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WE HAVE A CONSTITUTIONAL RIGHT UNITED STATES DISTRICT COURT ROBERT L. SCHULZ, - Plaintiff -against- VERIFIED COMPLAINT Civil Action No. 98-CV-0167 WASHINGTON COUNTY BOARD OF SUPERVISORS, - Defendants.
JURISDICTION 1. Plaintiff ROBERT L. SCHULZ, citizen of the United States and of New York State, is a resident of this judicial district. The principal offices of the Washington County Board of Supervisors and the Town of Fort Ann are located in this judicial district. This court has jurisdiction under 28 USC Sections 1331 and 1343(3) and 42 USC Sections 1983. The claims arise under Article IV, Section 4 of the United States Constitution, and under the Ninth and Fourteenth Amendments to the United States Constitution. This action is timely commenced. 2. The relief requested herein is a final order: a) declaring that the failure of the Washington County tax collector to accept the 1997-1998 school tax tendered by plaintiff on December 8, 1997, is violative of plaintiff’s constitutional right to pay his tax bill and to discharge a "debt" at any time (Ninth and Fourteenth Amendments), and b) declaring that the failure of the Washington County tax collector to accept the 1997-1998 school tax tendered by plaintiff during the month of December 1997, while imposing a 7% tax on top of the unpaid 1997-1998 school tax, for failure to pay the tax in December 1997, is violative of plaintiff’s constitutional rights under the Ninth and Fourteenth Amendments, and c) declaring that the failure of the Town of Fort Ann tax collector to accept the 1997-1998 school tax tendered by plaintiff during the month of January, 1998, is violative of plaintiff’s constitutional right to pay his tax bill and to discharge a "debt" at any time (Ninth and Fourteenth Amendments), and d) directing that the imposition by the County and the Town of a 24% tax on plaintiff’s 1997-1998 school tax for failure to pay the 1997-1998 school tax between September 30, 1997 and August 31, 1998, is palpably unjust and violative of plaintiff’s fundamental rights under the Ninth and Fourteenth Amendments, and e) directing defendants to return to plaintiff the 7% penalty tax he paid and which was added to plaintiff’s 1997-1998 school taxes in December, 1997, by the County, and f) directing defendants to return to plaintiff the difference between the interest tax he paid to the Town of Fort Ann on his overdue tax bill (both school and town), at the current annual rate of 12%, and the interest tax he would have paid if the interest tax rate was equal to the average of the annual interest paid on simple savings accounts by three savings banks situated in the County, and g) for such other and further relief as to the court may seem just and proper.
PARTIES 3. Robert L. Schulz is a citizen-taxpayer-voter of New York State and the United States of America. He resides in the Town of Fort Ann, Washington County. His mailing address is 2458 Ridge Road, Queensbury, New York 12804. He is an individual taxpayer and property owner liable to pay taxes upon an assessment of more than $1,000 in the Town of Fort Ann, Washington County, and in Queensbury, Warren County, New York. He pays State income and sales tax. He is a registered voter registered to vote in the Town of Fort Ann, Washington County, New York. He is a resident and property owner in the Lake George Central School District. He has subdivided his land and established a Homeowner’s Association known as "Ridgewood Homeowner’s Association." 4. The Washington County board of Supervisors is the chief administrative and legislative body of Washington County, New York. Peter J. Telisky is the Chairman of the Board. 5. Phyllis cooper is the Treasurer of Washington County. 6. Virginia Parrott is the Tax Collector for the Town of Fort Ann, New York.
