Petition — 28 East Jackson Enterprises, Inc. v. Edward J. Rosewell, County Treasurer and Ex-Officio County Collector of Cook County, Illinois, Thomas M. Tully, Individually and as Assessor of Cook County, Illinois and P.J. Cullerton

Boren Court, U. &

FILED

No.%8-509 i SEP 26 1978

Ge flGHABL RODAK, JR., CLERK

!

In the

Supreme Court of the United States

OctToBer Term, 1978

28 EAST JACKSON ENTERPRISES, INC.,

Petitioner,

vs.

EDWARD J. ROSEWELL, County Treasurer and Ex-Officio

County Collector of Cook County, Illinois, THOMAS M. TULLY,

Individually and as Assessor of Cook County, Illinois, and

P. J. CULLERTON,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

JAMES L. FOX

DONALD P. COLLETON

One East Wacker Drive

Chicago, Llinois 60601

Attorneys for Petitioner.

ABRAMSON & FOX

One East Wacker Drive

Chicago, Illinois 60601

312-644-8500

Of Counsel

UNITED STATES LAW PRINTING CO., CHICAGO, ILLINGIS 60618 (312) 525-6581

|

INDEX

PAGE

eee ir SUNN NONE naan necceene. 2

Os gE IRR Une aa 2

Question Presented For Review 200....0.0.0cceeeececeeeeeees 2

Constitutional Provisions and Statutes Cited ............ 3

Statement of the Case -............ 2S A OWEEIE MOONE OTR TD 4

Reasons For Granting the Writ 2.0.0.0... eee ecccceeeeeeee 8

Argument Supporting Reasons for Granting the Writ.. 8

I. The decision of the Court below creates a con-

flict with the rule of the Fifth Cireuit with re-

spect to an England reservation, precludes a

federal court determination of federal claims in

tax proceedings and creates a procedural im-

ENE TENS e SEAR Ce 8

II. The decision below is in conflict with the deci-

sion of this Court in England v. Louisiana State

Board of Medical Examiners, 375 U.S. 411, and

creates a procedural impasse, ...................:ce-e0ee0ee- 16

RN 5 cccahaticscntinitsoti eEaatdishabehenismeleniiateinviapbecs SALTER WE 19

Appendix

Order of the United States Court of Appeals for

the Seventh Circuit dated May 15, 1978 ................ App. 1

Order of the United States Court of Appeals for

the Seventh Cireuit dated June 28, 1978 .............. App. 7

Decision on Plaintiff’s Motion for a preliminary

injunction and Defendants’ Motion to Dismiss

the Complaint dated February 12, 1976 ................ App. 8

PAGE

Preliminary Injunction of the United States

District Court for the Northern District of Illi-

nois, Eastern Division, dated January 20, 1977 . App. 12

Order Denying Preliminary Injunction in the

Cireuit Court of Cook County, Illinois dated

PUAN BE, TOTS iccscnccccsrs ionsevesierne iesiahciaeenclhaneonsbictily App. 14

Cases Cited

Autokefalos Orthcdox Spiritual Church of Saint

George, the Tropeophoros v. Hallahan, 103 F.Supp.

IS IE pecbon scecsoy desiveissecs vrarensewsiioecasunasnabivbenis 9

England v. Louisiana State Board of Medical Ex-

aminers, 375 U.S. 411, 11 L.iéd.2d 440, 84 S.Ct.

IE IEE scsotsibvostacetrenseess iadstesioecine 2, 5, 6, 7,8 , 9, 11, 14, 15,

16, 17, 18, 19

Huffman v. Pursue Ltd., 420 U.S. 592 .22202..........ccccoecees.. 13, 18

Jennings v. Caddo Parrish School Board, 531 F.2d 1331

I RM cn ancora crdkahicabesipmananebucoseoumumecantaes 11, 12,15

I 8 tt RE, RE AING SEE micecanicccdavcntccicipecepideenncicbncenenn aie ee

Mr. Boston Distiller Corp. v. Pallott, 342 F. Supp.

Pe Ie Bis CPMED ceccpotnenieneteesesesaapotaceravocrcanbusl 6, 8, 9, 11, 15

Roy v. Jones, 484 F.2d 96 (C.A. 3, 1973) ...............scccseeee 9,11

28 Kast Jackson Enterprises, Ine. v. Cullerton, 523 F.

2d 439 (C.A. 7, 1975), cert. denied 423 U. S. 1078,

rehearing denied 424 U.S. 959 (1976); Second Peti-

tion for Rehearing denied 551 F.2d 1093 (1976);

cert, denied 434 U.S. 685 (1077) ........ccccccecsicccosccseeiecsnies 4,5,9

BE IN eciscrass canstasshninig spasaacccatnetcnusdgeiisoneobigicuussoaatudeitonmtaanas 7,14

United Services Life Insurance Co. v. Delaney, 396

re ee © I I ge ee 18

ill

Constitutional Provisions

and.

Statutes Cited

PAGE

Fourteenth Amendment of the United States Consti-

IN + wsadessthenichicscocenticcciehssiasseatinsinanedbcanetnnnbaamiccguepadiatsadabedds Stee

I I ne aa ecddites 2

ee ais. MEI baleinidigiebiedsabicss nssccsqetmcbamesipcsnens 2, 3, 5, 9, 14, 18

16, 18, 19

ep Cs UE selaciccdens iptoncdescecncpnecrteaadesennstealaaannane 3

By PUI REI icisscisnssh acspadsenns sacs. <a pAddacaidistaainsnhitveneoeucvaganis 4, 5,6

In the

Supreme Court of the United States

Ocrosper Term, 1978

No.

28 EAST JACKSON ENTERPRISES, INC.,

. Petitioner,

Vs.

EDWARD J. ROSEWELL, County Treasurer and Ex-Officio

County Collector of Cook County, Illinois, THOMAS M. TULLY,

Individually and as Assessor of Cook County, Illinois, and

P. J. CULLERTON,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

To The Honorable Chief Justice of the United States and

the Associate Justices of the Supreme Court of the

United States:

Petitioner respectfully prays that a Writ of Certiorari

issue to review the unpublished Order of the United States

Court of Appeals for the Seventh Circuit entered May 15,

1978, lifting preliminary injunctions and dismissing peti-

tioner’s complaints in the consolidated appeals.

2

OPINIONS BELOW

The unpublished Order of the Court of Appeals of the

Seventh Circuit, entered on May 15, 1978 under local Rule

35, has not been and will not be officially reported. Copies

of this unpublished Order, the Order denying petitioner’s

Petition for Rehearing and Rehearing En Banc, and the

Memorandum Decisions of the District Court.granting pre-

liminary injunctions are set out in the Appendix,

JURISDICTION

The unpublished Order of the Court of Appeals was en-

tered on May 15, 1978. A timely filed Petition for Rehear-

ing and Rehearing Ln Bane was denied on June 28, 1978,

This Petition is filed within 90 days from the latter date.

Jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

QUESTION PRESENTED FOR REVIEW

Whether the Court of Appeals erred in dismissing, under

28 U.S.C. $1341, holding that petitioner had no right, in

a state court tax injunction proceeding and an appeal

therefrom, brought to ascertain the availability of a plain,

speedy and efficient remedy, to make an England’ reserva-

tion to preserve its right to return to the District Court,

notwithstanding that Court had taken jurisdiction to main-

tain the status quo, and in aid of its own jurisdiction,

while petitioner exhausted its rights of appeal in the State

Court.

‘England v. Louisiana State Board of Medical Examiners, 375

U.S. 411, 11 L.Ed.2d 440, 84 S.Ct. 461 (1964).

3

CONSTITUTIONAL PROVISIONS

AND STATUTES CITED

UNITED STATES CONSTITUTION

AMENDMENT XIV

$1, Citizenship rights not to be abridged by states

Section 1, All persons born or naturalized in the

United States, and subject to the jurisdiction thereof,

are citizens of the United States and of the State

wherein they reside. No State shall make or enforce

any law which shall abridge the privileges or immuni-

ties 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.

FEDERAL STATUTES

PROVIDE IN PERTINENT PART

Titte 28 USC

§ 1341. Taxes by States

The district courts shall not enjoin, suspend or re-

strain the assessment, levy or collection of any tax

under State law where a plain, speedy and efficient

remedy may be had in the courts of such State.

§ 1348. Civil rights and elective franchise

The district courts shall have original jurisdiction

of any civil action authorized by law to be commenced

by any person:

(3) To redress the deprivation under color of any

State law, statute, ordinance, regulation, custom or

usage, of any right, privilege or immunity secured

by the Constitution of the United States or by any

4

Act of Congress providing for equal rights of citizens

or of all persons within the jurisdiction of the United

States;

Tite 42 USC

¢ 1983. Civil action for deprivation of rights

Every person who, under color of any statute, ordi-

nance, regulation, custom, or usage, of any State or

Territory, subjects, or causes to be subjected, any

citizen of the United States or other person within

the jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the Con-

stitution ahd laws, shall be liable to the party injured

in an action at law, suit in equity, or other proper pro-

ceeding for redress,

STATEMENT OF THE CASE

This is the third time petitioner? has sought review in

this Court in a seven year odyssey through federat and

state courts seeking relief from discrimination which it

has suffered from Cook County taxing officials in the as-

sessment of its property for real estate tax purposes for

years beginning in 1972.

Petitioner is the lessee under a 99 year lease of property

in the Chicago Loop improved with an office building built

in 1910. On January 1, 1974, it had a fair cash value of

#800,000. Pursuant to applicable Illinois constitutional and

statutory and Cook County ordinance provisions it was

required to be assessed as of that date for 1974 taxes at

40° of fair cash value or $320,000 but was, however, as-

sessed at $651,767. Property in the same class as peti-

tioner’s was assessed generally in Cook County at 40% of

228 East Jackson Enterprises, Inc. v. Cullerton, 523 F.2d 439

(C.A. 7, 1975), cert. denied 423 U.S. 1073, rehearing denied 424

U.S. 959 (1976); Second Petition for Rehearing denied 551 F.2d

1093 (1976), cert. denied 434 U.S. 835 (1977).

5

fair cash value for 1974. Taxes of $81,454 were thus ex-

tended and levied against it rather than the legal amount

of $39,991. As it had in earlier years, petitioner exhausted

its administrative remedies seeking relief before the As-

sessor and Board of Appeals of Cook County but to no

avail.

The only remedy at law available to petitioner in the

state courts required petitioner to pay the full amount of

taxes levied and to sue for refund. Because it lacked funds

so to pay, petitioner could not avail itself of this remedy

for any of the years in issue.

Having suffered from a discriminatory assessment in

1972, petitioner had sought injunctive relief in the District

Court in a $1983 action alleging deprivation of federal

rights of equal protection and dué process. The District

Court issued a preliminary injunction enjoining respon-

dent officials from enforcing the lien of the tax levy by

selling petitioner’s property. The Court of Appeals re-

versed, 28 East Jackson Enterprises, Inc. v. Cullerton, 523

F.2d 439 (1975). The Seventh Cireuit (Swygert, J. dis-

senting in part) held, pg. 442, that it was reasonably cer-

tain the Illinois courts would grant injunctive relief to a

taxpayer who lacked funds to avail itself of the statutory

remedy and that 28 U.S.C. $1341 was a bar to federal juris-

diction. Accordingly, when its 1974 taxes were billed in

1975, petitioner filed a Complaint in the Circuit Court of

Cook County seeking injunctive relief. That court denied

relief and dismissed petitioner’s complaint holding, inter

alia, that inability to pay and thus to avail oneself of the

statutory remedy did not afford a basis for equitable relief

under Illinois law.

In its state court complaint for 1974 taxes, following the

teaching of England v. Louisiana Board of Medical Ex-

6

aminers, 375 U.S. 411, and of Mr. Boston Distiller Corp. v.

Pallott, 342 F.Supp. 770 (N.D. Fla. 1972), aff'd 469 F.2d

337 (C.A. 5, 1972), cert. denied 411 U.S. 967, petitioner

made a reservation to preserve its right to seek District

Court determination of its federal constitutional claims

in the event the state court held against it. (The reserva-

tion formed no part of the ratio decidendi of the Chanceel-

lor.)

Immediately following its denial of injunctive relief, the

State Court issued a temporary restraining order restrain-

ing sale of petitioner’s property for 1974 taxes in order

to permit it to seek injunctive relief in the Distriet Court,

there being no state equivalent of Rule 8 of the Federal

Rules of Appellate Procedure authorizing injunctions

pending appeal. Petitioner, accordingly, filed a $1983 ac-

tion in the District Court alleging violation of its federal

rights of equal protection and due process. That Court

issued a preliminary injunction ‘‘to preserve the status

quo * * * and in aid of our jurisdiction.’’ App. 9 and,

further,

‘*(T)n order to protect our jurisdiction from being

frustrated and because plaintiff has properly attempt-

ed to invoke our jurisdiction with a reasonable likeli-

hood of ultimate success, a preliminary injunction

should be entered in this case until plaintiff exhausts

its rights of appeal in the State court action.’’ App.

11.

Petitioner thereupon appealed the Chancellor’s denial

of injunctive relief to the Supreme Court of Illinois, advis-

ing that court that it was making a reservation under

England to preserve its right to return to the District

Court for adjudication of its federal constitutional claims

should the Illinois court hold against it. The Illinois court

held that the reservation would reduce the role of the

7

Illinois Supreme Court to that of a master in chancery to

the District Court and render its opinion advisory. Con-

stitutionally, the Illinois court held, it could not render

such an opinion. It thereupon affirmed dismissal of the

case. 28 Hast Jackson Enterprises, Inc. vy. Rosewell, 65 Ill.

2d 420, 425-6.

