Full opinion text
ORDER NOWLIN, District Judge. The basic issue before this Court is whether a federal court can and should enjoin the collection of taxes under a tax system that violates the state’s own constitution, where the state’s own highest court, although holding the tax system unconstitutional, further declared that the declaration of unconstitutionality under the state constitution cannot be used as a defense by taxpayers to avoid payment or to seek refunds of taxes due and that will be due in the future under the unconstitutional system. I. The Background of This Issue In its most recent opinion relating to the school finance system, the Texas Supreme Court provides a detailed discussion of the controversy and the litigation that has occurred and continues to occur with respect to public education in the State of Texas. See Carrollton-Farmers Branch Indep. Sch. Dist. v. Edgewood Indep. Sch. Dist., 826 S.W.2d 489, 494-99 (Tex.1992) (“Edgewood III"). Twice before Edgewood III, The Texas Supreme Court had addressed the State’s school finance system. See generally: Edgewood Independent School District v. Kirby, 777 S.W.2d 391 (Tex.1989) (“Edgewood I"); and 804 S.W.2d 491 (Tex.1991) (“Edgewood II"). The Edgewood III decision pertains directly to the present cause of action. In Edgewood III, the main issue before the Texas Supreme Court was whether the current school finance system, as created by Senate Bill 351, was constitutional under the State Constitution. Edgewood III, at 493. Numerous school districts and individual citizens challenged the [state] constitutionality of this system. Id. The State of Texas and other school districts and citizens argued that the most recent enactment by the State legislature was constitutional under the State constitution. Id. Most, and practically all, of the taxpayers in this suit were not before the Texas Supreme Court in Edgewood III, but the effect of the Edgewood III decision was upon all of the property taxpayers in the state. The Texas Supreme Court held that this legislative enactment violated two separate provisions of the State constitution. Id. at 493. The Texas Supreme Court summarized the school finance system created by Senate Bill 351: ... Senate Bill 351 retains the same historical reliance upon local ad valorem taxes to fund most of the state cost of education. To ameliorate disparities among school districts due to local property wealth, Senate Bill 351 creates 188 county education districts. Most of these CEDs consist of school districts in a single county, although some of them include school districts in more than one county. CEDs have only tax functions; they perform no educational duties.... CEDs do not even determine their own tax rate. The rate is effectively prescribed by statute.... The CEDs sole function is to levy, collect, and distribute property taxes as directed by the Legislature. There is an overall “revenue limit” for local school districts, defined as an amount equal to 110 percent of the state and local funds guaranteed ... per student to each school district taxing at a [specified rate].... This limit does not appear to be uniform, comprehensive or absolute.... [I]t is not a single amount which applies equally to all school districts, nor does it encompass all local revenues, nor does it absolutely bar transgression. Each district evidently has its own revenue limit, annually estimated by and certified to that district by the commissioner of education. Finally, the commissioner of education determines the State’s share of the costs of ... by subtracting what the district is due from the CED funds and what the district has collected from state available school funds. [The commissioner] then grants and approves a warrant for the difference. If state appropriations prove insufficient, however, the commissioner will reduce each district’s allocation. Thus, since Edgewood I, some aspects of the public school system have been changed, but others have not.... The State has moved from encouraging school districts to contribute local tax revenue, to conditioning state funds on such contribution, to mandating a specified contribution_ It has accomplished this, however, by requiring the taxpayers in one school district, without a vote of approval, to fund the schools in other districts over which they have no control. These changes present the constitutional issues now before us. Edgewood III, at 498-99 (citations and footnotes omitted). II. The Parties and Issues of this Case Various taxpayers affected by this tax system created by Senate Bill 351 seek injunctive and declaratory relief regarding the taxes due for the 1992 year. These taxpayers also seek declaratory relief regarding the taxes due and paid for the 1991 year. This court has previously certified this action as a class action with respect to the plaintiffs and the defendants. As a practical matter, the plaintiffs face a state remedy that is unavailing and a dilemma that procedurally is so tangled as to make Gordian’s Knot look like a simple square knot. As Alexander’s sword remedied Alexander’s own dilemma, the United States Constitution provides the plaintiffs with a remedy. Because of the complexities and seriousness of the issues involved in this case, a detailed discussion of the legal principles is warranted. A. Jurisdictional Issues The defendant County Education Districts and the defendant-intervenors Texas Education Agency and the Attorney General of the State of Texas raise numerous jurisdictional arguments that this Court either lacks jurisdiction to hear these causes of action or should abstain from hearing these causes of action. This Court will address all of the issues raised by the defendants. If the Court finds that this action is not barred by 28 U.S.C. § 1341, then this Court has jurisdiction to hear this cause of action under the general federal jurisdiction statute and under the more specific civil rights jurisdiction statute. 28 U.S.C. Section 1331 states: The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States. 28 U.S.C. § 1331. More specifically, 28 U.S.C. Section 1343 states in pertinent part that: (a) The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person: ... (3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States; .... 28 U.S.C. § 1343. Under the jurisdiction conferred by 28 U.S.C. § 1343(a)(3), there is no distinction between personal liberties and property rights. Lynch v. Household Finance Corporation, 405 U.S. 538, 542-543, 92 S.Ct. 1113, 1117, 31 L.Ed.2d 424 (1972). The Fifth Amendment to the Constitution of the United States guarantees in pertinent part that: ... nor shall any person ... be deprived of life, liberty, or property, without due process of law; ... U.S. Const. Amend. 5. The Fourteenth Amendment of the United States Constitution states in pertinent part: Section 1.... No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. U.S. Const. Amend. 