# Petition — Rosewell v. LaSalle Nat. Bank

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1981
- **Citation:** 450 U.S. 503

## Text

“Biprome Court, U “ve

6 1980
- ICHAEL RODAK, JR. cLERR

Supreme Court of the United States

OctosErR Term, 1979

No. €9-1157%

EDWARD J. ROSEWELL, etc., et al.,
Petitioners,

VS.

LA SALLE NATIONAL BANK, TRUSTEE, etc.,
Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT

BERNARD CAREY,
State’s Attorney of Cook County, Illinois,
500 Richard J. Daley Center,
Chicago, }: \nois 60602,
(312) 443-5460,

Attorney for Petitioners.

Pavut P. Breset, JR.,
Deputy State’s Attorney,
Chief, Civil Actions Bureau,

Henry A. Hauser,

Micuaret F.. Baccassu,
Assistant State’s Attorneys,

Of Counsel.

Midwest Law Printing Co., Chicago 60601, Financial 6-3988

TABLE OF CONTENTS

PAGE

OPINIONS BELOW
JURISDICTION
QUESTION PRESENTED
STATUTORY PROVISIONS INVOLVED ................
STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT:

I

The Decision Of The Court Of Appeals That
An Available Concurrent State Court §1983 <Ac-
tion Fails To Provide A State Remedy Acceptable
Under 28 U.S.C. §1341 Is In Conflict With This
Court’s Holding In Tully v. Griffin, Inc., 429 US.
68 (1976), And Raises Significant, Disputed And
Fundamental Questions Regarding The Distribu-
tion Of Judicial Power Between State And Federal
Courts

IL.

The Decision Of The Court Of Appeals Is In
Conflict With The Holding Of The Fifth Circuit
In Bland v. McHann, 463 F.2d 21 (5th Cir. 1972)
Upon The Question Whether Failure Of A State
Statutory Refund Scheme To Provide For Pre-
Judgment Interest Renders The State Remedy Not
Plain, Speedy And Efficient Within The Meaning
Of 28 U.S.C. §1341

CONCLUSION

15
18

|

ii
APPENDICES:

A—Opinion of the United States Court of Appeals
for the Seventh Circuit la

B—Memorandum Order of the United States District
Court for the Northern District of Illinois, East-
ern Division 20a

C—Order of the United States Court of Appeals
for the Seventh Circuit Denying Rehearing en
SS ONS EEDA NE EO 22a

TABLE OF AUTHORITIES
Cases:

Advertiser Co. v. Wallace, 446 F.Supp. 677 (N.D. Ala.
ESSE A re 11

Alberty v. Daniel, 25 Tll.App.3d 291, 323 N.E.2d 110
(1st Dist. 1974) ......... 6, 11

Bertelsen & Petersen Engineering Co. v. United States,
I I NE, OED ona ccsnnescosscsnntscenctnaceretwicorevens 16

Bland v. McHann, 463 F.2d 21 (5th Cir. 1972) ...... 15, 16, 18
Board of Commissioners of Jackson County, Kansas v.

United States, 308 U.S. 343 (1939) 16
Bohacs v. Ried, 63 Tll.App.3d 477, 379 N.E.2d 1372 (2nd

I csesnenscnntintenivanh 11
Bull v. United States, 295 U.S. 247 (1935) 2.020202... 8,9
Chamberlain v. Brown, 223 Tenn. 25, 442 S.W.2d 248

Te es cae chaiametibonnnnss 11
Chicago, Burlington and Quincy Railroad v. Frary, 22

lcs sich iemsnsaiepasincditvedspennkmastnenes 7, 8,9
Clarendon Associates v. Korzen, 56 Ill.2d 101, 306 N.E.

2d 299 (1973) 6,17
Coon v. Teasdale, 567 F.2d 820 (8th Cir. 1977) .. ......... 13, 14

Dee-El Garage v. Korzen, 53 [l.2d 1, 289 N.E.2d 431
Tess cneenissntbsnnsevenauiniionsinbetetinatisenenans 17

iii

Department of Employment v. United States, 385 U.S.

355 (1966) 15
Fulton Market Cold Storage Co. v. Cullerton, 582 F.2d

1021 (7th Cir. 1978) 15
Georgia R.R. v. Redwine, 342 U.S. 299 (1952) -............. 17
Goodfriend v. Board of Appeals, 18 Tl. App. 3d 412,

305 N.E.2d 404 (1st Dist. 1973) 6
Green v. Klinkofe, 422 F.Supp. 1021 (N.D. Ind. 1976) .. 11
Houston v. Moore, 18 U.S. (5 Wheat) 1 (1820) .............. 11
Huber Pontiac, Inc. v. Whitler, 585 F.2d 817 (7th Cir.

1978) 13

In the Matter of 28 East Jackson Enterprises, Inc.,
Debtor, 79 B 39051, United States Bankruptcy Court,

Northern District of Illinois, Eastern Division .......... 10
Juidice v. Vail, 430 U.S. 327 14
LaSalle National Bank v. County of Cook, 57 T1l.2d 318,

312 N.E.2d 252 (1974) 5
Long v. District of Columbia, 469 F.2d 927 (D.C. Cir.

1972) 11
Matthews v. Rogers, 284 U.S. 521 (1932) 8,9
McLean v. St. John, 10 Tll.App. 367 (4th Dist. 1882) ...... 11
Miller v. Bauer, 517 F.2d 27 (7th Cir. 1975) .................. 18
Nabisco, Inc. v. Korzen, 68 Tli.2d 451, 369 N.E.2d 829

(1977) 17

People ex rel. Korzen v. Fulton Market Cold Storage,
62 Tll.2d 443, 343 N.E.2d 450 (1976)

Perez v. Ledesma, 401 U.S. 82 (1971) 8
Scripps-Howard Radio v. FCC, 316 U.S. 4 (1942) ........ 12
Stone v. Powell, 428 U.S. 465 14

Terry v. Kolski, 78 Wis.2d 475, 254 N.E.2d 704 (1977) ... 11
28 East Jackson Enterprises v. Rosewell, 63 Tll.App.3d

880, 380 N.E.2d 395 (1st Dist. 1978) ... 10, 14
28 East Jackson Enterprises, Inc. v. Rosewell, 65 Tll.2d
GED, Te Ta DDD CSTE) nines psccscscsecsscsnncacnonoce 10, 14

28 East Jackson Enterprises, Inc. v. Cullerton, 523 F.
2d 439 (7th Cir. 1975) 6, 10, 14

iv
28 East Jackson Enterprises, Inc. v. Cullerton, 551 F.
2d 1093 (7th Cir. 1977) 10

Tully v. Griffin, Inc., 429 U.S. 68 (1976) passim

United States v. Board of Commissioners of Comanche
County, Oklahoma, 6 F.Supp. 401 (W.D. Okla. 1934) 15

United States v. Board of County Commissioners of
Pawnee County, Oklahoma, 13 F.Supp. 641 (N.D.

Okla. 1936) 15, 16
Walker Process Equipment Inc. v. Food Machinery and

Chemical Corp., 382 U.S. 172 (1965) 4
Statutes:
TS) SESSA CN Ren ce ONC ee Ee 2
28 U.S.C. $1341 passim
28 U.S.C. §1343 ; 3
42 U.S.C. §1983 passim
Til. Rev. Stat. 1977, ch. 120, par. 578 6
Til. Rev. Stat. 1977, ch. 120, par. 579 6
Til. Rev. Stat. 1977, ch. 120, par. 594 6
Til. Rev. Stat. 1977, ch. 120, par. 598 ws
Til. Rev. Stat. 1977, ch. 120, par. 604 6
Ti. Rev. Stat. 1977, ch. 120, par. 675 5, 6,7
Ml. Rev. Stat. 1977, ch. 120, par. 716 5, 6, 7
Federal Rules of Civil Procedure, Rule 62(c) ................ 5
Other Authorities:

Hill, Substance and Procedure in State FELA Ac-
tions—the Converse of the Erie Problem, 17 Ohio St.

L.J. 384 (1956) 13
Neuborne, The Myth of Parity, 90 Harv. L. Rev. 1105
(1977) 14

Note, State Enforcement of Federally Created Rights,
73 Harv. L. Rev. 1551 (1960) 13

In THE

Supreme Court of the United States

Ocroser Term, 1979

No.

EDWARD J. ROSEWELL, etc., et al,
Petitioners,
vs.

LA SALLE NATIONAL BANK, TRUSTEE, etc.,
Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT

Petitioners Edward J. Rosewel’, Treasurer of Cook
County, Illinois, and Thomas M. Tully*, former Assessor
of Cook County, Illinois, respectfully pray that a writ of
certiorari issue to review the judgment and opinion of
the United States Court of Appeals for the Seventh Cir-
cuit entered in this proceeding on August 24, 1979.

* Thomas M. Tully held the office of Assessor of Cook Coun-
ty on the date the complaint was filed. He has been succeeded
in office by Thomas C. Hynes, who was duly elected Assessor
of Cook County in November of 1978.

x a
OPINIONS BELOW

The opinion of the Court of Appeals is reported at 604
F.2d 530 (7th Cir. 1979), and appears herein as Appen-
dix A. The memorandum order of the District Court is
not reported, and appears herein as Appendix B.

JURISDICTION

The judgment of the Court of Appeals was entered on
August 24, 1979. A timely petition for rehearing en banc
was denied on October 30, 1979.* That order appears
herein as Appendix C. This petition was filed within 90
days from that date. This Court’s jurisdiction is invoked
under 28 U.S.C. § 1254(1).

