Kosydar v. Wolman
| Decision Date | 29 December 1972 |
| Docket Number | Civ. A. No. 72-212,72-222. |
| Citation | 353 F. Supp. 744 |
| Parties | Robert J. KOSYDAR, Tax Commissioner of Ohio et al., Plaintiffs, v. Benson A. WOLMAN et al., Defendants. Benson A. WOLMAN et al., Plaintiffs, v. Robert J. KOSYDAR, Tax Commissioner of Ohio et al., Defendants. |
| Court | U.S. District Court — Southern District of Ohio |
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William J. Brown, Atty. Gen., David Young, Columbus, Ohio, for plaintiffs Robert J. Kosydar and others.
Leonard J. Schwartz, Columbus, Ohio, for plaintiffs Benson A. Wolman and others.
Leonard J. Schwartz, Columbus, Ohio, Joshua Kancelbaum, Cleveland, Ohio, Stanley K. Laughlin, Melvin Wulf, New York City, Philip Dunson, Columbus, Ohio, for defendants Benson A. Wolman and others.
Wm. J. Brown, Atty. Gen., David Young, Columbus, Ohio, for defendants Robert J. Kosyder and others.
Before PECK, Circuit Judge, and KINNEARY and RUBIN, District Judges.
This matter is before the Court, following oral arguments, on the briefs and stipulations of the parties. At issue is the constitutionality under the Religion Clauses of the First Amendment to the United States Constitution of Amended House Bill No. 1203 (hereinafter the Act), O.R.C. §§ 5703.052, 5747.05, and 5747.11.1. The Act provides tax credits to parents who incur educational expenses in excess of those borne by parents generally in securing approved primary and secondary schooling for their children. The jurisdiction of the Court has been invoked pursuant to Title 28 of the United States Code, §§ 1331, 2201, 2202, 2281, 2283 and 1343(3), and through the federal removal statute, 28 U.S.C. § 1441 et seq.
Setting of these actions
On April 17, 1972, this Court invalidated Ohio's parental reimbursement grant statute, O.R.C. § 3317.062, on the ground that it violated the Establishment Clause of the First Amendment to the United States Constitution. Wolman v. Essex, 342 F.Supp. 399, 419 (S.D.Ohio E.D.1972), aff'd mem. 409 U.S. 808, 93 S.Ct. 61, 34 L.Ed.2d 69 (1972) (hereinafter Wolman). That act would have provided grants to parents in the sum of $90.00 for each child who attended a nonpublic school in Ohio.1 Following this court's ruling in Wolman, the Ohio General Assembly enacted the tax credit provisions as contained in O.R.C. §§ 5703.052, 5747.05 and 5747.11.1, the constitutionality of which is now before the Court. The Act was signed into law by the Governor on June 21, 1972.
Even before this date, on June 15, 1972, Kosydar, the Tax Commissioner of Ohio, filed suit in State court seeking a declaration of the constitutional validity of the Act. Two disparate groups of defendants were joined in the action filed with the Common Pleas Court of Franklin County, Ohio: The "Grit defendants" were characterized in the complaint as "parents of children . . . who receive tax credits under the Act" and who claimed that their constitutional rights would be violated if they were prohibited from receiving the tax credits provided for therein; the "Wolman defendants," to the contrary, where characterized in the complaint as members of a class of citizens and taxpayers "who dispute the constitutionality of the Act and threaten to cause the courts to enjoin implementation of said legislation."
On June 16, 1972, the Wolman defendants removed the action to this Court, and by supplemental pleadings requested the convening of a three-judge court pursuant to 28 U.S.C. §§ 2281-2284. By order of Judge Rubin dated June 30, 1972, this suit was deemed to raise a substantial constitutional question within the meaning of 28 U.S.C. § 2281 et seq. The present panel was designated by the Chief Judge of this Circuit by Order of July 5, 1972.
On June 27, 1972, the "Grit defendants" moved for the remand of this case to the State court on the ground that the action had been improperly removed because not all of the defendants had joined in the removal petition. Following briefing on the question, this panel, by Order dated August 10, 1972, denied the motion to remand, and for reasons stated in that Order, realigned the "Grit defendants" (hereinafter the realigned parties) as party plaintiffs.2
Contemporaneously with the above described events, the Wolman group filed Civil Action 72-222 in this Court against Kosydar and the Grit defendants, seeking the convening of a three-judge court and a declaration of unconstitutionality of the Act. The present panel was designated to hear this case as well. The two cases were set for consolidated oral argument and were tentatively ordered consolidated. Because of the unusual procedural posture, no challenge has been raised as to the standing of the Wolman group to represent the interests of their class under the doctrine of Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968); also see Wolman, 342 F. Supp. at 401.
