I.L. v. The State of Alabama , 739 F.3d 1273 ( 2014 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-15464
________________________
D.C. Docket No. 5:08-cv-00450-CLS
I. L., et al.,
Plaintiffs-Appellants-Cross-Appellees,
versus
STATE OF ALABAMA, et al.,
Defendants-Appellees-Cross-Appellants.
___________________________
Appeals from the United States District Court
for the Northern District of Alabama
____________________________
(January 10, 2014)
Before JORDAN and ANDERSON, Circuit Judges, and HORNBY, * District
Judge:
JORDAN, Circuit Judge:
*
Honorable D. Brock Hornby, United States District Judge for the District of Maine,
sitting by designation.
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In the “best of all possible worlds,” 1 state and local governments would
ensure adequate funding for all facets of their public school systems. In the world
in which we live, however, the reality is that some public school systems do not
have sufficient resources to educate the children entrusted to their care.
This appeal primarily concerns a Fourteenth Amendment challenge to
various sections of the Alabama Constitution that are central to the State’s system
of ad valorem property taxation. The plaintiffs, black and white children attending
public schools in Sumter and Lawrence Counties, filed suit in federal district court,
asserting that these provisions are “rooted in [the State’s] historic racially
discriminatory policies,” D.E. 31 at 16, and cripple the ability of certain rural,
nearly all-black public school systems in Alabama to raise revenues. According to
the plaintiffs, the counties in Alabama’s so-called “Black Belt”—a poor, largely
agricultural region with a significant African-American population—have been
disadvantaged under the current tax system because of “extremely low under-
valuation of farm and timber land.” Appellants’ Br. at 39. The plaintiffs further
allege that Alabama’s constitutional limitations on millage rates restrict the ability
of those in the “Black Belt” to raise property taxes and adequately fund public
schools. See id. at 45.
The district court, following a bench trial, issued an 804-page order
1
VOLTAIRE, CANDIDE, Chapter I, p.4 (Penguin Classics Deluxe Edition 2005) [1759].
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concluding that the plaintiffs had failed to show that the challenged provisions
were unconstitutional. The plaintiffs then filed this appeal. After reviewing the
briefs and the extensive record, and with the benefit of oral argument, we affirm in
part, and remand with instructions to dismiss without prejudice in part for lack of
standing.
I
Alabama’s property tax system is no stranger to the Eleventh Circuit. As the
district court noted, the current case is “a sequel to [a] long-running, higher-
education desegregation action” initially filed in 1981. See D.E. 35 at 1.
In Knight v. Alabama, 476 F.3d 1219, 1220 (11th Cir. 2007), a different
group of plaintiffs sought to establish a link between property tax limits for K-12
education funding and persistent segregation in Alabama’s higher education
system. Knight was initially styled as a higher education desegregation case, but
the plaintiffs eventually sought to transform the case into a challenge to Alabama’s
tax policies. See id. at 1229. We ultimately determined on appeal that “even if
underfunding of Alabama’s K-12 schools were related to segregation in its colleges
and universities, this relationship [wa]s too attenuated and rest[ed] on too many
unpredictable premises to entitle [the] plaintiffs to relief under [United States v.
Fordice, 505 U.S. 717 (1992)].” Knight, 476 F.3d at 1228.
We further noted in Knight that the plaintiffs’ request for so-called
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“additional relief”—an injunction requiring the Alabama Legislature to adequately
fund K-12 schools—was “beyond [the] case or controversy” presented in that
litigation. See id. at 1229 n.19 (internal quotation marks omitted). The plaintiffs
in the current action apparently interpreted this language in Knight as an invitation
to bring a separate lawsuit seeking to enjoin the enforcement of allegedly
discriminatory property tax restrictions in Alabama’s Constitution. See Complaint
at ¶ 6. See also Appellants’ Br. at 3 (“[P]laintiff K-12 students were acting on the
invitation of the district court and this Court in Knight v. Alabama[.]”).
The parties agree that the plaintiffs’ current challenges, to the extent
justiciable, are governed by the standards described in Hunter v. Underwood, 471
U.S. 222 (1985). See Appellants’ Br. at 46, 56-57, 73-74; Appellees’ Br. at 30, 33,
35. A facially neutral state law will not be struck down as unconstitutional
“because it results in a racially disproportionate impact. . . . Proof of racially
discriminatory intent or purpose is required.” See Hunter, 471 U.S. at 227-28
(internal quotation marks omitted). See also id. at 229-33 (holding that a provision
of the Alabama Constitution of 1901, which disenfranchised persons convicted of
crimes involving moral turpitude, violated equal protection because, even though
the provision was racially neutral, its enactment was motivated by a desire to
discriminate against blacks on account of race and had a racially discriminatory
effect). As we summarized in Young Apartments, Inc. v. Town of Jupiter, 529 F.3d
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1027, 1043-45 (11th Cir. 2008), a law that is neutral on its face violates the Equal
Protection Clause if discrimination was a substantial or motivating factor in the
government’s enactment of the law, and if the government cannot show that the
law would have been enacted in the absence of any discriminatory motive.
