Friday, September 26, 2003

Wise County to seek rehearing from Va. Supreme Court on landfill fee case

The Bristol paper reported here that the Wise County Board of Supervisors decided to ask the lawyers to file a petition for rehearing in the landfill fee case.

I'm hoping that the Virginia Supreme Court grants rehearing in the landfill fee case, because their opinion leaves many, many unanswered questions - like what is the County supposed to do now? How can the ordinance be made constitutional? How should the County decide which fee-payers, if any, are entitled to refunds, and in what amount? What are fee-payers supposed to do under local and state law, are there procedures to be followed, remedies to be exhausted? Instead of making refunds, can the County charge more to the fee-payers who pay less, to even out the disparities in the rate to avoid the equal protection problem? Does this ruling apply only prospectively? There are some indications from the Virginia Supreme Court, like in the federal retiree taxation case, that the Supreme Court's declarations that a taxing scheme is unconstitutional apply only prospectively. See Harper v. Virginia Dept. of Taxation, 241 Va. 232, 241-42, 401 S.E.2d 868, 873-74 (1991). Even if that's true, and the same rule applies in "fee" cases, what does it mean? No refunds? A state law rule that says no refunds sounds like a sure-fire denial of due process to me - somehow, some way, the County needs to smooth out the disparities that gave rise to the equal protection, and partial refunds to the discriminatees could be one answer. Compare Fulton Corp. v. Faulkner 516 U.S. 325, 346-47 (1996) ("a State might refund the additional taxes imposed upon the victims of its discrimination or, to the extent consistent with other constitutional provisions (notably due process), retroactively impose equal burdens on the tax's former beneficiaries. A State may also combine these two approaches.").

I know that the Virginia Supreme Court is not in the business of giving advisory opinions, and maybe the Court will do nothing - which means that the County will have to gamble on what the Court's opinion means, until the next appeal.

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