Appendix — Rosewell v. LaSalle Nat. Bank

APPENDIX

In THE

Supreme Court of the Gnited States

Octroser Term, 1979

No. 79-1157

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

Petitioners,

VS.

LA SALLE NATIONAL BANK, TRUSTEE, etc.,

Respondent.

On Writ Of Certiorari To

The United States Court Of Appeals

For The Seventh Circuit

PETITION FOR CERTIORARI FILED JANUARY 26, 1980

CERTIORARI GRANTED MARCH 17, 1980

In THE

Supreme Court of the Anited States

Ocroser Term, 1979

No. 79-1157

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

Petitioners,

VB.

LA SALLE NATIONAL BANK, TRUSTEE, etc.,

Respondent.

On Writ Of Certiorari To

The United States Court Of Appeals

For The Seventh Circuit

APPENDIX

TABLE OF CONTENTS

PAGE

Chronological List of Relevant Docket Entries .. 1

Plaintiff’s Complaint, filed September 19, 1978 .. 2

Defendants’ Motion to Dismiss, filed November

3, 1978 11

Plaintiff’s Motion for Preliminary Injunction,

filed November 13, 1978 13

Affidavit of Patricia Cook, filed November 13,

1978 16

Opinion of District Court, filed November 30,

1978 J Pet. App.

B at 20a

Opinion of the Court of Appeals, filed August

SUI MEET sacakseigiebsdetebsuieleseiebeniuiseeneiedesnidetiaciauanddeinsinbamaei Pet. App.

A atla

Judgment of the Court of Appeals, filed August

24, 1979 Pet. App.

A at 19a

CHRONOLOGICAL LIST OF RELEVANT

DOCKET ENTRIES

September 19, 1978—

Plaintiff's Complaint filed in the United States

District Court for the Northern District of Illinois,

Eastern Division.

November 3, 1978—

Defendants’ Motion to Dismiss filed.

November 13, 1978—

Plaintiff filed Motion for Preliminary Injunction,

with Affidavit of Patricia Cook.

November 30, 1978—

Order entered granting Defendants’ Motion to

Dismiss, and denying Plaintiff's Motion for Pre-

liminary Injunction.

December 4, 1978—

Plaintiff-Appellant filed Notice of Appeal.

August 24, 1979—

Opinion and Judgment of the Court of Appeals for

the Seventh Circuit.

=

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

LA SALLE NATIONAL BANK, Trustee >

under Trust No. 44891,

Plaintiff,

VS.

L No. 78 C 3746

EDWARD J. ROSEWELL, Treasurer of

Cook County, and THOMAS M. TULLY,

Assessor of Cook County,

Defendants. )

COMPLAINT

(Filed September 19, 1978)

(Appendices omitted)

LaSalle National Bank, Trustee under Trust No.

44891 of which Patricia Cook is the sole beneficiary,

complains of Edward J. Rosewell, Treasurer and Ex-

Officio County Collector of Cook County, and Thomas M.

Tully, Assessor of Cook County:

The Parties

1. LaSalle National Bank, Trustee under Trust No.

44891, is a national bank with its office in Chicago. It is

the owner of real property in the Village of East

Chicago Heights, Illinois. Trust No. 44891 is an Illinois

land trust. Patricia Cook, a black resident of Cook

County, is the sole beneficial owner thereof, has so been

at all times pertinent to these proceedings and is

authorized under the terms of the indenture to bring

—

this action. She is the real party in interest and will be

referred to as plaintiff throughout this Complaint.

2. Edward J. Rosewell is the Treasurer and ex-officio

County Collector of Cook County. Pursuant to the

provisions of the Revenue Act of 1939, as amended,

Chapter 120 Illinois Revised Statutes §§ 482, et seq., he

has the duty to collect real estate taxes levied against

property in Cook County. Thomas M. Tully is the

Assessor of Cook County. Pursuant to the provisions of

the Revenue Act and of the Illinois Constitution, Article

IX § 4, he has the duty to assess for tax purposes all

non-exempt real property in Cook County. Both officials

held their respective offices at all times pertinent to this

Complaint.

