Doe v. Community Unit School District No. 428

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

JAMES C. MASON, GREG W. DAVIS )

ASHBURY COURT APARTMENTS, LLC, )

COLONIAL EAST, LLC, COLONIAL WEST, LLC, )

CARDINAL APARTMENTS, LLC, DIETZ PARK, )

LLC, JAMES COURT, LLC, NORMAL ROAD )

APARTMENTS, LLC, JLAR, LLC, JLAR )

ILLINOIS, LLC, UNIVERSITY HEIGHTS, LLC, )

MASON TOWNHOME SUITES,120 N. ANNIE )

GLIDDEN, LLC, SOUTH 4TH STREET MEGA )

LAUNDROMAT, LLC, MASON PROPERTIES )

DEKALB, LLC, )

)

Plaintiffs, )

)

v. ) Case No. 17 C 50307

)

COMMUNITY UNIT SCHOOL DISTRICT ) Judge Rebecca R. Pallmeyer

NO. 428; VICTORIA NEWPORT, JEFF )

HALLGREN, VALERIE PENA-HERNANDEZ, )

KERRY MELLOT, RICK SMITH, HOWARD )

SOLOMON, FRED DAVIS, in their individual )

and official capacities as members of the )

DeKalb School Board; and UNNAMED )

HANDLERS, MAILERS, DRIVERS, )

and INSIDERS, )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

Plaintiffs are individuals and businesses that pay local property taxes in DeKalb County,

Illinois. In this lawsuit, they allege that Defendant Community Unit School District No. 428 (CUSD

428, a DeKalb public school district), Defendant members of the DeKalb School Board, and

unnamed Defendants intentionally allowed students who do not live in DeKalb to attend DeKalb's

public schools. Plaintiffs claim that Defendants' conduct violated their constitutional rights to due

process and equal protection because it increased their property taxes, a portion of which were

"used to pay tuition and other school expenses for" the out-of-district students. (First Am. Compl.

[61] ¶ 10.) Plaintiffs assert claims against Defendants under 42 U.S.C. § 1983 for deprivation or

violation of constitutional rights; 42 U.S.C. § 1985 for conspiracy to interfere with civil rights; and

42 U.S.C. § 1986 for failure to prevent violations of § 1985. Plaintiffs seek damages, including

refunds of property tax overpayments from January 2007 to July 31, 2018. They also request

injunctive relief, including an order requiring Defendants to complete a "residency investigation[]

of CUSD 428 enrollment and applications . . . according to usual customs and practices." (Id.,

Prayer for Relief ¶ 6.)

In July 2018, Plaintiffs filed an amended complaint in response to Defendants' first motion

to dismiss. Two motions are currently pending: Defendants have moved to dismiss the First

Amended Complaint, and Plaintiffs have moved for summary judgment on their claim for equitable

relief, specifically, an order directing Defendants to complete the above-referenced residency

investigation. As detailed below, the court grants Defendants' motion to dismiss because (1) the

principle of comity counsels against adjudicating Plaintiffs' claims and (2) the Tax Injunction Act,

28 U.S.C. § 1341, divests the court of jurisdiction over Plaintiffs' request for injunctive relief.

Plaintiffs' motion for partial summary judgment is terminated as moot.

BACKGROUND

The court takes the following facts from Plaintiffs' First Amended Complaint, accepting

them as true and viewing them in the light most favorable to Plaintiffs. See, e.g., Heyde v.

Pittenger, 633 F.3d 512, 516 (7th Cir. 2011); St. John's United Church of Christ v. City of Chicago,

502 F.3d 616, 625 (7th Cir. 2007).

Plaintiffs owned real estate and paid property taxes in DeKalb during the time relevant to

this lawsuit: January 2007 to July 31, 2018. (Id. ¶¶ 9, 96.) Plaintiff James Mason "and related

entities," for example, "have owned 735 real estate units in DeKalb . . . and pay approximately

1.2 million dollars per year in property taxes." (Id. ¶ 101.)1 According to Plaintiffs, "[m]ore than

sixty percent (60%) of [their] property tax payments went to DeKalb Schools in the past 10 years."

