American Bus Ass'n Inc. v. Dist. Of D.C., 08-CV-808.

• Decision Date: 19 August 2010
• Docket Number: No. 08-CV-808.,08-CV-808.
• Citation: 2 A.3d 203
• Parties: AMERICAN BUS ASSOCIATION, INC., et al., Appellants, v. DISTRICT OF COLUMBIA, Appellee.
• Court: D.C. Court of Appeals

2 A.3d 203

AMERICAN BUS ASSOCIATION, INC., et al., Appellants,

v.DISTRICT OF COLUMBIA, Appellee.

No. 08-CV-808.

District of Columbia Court of Appeals.

Argued Jan. 12, 2010.

Decided Aug. 19, 2010.

COPYRIGHT MATERIAL OMITTED.

Richard P. Schweitzer, Washington, DC, and David R. Burton, with whom Craig M. Cibak and Dan R. Mastromarco were on the brief, for appellants.

Mary L. Wilson, Senior Assistant Attorney General, with whom Peter J. Nickles, Attorney General for the District of Columbia, Todd S. Kim, Solicitor General, and Donna M. Murasky, Deputy Solicitor General, were on the brief, for appellee.

Before REID, BLACKBURNE-RIGSBY and THOMPSON, Associate Judges.

THOMPSON, Associate Judge:

This case is a challenge by appellantsAmerican Bus Association, Inc., National Tour Association, Inc., and United Motorcoach Association, Inc.(the “Associations”), to the validity of a District of Columbia law that requires any charter bus that enters upon the roadways of this jurisdiction to (1) obtain District of Columbia registration, (2) register on an apportioned basis, reflecting mileage driven in the District of Columbia, or (3) obtain a trip permit, costing $50 and valid for a six-day period.Appellants contend that this scheme discriminates against and unduly burdens interstate commerce and therefore violates the so-called dormant Commerce Clause of the United States Constitution.They also argue that the scheme conflicts with the International Registration Plan (the “IRP”), an interstate compact to which the District of Columbia is a signatory.The Superior Court entered summary judgment in favor of appelleeDistrict of Columbia(the “District”).We affirm that ruling, agreeing with the Superior Court that appellants have failed to show either a Commerce Clause or an IRP violation.

I.Background

The IRP is an agreement between the 48 contiguous states, the District of Columbia, and ten Canadian provinces.¹To encourage “the fullest use of the highway system,” the IRP authorizes apportioned registration of commercial vehicles and requires member jurisdictions to grant vehicle registration reciprocity to any vehicle registered in a vehicle's home (“base”) jurisdiction.

²Apportioned registration allows commercial vehicle operators to pay a registration fee to a base jurisdiction, which then allocates and distributes portions of the fee to other jurisdictions in proportion to the miles driven by the vehicle in each jurisdiction.³The IRP describes in detail the registration and apportionment rules to which IRP members have agreed to adhere with respect to trucks and other apportionable vehicles.As to buses “used in the transportation of chartered parties,” the IRP provides that “a bus ... may be registered under the Plan at the option of the Registrant.”IRP art. II.(“Definitions”)(“Apportionable Vehicle”).

The District of Columbia became a member of the IRP in 1997 and in the same year adopted implementing legislation.SeeD.C.Code §§ 50-1507.01-1507.07(2009).A few years later, the United States Department of Transportation issued a report, the “District of Columbia Tour Bus Management Initiative”(the “TBMI Report”), which recognized the importance of tour buses to the city's economy, ⁴ but also described problems related to tour bus operations.⁵The problems the TBMI Report described include air pollution, noise, traffic congestion, traffic safety risks, exacerbation of parking shortages, illegal parking, wear and tear on roadways, and the visual blight occasioned by “wall[s] of buses.”Id. at 1.The report recommended that the District require permits for tour buses, which it described as “essential to the effective implementation of tour bus management measures” and as a “mechanism for funding measures [such as reasonably priced parking facilities, driver facilities, development of tour bus scheduling and information systems, and designation and enforcement of routing restrictions] that support bus operations and management.”Id. at 41-43.

The TBMI report was followed in 2004 by a report of the District of Columbia Office of the Inspector General(the “OIG Report”), based on its audit of IRP participation by the Department of Motor Vehicles.⁶The OIG Report noted that “[t]our buses do not pay fees for use of the District's infrastructure” and that the District was “the only IRP jurisdiction of the 59 registered jurisdictions that does not charge a trip permit fee for non-apportioned vehicles” for “access and use of [the] jurisdiction's roads.”Id. at i, 3, 6.The report recommended that the District establish and charge “an infrastructure preservation fee for tour bus use of the District of Columbia's roadways and other physical facilities” to “facilitate and accommodate tour buses in the District,”id. at ii, and to “pay for the maintenance and servicing of the District's infrastructure.”Id. at 5.

