Jurisdictional Statement — Schlenz v. Castle

80°2164_.

Oitice Supreme Court, U.S.

No. | ti, LED

JUN 22 1981

In THE

Supreme Court of the Gui

Ocroser Term, 1981 ~

RUSSELL G. SCHLENZ and NANCY A. SCHLENZ,

Lake County, Illinois Appellants,

and

GERTRUDE ANDERSON and 1300 CONSOLIDATED CASES,

Shelby County, Illinois Appellants,

v.

JOHN W. CASTLE, ROBERT JASPER, THE LAKE COUNTY,

ILLINOIS, BOARD OF REVIEW, SHELBY COUNTY, ILLI-

NOIS and the ILLINOIS PROPERTY TAX APPEAL BOARD,

Appellees.

On Appeal From The Supreme Court Of Illinois

JURISDICTIONAL STATEMENT

PAUL E. HAMER

Attorney of Record

1356 Shermer Road

Northbrook, Illinois 6(062

(312) 272-1800

JACK L. URETSKY

135 S. LaSalle Street

Chicago, Illinois 60603

(312) 372-7842

Attorneys for Appellants

Midwest Law Printing Co., Chicago 60611, (312) 321-0220

QUESTIONS PRESENTED

Whether an Illinois statute violated the Fourteenth

Amendment’s Due Process Clause by purporting to ob-

literate retrospectively appellants’ rights to abatement

and refund of property taxes levied upon assessment

increases which had been invalidated »y the State’s

highest court for want of timely notice?

Whether an Illinois statute violated the Fourteenth

Amendment’s Equal Protection Clause by purporting to

obliterate retrospectively the rights of only those tax-

payers who had not obtained final judgment prior to an

arbitrary prospective date to abatement and refund of

property taxes levied upon assessment increases which

had been invalidated by the State’s highest court for

want of timely notice?

ii

PARTIES IN THE SUPREME

COURT OF ILLINOIS

Russel G. Schlenz and Nancy A. Schlenz, were appel-

lees in the court below in proceedings originating in

Lake County, Illinois.

Robert Jasper end The Lake County Board of Review

and Shelby County were appellants in the proceedings

originating in Lake County.

John W. Castle, named in the trial court in Lake

County, was not a party on appeal.

The Illinois Property Tax Appeal Board, acting on

behalf of taxpayers! in 1300 consolidated tax appeals,

were appellees in the court below in proceedings

originating in Shelby County, Illinois, Gertrude Anderson

was the first named taxpayer. Shelby County was the

appellant in the proceedings originating in Shelby

County.

The Illinois Property Tax Appeal Board did not appeal

to this court from the decision of the Supreme Court of

Illinois.

The court below consolidated the Lake County and

Shelby County appeals.

' List of Shelby County taxpayers:

Gertrude Anderson, Max Anderson, Charles Baker, James

& Barbara Bridges, Charles Baker, Hedric Baker, Robert J.

Behl, Carl L. Bayless, Mrs. Joseph Behl, John W. Bushue,

Jean & Verl Bridges, Robert Behl, Charles Baker, Mrs.

Joseph Behl, Robert H. Behl, Robert J. Behl, Oliver E.

Baugher, Oliver E. & Merle Baugher, Vernie Boldt, Bobby L.

Bridges, Roy Burrell, W. E. & Carol Anderson, William E. &

Carol Anderson, W. E. Anderson, L. Ervin Storm, Ervin

(Footnote continued on following page)

iii

1 continued

Storm, Leverett Brown, Carl & Lela Kircher, Garnet Page,

David A. Shrake, Dale Bauer, Berniece Chamberlain, Ruth

Lockart, Kenneth Robertson, Homer Culver, Henry Doll,

Fairy E. Elson, John Elson, Delmar Elzy, Jerry Fearday,

Everett Fearday, Irvin Figgins, Garold Gentry, Michael

Greuel, Oscar Gentry, Leonard Greuel, Michael Greuel, Nor-

bert Hille, Cecil L. Hardesty, Mary M. Henneberry, Elsie

Nippe, Earl Noffke, Frieda C. Noll, Paul Parker, Bige Pat-

terson, William C. Pieper, James Probst, Paul Rennels, Harold

Russell, Albert Schumacher, Bernard Schumacher, Glen R.

Bieber, Kenneth Carroll, Floyd Christy, David Compton,

Donald Compton, Frank Compton, Ken Considine, Donald

Cross, Bill Dunaway, Frank H. Dunaway, Daisy F. & Richard

R. Heiserman, Daisy & Richard Heiserman, Jesse Heierman,

Doris Kirk, Archie Hicks, ag’! M. Henneberry, James

Jansen, Vincent Keck, Don M. Keller, Charles Latch, Joe

Latch, Phyllis J. and Marian Lindley Krueger, Ervin F.

Latch, John Landers, Ruth Luedke, Roy Lear, Walter Leving-

ston, Amom Lindley, Winifred Lindley, Donald Mehl, Gary A.

Mercer, Paul E. Montgomery, Faraba & Roy Shirley, Ervin

Storm, Paul T. Sheenan, John A. Smith, John Smith, Mark O.

Storm, Harold a. Mrs. Clarence Sudkamp, Mark O.

Storm, Robert J. Strohl, Larry Strohl, Larry E. Strohl, Lee

Roy Storm, Austin Spear, Reverdia Storm, Mrs. Clara Schutte,

Norbert Schumacher, Jacqueline J. Schutte, Mark O. Storm,

Eileen Schutte, Robert F. & Sandra Swengel, Elmer Tabbert,

Ed Tucker, Mrs. M. Wood, A. A. Wilson, John F. Wilson,

Harry F. Wells, Charles R. Weber, Sr., Theresa Walk, Victor

Walk, Joseph Walden, Paul L. Williams, Charles R. Weber,

Sr., Charles Walk, Theresa Walk, James Williams, Larry D.

Montgomery, Paul Montgomery, Arble Moffitt, Jr., Jennie

McAllister, Dean McAllister, Hannah McAndrew, Agnes Mc-

Clory, R. H. Montgomery, Ervin Moran, Kenneth L. Moran,

Jesse S. Morris, Jesse W. Morris, Robert W. Morrison, James

E. Meek, Donald Mehl, Oliver E. & Merle Baugher, Roy Bur-

rell, Carl D. Burrell, 6 oe een Verl & Jean Bridges,

L. Joe Elson, Wayne & Bernice Dewar, Helen E. Curtis,

August Doeding, L. Joe Elson, Thelma Elson, Harry Estelle,

Irene Ferrell, Wayne & Lawrence Gordon Dewar, Helen

& Arnold Huntington, Harold Huntington, Helen Hun-

tington, Merwin Jervis, Kalph Kasey, Charles Latch, Paul

Montgomery, Paul E. Mon me Laurence E. Mont-

Romery, Laurence & Phyllis Montgomery, Russell &

able Montgomery, Carl E. Miller, Dean & Jeanette

McAllister, McAllister, Jennie McAllister, James

(Footnote continued on following page)

1 continued

Harold Price, James Probst, Harold Russell, Robert J. Strohl,

Bernard Schumacher, Lee Roy Storm, Mary E. Storm, Ed

Tucker, Raymond Watkins, Scott Worley, (Est.), Dale D.

Wirth, Robert H. Behl, Joe Latch, George & Mildred Probst,

Norbert Schumacher, Lee Roy Storm, Charles R. Weber, Sr.,

Henry Widdersheim, Paul L. Williams, Robert Willenborg,

Donald Willenborg, Norbert & Rose Will, William & Paul

Walk, Walk Farms, Inc., Virgil M. Walk, Theresa Walk, Wil-

liam Young, Doris Kirk, Jim Kirk, Mrs. L. M. Kirk, Ralph

Kirk, Irma J. Koons, Otha L. Mills, Forrest W. Miller, Theo

& Evelyn Nohren, Annabel Roadarmel, Keith Snyder, Ervin

Storm, Corwin & Gary Tucker, H. A. Van Horn, c/o Corwin

& Gary Tucker, Ed Agney, Robert Allen, Carl Allen, James

L. Antrim, Max Anderson, Jude Bixler, Florence Elbert,

Robert D. Elbert, Forrest G. Elbert, Danny L. Forcum,

Fred Gallagher, Thomas Grove, Jewell Isley, Clarence Elbert

Isley, Elbert Isley, Harold R. Kennell, Jr., L. C. Lieb, William

W. Lewis, Carl Rittgers, Franklin & Pauline Reid, David

Compton, Jerry Corley, Ralph Chamberlain, Frank Compton,

Everett Denton, Roger Foster, Huber O. Foster, Marie Fos-

ter, Ross S. Glick, Harold & Leila Glick, Neva Hinton, Floyd

B. Hinton, Mason Horsman, Eugene Hunter, Orville M.

Jones, Ralph Kirk, Mrs. Leon Niehaus, John M. Swander,

Ervin L. Storm, Sylvia Frost Snyder, L. R. Sommer, C. L.

Voudrie, Max Anderson, Eda Bullerman, Emma Beals, Anna

Bose, Russell & Evelyn Fall, pe Grunert, Calvin P.

Giesler, Thomas Grove, Elmer Heil, Fred Heil, Edna Jones,

Edwin Keller, Everett Kessler, Kenneth Kessler, Oscar Kess-

ler, Dwight E. Kessler, Glen Kessler, Don & Irvin Kessler,

Walter Keller, Elnora & Wilbur Meers, Merle Mechling, Ear]

Noffke, Melvin Ohnesorge, Glenn H. Pieper, William E.

Pieper, Edna Probst, Paul Probst, Leatha Rueff, Charles W.

Reid, Charles Reid, Jr., Vernon Rincker, Clarence Rosine, Ira

Rawdin, Stan & Louis Schutte, Louis Schutte, Jacquline J.

Schutte, Shelby Thompson, G. B. Ulmer, Albert Vonderheide,

Donald Vogel, Henry Widdersheim, Donald Wendt, Wayne

Walden, Paul Whittenberg, Cecil G. Miller, Robert L.

Mentzer, LaVonne R. entzer, Carl Kircher, Donald

Matlock, Garnet Page, Lola B. Bottrell, Louise Bottrell, Bot-

trell Brothers, Ora E. & Harold Curry, Virgil Collins, Elsie

Nippe, Charles J. Rosine, Henry Widdersheim, Lorene Storm,

n C. Westenhaver, Gary Wheeler, Elmer Wheeler, Don C

Westenhaver, T. M. Bennett, Thomas Bennett, Myron Ben-

nett, Freda Dunaway, Frank Dunaway, Frank H. Dunaway,

Martha Denier, Bill Dunaway, Burl Evans, Earl Endsley,

(Footnote continued on following page)

1 continued

Curtis Endsley, Russell Fisher, Everett Gordon, Dale L.

Gordon, Marion W. Griffin, Zelma & Richard Gordon, Charles

& Richard Gordon, Marita Ann Moore, Vivian Roadarmel,

Annabel Roadarmel, P. D. Simmons, Corwin Tucker, Luther

Taylor, John Yarnell, Wayne Arnold, Frank Arnold,

Robert Allen, Carl Allen, Jude Bixler, Wayne Bushue,

J. D. Casstevens, J. D. & Amelia Casstevens, Max Clark,

Floyd Erlenbusch, Floyd D. Erlenvusch, Curtis Endsley, c/o

Endsley Bros., F. H. Forcum, Rolland D. Giles, Emery Gru-

nert, John Giles, Richard Gordon, Richard C. Gordon, Fred

ag jared Charley Giles, Everett Gordon, Rolland D. Giles,

Jim Hutchison, Frank Compton, Don Cross, Bill K. Dunaway,

Kimble Foor, Archie Hicks, Gary G. Hicks, Warren Nohren,

Lola & Raymond Pfeiffer, Lyle & Audrey West, Jim J. Hut-

chison, Jim Hutchison, George Hundertpfund, Cecil Hutton,

Paul Jones, Florence B. Jones, Florence Jones, Ralph Jones,

Harold R. Kennell, Jr., Hazel Kessler, Donald Kessler, Glen

L. Kessler, Emory Knox, L. C. Lieb, sooees E. Miller, George

Miller, Irene Patrick, Earl V. Reeder, Earl Reeder, Charles

Reid, Verl Steele, James Vonderheide, Titus Vogel, Gene A.

Wiley, Joe & Richard Waldhoff Virgil, Wayne Walden, Carol

Young, Horace Doty, Edna Ferrell, Glenn I. Ferrell, Glenn

Ferrell, T. D. iy Jr., McClovia Hilligoss, Harry Leeds,

J. E. Neal, Jackie Owens, LaVerne Storm, Frank Warren,

James L. Fribley, Kenneth Carroll, Bill Dunaway, * KJ

Endsley, Aloysius Seitz, Dean Woods, Mrs. Ned Adams, J. T.

Allen, Wayne & Frances Allen, Frances M. Allen, Harley T.

Beyers, Wilfred C. Beyers, Jr., Wilfred J. Beyers, Wilhemina

Beyers, Raymond Bond, Carolyn Chamberlain, Joyce Cham-

berlain, Marion R. Chamberlain, Ralph Chamberlain, Ken-

neth Dickey, Cletus J. Eck, James Eck, William J. Elliott,

Frank Epley, Mary Epley, Myrna Flesch, Kenneth J. Flesch,

Kenneth Flesch, Andrew Flesch, Roger R. a R. Edman

Greenfield, R. E. Greenfield, Milton & Roselle Hahnenkamp,

Herman Hanneken, John Holliday, John T. Holliday, Anna J.

Kinney, Raymond C. Marley, Virgil J. Nold, Leona & Vergil

J. Nold, John Pollman, Robert M. Pollman, Agnes Rakers,

Elizabeth Raker, William Suey, Fredrick E. Suey, David

Suey, Clarence J. Schmitz, James and Betty Smith, Vincent

Sommer, Charles H. Temmen, Frank Temmen, James C. Tem-

men, James Temmen, Richard B. Temmen, Paul F. Temmen,

Paul Temmen, Claude Temmen, Claude B. Temmen, Claude B. &

Martha Temmen, John Van Uytven, Charles Vits, Joe Wolf,

Juanita Kuhn Wolf, Juanita K. Wolf, John S. Wood, John Wood,

Ina Adkins, Henry Bales, Emma Heals, John H. Bigler, Mrs.

