Guess He’ll Go Back To Selling Crack

Wednesday, March 21st, 2012

Back in 2005, Tennessee passed a farcical “crack tax” on controlled substances. It was similar to the Marijuana Stamp Act that the U.S. Supreme Court declared unconstitutional 40 years ago in that in order to comply with the law, you’d need to admit you were breaking other laws.

The Tennessee Supreme Court struck the law down in 2009. Technically, that meant that the people who had already paid the tax—either because they’d been assessed the tax after getting busted with drugs (in which case the state helped them pay it by taking their property), or because they were dumb enough to pay up voluntarily—were due a refund.

The problem is that Tennessee has a three-year statute of limitations on claims made against the state’s Department of Revenue. Now, common sense would suggest that the clock should start ticking on that deadline once the law has been declared constitutional. Right?

Not according to the Tennessee Court of Appeals (PDF). Some poor schmuck who paid $21,000 in crack taxes in 2005 won’t be getting any of his money ba , because, the court says, the statute of limitations ran out on his claim in 2008, even though the law was still enforced at the time.

Which means that anyone who didn’t file a constitutional challenge to the law in the first two years it was enacted is barred from recovering the money the state unconstitutionally confiscated from them.  Conveniently, this means the state will get to keep just about all of the $3 million it collected in its first two years of enforcing a tax that just about everyone knew was unconstitutional before it was passed.

(Hat tip to Drew Johnson, by way of Brett Carter.)

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22 Responses to “Guess He’ll Go Back To Selling Crack”

  1. #1 |  Reformed Republican | 

    The word of the day is “cunonstitutional.”

    Perhaps someone more clever than me can come up with a definition.

  2. #2 |  (B)oscoH | 

    And your whole state is mad at Lane Kiffin to ditching the Vols job? Everyone in that state should pay up!

  3. #3 |  Guess He’ll Go Back To Selling Crack « When Tennessee Pigs Fly | 

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  4. #4 |  Yizmo Gizmo | 

    “state will get to keep just about all of the $3 million it collected in its first two years of enforcing a tax that just about everyone knew was unconstitutional before it was passed.”

    Blatantly unconstitutional laws or practices, including curfews, are great ways to steal and violate rights when all else fails. Sure, they’re gonna get struck down, inevitably, but think of all the good times to be had by cops, corrupt city councils and government burglars during those precious few months or years.

  5. #5 |  SJE | 

    How convenient for the state.

    Speaking of legal issues:
    If Obamacare goes down in the SCOTUS, it would likely require overturning decades of “commerce clause” case law. I think that the case law stinks and should be overturned. At the same time, I doubt that that all the big govt conservatives will be so happy when they consider the consequences: a lot of the anti-drug laws would go too. Also, many conservative states big beneficiaries of the Federal govt, and may have to stand on their own if the Fed govt gets weaker.

  6. #6 |  30 year lawyer | 

    The biggest victim of the “war” on drugs is respect for the law. And, since I have to read their drivel, respect for judges. Arrogant aristocrats in service to the King.

  7. #7 |  TomG | 

    Is anyone actually surprised by this? I guess I’m too jaded.

  8. #8 |  C. S. P. Schofield | 

    Suffer not the Old King, under any name….

  9. #9 |  Brandon | 

    It’s not often the word “Kafkaesque” fits so perfectly, but it only seems to happen when dealing with government.

  10. #10 |  edmund dantes | 

    This follows the same reasoning the Judges on SCOTUS used to screw Lilly Ledbetter. Even though she was unaware of wage discrimination at the time it happened, the clock started ticking there at the initial discrimination. Also, bizarrely, the clock never reset even though each subsequent paycheck was also a discriminatory act.

    Now a criminal would never get away with that while arguing that only the initial dope deal should constitute the statue of limitations kickoff and it’s the only one that counts.

  11. #11 |  CSD | 

    “Crack tax is Whack”

  12. #12 |  Pi Guy | 

    Therre might be a state statute limiting petitions for refunds but I have to believe that there’s no statute of limitations on suing the State of TN for violation of their Constitutional Rights.

    I’m fairly certain that any enacted law that’s unconstitutional is essentially no law at all. The state took the guy’s money without any just cause. In fact, they are even more guilty criminally let alone even just worthy of a civil suit, I’d think, for enacting the un-law in the first place.

  13. #13 |  George | 

    Ahhh, Tennessee! Birthplace of the Klan. Death-place of King.