“[U]nless there is a clear pattern that [the law] is impacting one race more than
another, impact alone is not determinative[.]” Id. at 1045.
The district court found that four of the challenged provisions in the
Alabama Constitution (Sections 214, 215, and 216 of Article XI and Section 269 of
Article XIV) were “enacted with a racially discriminatory intent,” but that two later
amendments to another provision of the Alabama Constitution (Amendments 325
and 373 to Section 217 of Article XI) were primarily motivated by financial
considerations. See D.E. 296-1 at 775-76. The district court further found that, on
a statewide basis, “Alabama’s black citizens and black public school students
[were] not disparately impacted by the challenged provisions.” Id. at 779.
Our discussion of this complicated case is divided into three parts. First, we
consider whether the plaintiffs have standing for the various claims they assert.
Second, we address Alabama’s contention that the action is barred by the Tax
Injunction Act and principles of comity. Finally, we conclude with the merits of
the claims properly before us.
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II
Alabama argues, as it did below, that the plaintiffs lack standing. Standing
is one of the Article III case or controversy requirements, see Stalley ex rel. U.S. v.
Orlando Reg’l Healthcare Sys., Inc., 524 F.3d 1229, 1232 (11th Cir. 2008), and
must therefore be established “as a threshold matter,” Steel Co. v. Citizens for a
Better Env’t, 523 U.S. 83, 94 (1998). To have standing, the plaintiffs must
demonstrate injury in fact, causation, and redressability. See, e.g., DiMaio v.
Democratic Nat’l Comm., 520 F.3d 1299, 1301-02 (11th Cir. 2008). Failure to
satisfy any of these three requirements is fatal. See Fla. Wildlife Fed., Inc. v. S.
Fla. Water Mgmt. Dist., 647 F.3d 1296, 1302 (11th Cir. 2011).
We review the plaintiffs’ standing de novo. See DiMaio, 520 F.3d at 1301.
The State contends that the plaintiffs lack a cognizable injury and cannot show that
any alleged injury would be redressed by the relief they request. See Appellees’
Br. at 17-21. We disagree with the first contention, but concur in part with the
second.
A
An injury in fact is “an invasion of a legally protected interest which is (a)
concrete and particularized and (b) actual or imminent, not conjectural or
hypothetical.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (citations
and internal quotation marks omitted). In their complaint, the plaintiffs allege that
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“racially discriminatory property tax restrictions in the Alabama Constitution . . .
impede their ability and the ability of their elected representatives to raise state and
local revenues adequately to fund . . . public education.” Complaint at ¶ 7. The
State argues, however, that this injury does not “affect the plaintiff[s] in a personal
and individual way,” as required by Article III. See Appellees’ Br. at 19 (quoting
Lujan, 504 U.S. at 560 n.1).
We conclude, contrary to the State’s position, that impediments to public
education funding arising from racially discriminatory state laws can constitute
particularized and concrete injury for purposes of standing. See, e.g., Petrella v.
Brownback, 697 F.3d 1285, 1293 (10th Cir. 2012) (holding that alleged intentional
underfunding of a school district constituted an injury in fact for purposes of
Article III standing). Under Supreme Court and Eleventh Circuit precedent,
discriminatory governmental action of the type alleged here constitutes an Article
III injury. See Heckler v. Mathews, 465 U.S. 728, 739-40 (1984) (noting that
discriminatory government action resulting in noneconomic injury to the plaintiff
can support standing); Common Cause/Ga. v. Billups, 554 F.3d 1340, 1351 (11th
Cir. 2009) (“For purposes of standing, a denial of equal treatment is an actual
injury even when the complainant is able to overcome the challenged barrier[.]”).
Cf. United States v. Hays, 515 U.S. 737, 744-45 (1995) (upholding standing for a
plaintiff who resided in a district allegedly created through racial gerrymandering);
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Allen v. Wright, 468 U.S. 737, 756 (1984) (recognizing the “diminished ability to
receive an education in a racially integrated school” as a judicially cognizable
injury).
B
A more difficult question is whether this alleged injury is redressable
through the relief sought. The Supreme Court has described redressability as “a
substantial likelihood that the relief requested will redress the injury claimed.”
Duke Power Co. v. Carolina Envtl. Study Grp., Inc., 438 U.S. 59, 75 n.20 (1978)
(internal quotation marks omitted). Redressability is admittedly one of the more
amorphous requirements of modern standing doctrine. See Gene R. Nichol, Jr.,
Rethinking Standing, 72 CAL. L. REV. 68, 72 n.27 (1984) (noting fluctuations and
inconsistencies in the application of the redressability requirement). Nonetheless,
it remains part of the “irreducible constitutional minimum of standing,” Lujan, 504
U.S. at 560, and this case can only proceed if the plaintiffs have shown that the
requested injunctive relief would likely resolve their inability to adequately raise
revenue for public education. See Warth v. Seldin, 422 U.S. 490, 504 (1975). See
also Allen, 468 U.S. at 753 n.19 (explaining that redressibility “examines the
causal connection between the alleged injury and the judicial relief requested”).
As noted earlier, the plaintiffs seek to invalidate several sections of the
Alabama Constitution that allegedly inhibit adequate funding of public education.
