Mann v. N.D. Tax Commissioner

20060366 Joan Mann, Ken Danks d/b/a
TEK Industries, Tracy Wilkie,
Christa Monette, and other persons
similarly situated, Plaintiffs and Appellants
v.
North Dakota Tax Commissioner, Cory Fong, Defendant and Appellee
and
North Dakota Treasurer, Kelly Schmidt, Defendant

Appeal from: District Court, Northwest Judicial District, Mountrail County
Judge William W. McLees
Nature of Action: Tax Related
Counsel:
Appellant: Vance Gillette
Appellee: Daniel Lucian Rouse , Spec. Asst. Atty. Gen.
Appellee: Robert W. Wirtz , Spec. Asst. Atty. Gen.
Term: 04/2007   Argument: 04/05/2007  10:45am
ND cite: 2007 ND 119
NW cite: 736 N.W.2d 464

Listen to recording of oral argument in MP3 format

Issues: 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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Docket entries:
112/13/2006 NOTICE OF APPEAL: 12/12/2006
212/13/2006 $25 surcharge for electronic filing of ATB (receipt no. 17202)
301/18/2007 APPELLANT APPENDIX
401/19/2007 MOTION TO DISMISS APPEAL & BRIEF OF APPELLEE IN SUPPORT OF MOTION TO DISMISS
501/22/2007 APPELLANT BRIEF (E-filed)
601/22/2007 E-FILED BRIEF (ATB)
701/24/2007 RECORD ON APPEAL w/Separates (Entry No. 87-transcript dated 4/23/04).
801/24/2007 Not rec'd w/ROA were Steno Notes (Entry No.74) and Copies of NOA-Not documents(Entry Nos.77 & 128)
901/24/2007 Copies of Page 21 for ATA
1001/24/2007 Letter clarifying Motion to Dismiss
1101/25/2007 E-mailed list of corrections for ATB (inserted into ATB)
1201/26/2007 Received 7 copies of ATB from Central Duplicating
1301/30/2007 Corrected Page 12 of Appellant's Brief
1401/30/2007 Appellant's Response to Motion to Dismiss
1501/31/2007 ACTION BY SUPREME COURT. Denied
1602/20/2007 APPELLEE BRIEF
1702/20/2007 APPELLEE APPENDIX
1802/20/2007 DISK - aeb
1904/05/2007 APPEARANCES: Vance Gillette; Daniel L. Rouse, Donita A. Wald
2004/05/2007 ARGUED: Gillette; Rouse
2104/05/2007 ORAL ARGUMENT WEBCAST
2207/25/2007 DISPOSITION: AFFIRMED AND MODIFIED
2307/25/2007 UNANIMOUS OPINION: VandeWalle, Gerald W.
2407/25/2007 At the direction of the Court, no costs are taxed on this appeal
2507/26/2007 Judgment E-Mailed to Parties
2608/07/2007 PETITION FOR REHEARING
2708/07/2007 E-FILED BRIEF (PER)
2808/13/2007 Affidavit of Service of PER
2908/13/2007 Received 7 copies of PER from Central Duplicating
3008/13/2007 Letter from Vance Gillette dated 8-10-07 RE: corrections to Petition for Rehearing
3108/22/2007 ACTION BY SUPREME COURT (PER). Denied
3209/10/2007 MANDATE
3309/13/2006 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE
3411/26/2007 Notice from U.S. Supreme Court that Petition for Writ of Certiorari was filed
3501/14/2008 Letter from William Suter of US Supreme Court RE: Petition for Writ of Certiorari is denied

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