Respondents meanwhile appealed the District Court’s

grant of the preliminary injunction and while that appeal

was pending in the Seventh Circuit appealed from the

District Court’s grant of an injunction the following year

for 1975 taxes. The appeals 76-1305 and 77-1307 were con-

solidated.? The Court of Appeals reversed the preliminary

injunctions and dismissed the complaints in its unpublished

order, App. 1, which petitioner asks this Court to re-

view. The Seventh Circuit held, App. 6, that petitioner

‘*had no right in this context to make an England reserva-

tion, (and) the Lllinois Supreme Court’s refusal to rule

based on that reservation does not prove that the state

remedies are inadequate.’’

* Although consolidated appeals are before this Court, the issues

in 76-1305 are controlling and arguments and references will be to

that case.

8

REASONS FOR GRANTING THE WRIT

The decision of the Court of Appeals is in conflict with

the rule expressed by the Fifth Cireuit in Mr. Boston Dis-

tiller Corp. v. Pallott, 342 F.Supp. 770 (N.D. Fla. 1972),

aff'd. 469 F.2d 337 (1972), cert. denied 411 U.S. 967 (1973),

It creates a procedural impasse and effectively precludes

litigants in state tax injunction proceedings from federal

court determination of federal claims,

The decision of the Court of Appeals is in conflict with

this Court’s decision in England yv. Louisiana Board of

Medical Examiners, 375 U.S, 411.

ARGUMENT

I,

THE DECISION OF THE COURT BELOW CREATES

A CONFLICT WITH THE RULE OF THE FIFTH CIR.

CUIT WITH RESPECT TO AN ENGLAND RESERVA-

TION, PRECLUDES A FEDERAL COURT DETERMI.

NATION OF FEDERAL CLAIMS IN TAX PROCEED.

INGS AND CREATES A PROCEDURAL IMPASSE

Shorn of its procedural maze, the case at bar presents

a patent conflict in the Cireuits regarding the application

of what the court in England v. Louisiana Board of Medi-

cal Examiners, 375 U.S. 411, held should be a line ‘* bright

and clear’’ so that litigants shunted from federal to state

courts will not be exposed not only to unusual expense and

delay but also to procedural traps operating to deprive

them of their right to a District Court determination of

their federal claims. 375 U.S. at 418. Petitioner respect-

fully submits that the issue it presents is a relatively simple

one which might be decided in summary fashion.

9

As noted in the Statement of the Case, petitioner sus-

tained an adverse decision in its 1972 real estate tax in-

junction proceeding in the Seventh Cireuit, 28 East Jack-

son Enterprises, Inc. v. Cull: rion, 923 F.2d 439 (1975)

which, reversing the District Court, held. with Swygert, J.

dissenting in part, that 28 U.S.C. $1341 barred the federal

action because it was reasonably certain that Illinois courts

would grant injunctive relief to a taxpayer who lacked

funds to avail itself of the sole remedy at law, viz., pay-

ment of the tax in full and suit for refund, 523 F.2d at 443.

Suffering from the same unconstitutional, discriminatory

assessment for 1974 petitioner followed the direction given

by the Court of Appeals and commenced a proceeding in

State court to enjoin respondents from selling its property

for the lien of 1974 taxes.

Realizing that if it freely and without reservation sub-

mitted its federal as well as state claims for adjudication

by the State court, the doctrine of res judicata would bar

a District Court determination of its federal rights of

equal protection and due process, England, op cit, pg. 419;

Autokefalos Orthodoa Spiritual Church of Saint George.

the Tropeophoros v. Hallahan, 103 F.Supp. 389 (S.D.N-Y.

1952); Roy v. Jones, 484 F.2d 96 (CLA. 3, 1973); Mr. Bos-

ton Distiller Corp. v. Pallott, 342 I.Supp. 770 (N.D. Fla.,

1972), aff’d. and rehearing and rehearing en banc denied

469 F.2d 387 (C.A. 5, 1972), cert. denied 411 U.S. 967

(19735), petitioner made an England reservation in its state

court complaint, reserving to the federal courts the deter-

mination of its federal claims.

Petitioner had good reason for making its reservation.

In Mr. Boston, supra, the plaintiff had proceeded initially

in the Florida courts in a state tax declaratory judgment

action. It did not seek review by this Court of an adverse

decision of the Florida Supreme Court but filed an action

10

for declaratory and injunctive relief in the District Court.

That Court dismissed holding:

“As was noted previously the same federal consti-

tutional questions raised in the instant complaint have

been argued to and heard by the highest tribunal of

the State of Florida. What plaintiffs seek to have this

Court do is to convene a Three-Judge Court to exer-

cise appellate review of a decision of the Florida Su-

preme Court. This the Court cannot do, (Citations

omitted)

Referring to England v, Louisiana State Board of

Medical Examiners, 375 U.S. 411, 84 8.Ct. 461, 11 L.Ed.

2d 440 (1964), this Court observes the following ‘judge

made rule’:

‘** * We now explicitly hold that if a party freely

and without reservation submits his federal claims

for decision by the state courts, litigates them

there, and has them decided there, then—-whether

or not he seeks direct review of the state decision

in this Court—he has elected to forego his right

to return to the District Court.’ Zbid. at 419, 84

S.Ct. at 467.

In aceord, see NAACP vy, Button, 371 U.S. 415, 83 S.Ct.

328, 9 L.iMd.2d 405, (1963).

In the proecedings below, plaintiffs fully litigated

their federal constitutional claims and exposed them

to the state tribunals for adjudication without ex-

pressly reserving, should the state courts hold against

them on the question of state law, the right to return

to the District Court for disposition of their federal

contentions. See England, supra, 375 U.S. at 421, 84

S.Ct. 461. Thus, it affirmatively appears that plain-

tiffs, in submitting their constitutional claims to the

state courts, did so unreservedly with the express de-

sire to have all claims there fully litigated. In such a

procedural setting this cause should not be allowed to

be relitigated in the United States District Court for

obvious reasons:

ll

‘* * * Such a rule would not only countenance an

unnecessary increase in the length and cost of the

litigation; it would also be a potential source of

friction between the state and federal judiciaries.’

England, supra, at 419, 84 S.Ct. at 466.’ ’’ (Em-

phasis in original)

342 F.Supp. at 772.

In affirming, the Fifth Cireuit, 469 F.2d at 338, recognized

that federal jurisdiction was lacking not beeause the tax-

payer had, as required by the Tax Injunction Act, initially

sought relief in the state court, but because, as the court

put it, the taxpayer had ‘‘unreservedly’’ presented its ease

to the state court.

“After unreservedly presenting its case to the Florida

courts, and losing (finally before the Florida Supreme

Court), the corporation now resorts to the federal

courts by this suit. At issue is whether the Tax In-

junction Act, by confining appellant’s initial choice

of forum to the state courts, provides an exception to

the doctrine of res judicata for a subsequent suit in

federal court. Under the circumstances here we be-

lieve res judicata applies and prevents further con-

sideration by us. Accordingly, the District Judge prop-

erly dismissed the case, 342 F.Supp. 770. Autokefalos

Orthodox Spiritual Church of Saint George, The

Tropeophoros v. Hallahan, 8.D.N.Y. 1952, 103 F.Supp.

