SERVICE OIL, INC., Plаintiff and Appellee, v. STATE of North Dakota, Defendant and Appellant.
Civ. Nos. 910135, 910168
Supreme Court of North Dakota
Jan. 9, 1992
479 N.W.2d 815
PEDERSON, Surrogate Judge, sitting with the Court due to the resignation of the Honorable H.F. GIERKE III, as of November 20, 1991.
MESCHKE, Justice, concurring.
I join in the opinion by Chief Justice Erickstad. I write separately only to call attention to related statutes that reinforce the holding on the third point about interpreting
VANDE WALLE and LEVINE, JJ., concur.
Joseph A. Turman (appearance), of DeMars & Turman, Fargo, and Rebecca Lippman (argued), of Swidler & Berlin, Washington, D.C., for plaintiff and appellee.
Joy L. Wezelman (argued) and Robert W. Wirtz (appearance), Asst. Attys. Gen., State Tax Dept., Bismarck, for defendant and appellant.
ERICKSTAD, Chief Justice.
The State of North Dakota appeals from a judgment declaring
Service Oil, a North Dakota corporation, purchases and blends motor vehicle fuels. Between July 1985 and December 1987, Service Oil purchased motor vehicle fuels containing qualifying alcohol manufactured outside North Dakota and received a smaller tax reduction than it would have received if it had purchased motor vehicle fuels containing qualifying alcohol manufactured in North Dakota.
On May 31, 1988, the United States Supreme Court held that an Ohio reciprocity provision similar to
On August 11, 1989, Service Oil sued the State, asserting that
Service Oil moved for summary judgment on September 5, 1990. On September 28, 1990, the State requested a six-month
Thereafter, the district court granted Service Oil‘s motion for summary judgment, concluding that
Pursuant to
The State initially contends that the district court abused its discretion in denying its request for a six-month continuance to conduct discovery. The State argues that additional time for discovery was essential to refute Service Oil‘s allegation that it had been economically disadvantaged by
The decision to grant or deny a motion for continuance is a matter within a trial court‘s discretion. E.g., Witthauer v. Burkhart Roentgen, Inc., 467 N.W.2d 439 (N.D.1991). In considering a motion for a continuance а trial court also has discretion to determine the length of a continuance. State v. Nagel, 75 N.D. 495, 28 N.W.2d 665 (1947). On appeal, we will not overturn the trial court‘s decision on a continuance absent an abuse of discretion. Witthauer, supra; Nagel, supra. A trial court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner. Construction Associates, Inc. v. Fargo Water Equipment Co., 446 N.W.2d 237 (N.D.1989).
Service Oil commenced this action on August 11, 1989. The State was not precluded from conducting discovery from then until December 12, 1989, when the parties agreed to postpone any further proceedings pending the Supreme Court decisions in McKesson and ATA. After McKesson and ATA were decided on June 4, 1990, the State had until January 4, 1991, to conduct discovery. Even after Service Oil moved for summary judgment on September 5, 1990, the State still had four months to conduct discovery. Excluding the time when the parties agreed to pоstpone further proceedings in this case, the State had eleven months to conduct discovery. However, the State apparently made no effort to conduct discovery during any of these periods. Under these circumstances we cannot say that the district court acted arbitrarily, unreasonably, or unconscionably in denying the State‘s request for a six-month continuance and instead granting the State one additional month to conduct discovery. The district court did not abuse its discretion.
II. RIGHT TO REFUND
The State next argues that the district court erred as a matter of law in ordering it to refund $102,300.58 in discriminatory taxes for the period from July 1985 through December 1987, or to collect back taxes from taxpayers favored by the discriminatory tax scheme. In ATA, supra, and McKesson, supra, the Supreme Court identified two distinct issues invоlved in this analysis. In ATA, the Court considered the threshold issue of whether a judicial decision applies retroactively or prospectively. In McKesson, the court considered the issue of the appropriate relief once a judicial decision is determined to apply retroactively.
