Mach v. County of Douglas

612 N.W.2d 237

259 Neb. 787

Leo D. MACH and Betsy Clark, appellants, v. COUNTY OF DOUGLAS, State of Nebraska, and Julie M. Haney, as treasurer of Douglas County, Nebraska, appellees.

No. S-99-266.

Supreme Court of Nebraska.

June 23, 2000.

Monte Taylor, of Taylor, Kluver, Peters & Drews, Omaha, for appellants.

James S. Jansen, Douglas County Attorney, and Timothy J. Buckley, Omaha, for appellees.

HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

McCORMACK, J.

NATURE OF CASE

Appellants, Leo D. Mach and Betsy Clark, sued the County of Douglas and the Douglas County treasurer (collectively the County) alleging that the County's system for enforcement and collection of inheritance tax violates the constitutional rights of those who are compelled to pay the tax. The action was initially filed in the county court, but was later transferred to the district court. The district court entered summary judgment against appellants, and they appeal.

FACTUAL BACKGROUND

The following facts are alleged in appellants' petition: Mach succeeded to the ownership of real and personal property to which he was a joint tenant with right of survivorship. Independent proceedings to determine inheritance tax pursuant to Neb.Rev.Stat. §§ 77-2001 and 77-2002 (Reissue 1996) were commenced in the Douglas County Court, and the court assessed a tax in the amount of $547.56. Mach paid the tax to the Douglas County treasurer in order to remove a lien imposed on the real estate pursuant to Neb. Rev.Stat. § 77-2003 (Reissue 1996).

Clark was bequeathed a sum of cash under the terms of a friend's will. Probate proceedings were commenced in the county court, and as a part of those proceedings, the court assessed tax against Clark in the amount of $270. That sum was paid to the Douglas County treasurer.

Appellants allege, generally, that the County collects inheritance tax only from persons who succeed to real property through joint tenancy or to personal property through probate proceedings. Appellants further allege, generally, that inheritance tax is not collected from heirs who succeed to personal property through nonprobate proceedings unless those persons voluntarily come forward to pay the tax. Appellants allege that these circumstances create "a de facto policy of selective enforcement" that systemically discriminates against appellants and others similarly situated and that there is no justifiable distinction between those required to pay tax and those who are not. Appellants did not allege that they were discriminated against because of race, gender, or other suspect classification.

Appellants claim entitlement to relief pursuant to 42 U.S.C. § 1983 (Supp. III 1997) and Neb.Rev.Stat. § 77-2018 (Reissue 1996). In their § 1983 cause of action, appellants claim that the County's inheritance tax collection policies violate appellants' rights under the Equal Protection Clause of the U.S. Constitution. In their § 77-2018 cause of action, appellants claim that they are entitled to an erroneous payment refund; they argue that their payment was erroneous because it was collected in violation of the Equal Protection Clause of the U.S. Constitution and Neb. Const. art. I, § 25.

Appellants moved to certify their action as a class action, which motion was granted by the county court. Class action certification is not at issue in this appeal. We do not comment on the propriety of the class action certification.

The County moved for summary judgment, arguing, inter alia, that the petition failed to state a cause of action. The County did not adduce evidence in support of its motion. Appellants introduced 15 exhibits, most of which consisted of various pleadings, and the remainder of which tended to substantiate the factual allegations made in appellants' petition regarding the County's procedures for collecting inheritance tax. The district court entered summary judgment against appellants, stating:

I am going to find that in viewing the evidence in the light most favorable to the plaintiff, that there is no genuine issue of material fact under either the first claim or the second claim of the petition. That as to the 1983 action, that there is no evidence that the County has deliberately attempted to deprive anybody of any right, privilege, or principle of our immunities secured by the Constitution, and the cause of action fails.

And as to the collection of the inheritance tax claim on the erroneous request for a refund on the erroneously collected tax, that there's no evidence that shows that the tax was not calculated and collected pursuant to statute. So I'm going to sustain the motion for summary judgment.

ASSIGNMENTS OF ERROR

Appellants assign, consolidated and restated, that the district court erred in determining that appellants' petition does not state a cause of action and in granting the County's motion for summary judgment.

