Rosen v. Restrepo

• Decision Date: 27 October 1977
• Docket Number: No. 76-130-A,76-130-A
• Citation: 119 R.I. 398,380 A.2d 960
• Parties: Hilton ROSEN et ux. v. Jaime RESTREPO, Jr., Tax Assessor for the Town of Lincoln. ppeal.
• Court: Rhode Island Supreme Court

Page 960

380 A.2d 960

119 R.I. 398

Hilton ROSEN et ux. v. Jaime RESTREPO, Jr., Tax Assessor for the Town of Lincoln.

No. 76-130-Appeal.

Supreme Court of Rhode Island.

Oct. 27, 1977.

[119 R.I. 406] Oster, Fay, Groff & Prescott, George M. Prescott, Lincoln, for plaintiffs.

John Quattrocchi, III, Town Sol., Lincoln, for defendant.

OPINION

KELLEHER, Justice.

The plaintiffs, Hilton Rosen and his wife Faye, reside in and pay taxes to the town of Lincoln. They are before us on their appeal from the grant by a Superior Court justice of the defendant tax assessor's motion to dismiss this civil action, in which the Rosens are asking the Superior Court to "issue its peremptory writ of mandamus" and order the assessor to assess the "Lincoln Mall," a large shopping center complex, in the same manner in which he has assessed the other ratable property in the town.

The trial justice, in granting the dismissal, rested his decision on two grounds. Mandamus, he said, will not lie when the act in issue is one that involves the exercise of the actor's discretion. He also observed that the Rosens lacked standing to institute the suit because he felt that they were attempting to protect a right that was held in common with the rest of the public at large. We disagree and reverse.

Within recent times, when reviewing a Superior Court mandamus proceeding, we have treated the proceeding as a civil action in which the plaintiff was seeking equitable relief. Sarni v. Meloccaro, 113 R.I. 630, 324 A.2d 648 (1974); see also Granger v. Johnson, 117 R.I. 440, 367 A.2d 1062 (1977). In fact, Super.R.Civ.P. 81(d) specifically provides that mandamus proceedings are subject to the rules. Here, the litigants, by their actions, indicated that they too considered this suit as a civil action. The plaintiffs sought admissions of facts from the assessor, who in turn had filed an answer to the complaint and an objection to the request for admissions and, finally, a motion that plaintiffs' request for mandamus be dismissed. Consequently, we will take the Sarni approach and view this litigation as a civil action in which plaintiffs are seeking equitable relief.

Turning to the applicable law, one finds that art. I, § 2, of the Rhode Island Constitution directs that the burdens of the state be "fairly distributed among its citizens." Conscious of this constitutional mandate, the Legislature since 1855 has declared that all property liable for taxation shall be assessed at its full and fair cash value. We have construed the term "full and fair cash value" to mean that price the property would probably bring in a transaction in a fair market between a willing seller and a willing buyer. Allen v. Bonded Municipal Corp., 62 R.I. 101, 105, 4 A.2d 249, 251 (1938). The "full and fair cash value" standard remained unchanged until 1965, when the General Assembly, conscious of what was actually taking place in our municipalities, ¹ amended G.L.1956, § 44-5-12, by its enactment of P.L.1965, ch. 115, § 1, so that, from 1965 on, tax assessors could assess all property liable to taxation at its full and fair cash value or at a uniform percentage thereof.

Admittedly, in Kargman v. Jacobs, 113 R.I. 696, 325 A.2d 543 (1974), we acknowledged that an assessor, in determining the fair market value of ratable property, is not bound by any particular formula, but rather he or she is exercising a discretionary act which has been authorized by our state's constitution and delegated in turn by the General Assembly to the various municipal assessors. However, once the assessor has established the property's fair market value, if he or she is assessing at less than 100 percent of value, such an official must comply with the constitutional directive of art. I, § 2, and apply the same percentage factor to each piece of property being assessed. Otherwise, we will be confronted with a type of disproportionate taxation which we have previously described as being illegal under Rhode Island law. Merlino v. Tax Assessors, 114 R.I. 630, 639, 337 A.2d 796, 802 (1975). Thus, for example, if the assessor is assessing at 70 percent of the fair market value, he has no discretion, but must apply the 70 percent factor to all property within the municipality.

So far as the standing issue is concerned, we need only refer to our holding in Rhode Island Ophthalmological Soc'y v. Cannon, 113 R.I. 16, 317 A.2d 124 (1974). There, after reviewing this court's past pronouncements regarding standing, we declared that this issue would now be determined by ascertaining whether the person whose standing is challenged alleges that the action in dispute will cause him or her an injury in fact, economic or otherwise. If such an allegation has been made, he or she has standing. ²

In examining plaintiffs' complaint, we employ the criteria for considering a 12(b)(6) motion which were first expressed in the seminal case of Bragg v. Warwick Shoppers World, Inc., 102 R.I. 8, 227 A.2d 582 (1967). For the purpose of considering such a motion, the allegations of the complaint are to be taken as true and are to be viewed in the light most favorable to the plaintiff; no complaint shall be dismissed unless it is clear beyond a reasonable doubt that the plaintiff will be unable to prove his right to relief, that is, unless it appears to a certainty that the plaintiff will not be entitled to relief under any set of circumstances which might be proved in support of the claim. When the Bragg case is applied to plaintiffs' complaint, the result is obvious.

In their complaint, the Rosens indicate that the assessor has assessed or intends to assess Lincoln Mall at a percentage of its full and fair cash value which is substantially lower than that applied to other property in the town. They also allege that they will be damaged because the taxes they must pay will be greater than if the Lincoln Mall had been valued at the same percentage of its full and fair cash value as the other properties. In substance, the Rosens have complained that the assessor, by applying a different fraction to his assessment of the Mall than he did to the other real estate parcels, has violated his constitutional obligation to fairly distribute the tax burden, and this violation, in turn, affects the plaintiffs where it really hurts the most in their pocketbooks. They have established their right to be heard.

The plaintiffs' appeal is sustained, the judgment appealed from is vacated, and the case is remitted to the Superior Court for further proceedings.

PAOLINO, Justice, dissenting with whom DORIS, Justice joins.

For the reasons that follow, I respectfully dissent. In his decision granting defendant's motion to dismiss the plaintiffs' complaint, the trial justice held that

"the assessment of the value of * * * property for tax purposes and the application thereto of a 'uniform percentage,' is * * * an act which involves judgment and discretion."

and that:

"Therefore, mandamus would not lie."

Further, he held that even if mandamus might lie, the court was bound by our decisions in O'Brien v. Members of Bd. of Aldermen, 18 R.I. 113, 115, 25 A. 914 (1892), and Demers v. Shehab, 101 R.I. 417, 224 A.2d 380 (1966), where in discussing the substantive standards applicable in determining whether mandamus should issue in a particular case, this court spoke as follows:

"Although an action to obtain a writ of mandamus, heretofore prerogative in character, is now controlled procedurally in the superior court by Rule 81(d) of its Rules of Civil Procedure, the legal sufficiency of a complaint seeking such relief is still tested by the same substantive standards which have heretofore prevailed." Demers v. Shehab, supra at 420, 224 A.2d at 381-82.

In my judgment the trial justice...