Kiplinger v. Nebraska Dept. of Nat. ResourcesKiplinger v. Nebraska Dept. of Nat. Resources
Judgments: Collateral Estoppel: Res Judicata. The applicability of the doctrines of res judicata and collateral estoppel is a question of law. - Judgments: Appeal and Error. On questions of law, an appellate court is obligated to reach a conclusion independent of the determination reached by the court below.
- Constitutional Law: Statutes: Appeal and Error. Whether a statute is constitutional is a question of law; accordingly, the Nebraska Supreme Court is obligated to reach a conclusion independent of the decision reached by the court below.
- Res Judicata. The doctrine of res judicata, or claim preclusion, bars the relitigation of a matter that has been directly addressed or necessarily included in a former adjudication if (1) the former judgment was rendered by a court of competent jurisdiction, (2) the former judgment was a final judgment, (3) the
former judgment was on the merits, and (4) the same parties or their privies were involvеd in both actions. - ____. The doctrine of res judicata bars relitigation not only of those matters actually litigated, but also of those matters which might have been litigated in the prior action.
- Judgments: Actions: Parties. In the context of whether a prior judgment has preclusive effect with respect to a subsequent action, privity requires, at a minimum, a substantial identity between the issues in controversy and a showing that the parties in the two actions are really and substantially in interest the same.
- Constitutional Law: Statutes: Presumptions. A statute is presumed to be constitutional, and all reasonable doubts are resolved in favor of its constitutionality.
- Constitutional Law: Statutes: Proof. The burden of establishing the unconstitutionality of a statute is on the one attacking its validity.
- ____: ____: ____. The unconstitutionality of a statute must be clearly established before it will be declared void.
- Taxation: Property: Valuation. Generally, a property tax is levied on real or personal property, with the amount of the tax usually dependent upon the value of the property.
- ____: ____: ____. Property taxes, by their very nature, target the value of that which is being taxed.
- Taxation. An excise tax is imposed upon the performance of an act.
- ____. A tax imposed upon the doing of an act, including a business or license tax, is an excise tax and not a property tax.
- Judgments: Collateral Estoppel. Under the doctrine of collateral estoppel, also known as issue preclusion, an issue of ultimate fact that was determined by a valid and final judgment cannot be litigated again between the same parties or their privities in any future litigation.
- ____: ____. Collateral estoppel is applicable where (1) an identical issue was decided in a prior action, (2) the prior action resulted in a judgment on the merits which was final, (3) the party against whom the doctrine is to be applied was a party or was in privity with a party to the prior action, and (4) there was an opportunity to fully and fаirly litigate the issue in the prior action.
- Constitutional Law: Statutes: Special Legislation. The focus of the prohibition against special legislation is the prevention of legislation which arbitrarily benefits or grants special favors to a specific class. A legislative act constitutes special legislation if (1) it creates an arbitrary and unreasonable method of classification or (2) it creates a permanently closed class.
- Special Legislation: Words and Phrases. A “closed class” is one that limits the application of the law to a present condition and leaves no room or opportunity for an increase in the numbers of the class by future growth or development.
- Statutes: Special Legislation. In deciding whether a statute legitimately classifies, the court must consider the actual probability that others will come under the act‘s operation. If the prospect is merely theoretical, and not probable, the act is special legislation.
- Constitutional Law: Taxation: Public Purpose. A tax levy does not equal a commutation merely because the taxing district is broadened to reflect the actual benefits to the public. So long as all taxpayers receive the benefit of the taxes
they remit, the taxing district passes constitutional muster without offending the prohibition against commutation.
Appeal from the District Court for Lancaster County: ROBERT R. OTTE, Judge. Affirmed.
Jeanelle R. Lust and Katherine S. Vogel, of Knudsen, Berkheimer, Richardson & Endacott, L.L.P., for appellants.
Jon Bruning, Attorney General, Justin D. Lavene, and Marcus A. Powers for appellees Nebraska Department of Natural Resources and its director.
