Petition — Board of Review v. Beverly Bank

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Text

83-1453

No.

Ix Tas

Supreme Court of the Anited States

Ocroszr Tzrm, 1983

BOARD OF REVIEW OF WILL COUNTY; and LYMAN OC.

TIEMAN, TED GRABAVOY, and HERMAN L. OLIVO, indi-

members of the Board of Review of Will County;

Petitioners,

PETITION FOR A WRIT OF CERTIORARI TO

THE APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

WILLIAM W. KURNIK

120 West Eastman

Arlington Heights, Dlinois 60004

(312) 870-5280

Cownsel for Petitioners

Board of Review of Will 2 toad

Midwest Law Printing Co. Chicago G0611, (312) 3210220

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QUESTIONS PRESENTED .................

TABLE OF AUTHORITIES .................

EY SINE wis b rc'e copesccdiccccccscce

STATUTORY PROVISION INVOLVED ......

STATEMENT OF THE CASE .......... oased

REASONS FOR GRANTING THE WRIT:

THE DECISION BELOW AND THE DISTRICT

COURT OPINIONS UPON WHICH IT RELIES

CONFLICT THE DECISIONS OF THIS

COURT AS TO THE PROPER INTERPRETA-

TION OF THE EQUAL PROTECTION

WHERE A STATE STATUTORY AF-

FORDS A REMEDY, THE PURPOSE OF

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THIS CASE INVOLVES IMPORTANT QUES.

TIONS NEEDING RESOLUTION AND EX-

TENDING BEYOND THE IMMEDIATE IS-

PEE We Bewh ve ca cece oebosctecece

TABLE OF AUTHORITIES

Cases

Bolling v. \ ns 347 U.S. 497 ae

eee ee ee

1. Tartey Run Conac. Sch. Dist, 2 #28

Cir.

13a

l4a

~ F

Sr wow

on ff ©

Puget Sound Power & Light Co. v. Kane County,

POR Pee ree 8

Rogin v. Bensalem Township, 616 F.2d 680 (8rd

Cir. 1980) cert. denied, 450 U.S. 1029 ...... 10

Rosewell v. LaSalle Nat'l. Bank, 450 U.S. 503

nv cu ndad oe Cidigubevabaccadebbaaehebas< 10, 11

Snowden v. Hughes, 321 U.S. 1 (1944) ........ 7,8

Stephens v. State Prop. Tax App. Bd., 42 Il.

App.3d 550, 356 N.E.2d 355 (1976) ........ 11

Sunday Lake Iron Co. v. Wakefield Township, 247

Eh Oe GUND ctdcdarididaodaatvensssunes 6

Statutes

BD TEGe Bt a wba teitecddncees ccce ve ccsts 2

RE YE RCE ee ere ee 3

Itt. Rev. Stat, ch. 120, § 501(a) (1979) ....... 4

ILL. Rev. Stat. ch. 120, § 5895) (1979) ....... 5

~<a

. Iy Tas

Supreme Court of the Anited States

Ocrozsze Tze, 1983

PETITION FOR A WRIT OF CERTIORARI TO

THE APPELLATE COURT OF ILLINOIS

OPINIONS BELOW

gagaes “4

BS ebstead

ah:

JURISDICTION

STATUTORY PROVISION INVOLVED

42 U.S.C. § 1983 (Supp. IV 1980)

Every person who, under color of any statute, ordi-

nance, regulation, custom or usage, of any State or Ter-

ritory or the District of Columbia, subjects, or causes to

be subjected, any citizen of the United States or other

person within the jurisdiction thereof to the deprivation

of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party injured

in an action at law, suit in equity, or, other proper pro-

ceeding for redress. For the purposes of this section, any

Act of Congress applicable exclusively to the District of

Columbia shall be considered to be a statute of the Dis-

trict of Columbia.

STATEMENT OF THE CASE

«Oy gt ee ee ce oie ice

BF ES aie ee Ae ee S

hin

ty of Will arising out of an increase in the property

assessments of all commercial and industrial real property

and personal property by the petitioners.

