{ "id": 11243101, "name": "JOAN GORE MILLIGAN, Individually and for the benefit and on behalf of all others similarly situated, Plaintiff v. STATE OF NORTH CAROLINA; THE NORTH CAROLINA DEPARTMENT OF REVENUE; MURIEL K. OFFERMAN, in her capacity as SECRETARY OF THE NORTH CAROLINA DEPARTMENT OF REVENUE; RICHARD W. RIDDLE, in his capacity as DIRECTOR OF THE CONTROLLED SUBSTANCE TAX DIVISION OF THE NORTH CAROLINA DEPARTMENT OF REVENUE; THE NORTH CAROLINA DEPARTMENT OF STATE TREASURER; HARLAN E. BOYLES, in his capacity as TREASURER OF THE STATE OF NORTH CAROLINA, Defendants", "name_abbreviation": "Milligan v. State", "decision_date": "1999-12-07", "docket_number": "No. COA99-14", "first_page": "781", "last_page": "783", "citations": [ { "type": "official", "cite": "135 N.C. App. 781" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "178 S.E.2d 382", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "277 N.C. 654", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567186 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/277/0654-01" ] }, { "cite": "358 S.E.2d 372", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "320 N.C. 439", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4727847 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/320/0439-01" ] }, { "cite": "451 S.E.2d 858", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "339 N.C. 358", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2556344 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc/339/0358-01" ] }, { "cite": "310 S.E.2d 301", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "310", "parenthetical": "state courts should treat \"decisions of the United States Supreme Court as binding and accord[] to decisions of lower federal courts such persuasiveness as these decisions might reasonably command\"" } ], "opinion_index": 0 }, { "cite": "310 N.C. 61", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2394579 ], "year": 1984, "pin_cites": [ { "page": "74", "parenthetical": "state courts should treat \"decisions of the United States Supreme Court as binding and accord[] to decisions of lower federal courts such persuasiveness as these decisions might reasonably command\"" } ], "opinion_index": 0, "case_paths": [ "/nc/310/0061-01" ] }, { "cite": "484 S.E.2d 525", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "346 N.C. 165", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 139558 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/nc/346/0165-01" ] }, { "cite": "473 S.E.2d 771", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "123 N.C. App. 495", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11913917 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/nc-app/123/0495-01" ] }, { "cite": "350 N.C. 836", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132224, 132168, 132164, 132319 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/nc/350/0836-03", "/nc/350/0836-02", "/nc/350/0836-04", "/nc/350/0836-01" ] }, { "cite": "513 S.E.2d 588", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1999, "pin_cites": [ { "page": "589" } ], "opinion_index": 0 }, { "cite": "132 N.C. App. 819", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11240834 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "820" } ], "opinion_index": 0, "case_paths": [ "/nc-app/132/0819-01" ] }, { "cite": "139 L. Ed. 2d 29", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1997, "opinion_index": 0 }, { "cite": "522 U.S. 817", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11484418, 11484324, 11484453, 11484489, 11484298, 11484142, 11484239, 11484527, 11484206, 11484177, 11484275, 11484380, 11484349, 11484573 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/us/522/0817-10", "/us/522/0817-07", "/us/522/0817-11", "/us/522/0817-12", "/us/522/0817-06", "/us/522/0817-01", "/us/522/0817-04", "/us/522/0817-13", "/us/522/0817-03", "/us/522/0817-02", "/us/522/0817-05", "/us/522/0817-09", "/us/522/0817-08", "/us/522/0817-14" ] }, { "cite": "481 S.E.2d 84", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "345 N.C. 626", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 54070 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/nc/345/0626-01" ] }, { "cite": "472 S.E.2d 572", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "575" } ], "opinion_index": 0 }, { "cite": "123 N.C. App. 179", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11912427 ], "year": 1996, "pin_cites": [ { "page": "184" } ], "opinion_index": 0, "case_paths": [ "/nc-app/123/0179-01" ] }, { "cite": "142 L. Ed. 2d 36", "category": "reporters:federal", "reporter": "L. Ed. 