1 It is unclear whether the "related entities" are plaintiffs in this action.

(Id. ¶ 19.) As noted, Plaintiffs allege that Defendants "intentionally and deliberately encouraged

and facilitated the enrollment of out of district students in knowing violation of" the "Illinois School

Code residency and tuition payment requirements." (Id. ¶¶ 7, 14.) This conduct, Plaintiffs allege,

"forced [them] to pay public school expenses for approximately 1,200 out-of-district" students.

(Id. ¶ 93; see also id. ¶ 10 (alleging that "a portion of [Plaintiffs'] property tax was used to pay

tuition and other school expenses for nonresident tuition violators who were lawfully required to

pay tuition to the District"); id. ¶¶ 21-27 (alleging that DeKalb's public school-related expenditures

have increased significantly even as the county's population has decreased).) By Plaintiffs'

account, "[a]pproximately 15% of the school funding provided by local property owners was

overpaid due [to] Defendants' . . . encouragement and facilitation of nonresident tuition violat[ors]

enrolled in DeKalb Schools." (Id. ¶ 20.)2

"In response to" the filing of this lawsuit, Defendants "hired National Investigations, Inc.,"

a "specialized school residency investigation firm," to "investigate nonresident tuition violations."

(Id. ¶¶ 28-29.) Defendants initially commissioned National Investigations to analyze a "20%

sample" of students but promised DeKalb property owners that the firm would expand its

investigation beyond that sample. (See id. ¶ 36.) Plaintiffs allege that Defendants instead

"blocked" and "conspired to stop" the investigation, including by "warning tuition violators not to

cooperate" and "coaching violators to submit false evidence." (Id. ¶¶ 32, 37, 39, 63.) In addition,

Plaintiffs allege that Defendants selected the sample in a biased manner and "withh[eld] public

records" of the investigation. (Id. ¶ 62.) Finally, Plaintiffs allege that Defendants lied about the

investigation's findings: Defendants publicly represented the number of residency violations to

be 75 percent lower than the number that National Investigations uncovered. (See, e.g., id. ¶¶ 32,

2 Plaintiffs further allege that Defendants increased the transportation levy request

by 619 percent. (Id. ¶ 23.) Although this allegation is not a model of clarity, it appears Plaintiffs

contend that Defendants have admitted to raising the transportation levy in order to use the funds

generated for non-transportation purposes because taxes earmarked to cover those other

purposes had already been raised "to the maximum limits allowed by law." (Id.)

34, 38; see also id. ¶ 90 (alleging that "Defendants publicly made a false report estimating only

300 of 6,500 (4.8%) may be in violation of nonresident tuition laws").)3 A "[s]eventy-five percent

(75%) understatement of violators," Plaintiffs allege, "shows approximately 1,200 out of district

tuition violators." (Id. ¶ 47.)

According to Plaintiffs, the out-of-district students "cost[] local property owners

approximately $7,400 per pupil, or [$8,800,000] . . . per year" for approximately ten years.

(Id. ¶¶ 48, 96.) Plaintiff Mason, for example, claims he has "paid approximately $100,000 per

year" in property taxes "for out of district tuition violators." (Id. ¶ 102.) Plaintiffs also allege that

they have been "over-charged by the additional cost of teacher salaries and pensions as well as

building construction and maintenance costs." (Id. ¶ 121.) And they allege that "DeKalb property

taxes are in the highest 1% in the nation due in large part due to the Defendants' knowing

violations" of Illinois' school residency and tuition payment requirements. (Id. ¶ 15.) Relatedly,

Plaintiffs blame Defendants for a local economic downturn. (See, e.g., id. ¶ 16-18, 115 (alleging

that property values in DeKalb have "decrease[d] as a result of excessive property tax increases";

excessive property taxes "have driven businesses and homeowners out of DeKalb"; "[a]s a result

of the population decrease . . . there are fewer people to share the property tax burden"; and the

drop in property values has jeopardized "the stability of . . . local lending institutions").)

3 In alleging that Defendants blocked the investigation and underreported its findings

by 75 percent, Plaintiffs cite to exhibits without providing page numbers and, in most cases,

without explaining what the exhibits are. (See, e.g., id. ¶¶ 34-36, 42-74.) The court has located

some of the cited portions of the record, but it is far from clear that they support these allegations.