After local assessors had assessed all property, the IIli-

nois Department of Local Government Affairs assigned

ment of reel or personal property, but only after giving

the affected notice and an opportunity to be

failure of the Board of Review to provide a hearing prior

to increasing the assessments, as required by,{llinois

statute. '

—§-

REASONS FOR GRANTING THE WRIT

THE DECISION BELOW AND THE DISTRICT COURT

OPINIONS UPON WHICH IT RELIES CONFLICT WITH

THE DECISIONS OF THIS COURT AS TO THE PROPER

INTERPRETATION OF THE EQUAL PROTECTION

CLAUSE OF THE FOURTEENTH AMENDMENT.

In its opinion below, the appellate court erroneously

of the differential treatment.

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33 HEHE ANS fae i ‘i

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to recognize the principle of Snowden that the violation

of state iaw, standing alone, is not actionable under the

Fourteenth.Amendment.

WHERE A STATE STATUTORY SCHEME AFFORDS A

—10—

A different rule would obtain in the face of a constitu-

tional challenge arising, for example, out of a First,

Fourth or Thirteenth Amendment claim. Then there

would not exist the overlap and the similarity of issues.

Like the substantive due process issue, an equal pro-

tection analysis also focuses on irrationality, arbitrariness

and capriciousness. Hodel v. Indiana, 452 U.S. 314, 331-82

(1981). While due process and equal protection are not co-

extensive concepts, there does exist some overlap.

[TJhe concepts of equal protection and due ,

both ste from our American ideal of

unfairness than “due process of law,” and, therefore,

_ we do not Oe ee et ae Ee

able phrases. oS Oe See ee

crimination may be so unjustifiable as to be violative

Accord Rogin v. Bensalem Township, 616 F.2d 680, 689

(8rd Cir. 1980) cert. denied, 450 U.S. 1029.

Since there exists this similarity and overlapping of |

issues, at least where only property rights are involved,

~~ to ee

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—_

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#52

Il.

THIS CASE INVOLVES IMPORTANT QUESTIONS

NEEDING RESOLUTION AND EXTENDING BEYOND

, THE IMMEDIATE ISSUES. —

to which violations of local law give

Even though this case is brought before the Court in

othe eine wich vi of al aw ve Pa

aul

See ae, ie. Em I

: i.

—12—

CONCLUSION

For these reasons, a writ of certiorari should issue to

review the judgment and opinion of the Appellate Court

of Illinois, Third District.

Respectfully submitted,

WILLIAM W. KURNIK

120 West Eastman

Arlington Heights, Illinois 60004

(312) 870-5280

Counsel for Petitioners

Board of Review of Will County;

Iyman C. Tieman, Ted Grabavoy,

and Herman L. Olivo; and Will -

County

—)a--

No. 82-313

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D. 1983

BEVERLY BANK, Trustee under Trust No. 8-3130; and DEME-

TRIOS DELLAPORTAS, PAUL COMET and MICHAEL HALI-

KIAS, Beneficiaries, and ALL MOTOR PARTS, INC.., a corporation,

on their own behalf and on behalf of all individuals similarly situated,

Plaintiffs-Appellants,

vs.

BOARD OF REVIEW OF WILL COUNTY; and LYMAN C.

TIEMAN, TED GRABAVOY, and HERMAN L. OLIVO, indi-

vidually and as members of the Board of Review of Will County;

and WILL COUNTY, ILLINOIS,

bee!

—2a—

plaint is the basis for the defendants’ motion for judgment

on the pleadings, the Department of Local Government

Affairs of the State of Illinois assigned a tentative

multiplier of 1.13 to Will naar | for the tax year 1978.

This multiplier was determined by the Department to be

the factor necessary to equalize the Will County assess-

ments at the statutorily required level of 38% per‘cent

of fair cash value.

The pertinent language of the complaint is as follows:

“(18) Commencing approximately in the spring of

1979, and subsequent to receipt of notice from the

LGA of a 1978 tentative multiplier of 1.13, the defen-

dant members of the Board of Review conspired and

i and concert of action, defendants engaged in

the following course of conduct:

;

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Fae

protection under

teenth Amendment to the United

(b) With the and intent of im

an unlawful oe ee

members of the plaintiff class, so other tax-

payers would experience no tax increase * * * ;

the selection of plaintiffs or plaintiff class

members as those who would bear said financial

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meaningful

manner’ requires the State to provide a hear-

ing prior to initial deprivation of .” 451

U.S. at 40, 101 S. Ct. at ....., 68 L. 2d at 432.