QUESTION PRESENTED

Whether the remedies which may be had by a real es-
tate taxpayer in the courts of Illinois, including a state
civil rights action premised on 42 U.S.C. § 1983, or a
statutory refund without interest, are “plain, speedy and
efficient” within the meaning of 28 U.S.C. § 1341 so as
to bar federal injunctive relief from alleged overassess-
ment which is claimed to violate the taxpayer’s civil
rights.

* The order of October 30, 1979 notes that “Judges Pell,
Sprecher, Bauer and Wood voted to grant the suggestion for
rehearing in banc.” The active judges of the Seventh Circuit
thus split 5 to 4 on the en banc suggestion.

inlliee

FEDERAL STATUTES
PROVIDE IN PERTINENT PART

Title 28 U.S.C.

§ 1341. 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.

§ 1343. Civil rights and elective franchise:

The district courts shall have original jurisdiction
of any civil action authorized by law to be com-
menced 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
Act of Congress providing for equal rights of
citizens or of all persons within the jurisdiction of
the United States;

Title 42 U.S.C.

§ 1988. Civil action for deprivation of rights:

Every person who, under color of any statute, or-
dinance, 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
Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other
proper proceeding for redress.

—
STATEMENT OF THE CASE

This case presents the question whether two facets of
Illinois’ judicial remedies available to taxpayers who
desire to contest their taxes square with the federal
Anti-Tax Injunction Statute. The taxpayer maintains
that the state statutory legal remedy, which is available
and usually followed in the situation involved herein, is
not “plain, speedy and efficient” because pre-judgment*
interest is not paid on refunds received in the state
court. The taxpayer has also contested the efficiency of a
state court action based on 42 U.S.C. § 1983 to remedy
the alleged overassessment of the property. The Seventh
Circuit agreed with these arguments and he!d that in-
junctive relief was appropriate.

The case is presented on the pleadings only, since the
district court granted the petitioners’ motion to dismiss.
The well pleaded allegations of the complaint thus form
the factual basis for the determination of the issues rais-
ed herein. Walker Process Equipment Inc. v. Food
Machinery and Chemical Corp., 382 U.S. 172, 174-75
(1965).

The taxpayer alleges that it is the titleholder of real
property which was allegedly overassessed by the Cook
County Assessor for tax year 1977; that its property_was
assessed at over three times the amount that property in
its class should have been assessed; and that the taxes
claimed by the Collector are also over three times the
proper amount.

The taxpayer asserted that its only remedy in the
state court was by way of payment under protest of the

* “Pre-judgment interest” as used in this petition means in-
terest upon tax refunds computed from the time of payment
to the time of the entry of the order of refund.

= a

full amount of tax claimed by the Collector, and
thereafter objecting at the Collector’s annual Applica-
tion for Judgment. (Sections 194 and 235 of the Revenue
Act; Ill. Rev. Stat. 1977, ch. 120, sec. 675 and 716). The
taxpayer alleges that the “customary delay in receiving
refunds upon successful prosecution of such a suit is two
years, and that the courts of Illinois do not award in-
terest to taxpayers who successfully follow the aforesaid
statutory remedy at law. The taxpayer sought a
preliminary and permanent injunction preventing the
Collector from taking any action to collect taxes in ex-
cess of the proper amount.

The tax officials filed a motion to dismiss on
November 3, 1978, requesting the District Court to dis-
miss the Complaint on the basis of 28 U.S.C. § 1341,
which provides:

“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.”

On November 30, 1978, the District Court dismissed
the Complaint for want of jurisdiction. The District
Court stated:

1. The availability of equitable and declaratory
relief in the Illinois state courts provides the
plaintiff with a ‘plain, speedy and efficient’
remedy. Tully v. Griffin, 429 U.S. 68 (1976).

2. The non-payment of interest on refunds pur-
suant to Sections 675 and 716 of Chapter 120, II-
linois Revised Statutes, does not render the
remedy in Illinois courts not ‘plain, speedy and
efficient’.

The District Court did, however, grant the taxpayer
an injunction pending appeal pursuant to Rule 62(c) of
the Federal Rules of Civil Procedure.

—§~

The Seventh Circuit unequivocally held that the
remedies available to a taxpayer under Illinois’ statutes
and cases* do not square with the requirement of the
Federal Anti-Tax Injunction Act, 28 U.S.C. § 1341, that
they be plain, speedy .and efficient.

* Illinois provides at least the following remedies to a tax-
payer whose real estate is overassessed:

1. Administrative, pre-assessment—The assessor cannot in-
crease a real estate assessment in a non-quadrennial year
without first giving the taxpayer notice of such roposed in-
crease and the right to be heard thereon. See Ch. 120, par.
578, 579, Ill. Rev. Stat. 1977; roe eye v. Board of Appeals,
18 Ill. App. 3d 412, 305 N.E.2d 404 (ist Dist. 1973).

2. Administrative post-assessment—The assessor has discre-
tion upon application by the taxpayer to offer a certificate of
— iB, _— situations. See Ch. 120, par. 604, Ill. Rev.

3. Administrative-assessment review—Prior to issuance of
the tax bills, the Board of Appeals of Cook County has
statutory power to review assessments and order them cor-
rected. Ch. aah pots 594, 598, Ill. Rev. Stat. 1977; People
ex rel. Korzen v. ton Market Cold Storage, 62 Ill. 2d 443,
343 N.E.2d 450 (1976).

4. Statutory legal remedy—With payment under protest and
exhaustion of administrative remedies, a taxpayer may file an
objection to the collector’s ——— for judgment and sale
of delinquent real estate. The circuit court pe the
power in this proceeding to determine whether the assessment
is correct. See Ch. 120, pars. 675, 716, Ill. Rev. Stat. 1977;
LaSalle National Bank v. County of Cook, 57 Ill. 2d 318, 312
N.E.2d 252 (1974).

5. Injunctive Relief—A taxpayer may obtain injunctive relief
when the legal remedy is unavailable. Clarendon Associates v.
Korzen, 56 Ill. 2d 101, 306 N.E.2d 299 (1979) 28 East Jackson
inter yriees v. Cullerton, 523 F.2d 439 (7th Cir. 1975); cert.
denied, 423 U.S. 1073 (1976). Sepeeeneete) Opeiee upon
Denial of Rehearing, 551 F.2d 1093 (7th Cir. 1976), cert.
denied, 434 U.S. (1977).

6. The remedies available to a taxpayer in Illinois include a
42 U.S.C. § 1983 claim. The Illinois Appellate court for the
District in which the taxpayer’s property is located has stated
that, “. . . the courts of the State of Illinois have concurrent
jurisdiction with the Federal courts to hear claims founded
upon alleged violations of 42 U.S.C. § 1983.” Alberty v. Daniel,
25 Ill. App. 3d 291, 295, 323 N.E.2d 110 (1st Dist. 1974).

chine

In particular the Seventh Circuit has focused upon (1)
the failure of the prepayment remedy of the Illinois
Revenue Act of 1939, Ch. 120, pars. 675, 716 to provide
for the payment of interest upon refunds of successfully
protested taxes, and (2) the question of whether the ad-
mitted availability of Illinois courts for a § 1983 action
bars jurisdiction under 28 U.S.C. § 1341. The Court of
Appeals stated:

Our review of the respective legislative histories
of the Tax Injunction Act and section 1983 leads to
the conclusion that Congress did not intend that the
possibility of bringing a section 1983 action in state
court would bar, pursuant to the Tax Injunction
Act, federal jurisdiction over a section 1983 action
brought in federal court. Further, we have conclud-
ed that there is no legal or equitable remedy
available under Illinois law which is “plain, speedy
and efficient.”

LaSalle, 604 F.2d at 540.

It thus follows from this ruling that any and every II-
linois taxpayer desirous of litigating tax assessments
may choose to bring his case in the District Court for an
injunction against the collection of the tax. This state of
affairs, though seldom arising, nonetheless presents
grave difficulties in the relationship between the state
and federal courts. Both the Supreme Court of Illinois
and this Court have held the use of injunctive power in
the area of state tax collection to be extremely sensitive.

In Chicago, Burlington and Quincy Railroad Co. v.
Frary, 22 Ill. 34 (1859), affirming the denial of a tax in-
junction, the Supreme Court of Illinois observed:

Let us now, by sustaining this bill stretch out the
strong arm of this court and stay the hand of the
collector in every case where any irregularity can

be shown in the assessment of the revenue, and a
flood of injunctions would be spread over the land

~

at once, State and County revenue would cease to be
collected, at least till termination of protracted
litigation, and the wheels of government would stop.
(22 Ill. at 36.)

The concern expressed by the court in Frary has led
to “. . . procedures for mass assessment and collection of
. . . taxes and for administration and adjudication of
taxpayers’ disputes with tax officials (which) are
generally complex and necessarily designed to operate
according to established rules . . . of state procedure.”
Perez v. Ledesma, 401 U.S. 82, 127-128, n. 17, Brennan,
J., concurring (1971).

In the different, though highly relevant, context of the
income tax, this Court stated that, “(T)axes are the life
blood of government, and their prompt and certain
availability an imperious need”. Bull v. United States,
295 U.S. 247, 259 (1935).

This Court has noted the sensitive nature of federal
tax injunctions and has observed that:

The scrupulous regard for the rightful in-
dependence of state governments which should at
all times actuate the federal courts, and a proper
reluctance to interfere by injunction with their
fiscz’ operations require that such relief should be
denied in every case where the asserted federal
right may be preserved without it.

Matthews v. Rogers, 284 U.S. 521, 525-526 (1932); see
also Tully v. Griffin, Inc., 429 U.S. 68, 73 (1976).

The petitioners respectfully submit that the serious
potential impact of the Seventh Circuit’s opinion upon
the collection of real estate taxes in Illinois, standing
alone, warrants review by this Court.