Plaintiffs' purported smoking-gun evidence of underreporting appears to be the following written

statement from National Investigations: "If the district feels that they are getting lied to which is

only going to be about one fourth of the families that we investigated and found to be out of district

then the Certified Ten Day Letter would go out." (See id. ¶ 45 (quoting Ex. 2 to First Am. Compl.

[61-2], 4 (describing "DeKalb Current Process" for investigating violations)).) This is an incoherent

sentence that does not support the proposition. At best, the record tends to suggest that

Defendants, at unspecified times, have knowingly allowed nonresident students to continue

attending DeKalb public schools. (See id. ¶ 68.) The record also tends to suggest that at some

point, Defendants have "believ[ed] paperwork [submitted by students' guardians] over an

investigators [sic] physical visit . . . ." (See id. ¶ 70.) Nevertheless, the court will assume for

purposes of this motion that Plaintiffs' allegations are true.

Plaintiffs allege that at all relevant times, "Defendants, individually and in their official

capacit[ies]," were "acting as employees, officials or agents of the DeKalb School District."

(Id. ¶ 81.) They further allege that "[a]ny action by non-government employees was done at the

direction and under the control of state actors." (Id.) In Count I of their First Amended Complaint,

Plaintiffs assert a claim under 42 U.S.C. § 1983 against all Defendants for violations or

deprivations of their constitutional rights. (Id. ¶¶ 149-157 (alleging, among other things, that

Defendants "subjected [them] to excessive and unlawful public school charges and covered up

their conspiracy, in violation of due process and equal protection" under the Fifth and Fourteenth

Amendments to the U.S. Constitution).) In Count II, Plaintiffs assert a claim under § 1983 against

Defendant CUSD 428 for promulgating, sanctioning, concealing, and exhibiting deliberate

indifference to policies that violated Plaintiffs' constitutional rights. (See id. ¶¶ 158-66.) The

alleged policies "include failing and refusing to impartially investigate, discipline or prosecute

employees, parents, mailers, handlers, and others who violate laws including school residency

misdemeanors." (Id. ¶ 164-65.) In Count III, Plaintiffs assert a claim under 42 U.S.C. § 1985(2)

against all "individual Defendants" for conspiring with the purpose of "impeding, hindering,

obstructing, and defeating the due course of justice in the State of Illinois, County of DeKalb, and

DeKalb School District," with the intent to deprive Plaintiffs of due process and equal protection.

(Id. ¶¶ 167-71.) In Count IV, Plaintiffs assert a claim under 42 U.S.C. § 1985(3) against all

"individual Defendants" for "conspir[ing] for the purpose of" (1) depriving Plaintiffs of "equal

protection and immunities under the law"; (2) "preventing and hindering the constituted authorities

from giving and securing to Plaintiffs equal protection of the law"; and (3) "preventing and

hindering the constituted authorities from giving and securing to Plaintiffs equal protection of the

law" and ensuring that Plaintiffs were not "depriv[ed] of liberty and property without due process

of law." (Id. ¶¶ 172-75.) Finally, in Count V, Plaintiffs assert a claim under 42 U.S.C. § 1986

against all "individual Defendants" for failing to "intervene to prevent the wrongdoing committed

against Plaintiffs by Defendants." (Id. ¶¶ 176-79.)

Plaintiffs seek approximately $134,094,592 in "general" and "special" damages.

(Id. ¶ 128; id., Prayer for Relief ¶¶ 1-2.) The damages request includes return of property taxes

Plaintiffs paid from 2007 to 2018 as a result of "nonresident tuition violations" and to cover the

cost of extra teachers, staff, and school buildings necessary to accommodate out-of-district

students. (See id. ¶ 128; see also, e.g., id. ¶¶ 48, 119, 103-04.) The request also includes nearly

$20 million for "loss in property values due to nonresident tuition violators." (Id. ¶ 128.)4 Plaintiffs

also seek punitive damages against the "individual Defendant[s]," attorneys' fees, costs, and

interest. (See id., Prayer for Relief ¶¶ 3-5, 10, 14-15.) Finally, Plaintiffs request injunctive relief,

including an order that Defendant CUSD 428 must "pay for and cooperate with National

Investigations . . . to conduct full residency investigations of CUSD 428 enrollment and

applications for enrollment from July 24, 2018 through July 24, 2023 according to usual customs

and practices." (Id., Prayer for Relief ¶ 6.)5

DISCUSSION

Defendants argue that "all of Plaintiffs' claims are local property tax disputes." (Defs.'

