Petition — Harte v. Lehnhausen

AUG

No. 4 5 - 9 5 3 = RODAK, JR CLERK |

Sepreme Court, i.

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In the

Supreme Court of the Anited States

Octroser TerM, 1975

CLARE HARTE, on her own behalf and on behalf of

all citizens and taxpayers of Cook County, Illinois,

Plaintiff-Petitioner,

VS.

ROBERT J. LEHNHAUSEN, Former Director of the

Department of Local Government Affairs, State of Tilinois:

MICHAEL J. BAKALIS, Superintendent of Publie In-

struction, State of Illinois; and FRANK A. KIRK,

Director of the Department of Local Government Affairs,

State of Illinois,

Defendants-Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF ILLINOIS

Kevin M. Forpe, Lr.

111 West Washington Street

Chicago, Illinois 60602

Attorney for Plaintiff-Petitioner

Of Counsel

WruiMm J. Harte, Lr.

Wriu1aMm J. CAMPBELL, JR.

The Scheffer Press, Inc.—(312) 263-6850

.

SUBJECT INDEX

PAGE

IS PID assciscinsciisesseccacaiasisssasniseidedeeetlieiadinenieedaiainsammediaiaiaaen l

SII. sisccissdesssnsabisentiaiainraniicccigiinatinniciaiantinicidumitiinimeinsiipiin 2

GRITROTD UCU CTIIIE crccnsesecvsntesnccsssentisstnnenennanniasivenecamenssnnione 2

Constitutional and statutory provisions involved ........ 3

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Reasons for granting the Wit .............ccccccsseccsssssereseseees 9

RIE <sccsssssiiicsictcasessssaiiandasiadiiitataibasciicvasabinilashdarmmaiiuaninaniininies 28

Appendix A:

Opinion of the Supreme Court of Illinois ............ la

Appendix B:

Opinion of the Cireuit Court of Cook County

I GI CI ccsesesstaccetinnneebensehenenttonsionn 10a

Appendix C:

Opinion of the Cireuit Court of Cook County

Denying Plaintiff’s Motion for Preliminary In-

I. sccsiscnsetconsiemnveiiniaaniaiiiisniaiimsidibisniahineitiaitaiaiapinaniiedien 12a

Appendix D:

Memorandum, Department of Local Government

a, SS TE TID ntcnssisenscdcsesctehintittnenitncsedans 17a

Appendix E:

Press Release from the Office of Governor Dan

fa ae ) Sener EeD Pla

Taste Or AvutTuorities CITED

CASES

Baker v. Carr, 369 U.S. 186 (19G2) ........cccccccccccccccccess 18

Chicago Great Western Ry. v. Kendall, 266 U.S. 94

SEREIEEEEE ccepneersesubsdinnnssnelseisietmmsdeateiddinuibsacmeabipinindiseabaiibniasednasiiiun 16

il

PAGE

Cumberland Coal Co. v. Board of Revision, 284 U.S.

aera ere ere NOP Oe aor a aE 16

Hamer v. Lehnhausen, 60 Ill. 2d 400, 328 N.E. 2d 11

SSE CE Rr nav ats OU On IAN ONES tel neo nO DEE NE )

lowa-Des Moines National Bank v. Bennett, 284 U.S.

ET MIIIIIINTE sonics tuisehalothnacidcaiassaiuininemegeneaiaeaeaadabaasnnimenininmesmnibeke 16

Levy v. Parker, 346 F. Supp. 897 (aff'd three judge

Ry SR I WE CN eeeeitcececeisctnscccenveciniasccesncivnen 16

Marbury vy. Madison, 1 Cranch 137, 2 L.Ed. 60

SUTIEED = ccucdansnsidanpasccaaieiasibadepsiinaniainicdaaianedenekenioiacsledsenincaseeiiil 24

Moore v. Ogilvie, 394 U.S. 814 (1969) oo. 26

Nebraska v. Wyoming, 325 U.S. 589 (1945) oo... 27

People’s Gas, Light and Coke Co. v. Stuckart, 286

Se ec I Se, I in 16

People ex rel Tedrick v. Allied Oil Corp. of Illinois,

388 Til. 219, 57 N.E. 2d 850 (19464) ...............00000..20.. 16

F. §S. Royster Guano Co. v. Commonwealth of

se i Ge CIID eeccecenstcsteecnsnceecsnccestonsniniss 26

Shapiro v. Thompson, 394 U.S. 618 (1969) wo... 26

Sioux City Bridge v. Dakota County, 260 U.S. 441

ARERR ORES AERP -. SIO eT, -o ONE 15

Swann v. Charlotte-Mecklenburg Board of Educa-

is I SOG caumenopundens 26

STATUTES

ee es Mies Gt ets BI BO sii cececcessresidacchccrtcnstecieibants 21

In THE

SUPREME COURT OF THE UNITED STATES

Ocroser TERM, 1975

No.

CLARE HARTE, on her own behalf and on behalf of

all citizens and taxpayers of Cook County, Hlinois,

Plamntiff-Petitioner,

rs,

ROBERT J. LEHNHAUSEN, Former Director of the

Department of Local Government Affairs, State of Illinois;

MICHAEL J. BAKALIS, Superintendent of Public In-

struction, State of Illinois; and FRANK A. KIRK,

Director of the Department of Local Government Affairs,

State of Illinois,

Defendants-Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COUR? OF ILLINOIS

Petitioner respectfully prays that a Writ of Certiorari

issue to review the judgment of the Supreme Court of

Illinois entered in this case on May 19, 1975.

OPINION BELOW

The Opinion of the Supreme Court of Illinois is repro-

duced in Appendix “A” infra. This Opinion is reported

at 60 Ill.2d 542, 328 N.E.2d 543. The Opinions and Orders

-

of the Trial Courts are reproduced as Appendices “B”

and “C” infra. These Opinions are not reported.

J\ RISDICTION

The judgment of the Supreme Court of Illinois was

entered on May 19, 1975. No petition for rehearing was

filed. The jurisdiction of this Court is invoked pursuant

to 28 U.S.C. See. 1254.

QUESTIONS PRESENTED FOR REVIEW

1. Whether principles of Equal Protection guaranteed

by the United States Constitution are violated where

property is equalized—for purposes of taxation and ulti-

mately for apportioning school aid to school districts

throughout the State—at 50% in Cook County and at

45%, 43% or even 36% in other counties of the State.

2. Whether it was error to turn petitioner away with-

out any relief whatsoever where:

A. The pleadings—the well-pleaded facts of which are

admitted—allege intentional misconduct by State

officials designed to deprive plaintiff and other citi-

zens and taxpayers of Cook County of their fair

share of the State Common School Fund;

B. Agents of the accused Department have admitted

under oath the misconduct complained of;

C. The Governor of the State of Illinois has ad-

mitted the truth of all of the essential allegations

of the complaint;

D. The trial court and the Supreme Court of Illinois

acknowledged that the misconduct complained of

occurred and resulted in depriving petitioner and

—

other citizens and taxpayers of Cook County of

their constitutional right to equal treatment in the

distribution of funds from the Common School

Fund;

E. There is no evidence in the Record and no facts

stated to support any conclusion that the requested

relief or any other relief was impossible, imprac-

ticable or even difficult to administer. On the con-

trary, the evidence established that the requested

relief would be quite simple to administer.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fourteenth Amendment to the Constitution of the

United States provides in pertinent part as follows:

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.

Section 149 of the Revenue Act of the State of Illinois,

Ill. Rey. Stat. Ch. 120, par. 630, provides in pertinent part:

The assessments of all property, as returned by

the county clerks, shall be equalized by adding to

the aggregate assessed value thereof in every county

in which the Department may find the valuation to

be less than full, fair cash value, such rate per cent

as will raise the same to its full, fair cash value * * ~

and by deducting from the aggregate assessed value

thereof, in every county or township in which the

Department may find the valuation to be more than

full, fair cash value, such rate per cent as will reduce

the same to its full, fair cash value.

=

STATEMENT OF THE CASE

This case was before the Supreme Court of Lilinois

upon appeal from an order of the Cireuit Court of Cook

County granting defendants’ Motion to Dismiss. For this

reason all facts well-pleaded were taken as true. More-

over, prior to the order of dismissal by the trial court,

an extensive hearing was held before another judge of

the trial court on plaintiff’s Motion for a Preliminary

Injunction. In that hearing all of the facts alleged were

admitted under oath by the employees of the defendant

State agencies. In addition, in its Opinion affirming the

dismissal of the case the Supreme Court of Illinois ex-

pressed its agreement with the facts as alleged by Peti-

tioner.

This taxpayer’s action is brought by plaintiff Clare Harte

(“Petitioner”) on her own behalf and on behalf of all

citizens and taxpayers within the County of Cook, State

of Illinois. It involves the alleged and admitted manipula-

tion and distortion by State officials of a State property

tax “equalization factor”’—a device to equalize property

tax assessments among the 102 counties of the State as

explained below.

The principal purpose of the equalizer is to insure uni-

form and equal treatment to taxpayers particularly with

respect to the distribution of funds from the Common

School Fund. Any adjustment of the equalizer for any

county may have a drastic effect upon the share of assis-

tance received by school districts within that county from

the State Common School Fund: Thus, as alleged, in most

counties an illegally low equalizer was intentionally as-

signed to increase the State’s contribution to school dis-

tricts in those preferred counties.