Jurisdiction

3. Jurisdiction lies under 28 U.S.C. § 1343(3), venue

under 28 U.S.C. § 1391.

The Cause of Action

4. The causo of action arises out of a violation by

defendants, acting under color of State law, of plaintiff’s

civil rights of due process guaranteed her by the 14th

Amendment to the United States Constitution. It is

based upon 42 U.S.C. § 1983 which provides:

“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.”

—_ a

5. Plaintiff is the owner of a 22-apartment building

at 1400 Lincoln Highway in the Village of East Chicago

Heights described as:

The West 89.33 feet of Lot 17 in Block 7 in Lincoln

Woodlawn Gardens Subdivision of Part of North

1599 feet West % of the South East 4% North and

West of center line of Deer Creek Section 23,

Township 35 North, Range 14 East of the Third

Principal Meridian, in Cook County, Illinois.

The property is improved with an apartment building

containing 22 efficiency type apartments, one of which

serves as an office for the building. East Chicago

Heights is an all Negro community in Thornton

Township. It has the lowest median income and lowest

median home value of any village or town in Cook

County.

6. The property was purchased from the FSLIC in

1972 in an arms length sale for $45,000.00. On January

1, 1977, it had a fair cash value of $46,000.00, and was

indexed, assessed and taxed as follows:

Permanent Assessed Equalized

Number Volume Valuation Valuation Rate Tax

32-23-414-054 16 52,150 73,808 8.274 $6,106.00

A copy of plaintiff's tax bill for 1977 is appended as

Exhibit “A”.

7. Article IX, Section 4 of the Illinois Constitution

provides in pertinent part:

“$4. Real Property Taxation

(a) Except as otherwise provided in this Section,

taxes upon real property shall be levied uniformly

by valuation ascertained as the General Assembly

shall provide by law.

—5—

(b) Subject to such limitations as the General

Assembly may hereafter prescribe by law, counties

with a population of more than 200,000 may classify

or continue to classify real property for purposes of

taxation. Any such classification shall be reasonable

and assessments shall be uniform within each class.

The level of assessment or rate of tax of the highest

class in a county shall not exceed two and one-half

times the level of assessment or rate of tax of the

lowest class in that county. Real property used in

farming in a county shall not be assessed at a

higher level of assessment than single family resi-

dential real property in that county.”

8. On January 1, 1977, Chapter 120 Illinois Revised

Statutes § 50la provided:

“5Ola. Classification under Constitution—Neces-

sity for ordinance.) § 20a. Where real property is

classified for purposes of taxation in accordance with

Section 4 of Article IX of the Constitution and with

such other limitations as may be prescribed by law,

such classification must be established by ordinance

of the county board. If not so established, the classi-

fication is void. Added by P.A. 78-700, § 1, eff. Jan.

1, 1974.”

9. Since January 1, 1974, there has been in effect an

ordinance in Cook County #COM 76815 of December 17,

1973, establishing a system of classifying real estate for

the purposes of assessment for taxation which provides

in pertinent part:

“Section 2. Real estate is divided into the following

assessment classes:

Class 1: Unimproved real estate or real estate

used as a farm.

Class 2: Real estate used for residential purposes

when improved with a house, an apart-

ment building of not more than six

living units, or residential condomin-

—6—

ium, a residential co-operative or a

government-subsidized housing project

if required by statute to be assessed in

the lowest assessment category.

Class 3: All improved real estate used for resi-

dential purposes which is not included

in Class 2.

Class 4: Real estate owned and used by a not-for-

profit corporation in furtherance of the

purposes set forth in its charter unless

used for residential purposes. If such

real estate is used for residential pur-

poses it shall be classified in the ap-

propriate residential class.

Class 5: All real estate not included in any of the

above four classes.