(Footnote continued on following page)

vi

1 continued

Ross Boldt, Clarence Bushur, Donald Bushur, Gerald & Marla

Bushur, Louis Greuel, Leonard Greuel, Dorothy Gentry, A.

W. Hanfland, Hanfland Lumber Co., Albert Hoene, Anna

Hoene, Clarence Hoene, Clarence & Frances Hoene, Della

Hoene, James Hoene, John & Ruth Hoene, John Hoene, Ruth

Hoene, Richard Hoene, Joseph A. Hoene, Paul Kaufman,

Christine Koelsch foorge Konrad, Richard mony oh Christine

pisprugge, Tony Pike, mbrose Probst, seetee robst, James

Probst, Pa orbert Schum-

acher, Francis Sudkamp, Sudkamp Brothers, Louis J. Schutte,

John H. Schutte, Eileen Schutte, Bertha Schutte, Clara Schutte,

Dolores Steinwandtner, Albert Schumacher, B. J. Schum-

acher, John Schumacher, Sudkamp Brothers, Max Van Sant,

Charles Walk, Maurice Walk, Robert Walk, Edwin Warner,

Donald Wendt, Gertrude Wendt, Allie Wesselman, Robert

Benborg, Richard Zerrusen, Garold Brunken, William

Brunken, Grace Fribley, E. E. Killam, Ora M. Kerr, Leola M.

Potter, Bugenia Smith, Evelyn J. Weber, Evelyn J. & J.

Arthur Weber, Estate, Marion Waddington, Oscar Eades,

mond F. Foor, Raymond & Marjorie Foor, Rudolph

Alda Foor, Rudolph Foor, Jeffery L. & Mary K. Foor, Gre-

ry A. & Barbara 8. Foor, Kimble Foor, 0. R. Glick,

ugene Hunter, Harold Hunter, Noel Hunter, Louis Hal-

brook, Lloyd W. Koons, Farry A. Jones, Harold Hunter, Jun-

ior H. L. Lilly, Lemuel & Wreatha Lilly, Wreatha Goldie

Lilly, Mamie & Edmund Marxman, Edwin F. Mathias, Jr.,

. W. Miller, Mrs. Linnett Mize, Harold L. Prosser, George

L. Rueff, Eugene W. Schmitz, Lester J. Schmitz, Oliver Shal-

lenberger, Herman Smart, L. R. Sommer, James E. Vits,

Hattie Wakefield, Lyle and Audrey West, Dean Whitlatch,

Charles Blaase, Roscoe spacer by, id Buchanan, Ross Bu-

chanan, Marion R. Chamberlain, Ralph L. Chamberlain, Wes-

ley Chamberlain, Mabel Chamberlain, Ross Chamberlain,

Helen Elberson, Roy Fagg, Halden gs Leland Green,

Naomi Harrison, Chester D. Horn, Earl Horsman, Mason

Horsman, William & Goldie M. Horsman, george H. Romine,

L. R. Sommer, Carl A. Turner, Fred E. Turner, Harry

Turner, Harry G. Turner, C. L. Voudrie, V. M. Winter, Anne

Hoene, Clarence Hoene, Merlyn Richards, Robert Walk.

ul Probst, Harold Schumacher,

vii

TABLE OF CONTENTS

QUESTIONS PRESENTED .,......scscsssessssssereeeneees

LIST OF PARTIES | ccceccsvocsessscscsescscssscsscosevescscsseseves

OPINIONS BELOW .uwcsccssssscsssscscssssesssesesesssesssescees

STATEMENT OF JURISDICTIONAL

GROUNDS:

Nature Of The Proceeding ..........cccccsecseseeeees

Date Of Judgment And Appeal ..........s08

Statute Conferring Jurisdiction .............00008

CONSTITUTIONAL AND STATUTORY

FPO VY BESLUINGS | cvocccrenscensceconcnedecestenecnsosensoresebibevneneesoees

STATEMENT OF THE CASE ......ssssssssssesseeeeess

REASONS FOR EXERCISING PLENARY

JURISDICTION:

Illinois Violated Ap olan Taxpayers’ Four-

ights To Due Process

By Obliterating Their Vested Rights To Tax

Abatements And Refunds As Established By

State Courts Following This Court’s Forbes

Boat Line And Ettor Decisions ...........000000

teenth Amendment

II.

Illinois Violated Appellant ae Four-

ual Pro-

tection By Barring Them From Abatement

Or Refund Of Taxes Levied Upon sry,

ey

teenth Amendment Rights To

Increased Assessments Solely Because

Had Not Obtained Final Judgment Prior

10

viii

To An Arbitrary Statutory Date Although

a Situated Taxpayers Obtained Re-

MIND sna conicdloocansbeisomnubeseduataaneseanemsesioeaesdeduaioian

APPENDICES:

A—Opinion of the Supreme Court of Illinois ...

B—Order of the Supreme Court of Illinois

Demy iene TORO RTIAG iscccsccscocsccicesssccsseccsvceeeses

C— Opinion of the Appellate Court of IIlinvis,

SORE SHER: icicksasciscrnctaiscteocietecamanion

D—Opinion of the Appellate Court of Illinois,

Fak BOMMNOOE. crerensibincssobitdicvcigericiaescinteatinnice

E—Order of the Circuit Court of Lake

CO BIUIEE / crctstirncisceniinsctaininnassid onesies

F—Statutes Governing Illinois Assessment

PROORNTOD: cxsiicsesshicrtneldicestsdilesiiisasidtuirevetoniies

G—Notice of Appeal to the Supreme Court

OF CO United BURGeS sccsccccsscccescescsesccctecceseee

TABLE OF AUTHORITIES

Cases

Andrews v. Foxworthy, 72 Ill. 2d 13, 373 N.E. 2d

RITES LD TOU | ndsscossessdbsutabsliasiineadinahédenssdaviontiitimsaaealiice

Andrews v. Foxworthy, 43 Ill. App. 3d 438, 357

Pe edey OO OTB (Bt Dit; 1OFB) « ccccccccessecovescsscsesesses

Cipriano v. Personnel Appeal Board, 330 A.2d 71

CUPiid STOR, dncsobpniadecgntibibasianbakalebioies alae aise tieattende

Ettor v. City of Tacoma, 228 U.S. 148 (1913) .......

10

10, 14

ix

Forbes Pioneer Boat Line v. Board of Com-

missioners, 258 U.S. 338 (1922) 9,

Gibson v. Commonwealth, 415 A.2d 80 (Pa.

a ow spagnccncnonscsoocones s

Hall v. Northwest Outward Bound Schools, 572

I I INIT ss scncsnssccncetesccccsccccccsecsecnccece

Hartford Co. v. Harrison, 301 U.S. 459 (1987) oes 15,

Neubert v. Foxworthy, 71 Ill. App. 3d 438, 389

IEE BORE, REPT) | scccccccscccccccsccscecsccsscce 5,

People ex rel. Eitel v. Lindheimer, 371 Ill. 367,

21 N.E.2d 318 appeal d’m’d sub nom. Illinois

ex rel. Eitel v. Toman, 308 U.S. 505 (1939) ....... 10,

Schlesinger v. Wisconsin, 270 U.S. 230 (1926) ......

Stone v. McKay Plumbing, 30 So.2d 91 (Miss.

ric clicacnestinccsocsccccndtecne 10, 12, 18,

Trimble v. Gordon, 430 U.S. 762 (1977) ......00000. 15,

Washington National Arena Limited Partnership

v. Treasurer, Prince George’s County, 419 A.2d

SUN ET REEL. ‘sscocccocéscsscasctsecsovscccooosesece 9, 10, 12,

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

ria al ssccndenestestocesevsconssconscosconee

Welch v. Henry, 305 U.S. 134 (19388) ..............00

Constitutional Provisions

Constitution of the United States, Fourteenth

a ss cassbesconcooccodbocces

28 U.S.C. §1257(1) . + Senditieeneeeesentnene

28 U.S.C. $1ZB2(d) .......r.ccrcccocscersererercrecececercessscersees

X

Illinois Revised Statutes, Ch. 120 (1977):

pars. 524, 527 . 4, 5

Us a Goiienuasddsnh chasm sthacninscdibvcamuviebetahetieaeviaeses 4,5

I IEE: sccocchinctsnaavinosisiseabetumulciniaiebdkensin 5, 8

Si MIRA ctccstcciuchnlesicvsbaisbniiaiapsaceinbbabeinsincsecsoeuss 8, 11

Illinois Revised Statutes, Ch. 120 (1978):

para. 799.1 (P.A. 80-1471) ........... 2, 4, 5, 8, 16, 17

Court Rules

Iilinois Supreme Court Rule 308 ............ccccseesees 6

In THe

Supreme Court of the Anited States

Ocroser Term, 1981

RUSSELL G. SCHLENZ and NANCY A. SCHLENZ,

Lake County, Illinois Appellants,

and

GERTRUDE ANDERSON and 1300 CONSOLIDATED CASES,

Shulby County, Illinois Appellants,

v.

JOHN W. CASTLE, ROBERT JASPER, THE LAKE COUNTY,

ILLINOIS, BOARD OF REVIEW, SHELBY COUNTY, ILLI-

NOIS and the ILLINOIS PROPERTY TAX APPEAL BOARD,

Appellees.

On Appeal From The Supreme Court Of Illinois

JURISDICTIONAL STATEMENT

OPINIONS BELOW

The opinion of the Supreme Court of Illinois (App. A,

infra, pp. A-1 to A-14) is reported at 84 Ill. 2d 196,

417 N.E. 2d 1336 (1981). The court denied rehearing

without opinion. (App. B, infra, p. A-14). The court

reversed, in relevant part, the decisions of two Illinois

Appellate Courts. The Appellate Court opinions are

reported at 80 Ill. App. 3d 1131, 400 N.E. 2d 753 (2d

as

Dist. 1980) (App. C, infra, pp. A-15 to A-19) and 81 IIl.

App. 3d 327, 401 N.E. 2d 290 (5th Dist. 1980) (App. D,

infra, pp. A-20 to A-28).

The Second District opinion reversed in part an order

of the Circuit Court of Lake County denying plaintiffs’

motion for Summary Judgment (App. E, infra, at pp. A-

29 to A-30).

STATEMENT OF

JURISDICTIONAL GROUNDS

(i)

Nature Of The Proceeding

This is an appeal from a final judgment of the

Supreme Court of Illinois upholding Illinois Revised

Statutes, Ch. 120, par. 799.1 (1980) against challenges

that the statute is invalid because it is repugnant to the

Due Process and Equal Protection clauses of the

Fourteenth Amendment to the Constitution of the

United States. The Supreme Court, in upholding the

statute, reversed the decisions of two Illinois Appellate

Courts which had previously held the statute void, one

court holding that the statute stripped the present

appellants of vested rights.

(ii)

Date Of Judgment And Appeal

The Supreme Court of Illinois filed its opinion on

February 20, 1981, and denied a Petition for Rehearing

slinn

filed by the present appellants, Schlenz, on March 27,

1981.

Appellants filed their notice of appeal in the Supreme

Court of Illinois by mail on May 18, 1981. (App. E, infra

at pp. A-39 to A-40).

(iii)

Statute Conferring Jurisdiction

This court has jurisdiction of the present appeal

pursuant to 28 U.S.C. Sec. 1257(1).

CONSTITUTIONAL AND

STATUTORY PROVISIONS

CONSTITUTION OF THE UNITED STATES

AMENDMENT 14

Section 1. Citizens of the United States.

All a born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of the

United States and of the State wherein they reside. No

State shall make or enforce any law which shall abridge

the privileges or immunities of citizens of the United

States; nor shall any State deprive any person of life,

liberty, or property, without due process of law; nor

deny to any person within its jurisdiction the equal

protection of the laws.

sel eas

ILLINOIS REVISED STATUTES

Statute Challenged

Ch. 120, par. 799.1 (Revenue Act of 1939,

§ 318.1) (1978)

799.1. Validation Of Assessments Notwithstanding Un-

timely Publication

§ 318.1. In all cases where real or personal property

has been assessed for the purpose of taxation during the

year 1978 and all years prior thereto as provided in the

“Revenue Act of 1939”, filed May 17, 1939, as amended,!

except no timely publication of the assessment of real or

rsonal property, or both, was made as provided b

ection 108 of said “Revenue Act of 1939”, suc

assessments of real or ewe “igs gio de or both, are

hereby validated for all purposes of taxation notwith-

standing that the publication of the assessments of real

or personal property, or both, was not made within the

time provided by statute. The extension of taxes on such

real or personal property assessments, or both, are made

legal and valid for the pur of collection of taxes

notwithstanding that the publication of the assessments

of real or personal property, or both, was made within

the time provided by statute.

Added by P.A. 80-1471, § 1, eff. Nov. 30, 1978.

1 Paragraph 482 et seq. of this chapter.

2 Paragraph 584 of this chapter.

Publication Of Assessment Lists

Ch. 120, par. 584 (Revenue Act § 103)

(Appendix F, pp. A-31 to A-32).

Assessments

Ch. 120, paras. 524, 527 (Revenue Act §§ 43, 46)

(Appendix F, pp. A-32 to A-35).

a an

Property Tax Appeal Board

Ch. 120, paras. 592.1 to 592.5

(Revenue Act §§ 111.1 to 111.5)

(Appendix F, pp. A-35 to A-38).

STATEMENT Of THE CASE

On January 27, 1978, the Supreme Court of Illinois

filed its opinion in the unrelated case of Andrews v.