14 § 1. The due process rights guaranteed by both the Fifth Amendment and the Fourteenth Amendment protect individuals as extensively from the state government, as from the national government. Curry v. McCanless, 307 U.S. 357, 370, 59 S.Ct. 900, 907, 83 L.Ed. 1339 (1939). The specific dictates of due process generally requires three factors to be considered: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute safeguards; and finally, the Government’s interest, including the function involved and the fiscal and the administrative burdens that the additional or substitute procedural requirement would entail. Mathews v. Eldridge, 424 U.S. 319, 334-335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976); see also Memphis Light, Gas & Water v. Craft, 436 U.S. 1, 17-18, 98 S.Ct. 1554, 1564, 56 L.Ed.2d 30 (1978). The Supreme Court has recently interpreted the Due Process Clause as it applies to the Tax Injunction Act. Writing for a unanimous Court, Justice Brennan affirmatively stated: To satisfy the requirements of the Due Process Clause, ... the State must provide taxpayers with, not only a fair opportunity to challenge the accuracy and legal validity of their tax obligation, but also a “clear and certain remedy” for any erroneous or unlawful tax collection to ensure that the opportunity to contest the tax is a meaningful one. McKesson v. Division of Alcoholic Beverages & Tobacco, 496 U.S. 18, 39, 110 S.Ct. 2238, 2251, 110 L.Ed.2d 17 (1990) (footnote and citations omitted). Indeed,: Because exaction of a tax constitutes a deprivation of property, the State must provide procedural safeguards against unlawful exactions in order to satisfy the commands of the Due Process Clause. Id., 496 U.S. at 36, 110 S.Ct. at 2250. The Defendants all argue that the issue before this Court is purely one of state law. The Defendants argument is incorrect. Many property interests attain federal constitutional status because of their initial recognition and protection by state law; and, the procedural guarantees of the Fourteenth Amendment apply whenever the State seeks to remove or significantly alter that protected status. See Paul v. Davis, 424 U.S. 693, 710-711, 96 S.Ct. 1155, 1165, 47 L.Ed.2d 405 (1976). Although the underlying substantive interest is created by an “independent source such as state law,” federal constitutional law determines whether that interest rises to the level of a “legitimate claim of entitlement” protected by the Due Process Clause. Memphis Light, Gas & Water Division v. Craft, 436 U.S. 1, 9, 98 S.Ct. 1554, 1560, 56 L.Ed.2d 30 (1978) (citations omitted). The Fourteenth Amendment places procedural constraints on government action that deprives interests recognized as “property” within the meaning of the Due Process Clause. Id. Additionally, when applying the Due Process Clause of the Fourteenth Amendment, the federal courts do not distinguish among different types of property. North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 608, 95 S.Ct. 719, 723, 42 L.Ed.2d 751 (1975). In McKesson, the Supreme Court in no way limited its holding to state taxes that are only in violation of the United States Constitution. The Due Process Clause applies to any unlawful collection of taxes. After invalidating a state tax scheme on Commerce Clause grounds, the McKesson Court left the state courts with the initial duty upon remand of crafting “appropriate relief in accord with both federal and state law.” McKesson, 496 U.S. at 32 n. 16, 110 S.Ct. at 2248 n. 16. In an action reversing the holding of a State’s highest court that relief could not be had in any suit at law from allegedly [federal] unconstitutional conduct, the United States Supreme Court explained that the practical effect of the decision by the State’s highest court deprived the plaintiff of property without affording the plaintiff any opportunity to be heard. Brinkerhoff-Faris Trust & Savings Co. v. Hill, 281 U.S. 673, 678, 50 S.Ct. 451, 453, 74 L.Ed. 1107 (1930). Although the state courts determine the adjective and substantive law of the state, the state courts must, in so doing, accord the parties due process. Id., 281 U.S. at 682, 50 S.Ct. at 454. Whether acting through its judiciary or through its Legislature, a state may not deprive a person of all existing remedies for the enforcement of a right, which the state has no power to destroy, unless, there is, or was, afforded to him some real opportunity to protect it. Id., 50 S.Ct. at 454-455. The guarantee of due process under the federal constitution extends to state action through the State’s judicial, legislative, executive, or administrative branches. Id., 281 U.S. at 680, 50 S.Ct. at 454. B. Class Certification Issues This portion of the opinion and judgment is to clarify and reiterate this Court’s certification of a class action, following an evidentiary hearing. Rule 23 of the Federal Rules of Civil Procedure provides the guidelines and standards for certifying and maintaining class actions. To qualify as a class action, the proposed class must initially meet all four requirements of subdivision (a) of Rule 23, commonly referred to as “numerosity,” “commonality,” “typicality,” and “adequacy of representation”: (a) Prerequisites to a Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all only iff:] (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class. Fed.R.Civ.P. 23(a). The proposed plaintiff class meets all four of the requirements set out in subdivision (a). The Supreme Court has upheld the designation of a nationwide class action despite arguments concerning such a large and geographically diverse class. See Califano v. Yamasaki, 442 U.S. 682, 701-702, 99 S.Ct. 2545, 2558, 61 L.Ed.2d 176 (1979). The Court stated that the limitations on class size that are associated with (b)(3) actions do not apply to (b)(2) actions. Id. The Court also noted that a nationwide class is consistent with equity jurisprudence, because the scope of the relief depends upon the alleged violation and not the geographical extent of the class. Id. When asked to certify a nationwide class, a federal court should ensure that nationwide relief is appropriate and that such certification would not improperly interfere with litigation of similar issues in other districts. Id. Numbering in the millions, this class is clearly so numerous that joinder of all members would be impracticable. In Califano, the Supreme Court noted that class relief is peculiarly appropriate when: The issues involved are common to the class as a whole. They turn on questions of law applicable in the same manner to each member of the class. The ultimate question is [the same] ... It is unlikely that differences in the factual background of each claim will affect the outcome of the legal issue. And the class-action device saves the resources of both the courts and the parties by permitting an issue potentially affecting every [class member] to be litigated in an economical fashion under Rule 23. Id., 442 U.S. at 701, 99 S.Ct. at 2557. “Commonality” requires that the resolution of common issues affect all or most of the class members. Jenkins v. Raymark Industries, Inc., 782 F.2d 468, 469 (5th Cir.1986) (citations omitted). The main dispute is a legal issue that is common to the entire class with a requested remedy that is also common to the class. “Typicality” concerns primarily the legal and remedial grounds for the claims of the named and unnamed members. Id. (citations omitted). A strong similarity of legal theories will satisfy the typicality requirement even if substantial factual