0 net adboupane te cove dee gece tabanan aie

are not uate to provide due process because re-

quire payment of the tax under protest and because in-

terest, costs and fees cannot be recovered. The response

of Parratt v. Taylor, 451 U.S. at 544, 101 S. Ct. at .....,

68 L. Ed. 2d at 434, is: g

“Although the state remedies may not provide the

respondent with all the relief which may have been

available if he could have proceeded under § 1983,

that does not mean that the state are not

adequate to the eee of due process.”

Cf., Rosewell v. at. Bank (1981), 450 U.S.

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Polis tices ais sem ces

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‘General Assembly (I. Co

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discriminatory

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1, 64 S. Ct. 397, 88 L. Ed. 497; sean yee ob

Krishna Consciousness Inc. v. vanston (1st

1980), 89 Ill. . 8d 701, 411 N. 1080) In order to

establish a tory purpose, those oon gytgetdr Ae so

show that “the decisionmaker a particular

group for disparate treatement an etal his course

of action at least in part for the purpose of causing its

adverse effects on an identifiable group.” (Shango v.

Jurich (7th Cir. 1982), 681 F. 2d 1091, 1104.) Thus more

is required than misinterpretation of law or even arbitrary

application of statutes and rules.

In Snowden v. Ht hes the court used as a “familiar ex-

aerate brats Bid magus

over-valuation of the ie of clea oo tak the sons

tical effect of the breach of law is the same as

though the discrimination were incorporated in and pro-

claimed by the statute.” (821 U.S. at 9, 64 S. Ct. at .....,

88 L. Ed. at 503.) Al Snowden involved the

of a candidate to be as a nominee for

—lla—

Snowden, laintiffs have a cause of action inst defen-

Supp é

dants.

330 F. . 615, it was held that property owners were

denied their Fourteenth Amendment right to equal

tection where state officials intentionally and -

a result, certain classes of property were

assessed at a substantially higher percentage than others.

Defendants argue that the classification of real proper-

ty by its industrial and commercial yd p> eae has been

recognized as having a rational basis and thus does not

violate the constitution. Federal courts have said that

judgment on the a ae eee ee oe oe

tion under section 1983 of the Civil Rights Act for denis!

of their right to protection of the laws. Those por-

linois and Federal law. We hold that the trial

red in dismissing the complaint.

The judgment of the circuit court of Will County is

reversed, and this cause is remanded for further

proceedings

Reversed and remanded.

ALLoy and Scort, JJ., concur.

jus 5

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~18a—

ILLINOIS SUPREME COURT

JULEANN HORNYAK, CLERK

SUPREME COURT BUILDING

SPRINGFIELD, ILL. 62706

(217) 782-2035

December 6, 1983

Mr. William V. Kurnik

Kurnik and Cipolla

120 W. Eastman St.

Arlington Heights, IL 60004

No. 59108 - Beverly Bank, Trustee under Trust No.

8-3130; et al., etc., et al., respondents, vs.

Board of Review of Will County; et al., etc.,

et al., ny to

oy ve appeal, Appellate

- The Supreme Court today DENIED the petition for

leave to appeal in the above entitled cause.

The Mandate in this cause will be issued to the ap-

propriate Appellate Court on December 28, 1983.

Very truly yours,

/s/ Juleann Hornyak

Clerk of the Supreme Court

wen

STATE OF ILLINOIS ) Filed May 3, 1982

)SS

COUNTY OF WILL )

IN THE CIRCUIT COURT

FOR THE 12TH JUDICIAL CIRCUIT

WILL COUNTY, ILLINOIS

BEVERLY BANK, et al.,

Plaintiffs,

NO. 82 L 20 vs.

BOARD OF REVIEW OF WILL COUNTY, et al.,

Defendants.