PRELIMINARY STATEMENT 7. During the 1970’s and early 1980’s, the interest rates on certificates of deposit were much higher than the rate of interest charged by municipalities and school districts for late payments on property taxes. Allegedly, some people in New York State were not paying their school taxes for a year or more. To discourage those few people who were paying property taxes late so they could earn more money on the CD’s, municipalities began to impose much higher interest rates on late property taxes -- much higher than the highest interest being paid on money invested in CD’s. 8. Today, interest rates on CD’s and simple savings accounts have dropped to record low levels. However, the interest rates on overdue property taxes have remained at their record high levels in New York State in general and particularly in plaintiff’s town, county and school district. 9. At the same time, many people in New York State find it more difficult to pay their property taxes on time. The economy has soured. Total New York State and local taxes are higher in New York State than most everywhere else. High paying jobs have left for warmer climates. Many people are forced to pay a much higher percentage of their household income for governmental taxes and fees. 10. Plaintiff received property tax bills from the Lake George Central School District for land situated in the Lake George Central School District. The tax bills totaled $3,407.04 and was due on or before September 30, 1997. 11. Plaintiff was unable to pay the tax until early December 1997. By then, an interest tax had been applied to the unpaid school tax at the rate of 12% per year or 1% per month, increasing the total tax bill by 3% to $3,509.24. 12. On or about December 8, 1997, plaintiff offered his payment to the County tax collector, who refused to accept it saying the County Board of Supervisors had passed a resolution prohibiting the office from accepting the payment after December 1, 1997. 13. On December 31, 1997, plaintiff received property tax bills for the Town of Fort Ann for land situated in the Town of Fort Ann. The Town’s tax bill included the school tax which had been increased by 7% due to the imposition of a 7% penalty tax by the County. 14. The 1998 Town tax bill included the 1997-1998 school tax with the 1% per month interest tax added for October, November and December, 1997. However, that amount ($3,509.24) had been increased by 7%. The County tax collector had added a 7% penalty tax, bringing the school tax total to $3,754.91. 15. On or about January 6, 1998, plaintiff offered his payment for the school tax to the Town of Fort Ann tax collector, who refused to accept it unless plaintiff paid his Town property tax at the same time. 16. If plaintiff does not pay his school and town tax bills by April 1, 1998 (both increased at the rate of 1% per month due to the interest tax), they are turned over to the County tax collector who immediately applies another 5% penalty tax. 17. If plaintiff does not pay his school and town tax bills by August 31, 1998, the school tax alone would then be equal to $4,224.73. The original school tax of $3,407.04 would have been increased 12% by the interest tax and 12% by the penalty tax (7% in December 1997 and 5% in April, 1998). 18. This is an action in which plaintiff seeks a declaration of his fundamental right to pay a tax bill and discharge that "debt" at any time, and against interest and penalty taxes that are palpably unjust and confiscatory.
QUESTIONS PRESENTED 19. Whether the failure of the Washington County tax collector to accept the 1997-1998 school tax as tendered by plaintiff on December 8, 1997, and the imposition of a 7% penalty tax by the County tax collector on plaintiff for not paying the 1997-1998 school tax, is violative of the Ninth and Fourteenth Amendments of the US Constitution, and Article IV, Section 4 of the US Constitution. 20. Whether the failure of the Fort Ann tax collector to accept the 1997-1998 school tax as tendered by plaintiff on January 26, 1998, unless plaintiff also paid in full the Town and County property tax for the 1998 calendar year, is violative of the Ninth and Fourteenth Amendments to the US Constitution and Article IV, Section 4 of the US Constitution. 21. Whether the imposition of a 24% tax (12% interest plus 12% penalty) on plaintiff for not paying his school tax between September 30, 1997 and August 31, 1998 is violative of the Ninth and Fourteenth Amendments to the US Constitution and Article IV, Section 4 of the US Constitution.
STATEMENT OF THE FACTS 22. On or about September 1, 1997, plaintiff received his school tax bills for land located in the Town of Fort Ann and in the Lake George Central School District. (footnote 1: The Lake George Central School District uses the Town of Lake George’s tax collector to send out the school tax bills and to collect the payments.) Exhibit A hereto. The total tax due was $3,407.04. 23. The revenue to be received from plaintiff by the Lake George Central School District would be used by the School District to operate the District during the 1997-1998 school/fiscal year which runs from July 1, 1997 through June 30, 1998. 24. The tax bills informed plaintiff; if payment was received by September 30, 1997 there would be no penalty; if payment was received by November 2, 1997 there would be a 2% penalty; and if payment was received after November 2, 1997 the penalty would be 3%. 