Donald G. Blankenau and Thomas R. Wilmoth, of Blankenau Wilmoth, L.L.P., for appellees Upper Republican Natural Resources District, Middle Republican Natural Resources District, and Lower Republican Natural Resources District.
HEAVICAN, C.J., WRIGHT, GERRARD, STEPHAN, MCCORMACK, and MILLER-LERMAN, JJ., and CASSEL, J.
STEPHAN, J.
In Garey v. Nebraska Dept. of Nat. Resources,1 we hеld that a property tax levy authorized by L.B. 701, enacted in 2007,2 was a property tax for a state purpose and therefore unconstitutional, in violation of
1. REPUBLICAN RIVER COMPACT
The states of Colorado, Kansas, and Nebraska, and the United States are signatories to the Republican River Compact (Compact), which was authorized by federal legislation in 1943 and ratified by the legislatures of the three states.5
As we stated in Garey, the primary purposes of the Compact are to
“provide for the most efficient use оf the waters of the Republican River Basin . . . for multiple purposes; to provide for an equitable division of such waters; to remove all causes, present and future, which might lead to controversies; to promote interstate comity; to recognize that the most efficient utilization of the waters within the [b]asin is for beneficial consumptive use; and to promote joint action by the States and the United States in the efficient use of water and the control of destructive floods.”6
Under the terms of the Compact, each signatory state is allotted a specific number of acre-feet of water per year from designated sources for “beneficial consumptive use.”7 Pursuant to this allocation, Nebraska receives 49 percent of the annual water supply, Kansas receives 40 percent, and Colorado receives the remaining 11 percent.
On December 15, 2002, representatives of the three signatory states entered into a stipulation to settle litigation initiated by Kansas in the U.S. Supreme Court regarding their respective rights under the Compact. Nebraska‘s Governor and Attorney General sent letters to water users in the Upper, Middle, and Lower Republican Natural Resources Districts (Republican NRD‘s) advising of the settlement and stating that the Republican NRD‘s would be developing management plans to address water allocation and usage.
On May 1, 2007, L.B. 701 was enacted with an emergency clause. According to its introducer, L.B. 701 was “designed to address the water problem in the Republican River Basin” and “[p]rovide a way to guarantee that Nebraska stays in compliance with the . . . Compact . . . with Kansas on an annual basis.”8 As originally enacted and in effect on the dates relevant to this action, L.B. 701 authorized a natural resources district “with jurisdiction that includes a river subject to an interstate compact among three or more states and that also includes one or more irrigation districts within the compact river basin” to issue “river-flow enhancement bonds.”9 The proceeds of these bonds could be used only for specified purposes, including acquisition of water rights, acquisition or administration and management of canals and other works, vegetation management, and augmentation of riverflows.10 Riverflow enhancement bonds authorized by L.B. 701 are payable from three funding sources: “(a) funds granted to [an issuing natural resources] district by the state or federal government for one or more qualified projects, (b) the occupation tax authorized by section 2-3226.05, or (c) the levy authorized by section 2-3225.”11 In а press release announcing the enactment of L.B. 701, the Governor‘s office stated that the legislation would “‘help our state make substantial progress in our goal of achieving sustainable water use throughout Nebraska,‘” and further, that L.B. 701 “‘addresses both our short-term issues in the Republican River Basin and creates a framework for addressing our long-term water challenges.‘”12
In May and June 2007, the Republican NRD‘s entered into an “Interlocal Cooperation Agreement” to create the Republican
3. GAREY v. NEBRASKA DEPT. OF NAT. RESOURCES
Garey involved a constitutional challenge to the property tax levy authorized by L.B. 701 as codified at
The nine individual plaintiffs in Garey were residents and taxpayers of the Republican NRD‘s. The defendants included the Department of Natural Resources and its acting director, the Republican NRD‘s, and various other governmental officials and entities responsible for сollection of property taxes in the counties situated within the Republican NRD‘s. The Garey plaintiffs challenged the levy authorized under
The district court rejected the first two claims, but concluded that the statutory authorization of the levy constituted special legislation, in violation of
4. CURRENT ACTION
This case presents a constitutional challenge to the occupation tax levied pursuant to L.B. 701 as сodified at
(1) The district may levy an occupation tax upon the activity of irrigation of agricultural lands within such district on an annual basis, not to exceed ten dollars per irrigated acre, the proceeds of which may be used for the purpose of repaying principal and interest on any bonds or refunding bonds issued pursuant to section 2-3226.01 for one or more projects under section 2-3226.04 or for the repayment of financial assistance received by the district pursuant to section 2-3226.07.