Section 3. The Assessor shall assess, and the Board

of Appeals shall review assessments on, real estate

in the various classes at the following percentages

of market value:

Class 1: _ 22%

Class 2: — 17%

Class 3: — 33%

Class 4: — 30%

Class 5: _ 40%”

10. Notwithstanding that plaintiff's property is in

Class 3 and therefore was required to be assessed in

1977 at $15,180 or 33% of market (fair cash) value, it

was nonetheless assessed by defendant Tully at $52,150

or at 118% thereof. In Cook County, property generally

in Class 3 was assessed at 33% of market value in 1977.

Plaintiff thus has a lien for taxes against her property

(Chapter 120, Illinois Revised Statutes, § 697) for, and is

required to pay, almost three and one-half times the

taxes levied against property of the same class generally

throughout the County.

oils

11. Although required to assess all properties thr «,>-

out the County uniformly within their respective classes,

defendant Tully has knowingly as official policy or

governmental custom maintained, adopted or promul-

gated policy statements, regulations, decisions and

systems of assessment which have produced egregious

disparities in assessments throughout the County. Dis-

parities in over-assessment of which plaintiff complains

are far greater in number and size in older, inner city

and county areas, owned, inhabited or used to a larger

extent by minorities and poorer people.

12. In making his assessments for 1977, defendant

Tully had knowledge of the discrimination visited upon

plaintiff. In each of the tax years 1974, 1975, 1976 and

1977, plaintiff sought administrative relief by filing

complaints as to her assessments with the Board of

Appeals of Cook County. In these complaints, she set

forth facts, as alleged herein, with respect to such

discrimination. That body referred each complaint to

the defendant Tully for recommendation and the latter

recommended “no change” in the assessment. Further,

for over 20 years last past, the Illinois Department of

Local Government Affairs and its predecessor in func-

tion, the Illinois Department of Revenue, have conducted

official studies to determine the ratios of assessed valua-

tion to fair cash value of properties in each of the 102

counties of Illinois. These siudies are published annually

and, for Cook County, were prepared from data supplied

by the defendant Tully and the County of Cook. Tully

knows of these studies and their contents. For example,

for the year 1975, the latest year in print, the studies

show that Tully assessed Class 3 property in such

fashion that, for the County as a whole, property in this

Class was assessed as low as 3% and as high as 973% of

market value. The lowest twenty-five percent of all such

—s—

properties was assessed at less than 25% and the highest

twenty-five percent at more than 50% of market value;

while the lowest 10% was assessed at less than 18% and

the highest 10% at more than 96% of such value. The

greatest disparities and hence discrimination occurred

in Assessment District 4 wherein plaintiff's property is

situated. This District includes the south side of Chicago

and the south suburban area, areas containing large

concentrations of minorities and poorer people. A copy

of the 1975* study is appended as Exhibit “B”. The same

discrimination and disparities resulting therefrom ex-

isted for 1977.

13. Plaintiff has exhausted her administrative rem-

edies before the Board of Appeals of Cook County for

1977 and has received no relief therefrom. Her only

remedy at law now requires her to pay in full the taxes

levied against her property, viz $6,106.00, which in-

cludes the illegal moiety of $4,331 and the legal portion

of $1,775, and thereafter sue for refund under the

provisions of §§ 675 and 716 of Chapter 120, Illinois

Revised Statutes, in the Circuit Court of Cook County in

the defendant Rosewell’s annual application proceedings.

These proceedings will be commenced in late November

or early December of this year. The customary delay in

receiving refunds upon successful prosecution of such a

suit is 2 years.

14. Plaintiff was required to pay similar exorbitant

and discriminatory taxes for the years 1974, 1975 and

1976 and received refunds totaling approximately

$12,200 for the three years in May of this year. Such

refunds were the result of suits filed therefor in the

Circuit Court of Cook County on defendant Rosewell’s

annual applications for such years. No interest may be

* The latest year in print.