Foxworthy, 72 Ill. 2d 18, 373 N.E. 2d 1382, holding that

late publication of a non-quadrennial real property tax

assessment? voids an increase in that year’s assessments.

The court was affirming a prior Appellate Court

decision in 438 Ill. App. 3d 488, 357 N.E. 2d 678 (5th

Dist. 1976). The taxpayers in Andrews subsequently

received refunds. Neubert v. Foxworthy, 71 Ill. App. 3d

438, 389 N.E. 2d 898 (5th Dist. 1979).

The Illinois legislature responded to Foxworthy by

enacting Public Act 80-1471 which added III. Rev. Stat.,

Ch. 120, par. 799.1 to the Illinois Revenue Act of 1989,

effective November 30, 1978. The paragraph purported

to validate retrospectively assessments made in 1978 and

years prior thereto despite late publication of the

assessment.

® Real property in Illinois is assessed quadrennially but

assessments are sometimes increased in non-quadrennial

iott) See Ill. Rev. Stat., Ch. 120, paras. 524, 527, 584

nities:

The constitutionality of Ch. 120, par. 799.1 is the

subject matter of the present litigation.

A. Lake County Taxpayers

Russel and Nancy Schlenz filed this action in the

Circuit Court of Lake County in March, 1978, naming

among the defendants Rebert Jasper, Supervisor of

Lake County Assessments and The Lake County Board

of Review. Plaintiffs alleged, inter alia, that Lake

County assessing officials had failed to publish the 1977

tax year assessment lists (except in one township) until

after December 15, 1977, the final publication date

mandated by Ill. Rev. Stat., Ch. 120, par. 584 (1977).

Plaintiffs subsequently filed a Motion for partial sum-

mary judgment to abate the 1977 real property assess-

ment increases on the grounds that the increases were

void under the authority of Andrews v. Foxworthy.

On December 19, 1978, the trial court judge denied

Schlenz’s motion for summary judgment. He also

certified to the Appellate Court pursuant to Illinois

Supreme Court Rule 308 the following question,’ inter

alia:

“Whether or not Senate Bill 1790, 80 General

Assembly, constitutionally validates all 1977 Lake

County assessments tardily published in a new

— ah 799.1 Ch. 120, Ill. Rev. Stat., 1977, as

amen

(See App. E, at A-30).

The Appellate Court for the Second District reversed

in part and remanded, saying:

8 The Rule provides for interlocutory anes of certified

questions. It is analogous to 28 U.S.C. Sec. 1292(b).

= =

“In Andrews v. Foxworthy (1978), 71 Ill. 2d 13,

373 N.E.2d 1332, the supreme court analyzed and

interpreted the notice provisions of section 103 and

held that improper publication renders a non-

uadrennial reassessment void; the court therein

early held that the statutory notice prescribed was

mandatory. Consequently, in this case, the applica-

tion of Andrews renders the reassessments here

void because of noncompliance with the publication

(notice) provision.

In response to this contention, defendant points

out that subsequent to the Andrews decision, the

legislature enacted Public Act 80-1471, (Ill. Rev.

Stat., 1978 Supp., ch. 120, par. 799.1) which became

effective on November 30, 1978, purporting to

specifically validate reassessments of real property

made without proper notice in all nonquadrennial

years prior to and including 1978. Plaintiffs and

amici curiae (Commonwealth Edison and certain

parties litigating a similar issue in DuPage County)

attack the validity of Public Act 80-1471 on

the following basis: (1) it attempts to cure a void

proceeding; (2) it violates the unformity of taxation

provision in the Illinois Constitution; (3) it violates

equal protection; (4) it violates due process; (5) it

violates the “one subject” provision of the Illinois

Constitution; and (6) it offends the concept of

separation of powers. Only consideration of basis (1)

and (6) above is necessary for our decision as we

find Public Act 80-1471 unconstitutional.”

80 Ill. App. 3d 1131, 1134.

Amicus Commonwealth Edison had raised State and

Federal Equal Protection questions and the DuPage

County Amici had raised State and Federal Due Process

and Equal Protection clauses before the Appellate

Court.

The Supreme Court of Illinois granted the Lake

County defendants’ Petition for Leave to Appeal.

— oe

B. Shelby County Taxpayers

On August 17, 1978, the Illinois Property Tax Appeal

Board,‘ following Andrews, invalidated approximately

1300 assessment increases made in 1976 in a case which

the protests had been consolidated before the Board for

hearing. The Board found that the County Supervisor of

Assessments had failed to make timely publication of

the increases.

The County sought Administrative Review® in the

Circuit Court of Shelby County which reversed on the

basis of the new statute, Ill. Rev. Stat. Ch. 120, par.

799.1, which had become effective subsequent to the

Board’s order.

The Property Tax Appeal Board, represented by the

Attorney General of Illinois, appealed on behalf of itself

and the taxpayers. The Appellate Court for the Fifth

District reversed, one Justice dissenting, holding that

the legislative act “violates the principle of separation of

powers embodied in . . . the Illinois Constitution.” The

majority then furtner held:

In Andrews the court made it clear that the fail-

ure to comply with a mandatory requirement of

publication is not merely the neglect of some legal

formality. Thus, we conclude that Andrews’ con-

struction of the publication requirement as designed

for the benefit and protection of the taxpayer—

giving him an opportunity to ascertain the correct-

ness of his assessment as compared with that of

other taxpayers—gives the taxpayer in the case at

bar a legal exemption from the invalid assessment

increases in a nonquadrennial year. Such is more

4 An Administrative Appellate Board established pursuant

to Ill. Rev. Stat., Ch. 120, paras. 592.1 et seg. (1977).

5 Pursuant to Ill. Rev. Stat., Ch. 120, para. 592.4 (1977).

allies

than a mere expectation based upon an anticipated

continuance of the existing law, as contended by

appellee, but amounts to a vested right arising

from a final decision of the Illinois Supreme Court.

We further hold that the Attorney General has

standing to raise the vested rights theory in this

appeal. People ex rel. Scott v. Illinois Racing Board

(1973), 54 Ill. 2d 569, 301 N.E.2d 285; Environ-

mental Protection Agency v. Pollution Control Board

(1977), 69 Ill. 2d 394, 372 N.E.2d 50.

81 Ill. App. 3d 327, 331.

The Supreme Court of Illinois granted Shelby Coun-

ty’s Petition for Leave to Appeal, and consolidated the

Lake County and Shelby County appeals.

In the proceedings in the Supreme Court of Illinois,

the appellees and amici raised federal Due Process and

Equal Protection questions in defending the Appellate

Court decisions. The Supreme Court rejected the claims

that Public Act 80-1471 violated Due Process under the

Fourteenth Amendment by divesting the appellee tax-

payers of vested rights. The court declined to consider

the Equal Protection issues.

The Schlenz’s sought a rehearing on the basis of

Washington National Arena Limited Partnership v.

Treasurer, Prince George’s County, 410 A. 2d 1060 (Md.

1980). They contended that Washington National which

relied upon this court’s decision in Forbes Pioneer Boat

Line v. Board of Commissioners, 258 U.S. 338 (1922),

showed that the Illinois court should have held that

Public Act 80-1471 was offensive to federal Due Process

under the vested rights theory.

The Supreme Court of Illinois summarily denied a re-

hearing.

po

THE FEDERAL QUESTIONS PRESENTED ARE

SO SUBSTANTIAL AS TO REQUIRE PLENARY

CONSIDERATION FOR THEIR RESOLUTION

I.

ILLINOIS VIOLATED APPELLANT TAXPAYERS’

FOURTEENTH AMENDMENT RIGHTS TO DUE PRO-

CESS BY OBLITERATING THEIR VESTED RIGHTS

TO TAX ABATEMENTS AND REFUNDS AS ESTAB-

LISHED BY STATE COURTS FOLLOWING THIS

ae FORBES BOAT LINE AND ETTOR DECI-

This court should grant plenary review because the

decision of the Supreme Court of Illinois is counter to a

substantial line of decisions by this court and several

state courts holding that the Due Process Clause pro-

tects the right to obtain a refund of a wrongfully levied

tax from abrogation by a legislature. That right and

similar rights have been deemed vested and protected

from legislative abrogation in Forbes Pioneer Boat Line

v. Board of Commissioners, 258 U.S. 338, 339-340 (1922),

Ettor v. City of Tacoma, 228 U.S. 148, 155-156 (1913),

Washington National Arena Limited Partnership v.

Treasurer, Prince George’s County, 410 A. 2d 1060,

1064-1070 (Md. 1980) cert. denied __ U.S. __, 66 L. Ed.

2d 40 (1980), and Stone v. McKay Plumbing, 30 So. 2d

91, 94-95 (Miss. 1974); see also Gibson v. Commonwealth,

415 A. 2d 80 (Pa. 1980) and Cipriano v. Personnel

Appeal Board, 330 A. 2d 71 (R.I. 1975); and see also

Justice Linde’s historical summary relating to retro-

spective legislation in Hall v. Northwest Outward Bound

Schools, 572 P.2d 1007, 1009-1011 (Ore. 1977); but see

Welch v. Henry, 305 U.S. 134, 146-149 (1938), and People

ex rel. Eitei v. Lindheimer, 371 Ill. 367, 21 N.E. 2d 318,

onl Reais

appeal d’m’d sub nom. Illinois ex rel. Eitel v. Toman, 308

U.S. 505 (1939).

In January 1978, the Supreme Court of Illinois had

affirmed in Andrews on state grounds that the late

publication of a nonquadrennial year assessment voids

any assessment increases made in that year. State and

federal due process were neither raised nor considered.

In August, 1978, the Illinois Property Tax Appeal Board

voided the 1976 assessment increases in Shelby County,

relying upon Andrews. The Shelby County taxpayers

were entitled to immediate refunds under Illinois Re-

vised Statutes, Ch. 120, para. 592.4 (1978). The Appel-

late Court held at 81 Ill. App. 3d 327, 331 that the

taxpayers’ rights to refunds had vested, both before and

after the Tax Appeal Board’s decision.

The Schlenz’s filed their action in Lake County in

March, 1978 and sought abatement of taxes based upon

assessment increases made in 1977. It was uncontested

in the courts below that the Lake County assessment

officials, except in one subordinate jurisdiction, had

failed to make timely publication of the 1977 assess-

ments.

The challenged statute, Public Act 80-1471, became

effective on November 30, 1978. It purported to validate

retrospectively, but not prospectively, non-quadrennial

assessments for which timely notice had not been given.

The Appellate Courts struck the statute on state

constitutional grounds, holding that the legislative over-

ruling of Andrews was an improper assumption of judi-

cial power.

The Supreme Court of Illinois, reversing, disposed of

the Schlenz’s and the Appellate Court’s reliance upon

the Fourteenth Amendment Due Process protection of

vested rights, saying:

—12—

“A taxpayer has no vested right in the continued

existence of a taxing statute”.

Forbes, Ettor, Washington National Arena, and McKay

Plumbing, as applied to the present appellants, are

unmistakably contrary to the Illinois Court’s opinion.

These cases hold that a legislature cannot consistently

with the Fourteenth Amendment Due Process retro-

spectively cure a tax official’s action that, at the time it

was made, was clearly violative of the legislative intent.

As Judge Eldridge of the Court of Appeals of Maryland

wrote:

“In Forbes, the defect in authority was in no sense

‘technical’ but related to the legislative policy deter-

mination of what, if anything, should be charged by

the government. The fact that the Legislature later

expressed a different intent, and by ‘curative act’

language attempted to indicate that its new position

had been the policy all along, did not convert the

ror mea in policy to a ratification of a ‘technical’

efect.

Washington National Arena at 1067.

Washington National Arena, specifically brought to

the Supreme Court of Illinois’ attention in Schlenz’s

Petition For Rehearing, is factually close to the pres-

ent case. Certain Maryland taxpayers obtained a court

ordered refund when the Maryland Tax Court deter-

mined that Prince George’s County was levying recorda-

tion taxes in excess of the rate permitted by the legisla-

ture. The legislature, in 1976, purportedly “ratified,

confirmed and validated” the prior overcharges as stated

in the Opinion at 1072. The Maryland appellants were

refused refunds for overcharges prior to 1976 by the

Tax Court because of the curative act. The Court of

Appeals held the statute violative of Fourteenth Amend-

ment Due Process, relying upon this court’s opinion in

Forbes.

Lei e

McKay Plumbing is also closely in point. Appellee

had received a lower court judgment entitling it to a

refund of sales taxes illegally levied upon services. See

the prior opinion of the same court at 26 So. 2d 349

(Miss. 1946). While the case was on appeal the legisla-

ture reduced the limitation time from six years to three

and imposed additional conditions for a refund. The

Supreme Court of Mississippi affirmed the lower court

judgment, holding that the lower court judgment was a

vested right that could not, under the Due Process

Clause, be obliterated by the legislature.

The Mississippi court relied upon this court’s holding

in Ettor, where the legislature had “attempted to take

away from Ettor the right to recover damage he had

previously sustained.” 30 So. 2d 91, 94. The prevailing

opinion in McKay Plumbing went on to say:

“The Court, in reversing both the trial court and

the Supreme Court of the State of Wasi:ington,

speaking through Mr. Justice Lurton, used this lan-

guage:

“The necessary effect of the repealing act, as

construed and applied by the court below, was to

deprive the plaintiffs in error of any remedy to

enforce the fixed liability of the city to make com-

pensation. This was to deprive the plaintiffs in

error of a right which had vested before the repeal-

ing act,—a right which was in every sense a prop-

erty right. Nothing remained to be done to com-

plete the plaintiffs’ right to compensation except

the ascertainment of the amount of damage to their

property. The right of the plaintiffs in error was

fixed by the law in force when their property was

damaged for public purposes, and the right so

vested cannot be defeated by subsequent legisla-

tion.” That case goes beyond the facts of the case at

bar. There, the act was passed before the judgment

was obtained. Here, the judgment was obtained

ant jen

before the act was passed. We limit our holding to

the facts of this case.”

Id.