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These sections can be classified into two types: millage caps (which limit the tax
rate) and property classifications (which determine the property valuation rate used
to calculate the amount of tax due). Because standing cannot be “dispensed in
gross,” see Davis v. Fed. Election Comm’n, 554 U.S. 724, 734 (2008), we address
standing for each category of claims separately. See also Friends of the Earth, Inc.
v. Laidlaw Envtl. Svcs., 528 U.S. 167, 185 (2000) (“[P]laintiff[s] must demonstrate
standing separately for each form of relief sought.”).
1
Sections 214, 215, and 216 of Article XI of the Alabama Constitution set
millage caps that limit the tax rate various government entities may impose on
property. 2 Alabama’s tax rate is expressed in “mills,” with one mill representing
$1.00 of tax per $1,000 of assessed property value. Section 214 limits the State’s
rate of ad valorem taxation to 6.5 mills; Section 215 limits a county’s rate to 5
mills; and Section 216 limits a municipality’s rate to 5 mills. Section 269 of
Article XIV limits the rate that counties can levy in ad valorem taxes to support
2
Section 214 provides that “[t]he legislature shall not have the power to levy in any one
year a greater rate of taxation than sixty-five one-hundredths of one per centum on the value of
the taxable property within this state.” ALA. CONST. Art. XI, § 214. Section 215 states, in
relevant part, that “[n]o county in this state shall be authorized to levy a greater rate of taxation
in any one year on the value of the taxable property therein than one-half of one per centum.”
ALA. CONST. Art. XI, § 215. Under Section 216, “[n]o city, town, village, or other municipal
corporation . . . shall levy or collect a higher rate of taxation in any one year on the property
situated therein than one-half of one per centum of the value of such property as assessed for
state taxation during the preceding year.” ALA. CONST. Art. XI, § 216.
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education and further requires a referendum to approve such a tax.3 Significantly,
millage rate increases require legislative and voter approval. See ALA. CONST. Art.
XI, § 217(f). See also Bruce P. Ely & Howard P. Walthall, Sr., State
Constitutional Limitations on Taxing and Spending: A Comparison of the Alabama
Constitution of 1901 to Its Counterparts, 33 CUMB. L. REV. 463, 490 (2002-2003)
(“Even though Amendment 373(f) attempted to provide a mechanism by which the
people of a county or other taxing authority could decide to increase their tax rates
without amending the Constitution, that provision still requires that they first take
the question to the Legislature for approval.”).
“Relief that does not remedy the injury suffered cannot bootstrap a plaintiff
into federal court[.]” Steel Co., 523 U.S. at 107. We conclude that removal of the
millage caps found in Sections 214, 215, and 216 of Article XI and Section 269 of
Article XIV—the remedy the plaintiffs seek—will not redress the asserted injury,
which at bottom is the inability of the plaintiffs and their elected officials to raise
state and local revenue for public education. As we previously noted in Knight,
“[i]t is not at all clear that the removal of Alabama’s constitutional restrictions on
3
Section 269 provides, in relevant part, as follows: “The several counties in this state
shall have power to levy and collect a special tax not exceeding ten cents on each one hundred
dollars of taxable property in such counties, for the support and furtherance of education in such
manner as may be authorized by the legislature; provided, that the rate of such tax, the time it is
to continue, and the purpose thereof, shall have been first submitted to a vote of the qualified
electors of the county, and voted for by three-fifths of those voting at such election[.]” ALA.
CONST. Art. XIV, § 269.
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property tax rates will necessarily result in either increased tax rates or increased
tax revenues.” Knight, 476 F.3d at 1227.
First, it is undisputed that further legislation is necessary to achieve higher
millage rates, and “the contingency of [legislative] action makes the redress of
plaintiffs’ injury . . . speculative.” Medina v. Clinton, 86 F.3d 155, 158 (9th Cir.
1996) (internal quotation marks omitted). The Alabama Legislature (and the
people of Alabama) may choose to raise millage rates absent the caps, just as they
may choose to maintain the status quo or lower the rates, and we can only guess as
to whether removal of the current millage caps will redress the plaintiffs’ injury.
See Lujan, 504 U.S. at 561 (“[I]t must be ‘likely,’ as opposed to merely
‘speculative,’ that the injury will be ‘redressed by a favorable decision.’”). See
also Clapper v. Amnesty Int’l U.S.A., 133 S. Ct. 1138, 1150 (2013) (“[W]e have
been reluctant to endorse standing theories that require guesswork as to how
independent decisionmakers will exercise their judgment.”).
Second, the record indicates that Alabama voters in Lawrence and Sumter
Counties, where the plaintiffs reside, have rejected various proposals to increase
property taxes. See D.E. 242-1 at ¶ 38 (d), (f). As the district court noted,
“Alabama has authorized all local school systems to levy up to an aggregate of
15.0 mills in ad valorem property taxes for educational purposes, in a combination
of county and school tax district taxes.” D.E. 296 at 160. Yet Lawrence and
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Sumter Counties are both below the maximum permissible rate. Lawrence County
levies property taxes at 10 mills, and Sumter County levies them at 13.8 mills. See
id. at 167. Given that neither municipality has levied the maximum generally
authorized taxes for education, we conclude that an injunction prohibiting
enforcement of the millage caps will not likely redress the plaintiffs’ injury.