—9—
REASONS FOR GRANTING THE WRIT

I,

THE DECISION OF THE COURT OF APPEALS
THAT AN AVAILABLE CONCURRENT STATE
COURT § 1983 ACTION FAILS TO PROVIDE A STATE
REMEDY ACCEPTABLE UNDER 28 U.S.C. § 1341 IS
IN CONFLICT WITH THIS COURT’S HOLDING IN
TULLY v. GRIFFIN, INC., 429 U.S. 68 (1976), AND RAISES
SIGNIFICANT, DISPUTED AND FUNDAMENTAL
QUESTIONS REGARDING THE DISTRIBUTION OF
JUDICIAL POWER BETWEEN STATE AND
FEDERAL COURTS.

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 federal right might otherwise be lost.

Tully v. Griffin, Inc., 429 U.S. 68, 73 (1976).

The “asserted federal right” which the taxpayer seeks
to vindicate by its complaint in federal court is based
upon the Civil Rights Act, 42 U.S.C. § 1983. The tax-
payer asserts that the assessment was intentionally ex-
cessive, and that its right to equal protection is therefore
violated. Thus, the taxpayer contends, a federal injunc-
tion should issue against petitioners’ attempts to collect
the tax.

On the other hand the tax authorities, your
petitioners, have at stake the following concerns: First,
tax injunctions directly stem the flow of necessary
revenue and thus constitute a direct threat to the fiscal
interests of the state. See Chicago, Burlington and Quin-
cy Railroad Co. v. Frary, 22 Ill. 34, 36 (1859); Matthews
v. Rogers, 284 U.S. 521, 525-526 (1932); cf. Bull v. United
States, 295 U.S. 247, 259 (1935). Secondly, tax injunc-

—10—

tions always transfer the risk of taxpayer insolvency to
the government.*

In order to protect these competing interests this
Court, prior to the adoption of § 1341, and Congress
thereafter, has limited federal jurisdiction in tax cases
to those where “. .. an asserted federal right might
otherwise be lost.” Tully v. Griffin, Inc., 429 U.S. 68, 73
(1976).

Illinois law is clear that civil rights actions filed pursu-
ant to 42 U.S.C. § 1988 may be maintained in Illinois

* A notorious example of this phenomenon exists here in the
Seventh Circuit with regard to a downtown Chicago property
located at 28 East Jackson Street. As described by Mr. Justice
Downing in 28 East Jackson Enterprises v. Rosewell, 63 III.
App. 880 (1st Dist. 1978) 380 N.E.2d 395, a taxpayer
employed:
[a] series of cases in both the State and Federal courts by
which plaintiff has avoided entirely the payment of real
estate taxes on the vss, ye property since 1971. The
history of plaintiff's legal maneuvers is set forth in 28
East Jackson E’ ses, Inc. v. Rosewell (1976), 65 Ill. 2d
420, 358 N.E.2d 1139, in 28 East Jackson Enterprises, Inc.
v. Cullerton (7th Cir. 1975), 523 F.2d 439, and in 28 East
Jackson Enterprises, Inc. v. Cullerton (7th Cir. 1977), 551
F.2d 1093, and will not be repeated here.

It is sufficient here to aay that these maneuvers suggest
a pattern whereby plaintiff has taken advantage of an un-
resolved question of Illinois law, a gray area of Federal-
State relations, and the delays inherent in the judicial
process to a the sale of its tax-delinquent property un-
til after the following year’s taxes have also become delin-
quent, after which a new suit is filed raising the same
precise issues and beginning the process anew.

28 E. Jackson, supra 63 Ill. App. 3d at 881-82.

Having delayed the payment of more than $700,000 in real es-
tate taxes for more than eight years, the taxpayer filed for a
reorganization under Chapter 11 of the nts svetig, od Act in
late 1979. See, In the Matter of 28 East Jackson Enterprises,
Inc., Debtor. 79 B 39051, United States Bankruptcy Court,
Northern District of Illinois, Eastern Division.

courts. Alberty v. Daniel, 25 Ill. App. 3d 291, 295 (1st
Dist. 1974), 323 N.E.2d 110; Bohacs v. Ried, 63 Ill. App.
3d 477, 481-82 (2nd Dist. 1978), 379 N.E.2d 13872. Alber-
ty is settled law in the First Appellate District of II-
linois, and is binding upon the Circuit Court of Cook
County, Illinois, the state forum which would have venue
and jurisdiction of a state § 1983 tay action in this case.
These holdings are in accord with the emerging ma-
jority view on this question. See Advertiser Co. v.
Wallace, 446 F. Supp. 677, 681 (N.D. Ala. 1978); Green
v. Klinkofe, 422 F. Supp. 1021, 1026-27 (N.D. Ind. 1976);
Long v. District of Columbia, 469 F.2d 927, 937 (D.C.
Cir. 1972); Terry v. Kolski, 78 Wis.2d 475, 254 N.E.2d
704 (1977). The only case cited by the Seventh Circuit
which holds to the contrary is Chamberlain v. Brown,
223 Tenn. 25, 442 S.W.2d 248 (1969). However
Chamberlain was specifically discussed, considered, and
rejected in Alberty, supra at 25 Ill. App. 3d at 295.

Furthermore, Alberty and Bohacs find sound support
in the early concurrent remedy cases of Claflin v.
Houseman, 93 U.S. 130 (1876) and Houston v. Moore, 18
U.S. (5 Wheat) 1, 25-27 (1820). Claflin was no stranger
to Illinois courts and, in fact, was cited as authority in
McLean v. St. John, 10 Ill. App. 367, 368 (4th Dist. 1882)
on the issue of concurrent jurisdiction in a bankruptcy
matter.

The petitioners respectfully submit that the availabili-
ty of Illinois courts for § 1983 actions as expressed in
Alberty operates to preserve all federal rights which
could be premised on the civil rights act. Under Tully,
the federal court had a duty to “. . . refrain from in-
terfering with [a state’s] collection of its revenue.” Tully
v. Griffin, supra at 74. [parenthetical insert for clarity]

=

Despite the force and clarity of the Tully holding, and
the full availability of a state civil rights action, the
Seventh Circuit nonetheless dropped the bar of § 1341.
The opinion, in effect, established a speciai rule for
§ 1983 tax actions which operates to preserve federal
jurisdiction even though a clear forum in the state court
exists to adjudicate exactly the same claim advanced in
the federal district court. Thus, the court’s opinion ig-
nores the willingness of Illinois to afford its citizens a
state forum for reviewing § 1983 claims, and describes
the clear application of § 1341 as a “perverse result.” 604
F.2d at 540.

The result is “perverse” only if one indulges in a value
judgment in favor of the federal courts hearing § 1983
tax cases and against state involvement in them.
However, it is the place of Congress to make such value
judgments,* and it did so by passing § 1341 which is a
clearly articulated limitation upon federal jurisdiction of
§ 1983 actions involving state taxes.

The Court of Appeals urges that the tax officials’ posi-
tion is impractical and “. . . undermines judicial ef-
ficiency and legal expertise”. 604 F.2d at 538-39.
Petitioners submit that the obvious influx of § 1983 tax
injunction cases which the panel opinion invites** cannot
much help the efficiency of the district judge, whose
substantial expertise is not generally considered to in-
clude state tax overvaluation claims.

* Mr. Justice Frankfurter cautions as follows: “We must be
wary against interpolating our own notions of policy in the in-
terstices of legislative —— Scripps-Howard Radio v.
FCC, 316 U.S. 4, 11 (1942).

** More than 1100 specific valuation objections are filed
each year in Cook County alone.

Petitioners urge a case which presents a classic
converse-Erie situation. See Hill, Substance and
Procedure in State FELA Actions—the Converse of the
Erie Problem, 17 Ohio St. L.J. 384 (1956); Note, State
Enforcement of Federally Created Rights, 73 Harv. L.
Rev. 1551, 1560-61 (1960). In a diversity case the federal
court decides state claims based upon state law. Under
Alberty the state court decides federal claims based on
federal law. The former situation is impelled by the
statute authorizing federal jurisdiction, the latter by ex-
press congressional limitations thereon, all in accord
with prime considerations of comity and federalism. The
petitioners submit there is nothing impractical in
deciding the case in a manner which preserves the fiscal
integrity of the state.

The petitioners submit that the Court of Appeals’
refusal to accept the clear mandate of Tully stems first
from the court’s distaste for the resulting limitation of
federal jurisdiction in tax cases which the court found to
be “. . . an untenable conclusion: the Tax Injunction Act
would bar federal jurisdiction in all cases involving state
tax operations—without exception.” 604 F.2d at 538.
However the court’s resolution of the issue, while
rhetorically appealing, completely begs the question. As
long as state remedies are “plain, speedy and efficient”
as we contend a state § 1983 action would be*, then

* While the Court of Appeals found that. an Illinois § 1983
remedy was not plain because of uncertainty as to the law
a soaps pag! og se is —— . 604 on at 537-38. Illinois
courts possess the full panoply of injunctive powers necessa
to protect federal constitutional rights. Indeed, the Seventh
Circuit noted in Huber Pontiac, Inc. v. Whitler, 585 F.2d 817
(7th Cir. 1978) that “Illinois courts are not adverse to hearin
constitutional challenges similar to Huber’s complaints wit
Rule 2-4 [due process challenge].” Huber, supra at 821
[parenthetical insert for clarity]. also Coon v. Teasdale,
(Footnote continued on following page)

=

§ 1341 would bar federal jurisdiction, without exception,
even under the existing law of the Circuit. See 28 East
Jackson Enterprises, Inc. v. Cullerton, 523 F.2d 439 (7th
Cir. 1975).