distinctions exist between the named and unnamed class members. Appleyard v. Wallace, 754 F.2d 955, 958 (11th Cir.1985) (citations omitted). When the similarity of legal theories is so strong that it overrides whatever factual differences might exist and mandates a determination that the named members’ claims are typical of those of the class. Id. The legal theory for relief asserted by the representative class is typical of the claims of the class. The “adequacy of representation” requirement concerns both the class representatives and the class counsel. Jenkins, 782 F.2d at 469. This requirement mandates an inquiry into the zeal and competency of the class counsel and the ability of the named members to take an active role in and control of the litigation to protect the unnamed members. Horton v. Goosecreek Independent School District, 690 F.2d 470, 484 (5th Cir.1982) cert. denied, 463 U.S. 1207, 103 S.Ct. 3536, 77 L.Ed.2d 1387 (1983). The attorneys for the representative parties and the representative parties will fairly and adequately protect the interests of the class. The plaintiff taxpayers seeking a class action have met their burden of proof on the class certification issues. Id. at 486 (citation omitted). “Judges should err in favor of certification.” Id. at 487. A large class may be certified even if unanimity of opinion between members can never be achieved. See id. District courts have great discretion in certifying and maintaining a proposed class action, and such a decision may only be reversed upon a showing of abuse of discretion.” Montelongo v. Meese, 803 F.2d 1341, 1351 (5th Cir.1986) cert. denied 481 U.S. 1048, 107 S.Ct. 2179, 95 L.Ed.2d 835 (1987). If the action meets all four of the requirements set out in subdivision (a), the action may be maintained as a class action if the action also conforms to at least one of the three requirements of subdivision (b). Specifically, this action should proceed as a “(b)(2)” class action. Subdivision (b)(2) of Rule 23 permits the certification of a class if: (2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; .... Fed.R.Civ.P. 23(b)(2). The plaintiffs in this class action seek both declaratory and in-junctive relief on grounds that are generally applicable to the class and any relief would be appropriate to the class as a whole. As a Rule 23(b)(2) class, there is no right to opt out of class actions that proceed to a final judgment by the court. See Kincade v. General Tire & Rubber Co., 635 F.2d 501, 506-507 (5th Cir.1981) (holding that this prohibition also applies to a settlement of a(b)(2) class action). There are two other types of class actions that are maintainable, pursuant to subdivision (b). Fed.R.Civ.P. 23(b)(l and 3). This class action could probably be properly maintained under these other two classifications, as well, but this Court does not so decide. Rule 23 does not require notice be given to the members of a(b)(2) or (b)(1) class actions. When a class has been certified under Rule 23(b)(2), absent class members are not required to receive notice or to have the opportunity to opt out of the suit. See Equal Employment Opportunity Commission v. General Telephone Co., 599 F.2d 322, 334 (9th Cir.1979) affirmed 446 U.S. 318, 100 S.Ct. 1698, 64 L.Ed.2d 319 (1980); see also Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177, n. 14, 94 S.Ct. 2140, 2152, n. 14, 40 L.Ed.2d 732 (1974). No notice is required for the absent members of either the plaintiff class or the defendant class in this action. The defendants in this action have also been certified as a class under Rule 23(b)(2) and (b)(1). If a class is certified and maintained through the final judgment in an action, Rule 23 imposes certain requirements on the contents of judgments: (3) The judgment in an action maintained as a class action under subdivision (b)(1) or (b)(2) whether or not favorable to the class, shall include and describe those whom the court finds to be members of the class.... Fed.R.Civ.P. 23(c). In a (b)(1) or (b)(2) class action, the judgment needs only describe the members of the class and need not specify the individual members. Fed. R.Civ.P. 23, Notes of the Advisory Committee to the 1966 Amendments to Rule 23(c)(2). C. The County Education Districts The Texas Education Code provides for the creation of County Education Districts: (a) Each school district in the state is included in a county education district. A county education district is composed of all school districts that are assigned to a single county in the 1990-1991 Texas School Directory published by the Central Education Agency, except as provide by Subsection (b) of this section. (b) The school districts that are assigned to a county in each of the following groups of counties in the 1990-1991 Texas School Directory published by the Central Education Agency constitute a county education district: .... Tex.Educ.Code.Ann. § 20.941 (West Supp. 1992). The Code also states the general authority and purpose of each of the CEDs: Each county education district is an independent school district established by the consolidation of the local school districts in its boundaries for the limited purpose of exercising a portion of the taxing power previously authorized by the voters in those school districts and of distributing revenue of the county education district to those districts. Id. at § 20.942 (emphasis added). More specifically, the trustees of each County Education District: ... shall constitute a body corporate and in the name of the school district may acquire and hold real and personal property, sue and be sued, and receive bequests and donations or other moneys or funds coming legally into their hands. See id. at §§ 20.943(c)(1) and 23.26(a). The CEDs are provided with all rights and titles to the personal property of the district. See id. at §§ 20.943(c)(3) and 23.26(c). Additionally, each of the CEDs “may enter into contracts and may employ personnel only as necessary for the performance of the duties of the district.” Id. at § 20.-943(d). Significantly for Eleventh Amendment issues, the Texas Education Code requires that: Each component school district shall bear the cost of assessing and collecting taxes levied by the county education district, and shall have the legal authority to take actions on behalf of the county education district to ensure the efficient collection of these taxes. Id. at § 20.945. The local school districts, therefore, are responsible for the operating costs of the County Education Districts. The costs and expenses of the CEDs do not come from the state Treasury. Rather, the funding for the CEDs comes entirely from the component school districts within each county education district. Additionally, the revenue collected and distributed by each county education district comes entirely from the taxes collected by the local school districts that are within that particular county education district. The local school districts, individually, are granted the only legal authority to take actions on behalf of the CEDs to collect the taxes levied by the CEDs. Each of the CEDs is governed by a board of trustees made up of trustees of the component school districts which select their own trustees to serve on the CEDs. See