Mem. in Supp. of Mot. to Dismiss ("Defs.' Br.") [81], 12.) Accordingly, Defendants maintain, the

court should dismiss the claims based on the principle of comity and for lack of subject matter

jurisdiction pursuant to the Tax Injunction Act, 28 U.S.C. § 1341. Defendants also argue that the

court should dismiss all claims for failure to state a claim upon which relief can be granted. See

FED. R. CIV. P. 12(b)(6). For the following reasons, the court concludes that the comity doctrine

bars all of Plaintiffs' claims and, in addition, that the Tax Injunction Act prohibits the court from

exercising subject matter jurisdiction over Plaintiffs' request for injunctive relief.

4 In their briefing, neither party discusses damages for lost property value. The

court, therefore, interprets the request as seeking additional property tax refunds or adjustments.

5 Because this is the only request for injunctive relief that Plaintiffs address in their

briefing, the court assumes Plaintiffs have conceded that their other requests for injunctive relief—

all of which relate to the residency investigation (see id., Prayer for Relief ¶¶ 7-9, 11-12, 16-18)—

rise and fall with this one.

A. Legal Standard

In considering a motion to dismiss for lack of subject matter jurisdiction under Federal Rule

of Civil Procedure 12(b)(1), the "district court must accept as true all well-pleaded factual

allegations and draw all reasonable inferences in favor of the plaintiff." St. John's, 502 F.3d at

625 (quoting Long v. Shorebank Dev. Corp., 182 F.3d 548, 554 (7th Cir. 1999)). "[T]he district

court may properly look beyond the jurisdictional allegations of the complaint and view whatever

evidence has been submitted on the issue to determine whether in fact subject matter exists." Id.

B. The comity doctrine bars Plaintiffs' claims

Section 1983 provides a cause of action for individuals who have suffered, by virtue of

anyone acting "under color" of the law, a "deprivation of any rights, privileges, or immunities

secured by the Constitution and laws" of the United States. 42 U.S.C. § 1983. "Congress 'cut a

broad swath' when it enacted § 1983, and the statute appears by its terms to give a federal cause

of action to state taxpayers." Cosgriff v. Cnty. of Winnebago, 876 F.3d 912, 915 (7th Cir. 2017)

(quoting Fair Assessment in Real Estate Ass'n, Inc. v. McNary, 454 U.S. 100, 103-04 (1981)).

The comity doctrine, however, "'counsels lower federal courts to resist engagement in certain

cases falling within their jurisdiction'" and "has limited § 1983's scope." Cosgriff, 876 F.3d at 915

(quoting Levin v. Commerce Energy, Inc., 560 U.S. 413, 421 (2010)). Comity "is a doctrine of

abstention," Perry v. Coles Cnty., 906 F.3d 583, 587 (7th Cir. 2018), and it reflects, among other

things, "the belief that the National Government will fare best if the States and their institutions

are left free to perform their separate functions in separate ways." Fair Assessment, 454 U.S. at

112 (quoting Younger v. Harris, 401 U.S. 37, 44 (1971)). Taxation is one such function. See

Perry, 906 F.3d at 587 ("Out of respect for state functions, the comity doctrine 'restrains federal

courts from entertaining claims for relief that risk disrupting state tax administration.'" (quoting

Levin, 560 U.S. at 417)); Capra v. Cook Cnty. Bd. of Review, 733 F.3d 705, 713 (7th Cir. 2013)

("Like the Tax Injunction Act, th[e] comity doctrine 'serves to minimize the frictions inherent in a

federal system of government' and embodies longstanding 'federal reluctance to interfere with

state taxation.'" (quoting Empress Casino Joliet Corp. v. Balmoral Racing Club, Inc., 651 F.3d

722, 725 (7th Cir. 2011) (en banc))).