The Shelby County taxpayers fit snugly into the

McKay Plumbing fact pattern. They, like the Mississippi

taxpayer, had received a judgment from a lower tribu-

nal, the Illinois Property Tax Appeal Board. That judg-

ment was correct at the time it was made and “can not

be defeated by subsequent legislation.” Ettor at 156,

cited in McKay Plumbing at 30 So. 2d 91, 94.

All of the taxpayers before this court also fit within

the fact pattern of Washington National Arena where

the court said, at 1069:

“Turning to the case at bar, we do not believe it can

be meaningfully distinguished from Forbes ..... Y

The Illinois legislature had limited non-quadrennial

assessment increases to years in which timely notice by

publication is made; the Maryland legislature had limited

the recordation tax rate in certain counties to $1.10.

Each limitation had been held to be mandatory by the

respective state’s highest court. Taxpayers in each state

were then entitled to refunds. Each legislature then

sought to “ratify” by “curative” legislation, the unlawful

acts of the county officials. “Consequently, the retro-

active application of [the curative legislation] . . . would

impair property rights in violation of the United States

Constitution ....” Washington National Arena at 1070.

This court should therefore exercise its plenary juris-

diction holding that Forbes, Ettor, Washington National

Arena, and McKay Plumbing correctly construe the

Fourteenth Amendment as applied to the present fact

pattern, and reverse.

a

ILLINOIS VIOLATED APPELLANT TAXPAYERS’

FOURTEENTH AMENDMENT RIGHTS TO EQUAL

PROTECTION BY BARRING THEM FROM ABATE-

MENT OR REFUND OF TAXES LEVIED UPON ILLE-

GALLY INCREASED ASSESSMENTS SOLELY BE-

CAUSE THEY HAD NOT OBTAINED FINAL JUDG-

MENT PRIOR TO AN ARBITRARY STATUTORY

DATE ALTHOUGH SIMILARLY SITUATED TAX-

PAYERS OBTAINED FUNDS.

This court should also grant plenary review because

as DuPage County amici pointed out in the Appellate

Court, 2d District, and in the Supreme Court of Illinois,

the curative act as applied was repugnant to the Equal

Protection Clause of the Fourteenth Amendment. The

Appellate Court reversed on state grounds without

reaching the federal issues. The Supreme Court of IIli-

nois reversed the Appellate Court, and declined to con-

sider the Equal Protection issue. That court should have

found the statute impermissibly arbitrary in its ap-

plication because it set up a classification devoid of

any reasonable basis and therefore violative of the

Equal Protection Clause as construed in Hartford Co. v.

Harrison, 301 U.S. 459, 462 (1987), Schlesinger v. Wis-

consin, 270 U.S. 230, 240 (1926), and Weissinger v. Bos-

well, 330 F. Supp. 615, 621-622 (M.D. Ala. 1971) (three

judge court); and see Trimble v. Gordon, 430 U.S. 762,

766-767 (1977).

Lake County, Shelby County, Vermilion County (the

county involved in Andrews), and possibly other tax-

payers all became eligible for tax refunds when Andrews

became final in early 1978. In each case the county tax

assessing officials had made non-quadrennial assess-

ment increases without giving timely notice by publica-

tion.

any

The Vermilion County taxpayers received their refunds

“in full”, as stated in the court’s opinion in Neubert v.

Foxworthy, 71 Ill. App. 3d 438, 438, (decided after the

present case was on appeal).

The Lake and Shelby County taxpayers sought their

relief, respectively, in the Circuit Court of Lake County

and before the Property Tax Appeal Board. The Shelby

County taxpayers obtained judgment from the Board.

Then, on November 30, 1978, Public Act 80-1471 be-

came law and purportedly deprived taxpayers of any

remedy for the refusal of taxing authorities to follow the

mandates of the Revenue Act.

The Lake and Shelby County taxpayers were barred

from any remedy by the new act. Four hundred and

eight Vermilion County taxpayers, indistinguishably sit-

uated, had received their relief and were unaffected.

See 71 Ill. 2d 13, 16.

Public Act 80-1471 drew an arbitrary boundary line

creating two groups of taxpayers among those who had

suffered assessment increases without timely publica-

tion prior to 1978. The boundary line separated those

who had received final judgments for abatements or

refunds prior to November 30, 1978 and those who had

not.

The Shelby County taxpayers lost their refunds solely

because the county chose to appeal the Property Tax

Appeal Board’s decision. Shelby County was thereby

able to defer finality of judgment until legislative rescue

arrived.

Public Act 80-1471 is repugnant to appellants’ Equal

Protection right to be free of arbitrary legislative classi-

fications and arbitrary differences in taxation. “This

Court requires, at a minimum, that a statutory classifi-

a

cation bear some rational relationship to a legitimate

state purpose.” T’rimble at 766. It is now settled law that

a “‘wholly arbitrary’. . . . classification would be in plain

conflict with the Fourteenth Amendment.” Schlesinger

at 240 (gifts made within six years of death conclusively

presumed made in contemplation of death). An attempt-

ed classification must rest upon a “difference which

bears a reasonable and just relation to the act to which

the classification is proposed”. Hartford Co. at 462 (resi-

dent agent license unavailable to salaried non-mutual

insurance company employee). “[{D]ifferences in taxation

resulting from the failure of state officers to properly

administer the state’s tax laws will offend the Due Pro-

cess and Equal Protection clauses of the Fourteenth

Amendment.” Weissinger at 622.

The Lake, Shelby and Vermilion County taxpayers

were all entitled to tax refunds by the Supreme Court of

Illinois’ Andrews decision. Public Act 80-1471 effec-

tively classified the Vermilion County taxpayers differ-

ently from the Lake and Shelby County taxpayers. The

purpose of the classification was simply to overrule an

unpleasant court decision protecting taxpayers from

unlawful acts of their assessment officials. The classi-

fication was therefore wholly arbitrary as that term is

understood in Equal Protection analysis.

The legislative classification imposed by Public Act

80-1471 arbitrarily deprived appellants of property

rights by depriving them of a remedy to which they

were entitled under Illinois tax statutes.

This court should therefore exercise its plenary juris-

diction, hold that the Public Act 80-1471 offends the

Equal Protection clause, and reverse the judgment of

the Supreme Court of Illinois.

itn

CONCLUSION

This court should find that the present appeal pre-

sents substantial federal questions because the Supreme

Court of Illinois decision is counter to the weight of sub-

stantial existing constitutional authority. The opinion of

the court below in fact rested upon no prior opinion of

this court in adjudicating appellants federal constitu-

tional claims. This court should therefore exercise its

plenary jurisdiction and reverse in order to reaffirm the

Federal Constitutional limitations upon a State’s power

to administer its tax laws.

Respectfully submitted,

PAUL E. HAMER

Attorney of Record

1356 Shermer Road

Northbrook, Illinois 60062

(312) 272-1800

JACK L. URETSKY

135 S. LaSalle Street

Chicago, Illinois 60603

(312) 372-7842

Attorneys for Appellants

A-1l

APPENDIX A

Opinion of the Supreme Court of Illinois

(Filed February 20, 1981)

Docket Nos. 53189, 53286 cons.—Agertua 44—

September 1980.

RUSSELL G. SCHLENZ et al, Appellees, v. JOHN W.

CASTLE, Director of Local Government Affairs,

et al (Robert Jasper, Supervisor of Assessments,

et al, Appellants)—THE COUNTY OF SHELBY,

Appellant, v. THE PROPERTY TAX APPEAL

BOARD, Appellee.

MR. CHIEF JUSTICE GOLDENHERSH delivered the

opinion of the court:

These consolidated cases present the question of the

validity of section 318.1 of the Revenue Act of 1939

(Ill. Rev. Stat. 1979, ch. 120, par. 799.1). In cause No.

53189 plaintiffs filed an application for leave to appeal

from the order of the circuit court of Lake County entered

pursuant to Rule 308(a) (73 Ill. 2d R. 308(a)). The appel-

late court allowed leave to appeal, reversed the order in

part, affirmed it in part (80 Ill. App. 3d 1131), and we

allowed plaintiffs’ petition for leave to appeal. In cause

No. 53286 the defendant Property Tax Appeal Board

appealed from the judgment of the circuit court of Shelby

County entered in the action brought by the County of

Shelby for administrative review of the Property Tax

Appeal Board’s decision holding certain assessments

invalid. The appellate court reversed (81 Ill. App. 3d 327),

and we allowed the County’s petition for leave to appeal.

The causes were ordered consolidated for argument and

opinion.

A-2

Cause No. 53189 is another in a series of actions

involving the alleged failure of the appropriate officials

to equalize real property assessments in this State. See,

e.g., Hamer v. Kirk (1978), 57 Ill. App. 3d 335; Hamer

v. Kirk (1976), 63 Il. 2d 211; Hamer v. Kirk (1976),

64 Ill. 2d 434; Hamer v. Lehnhausen (1975), 60 Ill. 2d

400; Hamer v. Mahin (1973), 13 Ill. App. 3d 51; Hamer

v. Mahin (1970), 47 Ill. 2d 252; People ex rel Hamer v.

Jones (1968), 39 Ill. 2d 360.

In their two-count first amended complaint filed in

the circuit court of Lake County, plaintiffs Russell G.

Schlenz and Nancy A. Schlenz named as defendants the

Director of the Department of Local Government Affairs,

the supervisor of assessments of Lake County, the Lake

County board of review and certain Lake County township

assessors. In count I plaintiffs, purporting to act as repre-

sentatives of a class, sought, inter alia, an order declaring

that a specified procedure utilizing “sales ratio studies” for

assessment and equalization of realty be made applicable

statewide for 1977 and subsequent tax years. Plaintiffs

also sought an order declaring that the defendants must

comply with applicable provisions of the Revenue Act of

1939 (Ill. Rev. Stat. 1979, ch. 120, par. 482 et seq.) for

1977 and subsequent tax years. In count LI plaintiffs

sought injunctive relief to enforce the declarations prayed

in count I of the complaint.

A “Supplemental Complaint’’ was filed “‘attacking the

method of distributing state grants-in-aid” (see Hamer v.

Dixon (1978), 61 Ill. App. 3d 30), and the first amended

complaint was further amended seeking to challenge the

tax-exempt status of certain prorerty in Lake County.

Citing Andrews v. Foxworthy (1978), 71 lll. 2d 13,

plaintiffs filed a motion for partial summary judgment

alleging that “there is no genuine issue as to any material

fact relative to the failure of the defendants *** to publish

A-3

the real estate assessment lists for the 1977 tax year in

Lake County until after December 15, 1977, except in

Shields Township.” Plaintiffs also moved for a determina-

tion of their class as consisting of “‘all persons or entities

owning improved real property used for single family resi-

dential purposes subject to taxation in the State of Illinois

for the 1977 tax year and subsequent tax years.”” Defend-

ants filed a motion to deny, and an “objection to the

motion” for determination of the class. The circuit court

denied plaintiffs’ motion for partial summary judgment

and allowed defendants’ motion and objection opposing

the class certification. Pursuant to Supreme Court Rule

$08(a) (73 Ill. 2d R. 308(a)) the circuit court certified the

issues of the propriety of a class action and the consti-

tutionality of the statute.

The appellate court affirmed that portion of the order

which denied class certification, held that section 318.1

was unconstitutional as an attempt to validate a void tax

and as violative of the principle of the separation of

powers (see Ill. Const. 1970, art. II, sec. 1), and remanded

the cause for a determination of the existence of a sub-

class. 80 Ill. App. 3d 1131, 1133-35; see Ill. Rev. Stat.

1979, ch. 110, par. 57.3(b).

In cause No. 53286, the record shows that appropriate

officials in Shelby County began a complete reassessment

of real estate for tax purposes for the 1976 nonquadren-

nial tax year. Although the statute provided that it must

be published by July 10, 1976, the supervisor of assess-

ments did not publish the list of changes of assessment

until December 7, 1976. In addition to the publication,

individual notices of assessment changes were mailed.

Thereafter, over 3,500 complaints were filed by taxpayers

with the Shelby County board of review challenging the

increased assessments. After the board of review entered

its decisions in the cases, many of the taxpayers appealed

A-4

to the Property Tax Appeal Board (see Ill. Rev. Stat. 1975,

ch. 120, par. 592.1), which, after hearing, entered its order

holding the assessments invalid. On administrative review

the circuit court reversed the findings of the Board, noting

in part that section 318.1 was “‘a validating act making

legal and effective all assessments *** irrespective of a

failure to make a timely publication.” On appeal, the

appellate court reversed, finding “that the purporting

validating statute at issue here likewise seeks to overrule

retroactively the decision of the Supreme Court in

Andrews” and that “Once the court had explicated the

mandaxory nature of timely publication in Andrews, the

explication became, in 2ffect, a part of the statute until

the General Assembly changed it.’’ County of Shelby v.

Illinois Property Tax Appeal Board (1980), 81 Ill. App. 3d

$27, 329-30; see: Roth v. Yackley (1979), 77 Ill. 2d 423.

We consider first the question whether in cause No.

53189 the appellate court erred in affirming the circuit

court’s denial of certification of a class. The plaintiffs con-

tend that because of the failure to equalize property

according to law “the [Director of Local Government

Affairs] had to place a higher equalization factor on [Lake

County] in order to bring the aggregate assessments up to

a statutory level.” As a result, they argue, the allegations

concerming inter-county equalization were sufficient to

“maintain the action as a class action on a state-wide

basis.” Furthermore, plaintiffs contend that this case is

not a “friendly or collusive suit,” that they do not “‘have

interests which are antagonistic to the remainder oi the

class,” and that even assuming so, “the problem can be

resolved by the creation of sub-classes with respect to a

particular issue.’’ In response, it is contended by the

defendants supervisor of assessments and board of review

that, since this case involves a “total inability” to proceed

as a class action, the appellate court’s order of remand-

ment “appears to serve no purpose.”