ORDER

Pia, dee ordi egy t ohivedlgn sangha Bong oy othe

endants for nt on Pleadings. Cause

has been argued o Vanes this Court, Belts hava bes

submitted, and this has considered the Briefs and

has considered all cases therein cited.

sets

f in brief, that, in the tax year 1973, the ty of

Will certified the assessments for year, and that

the Department of Local Government Affairs had deter-

maland, ies Gn. pene 68. omanaten “wake Sune

$205,000,000.00 below the amount required to

County

Third Amended ee further sets forth that in Au-

1 the Board of Review, to avoid

izer would not be imposed. It is charged that this action

by the Board of Review was ill under Illinois law,

and violated the constitutional rights of Plaintiffs under

the Fourteenth Amendment of Constitution of the

United States of America, and that the same was in viola-

tion of the Federal Civil Rights Act, 28 U. S. C., Sec.

1391 and other pertinent sections. It is further

in the Third Amended Complaint that tax bills were sent

out to taxpayers, including Plaintiffs and the members of

the Class, in accord with such illegally increased assess-

ment. The Third Amended Complaint also charges that

it was the duty of the Board of Review, before making

upward adjustment of assessments, to ‘ae notice to the

owner of realty concerned and to

payers of such increase or to afford any relative

—16a—

trict of Illinois, Eastern Division, and that, after pend-

ing for some time in that Court, it was transferred to

this Court, in accord with previous rulings of the Supreme

Court of the United States.

The Motion of Defendants for Judgment on the Plead-

ings, of course, admits all facts well pleaded by Plaintiffs,

but, in effect, says that admitting all such facts, the Com-

plaint must result in judgment for Defendants. The Defen-

dants, in effect, admit that a violation of Illinois law is

properly pleaded by Plaintiffs, but Defendants say that

this does not constitute a valid action under the Federal

Civil Rights Act.

The law relative to Motions for Judgment on the Plead-

oa oe summarized briefly. It is brought under ILLI-

NOIS REVISED STATUTES, Chapter 110, Section 45,

Subsection (5), which reads: “Any party may seasonabl

move for judgment on the pleadings.” In HALL VS.

HUMPHREY-LAKE CORPORATION, 29 Ill. App. 3rd

956, 331 NE 2nd 365 (1975), a First District case, the

Court said: “All well pleaded facts and all fair inferences

—17a—

eee eee eee ae ee ae

of the pleadings as a matter of law

i ais wee top chown af laintiffs’ second amended

yoy and ee phn nah tru Nag all facts well pleaded

oe den .” And, finally,

in ARLIN N EIGH NATIONAL BANK VS.

VILLAGE OF ARLINGTON HEIGHTS, 33 Ill. 2nd 557,

213 NE 2nd 264 (1966): “Such a motion admits the truth

of facts well pleaded, as distinguished from mere conclu-

dein, tennthar With oll file talttenten to be Gun there-

from ... and the moving party admits the untruth of

his own controverted allegations.”

This action is under 42 U.S. C. Section 1983,

which reads: “Every person who, under color of any stat-

ute, ordinance, regulation, custom, or usage, of any ee

. errito subjects , or causes to be roc dra gd

zen of the Uni States, or any other person wi ‘he

jurisdiction thereto to the deprivation of any rights,

mee o or immunities by the Constitution and

ws, be liable to the party injured in an action of

law, ms in equity, or other proper proceeding for re-

In BATES VS. SPONBERG, 54 2nd 325 (1976),

CCA, 6th Cir. the Court had before it a case where a

Professor at Eastern Michigan University was

Too Court sald’ “Ik to moter disregard of its

tions by a public agency that gives rise to a cause of ac-

tion for eS eee rights. Rather, it is only

sodure white te in itself eed of Ka oy rhe oe

w 8 upon due process

chat 6 fodensd. comet choad aateane: te ts declatenal

“ary gumican bedi mek 6 ON

ph one aig ox age: validated procedures

of Federal agencies, but “. .. . the basis for such re-

versals is not, as Bates , the Due Process Clause,

but rather a rule of law.” The Court states

the issue: “. . . . whether the hearing accorded him was

he Profeeser Bates by the University met “.. . the sual

aes mee met “. . . the minimal ’

adeenmae 20 District Court, which

. ‘

; . : us

> it

Veen Re! a Ao “7 a Ot

aittie..

had granted Summary Judgment to the Plaintiff, was

reversed.