In the wake of these reports, the Council of the District of Columbia enacted legislation providing that “[t]he fee for a trip permit shall be $50.”⁷52 D.C.Reg. 1708(Feb. 25, 2005);D.C.Code § 50-1507.06(a)(2009).⁸Subsequently, the District of Columbia Department of Motor Vehicles adopted a regulation specifying that “[t]rip permits ... shall be valid for a six (6) day period.”18 DCMR 434.1(2006);53 D.C.Reg. 848(Feb. 10, 2006).Thereafter, the Council passed the Department of Motor Vehicles Service and Safety Amendment Act of 2006(D.C. Law 16-279).See54 D.C.Reg. 921(Feb. 2, 2007).Section 403(a)(3) of that legislation added D.C.Code § 50-1501.02(j), which specifically addresses charter buses.Section 403(a)(3) provides that:

(j) Notwithstanding any other provision of law, any bus from any state or country used in the transportation of a chartered party, as that term is used in the International Registration Plan, with a seating capacity of greater than 15 passengers shall, prior to entering the District of Columbia, either:

(1) Register as a Class B commercial vehicle under § 50-1501.03(b)(2);

(2) Obtain proportional registration in its base jurisdiction through the International Registration Plan, as provided by § 50-1507.03; or

(3) Obtain a trip permit....

D.C.Code § 50-1501.02(j)(2009 & 2009 Supp.).

Appellants are national trade associations whose members include non-District-based charter bus operators whose buses bring passengers into the District of Columbia and thus are subject to the requirements of section 50-1501.02(j).On July 27, 2007, the Associations filed a petition in the Tax Division of the D.C. Superior Court challenging the validity of section 50-1501.02(j).After the District took the position that the Tax Division did not have jurisdiction over the matter, the Associations voluntarily dismissed their Tax Division petition and filed a complaint in the Civil Division of the Superior Court on October 2, 2007.They sought a declaratory judgment to the effect that (1) as applied to charter buses registered in other jurisdictions, subsections 50-1501.02(j)(1) and (j)(3) violate the Commerce Clause; and (2)subsection 50-1501.02(j)(2) contravenes the IRP.The Associations also sought an order prohibiting the District from enforcing section 50-1501.02(j), a refund of all taxes paid under the statute by their member charter bus operators, attorneys' fees, and such other relief the court deemed appropriate.

On December 21, 2007, the Associations filed a motion for summary judgment and the District of Columbia filed a cross-motion to dismiss or, in the alternative, for summary judgment.In a bench ruling on May 16, 2008, the court granted the District's motion for summary judgment.This appeal followed.

II.

Before turning to the merits of the trial court's summary judgment ruling, which we review de novo,⁹we must address issues of jurisdiction, which the District did not advance in the trial court, but has raised in this appellate proceeding.¹⁰The District's argument has two prongs.First, it argues that the Superior Court lacked jurisdiction to hear the Associations' complaint because the fees in question are actually taxes of a type described in D.C.Code § 47-3303(2005), the validity of which the Superior Court may hear only in an action brought by the taxpayer(s) after payment of the disputed tax (and not, the District emphasizes, in an action by non-taxpayer membership associations).Second, the District argues that the Associations' action is barred by the District of Columbia Anti-Injunction Act, D.C.Code § 47-3307(2005), which generally prohibits suits seeking declaratory or injunctive relief with respect to the assessment of taxes.¹¹We address these arguments in turn.

A.

D.C.Code § 47-3303 provides that “[a]ny person aggrieved by any assessment by the District of any personal property, inheritance, estate, business privilege, income and franchise, sales, alcoholic beverage, gross receipts, gross earnings, insurance premiums, or motor-vehicle fuel tax or taxes” may “within 6 months after the date of such assessment appeal from the assessment to the Superior Court of the District of Columbia; provided, that such person shall first pay such tax together with penalties and interest due thereon to the D.C. Treasurer.”If the fees in issue are properly regarded as taxes (a matter we discuss infra ) and if section 47-3303 applies to them, the Associations' suit would be barred, because the Associations, not being “directly and personally affected” by the tax, are not “aggrieved” within the meaning of the section.Hessey v. Burden,584 A.2d 1, 7(D.C.1990)( “[A]ppeals from tax assessments can be brought only by ‘persons aggrieved’ in the sense of being directly and personally affected thereby.”(quotingNat'l Bank of Washington,226 F.2d at 760(holding that District of Columbia Tax Court lacked jurisdiction over appeal from tax assessment because a “ ‘necessary party’-in form of person whose ‘individual interests are directly and personally affected’...