389; 1A Moore’s Iederal Practice 0.207 (1965).’’

(Emphasis Supplied)

It made no difference that the State court proceeding

might precede that in the District Court. Mr. Boston,

supra; Roy v. Jones, 484 F.2d 96 (CLA. 3 1973); Jennings

v. Caddo Parrish School Board, 531 F.2d 1331 (CLA. 5

1976). In his coneurring opinion in Roy vy. Jones, Judge

Aldisert stated:

‘*? do not believe it is necessary to cut terminology

so fine as to suggest that England only applies where

12

the filing of the federal action precedes the state ac-

tion. I find no magic in the ‘right to return’ expression

in the opinion. The essence of the doctrine is as stated

by Mr. Justice Brennan: ‘(W)e see no reason why a

party, after unreservedly litigating his federal claims

in the state courts although not required to do so,

should be allowed to ignore the adverse state decision

and start all over again in the District Court.’ 375

U.S. at 419, 84 S.Ct. at 466.’’

And, as the Court in Jewiungs held dismissing a civil rights

action:

‘*Appellant argues that she was foreed to bring her

constitutional claims in state court rather than proceed

directly to federal court in order to avoid sacrificing

judicial review of the school board’s action pursuant

to L.S.A.—R.S. 17:448. Under Bngland v. Louisiana

State Board of Medical Examiners, 1964, 875 U.S, 411,

84 S.Ct. 461, 11 L.iad.2d 440, however, had appellant

wished to reserve her constitutional claims for sub-

sequent litigation in federal court, she could have done

so by making on the state record a reservation to the

disposition of the entire case by the state courts. Id.

at 421-22, 84 S.Ct. at 467-468, 11 L.Ieéd.2d at 448-49,

Appellant expressed no such reservation in state

court.”’

In the State court proceeding the Chancellor denied in-

junctive relief to petitioner on the basis of Illinois law,

Order, App. 14, and thereafter dismissed the ease. The

reservation formed no part of his ratio decidendi, idem.

However, since a sale of its property was imminent and,

if held, would have made it impossible for any court to

afford petitioner relief and, further, because Illinois has

no counterpart to Rule 8 of the Federal Rules of Appel-

late Procedure, petitioner sought and the Chancellor en-

13

tered a temporary restraining order to permit petitioner

to file a District Court action. That Court granted a pre-

liminary injunction, App. 8, to preserve the status quo,

in aid of its jurisdiction and in order to prevent its juris-

diction from being frustrated, App. 9, 11, until petitioner

exhausted its rights of appeal in the state action.

Petitioner thus found itself in a quasi-abstention situa-

tion, Although initially in the State court, it was required

to seek the protection of the District Court pending its

State court appeal. The District Court did not interfere

with or interdict the State proceedings, Human v. Pursue

Ltd., 420 U.S, 592 (1975), and properly took jurisdiction

of the cause,

As noted previously, on petitioner’s appeal the Supreme

Court of [!linois affirmed dismissal of the action because

of the reservation, holding:

‘*As we view this case, its determination in this court

does not depend upon an analysis of the intimate de-

tails of the Federal abstention doctrines. Our concern

centers upon whether, under the Constitution of IIli-

nois, we may pass upon those questions of State law

which the plaintiff has raised, including the question

whether the complaint alleges a cause of action for

injunctive relief. We conclude that we lack the author-

ity to do so. As this ease 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. It

would be in the nature of an advisory opinion only.

The Illinois Constitution does not vest this authority

in its judges.

The judgment of the cireuit court of Cook County

is affirmed,’’

14

28 East Jackson Enterprises, Inc. v. Rosewell, 65 111.2d 420,

425 (1976).'

Following the decision by the illinois court and the de-

nial of petitioner’s second petition for rehearing in the

earlier case, 551 F.2d 1093, the consolidated eases at issue

in this petition were briefed, argued and decided.

As a result of the decision of the Court ef Appeals of

the Seventh Circuit, App. 1, conflicting if not contra-

dictory rules, certainly at least of procedural law, appear

in the federal system:

On the one hand we have a higher court in the case at

bar holding, App. 6, that a litigant who in accordance

with 28 U.S.C, $1841 seeks relief first in the state court

has ‘** * * no right to make an England reservation * * *,’’

because, as that court held in the earlier case 551 F.2d

1093, England was inapplicable because it presupposes

proper invocation of federal jurisdiction in the first in-

stance and plaintiff’s initial complaint did not properly

invoke federal jurisdiction because it was barred by See-

tion 1341. 551 F.2d at 1096’’ App, 5. But this is a Catch

22 situation. If the State court affords an adequate remedy,

$1341 is operative and there is, of course, no need for

federal jurisdiction. If the State court denies relief upon

an unreserved submission of federal claims along with

state claims, $1341 is no longer operative but res judicata

bars a federal trial of the federal issues thus thwarting

federal jurisdiction and the clear intendment of $1341. It

‘Although entered in the suit contesting the 1974 assessment, this

decision of the Illinois court formed the basis for the Seventh Circuit's

denial of petitioner's second petition for rehearing of its 1972 tax case.

551 F.2d 1093, The mandate in this earlier case, 523 F.2d 439, had

been stayed pending the outcome of the State court appeal of the

1974 taxes at issue in the case at bar.

15

is the very denial of relief which lifts the bar of $1341 but

drops the bar of res judicata!

On the other hand, we have the diametrically opposite

rule of Mr. Bos/on, supra, which teaches that the Tax In-

junction Act does not, by confining a litigant’s initial choice

of forum to the state courts, provide an exception to the

doctrine of res judicata for a subsequent suit in the federal

court; that it is the unreserved presentation of the federal

issues to the state courts which allows the bar of res judi-

cata to be operative, and that if he would go or return to

the federal court he must make the reservation. 342 F,

Supp. at 772, 469 F.2d at 338. See also Jennings v. Caddo

Parrish School Board, 531 F.2d 1331, 1332 (CLA, 5, 1976),

The decision below turns on the point of the right vel

non to make the reservation for the Court said:

‘This attack on the Llinois procedures turns on the

question of whether the right to make an England

reservation, initially given to litigants by the courts

as a limit on equitable abstention, is ineluded in Con-

gress’ statutory guarantee in Section 1841 of a plain,

speedy and efficient remedy in state court. If a liti-

gant does have the right to make an Lnglund reserva-

tion under Section 1341 as well as in equitable absten-

tion, then the Illinois procedures may not provide an

efficient remedy because they do not protect that

right.’’ App. 5

Accordingly, we respectfully request that this Court ex-

ereise its reviewing powers to resolve the conflict which

besets petitioner and other litigants raising federal issues

in state tax matters, matters which are becoming of. in-

creasing national importance and concern, doing so by

holding that under the circumstances petitioner had the

right to make an England reservation; that the declination

of the Illinois court to rule on the merits rendered any

State remedy inadequate, certainly not plain, speedy and

efficient; and, therefore, that the bar of Section 1341 is

removed.