In BORMANN VS. TOMLIN, 461 F. Supp. 193 (1978),

USDC, SD Ill. SD, the Court dealt with an action under

the Civil Rights Act, where tax officials, to collect delin-

ee ey ee ee of Plaintiff, seizing cer-

property same — t any warrant issued

by a Court. The Court sai : “A state or county tax of-

ficial will be liable for damages under Section 1983 only

if he violated the plaintiff's clearly established constitu-

tional rights intentio or with reckless disregard of

those ts. The tax official must have personally

with an ible motivation or with such intentional

and reckless disregard of the plaintiff's clearly established

constitutional rights that his action cannot be reasonably

characterized as being in good faith.” The Court held un-

Court also said: “Illinois statute provides a method of

determine whether the property was validly sub-

ject to tax and at the correct statutory rate...

due process rights are protected.” The Court held that

while declaratory or injunctive relief could not be main-

en ee Se ee or eee

In STREET VS. SURDYKA, 492 F 2nd 368 (1

CCA, 4th Cir. the Court said: “Section 1983 does not

vide a remedy for common law torts. Instead, it creates

a federal cause of action those acting under color

of state law who cause a ‘devrivation of any rights,

or immunities secured sy the Constitution

the United States.’ In cases the same conduct

will violate both state law the federal

but not all violations of state law rise to the

of nal tort.’”” Here was a warrantless arrest, but

In UNITED STATES LABOR PARTY VS. aceory ee

619 F. 2nd 683 (1980), CCA, 7th Cir., the

—19a—

before it an attempt by a newspaper to peddle i

by peddlers on foot, selling to motorists on

Statute prohibited such attempted

Highways. The municipality first forbad such

issued a permit to Aah without a

Court said: “The

cea

Hie

Z8ES

tion of a liberty or property interest is entitled

rocedure to determine if the individual has

fairly. * Boers threshold, Pau verte — = dia

pinge a y or property interest of an

After the deprivation of an individual’s libe

erty interest is established, the application

vs. Eldridge, 424 U. S. 319, 96 S. 893, 47 L. Ed. 2nd

18 (1976), analysis determines the process to

which the Co n entitles the individuals” Due Proc-

ess, under Mathews depends: “First, the se pet

that will be affected by the official action; second, the rest

of an erroneous deprivation of such interest through the

procedures used, and the ee gor tines ke ane

tional or substitute eguard; and

Govertanantia atures, sadbadhne the tention tonne one

or substitute procedural requirements would entail.” Here

the permit was issued contrary to Statute, , 80 no hearing

roma Schein: ae Civil Rights action fails,

us.

In URETSKY VS. omen a Bed 47 Il. eg hey, 1 heen

ron anes ove Sct) s Rema ees

ore it an action for ree

sed thea s Ocak abn ae lee injunction

Or A RAITTnG LEER OLA an Ut aeaceine Tee Come

CLARENDON ASSOCIATES RZEN, 56 Ill.

as: 5

“a a

101 nat “In view of the existence of our present

uae rae th uch cance unl the

aS : onaen, aes Se

;

Ra 7 |

—20a—

special grounds for equitable jurisdiction are established,

and unless the iff does not have an adequate remedy.

at law, is subject to two excepti namely, where a tax

t an adequate remedy at law must not be available.”

ere the increased assessments were at issue, not one

of unauthorized tax or exempt property, and the claim

that the increased assessment unauthorized was rejected

y the Court. The Court further said: “The legal valid-

ity or constitutionality of a property tax assessment may

roceedings

ministrative review of the State Property Tax Appeal

Board’s decision. . . . It should also be observed that the

whether the assessment of real y may be

in a quaduadrennial year may be addressed in

an appeal from objection proceedings.” It was also noted

that payment could be made under protest. “It is ap-

parent that

> ad

—2la—

ights included in section 1983.” The Court then cited

DIETMAN VS. ge a 5 Ill. 2nd 486 oo “ ‘Due

process requires t roperty owner be given notice

sl ais epbertunity to bs heard won the valuation of las

oe at some point in the taxing process before his

iability to pay the tax becomes conclusively established. . . .