Secondly the Court of Appeals’ decision appears to be
based upon a fundamental distrust of the state court as
an appropriate forum for the vindication of federal con-
stitutional rights in tax cases. 604 F.2d 539-40; compare
Stone v. Powell, 428 U.S. 465, 493-94 n. 35 with Juidice
v. Vail, 480 U.S. 327, 342-346, Brennan, J., dissenting,
and Neuborne, The Myth of Parity, 90 Harv. L. Rev.
1105 (1977). However if the Anti-Tax Injunction Statute
means anything, it must mean that Congress has unam-
biguously decided to commit those federal rights to the
courts of the several states for adjudication.

The foregoing questions are of significant and fun-
damental import to both federal and state courts.
Review by certiorari is most appropriate to resolve these
questions in a manner supportive of the federalism upon
which this nation’s body politic is based.

* continued

567 F.2d 820, 822 (8th Cir. 1977). The only “uncertainty” that
exists in this case, results from the taxpayer’s failure to sub-
mit its federal claims to the state court for determination.
Sea. &B-» 28 East Jackson, Inc. v. Rosewell, 65 Ill. 2d 420, 358

1139 (1976); 28 East Jackson Ine. v.
Rosewell, 63 Ill. App. 3d 880 (1st Dist. 1978), 380 N E.2d 395,

—15—

II.

THE DECISION OF THE COURT OF APPEALS IS IN
CONFLICT WITH THE HOLDING OF THE FIFTH
CIRCUIT IN BLAND vy. McHANN, 463 F.2d 21 (5th CIR.
1972) UPON THE QUESTION WHETHER FAILURE
OF A STATE STATUTORY REFUND SCHEME TO
PROVIDE FOR PRE-JUDGMENT INTEREST
RENDERS THE STATE REMEDY NOT PLAIN,
SPEEDY AND EFFICIENT WITHIN THE MEANING
OF 28 U.S.C. § 1341.

The question whether a state’s tax refund remedy
must include pre-judgment interest is an open one which
this Court did not reach in Department of Employment v.
United States, 385 U.S. 355, 358 (1966). Subsequently
the Fifth Circuit in Bland v. McHann, 463 F.2d 21 (5th
Cir. 1972) held that a Mississippi remedy which “.. .
makes no provision for the recovery of interest on il-
legally assessed taxes. .. .” (463 F.2d at 28 n. 24) none-
theless squares with the requirements of the Anti-Tax
Injunction Act.

The conflict between Bland and LaSalle is clear.
Petitioners submit that the Seventh Circuit has mis-
takenly elevated pre-judgment “interest” on tax refunds
to a right or entitlement.*

However the law is clear that interest is a matter
of statute, not of right as demonstrated by United States
v. Board of Commissioners of Comanche County, Ok-
lahoma, 6 F. Supp. 401 (W.D. Okla. 1934); United
States v. Board of County Commissioners of Pawnee

* Fulton Market Cold Storage Co. v. Cullerton, 582 F.2d 1021

(7th Cir. 1978) treats “interest” as an element of damages

por een ag an_overassessment in violation of a taxpayer’s

civil rights. 582 F.2d at 1080. No authority is advanced to

support that conclusion, nor does the court distinguish

ete the pre-judgment or post-judgment nature of in-
rest.

—1¢—

County, Oklahoma, 13 F. Supp. 641 (N.D. Okla. 1936);
and Bertelsen & Petersen Engineering Co. v. United
States, 60 F.2d 745 (1st Cir. 1932). In the Comanche
County case the court held that a taxpayer who was en-
titled to a refund of local real estate taxes paid, was not
entitled to interest from the local tax collecting authori-
ty. The court stated:

“On the question of interest, the court appreciates
the position of the defendant. Where taxes are paid,
under protest, the collecting authority can only hold
them in trust, and since Comanche County would be
regarded in this case as a trustee, this court knows
of no provision for the payment of interest from
some other fund whose application had been provid-
ed by statute.” (6 F. Supp. at 413.)

And in Bertelsen, the First Circuit in holding that in-
terest on federal income refunds could be awarded only
if a statute so provided, stated:

. Interest against the government is only
allowable as provided by statute, Angarica v.
Bayard, 127 U.S. 251, 260, 8 S. Ct. 1156, 32 L. Ed.
159; Boston Sand & Gravel Co. v. United States, 278
U.S. 41, 49 S. Ct. 52, 73 L. Ed. 170. There is no fix-
ed right to it. It depends on the law at the time
when the claim is allowed by the department, or, if
the claim is litigated, when the case is heard by the
court. Hind v. United States, 41 F.2d 892 (Ct. Cl.).”
(60 F.2d at 748.)

See also this Court’s holding in Board of Commissioners
of Jackson County, Kansas v. United States, 308 U.S. 343
(1939).

However the Seventh Circuit was not persuaded by
Bland, and after discussing several cases cited by the
plaintiff, some of which the opinion concedes to be inap-
posite, (604 F.2d at 534 n. 7) others decided before the
passage of § 1341, held that the “. . . economics of dis-

pute resolution .. .” favor a rule that interest ought to
be paid on Illinois tax refunds in order for the system to
be considered adequate.

The premise for this rule is derived from Georgia R.R.
v. Redwine, 342 U.S. 299 (1952), a case dealing with
attempts to tax a state-chartered railway company. The
opinion overlooks the distinction that in Redwine the
question was whether, in view of the federal contract
clause protection afforded the railroad, a state remedy
which forbade an injunction was adequate under § 1341.
The Supreme Court of the United States held it was not,
and observed that the alternative, filing for refunds in
each county in which the railroad was taxed, did not
present an adequate remedy.

The application of Redwine, and its underlying basis
as perceived by the panel opinion, is inappropriate here
because the plaintiff does not allege that the real estate
tax is levied without authority or upon exempt property.

Illinois has always, unlike Georgia in Redwine, allow-
ed injunctions to issue if a taxpayer can show that his
property is exempt or that the tax, as in Redwine, is un-
authorized by law: See Clarendon Associates v. Korzen,
56 Ill. 2d 101, 306 N.E.2d 299 (1973); Dee-El Garage v.
Korzen, 53 Ill. 2d 1, 289 N.E.2d 431 (1972); Nabisco, Inc.
v. Korzen, 68 Ill. 2d 451, 454, 369 N.E.2d 829 (1977),
appeal dismissed 4385 U.S. 1005 (1978). Of course, it
makes sense to allow the statutory and constitutional
authorization of a tax to be litigated in one proceeding.

However, the taxpayer’s claim herein is premised
upon overassessment, not lack of statutory authority.
Therefore the panel opinion’s reliance upon Redwine is
misplaced.

IG

The petitioners suggest that § 1341 does not require II-
linois to present the “best” remedy, but rather one that
is plain, speedy and efficient. See Miller v. Bauer, 517
F.2d 27, 32 (7th Cir. 1975); Bland v. McHann, supra, at
29. Given the complexities of local real estate tax evalua-
tion cases, the petitioners submit that the present
remedy squared with § 1341.

CONCLUSION

For the foregoing reasons, a writ of certiorari should
issue to review the judgment and opinion of the Seventh
Circuit.

Respectfully submitted,

BERNARD CAREY,
State’s Attorney of Cook County, Illinois,
500 Richard J. Daley Center,
Chicago, Illinois 60602,
(312) 443-5460,

Attorney for Petitioners.

Pavut P. Brmset, JR.,
Deputy State’s Attorney,
Chief, Civil Actions Bureau,

Henry A. Havser,

MicHaet F. Baccasa,
Assistant State’s Attorneys,

Of Counsel.

January 25, 1980

—la—
APPENDIX A

UNITED STATES COURT OF APPEALS
For the Seventh Circuit
Chicago, Illinois 60604

No. 78-2594

we NATIONAL BANK, Trustee under Trust No.

Plaintiff-A ppellant,
v.

EDWARD J. ROSEWELL, Treasurer of Cook County, and
THOMAS M. TULLY, Assessor of Cook County,

Defendants-A ppellees.

Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 78-C-3746—Nicholas J. Bua, Judge.

ARGUED APRIL 25, 1979—DECIDED AUGUST 24, 1979

Before SWYGERT, Circuit Judge, MOORE, Senior Cir-
cuit Judge,* and TONE, Circuit Judge.

SWYGERT, Circuit Judge. This appeal involves the
Federal Tax Injunction Act and its construction with
section 1983 of the Civil Rights Act. Plaintiff-ap-
pellant LaSalle National Bank! brought this civil

* The Honorable Leonard P. Moore, Senior Circuit Judge of
the United States Court of Appeals for the Second Circuit, is
sitting by designation.

1 Although LaSalle National Bank, as trustee under land
trust No. 44891, is the named plaintiff-appellant, Patricia
a. "y sole beneficiary under the trust, is the real party in
interest.

—2a—

oe injunction action under 42 U.S.C. § 1983 against
Edward J. Rosewell, Treasurer of Cook County and
Thomas M. Tully, Assessor of Cook County. The action
sought to enjoin the collection of excessive real estate
taxes for 1977 allegedly imposed in violation of plain-
tiffs due process and equal protection rights under the
Fourteenth Amendment. The sole issue on appeal is
whether federal district court jurisdiction over this ac-
tion is barred by the Tax Injunction Act of 1937. 28
U.S.C. § 1341. We conclude that jurisdiction is not
barred and reverse the judgment of the district court.

I.

Plaintiff is the owner of a twenty-two unit apartment
building in the all black, economically depressed com-
munity of East Chicago Heights in Cook County, Illinois.?
On January 1, 1977 this property had a fair cash value of
$46,000. According to Illinois statute, the property
should have been assessed at 33% of its fair cash value:
approximately $15,000. Nevertheless, the assessor as-
sessed the property at $52,150, more than triple the
correct assessment. As a result plaintiff's tax bill was
$6,106 rather than $1,775. This bill was over three times
the amount plaintiff would have been required to pay if
she had been taxed at the correct rate.

