Opposition — Rosewell v. LaSalle Nat. Bank

a8 LEI osc anae miei dda PIRES SOVIE

No. 79-1157

Iu the

Supreme Cowt of the United States

Octoser TERM, 1979

EDWARD J. ROSEWELL, Treasurer of Cook County, and

THOMAS M. TULLY, Assessor of Cook County,

Petitioners,

vs.

LA SALLE NATIONAL BANK, Trustee under Trust No. 44891,

Respondent.

On Petition for a Writ of Certiorari to the United States Court

of Appeals for the Seventh Circuit.

BRIEF FOR THE RESPONDENT IN OPPOSITION

JAMES L. FOX

DONALD P. COLLETON

One East Wacker Drive

Chicago, Illinois 60601

(312) 644-8500

Counsel for Respondent

Of Counsel

ABRAMSON & FOX

One East Wacker Drive

Chicago, Illinois 60601

(312) 644-8500

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

5 haat

sae

TABLE OF CONTENTS

PAGE

SOIT I <5 ses decpcc sci cneuid hea vesnsaoia cubs ninebielaasbaaueactiiens ‘2

EL REE EC Ee ere Renan ls eve Dart 1

in re eee ot REI Sie a 2

NS OU SN I cn cssicesinscscheisties sepsecsderncovens 2

Re TO ID onic cccntccttsndaiccomnberstacreroune 2

b. Facts Assumed True for Purposes of Appeal.. 3

Reasons for Denying the Writ .2.....0.2.0.....ccccccesecoeceseceene 6

I. The Court of Appeals Correctly Held That the

No-Interest Refund Remedy in the Illinois Courts

is Not Plain, Speedy and Efficient, Thus Remov-

ing the Bar of §1341 to Federal Jurisdiction of

ME RNA nies ER CEL ONE BEAN 6

If. The Court of Appeals Correctly Held That the

Availability of An Action Under 42 U.S.C. §1983

in the Illinois Courts Does Not Bar Federal

Jurisdiction Over a Section 1983 Action Alleg-

ing Constitutional Deprivation Arising From an

i i enaeiveutie 9

SXRD OED AOOE) EWR TENE RED ARE SS 13

li

AUTHORITIES

PAGE

Bland v. McHann, 463 F.2d 21 (1972) ...0......0..e eee 7

Carter v. Stanton, 405 U.S. 669 (1972) -....0000222 2... 12

Chrysler Corp. v. Gunderson, 77 Ill. App. 3d 558

RR LGA: CaM CEN ATES, PORT PEE Ue 7, 10

Clarendon Associates v. Korzen, 56 Ill. 2d 101

I oie isla ic Nace tacecadengnsideatnetiuicobsaipsnoontiesdabeenisioud 4, 7,10

Colorado River Water Conservation District v. U.S.,

Se a I siiictnccaceccunradeichdpuiieiessiesusecnanicbsepthabemeies 6

Damico v. California, 389 U.S. 416 (1967) ....2002000.... 12

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

1071 (1978) cert. denied, 429 U.S. 1121 (1979)....4, 6, 10, 12

Garrett v. Bamford, 538 F.2d 63 (1977) -..202.......eeeeeeeee 6, 11

Georgia RR v. Redwine, 342 U.S. 299 (1952) ........... ideas 8

Goodyear Tire and Rubber Co. v. Tierney, 411 Ill. 421

SEITE ~ sata inset sh cc lbiniciahdlebaomist onic iavemuasvenctinincapibinindiiiiadiians sitte 7

