Moton v. Lambert, GC 80-222-WK-O.

• Decision Date: 06 March 1981
• Docket Number: No. GC 80-222-WK-O.,GC 80-222-WK-O.
• Citation: 508 F. Supp. 367
• Parties: Ruthie Mae MOTON et al., Plaintiffs, v. A. C. LAMBERT et al., Defendants.
• Court: U.S. District Court — Northern District of Mississippi

508 F. Supp. 367

Ruthie Mae MOTON et al., Plaintiffs, v. A. C. LAMBERT et al., Defendants.

No. GC 80-222-WK-O.

United States District Court, N. D. Mississippi, Greenville Division.

March 6, 1981.

Barry H. Powell, Jackson, Miss., for plaintiffs.

W. Dean Belk, Richard G. Noble, Tommie McWilliams, Indianola, Miss., Peter M. Stockett, Jr., Asst. Atty. Gen., Jackson, Miss., John C. McLaurin and Lem Adams, Brandon, Miss., for defendants.

MEMORANDUM OPINION

KEADY, Chief Judge.

In this § 1983 civil rights action, plaintiffs, parents of black children attending public schools in Sunflower and Rankin Counties, Mississippi, bring suit on behalf of themselves and a class of all parents of black children attending public schools in the State of Mississippi, against the Mississippi State Tax Commission, Sunflower and Rankin Counties, which are sued as representatives of a class of defendants defined as all counties in the state within whose taxing jurisdiction exist private racially segregated primary or secondary schools, and the Cities of Indianola, Inverness, Brandon, and Pelahatchie, which are sued as representatives of a class of defendants defined as all municipalities in the state within whose taxing jurisdiction exist private racially segregated primary or secondary schools. At issue is the constitutionality of Miss.Code Ann. § 27-31-1(d)¹ and § 27-65-29(f)(6)² insofar as they are applied to grant state, county, or municipal sales or property tax exemptions to any private school in the State of Mississippi which engages in racial discrimination in admissions policies for students and employment of faculty and staff.³

The defendants have moved to dismiss the complaint on several alternative grounds. The parties have presented legal memoranda and have argued the motion orally before the court. After careful consideration, we deny the motion on all grounds raised.

Application of 28 U.S.C. § 1341. Defendants first maintain that this action is barred by 28 U.S.C. § 1341 which provides:

The district courts shall not enjoin, suspend or restrain 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.

It has long been established by the Fifth Circuit, however, that § 1341 does not apply to suits wherein the requested remedy is the collection of additional taxes and not the enjoining or suspension of taxes. See Hargrave v. McKinney, 413 F.2d 320 (5 Cir. 1969); Bland v. McHann, 463 F.2d 21 (5 Cir. 1972); Appling County v. Municipal Electric Authority of Georgia, 621 F.2d 1301, 1304 (5 Cir. 1980). Since plaintiffs demand that taxes be collected and not enjoined, it is quite clear that § 1341 does not operate to bar this action.

Abstention. Defendants next contend that, even if § 1341 is inapplicable, the court should nevertheless abstain from assuming jurisdiction since plaintiffs have an independent remedy available in state court.⁴ The argument is that abstention is appropriate since state and federal courts have concurrent jurisdiction over § 1983 actions and since this action is one of high state interest. For several reasons, we find defendants' plea of abstention uncompelling.

This is not a case where decision of a federal constitutional question may be avoided by disposition of state law questions as in Askew v. Hargrave, 401 U.S. 476, 91 S.Ct. 856, 28 L.Ed.2d 196 (1971).⁵ While it is true that this case has high state interest, the same could be said of any suit brought to declare unconstitutional the application of a state statute. The federal courts are in the business of passing on the constitutionality of such statutes, and the fact that state courts also have jurisdiction over such claims hardly requires litigants to seek redress from those courts. Indeed, if this were the case federal courts could hear only those cases in which exclusive jurisdiction is vested in the courts of the United States.

Failure to State a Claim. Relying on Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972), defendants assert that plaintiffs have failed to state a claim upon which relief can be granted because the state tax exemptions to private segregated schools do not constitute state action sufficient to confer jurisdiction through 42 U.S.C. § 1983. We disagree. This is not a case such as Moose Lodge and others cited by defendants wherein private institutions were sued for racial discrimination; rather, plaintiffs seek only to enjoin defendants from granting favorable tax benefits to private racially segregated schools, alleging that such aid "has a significant tendency to facilitate, reinforce, and support private discrimination." Norwood v. Harrison, 413 U.S. 455, 466, 93 S.Ct. 2804, 2811, 37 L.Ed.2d 723, 732 (1973); Gilmore v. City of Montgomery, 417 U.S. 556, 569, 94 S.Ct. 2416, 2424, 41 L.Ed.2d 304 (1973); see Second Amended Complaint ¶ 15. This allegation is clearly sufficient to state a claim under the equal protection clause of the fourteenth amendment to the United States Constitution and to confer this court with jurisdiction. See Bishop v. Starkville Academy, 442 F.Supp. 1176 (N.D. Miss.1977) (three-judge court).

Lack of Standing. Defendants' most serious challenge to the bringing of this suit, perhaps, is that, under Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976), plaintiffs lack standing since they fail to allege that any private racially desegregated school within this state will cease to operate if the school is denied the exemptions from taxes under attack.

In Simon, plaintiffs were indigents who alleged that they had been denied provision of low-cost medical services because of a determination by the Internal Revenue Service that the hospitals were tax-exempt, nonprofit organizations. The court held that plaintiffs lacked standing to bring suit since it was speculative whether their injury would be redressed by a determination that the IRS ruling was invalid in that it was just as likely as not that the hospitals would continue to deny medical services to indigents even though the hospitals were not accorded favored tax treatment. Id. at 42-46, 96 S.Ct. at 1926-28, 426 U.S. cited at 40-47, 96 S.Ct. cited at 1925-28, 48 cited at 462-65.

The applicability of the Simon rationale must be weighed against the court's holding in Norwood, where this federal district court first dismissed plaintiffs' action seeking to prohibit the state from furnishing free textbooks to private segregated schools because there was no showing that "any child enrolled in private school, if deprived of free textbooks, would withdraw from private school and subsequently enroll in the public schools." 340 F.Supp. 1003, 1013 (three-judge court). In reversing, the Supreme Court stated:

We can accept this factual assertion; we cannot and do not know, on this record at least, whether state textbook assistance is the determinative factor in the enrollment of any students in any of the private schools in Mississippi. We do not agree with the District Court in its analysis of the legal consequences of this uncertainty,

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