In her two count Amended Complaint petitioner alleged

that defendant Robert J. Lehnhausen (“Lehnhausen”), the

—

Director of the Department of Local Government Affairs

for the State of Illinois during the years 1970 through

1972, either intentionally or negligently failed to correctly

compute, determine and certify the equalization rate for

Cook County, as required by law, Ill. Rev. Stat., ch. 120,

pars. 630 and 632, but overstated the equalizer for these

years. (R.C. 15-16)

Count II of the complaint alleges that the defendant

Frank A. Kirk, the present Director of the Department

of Local Government Affairs (“Kirk”), continued the lack

of uniformity by certifying the same overstated equalizer

for the year 1972 through an arbitrary “freeze” order.

(R.C. 19)

The equalization rate determined by the Director is

used to compute total equalized assessed valuation for

purposes of determining each school district’s appropriate

share from the common school fund. Specifically, to be

eligible for the basic state grant of $520 per child, the

local school district must levy a tax of $1.08 per $100

assessed valuation as equalized. (Virtually all school dis-

tricts levy more, but the $1.08 figure is the essential

qualifying constitution to the basic grant of $520). (R.

157) After that contribution by the local school district,

the remainder of the $520 comes from the common school

fund. (E.g., if the levy of $1.08 raised $200 per child, the

State grant from the common school fund would equal

$320 per child.) If the assessed valuation as equalized is

overstated, the qualifying share is higher and the State’s

contribution is less.

The complaint alleges that as a result of the conduct

of defendant Lehnhausen in his intentionally and/or neg-

ligently failing to correctly compute and certify the equali-

zation rate for Cook County, the school districts in Cook

County have not received their correct share of aid from

a oa

the State common school fund. Petitioner further alleges

that because of these facts, she and other Cook County

taxpayers have been required to pay increased real estate

taxes to make up their loss of aid from the state fund.

The conduct of defendants is alleged to violate the Con-

stitutional rights of plaintiff and other taxpayers and

the statutes of Illinois which require umformity in treat-

ment among taxpayers.

The Amended Complaint was filed on April 2, 1973.

In Count I petitioner prayed that the Court order a recom-

putation of school aid based on a corrected equalization

rate for the years 1970 and 1971. (The 1970 and 1971

equalization rate would be used to determine State school

aid in June 1972 and June 1973 respectfully. (R. 159)

Adjustments are often made after this distribution is

completed. (R. 161)

In Count II petitioner sought to enjoin Kirk from

certifying the same equalization rate for the year 1972

and to enjoin State School Superintendent Bakalis from

using this equalization rate for computing distributions

from the Common School Fund for any school district

in Cook County. (The 1972 rate would not be used by

Bakalis until June 1974.) (R. 159)

Prior to the certification of the 1972 equalization factor

by defendant Kirk petitioner filed a Motion For Prelim-

inary Injunction. At this time the defendants argued

that the cause should be dismissed for failure to state

a cause of action. (R. 66-71) This motion was denied and

the Court proceeded to hear evidence on plaintiff’s motion.

At that hearing, witnesses employed by the defendants ad-

mitted virtually all of the allegations of the complaint. The

evidence also revealed that the defendant Lehnhausen not

only intentionally manipulated the equalization factors—

using one formula for Cook County and a different (more

—_ pn

favorable) formula for all other counties, but also caused

official records of the Department to be altered. (R. 83)

The purpose and efiect of this conduct was to arbitrarily

reduce the assessments of other counties by comparison

with Cook County so that these counties would get prefer-

ential treatment in the computation of school aid from

the Common School Fund.

The trial court denied petitioner’s Motion For Pre-

liminary Injunction solely for the reason that the motion

requested a recomputation and withdrawal of the 1972

equalization factor which was about to be used by local

taxing officials to issue 1972 real estate tax bills. The

Court found that this would not be an appropriate remedy

because the recomputation of the equalization rate at

that time would require a delay in processing of the 1972

tax bills. The Court did not reach the ultimate prayer

of the complaint which seeks a recomputation of school aid.

(App. C, pp. 12a-l6a) The evidence at that hearing on

the Motion For Preliminary Injunction established that

the requested recomputation could be done at any time

and that in fact the 1972 equalizer which was about to

be used for 1972 tax bills would not be used for the

computation of school aid until June 1974. (R. 159)

The ultimate issues in the complaint came on for trial

before another judge of the Circuit Court. Prior to trial,

that judge heard further arguments of the parties on the

defendants’ Motion to Dismiss and granted defendants’

Motion to Dismiss the Amended Complaint. (App. B,

pp. 10a-lla) Petitioner then took a direct appeal to the

Illinois Supreme Court.*

* A direct appeal was authorized by the Court pur-

suant to its rules, Ill. Rev. Stat., Ch. 110A Sec. 302(b).

italia

Upon appeal, the Illinois Supreme Court agreed with

petitioner that the defendants were guilty of “nonfeas-

ance” and “utter disregard” of their “duties to equalize

assessments,” and that this utter disregard of their statu-

tory duties to afford all taxpayers equal treatment, re-

sulted in petitioner and other taxpayers in Cook County

receiving less than their fair share of funds from the

Common School Fund. (App. A, pp. 8a-9a)

However, the Court refused to grant any relief what-

ever for the admittedly inequitable treatment suffered at

the hands of these state officials. The Supreme Court

affirmed the judgment of the trial court dismissing the

amended complaint because it found that in its opinion

no relief was feasible under the circumstances of this

case. (App. A, pp. 8a-9a) Because the case came on for

hearing on a Motion to Dismiss, there was no evidence

in the Record to support the conclusion that there was

no feasible remedy available under the circumstances. On

the contrary, at the hearing on the Motion for Preliminary

Injunction, one of the defendants, a Supervisor in thie

office of the Superintendent of Public Instruction, stated

that the recomputation of school aid could be done quite

simply on a computer and within a matter of a few days.

(R. 159)

=)

REASONS FOR GRANTING THE WRIT

Preliminary

This case is unique, perhaps even startling. Here a

plaintiff representing taxpayers in a county which com-

prises almost one-half the population of the State of

Illinois has charged that State officials have arbitrarily

and intentionally computed the school aid formula in a

manner which deprived the taxpayers of this large county

of their fair and equal share of funds from the Common

School Fund. The amount of the loss to Cook County

taxpayers is staggering—estimated by petitioner to be

at least $30 million per vear. The trial court found that

such allegations of a denial of Equal Protection did

not state a cause of action. (App. B, pp. 10a-1lla)

Upon appeal to the Supreme Court of Illinois, that Court

expressed its outrage over the “utter disregard” by the

State officials to perform their duties to treat all tax-

payers equally. The Court also noted that the issues

raised in this case “are the direct result of the failure

of governmental officials to perform their duties in the

manner prescribed by law.” (App. A, 9a)* [In another

case the Court also noted that the fight for fair and

equal treatment from this State agency has been going

on for a decade without any reform by the agency or

relief from the courts. Hamer v. Lehnhausen, 60 Ill. 2c

400, 328 N.E.2d 11 (1975)] The Court denied any relief

however because it concluded—although no facts are stated

* Although the case came on for hearing in the Supreme

Court on a Motion to Dismiss—which admits all facts

well-pleaded—there were facts in the Record which fully

supported the allegations of the complaint. In a hearing

on a Motion for Preliminary Injunction, government offi-

cials admitted most of the allegations in the complaint.

=

and no facts are found in the Record to support the

conclusion—that there was no available remedy to rectify

the unconstitutional and discriminatory treatment suffered

by Cook County taxpayers. (App. A, 9a)

This conclusion totally ignored the evidence in the

record which was presented at a hearing on petitioner's

Motion for Preliminary Injunction. There it was estab-

lished that the recomputation of a correct equalization

factor—using the same formula as used for the majority

of counties—was a simple task. An employee of the De-

partment of Local Government Affairs made the compu-

tations while on the witness stand. He testified that if

he used the same formula for Cook County that he used

for others in 1970, Cook would have been assigned an

equalization rate of 1.38 instead of the assigned 1.59.

He also testified that the 1971 rate, using the “uniform”

formula, would have been 1.47 instead of 1.59. (R. 310-11)

Another witness, from the Office of the Superintendent

of Public Instruction, testified that the recomputation of

school aid due school districts in any given county

using a different equalization rate than that originally

assigned “would be a relatively easy thing” and that his

office “could probably do it in a couple of days.” (R. 159)

Petitioner respectfully submits that in the context of

this record it is ineredible for the Illinois Supreme Court

to deny relief, particularly when viewed in the light of

this Court’s many decisions which teach that where a

denial of constitutional rights is shown, our courts must

fashion some form of relief if at all possible. Surely if

trial courts can redistrict state and congressional legisla-

tive districts, apportion water rights between states, and

supervise the integration of public facilities, a trial court

can oversee the simple computation required for the relief

prayed for in this case.

—_

I.

THE DISCRIMINATORY METHOD OF COMPUTING

THE EQUALIZATION RATE AND APPORTIONING

AID FROM THE COMMON SCHOOL FUND FOR COOK

COUNTY CLEARLY VIOLATES THE EQUAL PROTEC-

TION CLAUSE OF THE UNITED STATES CONSTITU-

TION AND PETITIONER IS ENTITLED TO RELIEF.