16

II,

THE DECISION BELOW IS IN CONFLICT WITH THE

DECISION OF THIS COURT IN ENGLAND v. LOUISI-

ANA STATE BOARD OF MEDICAL EXAMINERS, 375

U.S. 411, AND PRECLUDES FEDERAL COURT RELIEF

FOR FEDERAL CLAIMS.

Although this case is not one of classical abstention,

nonetheless we argue that the teachings of Lugland apply

to it and the decision of the Court of Appeals is in conflict

with England.

The Court below grounded its decision on, inter alia, the

fact that petitioner’s ‘‘initial complaint in the District

Court did not properly invoke federal jurisdiction because

it was barred by Section 1341. 551 F.2d at 1096’’ App. 9.

We disagree with this holding. In the case at bar, unlike

the 1972 tax case just cited by the Court of Appeals, peti-

tioner went to the District Court after unsuccessfully seek-

ing a state remedy from the Chancellor and while its ap-

peal to the higher Illinois courts was pending.? With no

procedure which admitted of an injunction pending appeal

available in the State courts, petitioner properly sought

and the Distriet Court properly took jurisdiction. In fact,

the State Chancellor issued a temporary restraining order

egainst respondents to permit petitioner to go to the fed-

eral court and the District judge was so informed. App.

8,

At the time the Distriet Court took jurisdiction and en-

joined respondents, petitioner was appealing the Chancel-

lor’s denial of relief and dismissal of its complaint to the

Illinois Supreme Court. It is clear that petitioner might

then have eschewed its reservation and freely submitted

S Initially petitioner appealed to the Appellate Court of Illinois.

The case was removed on grounds of importance to the Supreme

Court under the latter’s Rule 302.

17

its federal as well as State equal protection and due process

claims to that court. It is equally as clear that if it had

and that court had held against it on either the State or

the federal claim or on both, in no way could petitioner

have returned to the District Court for a trial of the fed-

eral issues. This Court has said so:

“We implicitly rejected such a rule in Button

(NAACP vy. Button, 371 U.S. 415) when we stated that

a party eleets to forego his right to return to the Dis-

triet Court by a decision ‘to seck a complete and final

adjudication of his rights in the state courts.’ We now

explicitly hold that if a party freely and without reser-

vation submits his federal claims for decision by state

courts, litigates them there and has them decided there,

then—whether or not he seeks direct review of the

State decision in this Court—he has elected to forego

his right to return to the District Court.’? England at

419.

Petitioner was thus bound by the rule of Exgland and a

plethora of other cases imposing the bar of res judicata

against reassertion of federal claims after losing in state

courts. If petitioner was so bound, should it not receive

the benefit of England as well as the burden? Should not

the ‘line drawn bright and eclear’’, 375 U.S. 418, by this

Court apply to a litigant such as petitioner shunted from

federal to state courts and back again to federal court?

It was the Court of Appeals in 523 F.2d 439 which shunted

petitioner to state court, holding, with a dissent in part,

that it was reasonably certain Illinois courts would provide

injunctive relief for a taxpayer without funds to avail itself

of the statutory remedy, 523 I°.2d at 443, notwithstanding

that no case in the then 36 year history of the 1939 Illinois

Revenue Code has so held.

When, following this decision, petitioner’s suit at bar was

filed in the Cireuit Court of Cook County, the State Chan-

18

cellor denied it injunctive relief on State grounds without

reaching the constitutional issues, App. 14, and out ot

concern for petitioner's rights shunted it to the District

Court. That Court, guided by Section 1341, Huffman v.

Pursue Ltd.. 420 U.S. 592, Judice v. Vail, 480 U.S, 327, and

principles of comity, refrained from entering a permanent

injunction and deferred to the State Court handling peti-

tioner’s appeal. That Court refused to devide the case

because petitioner followed what it helieved to be this

Court’s bright and clear line in England and reserved its

feneral rights which include the right to a federal forum

at nisi prius to vindicate federal constitutional claims.

Moreover, the England Court predicted that there

would be situations like the one at bar, stating:

‘“\nd if the State court has declined to decide the

state question beeause of the litigant’s refusal to sub-

mit without reservation the federal question as well,

the Distriet Court will have no alternative but to va-

eate its order of abstention.’’ 375 U.S, 411, nde.

Illinois is not alone in declining to share the abstention

doctrine’s purpose of furthering the harmonious relation

between state and federal authority, Cf, United Services

Life Insurance Co, v. Delaney, 3896 S.W.2d 855 (Tex, 1965)

Should rights of litigants in the federal courts in these

states be abridged because of their legal idiosyneracies?

While litigants in other states which **share the abstention

doctrine’s purpose * * **? may make an England reserva:

tion secure in the knowledge that a state court decision

will be forthcoming and that they can then go to the Dis-

trict Court for a trial on their federal claims should the

state court hold against them.

The decision of the Court of Appeals abets the policy

of the Illinois court effectively depriving the citizens of

=_=_ _ mk CTCL LL

19

this District of a federal forum for vindication of impor-

tant federal rights in local tax matters. For if the rule of

this case is permitted to stand, no taxpayer can pursue a

remedy in an Illinois court and reserve his federal claims

—he won’t get a decision, Therefore, he must unreservedly

submit them and whether they are addressed or not by the

court the bar of res judicata applies leaving the litigant

only with reeourse to this Court. However, as Justice Bren-

nan said in Lngland:

‘But such review, even when available by appeal

rather than only by diseretionary writ of certiorari,

is an inadequate substitute for the initial District

Court determination * " * to which the litigant is en-

titled in the federal courts.’? 875 U.S, at 416,

The etfeet of the rule of the case at bar is thus effectively

to preclude federal injunctive tax relief for any litigant

who must first seek to remove the bar of $1841 by litigating

his claims in the State court,

CONCLUSION

We therefore submit that the refusal of the Llinois court

to rule on petitioner's case in 65 IlL2d 420 renders what-

ever remedy may exist in the state courts, if in fact one

does exist, an inadequate one; certainly one that is not

plain, speedy and efficient. Accordingly, the Court of Ap-

peals erred in holding that $1841 barred the instant action,

which holding petitioner respectfully prays this Court re-

view and reverse,

Respectfully submitted,

James L, Fox and

Donaup P, CoLLeTon

One East Wacker Drive

Chicago, Illinois 60601

Attorneys for Petitioner

APPENDIX

APPENDIX

UNITED STATES COURT OF APPEALS

For tHe Seventu Circuit

Chicago, Illinois 60604

Argued January 23, 1978

May 15, 1978

Before

Hon. Waurer J. Cummuyas, Circuit Judge

Hon. Wizaur F. Pry, Jr., Circuit J udge

Hon. Rosert A. Sprecuer, Circuit Judge

(Unpublished Order Not To Be Cited Per Cireuit Rule 35)

28 EAST JACKSON ENTERPRISES, INC.,

Plaintiff-Appellee,

Nos. 76-1305, 77-1307 Vs,

EDWARD J, ROSEWELL, Etc., et al.,

Defendants-Appellants.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

Nos. 76 C-342, 77 C-149 — Thomas R. MeMillen, J udge.

