied were in that the was given sufficient notice as to the both basis for the to the challenge legitimacy scope and the Mercury of the See Mach. v. protesting Importing class. Corp. York, 418, 426, 404, 400, New 3 N.Y.2d 144 N.E.2d 165 N.Y.S.2d (1957). 517, Therefore, correctly 521 court held trial that plaintiffs’

demands constituted effective demand for refund on behalf named their preserved all and unnamed class members and to claim seek im- rights unlawfully refunds all monies posed and as a of the collected 792, result enactment of 1989 Sess. Laws Ch. which had the effect of income removing an by on benefits or exemption received monies virtue systems. Local Government Retirement or plans The trial court was in holding correct that the collective demand on the plaintiffs sufficiently behalf of had with complied lawful precedent conditions to of an action such as that bringing Therefore, brought by plaintiffs. majority these errs in remand- entry summary ing judgment this case for the defendants on taxpayers’ allegedly these claims for refunds of taxes collected unlawfully unconstitutionally. IN THE SUPREME

248 COURT NORTH CAROLINA BAILEY v. STATE OF 227 follow arguendo taxpayers that these failed to assuming Even ad 105-267 and the procedures established N.C.G.S. thereto, I pursuant believe regulations adopted ministrative this the defendants. they proceed are entitled to action here, required were not presented taxpayers the facts Under this suit. remedies before pursue bringing their administrative judicial does Failure exhaust administrative remedies not bar action, Orange inadequate. when those administrative remedies are County Dept. App. v. North Carolina Transportation, (1980); 376, 908, denied, 350, 890, 301 disc. rev. 94 Act: An Daye, New Administrative Procedure North Carolina’s (1975). Analysis, The ad 53 N.C.L. Rev. Interpretive by rights provided ministrative and remedies N.C.G.S. § in the the facts of this case. presented situation inadequate (ad (W.D.N.C. 1931) Maxwell, 52 F.2d Gramling See inadequate the statute held procedures provided ministrative enjoin in case over 400 individuals to enforcement of Therefore, growers). license fruit and vegetable a tax on trucks of were not the ad taxpayer-plaintiffs required exhaust this initiating ministrative remedies of N.C.G.S. 105-267 before action.

Additionally, courts have not exhaust required suit, where bringing pursuing administrative remedies before ex rel. administrative remedies would be futile. State Utilities Co., Tel. & App. v. Southern Bell Tel. Commission (1989), grounds, rev’d on other S.E.2d (1990); Daye, Pursuing Rev. at 907. S.E.2d N.C.L. “futile” when it is do so remedy an administrative useless to Doe, practical Honig either as matter. See 484 U.S. legal 98 L. Ed. If there ever been 2d has it futile a case in which would be for the to exhaust their before their remedies in pursuing administrative remedies court, this is that case.

Here, it will the of Revenue has announced that fact, not refunds In grant sought taxpayer-plaintiffs. points opinion, as the out in its the defendants do not majority constitutionality have the to of the tax under power pass upon constitutionality challenge in this case because decisions as to the Thus, exclusively are for the it is clear judiciary. statutes these to beyond any requiring taxpayers reasonable doubt that by the procedural hoops jump through adopted applied THE IN SUPREME COURT

STATE v. TURNER bureaucracy under N.C.G.S. 105-267would to force them act, do an vain utterly to and useless since the defendants are authority grant without to requested. Murphy relief See (1925) Greensboro, 268,129 S.E. 614 not (taxpayer required exhaust precedent to tax); condition before suit to bringing challenge Masten,

Waddill v. 90 S.E. (taxpayers required to follow procedures for tax re- requesting suit). fund before I believe that the law doctrine bringing common lex cogit neminem ad vana seu inutilia peragenda law —the — compels no one do vain or things useless this applies situa- (1986).Therefore, See strenuously tion. I disagree with the majority’s conclusion defendants entitled summary in their judgment favor because the taxpayer-plaintiffs not, have in the view of the majority, complied with the technical — requirements clearly of the statute acts which would be vain and useless this case.

These were taxpayers entitled to institute pursue this majority suit the defendants. The reversing errs in trial court’s judgment that effect and further remanding errs entry case this for the of summary judgment for the defendants. I Accordingly, parts dissent from opinion those of the majority. TURNER,

STATE OF NORTH CAROLINA v. DAVID JR. CLAUDE No. 587A88 (Filed 1991) 6 December (NCI4th)— 1. Evidence and Witnesses void prior for impeachment convictions —use error —harmless arguendo that Assuming prior defendant’s convictions are void he pled guilty because to offenses with which he was not charged and that defense counsels’ concerning affidavit their examination of court was records sufficient evidence to fact, prove error in allowing prosecutor to im- peach defendant void in this prior prosecu- convictions degree tion for first beyond murder was harmless a reasonable doubt where the evidence of defendant’s responsibility uncontested, overwhelming victim’s death was and it is

Case Details

Case Name: Bailey v. State

Court Name: Supreme Court of North Carolina

Date Published: Dec 6, 1991

Citation: 412 S.E.2d 295

Docket Number: 105PA91

Court Abbreviation: N.C.