In her complaint petitioner alleges that she and the

other taxpayers of Cook County were singled out by the

defendants in the Department of Local Government Affair»

for discriminatory treatment. The allegations of the com-

plaint clearly alleged that these defendants ordered that

one formula be used to compute the equalization factor

for Cook County and an entirely different formula—a

more favorable formula—be used for other counties of

the State. The net effect of this conduct was to arbitrarily

reduce assessments in other counties by comparison

with Cook so that these other counties would get prefer-

ential treatment in the computation of school aid from

the Common School Fund. The result of this arbitrari-

ness is well summarized in a Memorandum by an official!

of the Department and produced from the defendants’

files at the hearing on petitioner’s Motion For Preliminary

Injunction :

Based on the foregoing, it becomes evident that the

procedures followed by the Department in determin-

ing factors for township counties in the assessment

vear 1971 did not produce inter-county uniformity in

assessment: levels.

In some of the counties receiving factors in excess

of 100% and negative multipliers, the factor as cer-

tified was below that computed for these counties. /#

several counties of the State, we were ordered to

prepare factors for which there was xo method given

for adjustment of assessment levels to account for

the factors certified in these counties.

=

—

Inasmuch as State grants in aid for schools, grants

in aid for public assistance, as well as certain other

grants are based on qualtfying rates, it is imperative

that the assessment levels in each county be at as

nearly the same level as possible if these qualifying

rates which, when applied to the equalized value

based on the factor certified by the Department, are

to be as meaningful in one county as in another

county in the State. (Emphasis supplied.)*

Prior to this action by the Department, petitioner filed

a Motion For Preliminary Injunction. The hearing on

the motion resulted in a record which disclosed an in-

credible story of intentional manipulation and discrimina-

tion by State agents.

The Supervisor of the Department responsible for the

computation of the equalizer explained that for the year

1970 a formula was used which resulted in assessments

being equalized at 43.5% or less rather than 50%—for

almost all counties of the State except Cook. (R. 70-89)

The same official testified that for 1971 a formula was

used which resulted in assessments being equalized at

45% or less for that year. (R. 91-93) This official stated

that in his opinion, this procedure for determining the

equalization factors did not result in intercounty uni-

formity. (R. 90, 93) This official testified that if the gen-

eral down-state formula were applied to Cook County, it

would have yielded equalization factors of 1.38 in 1970

and 1.47 in 1971. (R. 310-11) In both years the asvigned

equalization factor for Cook County was 1.59. It is un-

disputed therefore that the actual 1970, 1971 and 1972

multipliers assigned to Cook County were higher than

* This exhibit is reproduced in full as Appendix D to

this Brief. (App. 17a-21a)

_

they would have been had the same formula used for

other counties generally been applied to Cook. Petitioner

has estimated that the result of this discrimination has

cost school districts in Cook County at least 30 million

dollars per year.

Defendant Frank Kirk, the present Director of the

Department, testified that when he assumed office after

the term of Lehnhausen he investigated the assessment

levels of the various counties and found that the wniform-

ity requirements had been violated. (R. 28-29) (Assess-

ment levels ranged from 36% to 52% with an average

of 45%.) He then admitted that he ordered this lack of

uniformity frozen into the 1972 equalization factors. (R.

29)

The Governor of the State issued a press release ex-

pressing his outrage over the lack of uniformity and

discrimination perpetrated by the prior Administration.

He then agreed to the Kirk “freeze order” which con-

tinued the discrimination. (The Governor’s Press Release

is attached as Appendix E to this Brief, pp. 21a-23a)

Other officials testified that in computing the equaliza-

tion factors for the years 1970 and 1971 they were at-

tempting to give “tax relief” to counties other than Cook.

(R. 418-19) This tax relief of course is in the form of

excess school aid because the formula is used for dis-

tributing funds held in the Common School Fund.

It is significant that the defendants never challenged

the startling allegations of intentional discrimination set

forth in the complaint. They remained undaunted when

witnesses, employees of the Agency itself, candidly ad-

mitted that the Department adopted and implemented an

=

intentional scheme of discrimination aimed at the tax-

payers of Cook County. The position of the defendants

in this litigation, which has been adopted by the trial

court and the Supreme Court of Illinois, is simply that

notwithstanding the fact that most school districts and

taxpayers in the State received certain preferred treat-

ment, Petitioner has no remedy in the Courts of [llinois.

Petitioner respectfully submits that under our laws and

the Constitution of the United States she is entitled to

judicial relief to obtain the same benefits and uniformity

of treatment afforded others. That remedy in this case

is to increase the State’s contribution to scliool districts

in Cook County by ordering that the same formulae be

used for Cook County as that used for the other coun-

ties during the years in question. This position has been

unequivocally sustained by numerous decisions of this

Court which hold that every taxpayer and citizen is

entitled to equal treatment and when certain taxpayers

are given a benefit by the State, that benefit must be

extended to all taxpayers alike. In short, it is the duty

of the State to remove any discrimination in the process.

In Township of Hillsborough vy. Cromwell, 326 U.S. 620

(1946), this Court confronted this very issue in a declara-

tory judgment action which challenged New Jersey pro-

cedure which required that a taxpayer singled out for

discriminatory treatment could only proceed against other

members of his class for the purpose of having their

taxes increased. In other words, where a taxpayer is

taxed precisely as required by statute, but all other tax-

payers similarly situated receive preferential treatment,

the injured taxpaver could not request uniform treat.

ment but could only sue the other taxpayers to have

their taxes increased to the statutorily required level.

This Court rejected this theory in unequivocal terms.

The equal protection clause of the Fourteenth

Amendment protects the individual from state action

—

which selects him out for discriminatory treatment

by subjecting him to taxes not imposed on others

of the same class. The right is the right to equal

treatment. He may not complain if equality is achieved

by increasing the same taxes of other members of the

class to the level of his own. The constitutional re-

quirement, however, is not satisfied if a State does

not itself remove the discrimination, but imposes on

him against whom the discrimination has been directed

the burden of seeking an upward revision of the taxcs

of other members of the class. (326 U.S., at 623.)

In Sioux City Bridge v. Dakota County, 260 U.S. 441

(1923), the same principle was applied where a bridge

company was assessed at 100% of its true value while

all other property in the county was assessed at 55%.

In that case the Nebraska Supreme Court held that the

taxpayers’ remedy was to have any other property as-

sessed below true value raised to its proper value. Again

this Court rejected this theory.

. . . The dilemma presented by a case where one

or a few of a class of taxpayers are assessed at 100

per cent of the value of their property in accord

with a constitutional or statutory requirement, and

the rest of the class are intentionally assessed at a

much lower percentage in violation of the law, has

been often dealt with by courts and there has been

a conflict of view as to what should be done. There

is no doubt, however, of the view taken of such cases

by the federal courts in the enforcement of the uni-

formity clauses of state statute and constitutions and

of the equal protection clause of the Fourteenth

Amendment.

... This Court holds that the right of the tax-

payer whose property alone is taxed at 100 per cent

of its true value is to have his assessment reduced

to the percentage of that value at which others are

aw $6 am

taxed even though this is a departure from the re-

quirement of statute. (260 U.S. at 446)

Again in Cumberland Coal Co. y. Board of Revision,

284 U.S. 23, 28-29 (1931), this Court, relying on the

Stoux City Bridge Company case, held that an assess-

ment should be reduced to the percentage of that value

to which others are taxed even though this reduction

woud result in a departure from statute. See also Iowa-

Des Moines National Bank v. Bennett, 284 U.S. 239, 247

(1981); Chacago Great Western Ry. vy. Kendall, 266 U.S.

94, 98 (1924); and Levy v. Parker, 346 F.Supp. 897 (affm.

three judge court) 411 U.S. 978 (1972).

The Illinois Courts have often restated these same

propositions. See, for example People’s Gas, Light and

Coke Co. v. Stuckart, 286 Ill. 164, 121 N.E. 629 (1918)

and People ex rel Tedrick vy. Allied Oil Corp. of Illinois,

388 Ill. 219, 57 N.E.2d 859, 861 (1944).

The essence of the above opinions of this Court is that

all taxpayers and citizens are entitled to a uniform ap-

plication of the laws and it is no answer to a charge of

discrimination that the aggrieved citizen paid only his

due tax as set forth in a statute. Applying these prin-

ciples to this case, these cases teach us that Cook County

taxpayers have a right and valid claim to receive the

same treatment afforded the preferred taxpayers in othe;

counties, 1.e., that their proper share of school aid should

he computed in the same manner that aid was computed

for the preferred counties.

—17—

II.

A CLEAR AND FLAGRANT VIOLATION OF PLAIN-

TIFF’S CONSTITUTIONAL RIGHTS HAVING BEEN

ADMITTED, PETITIONER’S COMPLAINT STATED A

JUSTICIABLE CAUSE OF ACTION. THERE ARE

ADEQUATE AND PRACTICAL REMEDIES AVAIL-

ABLE AND THERE IS NO EVIDENCE IN THE REC.

ORD TO SUPPORT THE CONCLUSIONS OF THE

SUPREME COURT OF ILLINOIS THAT THERE IS

NO PRACTICAL REMEDY AVAILABLE.

The Trial Court’s Dismissal

The trial court dismissed the case after first finding

that property in Cook County was equalized at 50% of

market value—the statutorily required rate. The trial

court then concluded that the rights of Cook County tax-

payers were not violated because Cook County property

was equalized as required by the Revenue Act of Llinois.

