Levin v. Commerce Energy, Inc.

• Court: United States Supreme Court
• Citation: 130 S.Ct. 2323,560 U.S. 413,176 L.Ed.2d 1131
• Docket Number: No. 09–223.,09–223.
• Parties: Richard A. LEVIN, Tax Commissioner of Ohio, Petitioner, v. COMMERCE ENERGY, INC., et al.
• Decision Date: 01 June 2010

560 U.S. 413
130 S.Ct. 2323
176 L.Ed.2d 1131

Richard A. LEVIN, Tax Commissioner of Ohio, Petitioner,
v.
COMMERCE ENERGY, INC., et al.

No. 09–223.

Supreme Court of the United States

Argued March 22, 2010.
Decided June 1, 2010.

Benjamin C. Mizer (argued), Columbus, OH, for petitioner.

Stephen C. Fitch, Columbus, OH, for respondents.

Gerhardt A. Gosnell II, Chester, Willcox & Saxbe, LLP, Columbus, OH, for Respondents.

Richard Cordray, Attorney General of Ohio, Benjamin C. Mizer, Counsel of Record, Solicitor General, Alexandra T. Schimmer, Chief Deputy Solicitor General, Stephen P. Carney, Elisabeth A. Long, Deputy Solicitors, Barton A. Hubbard, Assistant Attorney General, Columbus, OH, for Petitioner Richard A. Levin, Tax Commissioner of Ohio.

Stephen C. Fitch, Counsel of Record, Gerhardt A. Gosnell II, Chester, Willcox & Saxbe, LLP, Columbus, OH, for Respondents.

Richard Cordray, Attorney General of Ohio, Benjamin C. Mizer, Counsel of Record, Solicitor General, Alexandra T. Schimmer, Chief Deputy Solicitor General, Stephen P. Carney, Elisabeth A. Long, Deputy Solicitors, Barton A. Hubbard, Assistant Attorney General, Columbus, OH, for Petitioner Richard A. Levin, Tax Commissioner of Ohio.

Opinion

Justice GINSBURG delivered the opinion of the Court.

560 U.S. 417

This case presents the question whether a federal district court may entertain a complaint of allegedly discriminatory state taxation, framed as a request to increase a commercial competitor's tax burden. Relevant to our inquiry is the Tax Injunction Act (TIA or Act), 28 U.S.C. § 1341, which prohibits lower federal courts from restraining “the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State.” More embracive than the TIA, the comity doctrine applicable in state taxation cases restrains federal courts from entertaining claims for relief that risk disrupting state tax administration. See Fair Assessment in Real Estate Assn., Inc. v. McNary, 454 U.S. 100, 102 S.Ct. 177, 70 L.Ed.2d 271 (1981). The comity doctrine, we hold, requires that a claim of the kind here presented proceed originally in state court. In so ruling, we

560 U.S. 418

distinguish Hibbs v. Winn, 542 U.S. 88, 124 S.Ct. 2276, 159 L.Ed.2d 172 (2004), in which the Court held that neither the TIA nor the comity doctrine barred a federal district court from adjudicating an Establishment Clause challenge to a state tax credit that allegedly funneled public funds to parochial schools.

I

A

Historically, all natural gas consumers in Ohio purchased gas from the public utility, known as a local distribution company (LDC), serving their geographic area. In addition to selling gas as a commodity, LDCs own and operate networks of distribution pipelines to transport and deliver gas to consumers. LDCs offer customers a single, bundled product comprising both gas and delivery.

Today, consumers in Ohio's major metropolitan areas can alternatively contract with an independent marketer (IM) that competes with LDCs for retail sales of natural gas. IMs do not own or operate distribution pipelines; they use LDCs' pipelines. When a customer goes with an IM, therefore, she purchases two “unbundled” products: gas (from the IM) and delivery (from the LDC).

Ohio treats LDCs and IMs differently for tax purposes. Relevant here, Ohio affords LDCs three tax exemptions that IMs do not receive. First, LDCs' natural gas sales are exempt from sales and use taxes. Ohio Rev.Code Ann. § 5739.02(B)(7) (Lexis Supp.2010); §§ 5739.021(E), .023(G), .026(F) (Lexis 2008); §§ 5741.02(C), .021(A), .022(A), .023(A) (Lexis 2008). LDCs owe instead a gross receipts excise tax, § 5727.24, which is lower than the sales and use taxes IMs must collect. Second, LDCs are not subject to the commercial activities tax imposed on IMs' taxable gross receipts. §§ 5751.01(E)(2), .02 (Lexis Supp.2010). Finally, Ohio law excludes inter-LDC natural gas sales from the gross receipts tax, which IMs must pay when they purchase gas from LDCs. § 5727.33(B)(4) (Lexis 2008).

