Jenkins by Agyei v. State of Mo., 90-2977

• Decision Date: 10 April 1992
• Docket Number: No. 90-2977,90-2977
• Citation: 962 F.2d 762
• Parties: 74 Ed. Law Rep. 1059 Kalima JENKINS, by her next friend, Kamau AGYEI; Carolyn Dawson, by her next friend Richard Dawson; Tufanza A. Byrd, by her next friend Teresa Byrd; Derek A. Dydell, by his next friend Maurice Dydell; Terrance Cason, by his next friend Antoria Cason; Jonathan Wiggins, by his next friend Rosemary Jacobs Love; Kirk Allan Ward, by his next friend Mary Ward; Robert M. Hall, by his next friend Denise Hall; Dwayne A. Turrentine, by his next friend Shelia Turrentine; Gregory A. Pugh, by his next friend David Winters; on behalf of themselves and all others similarly situated; Plaintiffs-Appellees, American Federation of Teachers, Local 691, Intervenor-Appellee, v. STATE OF MISSOURI; John Ashcroft, Governor of the State of Missouri; Wendell Bailey, Treasurer of the State of Missouri; Missouri State Board of Education; Roseann Bentley, Member of the Missouri State Board of Education; Dan L. Blackwell, Member of the Missouri State Board of Education; Raymond McCallister, Jr., Member of the Missouri State Board of Education; Susan D. Finke, Member of the Missouri State Board of Education; Thomas R. Davis, presiding President, Member of the Missouri State Board of Education; Cynthia B. Thompson, Member of the Missouri State Board of Education; Robert E. Bartman, Commissioner of Education of the State of Missouri; Gary D. Cunningham, Member of the Missouri State Board of Education; Rebecca M. Cook, Member of the Missouri State Board of Education; School District of Kansas City, Missouri; Claude C. Perkins, Superintendent thereof; Defendants-Appellees, Icelean Clark; Bobby Anderton; Eleanor Graham; John C. Howard; Craig Martin; Gay D. Williams; Kansas City Mantel & Tile Co.; Coulas and Griffin Insurance Agency, Inc.; Lucille Trimble; Berlau Paper House, Inc.; Andrew J. Winningham, Intervenors-Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 762

962 F.2d 762

74 Ed. Law Rep. 1059

Kalima JENKINS, by her next friend, Kamau AGYEI; Carolyn Dawson, by her next friend Richard Dawson; Tufanza A. Byrd by her next friend Teresa Byrd; Derek A. Dydell, by his next friend Maurice Dydell; Terrance Cason, by his next friend Antoria Cason; Jonathan Wiggins, by his next friend Rosemary Jacobs Love; Kirk Allan Ward, by his next friend Mary Ward; Robert M. Hall, by his next friend Denise Hall Dwayne A. Turrentine, by his next friend Shelia Turrentine Gregory A. Pugh, by his next friend David Winters; on behalf of themselves and all others similarly situated Plaintiffs-Appellees, American Federation of Teachers, Local 691, Intervenor-Appellee, v. STATE OF MISSOURI; John Ashcroft, Governor of the State of Missouri; Wendell Bailey, Treasurer of the State of Missouri; Missouri State Board of Education; Roseann Bentley, Member of the Missouri State Board of Education; Dan L. Blackwell, Member of the Missouri State Board of Education; Raymond McCallister, Jr., Member of the Missouri State Board of Education; Susan D. Finke, Member of the Missouri State Board of Education; Thomas R. Davis, presiding President, Member of the Missouri State Board of Education; Cynthia B. Thompson, Member of the Missouri State Board of Education; Robert E. Bartman, Commissioner of Education of the State of Missouri; Gary D. Cunningham, Member of the Missouri State Board of Education; Rebecca M. Cook, Member of the Missouri State Board of Education; School District of Kansas City, Missouri; Claude C. Perkins, Superintendent thereof; Defendants-Appellees, Icelean Clark; Bobby Anderton; Eleanor Graham; John C. Howard; Craig Martin; Gay D. Williams; Kansas City Mantel & Tile Co.; Coulas and Griffin Insurance Agency, Inc.; Lucille Trimble; Berlau Paper House, Inc.; Andrew J. Winningham, Intervenors-Appellants.

