# Petition — Harte v. Lehnhausen

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1975
- **Citation:** 423 U.S. 912

## Text

AUG

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

Sepreme Court, i.
yak

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3.

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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
NE GE TD GND sccecsensosscsassiintiineeseninnieniatiniteniiniemnees +
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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_0890%3A1. Public record. Not legal advice.