Hillsborough v. Cromwell, 340 U.S. 620 (1924) ............ 11

Lakefront Realty Corp. v. Lorenz, 19 Ill. 2d 415

EIEN. “sasencehbeisiidoinepcadaseniniaidibinlecsunlisiveniactese ah 7, 8,10

McNeese v. Board of Education, 373 U.S. 668 (1963) .. 12

Mitchum v. Foster, 407 U.S. 226 (1972)... 6

Monroe v. Pape, 365 U.S. 167 (1961) -.....22.. eee 6, 12

New Jersey Education Association v. Burke, 579 F.2d

764 (1978) cert. denied, 439 U.S. 894 (1974) .............. 6

People ex rel. Korzen v. Fulton Market Cold Storage

Company, 22 Ill. App. 2d 3rd 1088 (1974) (rev’d., 62

Ill. 2d 443, cert. denied, 429 U.S. 833 (1976) ................ 4,11

Proctor & Gamble Co. v. Sherman, 2 F. 2d 165 (1924).. 9

iil

PAGE

Raymond v. Chicago Union Traction Co., 207 U.S. 20

Cy Ea MTOM Orr wee Re NFS \ iaibindaboa 6

Sioux City Bridge Co. v. Dakota County, 260 U.S. 441

RTUTTED | sncincthhindenitasisssaisinipicsepiiligeuteticadcsialiaialieiaipapia semana 6

Sunday Lake Iron Co. v. Wakefield, 247 U.S. 350 (1918) 6

Tully v. Griffin, 429 U.S. 68 (1976) 0.0... ce elk ecoeceee 11

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

I’, 2d 439 (1975) rehearing denied, cert. denied, 424

Rie Oe CRITD, eivctcesicciccincessnninsaianealaaiaeas 11,12

U.S. and E.I. du Pont de Nemours & Co. v. Livingston,

179 F. Supp. 9 (1959) aff’d per curiam, 364 U.S. 281

CORD. tencinditichavesstsidishconssitinkiaipiscacgsienibeeepiaeddiaeiuaaaaee 10

Walker Process Equipment, Ine. v. Food Machinery

and Chemical Corp., 382 U.S. 172 (1975) -..2............... 3

Weissinger v. Boswell, 330 F. Supp. 615 (1971) -........... 6

Willcox v. Consolidated Gas Co., 212 U.S. 19 (1909) .... 6

Other Authorities

SUS Away oo we ee 2

Oe Sic oe ee 2, 3,7, 9, 11, 13

OURG MeO) 2 a eee 3

Gi pee a pane nee EN 2,9, 10, 11, 12, 13

190 TE. Rov. Giet $508.1-6 8

190 TEE Bow. Dink. 8676 ones cic 4,5, 7, 9, 10

Ee See. Dead. OTE snc oe 4, 5,7, 10

Wenaenmne BARGE) © ..a...cidneee 3

In the

Supreme Court of the United States

Octoser TeRM, 1979

No. 79-1157

EDWARD J. ROSEWELL, Treasurer of Cook County, and

THOMAS M. TULLY, Assessor of Cook County,

Petitioners,

Vs.

LA SALLE NATIONAL BANK, Trustee under Trust No. 44891,

Respondent.

On Petition for a Writ of Certiorari to the United States Court

of Appeals for the Seventh Circuit.

BRIEF FOR THE RESPONDENT IN OPPOSITION

Opinions Below

The opinion of the Court of Appeals (App. 1la-19a) is

reported at 604 F2d 530 (7th Cir. 1979). The opinion of

the district court (App. 20a-21a) is not officially reported.

Jurisdiction

The decision of the Court of Appeals was entered on

August 24, 1979 (App. 1a), the petition for rehearing and

2

suggestion for rehearing en banc was denied on October

30, 1979, and tHe instant petition for writ of certiorari was

filed on January 26, 1980. The jurisdiction of this court is

invoked under 28 U.S.C. §1254(1).

QUESTIONS PRESENTED

Whether the Court of Appeals was correct in holding

that the denial of interest on tax refunds by the Illinois —

courts renders the state remedy inadequate within the

meaning of 28 U.S.C. §1341, thereby removing its bar to

federal jurisdiction in an injunctive proceeding.

Whether the Court of Appeals was correct in holding

that the availability of an action under 42 U.S.C. $1983 in

the Illinois courts does not bar federal jurisdiction over

a section 1983 action alleging constitutional deprivations

arising from an illegal tax action.