We note, as well, the acknowledgment of plaintiffs’ counsel at oral argument
that removal of the constitutional millage caps “may or may not” result in higher
millage rates. This uncertainty reinforces our conclusion that granting the
plaintiffs the relief they request would result in nothing more than a mere “moral”
victory, something the federal courts may not properly provide. See Steel Co., 523
U.S. at 107 (“[A]lthough a suitor may derive great comfort and joy from the fact
that . . . a wrongdoer gets his just deserts, or that the Nation’s laws are faithfully
enforced, that psychic satisfaction is not an acceptable Article III remedy because
it does not redress a cognizable Article III injury.”).
The plaintiffs attempted to overcome the redressability conundrum at oral
argument by labeling their requested relief more simply as the elimination of
historical barriers, rather than an affirmative attempt to increase millage rates.
This characterization, however, is ultimately unavailing. Under current standing
doctrine, we must consider the requested relief in the context of the injury that it
purports to redress. The plaintiffs’ injury is not simply the existence of the alleged
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barriers, but the resulting impact of those barriers on the ability to adequately fund
education in Alabama’s so-called Black Belt. Cf. Arizona Christian Sch. v. Winn,
131 S. Ct. 1436, 1448 (2011) (“And while an injunction against application of the
tax credit most likely would reduce contributions to [school tuition organizations],
that remedy would not affect noncontributing taxpayers or their tax payments. As
a result, any injury suffered by respondents would not be remedied by an
injunction limiting the tax credit’s operation.”). That the barriers were allegedly
put in place for a discriminatory purpose is not sufficient, in and of itself, to confer
standing. See Allen, 468 U.S. at 754 (“[A]n asserted right to have the Government
act in accordance with law is not sufficient, standing alone, to confer jurisdiction
on a federal court.”). As we have explained, removal of the millage caps is not
likely to result in an increased ability to fund public education. See Hollingsworth
v. Perry, 133 S. Ct. 2652, 2661 (2013) (“[F]or a federal court to have authority
under the Constitution to settle a dispute, the party before it must seek a remedy for
a personal and tangible harm.”).
2
Amendments 325 and 373 to Section 217 of Article XI, however, are
another matter entirely. These Amendments establish a property classification
system for determining the value of the property that is subject to a given tax rate.
See Howell v. Malone, 388 So. 2d 908, 913 (Ala. 1980) (noting that Amendment
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325 “change[d] the uniformity and equality among taxpayers to provide for three
classes of property and to establish three different ratios of taxation for the three
separate classes,” and summarizing the subsequent property classification scheme
imposed under Amendment 373). Under these provisions, certain classes of
property are assessed only at a percentage of their total value. Class III property,
which includes agricultural, forest, and single-family residential property, is taxed
at the lowest possible rate: 10% of its value. Class III property owners also may
have their property assessed at “current use” value rather than fair market value.
As amended, therefore, Section 217 “severely limit[s] the value of property subject
to the millage rates.” Susan Pace Hamill, Constitutional Reform in Alabama: A
Necessary Step Towards Achieving a Fair and Efficient Tax Structure, 33 CUMB.
L. REV. 437, 445 (2002-2003). And because property is assessed at only a
percentage of its actual value, “very little of the property’s true fair market value
[is] subject to taxation.” Id. at 443.
As the district court noted, it was “undisputed that the immediate effect of
granting the declaratory judgment and injunction plaintiffs seek [with respect to
Section 217] w[ould] be to increase property taxes in the State of Alabama.” D.E.
35 at 31 (footnote omitted). See also D.E. 296 at 112. If the assessment ratios
established by Section 217 did not exist, the record indicates that the property in
question would be assessed at 100% of its value, rather than at the 10% to 30%
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currently allowed. See D.E. 296 at 112 n.242. And that scenario, as the district
court found, of course would necessarily result in more tax revenue for Alabama,
at least some of which could be used to fund public education. Id. at 111, 113.4
We therefore conclude that removing the assessment ratios would likely redress (at
least in part) the plaintiffs’ injury, and that is enough for standing purposes. See
Made in the USA Foundation v. United States, 242 F.3d 1300, 1310-11 (11th Cir.
2001) (relief which remedies at least some of the alleged injuries is sufficient to
establish redressability).
Because we conclude that the plaintiffs lack standing to challenge the
millage cap provisions (Sections 214, 215, and 216 of Article XI and Section 269
of Article XIV), the remainder of our discussion focuses solely on Amendments
325 and 373 to Section 217.
III
Alabama argues that the Tax Injunction Act, 28 U.S.C. § 1341, deprived the
district court of jurisdiction over this case. It also contends that principles of
comity preclude the exercise of federal court jurisdiction. We begin with the Tax
Injunction Act, and then turn to comity.