The court totally disregarded the constitutionally guar-

anteed right of every taxpayer to fair and equal taxation

as discussed in Sioua City Bridge v. Dakota County, Ne-

braska, (supra); /owa Des Moines National Bank v. Ben-

nett, (supra); Township of Hillsborough v. Cromucell,

(supra); Cumberland Coal Company v. Board of Revision,

(supra) and a legion of Illinois cases which require uni-

formity in treatment in taxation. See for example, People's

Gas, Light & Coke Company vy. Stuckart, (supra): People

ex rel Tedrick y. Allied Oil Corp. of Illinois, (supra).

In the last cited case, the Illinois Supreme Court stated,

citing this Court’s Opinion in Sioux City Bridge Com-

pany v. Dakota County, Nebraska:

It is true the statute requires that property must

be assessed at its fair cash value; however, it is the

constitutional right of a taxpayer whose property

is assessed at its fair cash value, to have his assess-

— |}

ment reduced to the percentage of that value at

which the property of others is assessed generally

in the taxing district. The constitutional requirement

of uniformity in taxation is controlling in statutes

pertaining to taxation must yield thereto. (388 TIl.,

at 222)

In light of these clear authorities, the order of the

trial court dismissing the case for want of jurisdiction

was clearly erroneous. As this Court observed in its land-

mark reapportionment case, Baker v. Carr, 369 U.S. 186,

199 (1962) :

The complaint alleges that the 1901 Statute affects

an apportionment that deprives the appellants of

the equal protection of the laws in violation of the

Fourteenth Amendment. Dismissal of the complaint

upon the ground of lack of jurisdiction of the sub-

ject matter would, therefore, be justified only if

that claim were “so attenuated and unsubstantial as

to be absolutely devoid of merit”. Newburyport Water

Company v. Newburyport, 193 U.S. 561, 579, or “frivo-

lous”. Bell v. Hood, 327 U.S. 678, 683.

The same principles apply to an Illinois Court con-

fronted with the allegations of violations of constitu-

tional rights as asserted here. Not only were the consti-

tutional claims not “frivolous”—here they were serious,

clear and admitted by most of the principals involved.

The Supreme Court of Illinois, in its review of this case,

acknowledged the clear and convincing case made by

Petitioner. It is therefore clear that the complaint in this

case stated a cause of action justiciable in the Courts

of Illinois.

= =

The Supreme Court of Illinois Decision

Upon review the Supreme Court of Illinois affirmed the

trial court's dismissal of the complaint. In doing so, how-

ever, the Court did not adopt the reasoning of the trial

court, to wit: that the complaint did not state a justici-

able cause of action because County taxpayers were taxed

at the lawful rate. Indeed, the Illinois Supreme Court

rejected this argument in another case decided just a

few weeks prior to this case. See Hamer v. Lehnhausen,

60 Til.2d 400, 328 N.E.2d 11 (1975)

The Court appears to have concluded that petitioner’s

action should be dismissed without even a hearing on the

merits because there was no adequate remedy available

to rectify the admitted violation of constitutional rights.

This conclusion as to the unavailability of any adequate

remedy was made without support of any evidence in

the Record.

In its decision the Supreme Court acknowledged that

the allegations of the complaint adequately alleged a

violation of constitutional rights. Its conclusion in this

regard was unequivocal. First, it stated:

We agree with plaintiff that there is no apparent

justification for the utter disregard of the Depart-

ment of Local Affairs of the statutory mandate to

equalize assessments in all counties of 50% of fair

eash value. (App. A, 8a)

The Court then emphasized that the “inequity is accen-

tuated in this case by the fact that Cook County contains

roughly one-half of the total population of the State.”

(App. A, 8a) In the course of its opinion the Court

repeatedly commented on the “failure ... of assessing

authorities to implement the statutory system ... de-

—_ _

signed to achieve uniformed equalized assessments” and

the “nonfeasance” and “failure of government officials to

perform their duties in the manner prescribed by law.”

(App. A, 8a-9a) Notwithstanding these facts and the

Court’s repeated expressions of righteous indignation, the

Supreme Court of Illinois concluded that, in its opinion

without any supporting evidence in the Record, there was

no judicial solution to the “problems” raised by Pe-

titioner’s complaint.

Petitioner respectfully submits that the judgment of

the Supreme Court of Illinois in this case represents a

total abdication of the responsibilities of that Court to

provide a remedy where available for a violation of con-

stitutional rights. As shall be shown below, there is no

basis in law or fact for the conclusions of the Court of

the unavailability of a remedy for the wrongs complained

of. There was no evidence in the Record as to these

facts. More importantly, the evidence presented by peti-

tioner in the hearing on a Motion for Preliminary In-

junction indicates that there is a clear and simple remedy

available. This remedy was rejected by the Supreme Court,

based on conclusions and opinions unsupportable in the

Record of this case.

The Illinois Supreme Court expressed certain consid-

erations which supposedly support, its “opinion” that it

would not be feasible to grant relief in this case. Peti-

tioner respectfully submits that none of these considera-

tions support the conclusion of the Court that no relief

is available. Each of the considerations are discussed

below.

1. The Court stated that, in its opinion, “It would be

completely inappropriate to direct the Superintendent of

—

Public Instruction to distribute school aid in a manner

contrary to law in order to remedy the mistakes of other

governmental departments which have ignored the law.”

(App. A, 8a)

The Court states no facts to support its opinion

that the proposed redistribution of school aid would be

“inappropriate” or even contrary to law. While the stat-

utes require the Superintendent of Public Instruction to

distribute school aid pursuant to a formula which includes

the equalizer as supplied by the Department of Local

Government Affairs (Ill. Rev. Stat., Ch. 122, par. 18-8),

these statutes presume that the responsible State offi-

cials computed a fair and accurate equalizer. It is incon-

ceivable that, in devising the school aid formula, the

Legislature intended that the Superintendent of Public

Instruction would use an equalizer which is known and

acknowledged by all to be false and fraudulent. The

basic statutes provide that school aid is to be distributed

based on properly computed assessed valuations. The

method of distributions suggested by plaintiff—using the

same formula as used in other counties—would result in

the distribution of school aid in a manner consistent with

the statutes and definitely not “contrary to law” as sug-

gested by the Supreme Court.

More importantly, even if the only available remedy

required the distribution of school aid in a manner incon-

sistent with the relevant State statutes, it is a well estab-

lished principle that State statutes are not to be followed

where necessary to protect constitutional rights. indee.l

in the opinion of the Llinois Courts in Tedrick v. Allied

Oil Corp., (supra), the Illinois Court, citing this Court’s

opinion in Sioux City Bridge Co. vy. Dakota County,

Nebraska, (supra) noted that: “The constitutional require-

anti

ment of uniformity in taxation is controlling and statutes

pertaining to taxation must yield thereto.” (&xmphasis sup-

plied) (388 Ill, at 222).

Surely this principle is demonstrated in every term

of this Court where State agents are required not to follow

State statutes dealing with every conceivable subject from

legislative districting to abortions, where to follow the

statute would result in a violation of constitutional rights.

2. The Court stated that to utilize one multiplier (or

equalizer) for purposes of taxation and a different one

for other purposes such as computing school aid would

not resolve the fundamental problem—the failure of

assessing authorities to implement the statutory system

to achieve uniform assessments. (App. A, Sa, 9a)

This statement is erroneous and_ short-sighted. The

purpose and use of the multiplier was recently explained

in a report of a Joint Legislative Committee of the

Illinois General Assembly, “The Illinois Property Tax

System: Problem And Promise, Report of the Joint Sub-

committee To Study The Property Tax”:

The multiplier, or equalization, system was intro-

dueed to equalize assessments throughout [llinois, pri-

marily to achieve equity between taxpayers and to

insure an equal distribution of certain State funds

related to the property tax, particularly the school

aid funds. In addition to school aid, the State dis-

tributes funds, at least partially based on property

assessments, for tuberculosis treatment, public assist-

ance, and distribution of motor fuel taxes to counties,

townships, road districts and municipalities. Theo-

retically, the muitiplier also is supposed to insure that

taxpayers living in different assessing districts (such

as separate townships and/or counties) comprising

one taxing district (such as a multi-county school or

—=_ =

junior college district) will pay “equal” taxes in

relation to the value of their particular property.

(at pp. 4-5)

In terms of taxpayers’ rights, the single most important

function of the equalizer is the distribution of aid from

the Common School Fund. For that reason the use of one

equalizer for purposes of taxation and a different one

for computing school aid does much to resolve the funda-

mental problem. Insofar as petitioner and the other tax-

payers of Cook County are comverned it would practically

resolve the fundamental problem in total.

3. The Court stated that petitioner’s proposed remedy

does not alleviate other problems in other areas such as

publie aid arising from this nonfeasance. (App. A, 9a)

Admittedly, petitioner’s proposed remedy (recomputa-

tion of school aid) will not alleviate or remedy petitioner's

loss of public assistance and perhaps certain other funds

lost to petitioner by the misconduct of these State officials.

As explained above, the proposed relief will repay for

most of the suffered loss.

In offering this “consideration” to support its opinion

that no relief is available, the Illinois Court seems to be

saying that petitioner and other taxpayers should get no

relief because they are entitled to more.

4. Petitioner’s suggested remedy would compel tax-

payers in certain other counties to contribute portions

of their sales and income tax payments to make up the

amount petitioner claims due to Cook County School Dis-

tricts. (App. A, 9a)

Payments ‘rom state funds are often required to pro-

tect constitutional rights. If taxpayers in any of these

_— von

other counties were likewise victims of the defendants’

misconduct they should pursue their relief in the courts

as petitioner has done.

