# Opposition — 28 East Jackson Enterprises, Inc. v. P. J. Cullerton, Individually and as Cook County Assessor, and Bernard J. Korzen, Individually and as Treasurer and Ex-Officio Collector of Cook County > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_2055%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition - **Published:** January 1, 1977 - **Citation:** 434 U.S. 835 ## Text No. 76-1823 3n the Supreme Court of the United States Octoser Term, 1976 28 EAST JACKSON ENTERPRISES, INC., Petitioner, vs. P. J. CULLERTON, Individually, and as County Asses- sor, and BERNARD J. KORZEN, Individually, and as Treasurer and Ex-Officio County Collector of Cook County, Respondents. On Petition For A Writ of Certiorari To The Court Of Appeals For The Seventh Circuit BRIEF FOR RESPONDENTS IN OPPOSITION Bernarp Carey, State’s Attorney of Cook County, Illinois 500 Richard J. Daley Center Chicago, Illinois, 60602 312-443-5473 Pau. P. Bresex, JR., Deputy State’s Attorney Chief, Civil Actions Bureau Avan L. FuLKerson, Assistant State’s Attorney Of Counsel The Scheffer Press, Inc—(312) 263-6850 4 TABLE OF CONTENTS SEE SEEN | scscavcesserssentcnsenssaniesecteilidmnestibssiansecensieenens IIIT — sepentinnsinscsectisoveinnsviacinmnismsasienisieiintnhereenseenn QUESTIONS PRESENTED... ...ccssccsseseseeecmsseesesees EY SPOT | vecciunscssesnumnnnisnemecsrseneeneneeete STATEMENT OF THE CASE ...0.......cccccssssssssssssesesssees ARGUMENT: I. The Petitioner Had No Right To Exclude Its Federal Claims From State Court Adjudication. ..................0.. Il. The Taxpayer’s Remaining Argument Was Considered By This Court Upon The Taxpayer’s First Petition ge , § S CrraTIons. Bland v. McHann, 463 F. 2d 21 (5th Cir. 1972), cert. iy Ge I I UTD cecinctecsctescntntsnciscccetinnnntecsensie Clarendon Associates v. Korzen, 56 Il. 2d 101, 306 N.E. i ccteneenelientilinabaeninonin England v. Louisiana State Board of Medical Exam- I IID sc cctirensscnctiniedeneminteennniniguibiineanaions Euclid Corporation v. Tully, 22 Tll. App. 3d 105, 355 SES Exchange National Bank vy. Cullerton, 17 Tl. App. 3d 392, 308 N.E. 284 (Ist Dist. 1974) 0... .ccccescseeeeeeerees Great Lakes Dredge & Dock Company v. Hoffman, 319 BE EE MERI cseustecierssnnssiscesinenenamnecsemnsincesnatestenesbtemtseinnes ii PAGE Hoyne Savings and Loan Association v. Hare, 60 Il. 2d 84, 322 N.E. 2d S33 (1DT4) ...2.....0.ccecccceccsosessseseseseees § LaSalle National Bank v. County of Cook, 57 Til. 2d 348, S33 WE BE TB (IBGE cence 9 Lopin v. Cullerton, 46 Ill. App. 3d 378, 361 N.E. 2d 6 ee EE re 9 Lynch V. Household Finance Corporation, 405 U.S. 538 (TITER) onccececsesseecsocessnccsenessussiiennensiniasinnniiinanninnnnnnan 5 Mathews v. Rogers, 284 U.S. 521 (1932) .........:cccccececees 5 Perez v. Ledesma, 101 U.S. 82 (1971) .......ccccesccseeseeseeeee 5 People ex. rel. County Collector v. American Refrigera- tor Transit Company, 33 Ill. 2d 501, 505, 211 N.E. AIT OE 9 People ex rel. Skidmore v. Anderson, 56 Ill. 2d 334, SOU WEED. BB SBR (IBGE) cnccenssstictuiinin 9 Sioux City Bridge Co. v. Dakota County, 260 U.S. 441 (TD ncecenecssnsisssavsssieovennnessncinsissiadiiadstiasalineiiiianaannaann 8,9 Township of Hillsborough v. Cromwell, 326 U.S. 620 CRED ccccocesesecsocsnessssessnensnansasignsenseennssnmmniianiinnaininananannnnnn 8,9 Tully v. Griffin, ........ ye , 97 8. Ct. 219, 50 L. BOE, Bb Te CEO cccesccescecssnineniccrasemessentiainaaiiaamaaia 6 28 East Jackson Enterprises, Inc. v. Rosewell, 65 Mi. 2d 420, 358 N.E. 2d 1139 (1976) ................cccccscssssssees 6 28 East Jackson Enterprises, Inc. v. Rosewell, 523 F. 2d 439 (7th Cir. 1975), cert. denied 423 U.S. 1073 (1976), supplemental opinion on denial of rehearing, ae fF OR, Ee RR Le 6,7 TB UDA. GEBG CODODD wciseccccamstidancacneeneee 5 Ill. Rev. Stat. 1973, ch. 120, §§675 amd 716 .....ccccccsssse 9 In THE SUPREME COURT OF THE UNITED STATES Ocroser Term, 1976 No. 76-1823 28 EAST JACKSON ENTERPRISES, INC., Petitioner, vs. P. J. CULLERTON, Individually, and as County Asses- sor, and BERNARD J. KORZEN, Individually, and as Treasurer and Ex-Officio County Collector of Cook County, Respondents. On Petition For A Writ of Certiorari To The Court Of Appeals For The Seventh Circuit BRIEF FOR RESPONDENTS IN OPPOSITION OPINIONS BELOW The opinion of the district court is unreported. The opinion of the Court of Appeals for the Seventh Cireuit and the opinion of Mr. Justice Swygert, dissenting in part are reported at 523 F. 2d 439 (7th Cir. 1975), cert. dented, 423 U.S. 1073 (1976). The Supplemental Opinion of the Court of Appeals for the Seventh Circuit is reported at 551 F. 2d 1093 (7th Cir. 1977). _ JURISDICTION The jurisdictional requisites are adequately set forth in the Petition. QUESTION PRESENTED The sole question presented by this Petition is whether an Illinois taxpayer has an absolute right to litigate any case involving state taxation in federal district court. STATUTES INVOLVED The pertinent provisions of the Johnson Act, 28 U.S.C. §1341, and the Civil Rights Act, 42 U.S.C. $1983 are set out in the Petition at pp. 3-4. STATEMENT OF THE CASE The petitioner is an Illinois corporation owning prop- erty subject to the real estate tax law of Illinois. Re- spondents are local tax officials charged with the assess- ment and collection of real estate taxes pursuant to Illinois law.’ The subject matter of this case deals with local real estate taxes assessed against the petitioner for the year 1972, which taxes were payable in 1973. In late 1973, the petitioner brought a civil rights action under 42 U.S.C. $1983 to enjoin the respondents from ap- plying for the sale of petitioner’s property for delinquent 1972 taxes. The petitioner asserted that 28 U.S.C. §§1343 (3) and 1331 supported Federal jurisdiction in the case. The petitioner’s theory for relief was that its real es- tate assessment was “constructively fraudulent.” Illinois ‘Thomas M. Tully, the present Assessor of Cook Coun- ty, is the successor in office to Respondent P. J. Cullerton. dward J. Rosewell, the present Treasurer and Ex-Officio County Collector of Cook County is the successor in office to Respondent Bernard J. Korzen. _ courts have defined that term to include assessments of property at a level disproportionately higher than other similar property and have, upon proper proof, given re- lief therefor. People ex rel. County Collector v. American Refrigerator Transit Company, 33 Ill. 2d 501, 505, 211 N.E. 2d 694, 697 (1965). However, the district court ruled that petitioner’s right to relief in the Illinois courts was not “plain, speedy and efficient” within the contemplation of 28 U.S.C. §1341. The court of appeals, after a thorough review of Illinois law apposite to the case, reversed the district court. 523 F. 2d 439 (7th Cir. 1975). The taxpayer then petitioned this Court for a Writ of Certiorari, and on January 19, 1976 said Petition was denied. 423 U.S. 1073 (1976). There- after, the court of appeals stayed its mandate pending final adjudication of certain state court actions commenced by the taxpayer which involved taxes levied on the same property for the tax years 1972, 1973? and 1974.' After the Illinois Supreme Court affirmed the dismissal of the taxpayer’s state court action, 28 East Jackson En- terprises, Inc. v. Rosewell, 65 Ill. 2d 420, 358 N.E. 2d 1139 (1976), the taxpayer filed a Second Petition for Rehear- ing with the court of appeals. The taxpayer maintained that the Rosewell decision evidenced an unwillingness on the part of the Illinois Courts to grant eqcitable relief to taxpayers in its alleged circumstances, i.e. taxpayers with *The suit seeking injunctive relief as to the 1972 and 1973 real estate taxes was dismissed on January 26, 1977. 