Mann v. N.D. Tax Commissioner
Joan Mann, Ken Danks d/b/a
TEK Industries, Tracy Wilkie,
Christa Monette, and other persons
similarly situated, Plaintiffs and Appellants
North Dakota Tax Commissioner, Cory Fong, Defendant and Appellee
North Dakota Treasurer, Kelly Schmidt, Defendant
North Central Judicial District,
Judge William W. McLees
|Nature of Action:||Tax Related|
|Term:||04/2007  Argument: 04/05/2007|
|ND cite:||2007 ND 119|
736 N.W.2d 464
Listen to recording of oral argument in MP3 format
Appellant's Statement of the Issues:|
1. Class action - substantive law. A 2005 refund law states it is effective "after Dec. 3l, 2004." The district court denied a class action, saying this law applied to plaintiffs' refund claims for years 2004 and back. In 2004 the Indian plaintiffs secured an order that ruled the fuel tax illegal, and they sought class refunds under Ch. 57-43. Did the district court misapply the 2005 law to plaintiffs' 2004 (and prior) claims?
2. Hearing required. Due process requires a hearing before deprivation of property. The district court denied plaintiffs motion to declare the 2005 process unlawful, saying the 2005 admin. scheme was "reasonable" though no hearing is allowed. Is a court hearing required on plaintiffs' tax refund claims?
3. Rule 23 factors. The district court applied the 2005 law to plaintiffs' claims from 2004 and back, and denied a class action. Plaintiffs contend that under Reich Ch. 57-43 applies as the substantive law. Did the plaintiffs satisfy the Rule 23 requirements for class certification?
Appellee's Statement of the Issues:
1. The 59th North Dakota Legislative Assembly provided the relief the North Dakota Supreme Court required in Mann v. N.D. Tax Commissioner, 2005 ND 36, 692 N.W.2d 490 (N.D. 2005), a refund law for Native Americans who make exempt purchases of motor vehicle fuels.
2. Because of this new North Dakota law enabling individual Native Americans to file fuels tax refund claims, there is no need to establish a class action.
3. The District Court correctly denied the Native American Plaintiffs request for attorney's fees.
4. The District Court did not abuse its discretion in denying the Native American Plaintiffs' Motion for Reconsideration.
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|1||12/13/2006 NOTICE OF APPEAL: 12/12/2006|
|2||12/13/2006 $25 surcharge for electronic filing of ATB (receipt no. 17202)|
|3||01/18/2007 APPELLANT APPENDIX|
|4||01/19/2007 MOTION TO DISMISS APPEAL & BRIEF OF APPELLEE IN SUPPORT OF MOTION TO DISMISS|
|5||01/22/2007 APPELLANT BRIEF (E-filed)|
|6||01/22/2007 E-FILED BRIEF (ATB)|
|7||01/24/2007 RECORD ON APPEAL w/Separates (Entry No. 87-transcript dated 4/23/04).|
|8||01/24/2007 Not rec'd w/ROA were Steno Notes (Entry No.74) and Copies of NOA-Not documents(Entry Nos.77 & 128)|
|9||01/24/2007 Copies of Page 21 for ATA|
|10||01/24/2007 Letter clarifying Motion to Dismiss|
|11||01/25/2007 E-mailed list of corrections for ATB (inserted into ATB)|
|12||01/26/2007 Received 7 copies of ATB from Central Duplicating|
|13||01/30/2007 Corrected Page 12 of Appellant's Brief|
|14||01/30/2007 Appellant's Response to Motion to Dismiss|
|15||01/31/2007 ACTION BY SUPREME COURT. Denied|
|16||02/20/2007 APPELLEE BRIEF|
|17||02/20/2007 APPELLEE APPENDIX|
|18||02/20/2007 DISK - aeb|
|19||04/05/2007 APPEARANCES: Vance Gillette; Daniel L. Rouse, Donita A. Wald|
|20||04/05/2007 ARGUED: Gillette; Rouse|
|21||04/05/2007 ORAL ARGUMENT WEBCAST|
|22||07/25/2007 DISPOSITION: AFFIRMED AND MODIFIED|
|23||07/25/2007 UNANIMOUS OPINION: VandeWalle, Gerald W.|
|24||07/25/2007 At the direction of the Court, no costs are taxed on this appeal|
|25||07/26/2007 Judgment E-Mailed to Parties|
|26||08/07/2007 PETITION FOR REHEARING|
|27||08/07/2007 E-FILED BRIEF (PER)|
|28||08/13/2007 Affidavit of Service of PER|
|29||08/13/2007 Received 7 copies of PER from Central Duplicating|
|30||08/13/2007 Letter from Vance Gillette dated 8-10-07 RE: corrections to Petition for Rehearing|
|31||08/22/2007 ACTION BY SUPREME COURT (PER). Denied|
|33||09/13/2006 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE|
|34||11/26/2007 Notice from U.S. Supreme Court that Petition for Writ of Certiorari was filed|
|35||01/14/2008 Letter from William Suter of US Supreme Court RE: Petition for Writ of Certiorari is denied|