A-5

Section 57,2 of the Civil Practice Act provides, in part,

that a class action may be maintained if the court finds

that there are questions of law or fact common to the class

which predominate over those affecting only individual

members, that the representative parties will fairly and

adequately protect the interest of the class, and that the

class action is an appropriate method for the fair and

efficient adjudication of the controversy. (Ill. Rev. Stat.

1979, ch. 110, par. 57.2.) This court has held that the

question whether to certify a purported class is a matter

within the sound discretion of the circuit court, and will

be reversed only upon a showing of a clear abuse of dis-

cretion or the application of impermissible legal criteria.

McCabe v. Burgess (1979), 75 Ill. 2d 457, 464; see also

Califano v. Yamasaki (1979), 442 U.S. 682, 702-03, 61

L. Ed. 2d 176, 193, 99 S. Ct. 2545, 2558.

In denying class certification, the circuit court found

that except for the fact that the alleged class was

numerous the requirements of section 57.2 were lacking.

The court noted in ruling on the question whether the

plaintiffs were adequate class representatives that plaintiff

Nancy Schlenz had at one time been Mr. Hamer’s (plain-

tiffs’ counsel) secretary; ‘‘that she has not read the plead-

ings filed in this case’’; “that also she has very little know-

ledge about the tax assessment and collection procedures

in the State of Illinois”; and that “‘it’s apparent that the

real party in interest, the real instigator of the lawsuit, is

Mr. Hamer, and that the naming of Mr. and Mrs. Schlenz as

class representatives is just a mode of convenience and a

bit of subterfuge.” See Hamer v. Board of Education

(1977), 52 Il. App. 3d 531, 537.

While Hamer is not a named plaintiff in this case, the

record shows the type of relationship between the class

representatives and the attorney which calls into question

the adequacy of plaintiffs’ representation of the purported

A-6

class. Class certification has frequently been denied

because of the personal or business relationships between

named class representatives and nonplaintiff class

attorneys. (Barliant v. Follett Corp. (1978), 74 Ill. 2d

226; Frank v. Teachers Insurance & Annuity Association

of America (1978), 71 Ill. 2d 583; Susman v. Lincoln

American Corp. (7th Cir. 1977), 561 F.2d 86; Charal v.

Andes (E.D. Pa. 1979), 81 F.R.D. 99; compare Sweet v.

Bermingham (S.D.N.Y. 1975), 65 F.R.D. 551.) We con-

clude that the circuit court did not abuse its discretion in

determining that the plaintiffs were inadequate class

representatives in this case and in refusing to certify the

purported class.

We find no error in the decision of the appellate court

to remand the cause for a determination of whether a sub-

class may be found to exist. The record shows that only

incidental reference was made and consideration given

by the parties and the circuit court to the question of the

existence of a subclass. (See Ill. Rev. Stat. 1979, ch. 110,

par. 57.3(b); Steinberg v. Chicago Medical School (1977),

69 Ill. 2d 320, 342.) We have also considered the other

contentions of the parties with respect to the issue of

class certification and find them to be without merit.

We consider next the question of the validity of

section 318.1 of the Revenue Act of 1939. (IIL Rev. Stat.

1979, ch. 120, par. 799.1.) Cause No. 53286 involves the

validity of 1976 assessments in Shelby County and cause

No. 53189 involves the validity of assessments in Lake

County for the 1977 tax year.

Section 103 of the Revenue Act of 1939, as amended

and effective for the tax years 1976 and 1977, provided

that the supervisor of assessments “shall publish *** a

list of real estate for which assessments have been added

or changed since the last preceding assessment, together

with the amounts of the assessments on such real estate.”

A-7

(ll. Rev. Stat. 1975, ch. 120, par. 584.) The publication

in cause No. 53286 was required on or before July 10,

1976, while publication in cause No. 53189 was required

on or before December 15, 1977. (Ill. Rev. Stat. 1975,

ch. 120, par. 58+.) It is undisputed that in both instances

the publication was later than the statutory dates. In

Andrews v. Foxworthy (1978), 71 Ill. 2d 13, we held that

the publication dates in section 103 of the Revenue Act

were mandatory and that failure of timely publication is

not an “informality or clerical error’’ within the savings

provisions of section 235 of the Revenue Act of 1939,

as amended. (Ill. Rev. Stat. 1977, ch. 120, par. 716; 71 Il.

2d 13, 23-24.) Thereafter, and before either circuit court

judgment was entered in these cases, the General Assembly

enacted section 318.1, providing:

“In all cases where real or personal property has been

assessed for the purpose of taxation during the year 1978

and all years prior thereto as provided in the ‘Revenue Act

of 1939’, filed May 17, 1939, as amended, except no timely

publication of the assessment of real or personal property,

or both, was made as provided by Section 103 of said

‘Revenue Act of 1939’, such assessments of real or per-

sonal property, or both, are hereby validated for all pur-

poses of taxation notwithstanding that the publication of

the assessments of real or personal property, or both, was

not made within the time provided by statute. The ex-

tension of taxes on such real or personal property assess-

ments, or both, are made legal and valid for the purposes of

collection of taxes notwithstanding that the publication of

the assessments of real or personal property, or both, was

not made within the time provided by statute.” Ill. Rev.

Stat. 1979, ch. 120, par. 799.1.

Relying principally upon People v. Holmstrom (1956),

8 Ill. 2d 401, the appellants contend that the appellate

court erred in holding the statute unconstitutional. The

appellees contend that the statute violates the principle of

separation of powers. -Almici curiae contend that the

A-8

statute is void because it deprives the objectors of equal

protection of the laws, deprives them of property without

due process of law, and that the Act in which section

$18.1 was contained (Public Act 80—1471) is void because

“it is not confined to one subject.”

The holdings of the appellate court that section 318.1

violates the principle of separation of powers are based on

that court’s interpretation of our opinion in Roth v.

Yackley (1979), 77 Ill. 2d 423. Roth involved an amend-

ment to section 10 of the Cannabis Control Act (IIl. Rev.

Stat., 1978 Supp., ch. 56%, par. 710) and section 410 of

the Illinois Controlied Substances Act. (Ill. Rev. Stat.,

1978 Supp., ch. 56%, par. 1410, effective June 30, 1978.)

This court had held in People v. DuMontelle (1978), 71

Ill. 2d 157, that fines and costs were not reasonable terms

and conditions of probation as that term was used in

section 10 of the Cannabis Control Act, and that the

imposition of fines and costs was therefore not authorized

by statute. The amendments authorized the imposition of

fines and costs as conditions of probation and further

provided:

“The General Assembly declares that the changes

made by this amendatory Act *** are declaratory of

existing law and are therefore applicable in relation to

events which occurred before the effective date of this

amendatory Act. The ‘terms and conditions’ of probation

as specified in this amendatory Act are declared to be

reasonable terms and conditions for probation under the

affected Sections as those Sections were in effect before

the effective date of this armendatory Act.”” Pub. Act

80-1202, sec. 3, eff. June 30, 1978.

The statute involved in Roth is clearly distinguishable

from that here involved. The General Assembly did not

amend section 103 of the Revenue Act, and section 318.1

does not attempt to attribute to section 103 at the time of

our opinion in Andrews, a meaning different from that

declared in that opinion.

A-9

This court has previously considered the question of

separation of powers in circumstances similar to those

here. In Worley v. Idleman (1918), 285 Ill. 214, an

election was held to authorize a tax levy and the issuance

of bonds for road construction in Douglas County. The

election was ruled invalid because of defects in the ballot.

(People ex rel Duncan v. Worley (1913), 260 Ill. 536.)

Subsequently, legislation was enacted providing a method

for ratification of the bonds. The ratification was com-

pleted and certain taxpayers who had been defendants in

the prior case sought to enjoin a planned exchange of

bonds. In affirming the validity of the curative statute the

court noted:

“The objection most frequently urged in cases

similar to the one at bar, and one which appellants

in effect here make, is, that by the curative act the

legislature has invaded the constitutional province

of the judiciary and has attempted to set aside the

force and effect of the judgments and decrees of

the courts ***, The judgment of this court and the

decrees of the circuit court upon which appellants

rely were not final adjudications that the bonds

*** did not constitute a legal indebtedness *** for

the reason that the bondholders were not parties to

any of the suits in which the question of the

validity of those bonds arose. Until an adjudication

had been made in a suit between the town and the

bondholders declaring that the bonds were not

valid, the legislature had the right and power, as

between the town and the bondholders, to validate

those bonds ***.” 285 II. 214, 220-21.

A similar conclusion was reached in Steger v. Traveling

Men’s Building & Loan Association (1904), 208 IlL 236,

where this court rejected a separation of powers challenge

to a validating statute authorizing acknowledgments of

A-10

trust deeds which were invalid when executed. The court

said: “That is not an exercise of judicial power, since it

does not purport to settle suits or controversies, but only

gives effect to acknowledgments in a matter under the

legislative control.” 208 Ill. 236, 2+2.

The rationale of these cases is applicable here, and we

hold that the General Assembly has not usurped judicial

authority by directing a construction to be placed on

section 103 contrary to our decision in Andrews.

We find no merit in appellees’ contentions that by the

decision in Andrews they acquired a vested right of which

section 318.1 deprives them without due process. A tax-

payer has no vested right in the continued existence of a

taxing statute. Jn re Application of Skidmore (1979),

75 Ill. 2d 33; People cx rel. Harding v. Chicago & North-

western Ry. Co. (1930), 340 Ill. 102; People ex rel. Campe

v. Board of Review (1919), 290 Ill. 467.

In People v. Holmstrom (1956), 8 Ill. 2d 401, this

court considered a curative statute almost identical to the

act at issue. In that case, in an action in debt to recover

delinquent personal property taxes for several years in

which publication of assessment lists was tardy under

section 103, the defendant contended that he had been

denied due process. The validating act provided that all

the assessments ani levies “tare validated for all purposes

of taxation notwithstanding that the publication of the

assessments was not made as provided by statute.” (8 III.

2d 401, 404.) The taxpayer argued that the validating act

itself was void and “‘that the General Assembly has power

to validate by curative act only in the case of irregular

or defective exercise of authority and that it cannot, in

such manner, make a void proceeding valid.” This court

upheld the constitutionality of the validating act, noting

that “the legislature has the power to pass an act curing

a defect in a tax levy when the defect consists of the

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failure to observe some requirement of the law without

which the legislature might have authorized the levy to be

made.” 8 Ill. 2d 401, 404-05.

In view of our conclusion that the statute did not vio-

late the principle of separation of powers it is not neces-

sary to further consider the argument of the appellees and

amici that the court in Holmstrom had no occasion to con-

sider the question of separation of powers and that it is

therefore distinguishable.

Citing People ex rel. Ward v. Chicago & Eastern Illinois

Ry. Co. (1936), 365 Ill. 202, People ex rel Lord v. Wabash

Ry. Co. (1924), 311 Ill. 579, and People ex rel. Stevenson

v. Illinois Central R.R. Co. (1923), 310 Ill. 212, amicus

argues that although the General Assembly “may, by

statute, validate the irregular or defective exercise of

power where the proceeding sought to be cured was not

one of the fundamentals of the powers exercised,” it may

not “‘validate acts which are wholly void.”’ Those cases are

clearly distinguishable in that in each of them the curative

statute purported to validate actions taken without the

statutory power to do so. The distinction is best illustrated

by the language in North Pier Terminal Co. v. Tully

(1976), 62 Ill. 2d 540, 548, “The defects of which the

plaintiffs complain are essentially procedural irregulanities

in the assessment process which *** do not establish the

lack of authority of the assessor to act,”’ (See, e.g., Central

Illinois Public Service Co. v. Swartz (1918), 284 Ill. 108.)

Here there was no lack of power to make the assessments,

and the rationale of Holmstrom is clearly applicable.

Although the issue was raised for the first time in the

amicus briefs, we consider it appropriate to review the

question whether Public Act 80—1471 violates article IV,

section 8, of the Illinois Constitution in that it is not con-

fined to one subject. (People ex rel. Peoria Civic Center

Authority v. Vonachen (1975), 62 Ill. 2d 179.) Amicus

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argues that because Public Act 80—1+471, in addition to

amending section 103 of the Revenue Act of 1939, added

sections 19.23—l(a) and amended the exemption pro-

visions of paragraph 500.23.1, the Act deals with more

than one subject. We do not agree. The Act amended is

the “Revenue Act of 1939,” and we find apposite the

language in People ex rel Carey v. Board of Education

(1973), 55 Il. 2d 533, when in considering a similar

argument directed toward amendments to the School

Code this court said:

“This argument overlooks the nature of the act

which was being amended. The School Code of

1961, like its predecessor, was designed to gather

into one statute the provisions relating to the

establishment, operation and maintenance of

schools. The complete title of the 1961 Act is: ‘An

Act in relation to the establishment, operation and

maintenance of public schools, providing for the

transportation of and scholarships in institutions

of higher learning for students of all schools, and

to repeal certain acts hercin named’. Like its prede-

cessor, its short title is ‘The School Code’. Ill. Rev.

Stat. 1959, 1971, ch. 122, par. 1—1.

Amendments to statutes of this kind, including

the School Code, have frequently been before the

court. (See, People v. Deatherage (1948), +01 Ill.

25, 43; Co-ordinated Transport, Inc. of Illinois v.

Barrett (1952), 412 Ill. 321; City of Evanston v.

Wazau (1936), 364 Ill. 198.) As we stated in

Sangamon County Fair and Agricultural Ass’n v.

Stanard (1956), 9 Ill. 2d 267, 272-3: ‘When the

title of the act amended is set forth in the title of

the amendatory act, as was here done, any pro-

vision which might have been inserted in the

original act may be incorporated in the amenda-

A-13

tory act.’ Provisions concerning ‘parental schools’

were included in the School Code before its

amendment (see Ill. Rev. Stat. 1971, ch. 122, par.

$4—117) and they did not become ‘discordant’ or

‘incongruous’ because they were included in this

amendatory act. Cf People ex rel. Gutknecht v.