A. RETROACTIVITY
Within the analytical framework of ATA, we initially consider the threshold issue of retroactive or prospective application of New Energy and the district court‘s
The plurality, written by Justice O‘Connor and followed by three other justices, analyzed the retroactivity issue under the three-pronged analysis of Chevron Oil Co. v. Huson, 404 U.S. 97, 106-107, 92 S.Ct. 349, 355, 30 L.Ed.2d 296, 306 (1971):
“First, the decision to be applied nonretroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied ... or by deciding an issue of first impression whose resolution was not clearly foreshadowed.... Second, it has been stressed that ‘we must ... weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operations.’ ... Finally, we have weighed the inequity imposed by retroactive application, for [w]here a decision of this Court could produce substantial inequitable results if applied retroactively, there is ample basis in our cases for avoiding the “injustice or hardship” by a holding of nonretroactivity.‘” [Citations omitted.]
The plurality initially concluded that Scheiner aрplied prospectively because it clearly established a new principle of law by expressly overruling prior caselaw which Arkansas had relied upon in enacting its highway use tax. Second, the plurality concluded that the purpose of the Commerce Clause did not dictate retroactive application of the new rule of law announced in Scheiner because retroactive application would not deter future free trade violations. Third, the plurality concluded that applying Scheiner retroactively would produce substantial inequitable results because Arkansas had relied upon valid existing precedent in enacting and implementing its highway use tax.
Justice Scalia concurred in the result of the plurality, concluding that, in the interest of protecting litigаnts’ settled expectations, Scheiner applied prospectively because it overruled clear past precedent. The dissent, written by Justice Stevens and followed by three other justices, essentially concluded that fundamental notions of fairness dictated that Scheiner be retroactively applied to claims not barred by the statute of limitations and to cases where the parties’ rights had not been finally determined by a court of law.
Under any of the approaches taken in ATA, we conclude that New Energy applies retroactively. Under the Chevron analysis, New Energy applies retroactively because it did not announce a new principle of law or overrule prior caselaw. Instead, it followed clear precedent. See, e.g., Bacchus Imports, Ltd. v. Dias, 468 U.S. 263, 104 S.Ct. 3049, 82 L.Ed.2d 200 (1984); Sporhase v. Nebraska ex rel. Douglas, 458 U.S. 941, 102 S.Ct. 3456, 73 L.Ed.2d 1254 (1982); Lewis v. BT Investment Managers, Inc., 447 U.S. 27, 100 S.Ct. 2009, 64 L.Ed.2d 702 (1980); Dean Milk Co. v. Madison, 340 U.S. 349, 71 S.Ct. 295, 95 L.Ed. 329 (1951). Although the cases relied upon by the unanimous Supreme Court in New Energy did not specifically deal with the issue of tax benefits for motor vehicle fuels with qualifying alcohol, the principles of law from those decisions clearly foreshadowed the well-established contours for Commerce Clause challenges to discriminatory laws involving economic protectionism.
Bacchus, supra, typifies those cases. It was decided in 1984, before
We agree with the district court‘s conclusion that “the present case deals with the application of the well-established Commerce Clause principle. Like New Energy, the decision regarding the constitutionality of
Under the second prong of the Chevron analysis, the purpose of the Commerce Clause is to prevent discrimination against interstate commerce by regulations designed to benefit in-state economic interests and to burden out-of-state competitors. New Energy, supra; see State v. Quill Corp., 470 N.W.2d 203 (N.D.), cert. granted, --- U.S. ---, 112 S.Ct. 49, 116 L.Ed.2d 27 (1991). “A cardinal rule of Commerce Clause jurisprudence is that ‘[n]o State, consistent with the Commerce Clause, may “impose a tax which discriminates against interstate commerce ... by providing a direct commercial advantage to local business.“‘” Bacchus, supra, 468 U.S. at 268, 104 S.Ct. at 3053, 82 L.Ed.2d at 207, quoting Boston Stock Exchange v. State Tax Comm‘n, 429 U.S. 318, 329, 97 S.Ct. 599, 50 L.Ed.2d 514 (1977) and Northwestern States Portland Cement Co. v. Minnesota, 358 U.S. 450, 458, 79 S.Ct. 357, 3 L.Ed.2d 421 (1959). For purposes of the Commerce Clause, it is irrelevant that a state intended to аid local interests rather than to harm out-of-state interests. Bacchus, supra.