STATEMENT OF THE CASE

a. Earlier Proceedings

Taxpayer, Patricia Cook,’ the owner of an apartment

building in the all black, economically depressed Village

of East Chicago Heights in Cook County, Illinois, brought

this action in the United States District Court for the

Northern District of Illinois under 42 U.S.C. §1983 seeking

a preliminary and permanent injunction against the re-

spondent County Collector from proceeding to judgment

and order of sale against and from selling her property

for unpaid 1977 Cook County real estate taxes which she

alleged to be assessed at over three times the legal amount,

viz., the amount at which property in her class was assessed

1 Although La Salle National Bank, Trustee under land trust No.

44891 is the named respondent, Patricia Cook, as sole beneficiary

under the Trust, is the real party in interest.

3

and taxed generally in the County. Jurisdiction was in-

voked under 28 U.S.C. §1343(3). The district court denied

taxpayer’s motion for a preliminary injunction and dis-

missed the case, holding 28 U.S.C. §1341 a bar to federal

jurisdiction. (App. 20a)* That court granted an injunction

pending appeal. Fed. R.Civ.Proc. 62(c). The Seventh Cir-

cuit reversed, 604 F.2d 530 (1979).

b. Facts Assumed True for Purposes of Appeal ®

On January 1, 1977, the assessment date for levying of

1977 real estate taxes, taxpayer alleged that her property

had a fair cash value of $46,000 and, if assessed in ac-

cordance with the Illinois statutes and Cook County ordi-

nance, should have been assessed at 33% of its fair cash

value or approximately $15,000.00. Petitioner-Assessor,

however, assessed the property at $52,150, over three times

the legal amount. As a result, the taxes levied against the

property, viz., $6106, were about three and a half times the

proper and legal taxes of $1775.

The Cook County Assessor knowingly as official policy

or as governmental custom has maintained a system of

assessment in Cook County which has produced egregious

disparities in the ratios between the assessed valuations

and the fair cash values of real properties. Over-assess-

ments are greater in frequency and size in older communi-

ties in which property is owned and inhabited primarily

by members of racial minority groups and the economically

disadvantaged.

? References to the Appendices are to Petitioners’ Appendix in-

cluded with their Petition.

*The well pleaded factual allegations of respondent-plaintiff’s

complaint are taken as true. Walker Process Equipment, Inc. v.

Food Machinery and Chemical Corp., 382 U.S. 172, 174-175

(1975), Fed.R.Civ.P. 12(b) (1).

4

In 1977, as well as in each of the preceding three years

(in which her property similarly was overassessed), re-

spondent sought administrative relief from the Board of

Tax Appeals of Cook County. In each of those years, the

Board referred her complaint to the Assessor for recom-

mendation, and in each year the Assessor recommended

‘‘no change’’ in the assessment. The Board denied tax-

payer’s petition for administrative relief each year.‘

Having been denied administrative relief, taxpayer’s

only remedy at law was to pay the full amount of the tax

claimed by the county collector (defendant-petitioner Rose-

well, Treasurer of Cook County) pursuant to the assessor’s

assessment, and thereafter to object and sue for refund at

the collector’s annual Application for Judgment in the

Cook County Cireuit Court. See 120 Ill.Rev.Stat. $$675,

716. The customary delay in receiving refunds in a suc-

4 Petitioners’ recitation in their Statement of the Case (Petition

6, fn.), of administrative and judicial remedies for overassessments

available to Illinois taxpayers, is irrelevant. Notwithstanding the

mandates of the Illinois Revenue Act of 1939, Chapter 120, Illinois

Revised Statutes, 594, 598, 608, taxpayer has continually been de-

nied administrative relief under those statutory provisions. Tax-

payer, as noted, unsuccessfully sought administrative relief in 1974,

1975, 1976 as conditions precedent to her judicial actions. C.f., Peo-

ple ex rel. Korzen v. Fulton Market Cold Storage Company, 62

Ilt.2d 443, cert. denied, 429 U.S. 833 (1976). She did so also in

1977 prior to bringing the suit below; and, notwithstanding the pen-

dency of this suit, 1978 complaints filed before both the Assessor

and Board of Appeals of Cook County proved fruitless, whereupon

she again sought relief in a now pending suit in the District Court,

79 C 4864. See also Fulton Market Cold Storage Company v. Cul-

lerton, 582 F.2d 1021 (1978). Nor is injunctive relief available to

taxpayer in the state courts. As petitioners admitted in their Peti-

tion for Rehearing in the Seventh Circuit: “The facts pleaded in

the complaint show that the taxpayer is not entitled to equitable

relief under Illinois law. See Clarendon Associates v. Korzen, 56

Ill.2d 101 (1973).” (Pet. Rehearing, 3, fn.)