28 East Jackson Enterprises, Inc. v. Rosewell. No. 75 CH 6436 (Circuit Court of Cook County, 1977). * Dismissal of the suit peeing, Inounetive relief as to the 1974 taxes was affirmed by the [llinois Supreme Court. 28 East Jackson Ent ises, Inc. v. Rosewell, 65 Ill. 2d 420, 358 N.E. 2d 1139 (1976). _ allegedly insufficient funds to satisfy their real estate tax liability. The court of appeals did not interpret the Rose- well decision as barring Illinois taxpayers from obtaining equitable relief in state courts. Rather, the court of ap- peals in its supplemental opinion noted: Indeed, it does not appear that Mr. Justice Shaefer’s opinion addresses the issue of what relief is available in such cases. Rather, as the court saw it: The fundamental question .. . concerns the authority of Illinois courts to enter judgments which concededly lack finality because the issues that may be determinative have been de- liberately excluded from judicial consideration. And in response to this, Mr. Justice Schaefer wrote: As this case has been shaped, the role of the Illinois judicial system closely resembles that of a master in chancery for the Federal district court. Any judgment that an Illinois court might render would not definitively adjudicate the rights of anyone. The Illinois Constitution does not vest this authority in its judges. Plaintiff must certainly bear primary responsibility for the Illinois court’s refusal to address the point here of interest, t.e. whether a “plain, speedy and efficient remedy in a case of wrongful tax assessment is available in the courts of that state for a taxpayer in plaintiff’s alleged circumstances. For throughout the state court litigation, plaintiff sought to exclude from consideration the merits of its federal claim. [551 F. 2d at 1095.] Based upon its interpretation of the Rosewell decision, the court of appeals denied the taxpayer’s Second Peti- tion for Rehearing. It is that determination which the tax- payer seeks to have this court review by certiorari. EEE L THE PETITIONER HAD NO RIGHT TO EXCLUDE ITS FEDERAL CLAIMS FROM STATE COURT ADJU- DICATION. It is obvious from the taxpayer’s Petition for a Writ of Certiorari that it believes it has an absolute right to liti- gate any case involving state taxation in a federal district court. Such a theory, however, fails to square with the Johnson Act, 28 U.S.C. $1341 (1948). That act bars fed- eral district court injunctions in actions challenging state and local taxes where there is a plain, speedy and efficient remedy available to the taxpayer in the state courts. Matthews v. Rogers, 284 U.S. 521 (1932); and Great Lakes Dredge & Dock Company v. Hoffman, 319 U.S. 293 (1943). The rationale underlying the Congressionally mandated federal non-interference in this important area of state sovereignity was concisely stated by Mr. Justice Brennan in his concurring opinion in Perez v. Ledesma, 401 U.S. 82 (1971), and later cited by this Court with approval in Lynch v. Household Finance Corporation, 405 U.S. 538 at 542, fn.6 (1972). In his concurring opinion in Perez, Mr. Justice Brennan stated: The special reasons justifying the policy of federal non-interference with state tax collection are obvious. The procedures for mass assessment and collection of state taxes and for administration and adjudication of taxpayers’ disputes with tax officials are generally complex and necessarily designed to operate accord- ing to established rules. State tax agencies are orga- nized to discharge their responsibilities in accordance with the state procedures. If federal declaratory re- a7 lief were available to test state tax assessments, state tax administration might be thrown into disarray, and taxpayers might escape the ordinary procedural requirements imposed by state law. During the pen- dency of the federal suit the collection of revenue under the challenged law might be obstructed, with consequent damage to the State’s budget, and per- haps a shift to the State of the risk of taxpayer in- solvency. [401 U.S. at 127-128, fn. 17.] This court has recently reaffirmed this principle in Tully v.. Griffin, Inc., ........ + ea , 97 St. Ct. 219, 50 L.Ed. 227 (1976). Holding that New York State courts provided New York taxpayers with a plain, speedy and efficient remedy for challenging a state tax on federal constitu- tional grounds, this Court stated: A federal district court is under an equitable duty to refrain from interfering with a State’s collection of its revenue except in cases where an asserted fed- eral right might otherwise be lost... . [Citations omitted.] This policy of restraint has long been re- flected and confirmed in the congressional command of 28 U.S.C. §1341 that no injunction may issue against the collection of a state tax where the state law provides a “plain, speedy and efficient remedy.” lool US. at ........ , 97 S.Ct. at 222, 50 L.Ed. 2d at Accordingly, it is clear that when the petitioner excluded its federal claims from state court adjudication it pre- cluded the state courts from reaching the merits of the claims presented by the taxpayer in its complaints. See: 28 East Jackson Enterprises, Inc. v. Rosewell, 65 Ill. 2d 420, 358 N.E. 2d 1139 (1976); and 28 East Jackson Enter- ises, Inc. v. Cullerton, 551 F. 2d at i094 (7th Cir. 1977). k Cnty. 1977). In addition, by framing its state court actions as it did, the taxpayer not only violated the stay order entered by the Seventh Circuit Court of Appeals on waiios April 5, 1976,‘ but also foreclosed that court from reach- ing any determination other than that the Illinois remedy was plain, speedy and efficient.’ To justify its “reservation of rights” theory the tax- payer attempts to rely on this Court’s decision in England v. Loutsiana State Board of Medical Exammers, 375 US. 411 (1964). We suggest that the court of appeals correctly interpreted the holding of England when it declared: Critical to any reliance on England is the proper invocation of federal jurisdiction. The mere raising of a federal claim is not enough. For primary federal jurisdiction exists only to the extent Congress has provided, and it is by no means incumbent upon con- gress to provide a federal forum for the vindication of every federal right. [Citations omitted.] In 28 U.S.C. $1341, Congress decreed that in matters affect- ing state tax assessments or collections, no federal court shall have jurisdiction so long as a plain, speedy and efficient remedy is available in state court. This denial of jurisdiction is complete and applies re- gardless of whether the tax complaint filed invokes a federal claim alone or in conjunction with state claims. [Citations omitted.] The only concern is whether there is an adequate state court remedy for the federal claims. [551 F. 2d at 1096 (Emphasis Supplied). ] It is apparent that the manner in which the taxpayer framed its state court actions precluded the Illinois courts from adjudicating its federal claims. Since the taxpayer failed to afford the Illinois courts a full opportunity to *The stay order entered by the court of appeals was based upon its “. . . understanding that in the plaintiff's [petitioner’s] state court case it was making the same claims as in its federal case. . . .” 