The comity doctrine thus "bars taxpayers from asserting § 1983 claims against 'the validity

of state tax systems' via federal lawsuits." Perry, 906 F.3d at 587 (quoting Fair Assessment, 454

U.S. at 116); see id. at 586 (affirming dismissal "based on comity concerns" of § 1983 claims that

concerned state tax practices and sought monetary damages, declaratory relief, and injunctive

relief). "Taxpayers alleging that their federal rights have been violated by state or local tax

practices must seek relief through available state remedies if those remedies are 'plain, adequate,

and complete.'" Cosgriff, 876 F.3d at 915 (quoting Fair Assessment, 454 U.S. at 116); see also

Perry, 906 F.3d at 588; Capra, 733 F.3d at 713. In applying the "adequate, plain, and complete"

standard, the Seventh Circuit "ha[s] used the comparable standard from the Tax Injunction Act,

which bars federal courts from enjoining state taxes where a 'plain, speedy and efficient' state

remedy is available." Capra, 733 F.3d at 714 (quoting 28 U.S.C. § 1341). To determine whether

a state remedy is adequate, "the question is whether the remedy is procedurally sufficient, not

whether it will 'result in the taxpayer's desired outcome.'" Perry, 906 F.3d at 588 (quoting Capra,

733 F.3d at 714). State remedies are adequate if they afford to the taxpayer a "full hearing and

judicial determination at which she may raise any and all constitutional objections to the tax."

Cosgriff, 876 F.3d at 916 (quoting Capra, 733 F.3d at 714); see also Perry, 906 F.3d at 588

(same).

In Illinois, aggrieved taxpayers can file complaints concerning property tax assessments

with a county board of review. Perry, 906 F.3d at 588. If the taxpayers are "dissatisfied with a

decision of a county [b]oard of [r]eview," Illinois law affords them "two options for appeal." Capra,

733 F.3d at 714; see also Perry, 906 F.3d at 588. Specifically, taxpayers

can either appeal to the Property Tax Appeal Board (PTAB), 35 Ill. Comp.

Stat. § 200/16–160, or file a tax objection complaint directly with a county circuit

court, § 200/23–15. . . . If they select the PTAB route, they can appeal the PTAB's

decision directly to Illinois state courts. 35 Ill. Comp. Stat. § 200/16–195. Although

the PTAB is not expressly authorized to consider claims beyond objections to

assessment values, we have found no provision in its authorizing statute or

regulations precluding it from doing so. And before the PTAB, taxpayers may

supplement the record with evidence beyond what was before the Board of

Review. § 200/16–180. . . .

Thus, through either the PTAB or the circuit courts, any statutory or constitutional

claims can be heard by a state court of general jurisdiction and can be appealed

through the Illinois court system to the Illinois Supreme Court and the Supreme

Court of the United States.

Capra, 733 F.3d at 714-15 (citations and footnote omitted). In Capra, plaintiffs asserted, among

other things, Section 1983 claims for damages against the Cook County Board of Review after

the Board reversed reductions of plaintiffs' property tax assessments. See id. at 707. The court

concluded that because plaintiffs' claims "challenge[d] the application of a local tax . . . on federal

constitutional grounds," and because "the available state remedies were plain, adequate, and

complete," the district court properly abstained from reaching the merits. Id. at 714, 717; see also

Heyde, 633 F.3d at 520 ("Taxpayers must first exhaust the state remedies, and only after may

they seek review of the state court decision in the United States Supreme Court."). The Seventh

Circuit has repeatedly concluded that Illinois' procedures for dissatisfied taxpayers are "adequate

under Fair Assessment." Perry, 906 F.3d at 588; see also, e.g., Capra, 733 F.3d at 715; Cosgriff,

876 F.3d at 916; Heyde, 633 F.3d at 520 (collecting cases).

As noted, Defendants argue that Plaintiffs' claims "boil down to assertions that excessive

or inflated taxes deprived or violated their constitutional rights of due process and equal protection

of the laws." (Defs.' Br. 13.) Defendants further argue that Illinois law provides "plain, adequate,

and complete" remedies for Plaintiffs' claims, and emphasize that Plaintiffs nowhere allege these

remedies are inadequate. (See id. at 8-12.) Accordingly, Defendants maintain, the comity

doctrine requires the court to dismiss all of Plaintiffs' claims. (See, e.g., id. at 6-14.)