ORDER

In 1976, plaintiff filed a complaint against three county

officials’ attacking their 1974 assessment of real estate

taxes on plaintiff's 19-story office building at 28 East Jack-

son Boulevard in Chicago and the ground thereunder.

‘The Treasurer of Cook County, the Assessor of Cook County,

and the former Assessor of Cook County.

App. 2

Under tie long-term ground leases with the realty owner,

plaintiff was obligated to pay the real estate taxes levied

against the property. According to the plaintiff, defen-

dants’* discriminatory assessment of this property has de-

prived it of property without due process of law and in con-

travention of the Equal Protection Clause of the Fourteenth

Amendment. The suit was brought under the Civil Rights

Act (42 U.S.C. § 1983), and plaintiff requested a declara-

tion that all 1974 real estate taxes levied against the prop-

erty in excess of $28,000 were unconstitutional. Injunctive

relief was also sought against the sale of the property for

the illegal taxes, and plaintiff demanded $54,000 from defen-

dants, ‘‘being the difference between the amount of taxes

on plaintiff's property illegally and unconstitutionally

assessed and levied and the amount of taxes which would

have been levied had all property in Cook County been

legally assessed.’’ Compensatory and punitive damages

of $900,000 were also sought if plaintiff’s property should

be sold because of defendants’ acts. The district court

granted plaintiff a preliminary injunction preventing de-

fendants from selling the property for taxes ‘until the

plaintiff has exhausted or abandoned its remedy in the

State court.’’

A companion complaint was filed with respect to 1975

taxes seeking the same relief as in the earlier complaint

except that the punitive damages claimed were reduced to

$500,000. In the second ease the district judge enjoined de-

fendants from selling this property for real estate taxes

until further order of the court. The appeals from the two

preliminary injunctions were consolidated for our consid-

eration.

This appeal is part of a series of lawsuits filed by the

plaintiff that object to the assessment of its property. A

federal suit involving plaintiff's 1972 and 1973 assess-

App. 3

ments was dismissed by this Court on the basis of 28

U.S.C. § 1841 in 28 East Jackson Enterprises, Inc. vy.

Cullerton, 523 F.2d 439 (1975), certiorari denied, 423 U.S.

1073, rehearing denied, 551 F.2d 1093 (1977), certiorari

denied, 46 LW 3216. With respect to the 1974 taxes at

issue here, in accordance with the district judge’s sugges-

tion, plaintiff appealed an adverse decision of the Circuit

Court of Cook County to the Illinois Supreme Court whieh

declined to interfere. 28 Kast Jackson Enterprises, Inc.

v. Rosewell, 65 [11.2d 420 (1976).2 Plaintiff brought no

action with respect to the 1975 taxes in state court on the

ground that ‘‘there is no [state] case under the Revenue

Act of 1939 granting injunctive relief under state equity or

state or federal constitutional principles except when the

tax is on exempt property or unauthorized. An excessive

assessment does not render the tax unauthorized.’’ (Br, 23

Both parties agree that the pivotal question on this

appeal® is whether the Illinois procedures available to

plaintiff are ‘‘plain, speedy and efficient’? remedies and

therefore deprive the federal courts of jurisdiction to en-

join the assessment, levy or collection of the tax under

* The Illinois Supreme Court's ruling was the basis for plaintiff's

petition for rehearing discussed at 551 F.2d 1093. Although the

Supreme Court's ruling covered only 1974 taxes, plaintiff also filed

state suits involving the 1972 and 1973 assessments. Those suits

apparently were continued pending the state Supreme Court's

ruling and were dismissed when that case was resolved adversely to

plaintiff. 551 F.2d at 1094 n. 3.

* Plaintiff also argued in its brief, that its request for tort damages

against defendants is not within the bar of Section 1341. As the

panel decided in the previous 28 East Jackson case, however, given

the nature of plaintiff's complaint it is immaterial that plaintiff also

requested damages and a declaratory judgment. 523 F.2d at 440-441

n. 2.

App. 4

28 U.S.C. § 1341.4 Plaintiff offers two reasons why the

state procedures provide uncertain relief at best. Its first

argument, that the state courts will not entertain a suit for

equitable relief in this context, cannot prevail because it

was rejected by a panel of this Court in the case involving

plaintiff’s 1972 and 1973 assessments. 523 F.2d at 489.

Plaintiff points to no case or event since that ruling to

refute the panel’s finding that the Illinois procedures are

adequate based on its reliance on the Illinois Supreme

Court’s statement that ‘‘there will be cases of fraudulently

excessive assessments where the remedy at law will not be

adequate and injunctive relief should then be available.’’

Clarendon Associates v. Korzen, 56 Wl.2d 101, 108 (1973)

quoted in 523 F.2d at 441.

Plaintiff’s second objection to the Illinois procedures

stems from its attempt in state court to enjoin the sale of

its property for failure to pay taxes for 1974. In that

ease, plaintiff informed the state courts that pursuant to

England y. Louisiana State Board of Medical Examimers,

875 U.S. 411, it was reserving solely to the federal courts

the adjudication of its rights under the Constitution and

laws of the United States. 65 Ill, 2d at 425. As a result

of that reservation, the Tllinois Supreme Court coneluded

that it lacked the authority to determine whether the com-

plaint alleged a cause of action for injunctive relief be-

eause to decide that issue would be to offer an advisory

'28 U.S.C. § 1341 provides:

“Taxes by States

“The district courts shall not enjoin, suspend or restrain the

assessment, levy or collection of any tax under State law where

a plain, speedy and efficient remedy may be had in the courts

of such State.”

App. 5

opinion. 65 Ill.2d at 425.° Based on that refusal to rule,

plaintiff insists that whatever procedures may be available

in theory, no adequate relief is available on the facts of

this case.

This attack on the Illinois procedures turns on the ques-

tion of whether the right to make an England reservation,

initially given to litigants by the courts as a limit on equi-

table abstention, is included in Congress’ statutory guaran-

tee in Section 1341 of a plain, speedy and efficient remedy in

state court. If a litigant does have the right to make an

England reservation under Seetion 1341 as well as in equi-

table abstention, then the Illinois procedures may not pro-

vide an efficient remedy because they do not protect that

right. On rehearing in the previous 28 East Jackson ease.

a panel of this Court rejected the same argument by the

same plaintiff based on the same Illinois Supreme Court

decision, reasoning that 2ngland was inapplicable because

England presupposes proper invocation of federal juris-

diction in the first instanee and plaintiff's initial complaint

did not properly invoke federal jurisdiction because it was

barred by Section 1841, 551 F.2d at 1096.° Because plain-

* Although it held that the Illinois judges had no authority to rule

on plaintiff's claims, rather than dismissing the case the Supreme

Court affirmed the judgment of the Circuit Court of Cook County.