Significantly, in its opinion the Court acknowledged

that this “consideration” was not of major “significance”

in the context of this case. (App. A, 90) Petitioner re-

specttully submits that it is of no significance.

0. Because the problems presented in this case are

the result of the failure of government officials to per-

form their duties as required by law, the problems “do

not lend themselves to judicial selution.” (App. A, 9a)

Petitioner respectfully submits that in this sweeping

conclusion the Supreme Court of Illinois attempts to

repeal our entire history of constitutional government.

It has been established since Marbury v. Madison, 1 Cranch

137, 2 L.Ed. 60 (1803), that relief from such misconduct

is in the courts. In short, where it is alleged that the

failure of governmental officials to perform their duties

by law—and where government officials violate the con-

stitutional rights of our citizens—these problems do lend

themselves to judicial solution. Indeed these problems

in many respects are the reason our courts were created.

6. The remedies sought may cause such additional dif-

ficulty, delay and expenses to make their use impracti-

cable. (App. A, 9a)

The Court did not state any such difficulties, delays

or expenses which would be related to the remedy sought.

The expert testimony in the office of the Superintendent

of Public Instruction shows that the proposed relief was

simple, expedient and inexpensive and could be completed

on a computer within a matter of days. (R. 151)

ms

<_<

Significantly, the Court offered no facts to support

this conclusion. It cited only the trial court’s denial of

the Preliminary Injunction. However, in denying the Pre-

liminary Injunction the trial court was talking about

delays and expenses in issuing property tax bills. For

that reason the Court would not order withdrawn thie

1972 multiplier just prior to the issuance of 1972 tax bills.

That Court then set the ultimate issue for trial. (App. C,

16a) Implicit in this action was the fact that this relief—

the recomputation of school aid—was not impracticable

and did not involve unreasonable difficulties, delays or

expenses.

This conelusion is clear from the record:

[The Court]

For these reasons the Court denies in its entirety

the Plaintiff’s petition for preliminary injunction. You

can prepare an order accordingly.

Mr. Harte | Petitioner’s Counsel]: If Ll understand,

it does not reach the other prayers for relief on a

recomputation as the case goes ahead, is that correct?

The Court: That is right.

Mr. Harte: The Court does not reach that ques-

tion.” (App. C, 16a)

In short, there is nothing in the record to support the

conclusions of the [llinois Supreme Court that the relief

requested is in any way impracticable. Rather, as_pe-

titioner has illustrated above and as agents of the

Superintendent of Public Instruction have testified, the

relief requested in this case is simple and appropriate.

In commenting on the duty of our courts to enforce con-

stitutional right (in that case the right to equal repre-

sentation in a State legislature), former Justice Tom

Clark stated:

—_— wa

National respect for the courts is more enhanced

through the forthright enforcement of those rights

rather than by rendering them nugatory through the

interposition of subterfuges: In my view the ultimate

decision today is in the greatest tradition of this

Court. (Baker v. Carr, 369 U.S. 186, 262) (Concurring

Opinion)

Those comments apply equally here.

In another concurring opinion in that case it was also

stated:

It is said that any decision in cases of this kind is

beyond the competence of courts. Some make the

same point as regards the problem of equal protec-

tion in cases involving racial segregation. Yet the

legality of claims and conduct is a traditional subject

for judicial determination. Adjudication is often per-

plexing and complicated. An example of the extreme

complexity of the task can be seen in a decree appor-

tioning water among the several States. Nebraska v.

Wyoming, 325 U.S. 589, 665. The constitutional guide

is often vague, as the decisions under the Due Process

and Commerce Clause show. The problem under the

Equal Protection Clause is no more intricate.

In the past this Court has not hesitated to condemn

State practices that deny equal protection, Moore v.

Ogilvie, 394 U.S. 814 (1969); Shapiro v. Thompson, 394

U.S. 618 (1969); nor hesitated to strike down entire

schemes of taxation which were violative of the Equal

Protection Clause. F. S. Royster Guano Co. v. Common-

wealth of Virginia, 253 U.S. 412 (1920).

When necessary this Court has taken extraordinary

steps to protect every citizen’s right to Equal Protection.

Recently in Swann y. Charlotte-Mecklenburg Board of

—_—

Education, 402 U.S. 1, (1971), this Court was called upon

to fashion remedies which included the exercise of the

Court’s historic remedial powers. In order to achieve the

goal of Equal Protection, this Court approved busing of

students, altering of attendance zones, and the limited

use of quotas to achieve racial equality.

In other cases, trial courts have been required to re-

district state legislatures and even to divide water be-

tween states. Nebraska v. Wyoming, 325 U.S. 589, 665

(1945). The trial courts of our Nation have demonstrated

remarkable flexibility and imagination in administering

relief in the most complex cases.

By contrast to the more complicated cases, the reliet

sought to be administered in this case is uncomplicated

and can be expeditiously administered. As stated above,

one witness computed the correct equalizer for. Cook

County for each of the years in question with a pocket-

size calculator. Another witness admitted that these ad-

justments could be made in a simple manner within a

few days. There is absolutely nothing in the Reeord to

support the conclusions of the Supreme Court of Illinois

that no relief was practicable. It would seem from a

constitutional standpoint that before such a conclusion

could be reached, there should be at the very least a

hearing in the trial court where petitioner would have an

opportunity to dispute the conclusions reached by the

Supreme Court without the support of any evidence from

the lower Court Record.

Petitioner respectfully submits that if the opportunity

is given, she can and will adequately demonstrate that

there is adequate relief available to grant fuil reliet for

the admitted denial of constitutional rights in this case.

=_ =

CONCLUSION

For the reasons set forth here and above, petitioner

respectfully prays that a Writ of Certiorari be issued to

review the judgment and opinion of the Supreme Court

of Illinois.

Respectfully submitted,

Kevin M. Forpe, L7o.

111 West Washington Street

Chicago, Illinois 60602

Attorney for Plaintiff-Petitioner

Of Counsel

WituuaM J. Harte, Lrp.

WiLLiAM J. CAMPBELL, JR.

—!

APPENDIX A

Opinion of the Supreme Court of Illinois

Docket No. 46533—Agenda 19—January, 1975.

CLARE HARTE, Appellant, v. ROBERT J.

LEHNHAUSEN et al, Appellees.

MR. CHIEF JUSTICE UNDERWOOD delivered the

opinion of the court:

Plaintiff, on her own behalf and for all citizens, tax-

payers and taxing bodies in Cook County, filed an amended

complaint for declaratory judgment and injunction against

the former and present Directors of the Department of

Local Government Affiairs and the Superintendent of

Public Instruction. She sought a recomputation and adjust-

ment of payments to Cook County school district from the

State common school fund for 1969 through 1971. She also

sought to enjoin the certification of the 1972 equalization

rate (commonly referred to as the “multiplier”) for Cook

County by the Department of Local Government Affairs

and the distribution of State school aid on the basis of that

rate. Plaintiffs motion for preliminary injunction was

denied, and the Circuit Court of Cook County subsequently

allowed defendants’ motion to dismiss the amended com-

plaint. "Ye have allowed plaintiff’s motion for direct ap-

peal pursuant to Supreme Court Rule 302(b). 50 Tll.2d R.

302(b).

The case involves the interrelationship of the equaliza-

tion of assessments of property in the various counties by

the Department of Local Government Affairs and the ap-

portionment of school aid from the State common school

fund to school districts throughout the State. A brief

review of the pertinent statutory provisions is required.

The Revenue Act of 1939 provides that except in counties

with a population of more than 200,000 which classify real

=

property for purposes of taxation, property is to be valued

for taxation at “fair cash value,” which is defined as 50%

of actual value. (Ill. Rev. Stat. 1971, ch. 120, pars. 482(24),

501.) The Department of Local Government Affairs is di-

rected by statute to equalize assessments between the

counties so that in all couunties property will be assessed

at its full fair cash value as defined by the Act. (Pars.

612, 627.) To this end, section 149 of the Act provides in

part that:

“The assessments of al] property, as returned by

the county clerks, shall be equalized by adding to the

aggregate assessed value thereof in every county im

which the Department may find the valuation to be

less than full, fair cash value, such rate per cent as

will raise the same to its full, fair cash value * * *

and by deducting from the aggregate assessed value

thereof, in every county or township in which the De-

partment may find the valuation to be more than full,

fair cash value, such rate per cent as will reduce the

same to its full, fair eash value.” (Par. 630.)

The rate so determined by the Department to arrive at

such equalization is then certified by the Department to

each county clerk, and the equalized valuations resulting

from applications of the multiplier to the locally assessed

valuations are used by the respective county clerks in

extending taxes. (Par. 632.)

The School Code utilizes equalized assessed valuation in

determining a school district's qualification to receive

grants from the common school fund. Section 18-8 of the

Code contains detailed provisions dealing with the appor-

tionment of various types of State school aid. (Til. Rev.