=

paid upon tax refunds under Illinois law and plaintiff

received none, notwithstanding that Cook County and

other cognizant taxing bodies had the use of her funds

in the form of illegally exacted taxes in the approximate

amounts of $4,600 for 1974, $3,650 for 1975, and $3,950

for 1976, for periods of 3, 2 and 1 years respectively. At

8% interest, the average prime rate for the 3-year

period, plaintiff lost approximately $2,000 for the use of

her money or, in the alternative, was required to borrow

money at appreciably more than the prime rate to pay

the taxes so as to be able to avail herself of the only

source of judicial review of her assessment and,

therefore, the only remedy at law provided her by the

laws and Courts of Illinois.

15. Requiring plaintiff to pay taxes upon her proper-

ty in 3% times the lawful amount and the amount at

which property in the same class generally is assessed

deprives her of rights of equal protection and due

process secured to her under the 14th Amendment to the

United States Constitution and under Article 1, § 2, of

the Illinois Constitution. It further deprives her of rights

of uniformity in taxation secured to her under Article

IX, § 4, of the State Constitution and under the Revenue

Act.

16. Plaintiff has no adequate remedy at law in this

or any other court and has no plain, speedy and efficient

remedy in the courts of Illinois. She has no grounds for

equitable relief in the State courts, being able financi-

ally to pay her taxes in full and sue for refund albeit at

substantial expense, loss and burden. Plaintiff realleges

that under Illinois law, she may not receive interest on

refunds of taxes.

17. Plaintiff has not paid her 1977 taxes which were

due in part on March 1, 1978 with the final installment

1

due on August 1, 1978. She is willing and able to pay

the just moiety of the taxes extended against her

property. Unless enjoined the defendant Collector is

about to and will, under provisions of §§ 706, et seq., of

Chapter 120, Illinois Revised Statutes, advertise that he

will and thereafter proceed to apply for judgment and

order of sale against plaintiffs property for the lien of

delinquent taxes and thereafter sell her property for

such lien. Such procedures will cause irreparable harm

to plaintiff resulting either in loss to her of her property

or requiring her to redeem from sale at penalty interest

approximating 24% per year.

18. The legal and correct amount of plaintiff’s taxes

for 1977 is $1,776 based upon a fair market value of

$46,000, a Class 3 factor of 33%, a multiplier of 1.4153

and a tax rate of $8.274 per $100.00 of equalized

valuation.

WHEREFORE, plaintiff prays for a preliminary and

permanent injunction enjoining the defendant Rosewell

from listing, advertising, proceeding to judgment and

order of sale and selling plaintiff's property for any

amount in excess of the fair and legal taxes against her

property which she prays this Court to find and which

she will promptly pay.

LA SALLE NATIONAL BANK,

Trustee under Trust No. 44891

By /s/ James L. Fox

Its Attorney

JAMES L. Fox (I.D. No. 820)

ABRAMSON & Fox (I.D. No. 340)

One East Wacker Drive

Chicago, Illinois 60601

644-8500

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

LA SALLE NATIONAL BANK, Trustee >

under Trust No. 44891,

Plaintiff,

VS.

> No. 78 C 3746

EDWARD J. ROSEWELL, Treasurer of

Cook County, and THOMAS M. TULLY,

Assessor of Cook County,

Defendants. )

MOTION TO DISMISS

(Filed November 3, 1978)

Now come defendants, EDWARD J. ROSEWELL,

Treasurer of Cook County, and THomMas M. TUuLLY,

Assessor of Cook County, by their attorney, BERNARD

CAREY, State’s Attorney of Cook County, Illinois, and for

their Motion to Dismiss state as follows:

1. Actions involving state tax assessments do not fall

within the purview of 28 U.S.C. 1843 and 42 U.S.C.

1983.

2. The jurisdiction of the United States’ District

Courts to enjoin the assessment, levy or collection of

state taxes where there is a plain, speedy and efficient

remedy in the state courts is barred by 28 U.S.C. 1341.