(2) Acres classified by the county assessor as irrigated shall be subject to such district‘s occupation tax unless, on or before July 1, 2007, and on or before March 1 in
each subsequent year, the record owner certifies to the district the nonirrigation status of such acres.
In 2007, the boards of the Republican NRD‘s voted to levy the occupation tax authorized by
Unsuccessful in this effort, the landowners brought this action for declaratory and injunctive relief seeking to have the occupation tax declared unconstitutional and its levy and collection enjoined. The appellees, defendants below, include the Department of Natural Resources and its director, the Republican NRD‘s, the state Property Tax Administrator, and a number of county officials responsible for imposing and collecting the occupation tax in the various counties where the tax has been levied.
The landowners alleged in their complaint that the occupation tax was in fact a “‘property tax for state purposes‘” prohibited by
The county officials filed answers generally denying the allegation that the occupation tax was unconstitutional and asserting certain affirmative defenses. Upon stipulation of the
The case proceeded to trial on stipulated facts. In addition to the facts summarized above, the parties stipulated to the maximum ground water allocations per acre permitted under the former and current integrated management plans of the Republican NRD‘s, and various factors which affect the availability of both ground water and surface water for irrigation. The parties further stipulated that the Department of Natural Resources had proposed options for amending the integrated management plans of the Republican NRD‘s for dry years. Also, the parties stipulated that land within various irrigation districts which is classified as “irrigated” had not received surface water for irrigation during some or all of the preceding 10-year period; that there are lands within each of those irrigation districts which have supplemental ground water wells available during years when surface water was not received; that the Republican River Basin in Nebraska has been determined by the State to be “fully appropriated” and, as such, no new surface water rights will be granted so long as such determination remains in place; and that each of the Republican NRD‘s named as defendants has placed a moratorium on the drilling of new irrigation wells within its jurisdiction.
The district court entered an order on March 12, 2010, upholding the constitutionality of the occupation tax. The court determined that the occupation tax was not a property tax, but, rather, an excise tax levied “‘upon the activity of irrigation,‘” and therefore did not violate
The landowners appealed from this order, and the Department of Natural Resources, its director, and the Republican NRD‘s (hereinafter appellees) have cross-appealed. We moved the case to our docket on our own motion.
II. ASSIGNMENTS OF ERROR
The landowners assign, renumbered and restated, that the district court erred in (1) concluding that the appellees were not collaterally estopped by the district court‘s judgment in Garey from litigating whether the occupation tax permitted under
In their cross-appeal, the appellees assign, restated, that the district court erred in (1) concluding that the landowners’ claims in this action were not barred by the doctrine of res judicata or claim preclusion, because the landowners failed to raise constitutional objections to the occupation tax at the earliest practical opportunity when they challenged the property tax provisions of L.B. 701 in Garey, and (2) concluding that the
III. STANDARD OF REVIEW
[1,2] The apрlicability of the doctrines of res judicata and collateral estoppel is a question of law.16 On questions of law, an appellate court is obligated to reach a conclusion independent of the determination reached by the court below.17
[3] Whether a statute is constitutional is also a question of law; accordingly, we are obligated to reach a conclusion independent of the decision reached by the court below.18
IV. ANALYSIS
This case, like Garey, is concerned with the language of
1. RES JUDICATA
[4,5] We first address the potentially dispositive issue raised by the cross-appeal of whether, under the doctrine of res judicata, this action is barred by the final judgment in Garey. The doctrine of res judicata, or claim preclusion, bars the relitigation of a matter that has been directly addressed or necessarily included in a former adjudication if (1) the former judgment was rendered by a court of competent jurisdiction, (2) the former judgment was a final judgment, (3) the former judgment was on the merits, and (4) the same parties or their privies were
Garey was a final judgment on the merits by a court of competent jurisdiction. The defendants in that case were essentially the same persons and entities as the defendants in this case. But only three of the plaintiffs in Garey are named as plaintiffs in this case. Six of the Garey plaintiffs are not parties to this case, and 88 of the landowners in this case were not plaintiffs in Garey. While acknowledging that there is not an identity of plaintiffs in the two cases, appellees argue that for purposes of application of the doctrine of res judicata, the landowners who brought this action are in privity with the Garey plaintiffs.
