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 10:45am|
|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)|
|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|
|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|