5)

cessfully prosecuted tax refund suit is two years. Under

Illinois law, no interest may be paid to a successful claim-

ant who has secured the refund of real estate taxes paid

under protest.°

In three successive Circuit Court actions taxpayer pur-

sued her legal :omedy for 1974, 1975 and 1976 tax refunds

and ultimately received these refunds for all three years

in May, 1978. She had been required to pay illegally ex-

acted taxes in the approximate amounts of $4,600 for 1974,

$3,650 for 1975, and $3,950 for 1976, these being the

amounts of refunds. The Court found over and above the

taxes justly due. For the three, two and one year delays,

respectively, given 8% interest (the average prime rate

over the three-year period), she lost approximately $2,000

because of her inability to use money which ultimately was

deemed to be rightfully hers.

In her suit at bar, taxpayer contends that approximate-

ly $4,300 of her 1977 tax bill of $6,106 is an illegal over-

charge and that in order to pursue the State remedy she

would be forced to pay the $4,300, » ith no possibility of

receiving interest on a refund, along with her correct tax

payment. Rather than paying her 1977 taxes under protest

and suing for a refund of $4,300.00, on September 19, 1978

taxpayer filed the within action in the district court seek-

ing to enjoin collection procedures for the illegal portion

while standing ready to pay such just taxes as the district

court may find to be due.

5 Petitioners referral to and distinction with respect to pre-judg-

ment interest in their Statement requires clarification. The order

of refund in the Illinois statutory procedure does not provide for

interest on the refund during the period from the date of payment

of taxes to the date of order of refund; nor does the order of refund

itself, unlike a judgment, bear interest for the not inconsiderable

period from the date of its entry by the Court until the refund is

paid by the County Collector. 120, Ill.Rev.Stat., §§675, 716.

(Emphasis added unless otherwise indicated)

REASONS FOR DENYING THE WRIT

I.

The Court of Appeals Correctly Held That the No-Interesi

Refund Remedy in the Illinois Courts is Not Plain, Speedy

and Efficient, Thus Removing the Bar of §1341 to Federal

Jurisdiction of Respondent’s Claim

There is no doubt that the tax discrimination complained

of by respondent is constitutionally offensive, Raymond v.

Chicago Union Traction Co., 207 U.S. 20 (1907) ; Sioux City

Bridge Co. v. Dakota County, 260 U.S. 441 (1923); Sunday

Lake Iron Co. v. Wakefield, 247 U.S. 350 (1918), and re-

mediable in an action under Section 1983. Garrett v. Bam-

ford, 5388 F2d 63 (3rd Cir.), cert. denied, 429 U.S. 977

(1977) ; Fulton Market Cold Storage Co. v. Cullerton, 582

F 2d 1071 (7th Cir. 1978), cert. denied, 429 U.S. 1121 (1979) ;

Weissinger v. Boswell, 330 F. Supp. 615 (M.D. Ala. 1971)

(three judge court). It is equally well settled that Section

1983 offers a ‘‘wnuquely federal’’ remedy, Mitchum v. Fos-

ter, 407 U.S. 225, 239 (1972), having been passed to afford

‘fa federal right in federal courts’’. Monroe v. Pape, 365

U.S. 167, 180 (1961). Federal courts, when properly ap-

pealed to under Section 1983 or upon any other federal

basis, have a ‘‘virtually unflagging obligation to exercise’’

their jurisdiction, Colorado River Water Conservation Dis-

trict v. U.S., 424 U.S. 800, 817 (1976), for the ‘‘right of a

party plaintiff to choose a federal court where there is a

choice cannot be properly denied.’’ Willcox v. Consolidated

Gas Co., 212 U..S 19, 40 (1909); New Jersey Education |

Association v. Burke, 579 F.2d 764, 771 (3rd Cir. 1978),

cert. dened, 439 U.S. 894 (1974). If, therefore, respondent

7

does not have a plain, speedy and efficient remedy in the

courts of Illinois, the bar of Section 1341 is removed and,

as a matter of right, she is entitled to a federal forum to

seek injunctive relief to remedy the constitutional depriva-

tion visited upon her, under color of law, by the petition-

ing tax officials.

