# Opposition — Rosewell v. LaSalle Nat. Bank

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## Record

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

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2191%3A3. Public record. Not legal advice.