Jefferson County v. Acker

• Decision Date: 26 April 2000
• Docket Number: No. 94-6400,94-6400
• Parties: (11th Cir. 2000) JEFFERSON COUNTY, A political subdivision of the State of Alabama, Plaintiff- Appellant, v. William ACKER, Jr., Defendant-Appellee. Jefferson County, A political subdivision of the State of Alabama, Plaintiff- Appellant, v. U.W. Clemon, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1317

210 F.3d 1317 (11th Cir. 2000)

JEFFERSON COUNTY, A political subdivision of the State of Alabama, Plaintiff- Appellant, v. William ACKER, Jr., Defendant-Appellee.

Jefferson County, A political subdivision of the State of Alabama, Plaintiff- Appellant, v. U.W. Clemon, Defendant-Appellee.

No. 94-6400.

United States Court of Appeals Eleventh Circuit.

April 26, 2000.

Appeal from the United States District Court for the Northern District of Alabama. (Nos CV93-M-69-S and CV93-M-196-S), Charles A. Moye, Jr., Judge.

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before CARNES, BARKETT and WILSON, Circuit Judges.

CARNES, Circuit Judge:

For more than seven years the validity of the occupational tax imposed by Jefferson County, Alabama Ordinance 1120 (Sept. 29, 1987), as it applies to the district court judges of the United States District Court for the Northern District of Alabama, has been litigated in federal court. See Jefferson County v. Acker, 850 F.Supp. 1536 (N.D.Ala.1994), rev'd, 61 F.3d 848 (11th Cir.1995), aff'd en banc, 92 F.3d 1561 (11th Cir.1996), vacated, 520 U.S. 1261, 117 S.Ct. 2429, 138 L.Ed.2d 191 (1997), aff'd en banc,137 F.3d 1314 (11th Cir.1998), rev'd, 527 U.S. 423, 119 S.Ct. 2069, 144 L.Ed.2d 408 (1999). The matter is once more back before us, again on remand from the Supreme Court, see 527 U.S. 423, 119 S.Ct. 2069, 2081, 144 L.Ed.2d 408, this time for what may be the last chapter in the story, at least as far as the storyline involves federal court litigation over the occupational tax.¹

The issue that remains for us to address is whether application of this occupational tax to Article III judges violates the Compensation Clause, which is contained in Article III, Section 1 of the Constitution. See 119 S.Ct. at 2074 n. 2 (noting that we had not yet addressed the issue of whether the tax violated the Compensation Clause, and that the issue was not before the Supreme Court). The district court held that application of the tax to the Appellees, both of whom had been appointed judge before enactment of the ordinance imposing the tax, violated the Compensation Clause. See 850 F.Supp. at 1546-48. We reach a different conclusion.

The Compensation Clause, sometimes called the Anti-Diminution Clause, provides that Article III judges, "shall at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office." U.S. Const. art. III, 1. The Jefferson County occupational tax "is, and operates as, a tax on employees' compensation." Jefferson County, Alabama v. Acker, 119 S.Ct. at 2077. The Supreme Court held in Evans v. Gore, 253 U.S. 245, 264, 40 S.Ct. 550, 557, 64 L.Ed. 887 (1920), that an income tax on the compensation of Article III judges was unconstitutional, but the holding of that decision is limited to application of an income tax to judges appointed before the tax was enacted (and as we will discuss shortly, before the legislature was clearly authorized to enact the tax), which is as far as the facts of that case went, see id. at 246, 40 S.Ct. at 550. That limitation of the Evans decision was confirmed and arguably tightened in O'Malley v. Woodrough, 307 U.S. 277, 59 S.Ct. 838, 83 L.Ed. 1289 (1939).

The issue in O'Malley was whether Congress had transgressed the Compensation Clause by providing in a series of revenue acts that the income tax would be applicable to all federal judges appointed after the initial date of that provision's enactment. See id. at 278, 59 S.Ct. at 838; id. at 283-84, 59 S.Ct. at 840. The Supreme Court held that application of the income tax to Article III judges who were on notice when they were appointed that the tax would be applied to them did not violate the Compensation Clause. See id. The Court explicitly disavowed most of what it had said in Miles v. Graham, 268 U.S. 501, 45 S.Ct. 601, 69 L.Ed. 1067 (1925), a decision which had extended Evans to Article III judges appointed after the effective date the income tax was enacted. See 307 U.S. at 282-83, 59 S.Ct. 838 ("to the extent that what the Court now says is inconsistent with what was said in Miles v. Graham, 268 U.S. 501, 45 S.Ct. 601, 69 L.Ed. 1067, the latter cannot survive.").

The Supreme Court had much to say in its O'Malley opinion about the Evans decision, and none of it was flattering. The Court said that "the meaning which Evans v. Gore, supra, imputed to the history which explains Article III, 1 was contrary to the way in which it was read by other English-speaking courts," 307 U.S. at 281, 59 S.Ct. at 839(footnote omitted); observed that Evans had "met wide and steadily growing disfavor from legal scholarship and professional opinion"; id., and noted that the decision had been "rejected by most of the courts before whom the matter came after that decision." Id. (footnote omitted).