25. The school tax bill did not indicate how long after November 2, 1997 plaintiff had to pay his school tax before the 3% penalty was increased further. NOTE: Plaintiff was unable to pay the tax until December 8, 1997. 26. On or before November 15, 1997, the Lake George Central School District had compiled a record of "unpaid 1997-1998 school taxes." 27. On or before November 15, 1997, the Lake George Central School District delivered to the office of the Washington County Treasurer a computer generated record of "unpaid 1997-1998 taxes," imposed on land located in the Washington County Town of Fort Ann. (footnote 2: On or before November 15, 1997, each School District within Washington County did the same.) All of plaintiff’s "unpaid 1997-1998 school taxes" were included in that record. 28. On December 8, 1997, plaintiff was able to pay his school property tax bill in full. On or about December 8, 1997, plaintiff telephoned the office of the Washington County Treasurer and spoke to a clerk. Plaintiff told the clerk that he would like to travel to the Treasurer’s Office that day and pay his school tax. Plaintiff asked the clerk if she would let plaintiff know the total amount due, including penalties and interest, through December 5, 1997. Within 4 or 5 seconds, and without asking which parcels were involved, the clerk was able to call up on her computer screen the record of "unpaid 1997-1998 school taxes" and, specifically, the amount of unpaid school taxes (by parcel) owed by plaintiff. The clerk was able to do this merely by entering plaintiff’s name into the computer. 29. The clerk then told plaintiff that he would be unable to pay his late school tax because the Washington County Board of Supervisors had passed a Resolution directing the County Treasurer to accept payment of any late school taxes until December 1, 1997, and that after that date the tax would be re-levied on the following year’s Town and County tax bills which would be sent out by the Towns on or about January 1, 1998. 30. Plaintiff asked the clerk what additional penalty and/or interest would be imposed if he had to wait until January to pay his school tax. The clerk answered, "The unpaid 1997-1998 school tax will be increased by 7%." 31. On or about December 11, 1997, plaintiff went to the office of the Washington County Treasurer to pay the school tax then due -- his 1997-1998 school tax. He told the clerk that greeted him that he wanted to pay his school tax. The clerk asked plaintiff his name. She entered the name into a nearby computer. Within a few seconds she told plaintiff that he was late on payment of the school tax on more than one parcel, that plaintiff would not be able to pay the tax that day, that the school tax was going to be re-levied on the following year’s Town and County tax bill at approximately 110% of the amount of the original tax, i.e., the tax that was due to be paid on or before September 30, 1997. 32. On December 15, 1997, after calculating the amount of school tax due, with penalty and interest included, plaintiff returned to the office of the County Treasurer with a check made out to the Treasurer in the amount of $3,509.24 and demanded that he be allowed to discharge his school tax "debt". The clerk refused to let plaintiff discharge the "debt". The clerk then gave plaintiff a copy of the Resolution passed by the County Board of Supervisors directing the Treasurer not to accept late school tax payments after December 1, 1997. See Exhibit B hereto for a copy of the Resolution. 33. On December 19, 1997, the Glens Falls Post Star reported on plaintiff’s failed attempt to discharge his school tax at the office of the Washington County Treasurer. See Exhibit C hereto. 34. On December 31, 1997, plaintiff received his Town and County tax bills for the 1998 calendar/fiscal year which begins on January 1, 1998, and runs through December 31, 1998. Plaintiff’s unpaid 1997-1998 school taxes were included, bringing the total due to $7,264.55. (footnote 3: The school tax was now up to 110.2% of the school tax that was due on or before September 30, 1997 -- a 10.2% penalty for being three months late.) See Exhibit D hereto. 35. On or about January 6, 1998, plaintiff telephoned Virginia Parrott, the Town of Fort Ann tax collector. Plaintiff told Ms. Parrott that he didn’t have enough money to pay the School tax and the Town tax ($7,264.55). Plaintiff asked Ms. Parrott if he could go over to the Town Hall that day, pay only the School tax and pay the Town tax in February or later? Ms. Parrott said "no". She said she was required by law to collect "all or nothing." When asked, she said she could not cite the law which prevented her from allowing plaintiff to pay only the school tax at that time and to pay the Town tax at a later date. 36. If, by April 1, 1998, plaintiff fails to pay to the Town of Fort Ann tax collector the sum of the 1997-1998 School tax and the 1998 Town and County tax, the matter will be turned over to the County tax collector, who immediately adds a 5% penalty and 1% interest to the amount due. The County will allow plaintiff to pay the tax due at any time thereafter. However, the interest tax continues at the rate of 1% per month. (footnote 4: Raising the original school tax from $3,407.04 to $4,224.73 if not paid by August 1998, an increase of $817.69, or 24%.)