City of Chicago (1953), 414 Ill. 600.” 55 Ill. 2d

533, 536-37.

In their brief plaintiffs Schlenz argue several issues

which are not presented in their interlocutory appeal, and

the briefs of amici attempt to raise several issues which are

not appropriately considered on this record. We do not

therefore further consider them.

For the reasons stated, the judgment in cause No.

53189 is reversed insofar as it holds invalid the real estate

assessments because of failure to give timely notice and is

affirmed insofar as it remands the cause to the circuit

court of Lake County to determine whether an

appropriate subclass of plaintiffs can be shown to exist.

The judgment of the appellate court in cause No. 53286

is reversed, and the judgment of the circuit court is

affirmed.

53189 — Affirmed in part and

reversed in part and

remanded.

53286 — Appellate court reversed;

circuit court affirmed.

MR. JUSTICE SIMON took no part in the considera-

tion or decision of this case.

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APPENDIX B

Order of the Supreme Court of Illinois

Denying Rehearing (Dated March 27, 1981)

Mr. Jack L. Uretsky

Attorney at Law

135 S. le St., S#900

Chicago, IL 60603

Nos. 53189, 53286 Cons.—Russell G. Schlenz, et al., etc.,

appellees, vs. John W. Castle, as Director of the Depart-

ment of Local Government Affairs of the State of II-

linois, et al., etc., (Robert Jasper, as Supervisor of

Assessments of Lake County, et al., etc., appellants).

Appeal, Appellate Court, Second District.

The Supreme Court today denied the petition for

rehearing in the above entitled cause. Mr. Justice Simon

took no part.

Very truly yours,

/s/ Clell L. Woods

Clerk of the Supreme Court

A-15

APPENDIX C

Opinion of the Appellate Court of Iilinois

(Filed February 7, 1980)

RUSSELL G. SCHLENZ et al., Plaintiffs-Appellants, v.

JOHN W. CASTLE et al., Defendants-Appellees.

Second District No. 78-586

Affirmed in part, and reversed in part and remanded.

Mr. JUSTICE WOODWARD delivered the opinion of the

court:

On October 2, 1979, we filed our original opinion in

this cause; on October 4, 1979, the supreme court an-

nounced its decision in Roth v. Yackley (1979), 77 Ill. 2d

423, 396 N.E.2d 520, which we discuss later; on October

19, 1979, plaintiffs filed a petition for rehearing; on

November 19, 1979, we granted rehearing, but the

defendants thereafter did not file an answer to the —

tion as allowed by Supreme Court Rule 367(d) (Ill. Rev.

Stat. 1977, ch. 110A, par. 367(d)). Having considered the

arguments raised by plaintiffs on rehearing, we have

withdrawn our original opinion and replaced it with this

modified opinion.

This is an interlocutory appeal from an order denying

cen motion for a class determination and motion

or partial summary judgment. The issues raised are: (1)

whether class certification was properly denied; (2)

whether the trial court erred by denying plaintiffs leave

to substitute new counsel or new class nominees; (3)

whether Public Act 80-1471 is valid; and (4) whether the

trial court erred by refusing to stay the proceedings.

As to the first issue, plaintiffs seek certification of a

class comprised of themselves and all other owners of

single-family residential property in Illinois. They allege

that the various defendants have, in a variety of ways,

been in noncompliance with statutes regarding the

assessment and equalization of real estate taxes with the

A-16

result that there is a disparity in assessment between

plaintiffs and owners of other types of real estate.

On December 19, 1978, the trial court made a number

of oral findings regarding the requirements of class cer-

tification set forth in section 57.2 of the Civil Practice

Act (Ill. Rev. Stat. 1977, ch. 110, par. 57.2). The re-

quirements are:

“Prerequisites for the maintenance of a class action.

(a) An action may be maintained as a class ac-

tion in any court of this State and a party may sue

or be sued as a representative party of the class

only if the court finds:

(1) The class is so numerous that joinder of all

members is impracticable.

(2) There are questions of fact or law common

to the class, which common questions

predominate over any questions affecting only

individual members.

(3) The representative parties will fairly and

equately protect the interest of the class.

(4) The class action is an appropriate method

of the fair and efficient adjudication of the con-

troversy.”

First, the trial court found that because there were

probably “millions” of potential plaintiffs, the numerosi-

ty requirement was met, and we agree. Second, the

court found that questions requiring individual proof

predominated over any common questions of fact or law,

noting that even if the named plaintiffs proved improper

assessment as to their property, that would not establish

in other pro class members a right to recover (see

Goetz v. Vi of Hoffman Estates (1978), 62 Ill. App.

3d 233, 378 N.E.2d 1276), because each other plaintiff

would have to prove that the township assessor im-

properly assessed the property in his township. The

court therefore properly concluded that the second re-

quirement was not met. Third, the court found that the

pone Te os en ra knew essentially nothing about the suit

and had simply told the attorney to do whatever he thought

A-17

necessary. The turning over of complete control to the

attorney in a class action has been cited as unacceptable

because the attorney then becomes the de facto represen-

tative of the class, and this should be viewed as a con-

flict of interest. (In re Goldchip Funding Co. (M.D. Pa.

1974), 61 F. R. D. 592.) That the attorney for a class

may not also be the class representative is now a per se

rule in Illinois. (Barliant v. Follett Corp. (1978), 74 Ill.

2d 226, 384 N.E.2d 316.) The third requirement was ac-

cordingly not met. Fourth, the trial court noted that

because of the multiplicity of disparate and unrelated

factual and legal questions involved, the fourth require-

ment was not met.

The prerequisites of section 57.2 of the Civil Practice

Act must be established by the proponents of the class

action. (McCabe v. Burgess (1979), 75 Ill. 2d 457, 389

N.E.2d 565.) McCabe also established that the standard

of review in Illinois regarding the trial court’s deter-

mination of whether the requirements for a class action

have been met is a determination of whether the trial

court abused its discretion. Based on the record before

us, we determine that the trial court’s findings that, as

to the proposed class, the last three of the prerequisites

were not met and did not constitute an abuse of discre-

tion. It is ible that paatit wy P- able to show

that a subclass exists (Ill. Rev. Stat. 1977, ch. 110, par.

57.3(b); Steinherg v. Chicago Medical School (1977, 69 Ill.

2d B26, 871 N.E.2d 634) and on remand ths trial court

should, within its discretion, determine whether or not

such a subclass can be shown.

The second issue involved the trial court’s refusal to

allow a substitution of class representatives or a sub-

stitution of attorneys for the class. Based in our holding

above, that the trial court correctly ruled that the

pro class should not be certified, that a class action

could not be maintained as alleged, and based on the

reasoning of Goldchip and Barliant, we determine that

if, on remand, the trial court should find that there is a

subclass to certify, there should be either a substitution

of attorneys or of class representatives. Barliant.

A-18

The third issue raised by plaintiffs is noncompliance

with the notice requirements of section 103 of the

Revenue Act (Ill. Rev. Stat. 1977, ch. 120, par. 584),

which provided that the assessor shall publish notice of

assessment changes on or before December 15 of the tax

year; timely notice as required by section 103 was not

given in the present case which involved increases in

assessments for the general real estate taxes levied for

1977 (a nonquadrennial year). In Andrews v. Foxworthy

(1978), 71 Ill. 2d 18, 373 N.E.2d 1332, the supreme court

analyzed and interpreted the notice provisions of section

103 and held that improper publication renders a non-

quadrennial reassessment void; the court therein clearly

held that the statutory notice prescribed was manda-

tory. Consequently, in this case, the application of An-

drews renders the reassessments here void because of

noncompliance with the publication (notice) provision.

In response to this contention, defendant points out

that su uent to the Andrews decision, the legislature

enacted Public Act 80-1471, (Ill. Rev. Stat., 1978 Supp.

ch. 120, par. 799.1) which became effective on No-

vember 30, 1978, purporting to specifically validate

reassessments of real property made without ot aod

notice in all nonquadrennial years prior to and including

1978. Plaintiffs and amici curiae (Commonwealth

Edison and certain parties litigating a similar issue in

Du Page County) attack the validity of Public Act 80-

1471 on the following basis: (1) it attempts to cure a void

proceeding; (2) it violates the uniformity of taxation

provision in the Illinois Constitution; (3) it violates equal

protection; (4) it violates due process; (5) it violates the

“one subject” provision of the Illinois Constitution; and

(6) it offends the concept of separation of powers. Only

consideration of basis (1) and (6) above is necessary for

our decision as we find Public Act 80-1471 uncon-

stitutional.

Curative acts are within the power of the legislature

(People ex rel. Toman v. Mercil & Sons Co. (1941), 378

Ill. 142, 837 N.E.2d 839); further, the legislature may

amend an act after a construction by the courts and the

amendment constitutes a more recent expression of

A-19

legislative intent and establishes a new rule. (Jn re Es-

tate of Zimmerman (1978), 63 Ill. App. 3d 560, 380

N.E.2d 434.) However, the recent case of Roth v. Yackley

(1979), 77 Ill. 2d 423, 396 N.E.2d 520, carefully dis-

tinguishes between amendatory statutes which operate

prospectively and are therefore acceptable and amen-

datory statutes which attempt to operate retroactively in

contravention of an interpretation announced by a court

of a prior statute and which is therefore improper. As

the supreme court stated in Roth:

“The General Assembly’s declaration that the

amendatory act applies to events which occurred

before the effective date of the amendatory statute

represents a legislative attempt to retroactively

apply new statutory language and to thereby annul

a prior decision of this court. This is an assumption

by the General Assembly of the role of a court of

last resort in contravention of the principle of

separation of powers embodied in article II, section

1, of the Illinois Constitution of 1970, which

peso ‘The legislative, executive and judicial

ranches are separate. No branch shall exercise

powers properly belonging to another.’” (77 Ill. 2d

423, 428-29.)

We accordingly conclude that Public Act 80-1471

violates the principle of separation of powers insofar as

it attempts to validate real estate assessments made

without proper notice for all nonquadrennial years prior

to and including 1978 and because it seeks to nullify a

prior decision of our supreme court which clearly inter-

preted the law as it existed prior to November 30, 1978.

Finally, plaintiffs contend that it was error to not stay

the proceedings pending appeal. The staying of

proceedings is within the discretion of the trial court,

and, considering the ability of the named plaintiffs to

continue the presentation of their cause as individuals,

and the fact that any other possible plaintiffs also could

have filed separate actions or separate tax objections,

thereby avoiding prejudice, we hold that there was no

abuse of discretion in denying the stay.

Affirmed in part, reversed in part, and remanded.

NASH, J., concurs.

A-20

APPENDIX D

[Filed February 25, 1980]

No. 79-135

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT

COUNTY OF SHELBY, STATE OF ILLINOIS,

Plaintiff-Appellee,

Vv.

STATE OF ILLINOIS PROPERTY TAX APPEAL BOARD,

Defendant-Appellant,

and

GERTRUDE ANDERSON,

Taxpayer-Defendant.

Appeal from the Circuit Court of Shelby County.

Honorable Daniel H. Dailey, Judge Presiding.

Mrs. JUSTICE SPOMER delivered the opinion of the court:

On August 17, 1978, relying on the recent opinion of

the Illinois Supreme Court in Andrews v. Foxworthy

(1978), 71 Ill.2d 18, 873 N.E.2d 1832, the Property Tax

Appeal Board! ruled in numerous ‘consolidated cases

1 An administrative md within el Illinois Department of

Local Government airs. See Ill. Rev. Stat. 1977, ch. 120,

par. 502.1 et seq.

A-21

arising out of Shelby County, including the instant case,

that increases in real estate assessments for 1976 were

invalid because of the failure of the county supervisor of

assessments to make timely publication of the intended

changes as required by statute. On administrative

review, the Circuit Court of Shelby County found that a

statute passed by the General Assembly subsequent to

the Supreme Court’s opinion in Andrews had validated

the increased assessments, and therefore reversed the

decision of the Board. This appeal followed.

At appellant’s request we take judicial notice in the

cases on appeal of the pleadings and papers filed with

the circuit court but assigned only to case number 78-

MR-13, all involving common questions of fact and law.

The Illinois Supreme Court in People v. Davis (1976), 65

Ill.2d 157, 161, 357 N.E.2d 792, 794, stated that “taking

judicial notice of matters of record in other cases in the

same court is simply an application of the increasingly

recognized principle that matters susceptible of judicial

notice include facts capable of immediate and accurate

demonstration by resort to easily accessible sources of

indisputable accuracy,” and we find this principle

applicable to the present case.

The determinative issue before us is whether the pur-

ported validating statute violates the principle of separa-

tion of powers embodied in Section 1 of Article II of the

Illinois Constitution. We find that it does, and is

therefore void.

It is undisputed that the supervisor of assessments

failed to publish increases in assessments made in a non-

quadrennial year by “ig 10, 1976, as required by Sec-

tion 103 of the Revenue Act of 1939. (Ill. Rev. Stat. 1975,

ch. 120, . 584). In the Andrews case, the Supreme

Court held that the requirements of Section 103 are

mandatory, and that a tax resulting from an increase in

assessment was invalid because timely publication in

compliance with the statute had not been made.

What complicates the instant case is the passage by

the General Assembly of P.A. 80-1471, effective No-

A-22

vember 30, 1978—after the decision of the Property

Tax Appeal Board, but prior to the decision of the trial

court, which was handed down on January 23, 1979. The

statute provides in pertinent part as follows:

“In all cases where real or personal property has

been assessed for the purpose of taxation during the

year 1978 and all years prior thereto as provided in

the ‘Revenue Act of 1939’, filed May 17, 1939, as

amended, except no timely publication of the assess-

ment of real or personal property, or both, was

made as provided by Section 103 of said ‘Revenue

Act of 1939’, such assessments of real or personal

property, or both, are hereby validated for all pur-

poses of taxation notwithstanding that the publica-

tion of the assessments of real or personal property,

or both, was not made within the time provided by

statute. The extension of taxes on such real or per-

sonal property assessments, or both, are made legal

and valid for the eee: of collection of taxes

notwithstanding that the publication of the

assessments of real or personal property, or both,

was not made within the time provided by statute.”

wor” ch. 120, par. 799.1 (Smith-Hurd

The appellee contends here that this retroactive,

validating, or curative act “is merely the legislature act-

ing to ratify or conform an act which it might lawfully

have authorized in the first instance where the defect

arises out of the neglect of some legal formality.” Rely-

ing. on People v. Holmstrom (1956), 8 IIl.2d 401, 134

N.E.2d 246, the appellee argues that because the

legislature might have lawfully and constitutionally

authorized a change in assessed values without any

publication at all, it may waive timely publication

without contravening the doctrine of separation of

powers.