Tex.Educ.Code Ann. § 20.943 (West Supp.1992). The Attorney General has stated: “County Education Districts are not considered state agencies therefore they are not entitled to representation by the Office of the Attorney General. None of the CEDs have money specifically allocated for legal representation.” See Motion to Intervene, Motion to Dismiss, Answer and Affirmative Defenses on Behalf of the Texas Attorney General and the Texas Education Agency, at 2 (filed February 26, 1992). Nevertheless, the Assistant Attorney General did argue that the CEDs are merely arms of the state. The State of Texas does have some control over the CEDs as shown by the discretionary and permissive power of the commissioner of education to adopt rules relating to the operation and administration of the CEDs. See Tex.Educ.Code Ann. at § 20.943(e). The Legislature of the State of Texas has also made known its intent concerning the continued existence of the county education districts: It is the intent of the legislature to abolish county education districts if the voters adopt a constitutional amendment authorizing the redistribution among other school districts of taxes levied and collected by a school district. Id. at § 20.948. Implicitly if not explicitly, this legislative enactment shows that the Legislature was aware of the inability of the State of Texas, itself, to redistribute the taxes collected within one school district among other school districts, unless the voters of Texas approve a constitutional amendment that would authorize such a system. This statutory provision also demonstrates the State’s awareness that the school districts cannot, without voter approval, perform such a redistribution. The CED taxes do not ever go into the state treasury. Essentially what happens is that the taxes are collected within each county education district and then the taxes are redistributed to the component local school districts within the county education district. III. Eleventh Amendment Issues A. State or Local Governmental Entity A major issue is whether this suit is essentially a suit against the state. Such a suit is generally barred by the 11th Amendment to the Constitution which states that: The Judicial Power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. U.S. Const. Amend. 11. Despite its the clear language, the Eleventh Amendment does apply to suits by citizens of a state against their own state. See Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890). In a case involving a school district, the Supreme Court of the United States has stated: The bar of the Eleventh Amendment to suit in federal courts extends to States and state officials in appropriate circumstances, ..., but does not extend to counties and similar municipal corporations. See Mt. Healthy City School District v. Doyle, 429 U.S. 274, 280, 97 S.Ct. 568, 572, 50 L.Ed.2d 471 (1977) (citations omitted). The Court explained: “The issue turns on whether [the entity being sued] is to be treated as an arm of the State partaking of the State’s Eleventh Amendment immunity, or is instead to be treated as a municipal corporation or other political subdivision to which the Eleventh Amendment does not extend.” Id. “The answer depends, at least in part; upon the nature of the entity created by state law.” In Mt. Healthy City School District, the Court concluded that a local school district was not entitled to assert Eleventh Amendment immunity where the district had extensive powers, including: to issue bonds; to levy taxes within certain restrictions of state law; and where the state law excluded school districts from being part of the “State.” Id. 429 U.S. at 280-281, 97 S.Ct. at 572-573. The Court held that the school district did not have any such immunity, even though the district both received “a significant amount of money from the State” and was “subject to some guidance from the State Board of Education.” Id. The Fifth Circuit considers the following factors in determining whether an entity is an arm of the state or a local governmental entity: (1) whether state law views the entity as an arm of the state; (2) the source of the entity’s funding; (3) the degree of local autonomy retained; (4) whether the entity is concerned primarily with local, as opposed to statewide, problems; (5) whether the entity has authority to sue and be sued in its own name; (6) whether the entity retains the right to hold and use property. See Stem v. Ahearn, 908 F.2d 1, 4 (5th Cir.1990) (citations omitted) cert. denied — U.S. —, 111 S.Ct. 788, 112 L.Ed.2d 850 (1991); see also Minton v. St. Bernard Parish School Board, 803 F.2d 129, 131 (5th Cir.1986); see also Farias v. Bexar County Board of Tr. for M.H.M.R. Serv., 925 F.2d 866 (5th Cir.1991) cert. denied — U.S. —, 112 S.Ct. 193, 116 L.Ed.2d 153 (1991). A characterization by a State’s courts that a school district or other political subdivision is an “agency of the state” does not amount to an assertion that such entities are “arms of the state” within the meaning of the Eleventh Amendment. See Minton, 803 F.2d at 131. Under the six factors listed above, the 188 county education districts are political subdivisions of the state and are not “arms of the state” with respect to the Eleventh Amendment. The state statutory law clearly views the CEDs as political subdivisions. The Texas Supreme Court views the CEDs as arms of the State. Although most of their acts are mandated by state law, the CEDs are, on the whole, political subdivisions of the state. The funding of each CED comes entirely from the local school districts that compose each CED. All of the taxes collected and distributed by the CEDs come from within their own boundaries. The CEDs receive no money directly from the State. Although the function of the CED is primarily established by state law, the CEDs nevertheless must engage in many activities that are within their own discretionary power to do. A concern of the CEDs is statewide in the sense of the overall school funding scheme, but each CED’s main concern is local in that all • of an individual CED’s activities relate to the local school districts within the CED. The CEDs do have the power to sue and be sued in their own name. The CEDs also have the right to hold and use property- Also, although characterized as “arms” of the State of Texas, the county education districts are no more than a political subdivision of the State of Texas. Indeed, in its Edgewood III opinion, the Texas Supreme Court stated that the State Legislature has the “power to create entities like the CEDs ... as school districts.” See Edgewood III, at 504 (emphasis added). School districts are political subdivisions of the State. The Texas Education Code states that the CEDs: are a “body corporate;” may “sue and be sued;” may “enter into contracts;” and, are run by the board members of the component school districts. In a similar situation, the Fifth Circuit has held that an institution comparable to a county education district was not an “arm of the state” entitled to protection under the Eleventh Amendment. See Farias, 925 F.2d at 875. In Farias, the government institution was created by local entities and its trustees were appointed from among the qualified voters of the