[6] In the context of whether a prior judgment has preclusive effect with respect to a subsequent action, privity requires, at a minimum, a substantial identity between the issues in controversy and a showing that the parties in the two actions are really and substantially in interest the same.22 Appellees argue on cross-appeal that because all the landowners who brought this action were subject to the property tax challenged in Garey, they are in privity with the Garey plaintiffs. But the landowners argue that because occupation tax applies only to land which is classified as irrigated, the occupation tax is levied against a small subset of the real estate subject to the property tax challenged in Garey.
We agree that because of this distinction, the plaintiffs in the two cases are not “really and substantially in interest the same” and are therefore not in privity.23 The plaintiffs in Garey shared the trait of being residents of the Republican NRD‘s whose land would be subject to the property tax imposed by L.B. 701, while the landowners in this case shared the trait of
We are aware that in Nolles v. State Com. Reorganization School Dist.,24 the Eighth Circuit Court of Appeals concluded that if presented with the issue, that court would “consider the doctrine of virtual representation in determining whether a subsequent party was in privity with a party to an earlier suit” for purposes of res judicata. Virtual representation is “‘an equitable theory rather than . . . a crisp rule with sharp corners and clear factual predicates, such that a party‘s status as a virtual representative of a nonparty must be determined on a case-by-case basis.‘”25 As the Nebraska Court of Appeals subsequently noted in Haskell v. Madison Cty. Sch. Dist. No. 0001,26 this court has never adopted the “expansive definition of privity” embodied in the doctrine of virtual representation, and we decline to do so on the facts and legal arguments presented by this case.
Based upon our de novo review of this question of law, and applying the traditional notion of privity reflected by our jurisprudence, we conclude that at least some of the landowners who brought this action have not beеn shown to be in privity with the plaintiffs in Garey. Because this is so, we need not and indeed cannot consider whether the substantive issues in this case could have been presented in Garey. We therefore conclude that the judgment in Garey does not bar this action under the doctrine of res judicata.
[7-9] We proceed, therefore, to the merits of the constitutional challenges to the occupation tax authorized by L.B. 701, as codified at
(a) Is Occuрation Tax “a property tax for state purposes” in Violation of Neb. Const. Art. VIII, § 1A ?
[10-13] Generally, a property tax is levied on real or personal property, with the amount of the tax usually dependent upon the value of the property.30 Property taxes, by their very nature, target the value of that which is being taxed.31 An excise tax, on the other hand, is imposed upon the performance of an act.32 Thus, a tax imposed upon the doing of an act, including a business or license tax, is an excise tax and not a property
Applying the same principles, the district court concluded that the occupation tax was an excise tax, because it was unassociated with the value of the property being taxed and was levied “upon the activity of irrigation.”38 But the landowners argue on appeal that the occupation tax is a “property tax in disguise,” because the tax is levied against property which is “‘classified by the county assessor as irrigated‘” without regard to whether the “‘activity of irrigation‘” is actually occurring.39
We reject this argument for two principal reasons. First, it does not address the fact that the occupation tax is not depеndent upon the value of the land being taxed. Although two tracts, both classified as irrigated, may have vastly different value based upon various other factors, the levy of the occupation tax does not take the differing values into account. Second, the fact that land is “classified . . . as irrigated” would seem to be a reasonable indicator that the “activity of irrigation” is actually occurring on the land. And if that were not the case, the landowner can avoid the occupation tax by certifying to the natural resources district “the nonirrigation status” of the land on a year-by-year basis.40 We therefore conclude that the occupation tax authorized by L.B. 701 and codified at
Neb. Const. Art. III, § 18 ?