Plaintiff alleges that the assessor knowingly as of-
ficial policy or as governmental custom has maintained
a = of assessment in Cook County which has
produced egregious disparities in the ratio between the
assessed valuation and the fair cash value of real proper-
ty. The complaint further alleges that these over-
assessments are greater in frequency and size in
older communities in which property is owned and in-
habited primarily by members of racial minority groups
and the economically disadvantaged.

2 For purposes of this appeal, the factual allegations of plain-
tiff’s complaint are assumed to be true. See e.g. Walker
Process Mr Inc. v. Food Machinery & Chemical Corp.,
382 U.S. 172, 174-75 (1965); Fed.R.Civ.P. 12(b)\1).

a

In 1977, as well as in each of the preceding three
years (in which — property oe ongeeds 4 was overas-
sessed), plaintiff sought administrative relief from the
Board of. Tax Appeals of Cook County. In each of those
years, the Board referred plaintiff's complaint to the
assessor for recommendation, and in each year the
assessor recommended “no change” in the assessment.
The Board denied plaintiff's petition for administrative
relief each year.

Having been denied administrative relief, plaintiff's
only remedy at law was to pay the full amount of the
tax claimed by the county collector (defendant
Rosewell, Treasurer of Cook County) pursuant to the
assessor’s assessment, and thereafter objecting and su-
ing for refund at the collector’s annual Application for
Judgment in the Cook County Circuit Court. See Ill. Rev.
Stat. 1971, ch. 120, §§ 675, 716. According to plaintiff,
the customary delay in receiving refunds after a
successful prosecution of a tax refund suit is two years.
Further, under Illinois law, no interest may be paid to a
successful claimant who has secured the refund of real
estate taxes paid under protest.

Plaintiff — her legal remedy in 1974, 1975, and
1976 and ultimately received refunds for the three years
in May, 1978. Plaintiff had been required to deposit
payments for illegally exacted taxes in the approximate
amounts of $4,600 for 1974, $3,650 for 1975, and $3,950
for 1976, for three, two and one years, respectively. At
8% interest (the average prime rate for the three-year
persed) laintiff lost approximately $2,000 because of
er inability to use money which ultimately was deemed
to be rightfully hers. Plaintiff contends that ap-
roximately $4,300 of her 1977 tax bill of $6,106 is an il-
egal overcharge and that she would be forced to deposit
the $4,300, with no possibility of receiving interest on a
refund, along with her correct tax payment in order to
seek legal redress.

Plaintiff has not paid her 1977 taxes. Instead, on
September 19, 1978 she filed this action in federal dis-
trict court to enjoin the county collector from listing,
advertising, proceeding to judgment and order of sale,

—4a—

or selling plaintiffs property as payment for any out-
standing tax bill in excess of the amount she is legally
required to pay. On November 3, 1978 defendants mov-
ed to dismiss the complaint on the grounds that it was
barred by the See Act. 28 U.S.C. § 1341. The
district court agr with defendants and dismissed
” complaint on November 30, 1978.° This appeal
ollowed.

II

The Tax Injunction Act mandates that federal district
courts “shall not enjoin, suspend or restrain the assess-
ment, levy or collection of any tax under State law
where a plain, pty | and efficient remedy a fy had
in the court of such State.” 28 U.S.C. § 1341. This com-
mand has been followed consistently. See e.g., Tully v.
Griffin, 429 U.S. 68; Huber Pontiac, Inc. v. itler, No.
77-1975 (7th Cir. Sept. 19, 1978). The converse of this
ah ase however, is equally true. As the legislative

istory of the Act clearly indicates, an action for injunc-
tive relief brought in a federal district court “will not be
withdrawn from the jurisdiction of the . . . court except
where there is a plain, speedy, and efficient remedy at
law or in equity in the courts of the State... .”S. P.
my 1035, 75th Cong., Ist Sess. 2 (1937) (emphasis add-

Defendants contend that there are two legal avenues
available to plaintiff which offer “plain, s y and ef-
ficient” relief within the judicial system of Illinois. First,

3 The district court ruled:

_ 1.. The availability of equitable and declaratory relief
in the Illinois state courts provides the plaintiff with a
pigin, speedy. and efficient” remedy. Tully v. Griffin, 429

2. The non-payment of interest on refunds pursuant to

_ Sections 675 and 716 of Chapter 120, Illinois Revised

Statutes, does not render the remedy in Illinois courts not
“plain, speedy and efficient.”

LaSalle Nat'l Bank v. Rosewell, No. 78-3746 (N.D. Ill. Nov. 30,
1978). The district court, however, did grant plaintiff an in-
junction pending this appeal pursuant to Fed.R.Civ.P. 62(c).

= “a

defendants argue that the delay in oe gent and the
failure to pay interest on refunds made pursuant to
successful suits for tax refunds brought under III. Rev.
Stat. 1977, ch. 120, §§ 675, 716, do not render this
statutory remedy (paying the full amount of the tax bill
and then suing for refund) inadequate.‘ Our disagree-
ment with this position is developed in Part A of this
opinion. Second, defendants suggest that ‘sonar can
redress any alleged grievances concerning her property
tax assessment by filing a civil rights action under 42

‘ Federal equity practice prior to the passage of the Tax In-
junction Act of 1937 refrained from exercising jurisdiction
over actions challenging state tax systems as long as an “ade-
quate” state remedy was available. There was some question
whether enactment of the 1937 Act was meant to alter this
standard. See P. Bator, P. Mishkin, D. Shapiro, & H.
Wechsler, Hart & Wechsler’s, The Federal Courts & the
Federal System, 979 (2d ed. 1973) [hereinafter cited as Hart &
Wechsler.| There is nothing in the legislative history of the
Act to suggest that such a change was contemplated by the
Act’s drafters or sponsors. The legislative history focuses en-
tirely on the problems caused by injunctions issued by district
courts exercising their diversity jurisdiction. See S. Rep. No.
1035, 75th Cong., Ist Sess. (1937); H. Rep. No. 15038, 75th
Cong., lst Sess. (1937); 81 Cong. Rec. 1415-17 (1937). See also
Fulton Market Cold Storage Co. v. Cul 582 F.2d 1071,
1074-75 (7th Cir. 1978) cert. den. 99 S.Ct. 1033 (1979). Garrei
r. Bamford, 5388 F.2d 63, 66-67 (8d Cir.) cert. den. 429 U.S. 977
(1976). And in Great Lakes Co. v. Huffman, 319 U.S.
293 (1943), the Supreme Court described the passage of the
Tax Injunction Act as congressional confirmation of
traditional federal equity practice. Jd. at 298-99. See also, Tul-
ly, supra, 429 U.S. at 73. The Supreme Court has used the
traditional standard and the statutory standard __in-
terchangeably, and so shall we. See Spector Motor Service, Inc.
vy. O'Connor, 340 Us. 602, 605 (1951); Hillsborough v.
Cromwell, 326 U.S. 620, 624, 626 (1946); Spector Motor Ser-
vice, Inc. v. McLaughlin, 323 U.S. 101, 105-1 (1944). See also
Wright, Federal Courts 217 (3d ed. 1976) [hereinafter cited as
Federal Courts].

The substantive interchangeability of the two standards is
important for more than the linguistic flexibility it makes
sible. To the extent that the standards are the same, cases
ecided prior to the enactment of the 1937 Act remain in-
structive in defining the circumstances in which a federal
court may or may not exercise jurisdiction over an injunction
action involving a state tax system.

—§a—

U.S.C. § 1983 in state court. The availability of this
mode of relief, defendants argue, provides a “plain,
speedy and efficient” remedy in the Illinois courts,
thereby barring the equitable jurisdiction of the federal
courts. Our analysis of this proposition and our conclu-
sion that the availability of a section 1983 action in state
court does not bar federal court jurisdic\ion comprise
Part B of this opinion. We conclude that the Tax Injunc-
tion Act does not preclude federal jurisdiction over
plaintiffs action, and thus the district court had and
a A retained jurisdiction over plaintiffs prayer
or relief.

A.

Under Illinois law, the only remedy available to a
Cook County property taxpayer billed pursuant to an
erroneous assessment is to pay the tax in full and then
sue in the Cook County Circuit Court for a refund of the
erroneously collected portion of the tax payment. A tax-
payer who successfully sues and receives a refund is not
entitled, according to Illinois law, to interest on the
funds which erroneously had been collected ‘ the Coun-
ty. Lakefront Realty Corp. v. Lorenz, 19 Ill. 2d 415
(1960). This rule was reiterated by the Illinois Supreme
aye) in Clarendon Assoc. v. Korzen, 56 Ill. 2d 95, 109

[U]nder the poy ng Tencmenag provided by sections
194 and 235 of the Revenue Act of 1939 (Ill. Rev.
Stat. 1971, ch. 120, pars. 675 and 716) the taxpayer
is not entitled to interest on the refund. This court
also held in Lakefront that this fact does not render
the remedy at law inadequate so as to justify equity
in assuming jurisdiction. We see no reason to depart
from that decision.

See also, Neubert v. Foxworthy, No. 79-121, (Ill. App. 4th
Div., April 25, 1979); Vretsky v. Baschen, 47 Ill. App. 3d
169 (1977).5

5 The 8lst Illinois General Assembly last session failed to
enact HB 451 and HB 1317, bills introduced which would
have required payment of interest on tax refunds.