Plaintiffs respond that they "do[] not allege a property tax cause of action." (Plaintiffs' Opp.

to Mot. to Dismiss ("Pls.' Opp.") [88], 4.) Rather, they maintain that they "allege[] the opposite of

a property tax" because they allege that Defendants used property taxes as a mere "guise" to

deprive them of constitutional rights. (Id. (quoting First Am. Compl. ¶ 6).) This argument has no

traction. The cited portion of the First Amended Complaint is plainly an allegation by local

taxpayers "that their federal rights have been violated by . . . local tax practices." Cosgriff, 876

F.3d at 915; see First Am. Compl. ¶ 6 ("DeKalb School district property tax payers are being

deprived of a fair hearing and notice prior to takings of private funds under the guise of a property

tax.").) In other words, by Plaintiffs' own admission, property taxes are the "takings" to which

Plaintiffs object. (See First Am. Compl. ¶ 6.) Plaintiffs allege that the taxes were too high because

they effectively charged for out-of-district students' education, and claim that being forced to

overpay taxes deprived them of due process and equal protection. (See, e.g., id. ¶ 93 ("DeKalb

taxpayers were deprived of due process and equal protection as they were . . . being forced to

pay public school expenses for approximately 1,200 out-of-district residency violators.").)

Moreover, Plaintiffs seek to recover the alleged tax overpayments as damages. (See, e.g.,

id. ¶¶ 104, 119, 128.) The only fair reading of these allegations is that Plaintiffs are asserting civil

rights claims against the validity of a local tax system through a federal lawsuit. See Perry, 906

F.3d at 587; see also Cosgriff, 872 F.3d at 916 (rejecting plaintiffs' "attempt to remove their claims

from the purview of comity considerations by arguing that they are not concerned about the tax

that was imposed on them, but they are instead concerned about the defendants' unconstitutional

actions against them").

Seeking to avoid this conclusion, Plaintiffs also point to allegations that Defendants

caused the alleged constitutional deprivations by failing "to comply with the Illinois School Code

residency and tuition payment requirements." (Pls.' Opp. 4 (quoting First Am. Compl. ¶ 7).)

Plaintiffs then argue that "[s]chool residency and tuition are not tax matters." (Pls.' Opp. 4.) But

Plaintiffs are not asserting claims against Defendants for violations of school residency and tuition

requirements. Rather, as already discussed, Plaintiffs are alleging that as a result of such

violations, their property taxes were higher than they should have been. This allegation

challenges local tax practices and threatens to "disrupt[] state tax administration." Perry, 906 F.3d

at 587 (quoting Levin, 560 U.S. at 417). Relatedly, Plaintiffs contend that their request for

injunctive relief is not "a property tax cause of action" because a school residency investigation

does not "challeng[e] an assessment, levy, or collection of property taxes." (See Pls.' Opp. 4-5.)6

This argument, too, lacks merit. Plaintiffs seek an injunction only as relief for their civil rights

claims, which do challenge the validity of a local tax system. And Plaintiffs' allegations

demonstrate that they intend to use the results of the desired investigation to recover property tax

payments and/or reduce their future property tax liability. Indeed, Plaintiffs even allege that

"[l]ower property taxes generally result from honest residency investigations because in district

(DeKalb) taxpayers no longer have to pay for the public education of out of district (e.g. Aurora)

residents." (First Am. Compl. ¶ 76.)

Because Plaintiffs are asserting civil rights claims against the validity of a local tax system,

they "must seek relief through available state remedies if those remedies are 'plain, adequate,

and complete.'" Cosgriff, 876 F.3d at 915. Plaintiffs do not allege that they have exhausted or

attempted to exhaust state remedies.7 They do, however, appear to argue that state remedies

are not "plain, adequate, and complete" because the Illinois Property Tax Code does not provide

mechanisms for "investigat[ing], challeng[ing], and recover[ing] tuition from out-of-district tuition

violators." (Pls.' Opp. 6; see also id. at 8.) Plaintiffs also contend that even if the Illinois Property

Tax Code provided such mechanisms, Defendants "obstructed Plaintiffs' opportunity" to utilize

them. (Id. at 6; see also id. at 8.) Similarly, Plaintiffs contend that the Illinois School Code does

not allow them to "remove tuition violators and collect tuition due," and that even if it did,

Defendants prevented Plaintiffs from proceeding under the School code by "with[olding] the

6 Plaintiffs expressly advance this argument in urging that the Tax Injunction Act

does not bar the request. (See Pls.' Opp. 5.) The court explains why this argument fails in Section

C, below. Here, for the sake of completeness, the court discusses why the argument does not

hold water for comity purposes.