Under the third prong of the Chevron analysis, we are not convinced that applying New Energy and the district court‘s decision retroactively will produce substantial inequitable results. Unlike ATA, where Arkansas followed prior precedent and had reason to believe that its highway use tax was constitutional, the invalidation of this discriminatory tax was clearly foreshadowed when it was adopted in 1985. In view of the established Commerce Clausе precedents, the State‘s reliance interest in this relatively short-lived taxing scheme merits little concern. Applying New Energy retroactively to these taxes would not produce substantial inequitable results.
Under the approach taken by Justice Scalia in ATA, New Energy applies retroactively because it did not overrule clear past precedent and therefore the interests in protecting litigants’ settled expectations are not present. Under the approach taken by Justice Stevens and the dissent in ATA, fundamental notions of fairness dictates that New Energy be retroactively applied to the taxes at issue in this case.
The Supreme Court‘s recent decision in James B. Beam Distilling Co. v. Georgia, --- U.S. ---, 111 S.Ct. 2439, 115 L.Ed.2d 481 (1991), does not require a different result. Although there was no majority opinion in Beam, six justices ultimately concluded that the Court‘s prior decision in Bacchus, supra, applied retroactively.
Justice Souter, joined by Justice Stevens, concluded that because Bacchus applied retroactively to the litigants in that case, it would be unfair not to retroactively apply it to other litigants not barred by procedural requirements or res judicata. Justice White concurred in the judgment and agreed that, under several suppositions, Bacchus applied retroactively to litigants whose cases were not final at the time of that decision. Justices Blackmun, Scalia, and Marshall also concurred in the judgment and essentially concluded that prospective application of judicial decisions breached the Court‘s “obligation to discharge [its] constitutional function” [Beam, supra, 111 S.Ct. at 2450 (Justice Blackmun, concurring)] and was “beyond [the Court‘s] power.” [Id., 111 S.Ct. at 2451 (Justice Scalia, concurring)]. Justice O‘Connor, joined by Chief Justice Rehnquist and Justice Kennedy, dissented and concluded that Bacchus applied prospectively under the Chevron analysis.
Because we have concluded that New Energy applies retroactively under the Chevron analysis, Beam does not require a different result. We therefore hold that the district court‘s decision and New Energy apply retroactively to the taxes at issue in this case.
Having reached that conclusion, we next turn to the remedy issue. In McKesson, the Court observed that because exaction of an unlawful tax is a deprivation of property under the Due Process Clause, a state must provide a taxpayer with either predeprivation or post-deprivation procedural safeguards. The Court recognized that predeprivation procedural safeguards may include authorizing taxpayers to sue to enjoin the imposition of the tax prior to its payment, or to withhold payments and interpose objections as a defense in a tax enforcement proceeding initiated by the state. The Court held that if a state places a taxpayer under duress to promptly pay a tax рrior to resolving any dispute over the validity of the tax, the Due Process Clause obligates the state to provide post-deprivation procedural safeguards in the form of meaningful retroactive relief to rectify any unconstitutional deprivation.
In determining whether or not a state places the taxpayer under duress to promptly pay a tax, the Court said:
“[W]hen a tax is paid in order to avoid financial sanctions or a seizure of real or personal property, the tax is paid under ‘duress’ in the sense that the State has not provided a fair and meaningful pre-deprivation procedure.... Justice Holmes suggested ... that a taxpayer pays ‘under duress’ when he proffers a timely payment merely to avoid a ‘serious disadvantage in the assertion of his legal ... rights’ should he withhold payment and await a state enforcement proceeding in which he could challenge the tax scheme‘s validity ‘by defence in the suit.’ . . .