2d", "weight": 2, "year": 1998, "opinion_index": 0 }, { "cite": "134 F.3d 582", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 11586956 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "593" }, { "page": "592" } ], "opinion_index": 0, "case_paths": [ "/f3d/134/0582-01" ] }, { "cite": "522 U.S. 93", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11470872 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "99", "parenthetical": "citations omitted" }, { "page": "459", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/us/522/0093-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 105-113.111", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 } ], "analysis": { "cardinality": 423, "char_count": 6825, "ocr_confidence": 0.752, "pagerank": { "raw": 5.508240512094777e-08, "percentile": 0.3443542461355855 }, "sha256": "88f3e10d328b62157028c10a257ad067ce7abacd9af49f907b9f86c626b4c343", "simhash": "1:c9b96d78266d1a49", "word_count": 1092 }, "last_updated": "2023-07-14T18:51:33.981101+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WALKER and HUNTER concur." ], "parties": [ "JOAN GORE MILLIGAN, Individually and for the benefit and on behalf of all others similarly situated, Plaintiff v. STATE OF NORTH CAROLINA; THE NORTH CAROLINA DEPARTMENT OF REVENUE; MURIEL K. OFFERMAN, in her capacity as SECRETARY OF THE NORTH CAROLINA DEPARTMENT OF REVENUE; RICHARD W. RIDDLE, in his capacity as DIRECTOR OF THE CONTROLLED SUBSTANCE TAX DIVISION OF THE NORTH CAROLINA DEPARTMENT OF REVENUE; THE NORTH CAROLINA DEPARTMENT OF STATE TREASURER; HARLAN E. BOYLES, in his capacity as TREASURER OF THE STATE OF NORTH CAROLINA, Defendants" ], "opinions": [ { "text": "GREENE, Judge.\nJoan Gore Milligan (Plaintiff), individually and for the benefit and on behalf of those similarly situated, appeals from an Order entering a Rule 12(b)(6) dismissal of the complaint filed against the State of North Carolina; the North Carolina Department of Revenue (Department of Revenue); Muriel K. Offerman, in her capacity as Secretary of the Department of Revenue; Richard W. Riddle, in his capacity as Director of the Controlled Substance Tax Division of the Department of Revenue; the North Carolina Department of State Treasurer; and Harlan E. Boyles, in his capacity as Treasurer of the State of North Carolina (collectively, Defendants).\nPlaintiff\u2019s complaint requests refunds of taxes paid pursuant to Article 2D, Chapter 105 of the North Carolina General Statutes. N.C.G.S. ch. 105, art. 2D (1995) (amended 1997 & Supp. 1998). These statutes were known as the \u201cNorth Carolina Controlled Substance Tax\u201d (Drug Tax).\nThe allegations of the complaint reveal that on 8 December 1995, law enforcement officers seized marijuana from Plaintiffs home and arrested her for possession with intent to manufacture, sell, or deliver that same marijuana, as well as for maintaining both a place and a vehicle to keep controlled substances. On 23 September 1996, pursuant to N.C. Gen. Stat. \u00a7 105-113.111, the Department of Revenue assessed a tax liability of $12,252.95 against Plaintiff for taxes, penalties, and interest due on the approximately 2,227 grams of non-tax paid marijuana. Plaintiff paid the tax liability under protest and requested a refund pursuant to section 105-267. The refund was denied and Plaintiff filed her complaint contesting the validity of the tax. In the complaint it is alleged the Drug Tax is a \u201ccriminal penalty,\u201d \u201cits enforcement must conform to the constitutional safeguards that accompany criminal proceedings,\u201d and Plaintiff was not provided any of these constitutional safeguards. It is also alleged that \u201cDefendants have been the most aggressive of the states in enforcing [the] tax on illegal drugs.\u201d\nThe single issue is whether the Drug Tax is a criminal penalty.\nPlaintiff argues that because the Drug Tax is a criminal penalty, its assessment and collection must comply with all the procedural safeguards required for criminal proceedings. It follows, Plaintiff contends, the statutes\u2019 failure to provide these safeguards requires a holding that the statutes are unconstitutional. We disagree.\nA tax may be \u201c \u2018so punitive either in purpose or effect\u2019 as to \u2018trans-for[m] what [may have been] intended as a civil remedy into a criminal penalty.\u2019 \u201d Hudson v. United States, 522 U.S. 93, 99, 139 L. Ed. 2d 450, 459 (1997) (citations omitted). If treated as a criminal penalty, \u201cits enforcement must conform to the constitutional safeguards that accompany criminal proceedings.