7 Even if they had, the only federal court to which Plaintiffs could appeal is the U.S.

Supreme Court. See Capra, 733 F.3d at 714-15; Heyde, 633 F.3d at 520.

necessary evidence." (Id. at 6; see also id. at 8.)

Plaintiffs' arguments that they lack adequate state remedies are unpersuasive. As already

discussed, Plaintiffs are not asserting claims against Defendants for violations of residency and

tuition requirements. Rather, they are claiming that Defendants violated their constitutional rights

by "fail[ing] to comply" with such requirements, thereby causing Plaintiffs to pay excessive

property taxes. (See, e.g., First Am. Compl. ¶¶ 6-7, 16, 93.) The question whether Plaintiffs can

challenge violations of residency and tuition requirements through the Illinois Property Tax Code

or the Illinois School Code is therefore immaterial. What matters is whether Illinois law provides

"plain, adequate, and complete" remedies for taxpayers like Plaintiffs. Fair Assessment, 454 U.S.

at 116. As the Seventh Circuit has repeatedly held, it does. See, e.g., Perry, 906 F.3d at 588;

Scott Air Force Base Props., LLC v. Cnty. of St. Clair, 548 F.3d 516, 523 (7th Cir. 2008) ("Illinois

case law clearly indicates that Illinois taxpayers are able to litigate their constitutional and other

federal-law challenges to state tax matters in the Illinois administrative and judicial system.").

Because there are "plain, adequate, and complete" state remedies for Plaintiffs' § 1983

claims, the principle of comity bars Plaintiffs from bringing them in this court. Fair Assessment,

454 U.S. at 116. And for Plaintiffs to prevail on their § 1985 claims, the court would need to decide

whether the challenged features of DeKalb's property tax system violate the U.S. Constitution.

"Such an inquiry would have the same disruptive effect on state tax systems that prompted the

Court's decision in [Fair Assessment] to preclude federal courts from hearing 1983 claims

challenging the validity of state tax systems." See Lawyer v. Hilton Head Public Serv. Dist. No.

1, 220 F.3d 298, 303-04 (4th Cir. 2000). The principle of comity, therefore, bars Plaintiffs from

bringing their § 1985 claims in this court, as well. See id. (holding that the Tax Injunction Act and

the principle of comity barred not only plaintiffs' § 1983 claims, but also its "claims under § 1985

and the Takings Clause"); see also, e.g., Gibson v. Gains, No. 05-15997, 2006 WL 858336, at *3

(11th Cir. Apr. 4, 2006) (unpublished) (affirming district court's conclusion that the principle of

comity precluded it from entertaining plaintiff's claim for damages under § 1985 "because the

claim depend[ed] on an initial determination of the constitutionality of the state tax system");

Terminello v. Vill. of Piermont, No. 08-CV-01056(WCC)(DCP), 2009 WL 3496615, at *1-2

(S.D.N.Y. Oct. 28, 2009) (determining that the Tax Injunction Act and the principle of comity

precluded the court from hearing plaintiffs' §§ 1983 and 1985 claims). Finally, dismissal of

Plaintiffs' § 1986 claim is required because "§ 1986 liability is derivative of § 1985 liability." Smith

v. Bashore, No. 99-3645, 210 F.3d 376, 2000 WL 359847, at *1 (7th Cir. Apr. 6, 2000)

(unpublished); see also, e.g., Rodgers v. Lincoln Towing Serv., Inc., 771 F.2d 194, 203 (7th Cir.

1985) (same).

C. This court lacks subject matter jurisdiction under the Tax Injunction Act

Where "dismissal [is] appropriate based on the comity doctrine," it is "unnecessary to

address the applicability of the Tax Injunction Act." Perry, 906 F.3d at 586; see also Levin, 560

U.S. at 417, 432 (stating that the comity doctrine is "[m]ore embracive than the TIA" and, having

"conclude[d] that the comity doctrine justifie[d] dismissal of respondents' federal-court action,"

declining to "decide whether the TIA would itself block the suit"); Fair Assessment, 454 U.S. at

107 (similar). Nonetheless, for the sake of completeness, the court notes that even if the principle

of comity did not bar Plaintiffs' claims, the Tax Injunction Act (TIA) would strip the court of

jurisdiction over Plaintiffs' request for injunctive relief.