—Ta—

The question we must answer is whether this remedy,
which requires prepayment of the entire tax bill and
refunds erroneously collected monies without interest
(and allegedly with an average delay of two years), is
F scores speedy and efficient.” The Supreme Court in

epartment of Employment v. United States, 385 U.S.
355, 358 (1966) left undecided the question “whether
omission to provide interest on a successful refund
application renders the state remedy here an inadequate
one within the meaning of § 1341.” See also, 28 East
Jackson Enterprises v. Cullerton, 523 F.2d 439, 441 n.4
(7th Cir. 1975) rehearing denied, 424 U.S. 959 (1976).
There is no dispositive precedent on this issue. Our
analysis of prior judicial decisions, however, indicates
that the decisions which have considered the question
most carefully have concluded that the failure to pay
interest on a successful refund application makes the
state remedy inadequate. Further, policy considerations,
the legislative history of the Tax Injunction Act, and
common sense all dictate the conclusion that the Illinois
remedy is inadequate.

The court’s opinion in United States v. Livingston, like
other Bs gro since the passage of section 1341,
observed that,

It is well settled that a right to recover taxes il-
legally collected is not an adequate remedy if it
does not include the right to recover interest at a
reasonable rate for the period during which the tax-
payer’s money is withheld. Even if existence of the
right be merely cast in substantial doubt, the
remedy is not plain or adequate.®

United States v. Livingston, 179 F.Supp. 9, 15 (E.D. S.C.
1959) (three-judge court) (citations omitted) aff’d per

6 Numerous courts have held that uncertainty about the ade-
quacy of a state court remedy is sufficient to lift the § 1341
bar on federal court jurisdiction over equitable actions regard-
ing state tax systems. See e.g. Tully, supra, 429 U.S. at 76;
Hi exte supra, 326 U.S. at 629; 28 East Jackson, supra,
523 F.2d 439; Garrett, supra, 538 F.2d at 70. Thus, even if the
Lakefront rule had not been so definitively and recently ar-
ticulated, uncertainty about the award of interest to a
successful claimant under the Illinois statutory remedy would
be sufficient to render the remedy inadequate.

—Sa—

curiam, 364 U.S. 981 (1960). See also, Mullaney v. Hess,
189 F.2d 417, 420 (9th Cir. 1951); United States v.
Department of Revenue, 191 F.Supp. 7238, 727 (N.D. IIl.),
vacated, 368 U.S. 30 (1961).7 And numerous cases prior
to the passage of the 1937 Act held that the failure to

ay interest on a tax refund constituted an alternative,
but independent basis for concluding that the state
remedy was inadequate. Educational Films Corp. v.
Ward, 282 U.S. 375 (1931); Hopkins v. Southern Cal. Tel.
Co., 275 U.S. 393, 399-400 (1928); Nutt v. Ellerbe, 56
F.2d 1058, 1062 (E.D. S.C. 1932) (three-judge court);
Proctor & Gamble Distrib. Co. v. Sherman, 2 F.2d 165,
166 (S.D. N.Y. 1924). As the Supreme Court concluded
in Educational Films,

The legal remedy .. . falls short of adequacy in at
least two respects. [First] [rJefund, if any, is ex-
= without interest. § 219(d). See Proctor &
Gamble Distributing Co. v. Sherman, 2 _F.(2d) 165;
Southern California Telephone Co. v. Hopkins, 13
F.(2d) 814, 820, aff'd 275 U.S. 393.

Educational Films, supra, 282 U.S. at 386 n.2.

Defendants cite a plethora of cases which they contend
demonstrate that the failure to provide interest on a tax
refund does not render a remedy inadequate. All of
these cases are distinguishable from the problem raised
by this appeal. Several of the cases analyzed the remedy
provided by the state and, as defendants indicate, deter-
mined that it was adequate. See Aluminum Co. of
America v. Department of the Treasury, 522 F.2d 1120

7 None of these cases ruled on the precise issue raised in this
appeal. Livingston held that the failure to pay interest was
“another reason” why § 1341 was inapplicable to the tax-
ae suit in that case. Livingston, supra, 179 F.Supp. at 13.

ullaney, after stating the legal principle, concluded that the
remedy in question was adequate. And Department of Revenue
concluded that the failure to pay interest to a successful claim-
ant on the cost of a bond which had to be put up to pursue a
remedy was ee to the failure to pay interest on a tax
refund, and, therefore, the remedy involving the bond was in-
adequate. Nevertheless, all of these cases lend substantial sup-
port to the conclusion that the failure to pay interest, alone,
renders a remedy inadequate.

—IJa—

(6th Cir. 1975); Group Assisting Sewer Proposal-Ansonia
v. City of Ansonia, 448 F.Supp. 45 (D.Conn. 1978); Aber-
nathy v. Carpenter, 208 F.Supp. 793 (W.D. Mo. 1962),
afd 373 U.S. 241 (1963). But in each of these decisions
the adequacy of the state remedy was based, in part,
either on the availability of interest on refunds,
Aluminum Co., supra, 552 F.2d at 1127-28; Group
Assisting, supra, 448 F.Supp. at 47, or on the fact that
prepayment of the contested tax was not required. Aber-
nathy, supra, 208 F.Supp. at 796-97.8 And in the other
cases upholding the adequacy of a state remedy cited by
defendants, the relationship of nonpayment of interest to
the adequacy of the state remedy apparently never was
raised by the litigants and certainly never was expressly
considered by the courts. Board of County Comm’rs v.
United States, 308 U.S. 343 (1939); Stratton v. St. Lowis
Southwestern Ry., 284 U.S. 5380 (1932); Bland v.
McHann, 463 F.2d 21 (5th Cir. 1972), cert. denied, 410
U.S. 966 (1973); Bertelsen & Petersen E'ng’r Co. v. United
States, 60 F.2d 745 (1st Cir. 1932); United States v.
Board 5! County Comm’rs, 18 F.Supp. 641 (N.D. Okla.
1936); United States v. Board of Comm’rs, 6 F.Supp. 401
(W.D. Okla. 1934).2 Thus none of these cases provides
persuasive support for defendants’ position. |

8 The decisions in Group Assisting and Abernathy also are
based, in the alternative, on the inconsequential amounts of
money involved if interest were not recoverable on a contested
tax ———. We do not decide the question whether a remedy
is inadequate if it fails to provide for interest when the dollar
amount in question is extremely small. We do note, however,
that both the remedies considered in those cases provided for
resolution of the dispute within a period of several weeks and
the interest involved amounted to under $50.00. In the instant
case, delays of two years are alleged and hundreds of dollars
in lost interest are at stake for each year in which a wrongful
assessment is made.

® In Bland the complaining taxpayer did object to the ade-
ay of the Mississippi remedy on the grounds, inter alia,
that Mississippi law made “no provision for the recovery of in-
terest on meg assessed taxes,” 463 F.2d at 28, n.24, but the
court’s opinion did not discuss this specific contention. And in
Stratton which, like the other cases cited by defendants, did
not address the relationship of the nonavailability of interest
to the adequacy of the state remedy, the Court concluded:
(Footnote continued on following page)

—10a—

The legislative history of the Tax Injunction Act
similarly lends little support to defendant’s contention
that the failure to pay interest on tax refunds does not
affect the adequacy of the state remedy. The two pur-
poses of the Act, as described in the legislative history,
were, first, to eliminate discrimination between state
citizens who were required to pursue relief regarding il-
legal tax assessments in the state court and foreign cor-
porations operating in the state which were able to sue
under the diversity jurisdiction of the federal courts
and, second, to prevent these foreign corporations, which
frequently refused to pay their large state taxes and
then initiated dilatory and expensive legal actions in the
federal courts, from paralyzing state fiscal operations. S.
Rep. No. 1035, 75th Cong., Ist Sess. (1937); 81 Cong.
Rec. 1415-17 (1987). See also, Garrett, supra, 538 F.2d at
72; Tramel v. Schrader, 505 F.2d 1310, 1315-16 (5th Cir.
1975). Neither of these purposes conflicts with the rule
—— by federal cases decided prior to 1937 that the
failure to provide for interest makes a tax refund
remedy inadequate. See, supra, p. 8.

Perhaps even more importantly, the express principle
peiecadayg Merges of these congressional goals was that
justice is best served by the speedy judicial resolution of
tax disputes. Foreign corporations had been able to
secure financial benefits for themselves by delaying tax
collection through federal court litigation; state
governments often were forced to accept ungenerous
out-of-court settlements in order to secure sorely needed
tax revenues. The Tax Injunction Act was a response to
the “needs of many States for a more prompt disposition
of tax controversies... .” S. Rep., supra, at 3. And ex-
cerpts from Congressional hearings regarding the John-
son Act of 1934, 28 U.S.C. § 1342, inserted into the Con-

9 continued

There pon a legal remedy for the recovery of the tax, no
case is made for invoking the jurisdiction of equity to en-
join collection of it in the absence of allegations setting u
special circumstances which would render the legal remedy
inadequate.

284 U.S. at 534 (citations omitted) (emphasis added).

a

—lla—

gressional Record in support of the Tax Injunction Act
(often compared during its enactment process to the
Johnson Act), decried the financial hardships imposed
on a litigant drawn into federal court who is often un-
able to pursue his claim to a final judicial resolution. 81
Cong. Rec. 1415, 1417 (1987). The Illinois tax grievance
remedy, which forbids the recovery of interest and
allegedly involves a two year delay prior to refund pay-
ment, gives a financial incentive to one of the parties
(the County) to delay dispute resolution and imposes
severe financial hardships on private parties seeking to
redress their grievances. Although the roles have been
reversed, the available Illinois remedy exacerbates
much the same evils as the Tax Injunction Act was
designed to eliminate. See generally Garrett, supra, 538
F.2d at 72. It is unlikely that the drafters of the 1937
Act would have considered the Illinois statutory remedy
“plain, speedy and efficient.”