\u201d Lynn v. West, 134 F.3d 582, 593 (4th Cir. 1998), cert. denied, \u2014 U.S. \u2014, 142 L. Ed. 2d 36 (1998). Thus, the taxpayer would be entitled to \u201call of the criminal-procedure guarantees of the Fifth and Sixth Amendments.\u201d Id.\nThis Court has held that the Drug Tax does not contain the \u201cpunitive characteristics\u201d necessary to transform it into a criminal penalty. State v. Ballenger, 123 N.C. App. 179, 184, 472 S.E.2d 572, 575 (1996), aff\u2019d per curiam, 345 N.C. 626, 481 S.E.2d 84, cert. denied, 522 U.S. 817, 139 L. Ed. 2d 29 (1997); see also State v. Adams, 132 N.C. App. 819, 513 S.E.2d 588, disc. review denied, 350 N.C. 836, - S.E.2d - (1999); State v. Creason, 123 N.C. App. 495, 473 S.E.2d 771 (1996), aff'd per curiam, 346 N.C. 165, 484 S.E.2d 525 (1997).\nWe acknowledge that our previous opinions on the Drug Tax were criminal proceedings whereas the present case is a civil proceeding. This distinction, however, is not material as the same issue is presented: whether the Drug Tax constitutes a criminal penalty. Because the Drug Tax does not constitute a criminal penalty, the Plaintiff was not entitled to the procedural safeguards required for criminal proceedings. Accordingly, the trial court correctly dismissed the complaint.\nAffirmed.\nJudges WALKER and HUNTER concur.\n. On 1 October 1997 the legislature substituted \u201cUnauthorized Substances Taxes\u201d for \u201cControEed Substance Tax\u201d in the heading of Article 2D, Chapter 105.\n. We are aware the Fourth Circuit has held the North Carolina Drug Tax to constitute a criminal penalty. Lynn, 134 F.3d at 592. We are not, however, bound by that decision. Adams, 132 N.C. App. at 820, 513 S.E.2d at 589; see also State v. McDowell, 310 N.C. 61, 74, 310 S.E.2d 301, 310 (1984) (state courts should treat \u201cdecisions of the United States Supreme Court as binding and accord[] to decisions of lower federal courts such persuasiveness as these decisions might reasonably command\u201d).\n. Plaintiff also argues the Drug Tax is unconstitutional \u201cas applied.\u201d The single allegation in support of this claim is that the State has been \u201caggressive\u201d in enforcing the tax on illegal drugs. This cannot support a claim that the statute is unconstitutional \u201cas applied.\u201d This claim can be supported only upon a showing that the State has enforced the statute in some discriminatory or arbitrary manner. See generally Simeon v. Hardin, 339 N.C. 358, 451 S.E.2d 858 (1994); Grace Baptist Church v. City of Oxford, 320 N.C. 439, 358 S.E.2d 372 (1987); Kresge Co. v. Davis, 277 N.C. 654, 178 S.E.2d 382 (1971). There are no allegations that the State has engaged in any discriminatory or arbitrary practices with Drug Tax enforcement.", "type": "majority", "author": "GREENE, Judge." } ], "attorneys": [ "Attorney General Michael F. Easley, by Special Deputy Attorney General Norma S. Harrell, for the State.", "Wyatt Early Harris & Wheeler, L.L.P., by Scott F. Wyatt, William E. Wheeler, and Stanley F. Hammer, for plaintiff-appellant." ], "corrections": "", "head_matter": "JOAN GORE MILLIGAN, Individually and for the benefit and on behalf of all others similarly situated, Plaintiff v. STATE OF NORTH CAROLINA; THE NORTH CAROLINA DEPARTMENT OF REVENUE; MURIEL K. OFFERMAN, in her capacity as SECRETARY OF THE NORTH CAROLINA DEPARTMENT OF REVENUE; RICHARD W. RIDDLE, in his capacity as DIRECTOR OF THE CONTROLLED SUBSTANCE TAX DIVISION OF THE NORTH CAROLINA DEPARTMENT OF REVENUE; THE NORTH CAROLINA DEPARTMENT OF STATE TREASURER; HARLAN E. BOYLES, in his capacity as TREASURER OF THE STATE OF NORTH CAROLINA, Defendants\nNo. COA99-14\n(Filed 7 December 1999)\nDrugs\u2014 drug tax \u2014 not criminal penalty \u2014 procedural safeguards not required\nPlaintiff is not entitled to a refund of taxes she paid pursuant to N.C.G.S. \u00a7 105-113.111 for marijuana seized in her home by law enforcement officers because the drug tax is not a criminal penalty entitling defendant to the procedural safeguards of the Fifth and Sixth Amendments.\nAppeal by plaintiff from judgment filed 23 October 1998 by Judge B. Craig Ellis in Wake County Superior Court. Heard in the Court of Appeals 19 October 1999.\nAttorney General Michael F. Easley, by Special Deputy Attorney General Norma S. Harrell, for the State.\nWyatt Early Harris & Wheeler, L.L.P., by Scott F. Wyatt, William E. Wheeler, and Stanley F. Hammer, for plaintiff-appellant." }, "file_name": "0781-01", "first_page_order": 815, "last_page_order": 817 }