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

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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:

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
32	09/10/2007	MANDATE
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

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