region. Id. Likewise, each CED is composed of its component local school districts and the trustees of each CED are appointed by its component local school districts from their own trustees. On behalf of the State of Texas, the Attorney General filed a Motion to Intervene to allow the Attorney General of Texas and the Texas Education Agency to intervene in the Connell Estate case (92-CA-081). Among other things, the Attorney General argued that the “County Education Districts are not considered state agencies therefore they are not entitled to representation by the Office of the Attorney General.” Also, the Attorney General explicitly states, “None of the CEDs have money specifically allocated for legal representation.” On March 11, 1992, the Attorney General filed an Amended Motion to Intervene in this suit. The amended motion contains a copy of the Revised Interlocutory Order of the 250th District Court of the State' of Texas which that court entered pursuant to the mandate of the Texas Supreme Court. The state district court stated that for the purposes of the litigation before that court, the members of the CEDs shall be represented by the Attorney General. The CEDs do have funds for legal representation. Representing many of the CEDs, numerous attorneys have appeared before this Court. The Texas Education Code requires that the component local school districts shall reimburse the legal expenses incurred by the CEDs. The Eleventh Amendment in no way prohibits this Court from exercising jurisdiction over the 188 County Education Districts. Alternatively, if the CEDs are merely “arms of the state,” the prospective equitable relief ordered does not interfere with the Eleventh Amendment. The defendants also argue that the main issue in this action concerns only state law. In a 1984 decision, the Supreme Court declared: A federal court’s grant of relief against state officials on the basis of state law, whether prospective or retroactive, does not vindicate the supreme authority of federal law. Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 106, 104 S.Ct. 900, 911, 79 L.Ed.2d 67 (1984). Contrary to the arguments by the defendants, the relief sought from this Court is based upon the federal constitutional rights of the plaintiffs and not upon state law. The five justice majority in Pennhurst stated that “suits may not be predicated on the basis of state statutes that command purely discretionary duties.” Id. 465 U.S. at 110, 104 S.Ct. at 913. To the extent injunctive relief is sought, “an error of law by state officers acting in their official capacities will not suffice to override the sovereign immunity of the State where the relief is effectively against it.” Id. 465 U.S. at 113, 104 S.Ct. at 915. The Pennhurst majority did expressly limit its decision by noting: We do not decide whether the District court would have jurisdiction undethis reasoning to grant prospective relief on the basis of federal law, but we note that the scope of any such relief would be constrained by principles of comity and federalism. “Where as here, the exercise of authority by state officials is attacked, federal courts must be constantly mindful of the ‘special delicacy of the adjustment to be preserved between federal equitable power and State administration of its own law.’ ” Id. 465 U.S. at 104 n. 13, 104 S.Ct. at 910 n. 13. . The Pennhurst majority remanded the case to the circuit court to determine if the district court’s judgment could be sustained upon the federal constitutional provisions and law used as an additional or alternative justification for its decision. Id. 465 U.S. at 125, 104 S.Ct. at 921. Also, the Penn-hurst decision involved the exercise of purely discretionary state law duties by state officials at a state hospital, and the state law was not determined to be invalid by the state courts until seven years after the federal suit was filed and four years after the end of the trial of the federal suit. See generally id., 465 U.S. at 107 n. 15, 104 S.Ct. at 911 n. 15. The majority did not want to override the Eleventh Amendment immunity of a state based only on an allegation that official conduct is contrary to a discretionary state statute. Id., 465 U.S. at 106, 104 S.Ct. at 911. For conduct that violates the state’s constitution as opposed to a state statute, certainly for such conduct that would consequently violate the United States Constitution, Pennhurst is not controlling. Because this Court finds that the failure of the State of Texas to provide for post-payment relief from the concededly [state] unconstitutional taxes violates the Due Process clauses of the Fifth and Fourteenth Amendments, this Court is not seeking- to enforce the state constitution or the state law upon the state. Instead, this Court hqlds that it does have jurisdiction to enforce the federal constitutional rights under the Due Process Clause guaranteed to all citizens under the Fifth and Fourteenth Amendments and 42 U.S.C. Section 1983. The question remaining is whether the principles of comity, federalism, and the basic principles concerning equitable relief should preclude this Court from enjoining any action by the State of Texas, its officials, the county education districts, or the local school districts. Unlike Pennhurst, the instant case does not involve an issue of whether state officials are conforming their conduct to a purely discretionary state law. The instant case involves a funding scheme that leaves much less discretionary power to the CEDs and the local school districts. The issue to be decided by this Court is whether the continued enforcement of a funding scheme that is concededly unconstitutional under the State’s own constitution violates the Due Process clause of the Fifth and Fourteenth Amendments and 42 U.S.C. Section 1983, where the State’s own highest court has declared that the State’s taxpayers may not use that infirmity as a defense to either avoid paying or seeking refund of the taxes due under the scheme. The rights guaranteed under the Due Process Clause do indeed seem more compelling when a tax system does not merely violate a state statute but, instead, violates the state’s own constitution. The defendants’ argument that this Court should not order any postpayment relief of the previously paid taxes also tends to compel this court to reach the conclusion that prepayment relief may be the only available method in which the plaintiff taxpayers would be able to vindicate their rights guaranteed under the United States Constitution and the Civil Rights Act. The defendants argue that any postpayment relief of these taxes paid by means of a refund would cause severe practical problems for the local school districts. The plaintiffs have argued that a postpayment remedy need not be limited to a full refund of taxes paid but could instead use a method of a credit against future taxes. B. Actions Against State Officials In a recent case, the United States Supreme Court expressly rejected the argument that Eleventh Amendment immunity existed for state officials for their acts under color of state law within the official’s authority and necessary to the performance of governmental functions, and the Court held that no such immunity existed for such officials so acting. See Hafer v. Melo, — U.S. -, -, 112 S.Ct. 358, 363, 365, 116 L.Ed.2d 301 (1991). The Court reiterated its earlier holding: that Congress enacted § 1983 “ ‘to enforce provisions of the Fourteenth Amendment against those who carry a badge of authority of a State and represent it in some capacity, whether they act in accordance with their authority or misuse it.’ ” Id. (quoting Scheuer v. Rhodes, 416 U.S. 232, 243, 94 S.Ct. 1683, 1689, 40 L.Ed.2d 90 (1974)) (quoting Monroe v. Pape, 365 U.S. 167, 171-172, 81 S.Ct. 473, 475-476, 5 L.Ed.2d 492 (1961)). The requirement of action “under color of” state law of § 1983 is just as broad as the “state action” requirement of the Fourteenth Amendment. Id. (citing Lugar v. Edmondson Oil Co., 457 U.S. 922, 929, 102 S.Ct. 2744, 2749, 73 L.Ed.2d 482 (1982)). If the CEDs are not political subdivisions of the State, the board members of the CEDs would clearly be state officials who would be subject to declaratory and injunctive relief. It is beyond dispute that federal courts have jurisdiction over suits to enjoin state officials from interfering with federal rights.” Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96 at n. 14, 103 S.Ct. 2890, 2899 at n. 14, 77 L.Ed.2d 490 (1983) citing Ex Parte Young, 209 U.S. 123, 160-162, 28 S.Ct. 441, 454-455, 52 L.Ed. 714 (1908). Federal district courts can clearly prospectively enjoin state officials from engaging in conduct that violates the federal constitution. See e.g., Edelman v. Jordan, 415 U.S. 651, 664, 94 S.Ct. 1347, 1356, 39 L.Ed.2d 662 (1974). In an injunctive or declaratory action based upon a federal right, the State’s immunity can be overcome by naming state officials as defendants. See Kentucky v. Graham, 473 U.S. 159, 169, n. 18, 105 S.Ct. 3099, 3107, n. 18, 87 L.Ed.2d 114 (1985) citing Pennhurst and Ex Parte Young. In an action where the Court upheld the district court’s injunction against a state official to restrain the official from collecting a state tax, the Supreme Court reiterated the well-recognized rule, under Ex Parte Young, that the Eleventh Amendment does not bar a suit to restrain unconstitutional action by a state official. See Georgia Railroad & Banking Co. v. Redwine, 342 U.S. 299, 304, 72 S.Ct. 321, 324, 96 L.Ed. 335 (1952). Any action by a state official that is purportedly authorized by an [federal] unconstitutional state enactment cannot be taken in an official capacity since the state authorization for such action is a nullity. See Papasan v. Allain, 478 U.S. 265, 276, 106 S.Ct. 2932, 2939, 92 L.Ed.2d 209 (1986). The Texas Supreme Court’s decree as to the unavailability of a defense or remedy for taxpayers based upon its decision is in effect tantamount to a state enactment that is void under the federal constitution, and therefore the effective authorization is a nullity. “The State has no power to impart to [a state official] any immunity from responsibility to the supreme authority of the United States.” Ex Parte Young, 209 U.S. at 160, 28 S.Ct. at 454; see also Papasan v. Allain, 478 U.S. at 277, 106 S.Ct. at 2939. The United States Constitution does not distinguish between whether the State’s purported grant of immunity came from the State legislature or the State’s highest court. The State cannot immunize conduct that violates the United States Constitution. As political subdivisions, the county education districts and their trustees may be subject to suit under § 1983 for damages if the actions by those districts in the future represents the State’s own policy or custom, whether made by the State’s lawmakers or by others whose edicts may fairly be said to represent official policy. See Monell v. New York City Department of Social Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 2037, 56 L.Ed.2d 611 (1985); see also Kentucky v. Graham, 473 U.S. at 166, n. 12, 105 S.Ct. at 3105, n. 12. The policy and plans approved by the officials of the Texas Education Agency could subject the county education districts to damages actions for future action that violates the United States Constitution. Local governmental units can be sued directly for damages and injunctive or declaratory relief. See Kentucky v. Graham, 473 U.S. at 167, n. 14, 105 S.Ct. at 3106, n. 14. The implementation of state policy may be reached in federal court because actions against state officials in their official capacities for prospective relief do not violate the Eleventh Amendment. See id. IV. Abstention Issues The Defendants have raised the issue of abstention as a defense to this Court’s exercise of jurisdiction over the subject matter of this case. At the second hearing, various defendants responded that this case does not fall directly under any of the current abstention doctrines but that the court should, nevertheless, abstain. Although the various abstention arguments probably need not be considered by a district court in resolving cases involving state taxes, this Court will, nevertheless, address the reasons for and against abstention. The United States Supreme Court has recognized three main types of abstention, Pullman, Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943), and Younger. A. Pullman In Pullman, the Supreme Court declared that “[p]roper exercise of federal jurisdiction requires that controversies involving unsettled questions of state law be decided in the state tribunals preliminary to a federal court’s consideration of the underlying constitutional questions.” City of Meridian v. Southern Bell Telephone & Telegraph Co., 358 U.S. 639, 640, 79 S.Ct. 455, 456, 3 L.Ed.2d 562 (1959) citing Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). Abstention under Pullman is especially proper where the questions of state law are “enmeshed” with federal questions. Id., 358 U.S. at 640, 79 S.Ct. at 456-457. To abstain under Pullman, “a federal court must find that the case presents a difficult, obscure, or unsettled issue of state law, the resolution of which could eliminate or substantially narrow the scope of the federal constitutional issue.” See Nissan Motor Corp. In USA v. Harding, 739 F.2d 1005, 1008 (5th Cir.1984). “Federal preemption presupposes the availability of an alternative state forum which can afford full and fair relief.” Id. at 1010. A delay that might significantly impair [federal] constitutional rights weighs against application of the abstention doctrine. Id. at 1011. If the state court action does not hold a realistic promise of avoiding the [federal] constitutional issues, “[t]he piecemeal results and delays attendant to abstention should not be imposed on the parties” in the federal action. Ross v. Houston Independent School District, 559 F.2d 937, 942 (5th Cir.1977). In the present action, there are no unsettled questions of state law. The Texas Supreme Court has forcefully and clearly expressed the relevant state law. Also, as the defendants, including the State, have made clear in their arguments opposing any refund of the taxes already paid under this system, the ability of the plaintiff taxpayers to recover [federal] unconstitutionally collected taxes would clearly be significantly, if not totally, impaired once the taxes have already been paid. B. Burford The Burford abstention may apply when a federal litigant