65 Ill2d at 426.

* Because this Court's previous opinions establish that Illinois

remedies are plain, speedy and efficient, we need not decide whether

the Illinois Supreme Court's ruling on plaintiff's state claim, which

was filed and decided before this federal claim, is res judicata as

to plaintiff's 1974 taxes despite plaintiff's purported England reser-

vation, See generally Mr. Boston Distiller Corp. v. Pallot, 469 F.2d

337 (Sth Cir. 1972), certiorari denied, 411 U.S. 967; Roy v. Jones,

(footnote continued )

App. 6

tiff under the controlling precedent therefore had no right

in this context to make an Hngland reservation, the Illinois

Supreme Court’s refusal to rule based on that reservation

does not prove that the state remedies are inadequate.

Regardless of sympathy for plaintiff's plight, our 1977

decision in the case involving plaintiff's 1972-1973 taxes is

controlling. Therefore, the instant cases are remanded to

the district court with instructions to lift the preliminary

injunetions and dismiss the complaints.

(footnote continued)

484 F.2d 96 (3d Cir. 1973). Plaintiff insists that Mr. Boston, in

which a taxpayer was denied federal relief based on res judicata

after “unreservedly presenting its case to the [state] courts” and

losing in that forum, is in conflict with this Court's opinion on re-

hearing in the previous 28 East Jackson case. Apparently the

claimed conflict is based on the Fifth Circuit's use of the word

“unreservedly” in describing the facts of that case; the implication

plaintiff would have us draw is that if the taxpayer had presented

the claim “reservedly” as plaintiff did here, the Fifth Circuit would

not have applied res judicata and assertedly also would have accepted

the taxpayer’s England reservation, In our view, such potential

implications from dictum in an opinion that was on the books when

the previous panel of this Court rendered its decision are not by

themselves a basis for departing from the decision of the previous

panel.

App.7

UNITED STATES COURT OF APPEALS

For tar Seventu Circuit

Chicago, Illinois 60604

June 28, 1978,

Before

Hon. Watrer J. Cummiyes, Cireuit Judge

Hon. Witsur F. Pet, Jr., Circuit Judge

Hon. Ronerr A. Sprecuer, Circuit Judge

28 EAST JACKSON ENTERPRISES, INC..

Plaintiff-Appellee,

Nos. 76-1305, 77-1307 VS.

EDWARD J. ROSEWELL, Ete., ct al.,

Defendants-Appellants.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

Nos. 76 C-342, 77 C-149 — Thomas R. MeMillen, Judge.

ORDER

On consideration of the petition for rehearing and sug-

gestion for rehearing en banc filed in the above-entitled

cause by plaintiff-appellee, 28 East Jackson Enterprises,

Ine., no judge in active service has requested a vote thereon,

and all of the judges on the original panel have voted to

deny a rehearing. Accordingly,

IT IS ORDERED that the aforesaid petition for rehear-

ing be, and the same is hereby, DENIED.

App. 8

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

28 EAST JACKSON ENTERPRISES, INC.,

Plaintiff,

v.

EDWARD J. ROSEWELL, County Treasurer and Ex-

Officio County Collector of Cook County, Illinois, et al.,

Defendants.

NO. 76 C 342

DECISION ON PLAINTIFF'S MOTION FOR A

PRELIMINARY INJUNCTION AND DE-

FENDANTS’ MOTION TO DISMISS

THE COMPLAINT

On February 4, 1976, plaintiff filed a motion for a Tem-

porary Restraining Order which was granted, enjoining

the defendant County Collector of Cook County from

selling its property for 1974 Real Estate Taxes. This

order was concurrent with one entered by the Cireuit Court

of Cook County on January 22, 1976 which expired on

February 6, 1976. Sometime after that, an order denying

plaintiff's motion for preliminary injunction will presum-

ably be consummated by a dismissal of the State court ac-

tion, as recited in par. 1 of the State court's conclusions.

The reason for the entry of a temporary restraining

order by the State court was to afford the plaintiff an

opportunity to seek relief in the Federal court. The plain-

tiff’s motion herein for a preliminary injunction is there-

fore pursuant to the accommodation granted by the State

court in entering the temporary restraining order. That

order was not an expression by the State court of any

jurisdiction over the complaint.

App. 9

Defendants resist the entry of a preliminary injunction

primarily on the basis of Huffman v. Pursue, Ltd., 420

U.S. 592 (1975). In that ease, the Supreme Court ruled

that this court should not interfere with State court pro-

ceedings to abate a nuisance except in the exceptional cir-

cumstances left open with respect to criminal cases in

Younger v. Harris, 401 U.S. 37 (i971). The court did not

preclude recourse to a Federal court to redress alleged

violations of the Federal constitution but made it clear that

an injunction should not be entered until the petitioner

had exhausted his State court remedy (420 U.S. at 610-

611). The petitioner in Huffman had sought and ob-

tained a permanent injunction against the enforcement of

the State court judgment, but Federal relief was denied

because, mter alia, the petitioner had not appealed from

that judgment and it had become final without exhaustion

of an appeal.

In the case at bar, the plaintiff has not abandoned its

State court appeal and in fact has not yet obtained a final

judgment from which it could appeal. Therefore, a per-

manent injunction should not be considered at this time.

On the other hand, since the plaintiff alleges that no super-

sedeas can be obtained pending appeal from a State court

dismissal of his case, the property in question would be

sold for taxes and the plaintiff's remedy both in the State

court and in this court would be frustrated, according to

pars. 9, 10 and 12 of his motion for temporary restrain-

ing order. Thus a preliminary injunction is appropriate

in order to preserve the stalus quo, if plaintiff has a rea-

sonable probability of ultimate success, and in aid of our

jurisdiction.

In a related case involving the same property, our Court

of Appeals held that a preliminary injunction should not

App. 10

have been issued with respect to the collection of the 1972

Real Estate taxes and sale of plaintiff’s property for non-

payment thereof, because the plaintiff had a plain, speedy

and efficient remedy in the State courts within the mean-

ing of 28 U.S.C. $1341. 28 East Jackson Enterprises Ine,

vy. Cullerton et al., 523 F.2d 4389 (Tth Cir. 1975). The

court relied upon certain recent decisions of the Illinois

Supreme Court which indicated that equitable relief might

be available to the taxpayer in the State court, ¢.g, Hoyne

Sarvinas & Loan Association v. Hare, 60 Ill, 2d 84 (1974),

and Ex hange National Bank vy. Cullerton, 17 Ill App.

34 392 (1st Dist. 1974). The Court of Appeals coneluded

at 523 F.2d p. 442:

We recognize that if the adequacy of a state remedy

is uncertain, section 1341 does not divest the federal

courts of jurisdiction. Hillsborough v. Cromwell, 326

US. 620, 625-26, 66 S.Ct. 445, 90 L. Ed. 358 (1946).