Under the circumstances presented by her case, neither

injunctive nor declaratory relief is available to respondent

in the courts of Illinois, Clarendon Associates v. Korzen,

36 Ill.2d 101 (1973); Goodyear Tire and Rubber Co. v.

Tierney, 411 Ill. 421 (1952). The only remedy she can pur-

sue is that provided by statute of paying the excessive tax

in full under protest and suing for refund. 120 Ill.Rev.Stat.

Sections 675, 716; Clarendon, supra. Under this statutory

remedy interest, not having been authorized by statute,

cannot be paid on refunds:

‘‘We are of the opinion that the silence of our refund

statute on the question of interest discloses a legisla-

tive intention to deny it. Accordingly, we conclude

that plaintiff is not entitled to interest in the absence

of a statute imposing that liability.’’ Lakefront Realty

Corp. v. Lorenz, 19 Ill.2d 415, 423 (1960).

See also Chrysler Corp. v. Gunderson, 77 Ill.App.3d 558,

560-1 (1979). Nor does this denial of interest ‘‘render the

remedy inadequate so as to justify equity in assuming

jurisdiction.’’ Clarendon, supra, 56 Ill.2d at 109. The Court

of Appeals has, in Part A of its opinion, dealt extensively

and cogently with the issue of the inadequacy of a remedy

not affording interest on refunds (App. 6a-12a). The rea-

sons given there amply support its conclusion that Illinois’

no-interest remedy is not plain, speedy and efficient.

That conclusion does not, as petitioners suggest (Pet.

15), conflict with Bland v. McHann, 463 F.2d 21 (5th Cir.

1972). The allegation in Bland that ‘‘ Mississippi law makes

8

no provision for the recovery of interest on illegally as-

sessed taxes’’, at 28, n. 24, was not discussed by the court

in its opinion and, unlike here, formed no part of the ratio

dectdendi. Rather, in Bland, the court found that Missis-

sippi statutes provided adequate remedies, including a

means for administrative hearings of taxpayer assessment

objections and de novo appeals thereof to the circuit court,

a procedure not available to Illinois residents of Cook

County. See 120 Ill. Rev. Stat. §592.1-5. Patently, there

is no conflict.

Notably, the issue here is not whether the granting of

interest is a matter of statute and not of right, nor whether

Illinois’ adherence to a no-interest rule is proper (Pet. 15).

Lakefront, supra, 19 Ill.2d at 423. Illinois is concededly

free to follow such a rule. But in doing so, Illinois must

recognize that it imposes substantial economic burdens

which affect the adequacy of the remedy it provides. As

‘the remedy’s diseconomies’’ (App. lla) in Georgia RR

v. Redwine, 342 U.S. 299 (1952) sufficed to render a pro-

cedure requiring financially burdensome multiple suits in-

adequate, so here a refund procedure that takes two years

and disallows interest is inadequate because of the ‘‘undue

costs’’ it entails (App. 11la).°®

In fine, it is a subversion of reality for a body politic

to maintain, in the economic milieu of the day, that a tax

refund procedure which requires payment in full of the

illegal portion of a tax, as a condition precedent to obtain-

ing judicial review and relief, and denies interest on the

money refunded, the interest on which the body has reaped

for two years, constitutes an adequate, a plain, speedy and

6 Contrary to petitioners’ view (Pet. 17), it was the undue econo-

mic burdens of the state remedy at law and not the fact that the

railroad might be exempt from taxation which rendered the state

remedy inadequate in Redwine. 342 U.S. at 303.

9

efficient remedy.” Is it not indeed harsh treatment of the

citizens who, suffering a constitutional deprivation of their

substance by public officials acting under color of law, have

a dollar of that substance returned two years later worth

but seventy-five cents under today’s double digit inflation?