We think, however, that the result here is dictated by

the recent decision of the Supreme Court in Roth v.

Yackley (1979), 77 Ill.2d 423, 396 N.E.2d 520, 38 II.

Dec. 131. In Roth, the court was confronted with a situa-

A-23

tion where the 80th General Assembly passed an amen-

datory act in response to a prior decision of the Supreme

Court which had construed the meaning of the language

used in section 10 of the Illinois Cannabis Control Act

Ill.Rev.Stat., ch, 56%, par. 710) (People v. DuMontelle

1978), 71 Ill.2d 157, 374 N.E.2d 205). The amendatory

act amended section 10 and section 410 of the Controlled

Substances Act (Ill.Rev.Stat., ch. 56%, par. 1410), and

purported to be declaratory of the existing law prior to

its passage and to be applicable to events before its

effective date. In rejecting the contention that the

amendatory act nullified the effect of its previous

decision, the Supreme Court stated:

“The General Assembly’s declaration that the amen-

datory act applies to events which occurred before

the effective date of the amendatory statute

represents a legislative attempt to retroactively

apply new statutory language and to thereby annul

a prior decision of this court. This is an assumption

by the General Assembly of the role of a court of

last resort in contravention of the yp owe of

separation of powers embodied in article II, section

1 of the Illinois Constitution of 1970, which

‘ease em ‘The legislative, executive and judicial

ranches are separate. No branch shall exercise

—_— properly belonging to another.’ (See Federal

xpress Corp. v. Skelton (1979), 265 Ark. 187, 199,

578 S.W.2d 1, 7-8; Johnson v. Morris (1976), 87

Wash.2d 922, 926, 557 P.2d 1299, 1303; 1A

Sutherland, Statutes and Statutory Construction

sec. 27.04 (4th ed. 1972).) While the General

Assembly has the power to draft legislation and to

amend statutes prospectively if it believes that a

judicial interpretation was at odds with its intent

(see Bruni v. Department of Registration and

Education (1974), 59 Ill.2d 6, 12, 319 N.E.2d 37;

Mitchell v. Mahin (1972), 51 Ill.2d 452, 456, 283

N.E.2d 465), it is the function of the judiciary to

determine what the law is and to apply statutes to

cases. (See People v. Nicholls (1978), 71 Ill.2d 166,

A-24

179, 15 Ill.Dec. 759, 374 N.E.2d 194; Belfield v.

Coop (1956), 8 Ill.2d 293, 307, 184 N.E.2d 249.) The

cases cited by the State do not recognize that the

General Assembly may retroactively overrule a

decision of a reviewing court. Instead they

recognize only the power of the legislature to es-

tablish laws prospectively and to alter for future

cases interpretations of statutes by reviewing

courts. See Modern Dairy Co. v. Department of

Revenue (1952), 413 Ill. 55, 66, 108 N.E.2d 8; State

v. Bowman (1962), 116 Ohio App. 285, 286-87, 187

N.E.2d 627, 629; cf. People ex rel. Spitzer v. County

of La Salle (1960), 20 I11.2d 18, 28, 169 N.E.2d 521.”

i. wa at 425, 396 N.E.2d at 522, 33 Ill.Dec. at

The court also noted on page 133 that “[iJt is logically

difficult to perceive how the declaration and the

amendments by the 80th General Assembly can be

simply a clarification of the intent of the 77th General

Assembly, which originally enacted the statute seven

years earlier, since only a fraction of the individuals who

comprised the General Assembly were the same at both

times.”

Prior to the decision in Roth, the same issue was rais-

ed, and the same amendatory act was involved in the

case of People v. Harris (3d Dist. 1979), 69 Ill.App.3d

118, 387 N.E.2d 33. The court there held that the

legislative amendments enacted after the DuMontelle

decision were violative of the constitutional provision for

the separation of powers in attempting retroactively to

direct construction of the previously enacted sections

and to reverse the construction placed upon them by the

Illinois Supreme Court.

We think it clear that the purported validating statute

at issue here likewise seeks to overrule retroactively the

decision of the Supreme Court in Andrews. Once the

court had explicated the mandatory nature of timely

publication in Andrews, that Boye became, in

effect, a part of the statute until the General Assembly

changed it. (Roth v. Yackley, 77 I11.2d at 425, 396 N.E.2d

A-25

at 522, 33 Ill.Dec. at 133, and cases cited therein.) No

subsequent action of the legislature could constitutional-

ly alter the effect mandated by the court’s interpretation

as to past failures to make timely publication. Although

in our opinion the decision in Andrews was not man-

dated by the case of People v. Jennings (1954), 3 IIl.2d

125, 119 N.E.2d 781 because a distinction can well be

made between late publication with no prejudice to the

taxpayer as contrasted with a total failure to publish.

Andrews is nonetheless the law in Illinois, and binds this

court in the case at bar. To the extent that the Holstrom

case and other cases cited by the appellee are inconsis-

tent with the result we reach here, we conclude that

they have been effectively overruled by Roth and An-

drews. In Andrews the court made it clear that the

failure to comply with a mandatory requirement of

publication is not merely the neglect of some legal for-

mality. Thus, we conclude that Andrews’ construction of

the publication requirement as designed for the benefit

and protection of the taxpayer—giving him an oppor-

tunity to ascertain the correctness of his assessment as

compared with that of other taxpayers—gives the tax-

payer in the case at bar a legal exemption from the in-

valid assessment increases in a nonquadrennial year.

Such is more than a mere expectation based upon an an-

ticipated continuance of the existing law, as contended

by appellee, but amounts to a vested right arising from

a final decision of the Illinois Supreme Court. We

further hold that the Attorney General has standing to

raise the vested rights theory in this appeal. (People ex

rel. Scott v. Illinois Racing Board (1973), 54 Il1.2d 569,

301 N.E.2d 285; E.P.A. v. Pollution Control Board

(1977), 69 Ill.2d 394, 372 N.E.2d 50.)

We therefore conclude that the Property Tax Appeal

Board was correct in holding that the 1976 assessment

increases in Shelby County were void because of the

failure of the supervisor of assessments to make timely

publication. The order of the Circuit Court of Shelby

County is reversed, and the decision of the Property Tax

Appeal Board is affirmed.

REVERSED.

JONES, P. J., concurs.

A-26

KARNS, J., dissenting.

These numerous cases arise from a general, non-

prea tagmec reassessment of all real property in Shelby

ounty, approximately 21,000 parcels, mandated by the

Department of Local Government Affairs in order to

equalize property assessments in Shelby County at the

statutorily required percentages of fair market value.

The reappraisal work was performed in 1975 and 1976.

The Department of Local Government Affairs had

issued an opinion to the Shelby County authorities that

the July 10 publication date was directory, not man-

datory. Andrews v. Foxworthy, (1978), 71 Ill. 2d 18, 373

N.E.2d 1332, was pending in the trial court in Ver-

milion County when changes in assessment were

published in Shelby County on December 7, 1976. The

reassessments had not been completed by the July 10

statutory date. Property owners were also mailed notice

of any change in assessment. The Board of Review of

Shelby County remained in session as its term was ex-

tended by the Department of Local Government Affairs,

and approximately 3,500 complaints were filed and

hearings were had before the Board. After decisions by

the Board of Review, some 1,600 appeals were perfected

to the Property Tax Appeal Board where 1,400 cases

were consolidated and approximately 1,283 decided

pean the Supreme Court’s decision in Andrews v. Fozx-

worthy.

I do not believe that the result reached by the majori-

ty follows from the Supreme Court’s decision in Roth v.

Yackley (1979), 77 Ill. 2d 428, 396 N.E.2d 520. Roth

dealt with an attempt by the General Assembly to alter,

retroactively, the construction the Supreme Court had

theretofore placed on section 10 of the Illinois Cannabis

Control Act (Ill. Rev. Stat. 1973, ch. 56%, par. 710) in

People v. DuMontelle (1978), 71 Ill. 2d 157, 374 N.E.2d

205. Roth v. Yackley, however, in reality dealt with an

attempt by the General Assembly to increase the penalty

for a crime after its commission.

The punishment for a criminal offense cannot be in-

cre by an amendatory statutory enactment taking

A-27

effect after the offense has been committed. (People v.

Peach, (3d Dist. 1976), 39 Ill. App. 3d 757, 350 N.E.2d

583; Ill. Rev. Stat. 1977, ch. 131, par. 4). The Supreme

Court had placed a construction on the Cannabis Control

Act in DuMontelle. Roth was entitled to the benefit of

this construction of the Act. Otherwise, the General

Assembly could effectively increase the punishment for

a violation of the Act by presuming to direct the court

as to the peepee construction and interpretation of the

Act as it would have accomplished by amending the Act

to take effect retroactively. Ex post facto laws are

mganiy tg by the Constitution of the United States and

y article 1, section 16 of the Illinois Constitution of

1970. A law increasing the penalty for a crime retroac-

tively is an ex post facto law. (People v. Bowling (3d Dist.

1976), 43 Ill. App. 3d 932, 357 N.E.2d 724; People v.

Johnson (4th Dist. 1970), 133 Ill. App. 2d 818, 263

N.E.2d 901; People v. Wyckoff (2d Dist. 1969), 106 III.

App. 2d 360, 245 N.E.2d 216).

While the Supreme Court did not discuss ex post facto

application of criminal laws in Roth v. Yackley, no dis-

cussion was warranted as the amendment to the Can-

nabis Control Act did not purport to be a validating or

curative act but a clarification of prior legislative intent.

In the area of civil legislation, however, specifically

those statutes dealing with property taxation, it has

been uniformly held that no one has a vested right in the

continuation of a particular statutory enactment so long

as the effect of the legislative action does not impair the

obligation of a contract. (People v. Lindheimer (1939),

371 Ill. 367, 21 N.E.2d 318; People v. Mercil & Sons Co.

(1941), 378 Ill. 142, 162-163, 37 N.E.2d 839, 850).

In Andrews v. Foxworthy (1978), 71 Ill. 2d 18, 378

N.E.2d 1332, the Supreme Court emphasized that the

publication of assessment roles or changes in sol gr geal

owner’s individual assessment was not requi by any

constitutional mandate. The passage of Public Act 80-

1471, effective November 30, 1978, prior to the decision

of the Circuit Court in the instant cases, simply changed

the law applicable to these cases by no longer requiring

A-28

ublication by July 10. Validating or curative acts have

ong been upheld in the area of property taxation. (See

People v. Anderson (1961), 21 Ill. 2d 396, 172 N.E.2d

760; People ex rel. Bauer v. Water Com. (1960), 20 Ill. 2d

139, 169 N.E.2d 350; People v. Holmstrom (1956), 8 IIl.

2d 401, 184 N.E.2d 246).

The effect of the amendment to the statute was not to

overrule retroactively the decision of the —, Court

in Andrews v. Foxworthy; that case had n finally

decided. It did change the law as it applied to similar

cases between different parties that were not yet before

the court. I see nothing in Andrews that suggests an in-

tention to overrule People v. Holmstrom (1956), 8 Ill. 2d

401, 184 N.E.2d 246. In Holmstrom, the Supreme Court

es a validating act that cured the failure to

publish assessments for 1954 and all prior years by the

date required by the Revenue Act. This is precisely

what the General Assembly has done here. The fact that

the Supreme Court had ruled in another case between

different parties when the Revenue Act required

publication by July 10 seems to me of no consequence to

the proper decision of these cases.

A-29

APPENDIX E

[Dated December 19, 1978]

IN THE CIRCUIT COURT OF

THE NINETEENTH JUDICIAL CIRCUIT,

LAKE COUNTY, ILLINOIS

RUSSELL G. SCHLENZ, et al., etc., et al.,

Plaintiffs-Petitioners,

GENERAL

No. 78 CH 74

v.

JOHN W. CASTLE, etc., et al.,

Defendants-Respondents.

ORDER

This cause comes on to be heard on Plaintiff’s motion

for partial summary judgment and on the motions of all

Defendants to deny certification of the Plaintiff class,

the Court having heard all arguments and having made

findings of fact and law on the record in this cause,

orders as follows:

1. The Plaintiff's motion for partial summary judg-

ment is denied;

2. The motion of the Defendant Township Assessors

for summary judgment on the question of class certifica-

tion is granted;

3. Regarding Plaintiff's motion for class certification,

the Court holds that the instant action does not present a

roper ha action, and certification of the alleged class

is denied;

A-30

4. Plaintiff's oral motion, made this date in open

court for leave to substitute within 35 days of this date,

either new class representatives or new counsel is

denied;

5. The Court hereby finds, pursuant to Supreme

Court Rule 308 that the questions of:

a. Whether or not this case can be maintained as a

proper class action, and

b. Whether or not Senate Bill 1790, 80th General

Assembly, constitutionally validated all 1977 Lake

County assessments tardily published in a new

Paragraph 799.1, Chapter 120, Ill. Rev. Stats. 1977,

as amended,

are presented in interlocutory orders one, two and three

of this order which are not otherwise appealable, and

the Court finds that these orders involve questions of

law as to which there are substantial unds for

differences of opinion, and that an immediate appeal

from these orders will materially advance the ultimate

termination of this litigation;

6. On the Court’s own motion pursuant to Supreme

Court Rule 308(e), further proceedings before this Court

are not stayed by this order.