On the other hand, the taxpayer is not entitled to notice

and an opportunity to be heard at each stage, or at any

particular state, of the assessment procedure. . . . The

requirements of due process are satisfied by a law which

affords an opportunity to be heard with respect to assess-

ments before the board of review. ‘But a law prescrib-

ing a time when complaints will be heard before thi*board

of review is all the notice that is required. . . . If the

law secured to the defendant a ing after the assess-

ment was in fact made, of which he notice by the

statute, that would be sufficient.’ ... An assessor’s

failure to grant any hearing of his increase of an assess-

ment without notice and an portunity to be heard may,

eo Oe ve a hearing before the board of review.

yer had 18 days’ notice, and this was held suf-

ficient. Court held that 10 days’ notice would be suf-

ete satisfy due process. The Dismissal order was

In DIETMAN VS. HUNTER, 5 Ill. 2nd 486, 126 NE

2nd 22 (1955), the Illinois Supreme Court had before it

—29a—

may be heard upon the question of valuation in an ac-

tion brought to collect the tax ... or in an action to

ce ee eee its oe eee

before the final duty to pay tax. The €

overruled PEOPLE EX REL. EISELE VS. ST.

MERCHANTS’ BRIDGE COMPANY, 268 ill. 477 and

263 Ill. 50. Thus the tax was held valid.

In LITTLE SISTER COAL CORPORATION VS.

DAWSON, 465 Ill. 2nd 342, 259 NE 2nd 35 (1970), con-

cerning payment of personal property taxes under pro-

test, the Court said: “As has been stated, due

i owner be given notice

an opportunity to be upon the valuation

prop-

erty at some point in the process before his lia-

bility to pay the tax becomes established.” The

said: “With notice through the required publi-

cation of all assessments . . . and the opportunity to be

mningprcsnter Aneta Ragieacitye fF

of C HORN V

sssu

f .

In MARLOWE VS. VIL £ OF WAUCONDA, 91

Ii. . Srd 874, 415 NE 2nd 690 (1981), a Second District

case, Court said: 3 have also contended they

were denied due in that had a

interest in the building permit, with defen-

dants could not interfere absent prior notice and hearing

It is well that a post deprivation hear-

ly well Se ee

procedural due violation where he declines to pur-

Ee aN

—Za—

pepe & rocess issue,

the case of ILLIN IS BEL TELEPHON COMPANY

VS. ALLPHIN, 60 Ill. 2nd 350, 326 NE 2nd 737 (1975)

8 ee enna ete se

as to messages was involv

tive relief sought in the Complaint. The Court said:

the doctrine of exhaustion has long been a basic

ple of administrative law—a party aggrieved by

stirs action ortieatliy simint anit tentont 4a We ate

without first all administrative remedies available

to him . ih seta Cun ae

rule which, with certain e udes appellate

the reasons te ns cles tie seco (1) it allows

pe aoa semsene ps cdtre brah dy age LB Bo

agency an opportunity to its expertise;

= senbetea chien totes ped All jana

review unnecessary

tons have recognized that the exhaustion doctrine,

nicl apple, Sruld tometines produce very brah nd

results. While our courts have required com-

ere strict compliance with the exhaustion rule, ex-

where multiple remedies exist before the same zoning

board and atleast one has been exhansted. Be her par

irreparab harm result from urther pursuit

ministrative remedies . . . It is not our intention by this

to affect these exi exceptions.” The Court

OWENS- ILLINOIS G Co. VS. MC ag

pra nt grethay Bitar re bis he Set Are sare se

an iHegal tax can be

preg wetter ho Cast eel set

as to those situations covered by the Administrative Re

We belies belive this rang ie ga the ex-

In PEOPLE EX REL KORZEN VS. FULTON

MARKET COLD STORAGE COMPANY, 62 Ill. 2nd 443,

—24a—

343 NE 2nd 450 (1976), the Court said: “If it were shown

that there was no means by which the reduction in the

assessed valuation of objector’s property could be effected

partapa be argo! tnt the fling <i tke eonplaba wee

per’ that the the complaint was

meh Guesioad.” Wat te the fuluoe to Seen Go emia

trative remedies was held to bar the action.