4
There is some suggestion in the record that invalidating the assessment ratios would not
lead to property being assessed at 100%, but instead would result in a 60% assessment ratio for
all property. See D.E. 31 at 18 (citing Weissinger v. Boswell, 330 F. Supp. 615, 619 n.9, 625
(M.D. Ala. 1971)). In any event, the result would be increased tax revenue, which could at least
partially redress the plaintiffs’ injury.
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A
The Tax Injunction Act is a “jurisdictional rule” and constitutes a “broad
jurisdictional barrier.” Moe v. Confederated Salish & Kootenai Tribes of Flathead
Reservation, 425 U.S. 463, 470 (1976). We review the district court’s
interpretation of the Act de novo, and its factual findings regarding jurisdiction for
clear error. See Amos v. Glynn Cnty. Bd. of Tax Assessors, 347 F.3d 1249, 1255
(11th Cir. 2003).
Although the Act is brief and to the point—it states that “[t]he 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”—its scope is somewhat unsettled. Guided by a relatively
recent Supreme Court decision, Hibbs v. Winn, 542 U.S. 88 (2004), we agree with
the district court that the Act does not bar this action.
In Hibbs, the Supreme Court distinguished between “taxpayer claims that
would reduce state revenues and third-party claims that would enlarge state
receipts.” Id. at 108. The latter category of claims, the Court held, does not
implicate the Tax Injunction Act because such claims do not “seek to impede [a
state’s] receipt of tax revenues.” Id. at 93. As the Court explained, the Act was
not intended to “insulate state tax laws from constitutional challenge in lower
federal courts even when the suit would have no negative impact on tax
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collection.” Id. at 94.
As we read it, Hibbs at the very least stands for the proposition that third-
party challenges to the validity of state taxing schemes fall outside the ambit of the
Tax Injunction Act if the challenges, were they to prove successful, would result in
the increase of the tax liabilities of others (and therefore an increase in tax
revenues to the state). Compare id. at 104 (“Third-party suits not seeking to stop
the collection (or contest the validity) of a tax imposed on plaintiffs . . . were
outside Congress’ purview.”), with id. at 106 (Act bars jurisdiction if federal court
relief would “operate[ ] . . . to reduce the flow of state tax revenue”). This is
essentially how the Fifth, Seventh, Eighth, Ninth, and Tenth Circuits have read
Hibbs. See Henderson v. Stolver, 407 F.3d 351, 359 (5th Cir. 2005); Johnson v.
Orr, 551 F.3d 564, 571 (7th Cir. 2008); City of Jefferson City v. Cingular Wireless,
LLC, 531 F.3d 595, 603-04 (8th Cir. 2008); May Trucking Co. v. Oregon Dept. of
Transp., 388 F.3d 1261, 1267 (9th Cir. 2004); Hill v. Kemp, 478 F.3d 1236, 1249
& n.12 (10th Cir. 2007).
This appeal presents us with our first opportunity to apply Hibbs in a
published decision. The district court concluded, based on Hibbs, that the Tax
Injunction Act did not divest it of jurisdiction because “[t]he undisputed, direct
effect of the requested injunction would be to increase property tax revenue.” D.E.
296 at 113. In reaching this conclusion, the district court relied in part on
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Alabama’s own concession that the requested injunction would lead to significant
increases in property taxes, potentially as high as 1,000%. See D.E. 296 at 113 &
n. 238.5
On appeal, the State has changed its jurisdictional tune, and now argues that
“prohibiting enforcement of [its] property-valuation scheme (Amendments 325 and
373 and their implementing statutes and regulations) could take a . . . detrimental
toll on public revenue collections” because “tax officials in all jurisdictions may
well be powerless to issue property valuations,” and “without valid property
valuations, they would be powerless to collect any property tax at all.” Appellees’
Br. at 24-25. Alabama’s newly-minted factual maybes, however, do not require
reversal of the district court’s jurisdictional ruling as to the Tax Injunction Act.
As an initial matter, whether tax revenues would rise or fall if the plaintiffs
succeed on their challenges to Amendments 325 and 373 is a matter that is at least
partly factual in nature, and we as an appellate tribunal are not in the business of
fact-finding. Although we recognize that we have an obligation to address subject-
matter jurisdiction questions even when raised for the first time on appeal,
5
The State’s concession in the district court read as follows: “If Plaintiffs are successful
in challenging the restrictions on assessment ratios in Amendment 373 to the Alabama
Constitution, and an injunction is issued, property in every classification would automatically be
assessed at 100%, as opposed to the 10%, 20%, and 30% current ratios for residential,
commercial, and utility property, respectively. . . . By way of example, Alabama taxpayers with
a $100,000 home in a county with a property tax rate of 50 mills would see their annual property
tax bill increase from $300 to $3,000, after taking into account the homestead exemption and the
change in assessment ratio.” D.E. 27 at 2 n.1. See also id. at 26 (“[I]t is certainly plausible that
tax revenues would increase . . . .”).
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Alabama offers us no reason why we should second-guess the district court’s
findings as to jurisdictional facts. The district court and the plaintiffs alike were
entitled to rely on Alabama’s factual concession that taxes would rise if the court
enjoined enforcement of Amendment 373 and to believe, given that concession,
that no further evidence on the issue was needed. “Consent of parties cannot give
the courts of the United States jurisdiction, but the parties may admit the existence
of facts which show jurisdiction, and the courts may act judicially upon such an
admission.” Ry. Co. v. Ramsey, 89 U.S. 322, 327 (1874). See also Estate of
Amergi ex rel. Amergi v. Palestinian Authority, 611 F.3d 1350, 1359 (11th Cir.