seeks a review in federal court of the reasonableness under state law of a state agency’s action. Colorado River Water Conservation District v. United States, 424 U.S. 800, 814-815, 96 S.Ct. 1236, 1245, 47 L.Ed.2d 483 (1976). Recently, the United States Supreme Court has summarized the principle of abstention known as the Burford doctrine: Where timely and adequate state court review is available, a federal court sitting in equity must decline to interfere with the proceedings or orders of state administrative agencies: (1) when there are “difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case then at bar;” or (2) where the “exercise of federal review of the question in a case and in similar cases would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern.” New Orleans Public Service, Inc. v. Council of City of New Orleans, 491 U.S. 350, 361, 109 S.Ct. 2506, 2514, 105 L.Ed.2d 298 (1989) (emphasis added) citing to and quoting from Colorado River Water Conservation District, 424 U.S. at 814, 96 S.Ct. at 1244. As discussed later in this opinion, there is no timely and adequate state court review available to the plaintiffs in this cause. If such a remedy were available, not only should federal courts probably abstain under Burford but federal district courts would be unable to exercise either declaratory or injunctive relief in this cause because of the Tax Injunction Act, 28 U.S.C. § 1341. Similarly to the New Orleans Public Service decision, the present action does not involve a state law claim, nor does the action involve the assertion that the federal claims are in any way entangled in a complicated area of state law that must be resolved before the federal case can proceed. Id. (citation omitted). Burford does not require abstention where complex state administrative processes are involved or where a potential conflict with state regulatory law or policy may occur. Id. citing Colorado River Water Conservation District, 424 U.S. at 815-816, 96 S.Ct. at 1245. There is no doctrine requiring abstention merely because resolution of the federal question may overturn a state policy. Id. citing to Zablocki v. Redhail, 434 U.S. 374, 380, n. 5, 98 S.Ct. 673, 678, n. 5, 54 L.Ed.2d 618 (1978). C. Younger The Supreme Court has established a three-part test to determine if the Younger abstention is appropriate: (1) Is there a pending state judicial proceeding? (2) Does the action implicate important state interests? (3) Is there an adequate opportunity in the state proceedings to raise [federal] constitutional challenges? Middlesex County Ethics Committee v. Garden, Etc., 457 U.S. 423, 432, 102 S.Ct. 2515, 2521, 73 L.Ed.2d 116 (1982). If the constitutional claims of the parties can be determined in the state proceedings and if there is no showing of bad faith, harassment, or some other extraordinary circumstance that would make abstention appropriate, the federal courts should abstain. Id., 457 U.S. at 435, 102 S.Ct. at 2523. “The pertinent inquiry is whether the state proceedings afford an adequate opportunity to raise the constitutional claims.” Id., 457 U.S. at 432, 102 S.Ct. at 2521. Although the federal courts should not presume that the state courts will not safeguard federal constitutional rights, the situation in the present action necessitates a conclusion that the state courts will not guarantee federal rights. In Younger, the Supreme Court stated that any federal claim should be urged as a defense in state court “unless it plainly appears that this course would not afford adequate protection.” Younger v. Harris, 401 U.S. 37, 45, 91 S.Ct. 746, 750, 27 L.Ed.2d 669 (1971). In a recent decision holding that the federal district court should have abstained under Younger, the Court reiterated its reluctance “to conclude that Texas courts would have construed procedural rules to deny [the aggrieved party] an effective opportunity to raise its [federal] constitutional claims.” See Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 16, 107 S.Ct. 1519, 1528, 95 L.Ed.2d 1 (1987). The Court explained: [W]hen a litigant has not attempted to present his federal claims in related state-court proceedings, a federal court should assume that state procedures will afford an adequate remedy, in the absence of unambiguous authority to the contrary. Id., 481 U.S. at 15, 107 S.Ct. at 1528 (emphasis added). In Pennzoil, the Court recognized several reasons supporting a Younger abstention: (1) the basic doctrine that a court should not exercise its equitable powers when the moving party has an adequate remedy at law; (2) the comity between the States and National Government that weighs against the exercise of federal judicial power when the State’s interests in the proceeding are so important; (3) the avoidance of unwarranted determinations of federal constitutional questions. Id., 401 U.S. at 10-12, 107 S.Ct. at 1525-1526. Abstention under Younger is mandated if state proceedings are pending and if the state courts have the ability to resolve the federal questions. Id., 401 U.S. at 14, 107 S.Ct. at 1527. Although a [federal] constitutional attack, by itself, on state procedures does not automatically vitiate the adequacy of state procedures under Younger, such an attack coupled with a total inability to obtain any substantive review by the State courts would preclude the application of an abstention under Younger. Indeed, the United States Supreme Court has recently reiterated: There is no greater federal interest in enforcing the supremacy of federal statutes than in enforcing the supremacy of explicit [federal] constitutional guarantees, and [federal] constitutional challenges to state action, no less than preemption based challenges call into question the legitimacy of the State’s interest in its proceedings reviewing or enforcing that action. New Orleans Public Service, 491 U.S. at 364, 109 S.Ct. at 2516. Although the federal court’s disposition of a case such as the present action may affect or pre-empt a future or pending state judicial proceeding, no doctrine excludes the federal courts merely because of the availability or pend-ency of state judicial proceedings. See id., 491 U.S. at 371, 109 S.Ct. at 2520. In the present action, no state court proceeding is pending for most of the plaintiff class. Even if such a proceeding could be said to be pending, the only unsettled issues are federal not state, and the plaintiff class does not have an adequate remedy under state law. If, on review, a determination is made that a state action is pending, equitable relief is still warranted. Since actions under 42 U.S.C. § 1983 are an express statutory exception to 28 U.S.C. § 2283, the Anti-Injunction Act does not apply to this § 1983 action. See Mitchum v. Foster, 407 U.S. 225, 242-243, 92 S.Ct. 2151, 2162, 32 L.Ed.2d 705 (1972); see also Trainor v. Hernandez, 431 U.S. 434, 444, n. 8, 97 S.Ct. 1911, 1918, n. 8, 52 L.Ed.2d 486 (1977). Actions under 42 U.S.C. § 1983 fall within the “expressly authorized” exceptions to the Anti-Injunction Act, 28 U.S.C. § 2283. Id. Indeed,: The very purpose of § 1983 was to interpose the federal courts between the States and the people, as guardians of the people’s federal rights — to protect the people from unconstitutional action under