  14. #14 |  Pugnacious | 

    Ahhh, Tennessee! Birthplace of the Klan. Death-place of King.~ George

    Yes, I can remember Elvis’ death as if were just yesterday. Elvis is sadly missed in Memphis and throughout the world as well.

    Btw, one of the best Elvis impersonators, Mike Russell of Petal, Mississippi , is listed in the top twenty Elvis impersonators worldwide.

    He’s a better Elvis impersonator than was Andy Kaufman in his heyday.

  15. #15 |  George | 

    Pugnacious —

    Perhaps I could have said Kings – plural. There was also Martin Luther King, who was murdered in Tennessee.

    I guess MLK has his impersonators, too. But as is always the case, they’re just not the same.

  16. #16 |  Matt | 


    I don’t see why its equivalent. Ledbetter could have left the company, or asked for more money, or done anything besides sitting back and whining about how unfair life is. Not possible in this case.

  17. #17 |  edmund dantes | 

    It’s exactly equivalent if you look at the reasoning. What the company did to Ledbetter was illegal discrimination. The Supreme Court used the same idea to say she had no right to sue and get money back that this court has ruled. I would lay money that this court in some ways relied on that ruling.

    Don’t let your own biases keep you from seeing a wrong when it’s a wrong. It was wrong that it is happening to this guy just as it was a wrong that she was denied her own day in court for the same reasons. The same reasoning can be used to say that you are not owned any recompense if a company poisoned your drinking water (illegal) if it takes you longer than the statue of limitations to find out they did, but I guess that would be just whining about an unfair life for you to sue that company.

    It’s a very clever way by corporatist and statist judges to close off the courts from ordinary citizens. It looks like you are fine with that so long as it’s a company that did the damage even though they are both horrible rulings.

  18. #18 |  Matt | 


    I don’t see why it would need to go to court at all. Employment decisions are private agreements between private parties. If one party is dissatisfied they are free to ask to alter the terms of the agreement or terminate the agreement entirely, either by the company laying off the individual or the individual quitting for greener pastures. I don’t see why it makes me “statist” for saying the government shouldn’t pull a gun on these people.

  19. #19 |  Pugnacious | 

    I guess MLK has his impersonators, too. But as is always the case, they’re just not the same.~

    I know what you mean by the impersonators not being the same, but the new generations that had never experienced the real Elvis will have no basis for comparison. There is a Jerry Lee Lewis impersonator. I have not seen him “live,” but I’ve talked to others that say he’s better than the Real Jerry Lee.

    And I have wondered why there are no black impersonators from the Delta Blues/R&B era. Why no Screaming Jay Hawkins, Little Richard or Howling Wolf? The new generations have only YouTube to see these greats like Screaming Jay doing his “moon walking” I Put A Spell On You.

    But no one can EVER successfully impersonate a Bo Diddley.

  20. #20 |  Peter Ramins | 

    I know you really don’t want to hear this, but Tennessee seems really intent on toppling Florida for sheer ‘wtf’ stories.

  21. #21 |  supercat | 

    //#17 | edmund dantes | “It’s exactly equivalent if you look at the reasoning.” //

    I believe that in most states (someone tell me if I’m wrong), if a party X illegitimately imposes obstacles to party Y filing a claim against X, such action often restarts the process-of-limitations clock. Beyond any particular rules related to statues of limitations, this would also be a consequence of the “clean hands” and “unjust enrichment” principles.

    Suppose Fred Jones were allowed to file suit against Alan Smith on March 23, 2012, claiming that Alan Smith failed to make an agreed-upon rent payment in January of 1962. The statute of limitations essentially lets Alan Smith claim that he did make the payments, that he had evidence 50 years ago, and that the fact that he can’t produce evidence to support his case is Alan Smith’s fault for not having brought the case earlier. In practice, the Statute of Limitations doesn’t even require Alan to claim to have made payment, since (1) there’s likely no way Fred Jones could prove that Alan Smith could never have had evidence that would support his case, and (2) it’s likely that whether or not Alan Smith made the payment, his memory of what he did 50 years ago would be unreliable.

    The state was certainly aware that there were people had paid taxes under the statute which, if the statute is found to have been illegitimate, the payers would never have owed. Further, it was the actions of the state which prevent people from filing refund claims prior to the statute’s being struck down. As such, I see no legitimate basis for the state to claim statute of limitations protections in the extant case.

  22. #22 |  Militant Libertarian » Guess He’ll Go Back To Selling Crack | 

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