FIRST CLAIM DEFENDANTS HAVE VIOLATED PLAINTIFF’S 37. The United States Constitution reads in part: "...nor shall any State deprive any person of life, liberty, or property, without due process of law;..." Fourteenth Amendment, U.S. Constitution 38. The following are arbitrary and palpably unjust government actions and violations of the 14th Amendment: a) County Resolution 282 of 1997 which prohibited the County Treasurer from accepting unpaid school taxes during the month of December 1997, and b) The imposition by the County of a 7% penalty on 1997-1998 school taxes not paid during the month of December, 1997. c) The Town of Fort Ann tax collector’s refusal to allow plaintiff to pay only his school tax during the month of January, 1998, requiring plaintiff to pay nothing less than the sum of his relevied school tax and his Town tax. d) The imposition by the County in April 1998 of an additional 5% penalty on unpaid 1997-1998 school taxes and a 5% penalty on unpaid 1998 Town and County taxes. 40. The 14th Amendment is intended, inter alia, to give increased security against the arbitrary deprivation of life or liberty, and the arbitrary spoliation of property. Missouri Pac. R.Co. v Humes, MO. 1885, 6 S.Ct.110, 115 U.S. 512, 29 L.Ed. 463. 41. As a limitation upon the powers of the states, this Fourteenth Amendment clause is as old as the principle of civilized government; it is found in the Magna Carta. 42. The terms "liberty" and "property" in this Fourteenth Amendment clause are not to be narrowly construed, but must be given a broad interpretation. Aster v Bd. of Ed. Of City of N.Y., 339 NYS 2d 903. 43. The right of plaintiffs not to be deprived of property without due process is a right secured by the Constitution within 28 USCA Section 1343 giving district courts original jurisdiction of civil actions authorized by law to be commenced by persons to redress deprivations under color of any state law or any right secured by the Constitution. Joe Louis Milk Co. v Hershey, D.C. Ill. 1965, 243 F.Supp 351. 44. 42 USCA Section 1983 encompasses violations of this Fourteenth Amendment clause. Citta v Delaware Volley Hospital, D.C. Pa. 1970, 313 F.Supp 301. 45. The right to pay a tax due at any time and the guarantee against a government act that at once disallows a citizen to pay a tax due during a 30 day period and imposes a severe (7%) penalty for not paying the tax during that period, is so fundamental it is able to be recognized as such by reference to teachings of history and basic values that underlie our society. As such, those rights are protected by the 14th Amendment. Petrey v Flaugher, D.C.Ky.1981, 505 F.Supp. 46. While there is an interest in devising prompt and efficient procedures in local government to achieve legitimate objectives, the Constitution recognizes higher values than speed and efficiency. The bill of rights and this Fourteenth Amendment clause in particular are designed to protect fragile values of a vulnerable citizenry from overbearing concern for efficiency and efficacy which may characterize praiseworthy government officials no less, and perhaps more, than mediocre ones. Stanley v Illinois, Ill.1972, 92 S.Ct.1208, 405 US 645, 31 L.Ed2d 551. See also Cleveland Bd. of Ed. V LaFleur, Ohio 1974, 94 S.Ct. 791, 414 US 632, 39 L.Ed.2d 52. 47. The protection of individuals against arbitrary government action is the great purpose of this Fourteenth Amendment clause. Welwording v Swenson, C.A. MO. 1974, 502 F2d 844, certiorari denied 95 S.Ct.835, 420 U.S. 912, 42 L.Ed.2d 843, on remand 405 F.Supp.447. 48. Defendants’ tax rate on unpaid taxes equals 24% per annum. Defendants’ tax on unpaid taxes is palpably unjust and, therefore, violative of the Ninth, Fifth and 14th Amendments, especially in light of the fact that the annual yield on a savings account at the local banks is a mere 2.5% (with a minimum balance of $250). On September 1, 1997, plaintiff received his school tax bills, including the tax for parcel No. 91.-1-30. The tax was $2,217.14. If plaintiff was not able to pay the tax until August 31, 1998, the tax bill, with penalties and interest included would be $2,745.39, an increase of $528.25 or 24%. 49. The United States Constitution reads in part: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." Article IX, U.S. Constitution 50. The purpose of the Ninth Amendment is to avoid lowering, degrading or rejecting any rights not specifically mentioned in the Bill of Rights. Schertz v Waupaca County, E.D. Wisc. 1988, 683 F.Supp.1551, affirmed 875 F.2d 578. 