the color of state law, “whether that action be executive, legislative, or judicial.” In carrying out that purpose, Congress plainly authorized the federal courts to issue injunctions in § 1983 actions, by expressly authorizing a “suit in equity” as one of the means of redress. And this Court long ago recognized that federal injunctive relief against a state court proceeding can in some circumstances be essential to prevent great, immediate, and irreparable loss of a person’s constitutional rights. Id. (citations omitted). To determination of whether Younger or Huffman should apply based upon an assertion that the aggrieved parties could not present their federal due process challenge in the state courts, the United States Supreme Court has permitted the federal district courts to rule on such an issue. See Trainor v. Hernandez, 431 U.S. at 447 and n. 10, 97 S.Ct. at 1920 and n. 10. These parties have shown that no such challenge can be adequately presented in state courts. To require that the taxpayers assert such a challenge which is futile in the state courts would likely result in the taxpayers irreparable loss of a federal constitutional right. Along with the extraordinary circumstances of this case, the fact that the collection of a clearly unlawful tax is patently and flagrantly violative of express constitutional provisions precludes abstention and warrants equitable relief. See id., 431 U.S. at 446-447, 97 S.Ct. at 1919 (citations omitted). The plaintiffs in this case cannot obtain a full hearing and judicial determination in the state courts on their federal constitutional challenge. V. Res Judicata and Collateral Estoppel Generally, “[a] judgment or decree among parties to a lawsuit resolves issues as among them, but it does not conclude the rights of strangers to those proceedings.” Martin v. Wilks, 490 U.S. 755, 762, 109 S.Ct. 2180, 2185, 104 L.Ed.2d 835 (1989) (footnote omitted). Exceptions may exist where a non-party has his or her interests adequately represented by a party with similar interests in a class action. Id. at n. 2. Writing for a unanimous United States Supreme Court, Justice Marshall explained the basic principles of collateral estoppel in the federal court system: ... Title 28 U.S.C. § 1738 generally requires “federal courts to give preclu-sive effect to state-court judgments whenever the courts of the State from which the judgments emerged would do so.” Allen v. McCurry, 449 U.S., [90] at 96, 101 S.Ct., [411] at 415 [66 L.Ed.2d 308 (1980)]. In federal actions, including § 1983 actions, a state-court judgment will not be given collateral-estoppel effect, however, where “the party against whom an earlier court decision is asserted did not have a full and fair opportunity to litigate the claim or issue decided by the first court.” Id., at 101, 101 S.Ct., at 418. Moreover, additional exceptions to collateral estoppel may be warranted in § 1983 actions in light of the “understanding of § 1983” that “the federal courts could step in where the state courts were unable or unwilling to protect federal rights.” Ibid. Cf. id., at 95, n. 7, 101 S.Ct., at 415, n. 7; Board of Regents v. Tomanio, 446 U.S. 478, 485-486, 100 S.Ct. 1790, 1795-1796, 64 L.Ed.2d 440 (1980) (42 U.S.C. § 1988 authorizes federal courts, in an action under § 1983, to disregard an otherwise applicable state rule of law if the state law is inconsistent with the federal policy underlying § 1983). Haring v. Prosise, 462 U.S. 306, 313-314, 103 S.Ct. 2368, 2373, 76 L.Ed.2d 595 (1983) (footnotes omitted). No proof has been offered that the class representatives, or others with the same interests, in the present action were before the Texas Supreme Court. Also, no evidence has been offered to show that these persons were adequately represented by someone with the same interests. Although some of the unnamed members of this class may well have been before the Texas Supreme Court, the number of those is minimal compared to the class in this action. Additionally, the issues and arguments before that court were of a different nature and focus than the main issue before this court. VI. 28 U.S.C. § 1341: Injunctions and Taxes by States Section 1341 of Title 28 of the United States Codes prohibits, in most instances, district courts from enjoining the collection of any taxes under state law: The district courts shall not enjoin, suspend or restrain the assessment, levy or collection or any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State. 28 U.S.C. § 1341. This statute also applies with equivalent force to declaratory judgment actions concerning state taxes. Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S. 293, 299, 63 S.Ct. 1070, 1073, 87 L.Ed. 1407 (1943). In the present action seeking both declaratory and injunctive relief, the primary issue is whether “a plain, speedy and efficient remedy may be had in the courts of such State.” As the State correctly argues, McKesson involved a tax that was held unconstitutional under the Commerce Clause of the United States Constitution. Consequently, the state proceeds to argue that McKesson should not be held to apply to state tax schemes that only violate state law. A distinction should be recognized, but perhaps a distinction should also be recognized between tax schemes that merely violate a state or local statute and tax schemes that violate a state’s constitution. The basic issue is whether the State provides a remedy. The issue in the present action is the State’s continued enforcement of a tax scheme that has been found unconstitutional under the State constitution. Such a continued enforcement would violate the Fifth and Fourteenth Amendments of the United States Constitution. The State relies heavily on the Supreme Court’s decision rendered on the same day as McKesson. In that decision the Court reiterated its conclusion that: When questions of state law are at issue, state courts generally have the authority to determine the retroactivity of their own decisions. American Trucking Associations, Inc. v. Smith, 496 U.S. 167, 177, 110 S.Ct. 2323, 2330, 110 L.Ed.2d 148 (1990) (citations omitted). Later in its opinion, the Court clarified the issues of retroactivity and pros-pectivity: It is, of course, a fundamental tenet of our retroactivity doctrine that the prospective application of a new principle of law begins on the date of the decision announcing the principle. Id., 496 U.S. at 187, 110 S.Ct. at 2335. In the civil context, the retroactivity of decisions continues to be governed by the Chevron Oil standard. Id., 496 U.S. at 179, 110 S.Ct. at 2331. The critical event for prospectivity is the occurrence of the underlying transaction, and not the payment of money therefor. Id. 496 U.S. at 187, 110 S.Ct. at 2336 (discussing a use tax) (citations omitted). In the state case underlying American Trucking, the Arkansas Supreme Court did hold that the state tax was unlawful, in light of an earlier decision of that court, but that court went on to hold that there would be no refunds of taxes paid before the date of the order issued by Justice Blackmun requiring the state to escrow all future taxes paid under the scheme (because of the likelihood that the tax at issue would be found unconstitutional by the Supreme Court if