“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 deprivations sufficient by itself to satisfy the Due Process Clause, and taxpayers cannot complain if they fail to avail themselves of this procedure.” McKesson, supra, 496 U.S. at 37, 110 S.Ct. at 2251 n. 21, 110 L.Ed.2d at 37.
McKesson held that because Florida employed financial sanctions and summary remedies compelling taxpayers to tender payments before their objections were entertained and resolved, the minimum federal requirements of the Due Process Clause required Florida to provide taxpayers with a post-deprivation opportunity to contest the validity of the tax and a clear and certain remedy designed to render that opportunity meaningful by preventing any permanent unlawful deprivation of property. The Court ordered Florida to refund the discriminatory taxes, or, consistent with other constitutional restrictions, to collect back taxes from favored competitors, or to implement a combination of those two remedies.
In this case, the State argues that it provides taxpayers with adequate predeрrivation relief in the form of injunctive relief through a declaratory judgment action under
North Dakota, like Florida, statutorily provides for injunctive relief under the general provisions for a declaratory judgment.
“Failure to file report—Penalty—Revocation of license—Excuse for delay. If the holder of a license to sell motor vehicle fuel fails to file the report required to be filed, or to pay the full amount of the tax as required by this chapter, there is imposed a penalty of five dollars, or a sum equal to five percent of the tax due, whichever is greater, together with interest at the rate of one percent per month on the tax due, for each calendar month or fraction of a month during which the failure continues, excepting the month within which the report was required to be filed or the tax became due. The commissioner may revoke the license and, if so, the commissioner shall notify the license holder promptly by a notice sent by registered or certified mail to the post-office address of the licenseholder
as it appears in the commissioner‘s records. However, if the report is filed and the tax paid within ten days after the date it becomes due and if it is established under oath that the delay was due to accident or justifiable oversight, then the commissioner may continue the license in full force and effect. The commissioner, for good cause shown, may waive all or any part of the penalty or interest provided by this section.”
Florida had similar financial sanctions and summary remedies6 which the Court in McKesson held did not provide taxpayers with a meaningful opportunity to withhold payment and to obtain a predeprivation determination of the validity of a tax. Those provisions were deemed insufficient in McKesson, and the similar North Dakota provisions do not, as a matter of federal constitutional law, provide North Dakota taxpayers with a meaningful opportunity to withhold payment and obtain a predeprivation determination of the validity of this discriminatory tax.
Moreover, Clairmont did not involve a determinatiоn that a taxing scheme violated the federal constitution. In Clairmont we construed a statutory exemption to the special fuels tax and held that the Legislature intended to exempt certain special fuels from taxation. In Clairmont, supra, 261 N.W.2d at 786, we also considered a refund issue and recognized that it was “anomalous, if not inequitable, that a State which makes laws requiring other persons to return ill-gotten gains may itself retain property it has received but to which it was not entitled.” However, we held that the taxpayer was not entitled to a refund because it had not protested the assessment prior to bringing an action for a refund and that the mere presence of a statutory scheme imposing penalties, fines, and loss of license for failure to pay taxes did not constitute duress. Clairmont is not controlling because McKesson held thаt, as a matter of federal constitutional law, similar Florida laws failed to provide taxpayers with a meaningful opportunity to withhold payment and obtain a predeprivation determination of the tax assessment‘s validity. See Beam, supra, --- U.S. at ---, 111 S.Ct. at 2443, 115 L.Ed.2d at 487-88 (“Subject to possible constitutional thresholds ... the remedial inquiry is one governed by state law, at least where the case originates in state court.“).
In McKesson the Court also considered equitable arguments raised by Florida and suggested that a state may protect its interest in sound fiscal planning by limiting refunds to those taxpayers paying under protest or providing some other timely notice of complaint; by establishing relatively short statutes of limitation for such actions; by refraining from collecting taxes pursuant to a scheme that has been declared invalid by a court pending further review on appeal; by placing challenged tax payments in escrow; or by providing refunds on a reasonable installment basis.