560 U.S. 419

B

Plaintiffs-respondents Commerce Energy, Inc., a California corporation, and Interstate Gas Supply, Inc., an Ohio company, are IMs that market and sell natural gas to Ohio consumers. Plaintiff-respondent Gregory Slone is an Ohio citizen who has purchased natural gas from Interstate Gas Supply since 1999. Alleging discriminatory taxation of IMs and their patrons in

130 S.Ct. 2329

violation of the Commerce and Equal Protection Clauses, Complaint ¶¶ 35–39, App. 11–13, respondents sued Richard A. Levin, Tax Commissioner of Ohio (Commissioner), in the U.S. District Court for the Southern District of Ohio. Invoking that court's federal-question jurisdiction under 28 U.S.C. § 1331, Complaint ¶ 6, App. 3, respondents sought declaratory and injunctive relief invalidating the three tax exemptions LDCs enjoy and ordering the Commissioner to stop “recognizing and/or enforcing” the exemptions. Id., at 20–21. Respondents named the Commissioner as sole defendant; they did not extend the litigation to include the LDCs whose tax burden their suit aimed to increase.¹

The District Court granted the Commissioner's motion to dismiss the complaint. The TIA did not block the suit, the District Court initially held, because respondents, like the plaintiffs in Hibbs, were “third-parties challenging the constitutionality of [another's] tax benefit,” and their requested relief “would not disrupt the flow of tax revenue” to the State. App. to Pet. for Cert. 24a.

Nevertheless, the District Court “decline[d] to exercise jurisdiction” as a matter of comity. Id., at 32a. Ohio's Legislature, the District Court observed, chose to provide the challenged tax exemptions to LDCs. Respondents requested

560 U.S. 420

relief that would “requir[e] Ohio to collect taxes which its legislature has not seen fit to impose.” Ibid. (internal quotation marks omitted). Such relief, the court said, would draw federal judges into “a particularly inappropriate involvement in a state's management of its fiscal operations.” Ibid. (internal quotation marks omitted). A state court, the District Court recognized, could extend the exemptions to IMs, but the TIA proscribed this revenue-reducing relief in federal court. “Where there would be two possible remedies,” the Court concluded, a federal court should not “impose its own judgment on the state legislature mandating which remedy is appropriate.” Ibid.

The U.S. Court of Appeals for the Sixth Circuit reversed. 554 F.3d 1094 (2009). While agreeing that the TIA did not bar respondents' suit, the Sixth Circuit rejected the District Court's comity ruling. A footnote in Hibbs, the Court of Appeals believed, foreclosed the District Court's “expansive reading” of this Court's comity precedents. 554 F.3d, at 1098. The footnote stated that the Court “has relied upon ‘principles of comity’ to preclude original federal-court jurisdiction only when plaintiffs have sought district-court aid in order to arrest or countermand state tax collection.” Hibbs, 542 U.S., at 107, n. 9, 124 S.Ct. 2276 (citation omitted). A broad view of the comity cases, the Sixth Circuit feared, would render the TIA “effectively superfluous,” and would “sub silentio overrule a series of important cases” presenting challenges to state tax measures. 554 F.3d, at 1099, 1102 (citing Milliken v. Bradley, 433 U.S. 267, 97 S.Ct. 2749, 53 L.Ed.2d 745 (1977); Mueller v. Allen, 463 U.S. 388, 103 S.Ct. 3062, 77 L.Ed.2d 721 (1983)); 554 F.3d, at 1099–1100.

In so ruling, the Sixth Circuit agreed with the Seventh and Ninth Circuits, which had similarly read Hibbs to rein in the comity doctrine, see Levy v. Pappas, 510 F.3d 755 (C.A.7 2007); Wilbur v. Locke, 423 F.3d 1101 (C.A.9 2005), and it disagreed with the Fourth Circuit, which had concluded that Hibbs left comity doctrine

130 S.Ct. 2330

untouched, see DIRECTV, Inc. v. Tolson, 513 F.3d 119 (2008). Noting that respondents

560 U.S. 421

“challenge[d] only a few limited exemptions,” and satisfied, therefore, that “[respondents'] success would not significantly intrude upon traditional matters of state taxation,” the Sixth Circuit remanded the case for adjudication of the merits. 554 F.3d, at 1102.

After unsuccessfully moving for rehearing en banc, App. to Pet. for Cert. 1a–2a, the Commissioner petitioned for certiorari. By then, the First Circuit had joined the Sixth, Seventh, and Ninth Circuits in holding that Hibbs sharply limited the scope of the comity bar. Coors Brewing Co. v. Mendez–Torres, 562 F.3d 3 (2009). We granted the Commissioner's petition, 558 U.S. 989, 130 S.Ct. 496, 175 L.Ed.2d 344 (2009), to resolve the disagreement among the Circuits.

II

A

Comity considerations, the Commissioner dominantly urges, preclude the exercise of lower federal-court adjudicatory authority over this controversy, given that an adequate state-court forum is available to hear and decide...