This concern with the economics of dispute resolution
was reflected in the Supreme Court’s decision in Georgia
R.R. v. Redwine, 342 U.S. 299 (1952). In Redwine, one of
the state remedies available to the aggrieved taxpayer
required filing over three hundred separate claims in
fourteen different counties in order to achieve full
redress. And so while redress theoretically was possible
in the state courts, the remedy’s diseconomies rendered
it inadequate. Jd. at 303. See also, 28 East Jackson,
supra, 523 F.2d at 441 (state remedy requiring full pay-
ment of tax not “available” when petitioner did not have
and could not borrow sufficient funds to pay the full
tax); Federal Courts, supra, at 217. Under present II-
linois law, as under Georgia law in Redwine, relief is
possible, but it imposes undue costs on taxpayers seek-
ing redress. Under these circumstances, the state
remedy is inadequate.

The most succinct analysis of the inadequacy of a tax
grievance procedure which requires prepayment of the
entire tax and then refuses to pay interest on the
refunds awarded successful litigants was provided by
Learned Hand over fifty years ago:

—12a—

[I]t seems to me plain that it is not an adequate
remedy, after taking away a man’s money as a con-
dition of allowing him to contest his tax, merely to
hand it back, when, no matter how long after, he es-
tablishes that he ought never to have been required
to pay at all. Whatever may have been our archaic
notions about interest, in modern financial com-
munities a dollar to-day is worth more than a dollar
next year, and to ignore the interval as immaterial
is to contradict well-settled beliefs about value. The
present use of my money is itself a thing of value,
and, if I get no compensation for its loss, my
remedy does not altogether right my wrong.

Proctor & Gamble, supra, 2 F.2d at 166. We agree with
- conclusion of the court in United States v. Livingston,
that

[A state] may allow interest upon refunds of taxes
or not as she chooses. If she does not make clear the
existence of the right to recover such interest,
however, she necessarily opens the door to equitable
relief to taxpayers and forecloses a remission of the
parties to the legal remedy provided by her
statutes. |

179 F.Supp. at 15. The failure to pay interest on refunds
to taxpayers who successfully challenge their tax assess-
ment pursuant to the Illinois statutory procedures
renders that remedy inadequate. Thus, the availability
of this remedy in the state courts does not bar federal
jurisdiction over injunction actions brought by aggriev-
ed Cook County taxpayers.

B.

Defendants also contend that plaintiff has a “plain,
— and efficient remedy” in the state courts senoune
can challenge her allegedly eT at

assessment oy om an action pursuant to 42
§ 1983 in an Illinois court.!° We do not agree with Ss il

10 Defendants cite several federal district court decisions
which have held, at least in the alternative, that the availabili-
(Footnote continued on following page)

—

dant’s contention, and we hold that the availability of a
section 1983 action in state court does not bar federal
jurisdiction over a section 1983 action alleging con-
stitutional deprivations arising from an illegal state tax
exaction.

As a predicate to their contention that a section 1983
state court action bars federal jurisdiction in this case,
defendants, citing two recent Illinois appellate cases,
assert that state courts have jurisdiction to hear federal
civil rights actions filed pursuant to 42 U.S.C. § 1983.
See Bohacs v. Reid, 63 Ill. App.38d 477 (1978); Alberty v.
Daniel, 25 Ill. App.3d 291 (1974). While this statement
woe well be true, it is by no means a settled rule of
aw.}

Similarly, plaintiff argues that an Illinois court ad-
judicating her section 1983 claim would be bound by the

10 continued ;

ty of a § 1983 action in state court constitutes an adequate
remedy for an aggrieved pee under § 1341, thereby pre-
cluding federal court jurisdiction over the taxpayer’s com-
plaint. See Advertiser Co. v. Wallace, 446 cae 677 (M.D.
Ala. 1978); Green v. Klinkofe, 422 F.Supp. 1021 (N.D. Ind. 1976);
Horn v. O’Chesky, 378 F.Supp. 1280 (D.N.M. 1974). None of
these cases justifies its holding with any detailed analysis of
the relationship between the two statutes. In addition, Adver-
tiser, which held that a plaintiff seeking damages under
§ 1983 was barred from federal court by the Tax Injunction
Act, is in direct conflict with our decision in F'ulton Market,
supra, 582 F.2d 1071.

1 Most judicial decisions which have concluded that state
courts can entertain § 1983 actions have reached their result
with little analysis, relying on the general principle of con-
current jurisdiction. See ong v. District af Columbia, 469
F.2d 927, 937 (D.C. Cir. 1972); Bohacs, supra, 63 Ill. App.3d 477;
Alberty, supra, 25 Ill. App.38d 291. See generally, Houston v.
Moore, 18 U.S. (5 Wheat.) 1, 25-27 (1820); Hamilton, The
Federalist Papers, No. 82. But courts which more closely have
examined the concerns underlying the adoption of the civil
rights statute have been more hard-pressed to justify state
court jurisdiction over § 1983 actions. Compare Terry v.
Kolski, 254 N.W. 2d 704 (S.Ct. Wis. 1977) (state courts open to
§ 1983 actions) with Terry, id. at 713 et oe. eeennne opin-
ion) and Chamberlain v. Brown, 442 S,W.2d (S.Ct. Tenn.
1969) (no state jurisdiction for § 1983 actions).

—l4a—

rule of Lakefront that a taxpayer who has secured a re-
fund cannot receive interest on that refund. See, supra,
p. 6. Consequently, plaintiff contends that this de-
initive precedent in state law renders a state section
1983 remedy inadequate. Plaintiff's argument assumes
that an Illinois court adjudicating a federal claim under
section 1983 would be free to apply Illinois equity law, a
a that is far from certain.!2 Nevertheless, we

lieve that the doubt whether an Illinois court would
apply federal equity law instead of the Illinois rule
against interest on tax refunds renders a remedy pur-
suant to a possible section 1983 action in the state court
less than plain.

But independent of this uncertainty about the ade-
quacy of the remedy, an exact reading of the Tax In-
junction Act and strict attention to the principles un-
derlying section 1983 compel the conclusion that the

12 In Sullivan v. Little Hunting Park, Inc., 396 U.S. 229
(1969), the Supreme Court held that in a state court action
pursuant to 42 U.S.C. § 1982, questions regesding compen-
satory damages for the deprivation of a federal right are
verned by federal standards under 42 U.S.C. § 1988. The
urt also noted that a federal court can fashion an effective
equitable remedy and that,

That federal remedy for the protection of a federal right
is available in the state court, if that court is empowered
to grant injunctive relief, generally, as is the Virginia
court. Va. Code Ann. § 8-610 (1957 Repl. Vol.).

Id. at 238.

Sullivan does not directly answer the question here:
when state equitable law is at odds with federal law (as we
have concluded it is here with regard to the adequacy of the
Illinois refund remedy), which law would apply in a § 1983
action. While the inference from Sullivan is that federal law
would app! see also Testa v. Katt, 330 U.S. 386 (1947) Ward
v. Boar of ( County Comm'rs (Love County), 253 U.S. 17 (1920);
General Oil Co. v. rhea 209 U.S. 211 (1908), that conclusion
is not settled. See generally, Fulton Market, supra, 582 F.2d at
1080; Hart & Wechsler, supra, at 434-37, 521-24; Comment,
Racial Discrimination and the Tax Injunction Act, 90 Harv.
L. Rev. 616, 623-24 n.49 (1977); Note, State Enforcement of
aera Created Rights, <73 Harv. L. Rev. 155i, 1556-61

—15a—

availability of a state court action under section 1983
does not bar federal jurisdiction. Reading the Tax In-
— Act to bar federal court jurisdiction on the

asis of the possibility of bringing a federal cause of
action under section 1983 in state court leads to an un-
tenable conclusion: the Tax Injunction Act would bar
federal jurisdiction in all cases involving state tax opera-
tions—without exception. Defendants’ position assumes
that state courts generally have concurrent jurisdiction
over federal causes of actions, including section 1983,
and that a state court hearing that federal claim would
apply federal equity law (if the state court were free to
apply state equity law then, in this case, interest would
not be available as part of the remedy and the remedy
would be inadequate). But if both these assumptions
were true, there would be no class of cases that would
escape the bar on federal court jurisdiction contained in
the Tax Injunction Act. Whatever action could be
brought in federal court, given inadequate state
statutory and judicial remedies, also could be brought in
state court under federal law pursuant to the state
court’s concurrent jurisdiction. See generally, Iowa-
DesMoines Nat'l Bank v. Bennett, 284 U.S. 239 (1931);
General Oil, supra, 209 U.S. 211. Federal courts never
would have jurisdiction over actions brought by tax-
payers regarding illegal state tax assessments.

Although Congress possesses the power to legislate
this result, there is no indication that the Tax Injunction
Act was meant to do so.* The language of the Act on its
face contemplates cases which wili escape its jurisdic-
tional proscription, and the explanations of the statute
contained in its legislative history unmistakably cor-
roborate this reading of the Act. See supra p. 4. See also

one the Fifth Circuit stated in Tramel, supra, 505 F.2d at

Encroachments on the federal judiciary’s power to vin-
dicate rights allegedly guaranteed by the Constitution
must be construed narrowly. Cf. Phillips v. United States,
1941, 312 U.S. 246, 251.

—16a—

81 Cong. Rec. 1416 (1937) (remarks of Sen. Bone)."
There is no reason to conclude that defendants’ reading
of the Tax Injunction Act—a reading which would lead
to a result clearly not contemplated by the drafters of
the Act—is correct.

Defendants’ position makes even less sense as a prac-
tical matter. In order to argue that a section 1983 action
brought in an Illinois court constitutes an adequate
remedy, defendants must presume that federal equity
law applies. But then it is difficult to conceive of any
significant state autonomy interest that is served by
barring federal court jurisdiction. Defendants’ position
leads to the scenario of a state court adjudicating a
cause of action and formulating a remedy—and
throughout required to apply federal law. It would be
difficult to say that this is less of an incursion into state
autonomy than an action in federal court. And this
result undermines judicial efficiency and legal expertise.
It is unlikely that when Congress drafted the Tax In-
— Act it intended that all disputes in which state
egal and equitable remedies were inadequate be resolv-
ed in state court under these conditions.