Enter:

/s/ Charles F. Scott

Judge

DATED this 19th day of December,

1978, at Waukegan, Illinois.

A-31

APPENDIX F

STATUTES GOVERNING ILLINOIS

ASSESSMENT PROCEDURES

Illinois Revised Statutes, Ch. 120

(1977, prior to October 1).

PUBLICATION OF ASSESSMENT LISTS

584. Publication in counties of less than

2,000,000—Fees.] § 103. In counties containing less

than 2,000,000 inhabitants, as soon as the county

assessor, supervisor of assessments or board of assessors,

as the case may be, had completed the assessment in the

county or in the assessment district he or it shall, in

each year of a quadrennial assessment of real property,

publish for such county or assessment district a full and

complete list of the assessment of real and personal

property, by townships if the county is so organized. In

years other than years of a quadrennial assessment of

real ie rty, the assessor, supervisor of assessments or

board of assessors, as the case may be, shall publish the

assessment of personal property in full and a list of real

estate for which assessments have been added or changed

since the last preceding assessment, together with the

amounts of the assessments on such real estate. Such

publication shall be made on or before July 10 of that

year in counties with less than 150,000 inhabitants and

on or before December 15, of that year in counties with

150,000 or more but less than 2,000,000 inhabitants, and

shall be printed in some public newspaper or

newspapers published in the county; or shall be mailed

to every person in that township, or in counties not un-

der township organization, in that county paying taxes

upon personal property. In every county containing less

than 2,000,000 inhabitants, in addition to the publication

of the list of assessments of real property in each year of

a quadrennial assessment of real property and of the list

A-32

of real estate for which assessments have been added or

changed, as provided above, a notice shall be mailed by

the township assessor, county assessor, supervisor of

assessments or board of assessors, as the case may be, to

each taxpayer at his address as it appears on the

assessor’s records as to whose real property the assess-

ment has been changed since the last preceding assess-

ment, except in the case of changes caused by a change

in the county equalization factor by the Department,

during any year such change is made. Such notice must

also state the name and price per copy of the newspaper

in which the list of assessments will be published. In

every township or assessment district in which there is

published one or more ay ge 98) of general circula-

tion, the list of such township shall be published in one

of the newspapers. The gpa r shall be entitled to a

fee of $.20 per line for publishing the assessment list

and shall furnish to the local assessment officers as

many copies of the paper containing the assessment list

as he or they may require.

Amended by P.A. 77-1721, § 1, eff. July 1, 1972; P.A. 78-

449, § 1, eff. Oct. 1, 1973.

524. Assessments in quadrennial years.] § 43. In

counties having the township form of government and a

population of less than 1,000,000 inhabitants, the

quadrennial assessment years shall be 1963 and every

fourth year thereafter, unless and until changed as

provided in this Section for counties having the

township form of government and a ulation of 100,-

000 or more but less than 1,000,000 inhabitants. In coun-

ties having the commission form of government and a

population of less than 1,000,000 inhabitants, the

quadrennial assessment years shall be 1962 and every

fourth year thereafter.

The county board of each county having a population

of 1,000,000 inhabitants or more shall, by resolution

adopted before January 1, 1960, divide the county into 4

assessment districts. If the county is organized in

townships the assessment districts shall follow township

A-33

lines. The assessment district shall divide, as near as

may be, the work of assessing the real estate in the

county into 4 equal parts. Neither the area nor the

number of parcels of real estate need be equal in the 4

assessment districts. The resolution shall number the

assessment districts 1 to 4 inclusive. The quadrennial

assessment years for assessment district number 1 shall

be 1961, 1964 and every fourth year thereafter; for

assessment district number 2 the quadrennial assess-

ment years shall be in 1962, 1965 and every fourth year

thereafter; for assessment district number 3 the

quadrennial assessment years shall be 1963, 1966 and

every fourth year thereafter, and for assessment district

number 4 the quadrennial assessment years shall be

1963 and every fourth year thereafter. The county board

of any county divided into assessment districts under

this paragraph may provide by resolution of the county

board for the assessment of the entire county in any

year.

The county board of any township form of government

with a populston of 100,000 or more but less than

1,000,000 inhabitants may, by resolution adopted before

January 1, 1966, divide the county into 4 assessment dis-

tricts. The assessment districts shall follow township

lines, and shall divide, as near as may be, the work of

assessing the real estate in the county into 4 equal parts.

Neither the area nor the number of parcels of real estate

need be equal in the 4 assessment districts. The resolu-

tion shall number the assessment districts 1 to 4 in-

clusive. The quadrennial assessment years for assess-

ment district number 1 shall be 1967, 1970 and every

fourth year thereafter; for assessment district number 2

the quadrennial assessment years shall be 1968, 1971

and every fourth year thereafter; for assessment district

number 3 the quadrennial assessment years shall be

1969, 1972 and every fourth year thereafter; and for

assessment district number 4 the quadrennial assess-

ment years shall be 1969 and every fourth year

thereafter. The county board of any county divided into

assessment districts under this paragraph may provide

A-34

by resolution for the assessment of the entire county in

the quadrennial assessment year provided by law for

that county and for the dissolution of the assessment dis-

tricts after the first such assessment.

On or before June 1 in each quadrennial assessment

year in all counties having a population less than 1,000,-

000 inhabitants, and as soon as he reasonably can in

each quadrennial assessment year in counties having a

population of 1,000,000 or more inhabitants, or if any

such county is divided into assessment districts as

provided above, as soon as he reasonably can in each

quadrennial assessment year in such assessment dis-

tricts, the assessor in person or by his deputy shall ac-

tually view and determine as near as practicable the

value of each tract or lot of land listed for taxation as of

January 1, or as provided in Section 27a of this Act,' of

such year and assess the same as 334% of its fair cash

value, or in accordance with a county ordinance adopted

ursuant to Section 4 of Article IX of the Constitution of

llinois, setting down the sum in the proper column in

the books furnished him.

In making such assessments he shall set down his

valuation of improved tracts and lots in one column, and

his value of unimproved tracts and lots in another

column. The value of lands and improvements shall be

separately fixed and shall be set down in separate

columns in such assessor’s books.

Amended by P.A. 70-703, § 1, eff. Sept. 3, 1975.

1 Chapter 120, § 508a.

527. Assessment changes in counties of less than

150,000—Revision of assessments in counties of less

than 1,000,000—Notice.] § 46. In counties containing

less than 150,000 inhabitants, the assessors or super-

visors of assessments shall not in any year, except the

year of the quadrennial assessment, change the valua-

tion of any real estate or improvements or the division

thereof, except as provided in this Section and in Sec-

tions 37 and 44 of this Act.' The supervisor of

A-35

assessments, the county assessor or the board of

assessors of any county having fewer than 1,000,000 in-

habitants, or the township assessor of any township in

any such county, may in any year revise an assessment

and correct such assessments as shall appear to him or

them to be just. A notice of any such revision shall be

given in the manner provided in Section 103? to the tax-

payer as to whose property the assessment has been

changed.

Amended by P.A. 77-556, § 1, eff. July 31, 1971.

PROPERTY TAX APPEAL BOARD

592.1 Creation—Membership—Chairman—

Vacancies—Appeal of decision of board of

review.] §111.1. There shall be created in the

Department, the Property Tax Appeal Board, consisting

of 3 members appointed by the Governor, with the ad-

vice and consent of the Senate. The Governor, with the

advice and consent of the Senate, shall designate one of

the members as Chairman. A vacancy in_ the

membership of the Board shall be filled in the same

manner as original appointments are made.

In any county other than a county of over 1,000,000

population, any taxpayer dissatisfied with the decision of

a board of review as such decision pertains to the assess-

ment of his property for taxation purposes, or any tax-

ing body that has an interest in the decision of the board

of review on an assessment made by any local assess-

ment officer, may, within 30 days after the date of

written notice of the decision of the board of review,

appeal such decision to the Property Tax Appeal Board

for review. Such taxpayer or taxing body, hereinafter

called the appellant, shall file a petition with the clerk

of the Prope Tax Appeal Board, setting forth

specifically the facts upon which he bases his objection

to the decision of the board of review, together with a

statement of the contentions of law which he desires to

raise, and the relief he requests. If a petition is filed by

a taxpayer, the taxpayer is precluded from filing objec-

A-36

tions based upon valuation, as may otherwise be per-

mitted by Sections 194, 195 and 235 of this Act.!

However, any taxpayer not satisfied with the decision of

the board of review as such decision pertains to the

assessment of his property for taxation purposes, need

not appeal such decision to the Property Tax Appeal

Board for review before seeking relief in the courts.

Amended by P.A. 79-386, § 1, eff. Oct. 1, 1975

P.A. 79-1044, § 1, eff. Oct. 1, 1975.

592.2. Procedure—One-year assessment level

§ 111.2. The Property Tax Appeal Board shall es-

tablish by rules an informal procedure for the deter-

mination of the correct assessment of property which is

the subject of an appeal. The Board may use a one-year

assessment level to be based on relevant sales during the

revious year. Such procedure, to the extent that the

ard considers practicable, shall eliminate formal rules

of pleading, practice and evidence, and except for any

reasonable filing fee determined by the Board, may

provide that costs shall be in the discretion of the Board.

A copy of the appellant’s petition shall be mailed by the

clerk of the Property Tax Appeal Board to the board of

review whose decision is being appealed. The chairman

of the Property Tax Appeal Board shall provide for the

speedy hearing of all such appeals. All appeals shall be

considered de novo.

Amended by P.A. 81-894, § 1, eff. Jan. 1, 1980.

592.3 Conduct of hearings.] § 111.3. A hearing

shall be granted if any party to the appeal so requests,

and, upon motion of any party to the Ly jpn or by direc-

tion of the Property Tax Appeal Board, any appeal may

be set down for a hearing, with proper notice to the in-

terested parties. Notice to all interested taxing bodies

shall be deemed to have been given when served upon

the State’s Attorney of the county from which the appeal

has been taken. Hearings may be held before less than a

majority of the members of the Board, and the chairman

A-37

may assign members or hearing officers to hearings.

Such hearings shall be open to the public and shall be

conducted in accordance with such rules of practice and

rocedure as the Board may make and promulgate. The

ard, any member or hearing officer may require the

production of any books, records, papers or documents

that may be material or relevant as evidence in any

matter pending before it and necessary for the making

of a just decision.

Amended by P.A. 76-689. § 1, eff. Aug. 7, 1969.

592.4 Record of proceedings and orders—

Decision—Extension of taxes—Review under Ad-

ministrative Review Act.] § 111.4. The Property

Tax Appeal Board shall keep a record of its proceedings

and orders and such record shall be a public record. The

Board shall make a decision in each appeal or case

heard by it, and such decision shall be based upon equi-

ty and the weight of evidence and not upon constructive

fraud, and shall be binding upon appellant and officials

of government. The extension of taxes on any such

assessment so appealed shall not be delayed by any

proceeding before the Board, and, in case the assessment

is altered by the Board, any taxes extended upon such

unauthorized assessment or part thereof shall be abated,

or, if already paid, shall be refunded.

The decision or order of the Property Tax Appeal

Board in any such appeal, shall, within 10 days

thereafter, be certified to the appellant and to the

proper authorities, including the board of review whose

decision was appealed, the county clerk who extends

taxes upon the assessment in question, and the county

— who collects property taxes upon such assess-

ment.

Final administrative decisions of the Property Tax

Appeal Board are subject to review under the provisions

of the Administrative Review Act.!

Added by act approved May 1, 1967. L.1967, p. 372.

1 Chapter 110, § 264 et seq.

A-38

592.5 Hearing officers and personnel—Clerk—

Compensation.] § 111.5. The Property Tax Appeal

Board may appoint necessary hearing officers, ap-

praisers, technicians and necessary clerical help to aid it

in performing its duties, and may use employees of the

Property Tax Division of the Department of Revenue,

when available, in performing its duties.

The Property Tax Appeal Board shall choose some

person to serve as clerk of the Board, and in its discre-

tion, may with the consent of the Director choose the

Superintendent of the Property Tax Division of the

Department to serve as such clerk. If the Superinten-

dent of the Property Tax Division is chosen to serve as

the clerk, he shall not receive additional compensation

for such duties but may receive necessary traveling ex-

penses.

Amended by P.A. 76-2254, § 1, eff. July 1, 1970.

A-39

APPENDIX G

[Filed May 20, 1981]

IN THE

SUPREME COURT OF ILLINOIS

Nos. 53189, 53286 (Consolidated)

RUSSEL G. SCHLENZ, et al.,

Appellees,

v.

ROBERT JASPER, Supervisor of Assessments, et al.,

Appellants,

and

CounTY OF SHELBY,

Appellant,

Vv.

THE PROPERTY TAX APPEAL BOARD, et al.,

Appellees.

NOTICE OF APPEAL TO THE

SUPREME COURT OF THE UNITED STATES

Notice is hereby given that RUSSEL G. SCHLENZ and

NANCY SCHLENZ, Appellees in No. 53189, and GERTRUDE

ANDERSON. et al., Appellee in No. 53286, hereby appeal

to the Supreme Court of the United States from the

final order of March 27, 1981, denying Schlenz’s Peti-

tion for Rehearing filed March 13, 1981. and from that

part of the prior Order of February 20, 1981, reversing

in part the Appellate Court of Illinois, Second District,

in No. 53189 and reversing the Appellate Court of IIli-

A-40

nois, Fifth District, in No. 53286. This Appeal is taken

pursuant to 28 U.S.C. §1257(2).

/s/ og E. Hamer

- AP

1356 Shermer Rd.

Northbrook, IL 60062

(312) 272-1800

/s/ Jack L. Uretsky

135 South LaSalle Street

Chicago, IL 60603

(312) 372-7842

Attorneys for Appellants to the

Supreme Court of the United States

Attorneys for Appellants to the

Supreme Court of the United States