But we believe that it is reasonably certain that Ilh-

nois courts would entertain a suit for injunction when

a taxpayer establishes that he lacks the funds to com-

ply with the statutory remedy of payment under pro-

test. Under such cireumstances, the principles of

comity and restraint embodied in section 1841 require

that plaintiff first seek equitable relief in the Illinois

courts.

Cireuit Judge Swygert in his dissent did not disagree

with the legal conclusion reached by the majority but be-

lieved that the plaintiff should have exhausted its State

court remedy before any injunction were considered. This

in substance is consistent with the opinion in Huffman vy.

Pursue, Ltd., supra p. 2.

Plaintiff in the ease at bar is apparently attempting to

remedy the deficiency which caused the reversal in its prior

case and simultaneously attempting to comply with the

App. ll

requirement which Justice Rehnquist and Cireuit Judge

Swygert suggested as a condition precedent for invoking

the equitable jurisdiction of this court. However, if plain-

tiff is not permitted to exhaust its State court remedy by

an appeal before its property is sold for taxes, then the

remedy in the case at bar becomes ineffectual. In order to

protect our jurisdiction from being frustrated and because

plaintiff has properly attempted io invoke our jurisdiction

with a reasonable likelihood of ultimate success, a_pre-

liminary injunction should be entered in this case until the

plaintiff exhausts its rights of appeal in the State court

action, 28 U.S.C. §2283. If plaintiff abandons that action

Without an appeal, then the requirements of I/uffman vy,

Pursue, Ltd, will not have been satisfied. If it is success-

ful in an appeal, then resort to this court may be rendered

unnecessary. If plaintiff is unsuecessful in its appeal, then

this court must decide whether or not the plaintiff has in

fact been accorded a plain, speedy and efficient remedy

in the State court and, if not, whether its constitutional

rights have been violated and permanent relief against the

defendants may be justified.

IT IS THEREFORE ORDERED, ADJUDGED AND

DECREED that defendants are preliminarily enjoined

from selling the plaintiff’s property designated as Per-

manent Index Nos, 17 15104 020 and -021 in order to pay

its 1974 Real Estate taxes, until the plaintiff has exhausted

or abandoned its remedy in the State court.

ENTER:

Thomas R. McMillen

JUDGE, U. S. DISTRICT COURT

DATED: Feb, 12, 1976

App. 12

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

RASTERN DIVISION

298 BAST JACKSON ENTERPRISES, INC.,,

Plaintiff,

Vv.

EDWARD J. ROSEWELL, COUNTY TREASURER AND

EX-OFFICLO COUNTY COLLECTOR OF COOK COUN-

TY, ILLINOIS, AND THOMAS M. 'TULLY, INDIVIDU-

ALLY AND AS ASSESSOR OF COOK COUNTY,

Defendants.

NO, 77 C 149

PRELIMINARY INJUNCTION

This cause coming on upon motion of plaintiff, 28 East

Jackson Enterprises, Inc., for a preliminary injunction

to enjoin the defendant Rosewell from selling plaintiff's

real estate for 1975 taxes, the Court, having considered

the pleadings and arguments of counsel and being advised

in the matter, finds:

1. The issues wre substantially the same as those in

cases No. 73 C 2876, 74 C 3509 and 76 C 342. In those cases,

this Court held that jurisdiction lay under 28 U.S.C. §1348

(3) and 42 U.S.C, $1983, and that 28 U.S.C. $1341 was not

a bar to the issuance of preliminary injunctions because

plaintiff did not have a plain, speedy and efficient remedy

in the state courts.

2. Plaintiff has no adequate remedy at law and there is

no plain, speedy and efficient remedy now available to

plaintiff in the state courts; and $1341 is not a bar. This

Court has jurisdiction of the parties and subject matter.

App. 18

3. If plaintiff's property is sold for 1975 taxes, it will

make it impossible for this Court to grant any relief to

plaintiff should it be found entitled thereto upon a trial of

the cause,

4. The effect of a preliminary injunction on the public

bodies levying the taxes is slight, plaintiff's taxes being

less than .008% of the total taxes levied in Cook County ;

conversely, denial of a preliminary injunction will occasion

irreparable loss to plaintiff.

o. Maladministration of tax laws, alleged by plaintiff

and supported by proof in the earlier proceedings, is con-

trary to the public interest.

6. The jurisdictional aspects of this case will be de-

termined by a decision in the appeal of No. 73 C 2876 now

before the Court of Appeals on a Second Petition for Re-

hearing.

IT IS THEREFORE ORDERED, ADJUDGED AND

DECREED that the defendant, Edward J. Rosewell, indi-

vidually and as Treasurer and Ex-Officio County Collector

of Cook County, is enjoined from selling plaintiff's prop-

erty designated as Permanent Index Nos. 17-15-104-020

and 17-15-104-021 for 1975 real estate taxes until further

order of this Court.

Dated: Jan 20 1977

° ENTER:

Thomas R. McMillen

JUDGE

Approved as to form only:

Illegible

Assistant State’s Attorney

James L. Fox

33 North Dearborn Street

Chicago, Illinois 60602

FInancial 6-8370

App. 14

Ix Tue Circuit Court or Cook Country, Inurvors

County DeEparTMENT—CHANCERY Diviston

No. 76 CH 14

28 East Jackson Enrerprises, INc.,

Platntiff,

V.

Epwarp J, Rosewetx, County Treasurer and ex-officio Coun-

ty Collector of Cook County, Illinois,

Defendant.

ORDER DENYING PRELIMINARY INJUNCTION

This cause coming on upon plaintiff’s Motion for a

Preliminary Injunction and the Court having jurisdiction

of the parties and subject matter, the defendant having

notice thereof and being represented by counsel; and

The Court having considered the Motion, the allega-

tions of the verified Complaint and the arguments of coun-

sel and having been informed in the premises, finds:

FINDINGS

1, It has jurisdiction of the parties and of the subject

matter,

2. The overvaluation alleged in the Complaint is not

of the extent required to render the application of the

Clarendon and Hayne! eases to this particular piece of

property.

3. The allegations of inability to pay taxes do not afford

a basis for equitable relief under Illinois law.

‘Clarendon Associates v. Korzen, 56 Il.2d 95 (1974) , Hoyne

Savings & Loan Association v. Hare, 60 Ill.2d 84 (1974).

App. 15

CONCLUSIONS

1. This Court concludes that as & matter of law plain-

tiff’s Complaint does not state a cause of action under

Illinois law and, upon a motion to dismiss filed against it,

the Complaint would be dismissed,

Ae PLAS eS a ;

¢. No preliminary injunction may enter as the entry of

such an injunction would be contrary to the law of this

State,

ORDER

it Is Therefore Ordered that plaintiff’s Motion for a

preliminary injunction be denied

Dated: Jan. 22, 1976

Enter:

/8s/ Walter P. Dahl

Judge

Moses, Gibbons, Abramson & Fox

33 North Dearborn Street

Chicago, Illinois 60602

FInancial 6-8370