(i) Effect of Garey v. Nebraska Dept. of Nat. Resources
The landowners argue that the district court erred in rejecting their contеntion that Garey resolved the special legislation claim in their favor under principles of collateral estoppel. In Garey, the district court held that
[14,15] Under the doctrine of collateral estoppel, also known as issue preclusion, an issue of ultimate fact that was determined by a valid and final judgment cannot be litigated again between the same parties or their privies in any future litigation.44 Collateral estoppel is applicable where (1) an identical issue was decided in a prior action, (2) the prior action
(ii) Legislative Classification of Political Subdivisions
In their cross-appeal, appellees contend that the district court erred in rejecting their claim that this prohibition is inapplicable to legislative classifications of political subdivisions, including natural resources districts. They argue that the principle of ejusdem generis “precludes the Constitution‘s explicit limitation to corporations, associations, and individuals from being expanded to implicitly include cities, counties, and [natural resources districts].”45 But as the district court observed, our cases have applied this constitutional provision to legislative classifications involving political subdivisions. In State, ex rel. Campbell, v. Gering Irrigation District,46 this
While the appellees’ argument would have some logical appeal if we were writing on a clean jurisprudential slate, we are not persuaded to depart from long-established precedent applying the constitutional prohibition against special legislation to legislative classifications involving political subdivisions. We therefore proceed to the merits of the lаndowners’ argument that the district court erred in concluding that the statute in question did not violate this constitutional provision.
[16] The focus of the prohibition against special legislation is the prevention of legislation which arbitrarily benefits or grants special favors to a specific class. A legislative act constitutes special legislation if (1) it creates an arbitrary and unreasonable method of classification or (2) it creates a permanently closed class.50
The landowners contend that the statutes in question create two closed classes, one “consisting of the [Republican NRD‘s] to which the legislature has granted the privilege to levy an occupation tax under
We have little difficulty in concluding that the second of these is not a closed class. Real property being alienable, the makeup of any “class” consisting of owners of property located outside the boundaries of the Republican NRD‘s is subject to constant change.
[17,18] The landowners’ principal argument is that by conferring the power to levy an occupation tax on natural resources districts with jurisdiction that “‘includes a river subject to an interstate compact among three or more states and that includes one or more irrigation districts within the compact basin,‘” the Legislature has created a permanently closed class consisting of the Republican NRD‘s within the Republican River Basin, the only natural resources districts in the state which currently have within their jurisdiction a river which is subject to an interstate сompact.52 A “closed class” is one that
“‘limits the application of the law to present condition, and leaves no room or opportunity for an increase in the numbers of the class by future growth or development . . . .‘” . . . “In deciding whether a statute legitimately classifies, the court must consider the actual probability that
others will come under the act‘s operation. If the prospect is merely theoretical, and not probable, the act is special legislation.”53
The landowners do not dispute the possibility that the State of Nebraska could enter into future interstate compacts with adjoining states relating to rivers other than the Republican, but based upon the legislative history of L.B. 701, they argue that it is improbable that this would occur.