No. 90-2977.

United States Court of Appeals, Eighth Circuit.

Submitted June 25, 1991.

Decided April 10, 1992.

Mark J. Bredemeier, Kansas City, Mo., argued (Jerald L. Hill and Richard P. Hutchison, on brief), for appellant.

Bart A. Matanic, Jefferson City, Mo., argued (Michael J. Fields, on brief), for appellee.

Patricia A. Brannan, Washington, D.C., argued (Arthur A. Benson, II, and Dianne Moritz, Kansas City, Mo., David S. Tatel, Allen R. Snyder and Daniel B. Kohrman, Washington, D.C., Michael Thompson, Kansas City, Mo., on brief), for School Dist. of Kansas City, Mo.

Before McMILLIAN, Circuit Judge, HEANEY, Senior Circuit Judge, and JOHN R. GIBSON, Circuit Judge.

JOHN R. GIBSON, Circuit Judge.

This case presents two issues as to whether property owners whose real estate taxes were affected by various orders in the Kansas City, Missouri, school desegregation case may obtain refunds of taxes they paid. The first issue concerns property owners who paid 1987 taxes under the levy directly set by the district court, see Jenkins v. Missouri, 672 F.Supp. 400, 412-13 (W.D.Mo.1987), and who did not follow the Missouri protest statute, Mo.Rev.Stat. § 139.031. The Supreme Court reversed the judicial tax levy in Missouri v. Jenkins, 495 U.S. 33, 110 S.Ct. 1651, 109 L.Ed.2d 31 (1990), and the district court ordered the refund of 1987 taxes paid under protest. Order of Oct. 29, 1990, slip op. at 1. We now consider the claims of those taxpayers who did not protest, but nevertheless seek a refund. The second issue concerns the validity of 1988 taxes paid under a levy the school board set pursuant to our decision in Jenkins v. Missouri, 855 F.2d 1295 (8th Cir.1988) (Jenkins II ), but before our mandate issued in that case. The district court denied all claims for refund as to 1988 taxes. Order of Oct. 29, 1990, slip op. at 1-2. On appeal the intervenors ¹ argue that even the 1987 payments not paid under protest should be refunded because the protest statute did not apply to such payments, and because fundamental principles of due process and just compensation mandate a full refund. The taxpayers also question whether the school board could legitimately set the 1988 tax before our mandate issued. We affirm the judgment of the district court. ²

In its order of September 15, 1987, the district court ordered an extensive desegregation remedy, including a magnet plan and capital improvements programs, and ordered the property tax levy to be increased $1.95 over the existing levy, to $4.00 per $100.00 assessed valuation. 672 F.Supp. at 413. The real estate taxes for 1987 were levied under this order and billed to the taxpayers. Payment was due December 31, 1987. Some 9,000 Kansas City, Missouri School District (KCMSD) taxpayers paid their taxes under protest pursuant to Mo.Rev.Stat. § 139.031. ³ The protested payments amounted to a total of $10,695,197. As prescribed in the statute these funds were escrowed and the taxpayers, represented by Landmark Legal Foundation (also counsel for intervenors in this case), instituted state court refund actions. Payments amounting to $23,140,758 were made by other taxpayers without the filing of protests.