3. Illinois provides taxpayers with a plain, speedy

and efficient remedy by way of payment of the alleged

os

excessive taxes under protest and objection at the Collec-

tor’s annual Application for Judgment. See Ill. Rev.

Stat. 1977, ch. 120, §§ 675 and 716, and Clarendon

Associates v. Korzen, 56 Ill. 2d 101 (1973). This remedy

is plain, speedy and efficient. Bland v. McHann, 463

F.2d 21 (5th Cir. 1972), cert. denied, 410 U.S. 966 (1973);

Great Lakes Dredge and Dock Co. v. Huffman, 319 U.S.

293 (1943); Matthews v. Rodgers, 283 U.S. 52 (1932).

4. The mere denial of interest on a tax refund, after

an alleged excessive assessment or tax is judged to be

actually excessive, is insufficient to find that a state

court remedy is not “plain, speedy and efficient.” Bland

v. McHann, 463 F.2d 21 (5th Cir. 1972), cert. denied, 410

U.S. 966 (1973); Board of Commissioners of Jackson

County, Kansas v. United States, 308 U.S. 343 (1939).

5. The doctrine of comity requires this court to abs-

tain because plaintiff has a state court remedy.

6. Plaintiff's Complaint fails to state a claim.

WHEREFORE, defendants respectfully move this court

to dismiss plaintiff's Complaint.

BERNARD CAREY

State’s Attorney of Cook County

By /s/ Michael F. Baccash

Assistant State’s Attorney

500 Richard J. Daley Center

Chicago, Illinois 60602

443-5444

eT ee

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

LA SALLE NATIONAL BANK, Trustee >

under Trust No. 44891,

Plaintiff,

VS.

. No. 78 C 3746

EDWARD J. ROSEWELL, Treasurer of

Cook County, and THOMAS M. TULLY,

Assessor of Cook County,

Defendants.

PLAINTIFF’S MOTION FOR

PRELIMINARY INJUNCTION

(Filed November 13, 1978)

Pursuant to Rule 65 of the Federal Rules of Civil

Procedure, plaintiff respectfully moves this Court to

issue its preliminary injunction enjoining and restrain-

ing defendant, Edward J. Rosewell, Treasurer and ex-

officio County Collector of Cook County, his agents and

attorneys, from proceeding to judgment and order of

sale, selling or attempting to sell plaintiff's property

designated by Permanent Index No. 32 23 414 054.

In support thereof, plaintiff states:

1. On September 19, 1978, plaintiff filed a Complaint

seeking a preliminary and, thereafter, permanent injunc-

tion against the defendant County Collector, enjoining

him from proceeding to judgment against and order of

sale of plaintiff's property for 1977 real estate taxes for

any amount in excess of the legal and fair taxes there-

against.

2. The fair cash value of plaintiff’s property on

January 1, 1977 was $46,000.00. Pursuant to the perti-

nent provisions of Cook County Ordinance No. COM 76

815 of December 17, 1973, plaintiffs property should

have been assessed at 33% of fair cash value, i.e., at $15,-

180.00, with a resulting tax liability of $1,778.00. In-

stead, defendant Tully assessed the property at $52,-

150.00, or at 344% of the legal amount and taxes in the

amount of $6,106 were extended upon the excessive

assessment and are now a lien upon the property which

the defendant Collector is seeking to reduce to judgment

and order of sale.

3. Defendants, acting under color of State law, viz.

the Revenue Act of 1939, Chapter 120, Illinois Revised

Statutes §§ 482, et seq., have violated plaintiff’s rights of

due process and equal protection guaranteed it by the

14th Amendment to the Constitution of the United

States. Such violation is actionable under 42 U.S.C.

§ 1983.

4. Plaintiff is ready and willing to pay the proper

and just amount of real estate taxes on the property in

the amount of $1,778.00, plus such statutory interest as

may have accrued.