2010) (“litigants are sometimes held to concessions or admissions of fact they
make before a district court”) (collecting cases). In short, the State told the district
court that taxes would increase if the plaintiffs prevailed, and it has offered no
valid reason why it should be allowed to backtrack on this factual concession
now.6
In any event, we cannot say on this record that the district court’s factual
finding as to the impact of the plaintiffs’ action on state revenues was clearly
6
We remind counsel that, as officers of the court, they have a duty to raise alleged
defects in subject-matter jurisdiction when they first become apparent, not merely when doing so
becomes strategically expedient. See Aves ex rel. Aves v. Shah, 997 F.2d 762, 767 (10th Cir.
1993) (“[W]hile subject matter jurisdiction enjoys a special status . . . as an officer of the court,
candor and honesty are not only expected, they are demanded. The ‘tactic’ of [stipulating to
subject-matter jurisdiction at the district court], while planning to challenge jurisdiction if an
appeal becomes necessary, will not be tolerated.”).
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erroneous. The State’s new position that tax revenues might decrease is not based
on any record evidence. Rather, the argument hinges on Alabama’s unsupported
assumption that Section 217 is the source of the State’s authority to issue property
valuations. Based solely on a concurring opinion in a decision of the Alabama
Supreme Court, see Ex Parte James, 836 So. 2d 813, 830 (Ala. 2002) (Houston, J.,
concurring) (“[T]he rule of automatic revival of predecessor statutes is not
similarly applicable to the revival of constitutional provisions.”), Alabama asserts
that invalidation of Section 217 would render “all jurisdictions . . . powerless to
issue property valuations.” Appellees’ Br. at 25. But that concurring opinion is
too slender a reed on which to conclusively predict what would happen under the
Alabama Constitution were the assessment ratios to be invalidated.
Indeed, Alabama points to no language in the challenged Amendments and
to no case law suggesting that Section 217 is the only source of the State’s power
to issue valid property valuations. To the contrary, under Alabama law, “taxing
power . . . has always been inherent in the State, and vested in the legislative
branch of State government,” subject only to the limitations found in the State
Constitution. See W. S. Brewbaker, Inc. v. City of Montgomery, 119 So. 2d 887,
891 (Ala. 1959) (internal quotation marks omitted). Because the State’s power to
tax is plenary, we see no reason to treat Section 217 as conferring power on the
State to issue property valuations. See id. (holding that Section 216 is not a grant
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of the power to levy taxes, but instead is a limit on the State’s inherent taxing
power). In sum, we find no support (and certainly no conclusive support) for the
State’s argument that enjoining enforcement of Amendments 325 and 373 would
“halt[ ] all property tax collections” in Alabama by stripping all jurisdictions of the
power necessary to issue valid property valuations. Cf. Duke Power Co., 438 U.S.
at 78 (“Nothing in our prior cases requires a party seeking to invoke federal
jurisdiction to negate . . . speculative or hypothetical possibilities.”) (discussing
Article III standing). The plaintiffs’ challenges to Amendments 325 and 373 to
Section 217 are not barred by the Tax Injunction Act.
Nothing in the Supreme Court’s opinion in Levin v. Commerce Energy, Inc.,
560 U.S. 413 (2010), undermines this conclusion. To the extent Levin opines on
the scope of the Tax Injunction Act at all, it does so only in dicta. See id. at 432
(“Because we conclude that the comity doctrine justifies dismissal of respondents’
federal-court action, we need not decide whether the TIA would itself block the
suit.”). And that dicta, in any event, supports our holding that the Act does not bar
the plaintiffs’ challenges to Section 217. As the Supreme Court explained in
Levin, “Hibbs held that the TIA d[oes] not preclude a federal challenge by a third
party who object[s] to a tax credit received by others, but in no way object[s] to her
own liability under any revenue-raising tax provision.” Id. at 430. That is
precisely the case here.
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B
In the district court and in its brief on appeal, Alabama raised comity as a
threshold defense. Relying on Levin, 560 U.S. at 429-32, it asserted that comity
“bar[s] federal-court interference in ‘every case’ concerning state ‘fiscal
operations’ where state courts offer an adequate forum for vindicating the ‘asserted
federal right.’” Appellees’ Br. at 27 (quoting Matthews v. Rodgers, 284 U.S. 521,
525 (1932)).
We need not express any view on Alabama’s comity argument. During oral
argument, counsel for the State told us the following: “[E]ven if the court is
persuaded by comity, we would especially ask [you], in light of the expense the
State has gone to, to reach the merits and affirm.” Upon further questioning by the
panel, counsel indicated that Alabama preferred not to prevail on comity grounds
alone because such a ruling would presumably invite (or at least permit) state-court
litigation of the same issues. We construe these statements by counsel as a request
by Alabama to abandon its comity argument on appeal. Because comity is not
jurisdictional in nature, see Levin, 560 U.S. at 433-34 (Thomas, J., concurring), the
State is free to withdraw the comity argument, and we grant its request to do so.