"Federal courts are courts of limited jurisdiction," Healy v. Metro. Pier & Exposition Auth.,

804 F.3d 836, 845 (7th Cir. 2015), and the TIA imposes one of many jurisdictional limitations.

Specifically, it provides that "[t]he district courts shall not enjoin, suspend or restrain the

assessment, levy or collection of 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. "The TIA divests the district

courts of subject matter jurisdiction in 'cases in which state taxpayers seek federal-court orders

enabling them to avoid paying state taxes.'" Scott Air Force Base, 548 F.3d at 520 (quoting Hibbs

v. Winn, 542 U.S. 88, 107 (2004)). The Act "strips the district courts of the power to hear suits

seeking not only injunctive but also declaratory relief from state taxes." Scott Air Force Base, 548

F.3d at 520. It "applies to any state tax, including municipal and local taxes." Id. Moreover, it

applies "even when the claim challenges the constitutionality of the tax." Kathrein v. City of

Evanston, 636 F.3d 906, 911 (7th Cir. 2011) (citing Scott Air Force Base, 548 F.3d at 520). As

stated above, "the TIA's jurisdictional bar is conditioned upon the availability of a 'plain, speedy

and efficient remedy' in state court. Scott Air Force Base, 548 F.3d at 521 (quoting California v.

Grace Brethren Church, 457 U.S. 393, 411 (1982)).

Plaintiffs argue that the TIA does not deprive the court of jurisdiction over their request for

injunctive relief because, according to Plaintiffs, "[i]nvestigating residency" would not "enjoin,

suspend or restrain the assessment, levy or collection" of a local tax. (Pls.' Opp. 5; 28

U.S.C. § 1341.) In support of this argument, Plaintiffs cite Direct Marketing Association v. Brohl,

135 S. Ct. 1124 (2015). There, the Supreme Court held that "notice and reporting obligations" for

retailers that do not collect sales and use taxes on certain purchases did not "'restrain' the

'assessment, levy or collection' of a state tax . . . ." 135 S. Ct. at 1128, 1133 (quoting 28

U.S.C. § 1341). The Court reasoned that the obligations constituted "information gathering,"

which occurs "before assessment, levy, or collection," and that "a suit cannot be understood to

'restrain' the 'assessment, levy or collection' of a state tax if it merely inhibits those activities." Id.

at 1129, 1133 (quoting 28 U.S.C. § 1341). Plaintiffs' analogy to Brohl is inapt. A residency

investigation, standing alone, might fairly be characterized as "information gathering" that has no

effect on assessing, levying, or collecting state taxes. But as the court has already concluded,

Plaintiffs want Defendants to complete the investigation so that they can use the results to recover

taxes already paid and reduce future taxes. Plaintiffs, therefore, are seeking a "federal-court

order[]" that would help them "to avoid paying [local] taxes." Scott Air Force Base, 548 F.3d at

520. And for reasons discussed in connection with the comity doctrine, Illinois law provides

Plaintiffs with "plain, speedy and efficient" remedies for their claims. See Fair Assessment, 454

U.S. at 116 n.8 ("We discern no significant difference, for purposes of the principles recognized

in this case, between remedies which are 'plain, adequate, and complete,' as that phrase has

been used in articulating the doctrine of equitable restraint, and those which are ‘plain, speedy

and efficient,’ within the meaning of § 1341."). Accordingly, the Tax Injunction Act divests this

court of jurisdiction over Plaintiffs' request for injunctive relief.®

CONCLUSION

For the foregoing reasons, the court grants Defendants’ motion to dismiss Plaintiffs’ First

Amended Complaint [76] and terminates as moot Plaintiffs’ motion for partial summary judgment

[89].

ENTER:

Dated: September 5, 2019 CR a A

REBECCA R. PALLMEYER

United States District Judge

8 Because the court is dismissing Plaintiffs' claims based on the principle of comity—

and has further noted that it lacks subject matter jurisdiction over Plaintiffs’ request for injunctive

relief pursuant to the Tl[A—the court need not address Defendants’ arguments that Plaintiffs fail

to state a claim under Rule 12(b)(6). Defendants’ argument that Plaintiffs have failed to plead the

requisite elements of their claims, however, appears to have merit.

15