And then to be told by the highest court of their state that

the remedy the parens patriae affords them, is adequate?

Indeed, if Judge Learned Hand’s analysis of the inade-

quacy of such procedure in 1924 was valid, Proctor &

Gamble Co. v. Sherman, 2 F2d 165, 166 (S.D. N.Y.) cited

by the court below, 604 F2d at 536; App. 12a, how much

more so today!

II.

The Court of Appeals Correctly Held that the Availability

of An Action Under 42 U.S.C. §1983 in the Illinois Courts

Does Not Bar Federal Jurisdiction Over a Section 1983

Action Alleging Constitutional Deprivation Arising From

an Illegal Tax Action

Petitioners seek to avoid the holding of the Court of

Appeals by readvancing their argument, made in that court,

that the possibility of state court jurisdiction over a 1983

action preserves the bar of Section 1341. The contention is

without merit.

In urging rehearing, petitioners candidly stated to the

Court of Appeals: ‘‘The facts pleaded in the complaint

show that taxpayer is not entitled to equitable relief under

7 As noted, $675 of Chap. 120 Ill. Rev. Stat. permits the County

Collector to withhold from the taxing bodies certain taxes paid

under protest, and to invest them pending judicial resolution of the

disputed assessments. Not only does this financial benefit accrue

to the County from the date of payment to date of order of refund,

but accrues from the date of the order to date of actual payment,

a time period averaging from 6 weeks to 2 months.

10

Illinois law.’’ (Pet. for Rehg. 3, n.). If this is so, it is

difficult to see how the inadequacy of the Illinois remedy

will be avoided by respondent’s resort to a state court

proceeding even under Section 1983. See Chrysler Corp.

v. Gunderson, 77 Ill. App. 3d 558, 560-561 (2nd Dist. 1979),

where the Court refused to grant injunctive relief, not-

withstanding reference to the rule announced in the court

below stating:

‘‘This holding [in LaSalle] has no effect on whether a

remedy is adequate for the purposes of relief sought

in Llinois courts.’’

Moreover, for petitioners’ argument to stand, this Court

must rule that, upon respondent’s invocation of Section

1983, the state court must unwillingly set aside its settled

rules for refusing equitable jurisdiction in tax cases, see

Clarendon Assn. v. Korzen, supra; Chrysler, supra, open

its door, perforce, to injunctive relief in every tax dis-

crimination case, also contra holdings of Illinois courts for

over a hundred years (see cases, Pet. 7-8) and literally sit

as the federal district court in such cases. Notwithstanding

‘‘the silence of [Illinois’] refund statute . .. discloses a

legislative intent’’ to deny interest on refunds, Lakefront

Realty Corp. v. Lorenz, 19 Ill. 2d 415, 423 (1960), under

petitioners’ approach Illinois courts presented with a 1983

claim would be required not only to award interest as an

element of damage in damage actions, Fulton Market Cold

Storage Co. v. Cullerton, supra, but also to allow interest

on judgments in the annual statutory refund proceeding.

120 Ill. Rev. Stat. §§675, 716. Illinois would lose the dis-

cretion which she now enjoys to choose, U.S. and El. du

Pont de Nemours & Co. v. Livingston, 179 F. Supp. 9, 15

(E.D. S.C. 1959) (three judge court), aff’d per curiam, 364

U.S. 281 (1960) not to afford an adequate remedy. Plainly

such results would maximize rather than minimize federal-

state friction, upset the delicate interests of comity bal-

11

anced below (App. 12a), and emasculate the policy con-

siderations behind Section 1341.°

Finally, whatever else may be said about the question of

whether the Illinois courts will entertain 1983 actions and

do an about-face on their long-asserted right to deny equi-

table relief, it cannot seriously be argued that the course

the state court would take under such circumstances is

settled or sufficiently free from doubt as it is required to

be to render the Illinois remedy adequate. Hillsborough v.