Cf. Cosby v. Jones, 682 F.2d 1373, 1376 n.6 (11th Cir. 1982) (“Because the basis
of exhaustion is comity and not jurisdiction, exhaustion of state remedies may be
waived by the state.”) (citation omitted).
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IV
We finally turn to the merits of the challenges to Amendments 325 and 373
to Section 217, the only claims that are justiciable. As an initial matter, we deem it
unnecessary to independently review the constitutionality of Amendment 325,
which established Alabama’s property classification system for taxation in 1972.
See Hamill, Constitutional Reform in Alabama, 33 CUMB. L. REV. at 442 n.16.
Amendment 325 was superseded in 1978 by Amendment 373, see State v. Colonial
Pipeline Co., 471 So. 2d 408, 410 (Ala. Civ. App. 1984), and is no longer
operative. The plaintiffs presumably challenged both Amendments because of the
possibility that invalidation of Amendment 373 would revive Amendment 325
under Alabama law. Cf. Deputy Sheriffs Law Enforcement Assoc. v. Mobile Cnty.,
590 So. 2d 239, 242-43 (Ala. 1991) (noting that Alabama law recognizes the
principle of revival of predecessor statutes wherein “the very act of declaring a
statute unconstitutional brings the predecessor statute . . . back into full force”).
Because we affirm the district court’s ruling on the constitutionality of Amendment
373, however, there is no possibility that the principle of revival will come into
play.
To prevail on their constitutional challenge to Amendment 373, the plaintiffs
were required to prove not only discriminatory impact, but also racially
discriminatory intent or purpose. See Hunter, 471 U.S. at 227-28; Vill. of
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Arlington Heights v. Metro. Housing Dev. Corp., 429 U.S. 252, 265 (1977) (citing
Washington v. Davis, 426 U.S. 229, 239 (1976)).7 “Discriminatory intent” means
that “racial discrimination [was] a substantial or motivating factor behind
enactment of the law.” Hunter, 417 U.S. at 228 (internal quotation marks omitted).
A district court’s finding as to discriminatory intent is a factual one that cannot be
set aside unless it “is clearly erroneous, is based on clearly erroneous subsidiary
findings of fact, or is based on an erroneous view of the law.” Holton v. City of
Thomasville Sch. Dist., 425 F.3d 1325, 1350 (11th Cir. 2005) (citation and internal
quotation marks omitted). For the reasons that follow, we discern no clear error in
the district court’s finding that Amendment 373 was not racially motivated.
The Supreme Court has observed that “[p]roving the motivation behind
official action is often a difficult undertaking.” Hunter, 471 U.S. at 228. It has,
however, set forth “subjects of proper inquiry in determining whether racially
discriminatory intent existed.” Arlington Heights, 429 U.S. at 268. These include
the racial “impact of the official action,” the “historical background of the
decision,” the “specific sequence of events” leading to the decision, procedural or
substantive “departures from the normal” sequence, and “legislative or
7
We, like the district court, decline the plaintiffs’ invitation to apply the burden-shifting
framework set forth in United States v. Fordice, 505 U.S. 717 (1992), as “[t]he segregative
policies proscribed by Fordice govern higher education, not revenue raising.” Knight, 476 F.3d
at 1226 (concluding that Fordice did not apply to an attack on “Alabama’s tax policies [which
allegedly] seriously limit[ed] the ability of both the State and its counties to raise revenue from
property taxes and, therefore, fund its K-12 schools”).
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administrative history.” Id. at 266-68. The district court correctly identified and
applied these factors in determining whether racially discriminatory intent existed.
See D.E. 296-1 at 421-25.8
The plaintiffs contend that the district court committed legal error by
impermissibly discounting the probative value of the historical context surrounding
the enactment of the challenged Amendments. They point to, among other things,
Alabama’s long-lived hostility to the use of property taxes for funding public
education of black children. They note that the enactment of these Amendments
was embedded in, and indeed a continuation of, Governor George C. Wallace’s
“popular campaign of massive resistance to school desegregation.” Appellants’
Br. at 54. And they emphasize that Alabama chose to entrench its historically low
property assessments into the Constitution—after two special sessions of the
Legislature—at the “same time that nearly all whites in the Black Belt were fleeing
the public schools, leaving behind underfunded public school systems that were
almost entirely black.” Id. at 54-55. See also id. at 60 (“Governor Wallace told
private school patrons in Bibb County: ‘I think it’s a horrible thing that you people
have to pay taxes to support public schools. Then you have to dig in again to pay
for quality education for your children in a private school.’”).
Any suggestion that the district court ignored or improperly discounted this
8
We do not read the district court’s opinion, as the plaintiffs do, to require either proof of
personal racial animus or “smoking gun” evidence.
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evidence is belied by its exceptionally thorough discussion of Alabama’s long
history of racial discrimination. Although the district court acknowledged that
Alabama’s “racist past . . . cast long shadows,” it ultimately found that
Amendments 325 and 373 were financially, and not discriminatorily, motivated.