Stat. 1971, ch. 122, par. 18-8.) During the years in question

the section included provisions for school aid “equalization

quotas” which, subject to certain percentage increases and

other adjustments, are amounts provided by the State to

supplement local tax levies to a level of $520 per pupil in

average daily attendance. Stated briefly, a school district

which levies a sum for educational purposes at least

oni cin

equivalent to a specified percentage of the value of all its

taxable property as equalized or assessed by the Depart-

ment of Local Government Affairs on the date of the levy

is entitled to receive a grant from the common school fund

in an amount which, when added to the amount of the

levy at the specified minimum percentage, will produce the

sum of $520 per pupil in average daily attendance. Accor-

dingly, it is apparent that as a county’s equalized assessed

valuation becomes larger, the minimum amount which must

be levied for educational purposes in order to qualify for

State assistance must also increase, with the consequence

that the amount received from the common school fund

will be correspondingly smaller.

In Count I of the amended complaint plaintiff alleged

that during the year 1972 the Director of the Department

of Local Government Affairs was responsible for the com-

putation, determination and certification of the multiplier

for the several counties in the State; defendant Michael

J. Bakalis, as Superintendent of Public Instruction of the

State, was responsible for the administration of the com-

mon school fund and its apportionment among. the

various school districts in Illinois; that the multipliers

determined by the Director were used to compute “total

equalized assessed valuation” for purposes of determining

the qualification and appropriate share of the common

school fund for each school district; that the Director had

either intentionally or negligently failed to correctly com-

pute, determine and certify the multiplier for Cook Coun-

ty as provided by statute but had instead intentionally or

negligently overstated it as a consequence of which school

districts in Cook County, including the Chicago Board of

Education, had not received in the past, and would not

receive in the ture, their correct and lawful distributive

shares of the common school fund: that such overstate-

ment resulted in increased taxes for taxpayers in Cook

County; and that such conduct was contrary not only to

provisions of the Revenue Act requiring uniform and ace-

curate determination of multipliers, but was also violative

ce

—

of provisions of the State and Federal constitutions guar-

anteeing equal protection of laws and uniformity of taxa-

tion. Plaintiff sought a recomputation, determination and

certification of the multipliers for 1970, 1971 and future

years and a recomputation of the corrected distributive

shares of the common school fund for school districts in

Cook County for the years 1969, 1970 and i971.

Count II contained essentially the same allegations as

Count I and sought to enjoin the acting Director of the

Department of Local Government Affairs from certifying

the 1972 multiplier for Cook County and to enjoin the

Superintendent of Public Instruction from computing State

school aid for Cook County school districts on the basis

of equalized assessed valuations determined by use of that

multiplier.

Plaintiffs’ amended complaint was filed on April 2, 1973.

The request for preliminary injunction was, over plain-

tiff’s objection, set for hearing on April 9. Between April

2 and April 9 the Department certified the 1972 multiplier,

and plaintiff accordingly requested that the Court enter an

order recalling the multiplier and directing its recomputa-

tion. :

At the hearing on the motion there was testimony con-

cerning the procedures of the Department of Local Govern-

ment Affairs in assigning multipliers for the years 1970

through 1972 in the quadrant and nonquadrant counties.

Those few counties such as Cook, which are divided into

quadrants for assessment purposes, each received an an-

nual adjustment of its multiplier as one quadrant was

reassessed each year. Multipliers were determined for all

other counties every four years on the basis of the qua-

drennial assessments until the enactment of Public Act 77-

556, approved July 31, 1971 (Laws of 1971, at 1159), which

amended several sections of the Revenue Act to provide

for annual equalization of all counties. The testimony

indicated that the Department calculated multipliers for

each county by use of a formula the nature of which is not

clearly shown by the record.

a= Se...

The year 1970 was the quadrennial reassessment year

for counties having a commission form of government. In

developing tentative multpliers for these counties, the De-

partment first utilized a constant in its formula which, it

is said, would have brought the equalized assessed valua-

tions to the 50% level required by statute. However, pur-

suant to a departmental directive that equalization rates

were not to be increased more than 20% over the previous

year, a different constant was ultimately arrived at, result-

ing im equalized assessed valuations at 43.48% of actual

value in most of the commission counties. The original

constant was used only for Cook, Monroe and Wabash

Counties.

A similar situation existed with respect to the deter-

mination of 1971 multipliers for the township counties

which received their quadrennial reassessment that year.

In response to instructions not to increase multipliers by

more than 20% over the immediately proceding year, one

constant was finally arrived at for most of the township

counties and a higher constant for others which resulted

in equalization of 45.04% or less of actual value. Only

Cook and Lawrence Counties were equalized that year

using the original constant in the formula. ,

On February 21, 1973, the Governor issued a press

release announcing that he had ordered multipliers frozen

at the current level, and the 1972 multipliers were accord-

ingly certified by the Department at the same level as 1971

rates. The same lack of uniformity among counties con-

ceded by the witnesses to exist with respect to prior years

was thus carried forward into the 1972 equalized assessed

valuations.

The net result for the years in question is perhaps

typified by the year 1971, in which the equalized assessed

valuation in Cook County remained at approximately 50%

of fair cash values, while such valuations in the rest of

the counties ranged from a high of 53.23% in Du Page

County to a low of 36.01% in Effingham County.

—

In its April 23, 1973, denial of plaintiff’s motion for

preliminary ‘njunction, the trial court made certain find-

ings, including the following: There was a lack of uniformi-

ty among the counties in the multipliers assigned by the

Department of Local Government Affairs; it would take at

least one week for the Department to recompute and re-

certify the 1972 rates; at that time the county clerk of

Cook County was processing the current real estate tax

bills on the basis of the 1972 multiplier it had recently re-

ceived; based on the delayed schedule then in effect the

deadline for payment of the first installment of 1972 taxes

had been deferred to June 30; approximately 54 days were

needed between the receipt of the multiplier and the is-

suance of all tax bills; the various taxing districts in Cook

County had approximately $26,500,000 in tax anticipation

warrants outstanding; the Chicago Board of Education

operated for tax purposes on a pegged levy and was then

at the maximum so that a reduction in the multiplier would

reduce the equalized assessed valuation resulting in a reduc-

tion of tax revenue for that body; and any recomputed

1972 rate would not interfere with or delay the Super-

intendent of Public Instruction in determining distributive

shares of any school district in the common school fund.

The trial court concluded that notwithstanding an ap-

parent “manipulation” in computing the multipliers by the

Department of Local Government Affairs, the plaintiff had

“failed to establish by clear and convincing evidence how

the Chicago Board of Education or any Cook County

School District would be actually aided by granting the

relief requested when taking into consideration and balanc-

ing the same against the effect of (1) reduction of the

equalized assessed valuations, and (2) a delay in the tax

bills, and (3) need for use and cost of tax anticipation

warrants.” His memorandum further stated that “in this

Court’s opinion directing the Director Kirk to recall and

recompute the multiplier as beneficial as that may be, is

overcome by the chaos that could result to the various

taxing bodies, and the cost to the public by the delay in

the receipt of tax income.” We agree that the preliminary

injunction was properly denied.

=

In his order allowing defendants’ motion to dismiss the

amended complaint the trial judge stated: “The court finds

that the Amended Complaint and Bill of Particulars admit

that at all times relevant to the Amended Complaint, the

assessment of real property in Cook County was equalized

at 50% of fair cash value: that Section 1(24) of the Reve-

nue Act of 1939, Ill. Rev. Stats. Chap. 120, par. 482(24)

requires that the assessment of real property be equalized

for taxation at 50% of fair cash value; that Section 18—8

of the School Code, Ill. Rev. Stats. Chap. 122, par. 18—8

provides that the equalization quotas for State aid to

schools be calculated upon the value of taxable property

as equalized; that for purposes of the Motion, taking all

well pleaded allegations in the Amended Complaint as

being true, it is apparent that there has been no illegal

overassessment after equalization in Cook County, but to

the contrary, that the assessment of real property in Cook

County as equalized is in conformity with and not in viola-

tion of the Revenue Act of 1939; that taxes have been

extended and tax bills issued upon the Cook County

assessment as equalized; that the Court does not have

jurisdiction or authority in law to grant the relief prayed

for in the Amended Complaint.”

On this appeal plaintiff reasserts her contention that

there should be a remedy for the alleged discriminatory

method of computing the Cook County multiplier which

resulted in school districts in that county receiving less

than their fair share of school aid from the common schoo!

fund. She does not seek a refund of taxes, or the use of a

recomputed multiplier for taxing purposes. She argues,

instead, that an appropriate method of correcting the

alleged inequities which have resulted would be to recom-

pute the multiplier for Cook County for the years in

question on the same basis as other counties and then

redetermine the amount of State school aid Cook County

school districts should have received. As to years in which

school aid had already been paid, the relief would pre-

sumably involve a direction to the legislature to appro-

priate extra funds to be paid to Cook County school

—

districts from the common school fund to adjust for past

underpayments. With respect to years as to which final

payment from the common school fund had not yet been

made, the remedy would be to order that the distributive

share of Cook County school districts in the common

school fund be redetermined on the basis of the corrected

equalized assessed valuation. In both instances the addi-

tional payments to the school districts from the common

school fund would theoretically inure to the benefit of

Cook County taxpayers by lowering future real estate

taxes.

We agree with plaintiff that there is no apparent

justification for the utter disregard by the Department of

Local Government Affairs of the statutory mandate to

equalize assessments in all counties at 50% of fair cash

value. We do not, however, agree that it would be feasible

to attempt to rectify that error in the manner suggested by

plaintiff in the cireumstances of this case. (People ex rel.

