# Petition — Board of Review v. Beverly Bank > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1240%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1984 - **Citation:** 466 U.S. 951 ## 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 ae err tei al [*s ne Aiea ae i Hea et eR | 4 ay 3 HOBOS a ni BES sie 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: I. 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 II WHERE A STATE STATUTORY AF- FORDS A REMEDY, THE PURPOSE OF . | r : “ a ’ : 7 aa == ” —, 1 ' ? ~ ; Le ea es ee ee a ee ee eee Page 1 iti 2 2 8 8 . bs "Wah Dp hee el ti! 4 — 7 Il. 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. 11 13a l4a ~ F So 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 eae has been recognized as having a rational basis and thus does not violate the constitution. Federal courts have said that : 4 : | : 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 ale Hf ~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 E E fF i z8 i ve 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 g - : B 2, z i : : : f] Re —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 . ‘ 54 S ; . : 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- : Pp 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 r cea i +E Hie S z & 9 3 8 é ms 35 3 ES Z8ES by 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. i Hl 2 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 ; iF . 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 as 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 2 co i ne i FA 1 i a2 e : > 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 i g, E 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 S : be sssu : 3 : f . vf ' 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 —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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1240%3A1. Public record. Not legal advice.