In this case the State does not assert that it implemented any of those procedures for the refunds at issue.7 As in McKesson the State‘s failure to avail itself of any methods of self-protection weakens any equitable justification under state law for avoiding its federal constitutional obligation to provide meaningful relief. The State‘s equitable arguments are further diminished because New Energy did not establish a new legal principle and instead involved a well-established Commerce Clause principle which was clearly foreshadowed. The State therefore cannot rely upon the presumption of the statute‘s constitutionality. Compare Metropolitan Life Insurance Co. v. Commissioner of Department of Insurance, 373 N.W.2d 399 (N.D.1985) [decision that gross insurance premium tax violates equal protection overruled prior caselaw and was equivalent of a new principle of law justifying purely prospective relief]. Moreover, contrary to the State‘s argument that the Legislature promptly revised the discriminatory tax immediately after New Energy was decided, we are not persuaded that the Legislature‘s action in 1989 is entitled to favorable equitable consideration for the time period involved in this case. We conclude that, as a matter of federal constitutional law, Service Oil‘s payment of the discriminatory
The State argues that the district court erred in awarding Service Oil attorneys’ fees and costs under
“Actions against administrative agencies—Attorneys’ fees and costs.
“1. In any civil judicial proceeding involving as adverse parties an administrative agency and a party not an administrative agency or agent of an administrative agency, the court must award the party not an administrative agency reasonable attorneys’ fees and costs if the court finds in favor of that party and determines that the administrative agency acted without substantial justification.
“2. This section applies to an administrative or judicial proceeding brought by a person against an administrative agency for judicial review of a final order or decision, or the legality of a rule adopted pursuant to this chapter.
“3. Any attorneys’ fees and costs awarded pursuant to this section must be paid from funds available to the administrative agency the final order, decision, or rule of which was reviewed by the court. The court may withhold all or part of the attorneys’ fees from any award if the court finds the administrative agency‘s action was substantially justified or that special circumstances exist which make the award of all or a portion of the attorneys’ fees unjust.”
The State argues that
We need not decide the specific circumstances under which
In Aggie Investments GP v. Public Service Commission, 470 N.W.2d 805, 814 (N.D.1991), we adopted the following interpretation of “substantial justification” from Pierce v. Underwood, 487 U.S. 552, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988):
“‘[T]o mean “justified in substance or in the main“—that is, justified to a degree that could satisfy a reasonable person.’ The court observed that ‘a position can be justified even though it is not correct, and we believe it can be substantially (i.e., for the most part) justified if a reasonable person could think it correct, that is, if it has a reasonable basis in law and fact.’ . . . Substantial justification thus represents a middle ground between an automatic award of attorney‘s fees to a prevailing party and an award of attorney‘s fees fоr frivolous claims.... Merely because an agency‘s actions are not upheld by a court does not mean that the agency‘s action was not substantially justified.”
In Aggie we concluded that the abuse of discretion standard applied to review of awards of attorneys’ fees under
This case involves complicated issues about whether or not a judicial decision declaring a state taxing scheme unconstitutional applies retroactively and, if so, the appropriate relief. Although we have not upheld the State‘s position on the merits of those issues, our decision does not mean that the State acted without substantial justification. Aggie, supra.