5. Plaintiff has no plain, speedy and efficient remedy

at law in the courts of Illinois. Plaintiff's sole legal

remedy is provided by §§ 675 and 716 of Chapter 120, II-

linois Revised Statutes, under which plaintiff is required

to pay the taxes in full and under protest and thereafter

sue for refund in the Circuit Court of Cook County. This

remedy is neither plain, speedy nor efficient, since there

is a two year or longer delay in receiving refunds upon

—15—

successful prosecution of such a suit and Illinois law ex-

pressly provides that no interest shall be paid on refunds

received.

6. Plaintiff will suffer irreparable harm if the defen-

dant Collector proceeds to judgment against and sells

the property for the lien of the excessive and illegal

moiety of the tax. The only relief from such a sale is

redemption requiring payment of the tax in full plus

penalty interest levied at the rate of 12% every six

months. If the property is redeemed, the issue of relief is

rendered moot; if not redeemed, plaintiff will be

divested of title to a $46,000 building for the amount of

the taxes sold, i.e., $6,106.00.

7. Although injury to the plaintiff would be

irreparable should this Motion be denied, if it be

granted neither the defendants nor the public will suffer

harm or burden. The lien of taxes will continue against

plaintiffs property together with interest thereon.

Further, the public’s interest in proper administration

of the tax laws will be served by the issuance of an in-

junction.

8. There is no meritorious defense either at law or on

the facts to plaintiff's cause of action and plaintiff thus

has a reasonable likelihood of prevailing ultimately.

9. In further support of this Motion, plaintiff

appends hereto the Affidavit of the beneficiary of the

plaintiff land trust, exhibits thereto and its memoran-

dum of law.

LASALLE NATIONAL BANK, Trustee

under Trust No. 44891

By /s/ James L. Fox

Its Attorney

—1¢—

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

LA SALLE NATIONAL BANK, Trustee >

under Trust No. 44891,

Plaintiff,

vs.

> No. 78 C 3746

EDWARD J. ROSEWELL, Treasurer of

Cook County, and THOMAS M. TULLY,

Assessor of Cook County,

Defendants.

AFFIDAVIT |

(Appendices omitted)

PATRICIA COOK, on oath, states that she has personal

knowledge of the facts set forth in this Affidavit and if

called as a witness could and would testify competent-

ly thereto:

1. She was the beneficial owner of LaSalle National

Bank Trust No. 44891 on January 1, 1977 and has been

at all relevant times. A copy of the Trust Agreement is

appended hereto as Exhibit “A”.

2. The property which is the subject matter of this

suit is improved with a 22-apartment building. All of

the apartments are efficiency units. It was purchased in

an arms length transaction from the FSLIC in 1972 for

$45,000 and on January 1, 1977 had a fair cash value of

$46,000.

3. Affiant procured an appraisal of the property in

1976 from Donald A. Engel, MAI, appraising the

=

property at $46,000.00 A copy thereof is appended as

Exhibit “B” to this Affidavit. No change in the physical

structure other than normal wear and tear occurred

between February 3, 1976, the date of appraisal, and

January 1, 1977, the assessment date; and no change in

fair cash value occurred in that period. As of the date of

this Affidavit, affiant offers to sell the property for the

above appraised value.

4. Affiant paid taxes of approximately $6,000 each

year for 1974, 1975 and 1976 under protest and sued for

refund and received refunds of $4,600 for 1974, $3,650

for 1975 and $3,950 for 1976 after waiting for 3, 2 and 1

year respectively. Affiant received no interest on these

refunds.

5. The Village of East Chicago Heights is an all

black community with the lowest per capita income and

l»west value of residential properties in the County as

shown by the DePaul University urban studies. Property

values are greatly depressed in the Village and many

homes are boarded up and abandoned, notwithstanding

efforts of the FHA and other governmental agencies to

remove or renovate blighted properties and areas.

And further she sayeth not.

By /s/ Patricia Cook

[Jurat omitted in printing.]