4 There is a suggestion implicit in the legislative history of
the Act that it is only when a state legal or equitable remedy
is available and adequate—not when there is a federal remedy
which can be brought in state court—that the jurisdictional
bar applies. The Act’s sponsor explained that “specific provi-
sion is made that the suit will be taken out of the jurisdiction
of the Federal court only if a plain, speedy, and efficient
remedy may be had at law or in equity in the courts of the
State.” 81 Cong. Rec. 1416 (1937) (remarks of Sen. Bone).
Senator Bone also excerpted a portion of the Judiciary Com-
mittee Report on the Johnson Act and included it in the Con-
reser. Record. He said the excerpt was “applicable to [the

ax Injunction Act] in the same manner that [it was]
applicable to the Johnson Bill. Jd. The excerpt described the
archetype of the disputes meant to be excluded from federal
court and added:

And all the time in this dispute there is no Federal ques-
tion involved. \.‘here is a dispute arising under a State
statute or law of other origin and nothing more.

Id. at 1417. See Garrett, supra, 538 F.2d at 66-67.

—l7a—

Our conclusion that the possibility of bringing a sec-
tion 1983 action in state court does not bar, pursuant to
the Tax Injunction Act, federal jurisdiction over an ac-
tion alleging that state taxes were exacted un-
constitutionally, is corroborated by the principles and
policies underlying 42 U.S.C. § 1983.5 The sponsors,
supporters and even the opponents of the predecessor of
section 1983 likely would be shocked indeed if they were
to learn that the possibility of bringing a section 1983
action in state court had barred a section 1983 plaintiff
from federal court.

The Supreme Court in Mitchum v. Foster, 407 U.S.
225 (1972) observed:

Section 1983 opened the federal courts to private
citizens, offering a uniquely federal remedy against
incursions under the claimed authority of state law
upon rights secured by the Constitution and laws of
the Nation.

Id. at 239 (emphasis added). When Congress passed the
predecessor of section 1983,

[it] clearly conceived that it was altering the
relationship between the States and the Nation with
respect to the protection of federally created rights;
it was concerned that state instrumentalities could
not protect those rights; it realized that state of-
ficers might, in fact, be antipathetic to the vindica-
tion of those rights; and it believed that these
failings extended to the state courts.

Id. at 242.6 The failure of state courts to vindicate
federal rights was one of the primary motivations for

16 This assumes, of course, that there is no adequate legal or
equitable remedy at state law.

1 The oe legislation passed to effectuate the post-
Civil War amendments gave the federal courts primary
responsibility for vindicating the rights expressed in those
amendments:
[The federal courts supplanted] the state courts as the
principal forum for enforcing federal law... .

(Footnote continued on following page)

="

assage of the predecessor of section 1983. Jd. at 240-42.

ee also, Wiecek, The Reconstruction of Federal Judicial
Power, 1863-1875, 13 Am. J. Legal Hist. 333. 338 (1969);
Developments, we rg at 1142-50. The legislative history
of the Act is replete with references to the inability and
unwillingness of state courts to protect federal rights
and, as a result, to the need to insure access to the
federal courts. See Mitchum, supra, 407 U.S. at 241 n.31;
Developments, supra, at 1154-55 nn.112, 114. As the
Supreme Court stated in Monroe v. Pape, 362 U.S. 167,
180 (1961):

It is abundantly clear that one reason the legislation
was passed was to afford a federal right in federal
aa

Defendants ask us to turn section 1983 on its head. If
their argument were accepted, access to federal courts
for the protection of Fourteenth Amendment rights
would be denied because of the availability in state
courts of “a uniquely federal remedy” which Congress
enacted precisely because of the failure of state courts to
protect federal rights. We do not embrace this perverse
result. The legislative history of the statute compels our
conclusion that the availability of a section 1983 action
in state court does not bar federal jurisdiction over a
section 1983 action brought in federal court to vindicate

16 continued

This significant expansion of federal judicial power seems
to reflect both the Republicans’ belief that the judiciary
was the most appropriate institution to effectuate their
“moderate revolution” in civil rights and their increasing
distrust of the willingness of state judges to enforce
vigorously national laws or fulfil! national policies. Rather
than providing for a large-scale displacement of state
lice power by congressional regulation of intrastate af-
airs, the Republicans sought to create in the federal
courts opportunities for litigants . . . to invoke the power
of the national government to safeguard nationally
ores liberties threatened by the action or inaction of
e states.

Developments in the Law—Section 1983 and rederalism, 90
Harv. L. Rev. 1133, 1142, 1150 (1977) (citations omitted).

—19a—

constitutional rights allegedly violated by an illegal state
tax assessment.

Our review of the respective legislative histories of the
Tax Injunction Act and section 1983 leads to the conclu-
sion that Congress did not intend that the possibility of
bringing a section 1983 action in state court would bar,
pursuant to the Tax Injunction Act, federal jurisdiction
over a section 1983 action brought in federal court,
Further, we have concluded that there is no legal or
equitable remedy available unter Illinois law which is
“plain, speedy and efficient.”

_For these reasons, we conclude that federal jurisdic-
tion over plaintiff's suit was proper. The judgment of the
district court is reversed.

A true Copy:
Teste:

Clerk of the United States Court of
Appeals for the Seventh Circuit

—20a—
APPENDIX B

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

LaSauLe Nationa Bank, Trustee under
Trust No. 44891,
Plaintiff,
No. 78C 3746 VS.

Epwarp J. RosEwE.., et al.,
Defendants.

Before Nicuotas J. Bua, Judge
United States District Court

ORDER

This matter came on upon plaintiff’s motion for a pre-
liminary injunction and this court having considered the
motion, the brief of plaintiff, the motion of defendants to
dismiss and having heard the arguments of counsel, finds:

1. The availability of equitable and declaratory relief
in the Illinois state courts provides the plaintiff with a
‘‘plain, speedy and efficient’’ remedy. Tully v. Griffin, 429
U.S. 68 (1976).

2. The non-payment of interest on refunds pursuant to
Sections 675 and 716 of Chapter 120, Illinois Revised Stat-
utes, does not render the remedy in Illinois courts not
‘‘plain, speedy and efficient’’.

3. In order to maintain the status quo while plaintiff
appeals from this Order, it is necessary that pursuant to
Rule 62(c), Fed. R. Civ. Pro., an injunction pending ap-
peal enter restraining the defendant Rosewell from pro-
ceeding to judgment and order of sale against the property,

—2la—

Permanent Index No. 32 23 414 054, Volume 16, of the 1977
tax rolls and from selling said property in the matter of
his annual application for judgment, ete., in the Circuit
Court of Cook County.

(a) If such an injunction is not entered, the defendant
will proceed to judgment against the property and the
property will be sold at the annual tax sale unless the
plaintiff redeems the property, with interest and penalties,
thereby rendering it impossible for this or any other court
to afford relief to plaintiff in the event it prevails upon
appeal.

(b) The county will not suffer any damage by this in-
junction, since it will be entitled to full payment, plus in-
terest, if this order is upheld.

(c) The public interest will not be harmed.

(d) There is a substantial likelihood that petitioner may
prevail on appeal.

CONCLUSION

Under the provisions of 28 U.S.C. $1341 denying juris-
diction to this court in restraining the collection of state
taxes when a plain, speedy, and efficient remedy exists in
the state courts, this court has no jurisdiction of the sub-
ject matter of this complaint.

Ir Is THEReForRE Orperep that plaintiff’s motion for a
preliminary injunction is denied and that the complaint is
dismissed for want of jurisdiction.

Ir Is FurtTHER OrDERED that pursuant to Rule 62(c), Fed.
R. Civ. Pro., Edward J. Rosewell, defendant County Col-
lector, is enjoined from proceeding to judgment and order
of sale against Cook County property. Permanent Index
No. 32 23 414 054, Volume 16, and from selling said property
pending the appeal of this order to the United States Court
of Appeals for the Seventh Circuit.

/s/ Nicholas J. Bua
United States District Judge
Dartep: November 30, 1978

—22a—
APPENDIX C

UNITED STATES COURT OF APPEALS
For the Seventh Circuit
Chicago, Illinois 60604

October 30, 1979

Before
Hon. Lutruer M. Swycert, Circuit Judge
Hon. Lreonarp P. Moors, Sr., Circuit Judge*
Hon. Pump W. Tone, Circuit Judge

LaSatie Nationat Bank, Trustee under
Trust No. 44891,

Plaintiff-Appellant,
No. 78-2594 vs.

Epwarp J. Rosewe.i, Treasurer of Cook County, and
THomas M. Tutiy, Assessor of Cook County,

Defendants-A ppellees.

Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.

No. 78-C-3746 — Nicnotas J. Bua, Judge.

all

On consideration of the petition for rehearing and sug-
gestion for rehearing in banc filed in the above entitled

* Honorable Leonard P. Moore, Senior Judge for the U.S. Court
of Appeals for the Second Circuit is sitting by designation.

—23a—

cause by counsel for the defendants-appellees, a vote of the
active members of the Court was requested, and a majority
of the active members of the Court has voted to deny a
rehearing im banc.** All of the judges on the original panel
have voted to deny the petition for rehearing. Accordingly,

Ir Is Orperep that the aforesaid petition for rehearing
be, and the same is hereby, Denizp.

*¢ Judges Pell, Sprecher, Bauer and Wood voted to grant the
suggestion for rehearing in banc.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2191%3A1. Public record. Not legal advice.