The Supreme Court also spoke disparagingly in O'Malley of the reasoning of Evans, although the Court arguably limited some of that disparagement to the facts before it in the O'Malley case. The Court declared that even to suggest an income tax would undermine the independence of federal judges appointed after Congress had put them on notice they would have to "bear their aliquot share of the cost of maintaining the Government, is to trivialize the great historic experience on which the framers based the safeguards of Article III, 1." Id. at 282, 59 S.Ct. at 840 (footnote omitted). And, the Court reasoned that, "[t]o subject them to a general tax is merely to recognize that judges are also citizens, and that their particular function in government does not generate an immunity from sharing with their fellow citizens the material burden of the government whose Constitution and laws they are charged with administering." Id. That reasoning about the permissibility of subjecting judges to general taxes is inconsistent with the reasoning and decision in Evans.

The Supreme Court recognized as much in United States v. Will, 449 U.S. 200, 101 S.Ct. 471, 66 L.Ed.2d 392 (1980), which involved Congressional action to stop or reduce previously authorized annual cost-of-living increases for certain federal officials including judges. In the course of deciding that case, the Court had this to say about the effect of O'Malley on Evans:

In O'Malley v. Woodrough, 307 U.S. 277, 59 S.Ct. 838, 83 L.Ed. 1289 (1939), this Court held that the immunity in the Compensation Clause would not extend to exempting judges from paying taxes, a duty shared by all citizens. The Court thus recognized that the Compensation Clause does not forbid everything that might adversely affect judges. The opinion concluded by saying that to the extent Miles v. Graham, 268 U.S. 501, 45 S.Ct. 601, 69 L.Ed. 1067 (1925), was inconsistent, it "cannot survive." 307 U.S., at 282-283, 59 S.Ct., at 840. Because Miles relied on Evans v. Gore, O'Malley must also be read to undermine the reasoning of Evans, on which the District Court relied in reaching its decision.

Will, 449 U.S. at 227 n. 31, 101 S.Ct. at 486 n. 31. So, in Will the Supreme Court itself read O'Malley as undermining the reasoning of Evans, and it characterized the holding of O'Malley broadly, saying that the Compensation Clause did not exempt judges from paying the same taxes that other citizens paid.

Admittedly, in Will the Supreme Court did not use the magic word "overruled" in talking about Evans, but the Court came as close to overruling that earlier decision as it could without actually uttering the word. Given the severity of the blows O'Malley and Will inflicted upon Evans one might suggest it is time to recognize that Evans is dead and gone. Cf. White v. Lemacks, 183 F.3d 1253, 1259 (11th Cir.1999) ("Enough is enough. Like a favorite uncle who has passed away in the parlor, [our decision in] Cornelius [v. Town of Highland Lake, Ala., 880 F.2d 348 (11th Cir.1989)] needs to be interred. We do so now. Recognizing that it was dealt a fatal blow by [the Supreme Court's decision in] Collins [v. City of Harker Heights, Texas, 503 U.S. 115, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992)], we pronounce Cornelius dead and buried."). The problem is that the Supreme Court has insisted on reserving to itself the task of burying its own decisions. We have been told more than once by it that, "[i]f a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court, the prerogative of overruling its own decisions." Rodriguez de Quijas v. Shearson/ American Express, Inc., 490 U.S. 477, 484, 109 S.Ct. 1917, 1921-22, 104 L.Ed.2d 526 (1989); accord, e.g., Agostini v. Felton, 521 U.S. 203, 237, 117 S.Ct. 1997, 2017, 138 L.Ed.2d 391 (1997) ("We do not acknowledge, and we do not hold that other courts should conclude our more recent cases have, by implication, overruled an earlier precedent."). We have followed that admonition. See Brisentine v. Stone & Webster Engineering Corp., 117 F.3d 519, 525 (11th Cir.1997)("It may be that the Supreme Court has cut Alexander [v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974)] back so far that it will not survive. Perhaps, but we are not convinced we are authorized to sing the dirge of Alexander. We will leave that to the Supreme Court, which has admonished courts of appeals ... '[to leave it] the prerogative of overruling its own decisions.' ") (quoting Rodriguez de Quijas, 490 U.S. at 484, 109 S.Ct. at 1921-22); Engineering Contractors Ass'n v. Metropolitan Dade County, 122 F.3d 895, 908 (11th Cir.1997).

There is, however, a difference between following a precedent and extending a precedent. That difference, as it relates to a lower court's duty to follow moribund Supreme Court decisions, is manifest in the words "which directly controls," the limiting phrase the Court used in Rodriguez, 490 U.S. at 484, 109 S.Ct. at 1921, to...