28 East Jackson Enter- prises, Inc. v. Cullerton, 551 F. 2d at 1094 (7th Cir. 1977). ‘id. at 1096. determine its right to relief, the court of appeals properly determined that there was no evidence which would lead the court to conclude that its previous decision, that the Illinois remedy was plain, speedy and efficient, was in error. II. THE TAXPAYER’S REMAINING ARGUMENT WAS CONSIDERED BY THIS COURT UPON TAX- PAYER’S FIRST PETITION FOR A OF CER- TIORARI. In its first Petition for a Writ of Certiorari filed with this Court, No. 75-755, the taxpayer maintained that the court of appeal’s decision in this case was contrary to the mandate of Township of Hillsborough v. Cromwell, 326 U.S. 620 (1976). The taxpayer once again raises that ar- gument as a reason for this Court to issue a Writ of Certiorari to the Court of Appeals for the Seventh Cir- evit. It is clear that the taxpayer again does not challenge the substantive manner in which Illinois courts remedy excessive assessments. Rather, the petitioner continues to assert that in Illinois there is no injunctive remedy to correct a “constructively fraudulent” assessment such as that which the taxpayer alleges was placed upon its prop- erty. In the alternative, the taxpayer contends that the extent to which the injunctive remedy is available is un- certain. For the above reason Hillsborough is distinguishable. In Hillsborough the laws of New Jersey failed to provide a substantive remedy meeting the requirements mandated by this Court in Sioux City Bridge Co. v. Dakota County, 260 U.S. 441 (1923). The New Jersey courts had held thai a taxpayer who was over-assessed must seek to raise the valuation of all property which was under-assessed. That i is not the case in Illinois. The relief contemplated by both Sioux City and Hillsborough is clearly authorized. See: People ex rel. Skidmore v. Anderson, 56 Ill. 2d 334, 307 N.E. 2d 391 (1974); and People ex rel. County Collector v. American Refrigerator Transit Company, 33 Il). 2d 501, 211 N.E. 2d 194 (1965).° The issue thus raised is whether Illinois courts will af- ford a taxpayer injunctive relief where that taxpayer is unable to pursue the remedy at law. The respondents con- tend, as they did when responding to the taxpayer’s first Petition, that the answer to the above question is in the affirmative. See: Clarendon Associates v. Korzen, 56 Ill. 2d 101, 306 N.E. 2d 299 (1973); LaSalle National Bank v. County of Cook, 57 Ill. 2d 318, 312 N.E. 2d 252 (1973); Hoyne Savings and Loam Association v. Hare, 60 Ill. 2d 84, 322 N.E. 2d 833 (1974); Eachange National Bank v. Cullerton, 17 Ill. App. 3d 392, 308 N.E. 2d 284 (1st Dist. 1974); Euclid Corporation v. Tully, 42 Ill. App. 3d 105, 355 N.E. 2d 659 (1st Dist. 1976); and Lopin v. Cullerton, 46 Ill. App. 3d 378, 361 N.E. 2d 6 (1st Dist. 1977). Accordingly, we submit that the court of appeals cor- rectly determined that Illinois law clearly offered the peti- tioner a plain, speedy and efficient state court remedy. The mere fact that a civil rights action in the federal courts might be a better remedy should not authorize federal intervention into this highly important area of state sovereignty. Bland v. McHamn, 463 F. 2d 21, 29 (5th Cir. 1972), cert. denied, 410 U.S. 966 (1973). * The policy of Illinois law is to require taxpayers claim- ing excessive valuation to follow the statutory legal rem- edy set out at Ill. Rev. Stat. 1973, ch. 120, §§675 and 716. That remedy requires payment under protest. Since the petitioner had insufficient funds to pay under protest, the court of appeals properly ruled that the legal remedy was unavailable to petitioner. —=- 19 CONCLUSION For the foregoing reasons the respondents respectfully pray that the petition for a Writ of Certiorari be denied. Respectfully submitted, Bernarp Carey, State’s Attorney of Cook County, Illinois 500 Richard J. Daley Center Chicago, Illinois, 60602 312-443-5473 Pau. P. Breset, Jr., Deputy State’s Attorney Chief, Civil Actions Bureau Avan L. FULKERsSon, Assistant State’s Attorney Of Counsel --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_2055%3A2. Public record. Not legal advice.