See D.E. 296-1 at 776. After weighing the evidence, the district court was
persuaded that the Amendments “were a reaction to the increases in property
appraisals and assessments mandated by the Weissinger decision, and the
accompanying threat of a tremendous increase in the property taxes paid by large
landowners.” See id. at 771.9 Evidence in the record supports this finding,
including evidence of massive resistance to substantial property tax increases, see
id. at 664, 769; heavy support from the Alabama Farm Bureau Federation, a
“powerful lobbying organization,” see id. at 642, 768; D.E. 242-1 at ¶ 186; and a
clash between rural and urban interests, see D.E. 242-1 at ¶ 191, 194. See also
D.E. 296-1 at 679-80 (noting that Amendment 325, on its own, had been
insufficient to “protect rural interests”).
“[A] trial court’s choice between ‘two permissible views of the evidence’ is
the very essence of the clear error standard of review.” United States v. Rodriguez
De Varon, 175 F.3d 930, 945 (11th Cir. 1999) (en banc) (quoting Anderson v. City
of Bessemer City, 470 U.S. 564 (1985)). Even if we were inclined to reach a
9
In Weissinger, decided in 1971, a district court mandated that Alabama equalize
property assessments statewide. See 330 F. Supp. at 625.
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different conclusion as the triers of fact, the district court did not clearly err by
choosing to credit the evidence indicating that race was not a “substantial or
motivating” factor behind the property classification system.
The Supreme Court’s decision in Hunter does not mandate a different result.
There, the Court held that the district court’s finding of no discriminatory intent in
the adoption of Section 182 of the Alabama Constitution was clearly erroneous
based on the overwhelming evidence of racial animus surrounding the
Constitutional Convention of 1901. See Hunter, 471 U.S. at 225. The record not
only revealed that the Constitutional Convention was convened with the express
intent of “establish[ing] white supremacy in [the] State,” but also demonstrated
that Section 182 was itself enacted with the specific intent of disenfranchising
black voters. See id. at 229, 232 (noting that “the suffrage committee selected
crimes [that would disqualify persons from registering and voting] . . . that were
thought to be more commonly committed by blacks”). We by no means intend to
suggest that Hunter establishes a threshold that must be met in order to establish
discriminatory intent; Hunter, to the contrary, was an anomalous case in that the
record was replete with direct and overwhelming evidence of racial discrimination.
Although Hunter does not set the floor for an evidentiary showing of
discriminatory intent, neither does it compel a conclusion that the district court
clearly erred. Simply stated, the evidence in Hunter was quantitatively and
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qualitatively different than the evidence here. 10
V
In deciding this difficult appeal, we are cognizant of Alabama’s deep and
troubled history of racial discrimination, and given the evidence at trial, we share
in the district court’s concern regarding Alabama’s public education system:
Alabama continues to be plagued by an inadequately funded public
school system — one that hinders the upward mobility of her citizens,
black and white alike, especially in rural counties. . . . [As a result,]
[t]he children of the rural poor, whether black or white, are left to
struggle as best as they can in underfunded, dilapidated schools.
D.E. 296-1 at 797-98. Courts, however, are not always able to provide relief, no
matter how noble the cause.
Here, because the requested remedy would not redress the alleged injury, the
plaintiffs lack standing to challenge the constitutional millage cap provisions
despite the district court’s finding that they were enacted with discriminatory
intent. The plaintiffs’ challenges to these provisions are therefore dismissed
without prejudice. The plaintiffs’ challenges to the State’s property classification
10
In light of our ruling, we need not address the district court’s findings with respect to
discriminatory impact. As we have noted, the plaintiffs could not succeed without proving
discriminatory intent, even if discriminatory impact existed. See, e.g., Arlington Heights, 429
U.S. at 264-65 (“Official action will not be held unconstitutional solely because it results in a
racially disproportionate impact.”). In addition, because we conclude that the district court did
not clearly err in its findings on the Fourteenth Amendment claims, we affirm without further
discussion the district court’s rejection of the plaintiffs’ claim under Title VI, 42 U.S.C. § 2000d
et seq. See, e.g., Grutter v. Bollinger, 539 U.S. 306, 343 (2003) (concluding that Title VI claim
“also fail[ed]” because “the Equal Protection Clause [did] not prohibit the Law School’s
narrowly tailored use of race in admissions decisions”).
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system (as set forth in Amendments 325 and 373 to Section 217) are not similarly
barred, yet these claims fail because we cannot say that the district court clearly
erred in finding that this system was not the product of invidious discriminatory
intent. Although the evidence presented could have supported a finding of
discriminatory intent, sufficient evidence also rendered permissible the district
court’s finding that these Amendments were financially, and not discriminatorily,
motivated. Under clear-error review, we are not free to second-guess the district
court’s choice between two permissible views of the evidence. Accordingly, we
affirm in part as to the claims related to Amendments 325 and 373 to Section 217,
and vacate and remand in part with instructions to dismiss, without prejudice, the
claims related to Sections 214, 215, and 216 of Article XI and Section 269 of
Article XIV.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED WITH INSTRUCTIONS TO
DISMISS IN PART.
29