In Jenkins II, decided August 19, 1988, we affirmed the district court's order setting the 1987 levy, 855 F.2d at 1314, but we prescribed a different procedure for future funding requirements. Id. We stated that the school board should be authorized to submit a proposed levy to collection authorities adequate to fund its budget, and that county and state authorities should then be enjoined from applying Missouri constitutional and statutory limitations that would limit or reduce the levy below the amount the school board submitted. Id. The amount of the levy was to be subject to reasonable limitations to be set by the district court. Id. The Supreme Court granted certiorari to review the taxation orders, and in Missouri v. Jenkins, 495 U.S. 33, 110 S.Ct. 1651, 109 L.Ed.2d 31 decided April 18, 1990, the Court held that the district court's order levying the tax was beyond its powers and unlawful, but affirmed the future funding formula this court set out in Jenkins II. 110 S.Ct. at 1662-63, 1666.

On September 13, 1988, a little less than a month after we filed our Jenkins II opinion, the Kansas City school board authorized counsel to move the district court to approve a property tax levy of $4.23. At the same time the board resolved that if the district court did not rule on the motion by October 11, 1988, the County's deadline for certifying the levy, the board "anticipates that at that time it will set the 1988-89 levy rate at $4.00 ... pursuant to Judge Clark's September 15, 1987 ruling." KCMSD attorneys filed the motion, but the district court did not rule on the motion by October 11, 1988, because this court's mandate had not issued. Consequently, on October 11, 1988, the Board voted to set the 1988 levy at $4.00 pursuant to the district court's September 15, 1987, ruling. This court's mandate issued October 14, 1988, after we denied motions for rehearing. On January 3, 1989, the district court denied KCMSD's motion to set the 1988 maximum levy at $4.23 and held that it should not be increased from $4.00. ⁴

The Clark Group then moved to intervene and the district court allowed the intervention "for the limited purpose of seeking a ... full refund of the Court-ordered property tax." Order of Oct. 29, 1990, slip op. at 1. The district court held that the 1987 taxes paid under protest should be refunded, but denied refund of any of the rest of the real estate taxes. Id. at 1-2.

The district court rejected the claim that 1987 taxes paid without protest should be refunded. It held that under Missouri law taxes once paid can only be recovered through compliance with the protest statute. Id. at 5-6. Relying on McKesson Corporation v. Division of Alcoholic Beverages and Tobacco, 496 U.S. 18, 110 S.Ct. 2238, 110 L.Ed.2d 17 (1990), the district court rejected the intervenors' constitutional claims because the protest procedure was available. Slip op. at 7.

With respect to the 1988 property taxes, the district court held that in its September 13 and October 11, 1988, actions the KCMSD school board had followed the modified procedure approved by this court and ultimately affirmed by the Supreme Court. Slip op. at 10. The district court's January 3, 1989, order tacitly approved as reasonable the school board's October 11, 1988, action. Order of Oct. 29, 1990, slip op. at 10-11; see Order of Jan. 3, 1989, slip op. at 6. It rejected the intervenors' argument that any actions the board took before our mandate had issued were based on the court-ordered levy that the Supreme Court eventually reversed. While the delay in issuing the mandate prevented the district court from taking action, it did not prevent the KCMSD board from setting its own levy at the same rate previously approved by the district court. Id. at 12. Moreover, at the time the taxes were paid, our mandate modifying the district court order was in effect. Id. The district court held that the protested funds collected under the 1987 tax levy should be refunded to the protesting taxpayers, and that the escrowed tax payments for 1988 and 1989 should be paid to the State to satisfy certain obligations between the State and KCMSD under earlier orders of the court. Id. at 16.

I.

In attacking the district court's refusal to order refund of unprotested 1987 taxes, the intervenors argue that the judicial levy of 1987 taxes was an unlawful taking of taxpayers' property implicating Fifth and Fourteenth Amendment just compensation and due process rights. They claim that the Constitution requires refund of the payments not made under protest as well as those made under the statutory protest procedure. The intervenors also argue that Mo.Rev.Stat. § 139.031 does not apply to the type of taxes involved here, but that if the district court considered it applicable it should have notified taxpayers of the need to make payments under protest.

We reject the intervenors' argument that the state refund procedure...