The Supreme Court‘s decisions in ATA and Beam were sharply divided and the separate opinions in those cases demonstrate that the threshold issue of retroactivity of a judicial decision involves complex constitutional issues. There is some language in those opinions which suggests that the scope of relief is not a settled question of law. The State took the position that it was substantially justified in not granting Service Oil a refund because Service Oil had adequate predeprivation remedies and voluntarily paid the taxes under Clairmont. That there was some basis for this position is evidenced by the
Although McKesson sets the minimum requirements for relief as a matter of federal constitutional law, the unsettled and complex constitutional issues involved in this case establish that the State‘s position, while not persuasive, was “justified to a degree that could allow a reasonable person” to believe that it had a “reasonable basis in law and fact.” Aggie, supra, 470 N.W.2d at 814. See Minot Farmers Elevator v. Conrad, 386 N.W.2d 463 (N.D.1986) [Tax Commissioner did not act without substantial justification where his interpretation of statute, while not persuasive, was reasonable]. A contrary conclusion would deter administrative agencies from making good faith arguments for creditable extensions and interpretations of the law. We do not believe that
Because of the complex and complicated nature of the unsettled constitutional issues involved in this case, we believe that the district court abused its discretion in awarding attorneys’ fees under
We affirm the judgment awarding Service Oil retroactive relief and we reverse the judgment awarding Service Oil attorneys’ fees.
LEVINE and MESCHKE, JJ., concur.
Justice H.F. GIERKE, a member of the Court when this case was heard, resigned effective November 20, 1991, to accept appointment to the United States Court of Military Appeals and did not participate in this decision.
VANDE WALLE, Justice, concurring.
I concur in the majority opinion. But I write separately to note that I believe the wording of
The State of North Dakota is not an administrative agency within the meaning of that definition. Furthermore, the action was not brought as a result of any action by an administrative agency; rather the action was instituted as a declaratory judgment action to declare unconstitutional
I believe the purpose of
But, for purposes of discussion only, if I were to conclude that administrative-agency action was not the keystone to the award, it is nevertheless evident that an administrative agency, as opposed to the State itself, must be involved in the action. To conclude otherwise is to construe the statute to authorize the State to pay attorney fees whenever it does not prevail in a judicial proceeding. I do not advocate that a prevailing party, as a matter of equity or justice, is not entitled to those fees, only that a determination to pay those fees is for the Legislature. It is particularly doubtful to me that the Legislature intended that an administrative agency should suffer a reduction in its budget because of an unconstitutional statute enacted by the Legislature merely because the agency is delegated to administer its provisions. If the Legislature intended that result, it must tell me so specifically.
I agree heartily with footnote 11 in the majority opinion which suggests that the Legislature further consider and define the circumstances under which
Notes
At the times relevant to the taxes at issue in this action,
Subsection 3 of“57-43.1-02. Tax imposed on motor vehicle fuels—Tax reduced for certain alcohol-blended fuels.
“1. Except as otherwise provided in this section, a tax of thirteen cents per gallon [3.79 liters] is imposed on all motor vehicle fuel sold or used in this state.
“2. The tax imposed on gasoline sold which cоntains a minimum ten percent blend of a qualifying alcohol whose purity is at least ninety-nine percent alcohol is reduced in accordance with this subsection and subsection 3. An alcohol is a qualifying alcohol if it is methanol produced from coal or if the taxpayer certifies that it is derived from agricultural products produced entirely in the United States. For qualifying alcohols, the tax is:
“a. From July 1, 1985, through June 30, 1987, eight cents per gallon [3.79 liters] less than the tax imposed under subsection 1.
“b. From July 1, 1987, through December 31, 1992, four cents per gallon [3.79 liters] less than the tax imposed under subsection 1.
“c. After December 31, 1992, at the same rate as the tax imposed under subsection 1.
“3. The tax reduction allowed on gasoline under this section does not apply to gasoline which contains qualifying alcоhol manufactured or distilled outside this state, unless the state where the alcohol is manufactured or distilled provides a specific reduction, exemption, credit, or refund from that state‘s motor vehicle fuels tax for what would be a qualifying alcohol manufactured or distilled in this state. Qualifying alcohols manufactured or distilled in another state are eligible for the tax reduction allowed by this section, but only to the extent that state‘s specific reduction, exemption, credit, or refund allowance applies to qualifying alcohol manufactured or distilled in this state. The tax reduction allowed by this subsection qualifying alcohol manufactured or distilled in another state cannot exceed the amount specified in subsection 2.”
“The Congress shall have power:
* * * * * *
“To regulate commerce ... among the several states.”
