On appeal from the Tax Court of New Jersey.
Muir, Jr. and Kestin. The opinion of the court was delivered by Kestin, J.A.D.
The procedural history and factual background of this case have been set out in prior opinions of this court, the Tax Court, the New Jersey Supreme Court and the United States Supreme Court. During the remand proceedings ordered by the New Jersey Supreme Court, 109 N.J. 110, 534 A.2d 1 (1987), plaintiffs moved in the Tax Court for an order mandating a full refund of those Spill Fund taxes which were attributable to purposes held by the United States Supreme Court to have been pre-empted by the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The statutory provisions upon which the pre-emption decision was based have since been repealed.
Plaintiffs contended that the recent holding of the United States Supreme Court in McKesson v. Division of Alcoholic Beverages & Tobacco, 496 U.S. 18, 110 S. Ct. 2238, 110 L. Ed. 2d 17 (1990), required a modification of the remedy fashioned by the New Jersey Supreme Court at 109 N.J. 110, 128-133, 534 A.2d 1 (1987), on remand from the United States Supreme Court, 475 U.S. 355, 106 S. Ct. 1103, 89 L. Ed. 2d 364 (1986). The Tax Court Judge held, by reason of the "law of the case" rule, Flanigan v. McFeely, 20 N.J. 414, 420, 120 A.2d 102 (1956); In
re Plainfield-Union Water Co., 14 N.J. 296, 102 A.2d 1 (1954), that he was obliged to follow strictly the mandate of the New Jersey Supreme Court in this case and could not modify it in any way. He saw a motion for reconsideration to the New Jersey Supreme Court as the only proper means for dealing with a later decision of the United States Supreme Court which might be interpreted as invalidating the remedial mechanism developed by the New Jersey Supreme Court to address the limitations imposed by supervening federal law as declared and applied by the United States Supreme Court in this case.
A final order on remand was then entered. It denied plaintiffs' motion and established the pre-empted expenditures from the New Jersey Spill Fund, as agreed by the parties when calculated according to the guidelines established by the New Jersey Supreme Court, at $8,142,094.07.
Plaintiffs appeal the Tax Court's denial of the relief they sought under the authority of McKesson. We need not address the question whether the "law of the case" rule was correctly applied to deny the relief sought by plaintiffs or whether the "time of decision" rule should have been applied instead. See State Dept. of Envtl. Protect. v. Ventron Corp., 94 N.J. 473, 468 A.2d 150 (1983). We have analyzed McKesson and have determined that it does not require the result contended for by plaintiffs. Accordingly, we affirm on the merits.
We are not persuaded that New Jersey's range of choices for bringing itself into compliance with the requirements of supervening federal law should be narrower than those available to Florida in McKesson. There, the United States Supreme Court held that optional means were available to the State of Florida to cure a taxing measure found to be invalid because it discriminated against interstate commerce. The State was obliged to provide a taxpayer who had been required to pay a tax before challenging its validity with "meaningful, backward-looking relief to rectify any unconstitutional deprivation", 496 U.S. at 31, 110 S. Ct. at 2247, 110 L. Ed. 2d at 32, but it was not required
to refund the invalid tax if it chose other effective means for eliminating the discrimination.
When a State penalizes taxpayers for failure to remit their taxes in timely fashion, thus requiring them to pay first before obtaining review of the tax's validity, federal due process principles long recognized by our cases require the State's postdeprivation procedure to provide a "clear and certain remedy" . . . for the deprivation of tax moneys in an unconstitutional manner. In this case, Florida may satisfy this obligation through any form of relief, ranging from a refund of the excess taxes paid by petitioner to an offsetting charge to previously favored distributors, that will cure any unconstitutional discrimination against interstate commerce during the contested tax period. The State is free to choose which form of relief it will provide, so long as that relief satisfies the minimum federal requirements we have outlined.
[ McKesson v. Division of Alc. Bev., supra, 496 U.S. at 51-52, 110 S. Ct. at 2257-58, 110 L. Ed. 2d ...