In APPLICATION OF THE COUNTY TREASURER

VS. WILLS, 53 Ill. App. 8rd 760, 11 Ill. Dec. 519, 368

NE 2nd 1127 (1977), a Fourth District case, general taxes

had n paid under protest and then objections were

Circuit Court. The Motion to Dismiss was

ted, 0 ground that the taxpayer had not pur-

i tive remedies. The notice had been

published’in a | , and notice had been mailed

to the Y held that there was no right,

here, to judicial review, even fraudulent assess-

hausted. One exception to this doctrine has been recog-

nized: a judicial review is permitted where the taxpayer

has been deprived of his administrative Sy ky oe

fraud on the part of administrative officials.’’ Court

noted the exception in HOYNE SAVINGS AND

LOAN OCIATION VS. HARE, 60 Ill. 2nd 84, 322

NE 2nd 833 (1974).

In HOYNE SAVINGS AND LOAN ASSOCIATION

VS. HARE, 60 Ill. 2nd 84, 322 NE 2nd 833 (1974). There

tiff’s was grossly excessive. No notices had

—25a—

court to adhere to a — a which would require

that all-relief from frandul excessive assessments be

leh pgproe | uity and a court of equity is not

by strict ol but may shape its remedy

~ meet the demands of justice in every case, however

peculiar.” But it was held that this ruling applied onl

to the 1971 tax, and not to the 1972 tax, where Plainti

elected not to use statutory procedures, and thus the

on nt, probably excessive also, was affirmed for the

tax.

In CLARENDON ASSOCIATES VS. KORZEN, 56 II.

2nd 101, 306 NE 2nd 299 (1974), it was noted that in tax

matters Equity will not grant relief where there is an

adequate remedy at law, with exceptions of an unauthor-

ized tax and where levied on exempt property. The Court

noted that, in light of the Act of 1983, giving the right

to y under protest and then request , the cases

of ‘odalently excessive assessments can no 0 have

direct equity action in over-valuation cases, but Court

noted: “There will be cases of fraudulently excessive

assessments where the remedy at law will not be ade-

quate and injunctive relief should then be available.” But

_ ho such equitable relief was held available in this case.

In KORZEN VS. COMMERCIAL STAMPING AND

FORGING, INC., 42 Ill. App. 3rd 895, 4 Ill. Dec. 562,

356 NE 2nd 844 wes By ra District case, the Court

held that the pre- ent requirement was constitutional,

under the Illinois Constitution of 1970.

In CHICAGO SHERATON CORPORATION VS.

ZABAN, 71 Ill. 2nd 85, 15 Ill. Dec. 634, 373 NE 2nd 1318

(1978), the Plaintiff had filed for Injunction and other

relief, alleging excessive assessments. Errors in the

assessment were admitted. The Court cited CLAREN-

DON ASSOCIATES VS. KORZEN, 56 Ill. 2nd 101,

where “. . . the court held that equity will not enjoin the

collection of taxes based on a constructively fraudulent

- assessment unless the assessment is so fraudulently ex-

cessive as te render the remedy at law unavailable to the

’ The essential inquiry then is, did the Plaintiffs have an

—26a—

plaintiff.” But such a situation was not ge in this

case. The Court held that the Plaintiff had the right,

under the law, to file objections and Py ae protest,

and that the failure to do so bars the claim. The Dismissal

Order of the Circuit Court was affirmed.

In IN RE APPLICATION OF COUNTY TREASURER

VS. PIPER’S ALLEY CORPORATION, 35 Ill. App. 3rd

449, 342 NE 2nd 249 (1976), a First District case, the

Court, saift “. . . and in LaSalle National Bank vs. County

of Céok (1974), 57 Ill. 2nd 318, 312 NE 2nd 252, the court

stated that an excessively high assessment does not come

with the ‘ambit’ of a tax unauthorized by law.” The Court

then held that the failure to pursue administrative reme-

dies defeated the action here.