The introducer‘s statement of intent states that L.B. 701 was intended to “[p]rovide a way to guarantee that Nebraska stays in compliance with the . . . Compact . . . with Kansas on an annual basis” and that the legislation would be restricted “to the Republican River Basin using appropriate open class language.”54 In introducing amendments to the bill, counsel for the Natural Resources Committee noted that the bonding authority of natural resources districts “is restricted to those districts that are subject to an interstate compact consisting of three or more states, which at this time is the Republic[an] River Basin only.”55 In testimony before the committee, a special counsel to the attorney general stated:
First, while everyone has talked about [how] this applies to the Republican River[,] and in fact the [Republican NRD‘s] are the only ones that currently qualify, this is, as written, an open class. All it takes is for the state to negotiate a compact with two other states over water in order for this provision to then apply . . . to have that apply to them. That‘s potentially the South Platte, the North Platte, the Missouri River are all potential candidates, so it is an open class and satisfies the constitutional prohibition against special legislation. But to paraphrase Senator Wehrbein in a debate over the Southeastern Dairy Compact a couple of years ago, no Legislature in its right
mind would ever enter into a compact again in this day and age. So I think, while it is an open class, I think we‘re confident it will be a [sic] Republican River that benefits from this.56
During the floor debate, the introducer of L.B. 701 noted:
And right now, this is mostly focused on the [C]ompact and mostly where you have a three-state compact and it‘s the only three-state compact that we have. And I‘m sure there won‘t be anyone in the future that will want to enter into another three-state cоmpact. I think Senator Christensen outlined it quite well in his opening remarks and when he went on the history of when the compact started. It had to be done back in the early 40s. And the reason for that was so that the federal government would go in and build some of those dams and reservoirs in there. And they had to have the three states on the Republican River agree to it because at that time that river did run through three states, starting in Colorado, Kansas, Nebraska, and back into Kansas again. So that was, I think, part of the focus has been to try and narrow it down so that at the present time this amendment and this LB701 and everything directs most of the bonding authority and the authority that we‘re giving the [natural resources districts] at the present time and the [Republican NRD‘s] in the Republican River project and agreement. So I think that‘s one of the concerns, that we tried to narrow it down so it didn‘t аffect a lot of areas in the state. . . . But for the most part, this was strictly focused and drafted so that we could do some work, try to solve the problems that are going on with the Republican [NRD‘s], and what we can do to bring Nebraska in compliance with Kansas and on some of our surface water issues going down the Republican River.57
While we consider these statements as part of the pre-enactment legislative history of L.B. 701, we agree with the
(iv) Is L.B. 701 Occupation Tax Commutation of Taxes in Violation of Neb. Const. Art. VIII, § 4 ?
The landowners contend that the occupation tax violates
[T]he Legislature shall have no power to release or discharge any county, city, township, town, or district whatever, or the inhabitants thereof, or any corporation, or the property therein, from their or its proportionate share of
taxes to be levied for state purposes, or due any municipal corporation, nor shall commutation for such taxes be authorized in any form whatever[.]
The constitutional proscription against commuting a tax prevents the Legislature from relеasing either persons or property from contributing a proportionate share of the tax.60 The landowners argue that because the entire state benefits from compliance with the Compact, requiring only irrigators within the Republican NRD‘s subject to the Compact imposes a disproportionate burden upon them.
[19] While it is true that compliance with an interstate compact is a state obligation, it is likewise true that irrigators within a river basin subject to an interstate compact have an interest that is distinct from other taxpayers, in that they derive a direct benefit from the riverflow. A tax levy does not equal a commutation merely because the taxing district is broadened to reflect the actual benefits to the public. So long as all taxpayers receive the benefit of the taxes they remit, the taxing district passes cоnstitutional muster without offending the prohibition against commutation.61 The landowners do not contest that they derive a benefit from the water projects financed by the occupation tax, but they argue that their burden is disproportionate to that of taxpayers owning property outside the Republican NRD‘s.
The record indicates that compliance with the Compact implicates a variety of funding sources including but not limited to the occupation tax. Indeed,
V. CONCLUSION
For the reasons discussed, we conclude that the landowners have not overcome the presumption of constitutionality with respect to the challenged statutes, and we therefore affirm the judgment of the district court.
AFFIRMED.
CONNOLLY, J., not participating.