Hamer v. Jones (1968), 39 Ill.2d 360.) While we are here

concerned only with Cook County, it is clear that every

county in this State which is entitled to assistance from

the common school fund, excepting only the one with the

lowest equalized assessed valuation, has suffered from the

same basic inequity in degrees varying with the differences

in valuation. That inequity is accentuated in this case by

the fact that Cook County contains roughly one-half the

total population of the State. We note, too, generally

speaking, that it is the more heavi'y populated counties in

the State which are in the higher range of equalized

assessed property valuations. In our opinion, however, it

would be completely inappropriate to direct the Super-

intendent of Public Instruction to distribute school aid in

a manner contrary to law in order to remedy the mistakes

of other governmental departments which have ignored

the law. Furthermore, to utilize one multiplier for pur-

poses of taxation and a different one for other purposes,

such as computing State school aid as urged by plaintiff,

does nothing to resolve the fundamental problem, which is

the failure of both local and State assessing authorities to

—

implement the statutory system for property assessments

designed to achieve uniform equalized assessments among

the counties at 50% of actual value. Nor does plaintiff’s

remedy alleviate similar problems in other areas, such as

public aid, arising from this nonfeasance. While not of

major significance in the context taxpayers in those few

counties wth equalized assessed valuations higher than

Cook to contribute portions of their sales and income tax

payments (the sources of the common school fund) to

make up the amount plaintiff claims due in Cook County

school districts.

The problems presented by this case are the direct

result of the failure of governmental officials to perform

their duties in the manner prescribed by law. As we

indicated in People ex rel. Hamer v. Jones (1968), 39 Ill.2d

360, 372, these problems “do not readily lend themselves

to judicial solution,” and, as the trial court here indicated

in denying the preliminary injunction, the remedies sought

may cause such additional] difficulty, delay and expense as

to make their use impractical. That, in our judgment, is

true here as to past years.

As to equalized, assessed valuations for 1975 taxes,

payable in 1976, a different situation exists. As to them

our judgment in Hamer v. Lehnhausen (1975), 60 IIl.2d

400, should prove dispositive and eliminate inequities in

future years.

For the reasons above stated the judgment of the

circuit court of Cook County is affirmed.

Judgment affirmed.

— 10a —

APPENDIX B

Opinion of the Circuit Court of Cook County

Dismissing the Complaint

[CAPTION }

ORDER

This cause coming on to be heard on Defendants’ Mo-

tion to Dismiss the amended complaint, and the parties

being represented by counsel, and the court hearing argu-

ment and being fully informed in the premises:

The court finds that the Amended Complaint and Bill

of Particulars admit that at all times relevant to the

Amended Complaint, the assessment of real property in

Cook County was equalized for taxation at 50% of fair

cash value; that Section 1(24) of the Revenue Act of

1939, Tll.Rev.Stats. Chap. 120, §482(24) requires that the

assessment of real property be equalized for taxation

at 50% of fair cash value; that section 18-8 of the School

code, Ill.Rev.Stats. Chap. 122, §18-8 provides that equaliza-

tion quotas for State aid to schools be calculated upon the

value of taxable property as equalized; that for purposes

of the Motion, taking all well pleaded allegations in the

Amended Complaint as being true, it is apparent that

there has been no illegal overassessment after equaliza-

tion in Cook County, but to the contrary, that the assess-

ment of real property in Cook County as equalized is in

conformity with and not in violation of the Revenue Act

of 1939; that taxes have been extended and tax bills

issued upon the Cook County assessment as equalized;

that the court does not have jurisdiction or authority in

law to grant the relief prayed for in the Amended Com-

plaint.

—lla—

It is therefore Ordered that the Motion to Dismiss the

Amended Complaint be and same hereby sustained, and

judgment entered in favor of defendants and against

Plaintiff and that Plaintiff take nothing by her action

“and defendants go hence without day.

Judge F. Emmett Morrissey

July 17, 1973

Circuit Court

=

APPENDIX C

Opinion of the Circuit Court of Cook County

Denying Plaintiff’s Motion for Preliminary Injunction

[CAPTION } y,

MEMORANDUM—ORDER

SUMMARY OF PLEADING AND PROCEEDINGS

“Frank A. Kirk, successor to Lehnhausen, had or was

about to determine and certify the equalization rate for

the County of Cook, and that said rate will be overstated.

Plaintiff sought to enjoin Kirk from certifying said rate.

Over objection of the Defendants the Court set the

matter for hearing on April 9th.

The matter proceeded to a hearing on that date based

onlye pon Plaintiff's amended complaint and motion for

preliminary injunction.

During the interim between April 2nd and April 9th,

Defendant Kirk did certify said rate to the County Clerk

of Cook County and elsewhere in the State. The Plaintiff

is now asking that the Court recall said certified rates

and recompute same,

Plaintiff also asks that Defendant Michael J. Bakalis,

Superintendent of Public Instruction for the State of

Illinois be enjoined from determining the distributive

shares of any school district in the common school fund

based on the said certified rates.

Based on the aforesaid proceedings, the evidence of the

witnesses, all exhibits, and arguments of Counsel, the

Court does hereby find as follows:

1. Plaintiff is a resident and citizen and taxpayer of

the City of Chicago, County of Cook, and adequately

represents the interest of all members of her class

6.

ag

— 13a —

in this action involving public questions of great

importance.

In computing the equalization rates for the year

1971 and prior thereto, the Department of Local

Government Affairs used as one of the essential

components an element labeled a “constant.” The pur-

pose of the constant is to produce a uniform result.

The evidence established that a constant of two is

the ideal. No statute, department regulations or cri-

teria is or has been promulgated as to which constant

to use.

The evidence further established that at the dis-

cretion and direction of the Director Lehnhausen for

the year 1971 and prior thereto, higher constants

were used for certain counties. The use of the higher

constant in the formula produces a lower multiplier

for such counties. This results in a lack of uniformity

in the equalization rates.

Director Kirk succeeded Lehnhausen in January of

1973. He testified that based upon his studies there

were wide variations in previous years equalization

rates; that studies and changes had to be made. That

legislative help might be needed and that it would

take six to twelve months to effect changes.

On February 21, 1973, Governor Dan Walker or-

dered the multipliers to be used for 1972 frozen on

the 1971 basis pending a review of the entire subject.

Director Kirk certified the 1972 rates based on the

1971 computations.

It would take at least one week for the Department

of Local Government Affairs to recompute and re-

certify the 1972 rates.

At the present time the County Clerk of Cook County

having received the 1972 equalization rates is pro-

cessing the current real estate tax bills. Based upon

=

the present schedule the first installment of the 1972

tax bill has been deferred to and must be paid

on or before June 30th. That approximately 54 days

are needed between the receipt of the multiplier and

issuance of al] tax bills.

8. As of March 28, 1973, various taxing districts in

the County of Cook had outstanding approximately

$26,500,000 in tax anticipation warrants.

¥. The Chicago Board of Education operates for tax

purposes on a pegged levy. That said Board is

presently at the maximum of said pegged levy. A re-

duction in the multiplier would reduce the equalized

assessed valuation resulting in a reduction of tax

revenue for the Chicago Board of Education.

10. Any re-computed 1972 rate would not interfere with

or delay the Defendant Bakalis in determining the

distributive shares of any school district in the com-

mon school fund.

It is generally held that before a preliminary injunction

may be ‘ssued Plaintiff must establish:

1. Probable ultimate success of its case in chief;

2. Immediate certain injury;

3. Grant of relief would outweigh any possible injury

to the parties enjoined.

The courts have set forth the various principles which

must be considered. They are as follows:

A. It is not the purpose of a preliminary injunction to

determine any controverted rights cr decide the

merits of a case.

B. Injunctions should not be granted where it has

the effect of granting all the relief prayed for by

Plaintiff without a hearing on the merits.

— 15a —

C. Mandatory injunctions—such as directing the Direc-

tor to re-compute and re-certify the 1972 rate—

should only be issued on the clearest possible

grounds.

In John Deere Co. of Moline v. Hendricks, 36 Ill. App.

2nd 255, the Court said:

“It is not the function of a temporary injunction

to compel a defendant to undo what he has already

done, and a mandatory injunction is an extraordinary

remedial process which commands performance of

some positive act, and is not regarded with judicial

favor.”

Also see: 21 Il]. Law and Practice Injunctions, Sec-

tion 3 and 4 City of Monmouth v. Payes, 39 Ill.App.

2nd 32.

Plaintiff’s evidence clearly and strongly suggests that

Defendant Lenhausen’s computation for 1971 and 1970

were manipulated at his discretion. On the other hand,

Plaintiff has failed to establish by clear and convincing

evidence how the Chicago Board of Education or any Cook

County School District would be actually aided by grant-

ing the relief requested when taking into consideration and

balancing the same against the effect of (1) reduction of

the equalized assessed valuations, and (2) a delay in the

tax bills, and (3) need for use and cost of tax anticipation

warrants.

The Court must consider the equitable doctrine of bal-

ancing equities. Also to be considered is the effect the

granting of said relief would have on the public.

In People er rel Valty v. Met Disposal Co., 345

lll. App. 570, the Court said:

“No injunction should be granted when the issuance

will cause serious publie inconvenience without corre-

sponding great advantage to complainant.”

Also see: Ames v. Schlager, 386 Ill. 160.

EE

anu Ses

The Supreme Court of Illinois said in People ex rel

Hansen v. Jones, 39 Ill. 2nd 360, 372:

“The property tax is far from a perfect or even

a satisfactory solution to the problem of providing

revenue on an equitable basis.”