In DOCKSIDE DEVELOPMENT CORPORATION

VS. TULLY, 78 Ill. App. 3rd 482, 33 Ill. Dec. 431, 396

NE 2nd 1155 (1979), a District case, the Court said:

“The general rule that applies in the field of taxation is

that where a taxpayer has an adequate remedy at law

pose Aes om Berge ys en unless the tax is un-

i y law or is levi vengeee tled go, | <e

The remedy provided by law ‘for the recovery of illegal

taxes paid on real estate is the statutory remedy of pay-

ing the tax under protest and filing an objection to the

application for judgment.” The Circuit Court, here, had

issued an injunction, and was reversed.

that it was necessary to follow in the

—27a—

the assessments in question by 10% without either notice

or an rtunity to be heard. But the Board of Review,

be dolivakwd to the Property Tex Appeal Board, and publi

- to y "

cation was made before this. The Poantitts admittedly had

per notice of this. ILLINOIS REVISED STATUTES,

ter 120, Sections 590.1, 592.1, 592.2, 592.2a, 592.3,

592.4 and 592.5 deal with the duties and activities of the

Property Tax Appeal Board for review.” Section 592.3

the case at bar, chose not to afford themselves of this

rocedure, but filed their action under the Federal Civil

ights Act.

laws. Under the case law, both F and State, there

is no ion in the mind of this Court that the answer

—28a—

tutional issues. But the issue of Exhaustion of Remedies

is closely related, although certainly not the same, as the

ao issues, and is, in the opinion of this Court,

relevant.

Also, it is true that other than cases of the United

States Supreme Court, Federal cases are not binding law

upon this Court, but only rider? But in dealing with

the proper interpretation of a Federal statute, certainly,

even if only advisory, such cases must be closely con-

sidered by this Court.

This cause was argued, as to the Motion for Judgment

on the Pleadings, on March 17, 1982, and then taken

under advisement. The Docket Sheet indicates that the

Brief of Defendants had already been filed with the Court,

and that Plaintiffs were given 10 days from March 17,

1982 to file Plaintiffs’ Brief, the same being filed March

31, 1982. No further Briefs were designated by the Docket

Sheet, but the notes of this Court indicate that after the

filing of Plaintiff's Brief, Defendant was to have an addi-

tional 14 days to file Reply Brief. It is noted that Plain-

tiffs Brief was, in fact, filed 4 days late. Defendant did

not file any Reply Brief within the designated 14 days,

visement endar” and d ted this case as out of

advisement on April 18, 1982, and, with late , this

should have been April 15, 1982. Due to —

FE:

LeePe

ree

—29a—

could have been made, and it would have, if within reason,

been granted. The time of Courts, in the opinion of Coun-

sel for Defendants, may or may not be of any value, but

the administration of justice for, to the best of one’s

wong | an adherence to schedules, including that of Brief-

ing. It was within the discretion of this Court to deny

the right to file the late Brief, but this Court seeks in

all matters to be fully advised so that the decisions of

this Court, whenever possible, will be in conformance with

the law. Thus this Court did allow the filing of the Re-

ply Brief, and has considered the same. If it is noted that

several of the cases cited in this Order are ones not cited

in the original Briefs, but are cited in the Reply Brief,

this Court will explain that this Court maintains a loose

leaf system of case law, and often, in making decisions,

goes nig ey cases cited in the Briefs. The maintenance

of case law under Taxation, Constitutional Law, and Civil

Rights, have been utilized by this Court. The Order was

9/10 completed before this Court read the Reply Brief.

After reading the same, this Court sees no occasion to

change the er.

The Motion for Judgment on the Pleadings is allowed,

and this Court finds the issues of this case against Plain-

tiffs and in favor of Defendants, and the cause of action

is dismissed, as a final order of dismissal, with costs taxed

to Plaintiffs.

The Clerk is ordered to send copy of this Order to all

counsel of record.

8, 1982 /s/) Thomas W. Vinson

Date Judge

—30a—

Ill. Rev. Stat. ch. 120, § 501(a) (1979)

Where real p is classified for of taxa-

tiem Sn socnedince wie Heaton 4 of Astle UX of tes Con

stitution and with such other limitations as be pre-

scribed by law, such classification must be estab by

ordinance of the county board. If not so established, the

classification is void.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.