STANDARD OF REVIEW

Summary judgment is proper only when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law. Durkan v. Vaughan, 259 Neb. 288, 609 N.W.2d 358 (2000); Callahan v. Washington Nat. Ins. Co., 259 Neb. 145, 608 N.W.2d 592 (2000).

When it has been asserted in a summary judgment motion that an opposing party has failed to state a cause of action, as far as that issue is concerned, the motion may be treated as one in fact for a judgment on the pleadings, notwithstanding its designation as something else. Rodriguez v. Nielsen, 259 Neb. 264, 609 N.W.2d 368 (2000); Becker v. Hobbs, 256 Neb. 432, 590 N.W.2d 360 (1999). A motion for judgment on the pleadings admits the truth of all well-pleaded facts in the opposing party's pleadings, together with all reasonable inferences to be drawn therefrom, and the moving party admits, for the purpose of the motion, the untruth of the movant's allegations insofar as they have been controverted. Becker v. Hobbs, supra.

ANALYSIS

§ 1983 Claim

Only two factual allegations are necessary to state a cause of action under § 1983:(1) a defendant's deprivation of a plaintiff's right secured by the Constitution and laws of the United States and (2) that the deprivation occurred under color of law. Shearer v. Leuenberger, 256 Neb. 566, 591 N.W.2d 762 (1999); Wichman v. Naylor, 241 Neb. 249, 487 N.W.2d 291 (1992). See, also, Gordon v. Community First State Bank, 255 Neb. 637, 587 N.W.2d 343 (1998), cert. denied ___ U.S. ___, 120 S.Ct. 50, 145 L.Ed.2d 44 (1999). Thus, in order to determine whether appellants stated a cause of action under § 1983, our inquiry first turns to whether their petition alleges a deprivation of a federal constitutional right; specifically, whether appellants have alleged a violation of the Equal Protection Clause.

Appellants do not make any claim pursuant to the equal protection clause of the Nebraska Constitution, adopted in the 1998 amendment to Neb. Const. art. I, § 3. Moreover, the events alleged in appellants' petition occurred prior to that amendment. See State v. Reeves, 258 Neb. 511, 604 N.W.2d 151 (2000). Thus, this case does not involve Neb. Const. art. I, § 3.

A finding of unlawful selective enforcement must be based upon an unjustifiable standard such as race, religion, or other arbitrary classification. State v. Long, 206 Neb. 446, 293 N.W.2d 391 (1980). A discriminatory purpose will not be presumed; there must be a showing of clear and intentional discrimination. Id.

In Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962), the petitioner claimed that West Virginia had prosecuted him under a habitual criminal statute while failing to prosecute others with similar offenses. The U.S. Supreme Court determined that

the conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation. Even though the statistics in this case might imply a policy of selective enforcement, it was not stated that the selection was deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification. Therefore grounds supporting a finding of a denial of equal protection were not alleged.

368 U.S. at 456, 82 S.Ct. 501.

In Wayte v. United States, 470 U.S. 598, 105 S.Ct. 1524, 84 L.Ed.2d 547 (1985), the petitioner was required by federal law to register with the Selective Service System, but failed to do so. Instead, the petitioner wrote letters to governmental officials, including the President of the United States, stating that he had not registered and did not intend to do so. Id. Selective Service had adopted a policy of "passive enforcement" under which it did not investigate and prosecute nonregistration cases unless the young men who failed to register informed the government that they refused to register or were reported by others. 470 U.S. at 601, 105 S.Ct. 1524. When the petitioner was prosecuted for failing to register, he raised a defense of selective enforcement, alleging that he had been prosecuted for his political activities. Id. The district court dismissed the indictment on that ground, but the U.S. Court of Appeals for the Ninth Circuit reversed the dismissal. The U.S. Supreme Court affirmed the decision of the Court of Appeals, stating:

In our criminal justice system, the Government retains "broad discretion" as to whom to prosecute.... "[S]o long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion." ... This broad discretion rests largely on the recognition that the decision to prosecute is particularly ill-suited to judicial review. Such factors as the strength of the case, the prosecution's

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