Cromwell, 340 U.S. 620, 629 (1924); Tully v. Griffin, 429

U.S. 68, 76 (1976) ; Garrett v. Bamford, supra, 538 F2d at

70; 28 East Jackson Enterprises, Inc. v. Cullerton, 523 F2d

439, n.4 (7th Cir. 1975), rehearing denied, cert. denied, 424

U.S. 959 (1976). On the contrary, if anything is settled,

it is that the Illinois courts will not apply federal equity

principles when presented with a Section 1983 case involv-

ing allegation of discriminatory taxation by local taxing

bodies.

As an example, in People ex rel. Korzen v. Fulton Market

Cold Storage Company, 22 Ill. App. 2d 3rd 1088 (1st Dist.

1974), rev’d, 62 Ill. 2d 448, cert. denied, 429 U.S. 833

(1976), a taxpayer sought a refund from the Illinois courts

8 Petitioners err in saying the decision below allows “any and

every Illinois taxpayer desirous of litigating tax assessments” (Pet.

7) access to the federal court. To enter the federal court, a tax-

payer must allege a constitutional deprivation worked under color

of law and, according to petitioners, these jurisdictional prerequi-

sites will “seldom” arise (Pet. 7). If, on the other hand, the 1100

valuation objections noted by petitioners (Pet. 12, n.) do involve

constitutional discrimination, serious doubt would exist about the

constitutionality of the Cook County assessing procedures and the

need of federal court protection could not be gainsaid. In any event,

it is difficult to see what policy interest behind Section 1341 would

be served by flooding the Illinois courts with Section 1983 injunc-

tion suits.

12

in the statutory proceeding alleging, inter alia, a count

under Section 1983. The taxpayer raised the 1983 claim

in the trial court and argued it in both the Illinois Appel-

late and Supreme Courts, contending that because a fed-

eral cause of action under Section 1983 was involved, the

federal doctrine controlled that in a civil rights action the

state remedy ‘‘need not be first sought and refused before

the federal one is invoked’’. Monroe v. Pape, 365 U.S. 167,

183 (1961). 22 Ill.App.2d at 1089; see Carter v. Stanton,

405 U.S. 669 (1972); Damico v. California, 389 U.S. 416

(1967); McNeese v. Board of Education, 373 U.S. 668

(1963). The Illinois Supreme Court, however, squarely

held that the Illinois doctrine requiring exhaustion gov-

erned and dismissed taxpayer’s complaint.’ 62 IIl.2d at

446-447. There is no reason to believe the Illinois courts

would take a different approach here and put aside the

state rule that a no-interest remedy is adequate and adopt

the contrary federal rule.’®

® When a federal court was presented with Fulton’s Section 1983

claim, it applied the federal rule on exhaustion and sustained the

taxpayer’s complaint. Fulton Market Cold Storage Co. v. Cullerton,

582 F.2d 1071, 1080 (7th Cir., 1978).

10 The ruling below does not “always transfer the risk of tax-

payer insolvency to the government” (Pet. 10). Respondent has

offered to pay the just portion of the disputed 1977 tax so that no

delay in the collection of proper taxes would occur. In 28 East

Jackson Enterprises, Inc. v. Cullerton, 523 F.2d 439 (7th Cir.

1975) (Pet. 10) taxpayer contended that the Assessor’s discrimini-

tory practices were rendering its property unmortgageable and un-

saleable, thus creating the risk of insolvency to which petitioners

refer.

13

CONCLUSION

It is clear that Illinois’ no-interest, no-injunction remedy

is inadequate. Not only does it visit ‘‘undue costs”’ (App.

lla) on taxpayers, but it gives the Cook County Assessor

an economic incentive to disregard his duties. Indeed, re-

spondent has been over-assessed now five years in a row

and still cannot get adequate relief in the state courts.

Hence, this case is exactly what Section 1983 is all about

for it has become certain that only a federal cause of action

heard in a federal court will thwart petitioners’ malicious

abuse of the taxing power under color of law. The Court

of Appeals was correct in holding the state remedy inade-

quate and the bar of Section 1341 avoided. The Petition

for Certiorari should be denied.

Respectfully submitted,

JamgEs L. Fox

Donatp P, CoLLeton

Counsel for Respondent

Of Counsel:

Asramson & Fox

One East Wacker Drive

Chicago, Illinois 60601

(312) 644-8500