51. Rather than enunciating particular affirmative rights, the Ninth Amendment serves to protect other fundamental rights that are not set forth in the Constitution. U.S. v Vital Health Products Ltd., E.D. Wisc. 1992, 786 F.Supp.761 affirmed 985 F.2d 563. 52. Both the concept of penumbrial guarantees and the Ninth Amendment support the existence of rights not explicitly mentioned in the Constitution. U.S. v Criden, C.A.Pa. 1982, 675 F.2d 550. 53. The purpose of the Ninth Amendment is to guarantee to individuals those rights inherent to citizenship in a democratic republic which are not specifically enumerated in the Bill of Rights. U.S. v Cook, D.C.Pa. 1970, 311 F.Supp. 618. 54. The Ninth Amendment, as well as the 14th Amendment, protect plaintiff’s fundamental rights: 1) the right to discharge a tax at any time; 2) the right not to have government act to disallow a citizen to pay a tax due during a thirty day period and impose a severe (7%) penalty on that citizen for not paying the tax during that same thirty day period; and 3) the right not to have the government disallow the payment of one tax (the school property tax) unless another separate tax (the Town and County tax), often of equal burden, is paid at the same time. 55. The government cannot object on the ground that allowing citizens to discharge their overdue school tax at any time would disarrange the bookkeeping system of the tax collectors office or impose additional costs by reason of the number of entries required to be made. 56. The rule that taxes must be paid in full and at one time is subject to some qualification. Richey v Moor, 112 Tex 493, 249 SW 172. Where separate and independent taxes are levied against the same property the taxpayer may pay one tax without paying the other(s). Tondre v Garcia, 45 NM 433, 116 P 2d 584; Milne v Hess, 141 Or 469, 18 P 2d 229, 89 ALR 711. That right is not affected by statutes providing that all taxes levied by taxing agencies or districts shall be collected by the same officer in the same manner "and at the same time" as County taxes, and fixing a date after which unpaid taxes shall become delinquent. Milne v Hess, 141 Or 469, 18 P 2d 229, 89 ALR 711. 57. The right to make payment may be enforced by mandamus. Milne v Hess, 141 Or 469, 18 P 2d 229, 89 ALR 711. 58. Where the taxpayer tenders some one or more of the several taxes assessed against him, refusing to pay others, he will not be held liable for interest and penalties upon at least that part of the taxes tendered, notwithstanding the failure of the collector to accept them. People ex. Rel Stuckart v Lamb, 277 Ill 584, 115 NE 720.
CONCLUSION 59. Based on the above, plaintiff respectfully requests a final order: a) declaring that the failure of the Washington County tax collector to accept the 1997-1998 school tax tendered by plaintiff on December 8, 1997, is violative of plaintiff’s constitutional right to pay his tax bill and to discharge a "debt" at any time (Ninth and Fourteenth Amendments), and b) declaring that the failure of the Washington County tax collector to accept the 1997-1998 school tax tendered by plaintiff during the month of December 1997, while imposing a 7% tax on top of the unpaid 1997-1998 school tax, for failure to pay the tax in December 1997, is violative of plaintiff’s constitutional rights under the Ninth and Fourteenth Amendments, and c) declaring that the failure of the Town of Fort Ann tax collector to accept the 1997-1998 school tax tendered by plaintiff during the month of January, 1998, is violative of plaintiff’s constitutional right to pay his tax bill and to discharge a "debt" at any time (Ninth and Fourteenth Amendments), and d) directing that the imposition by the County and the Town of a 24% tax on plaintiff’s 1997-1998 school tax for failure to pay the 1997-1998 school tax between September 30, 1997 and August 31, 1998, is palpably unjust and violative of plaintiff’s fundamental rights under the Ninth and Fourteenth Amendments, and e) directing defendants to return to plaintiff the 7% penalty tax he paid and which was added to plaintiff’s 1997-1998 school taxes in December, 1997, by the County, and f) directing defendants to return to plaintiff the difference between the interest tax he paid to the Town of Fort Ann on his overdue tax bill (both school and town), at the current annual rate of 12%, and the interest tax he would have paid if the interest tax rate was equal to the average of the annual interest paid on simple savings accounts by three savings banks situated in the County, and g) for such other and further relief as to the court may seem just and proper. DATED: January 30, 1998 ROBERT L. SCHULZ, Pro Se, 2458 Ridge Road, Queensbury, NY 12804 (518)656-3578 |