This Court has been urged to decline jurisdiction under the abstention doctrine of Railroad Commission v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). Because there is no dispositive state law claim raised, ambiguity in the Act itself or administrative interpretation of the Act which might avoid, modify, or obviate the federal constitutional question which is clearly presented, we decline to do so. See, Lake Carriers Association v. MacMullan, 406 U.S. 498, 92 S.Ct. 1749, 32 L.Ed.2d 257 (1972); Fornaris v. Ridge Tool Co., 400 U.S. 41, 91 S.Ct. 156, 27 L.Ed.2d 174 (1970); Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971); Zwickler v. Koota, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967); Gay v. Bd. of Registration Commissioners, 466 F.2d 879 (C.A. 6 1972); Garvin v. Rosenau, 455 F.2d 233 (C.A. 6 1972).
The challenged statutory provisions, amended sections 5703.052 and 5747.05 and enacted section 5747.11.1 O.R.C., differ in several respects from section 3317.062 O.R.C., the parental reimbursement grant statute previously held unconstitutional in Wolman. Rather than conferring in all instances outright monetary grants, these provisions allow to qualified recipients a tax "credit" which may not exceed the total sum a taxpayer owes, after other exemptions and deductions, under the new state income tax (§ 5747.02 O.R.C.); state sales tax (Chapter 5739 O.R.C.); state personal property excise tax (Chapter 5741 O.R. C.) and "the total real property taxes paid during the taxpayer's taxable year on all real property owned by the taxpayer in this state." Section 5747.05 (C)(3), O.R.D. The credit is a dollar-for-dollar rebate, which, like § 3317.062 O.R.C., is in a maximum amount of ninety dollars ($90.00) per pupil per year for school years 1971-72 and 1972-73, and which may be used to offset directly the sum total of state and local property taxes which a taxpayer owes.
Where a taxpayer's tax liability under the state income tax alone exceeds, after other exemptions and deductions, the maximum benefit to which he is entitled under the statute ($90.00 per child), such benefit is conferred by way of a deduction of ninety dollars ($90.00) per child from such state income tax liability. Where, however, the total amount of credit to which the taxpayer is entitled under Section 5747.05(C)(3), supra, exceeds his total state income tax liability, or where the taxpayer has overpaid the amount of income tax owing, he is authorized by the statute to receive a monetary refund from the state, payable out of the "tax refund rotary fund." Section 5703.052, O.R.C. In no event may the total tax refund exceed the sum of the income, sales, excise and property taxes which are paid by the taxpayer during the tax year.
State monies have evidently already been appropriated for the rotary fund. To the extent that the fund becomes depleted by the payment to individuals of tax refunds, monies derived from current sales and excise tax receipts, pursuant to Sections 5739.02 and 5741.02 O.R.C., may be used to replenish it.
In response to language in this Court's Opinion in Wolman, an attempt has been made by The Ohio General Assembly to broaden the class of recipients eligible for aid under the new tax credit provisions. Thus, in addition to parents who send their children to nonpublic Ohio schools meeting minimum requirements under Section 3321.07 of the Ohio Revised Code and Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, the following classes of persons are now also eligible for tax benefits: (a) Persons enrolled in home instruction programs pursuant to section 3321.04(A) (2) or 3323.05, O.R.C.; (b) Persons enrolled in public adult high school continuation programs under section 3313.531 O.R.C., schools for tubercular persons under section 3313.55 O.R.C., and vocational and basic literacy programs pursuant to sections 3311.211 and 3313.641, O.R.C., to the extent that tuition is charged such persons and not paid for by local school districts; (c) Persons who pay non-resident public school tuition payments pursuant to section 3317.08, O.R.C.; and (d) Persons, other than inmates and patients at state institutions and hospitals, who incur tuition or fee expenses in public or private programs for the deaf, blind, crippled, emotionally disturbed, neurologically handicapped, or mentally retarded. The actual statistical and legal effect of this broadening of class will be discussed in some detail in subsequent portions of this opinion. See pp. 759-762 infra.
Finally, in an attempt to avoid the kind of political entanglement inherent in the discretionary appropriation provisions of the former statute, the General Assembly has written into Section 5747.05(C)(2) the following language:
Subject to the limitation in Division (C)(3) of this section, the credit allowed under this division for expenditures for the 1971-72 and the 1972-73 school years on behalf of any person shall not exceed ninety dollars expended for or on behalf of such person. For the 1973-74 school year...
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