Appeal from judgment of the Western District of New York, Michael A. Telesca, J., denying appellant's challenge to the constitutionality of section 305 of New York real Property Tax Law, and granting summary judgment to appellee. Affirmed.
Feinberg, Chief Judge, Oakes and Winter, Circuit Judges.
Peter P. Merrill, pre se, appeals from an order of the United States District Court for the Western District of New York, Michael A. Telesca, J., denying his challenge under 42 U.S.C. § 1983 to the constitutionality of section 305 of the New York Real Property Tax Law and granting summary judgment to the Town of Addison. For the reasons stated below, we affirm.
Appellant is a Baptist minister who resides in Addison, New York, in a home he purchased in 1977. He alleges he was denied the equal protection of the laws under the Fourteenth Amendment when Addison recently began taxing real property on the basis of "full value," rather that "partial value," assessment. Prior to 1983, Addison assessed property at approximately 10 percent of value. Thus, although Merrill paid $17,000 for his house in 1977, its assessed value was only $1,500. As a result, between 1977 and 1982 appellant paid no property taxes because he received an annual tax exemption of $1,500 granted to clergymen by section 460 of the New York Real Property Tax Law.*fn1 In 1983, Addison adopted full value assessment and reassessed all property in the town. Merrill's home was revalued at $22,000; the result, after subtraction of the clergyman's deduction, was taxable property of $20,500 and a tax bill of $441.35. Thus, in 1983, for the first time since he had purchased his home, Merrill was obliged to pay taxes on it.
Section 305 of the New Real Property Tax Law permits local assessing units to use either partial or full value assessment.*fn2 Merrill alleges that this statute violates the equal protection clause because the proportion of a clergyman's taxes exempted by section 460 varies according to the assessment system in each locality. Thus, appellant argues, the Baptist minister residing in the adjacent town of Irwin, which continues to use fractional assessment, "maintains the full power of his $1500 exemption . . . while the appellant's value of that exemption [is] reduced . . . . " Merrill asserts that section 305 permits an irrational and invidious discrimination between Baptist ministers of the same class, which unconstitutionally deprives him of a long-standing benefit.
In May 1984, Merrill brought this section 1983 action in the district court, asserting this constitutional claim. In August 1984, the district judge dismissed the complaint for failure to state a valid claim. This appeal, we address a preliminary procedural matter.
Although Merrill's suit is against the Town of Addison, his claim is that a New York State statute is unconstitutional. However, 28 U.S.C. § 2403(b) provides that when the constitutionality of a state statute "affecting the public interest is drawn in question" in a suit in a federal court between private parties, the court is required to "certify such fact to the attorney general of the State," and to permit the State to intervene and present evidence and argue on the constitutional question.*fn3 The tax assessment scheme of section 305 is clearly a matter of "public interest," but the district court did not certify the question.
Following oral argument in this court, we notified the Attorney General of the State of New York that the appeal was pending and granted him the opportunity to respond. The Attorney General submitted a brief defending the statute, and sought permission to intervene as a party defendant, which was granted.
In its original version, section 2403 of title 28 applied only to federal statutes. Subsection (a), passed in 1937, required notice to the United States Attorney General when the constitutionality of an act of Congress was questioned. Congress added subsection (b) in 1976, requiring parallel procedures for notifying a state Attorney General when a state law is at issue. In both subsections the obligation to certify rests with the court, not with the parties. The legislative history of 2403(a) reflects Congress' intent that the notice not be discretionary, Wallach v. Lieberman, 366 F.2d 254, 257 n.8 (2d Cir. 1966), and there is no reason to believe that certification under 2403(b) should be treated differently. Congress passed section 2403(b) in 1976 as part of a legislative package that included the repeal of 28 U.S.C. §§ 2281 and 2282, which had required the convening of a three-judge court in any case in which a party sought to enjoin the operation of a state or federal statute on grounds of unconstitutionality. Pub. L. No. 94-381, 90 Stat. 1119 (1976). The Senate report on the bill referred to amended section 2403 as one of the safeguards that made possible the repeal of the unwieldy three-judge court rule. S Rep. No. 204, 94th Cong. 2d Sess. 13, reprinted in 1976 U.S. Code Cong. & Ad. News 1988, 2001.
Certification is thus a duty of the court that should not be ignored, even if the claim is obviously frivolous or may be disposed of on other grounds. 3B J. Moore & J. Kennedy, Moore's Federal Practice, [PP]24.06 at 24-29; Wallach v. Lieberman, supra, 366 F.2d at 257. But the statute does not identify the effect, if any, of a district court's failure to follow these required procedures. the cases are clear, however, that the omission does not deprive the district court of jurisdiction. Our holding to that effect in Wallach v. Lieberman, id., which involved a challenge to a federal statute, has been followed in other circuits in cases involving both federal and state laws, including some in which certification occurred even after judgment at the appellate level. See Kealey Pharmacy & Home Care Services v. Walgreen Co., 761 F.2d 345 (7th Cir. 1985); Puffer's Hardware v. Donovan, 742 F.2d 12 (1st Cir. 1984); Bridges v. Phillips Petroleum Co., 733 F.2d 1153, 1156 n.7 (5th Cir. 1984), cert. denied, 469 U.S. 1163, 105 S. Ct. 921, 83 L. Ed. 2d 933 (1985); Jones v. City of Lubbock, 727 F.2d 364, 372 (5th Cir. 1984); Sutton v. City of Milwaukee, 672 F.2d 644, 648-49 (7th Cir. 1982); Davis v. Fendler, 650 F.2d 1154, 1163-64 (9th Cir. 1981). There is thus general agreement that section 2403 "should not be ignored," but, at least where the constitutionality of the statute has been upheld, there is "no practical purpose ...