In McKesson, 496 U.S. at —, 110 S.Ct. at 2252 n. 23, 110 L.Ed.2d at 39, the Court observed:
“We previously have held that the retroactive assessment of a tax increase does not necessarily deny due process to those whose taxes are increased, though beyond some temporal point the retroactive imposition of a significant tax burden may be ‘so harsh and oppressive as to transgress the constitutional limitation,’ depending on ‘the nature of the tax and the circumstances in which it is laid.’ Welch v. Henry, 305 U.S. 134, 147, 59 S.Ct. 121, 126, 83 L.Ed. 87 (1938). See United States v. Hemme, 476 U.S. 558, 106 S.Ct. 2071, 90 L.Ed.2d 538 (1986); United States v. Darusmont, 449 U.S. 292, 101 S.Ct. 549, 66 L.Ed.2d 513 (1981); cf. United States v. Sperry Corp., 493 U.S. 52, 63-65, 110 S.Ct. 387, 396, 107 L.Ed.2d 290 (1989) (‘It is surely proper for Congress to legislate retrospectively to ensure that costs of a program are borne by the entire class of persons that Congress rationally believes should bear them‘); Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 16, 96 S.Ct. 2882, 2893, 49 L.Ed.2d 752 (1976) (‘[L]egislation readjusting rights and burdens is not unlawful solely because it upsets otherwise settled expectations. This is true even though the effect of the legislation is to impose a new duty or liability based on past acts‘) (citations omitted).
“Because we do not know whether the State will choose in this case to assess and collect back taxes from previously favored distributors, we need not decide whether this choice would violate due process by unduly interfering with settled expectations.
“Should the State choose this remedial alternative, the State‘s effort to collect back taxes from previously favored distributors may not be perfectly successful. Some of these distributors, for example, may no longer be in business. But a good-faith effort to administer and enforce such a retroactive assessment likely would constitute adequate relief, to the same extent that a tax scheme would not violate the Commerce Clause merely becаuse tax collectors inadvertently missed a few in-state taxpayers.”
“The transportation or importation into any state, territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.”
In McKesson, 496 U.S. at ---, 110 S.Ct. at 2251, n. 20, 110 L.Ed.2d at 36-37, the Court recited the following sanctions and summary remedies in Florida:
“If a distributor fails to pay the tax on time, the Division of Alcoholic Beverages and Tobacco may issue a warrant which, when filed in a local circuit court, directs the county sheriff to levy upon and sell the delinquent taxpayer‘s goods and chattels to recover the amount of the unpaid tax plus a penalty of 50%, along with interest of 1% per month and the costs of executing the warrant.
Fla.Stat. § 210.14(1) (1985). In addition, the Division may revoke,§ 561.29(1)(a) , or decline to renew,§ 561.24(5) , a distributor‘s license for failure to abide by Florida law, including the statutory requirement that the liquor tax be timely paid.”
“Actions against administrative agencies—Attorneys’ fees and costs.
* * * * * *
“2. This section applies to an administrative or civil judicial proceeding brought by a party not an administrative agency against an administrative agency for judicial reviеw of a final agency order, or for judicial review pursuant to this chapter of the legality of agency rulemaking action or a rule adopted by an agency as a result of the rulemaking action being appealed.
“3. Any attorneys’ fees and costs awarded pursuant to this section must be paid from funds available to the administrative agency the final order, rulemaking action, or rule of which was reviewed by the court. The court may withhold all or part of the attorneys’ fees from any award if the court finds the administrative agency‘s action was substantially justified or that special circumstances exist which make the award of all or a portion of the attorneys’ fees unjust.”
“Claim presented and refused before action brought. No action upon a claim arising uрon contract for the recovery of money only can be maintained against the state until the claim has been presented to the department, institution, agency, board, or commission to which claim relates for allowance and allowance thereof refused. The neglect or refusal of the office to act on such claim for a period of ten days after its presentation for allowance must be deemed a refusal to allow the claim.”