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HICKMANN v. WUJICK

November 15, 1971

Charles A. HICKMANN and Phyllis C. Hickmann, Plaintiffs,
v.
Gregory WUJICK, as Assessor of the Town of Huntington, New York, Defendant


Neaher, District Judge.


The opinion of the court was delivered by: NEAHER

MEMORANDUM OF DECISION

NEAHER, District Judge.

 Plaintiffs commenced this civil action pursuant to 28 U.S.C. § 1343, seeking a declaratory judgment, damages and injunctive relief to redress claimed deprivation, under color of New York State law, of rights secured by the United States Constitution, more particularly their prior right as parents to control the education of their children. The sole defendant named in plaintiffs' complaint is the Assessor of the Town of Huntington, Suffolk County, New York, where plaintiffs reside and pay real property taxes on the basis of an assessment roll prepared by defendant as required by State law.

 Plaintiffs have moved for a preliminary injunction enjoining defendant from "denying [them] a $200.00 tax credit against the school property taxes they will be required to pay for the 1971-72 tax year * * *." They claim, in substance, that this tax relief is needed to enable them to pay the tuition charged by the non-public school their children attend. After hearing oral argument and careful consideration of the pleadings, affidavits and briefs submitted, plaintiffs' motion is denied and their complaint is dismissed sua sponte, since the court lacks jurisdiction to enjoin the assessment, levy or collection of taxes imposed under State law. *fn1"

 The connection between plaintiffs' asserted deprivation of their constitutional rights as parents and the action (or inaction) of the defendant tax assessor emerges from their complaint, affidavit and brief as follows:

 (1) Plaintiffs, as owners of residential real property in the Town of Huntington, are admittedly subject to annual assessment for purposes of taxation pursuant to the Real Property Tax Law of the State of New York *fn2" and the Suffolk County Tax Act enacted thereunder. *fn3" A substantial portion of the real property taxes they pay is used for the support of public schools in the Town and their school tax levy has increased each year. In 1957-58 it amounted to $500.74; by 1970-71 it had increased to $1557.35; and in 1971-72 it will increase again to $1698.85.

 (2) Plaintiffs are the parents of four children of school age who do not attend the public schools. Instead, plaintiffs, exercising their constitutional right, have chosen to educate their children in a nonpublic church-affiliated school. For the 1970-71 school year plaintiffs were required to pay an increased tuition of $150 to the non-public school, and for the 1971-72 school year the tuition has been increased to $200.

 (3) In the apparent belief that these tuition payments should entitle them to a corresponding reduction of their real property tax for school purposes, plaintiffs filed claims with the defendant assessor demanding credits of $150 and $200, respectively, against their 1970-71 and 1971-72 school tax levies. The credits have not been granted, plaintiffs protested defendant's inaction and subsequently brought this suit.

 (4) Plaintiffs' complaint sums up their grievance against defendant in these terms:

 
"8. The defendant official's act denying the plaintiffs a credit against the school property taxes they were required to pay in the 1970-71 school year, and will be required to pay in the 1971-72 school year, for the tuition they were required to pay, and will be required to pay, for exercising their prior constitutional right to control the education of their children by sending them to a non-public school in compliance with the compulsory education law of New York State prohibits the free exercise of religion by the plaintiffs, deprives the plaintiffs of liberty without due process of law, denies to the plaintiffs the prior right to control the education of their children, abridges the privileges of the plaintiffs, and denies to the plaintiffs equal protection of the law."

 Defendant's answer to the complaint admits certain allegations and denies others, and pleads a number of defenses, including (1) the court's lack of jurisdiction of the subject matter, (2) the prohibition in 28 U.S.C. § 1341 against a district court of the United States enjoining, suspending or restraining the assessment, levy or collection of any tax under State law, and (3) defendant's lack of power or authority to afford plaintiffs the relief they seek. *fn4"

 Plaintiffs' constitutional claim, involving real property taxes assessed under State law, and their motion for a preliminary injunction necessarily raise a threshold question of the jurisdiction of this court. American Commuters Association v. Levitt, 279 F. Supp. 40, 45 (S.D.N.Y. 1967), aff'd 405 F.2d 1148 (2 Cir. 1969). "There are two possible grounds for federal jurisdiction. One is the 'federal question' jurisdiction contained in 28 U.S.C.A., § 1331. The other possible ground for jurisdiction is the 'civil rights' provision contained in 28 U.S.C.A. § 1343(3)." Abernathy v. Carpenter, 373 U.S. 241, 83 S. Ct. 1295, 10 L. Ed. 2d 409 (1963), aff'g per curiam, 208 F. Supp. 793, 794 (W.D. Mo. 1962).

 Plaintiffs' claim does not meet the requirements of either jurisdictional ground. They do not and could not bring this action under 28 U.S.C. § 1331 because the tax credit in controversy, totaling $350, falls far short of the minimum jurisdictional sum or value of $10,000 specified in that statute. Nor can this action be maintained in this court under 28 U.S.C. § 1343, upon which plaintiffs expressly rely, because 28 U.S.C. § 1341 plainly precludes the ultimate relief plaintiffs seek.

 Plaintiffs undoubtedly have the right to direct the upbringing and education of their children by having them attend a non-public religious school. And that right is certainly protected by the Constitution from State abridgement, as recognized in Pierce v. Society of Sisters, 268 U.S. 510, 45 S. Ct. 571, 69 L. Ed. 1070 (1925). *fn5" Indeed, plaintiffs allege they are now exercising that right. But when they attempt to enlarge constitutional protection to include a right to a tax credit or exemption not provided by State law, their claim is beyond the jurisdiction of this court. Assuming it to be true, as plaintiffs assert, that without a tax credit they will not have "sufficient funds to pay the $200.00 tuition required to send their children to the same nonpublic school this school year as they attended ...


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