. . am

“The intricacies of the problem do not readily

lend themselves to judicial solutions.”

In this Court’s opinion directing the Director Kirk

to recall and recompute the multiplier as beneficial as

that may be, is overcome by the chaos that could result

to the various taxing bodies, and the cost to the public by

the delay in the receipt of tax income.

Governor Walker and Director Kirk have indicated

this problem is under study. The Court believes this is a

matter that the executive and legislative branches of the

government could and should concern themselves with.

For these reasons the Court denies in its entirety the

Plaintiff’s petition for preliminary injunction. You can

prepare an order accordingly.

Mr. Harte: If I wnderstand, it does not reach the

other prayers for relief on a recomputation as the case

goes ahead, is that correct?

The Court: That is right.

Mr. Harte: The Court does not reach that question.”

— 17a—

APPENDIX D

Memorandum, Dept. of Local Gov’t Affairs,

January 23, 1973

EXHIBIT # 6

January 23, 1973

1970 COMMISSION COUNTIES:

In determining tentative equalization factors for com-

mission counties in their quadrennial reassessment year

in 1970, the Department used an average of its single

year weighted average ratios for the years 1966, 1967

and 1968. These weighted ratios were developed from our

annual analyses of real estate sales in each county and

the use of the median ratios developed therefrom in de-

termining the computed full value of real estate for each

county of the State. The average of the three year single

weighted average ratios was multipled by a constant of 2

thereby certifying tentative equalization factors at a

level of 50%.

Subsequent to the certification of tentative factors for

the commission counties in 1970, a directive was issued

by the Director of the Department to the effect that no

final factor certified for commission counties in 1970

was to produce an increase in multiplier in excess. of 20%

over that of the immediately prior year. To meet this

requirement, we developed a constant of 2.3 instead of

the 2 which had formerly been used for a number of

years during the time we were equalizing assessments

at a 50% level. The adoption of a constant 2.3 reduced

the level by which assessments were being equalized to

approximately 43.5%.

The above mentioned procedure was used in arriving at

equalization factors for Alexander, Menard, Morgan,

Perry, Scott and Williamson Counties. In Calhoun, Ed-

— 18a —

wards, Johnson, Massac, Pope, Pulaski, Randolph and

Union Counties, equalization factors were certified which

produced a multiplier no greater than 20° over the im-

mediately prior year although these factors required

the nse of a higher constant than the 2.3 as mentioned

for the counties in the foregoing paragraph. In several

instances, the final factors for these counties were certi-

fied at amounts requested by the Director. In two of the

commission counties (i.e. Monroe and Wabash) the county

supervisors of assessments raised values sufficiently in

the quadrennial year 1970 to qualify for an equalization

of 100% and a multiplier of 1.0000 with the assessment

level of these counties being retained at a level of 50%.

These counties were, therefore, equalized at a 50% level

as compared to those equalized at approximately 4314%

and a lesser level for certain of the other commission

counties.

Although the Department’s duty is that of equalizing

assessment levels between counties, it is apparent from the

foregoing that the procedures used in determining equali-

zation factors for commission counties in 1970 did not

produce inter-county uniformity in the assessment.

1971 TOWNSHIP COUNTIES:

Township counties were quadrennially reassessed on

their real estate in 1971. In preparation of the Depart-

inent’s findings based on its real estate sales analyses, the

single year weighted average ratios for the years 1966,

1967 and 1968 were again used thereby assuring that the

same year’s sales data were used in determination of

assessment levels for township counties as that used in

1970 for commission counties.

In determination of equalization factors for township

counties, the Department computed the average level of

assessment by applying a constant of 2 to the average

of the vear weighted average ratios for 1966, 1967 and

1968. However, this procedure produced a factor in most

cases which required a multiplier considerably in excess

of 20% over the immediately prior year. Because of this

=_

fact, we were requested, in determining tentative equali-

zation factors for township counties, to keep all tentative

factors up to a level which would produce a multiplier

no greater than 25% over the immediately prior year. For

instance, in Shelby County, the application of a constant

of 2 to the average of the single weighted ratios for 1966,

1967 and 1968 produced a factor of 43% (i.e., 21.54% x 2

= 43.08%). In certifying the tentative factor for this

County, a factor of 48% (multiplier 2.0833) was used

and his multiplier was within the 25% limitation when

compared with the immediately prior year.

In determining final factors for township counties, the

increase in multiplier over the immediately prior year

was restricted to no more than 20% as compared to the

25% used in determining tentative factors. Even though

there was absolutely no change in assessments by boards

of review, the final factor certified for a number of the

counties was different than the tentative. In Shelby Coun-

ty, the final factor was certified at 50% thereby reducing

the multiplier from 2.0833 as called for on the tentative

factor to the multiplier of 2.0000 on the final factor. In a

number of counties, the procedure outlined above would

not produce the factor desired by the Department and

we were instructed to meet the requirements of no multi-—

plier exceeding 20% over the prior year. It will also

be noted that in some cases, the final factors for certain

of the township counties were computed at a 50% level.

An example of such an instance can be found in Lawrence

County.

Based on the foregoing, it becomes evident that the

procedures followed by the Department in determining

factors for township counties in the assessment year 1971

did not produce inter-county uniformity in assessment

levels. In some counties receiving in excess of 100% and

negative multipliers, the factor as certified was below

that computed for these counties. In several counties of

the State, we were ordered to prepare factors for which

there was no method given for adjustment of assessment

levels to account for the factors certified in these counties.

—- 20a —

Inasmuch as State grants in aid for schools, grants in

aid for public assistance, as well as certain other grants

are based on qualifying rates, it is imperative that the

assessment levels in each county be at nearly the same

level as possible if these qualifying rates which, when

applied to the equalized value based on the factor certified

hy the Department, are to be as meaningful in one county

as in another county in the State.

— 2la —

APPENDIX E

Press Release From The Office of Governor Dan Walker,

February 21, 1973

Chicago, Feb. 21—Gov. Dan Walker today (Wednesday)

ordered the statewide real estate tax multiplier frozen

at the current level, pending legislative review and possi-

ble criminal investigation,

The freeze should help hold real estate taxes at their

present levels in a number of counties, provided the local

communities exercise fiscal restraint, Walker said.

Walker made the announcement at a news conference

in the State of Illinois Building, 160 N. LaSalle St.,

Chicago.

Walker took the action after an intensive investigation

by Frank Kirk, director of the Department of Local

Government Affairs. Among the taxpayers hardest hit

by the manipulation of the multiplier, the investigation

showed, are those living in DuPage County.

The findings of the investigation will be turned over to

Cook County State’s Attorney Bernard Carey who has

jurisdiction in the matter.

The tax multiplier was designed to equalize real estate

assessments throughout the state at 50 per cent of the

fair market value.

Walker said:

“The principle of uniformity of assessments has been

violated. ven more disturbing, we have found that public

records have been altered. These altered records deal with

procedures used to compute the tentative multipliers for

each county.

“In one ease, even the caleulations were removed from

the work sheets. As a result, instead of equalized tax

=

assessments at 50 per cent of their fair market value,

we have found assessments as low as 36.01 per cent.

“This is a very serious matter. What we have here are

willful manipulations to torpedo a basic law and the

spirit of equity in taxation. There is rank favoritism on

one hand and cynical disregard for the rights and fair

treatment of honest, hardworking citizens on the other.

“T am calling on Cook County State’s Attorney Bernard

Carey to investigate because the records and computa-

tions are made in the financial affairs section of the De-

partment of Local Government Affairs which is located

in the State of Illinois Building, 160 N. La Salle Street,

Chicago.

“Chapter 38, Section 32-8 says ‘A person who knowingly

and without lawful authority alters, destroys, defaces,

removes, or conceals any public record commits a class

4 felony (punishable by one to three years imprisonment

and a $10,000 fine.)’

“In DuPage County, the taxpayers have been stuck

with the highest rate in the state—53.23 of fair market

value. The DuPage County Board should investigate this

situation. The Department of Local Government Affairs

in the previous administration should not have tolerated

this,

“The high multiplier is one reason why the residents

of DuPage County are paying increased real estate taxes.

“Tf a resident of Glendale Heights in DuPage County

only paid at the rate of 50 per cent of the fair market

value, a home with an assessed valuation of $20,000 would

require payment of $1,545 in real estate taxes. Instead

he pays $1645 in real estate taxes.

“Statewide, the range of assessment levels is from

36.01 to 53.23 per cent of fair market value.

“To bring all counties immediately to the 50 per cent

level would have grave consequences in terms of state

aid to schools and real estate taxes.

— 23a —

“I believe the General Azsembly should decide what

shonld be done about this inequitable situation.”

By freezing the multiplier, the inequities will not be

magnified, Walker explained. The rest of the job of hold-

ing the line on taxes for assessments and rates will de-

pend on local officials, he added.

In addition to the freeze, and the requests for investi-

gation, Gov. Walker has ordered the following steps be

taken:

1. The culpability of persons who engage in altering

the public records in the Department of Local Govern-

— Affairs should be determined and appropriate action

taken;

2. In accordance with the recommendation of the Kissel]

report, the equalization process records of the Department

of Local Government Affairs will be made available for

public inspection immediately;

3. The Department of Local Government Affairs will

prepare and publish rules and regulations governing the

multiplier. Such regulations do not now exist.