Opposition Brief — Hutter v. Cook County

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IN THE

Supreme Court of the United States

Ocrorer Team, 1972

No. 72-963

JOHN A. HUTTER, et al.

Petitioner,

Vs.

THE COUNTY OF COOK, a body politic and corporate,

et al.,

Respondents.

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‘

‘Ou Appeal From The United States Court of Appeals,

Seventh Circuit No. 72.1316

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

Due to the inadequacy of the Petitioner's, Hutter (here-

after Hutter), statement of the issues in this case the

Respondent, the COUNTY OF COOK (hereafter Cook

County) presents the following as the issue in the case:

PE OOO PT Ge

District Court for tae Northern District of Illinoix al

leging a violation of the equal protection clause of the

Fourteenth Amendment of the United States Constitution.

The jurisdiction of the federal courts was alleged under

28 U.S.C. §1331. The basis for the violation was alleged

to be the application of a percentage rate in the assess

ment of his real property greatly in exces« of the per-

contage rate used for other realty.

The «uit involved the tax assessments for the years

1968 through and including 1971. Hutter alleged the nit

was a class action and claimed one half billion dollars

($500,000,000.00) damages.

Cook County moved to dismiss the complaint on several

grounds. The district court dismissed hased upon the

following: (1) the suit was barred by 28 U.S.C. $1341

which the Court stated was not restricted to suits seeking

only equitable relief, (2) that the failure by Hutter to

bring the action in the state court rendered the «nit

stale and thus waived constitutional objections, and (3)

that the court should abstain from deciding this cas

absent an action in the state courts. The United States

Court of Appeals for the Seventh Circuit affirmed the

decision solely on the basis of proper application of the

doctrine of abstention. From this decision Hutter ha

filed the present Petition for a Writ of Certiorari.

We express no opinion wi

plicability of §1341 of title 28; nor do i

that discussion of waiver of constitutional rights is

appropriate. We affirm solely on the ground that ap-

plication of the abstention doctrine was proper in

this case. (See order attached as exhibit A.)

in view of that statement, the only issue directly before

the court in this case ic whether the Court of Appeals

erred in finding that the District Court's application of

the doctrine of abstention was proper. It is Cook County's

position that there is ample authority supporting the use

of the doctrine in the present case and that its use was

Proper. ‘

ically, Hutter is challenging Ilinois’ Revenue Act of

erty taxes by the various counties in the state. It is the

primary source of funds for local government within

the state.

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There are numerous provisions at each step in the

taxing system for the taxpayer to challenge the amount

of the tax. There is the opportunity to revise the as-

sessment with the county assessor (Ill. Rev. Stats., Ch.

120, Sec. 579) . The taxpayer can challenge his assessment

before the Board of Appeals (Ill. Rev. Stats., Ch. 120,

Sees 593-606). In addition, he can challenge the tax in

the Circuit Court of the county wherein the property is

located by payment under protest (Ill. Rev. Stats., Ch. 120,

Sec. 675). Beyond the purely statutory remedies provided

for within the tax system itself, the taxpayer also has

available an action in Chancery requesting the extraor-

dinary remedies suitable to that court. Failing these

possibilities post judgment relief may also be available

(Ill. Rev. Stats., Ch. 110, See. 72). As is readily seen the

cystem embodied by the Revenue Act of 1939 provides

many avenues of possible relief to the taxpayer. At the

same time, it helps to assure the governmental unit that

adequate revenue will be forthcoming at designated

periods of time.

This is the system which Hutter is attempting the chal-

lenge in the Federal Courts. He alleges to bring this

action on behalf of himself and all others similarly situ-

ated. He alleges a violation of his right to equal pro-

tection under the law. He has, however, ignored the very

statutory provisions designed to assure him of his right

to equal protection and due process.

The doctrine of abstention has had a varied history in

the Federal Courts. During that history, however, it has

invariably been wed to the principle of comity. The US.

District Court Judge Hubert Will recognized this when

he wrote his opinion abstaining from exercising juris-

diction in the present ease. He stated at page 9 of his

memorandum opinion:

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“Even if we have jurisdiction to rule upon the

plaintiffs’ claims on the merits after the state courts

first have ben presented with this opportunity, to do

so now in the type of lawsuit involved herein would

upset the delicate balance of comity long recognized

by Federal Courts and by Congress in 28 U.S.C.

§1341. Thus, even if the restrictions of Section 1341

do not technically apply to this suit, the rationale be-

hind that statute convinces us to refrain from ex-

ercising such jurisdiction as we might then possess

prior to any proper attempts on the part of the

plaintiffs to seek resolution of these issues in the

state courts, . . . .” (See copy attached as Exhibit

B). '

Implicit in Judge Wills’ statement is the understanding

that:

“Few public interests have a higher claim upon the

discretion of a federal chancellor than the avoidance

of needless friction with state policies . . . . These

eases reflect a doctrine of abstention appropriate to

our federal system whereby the federal courts ex-

cisering a wise discretion, restrain their authority

because of scrupulous regard for the rightful inde-

pendence of the state governments and for the smooth,

working of the federal judiciary. Burford v. Sun Oil

Co., 319 US. 315, 332 (1943).”

Decisions by this Court have designated three basic

criteria for application of the doctrine. Any one of these

factors renders abstention within the discretion of the

District Court. In Martin v. Creasy, 360 U.S. 219 (1958)

at page 224, this Court stated most succinctly:

“Reflected among the concerns which have tradi-

tionally counseled a federal court to stay its hand

are the desirability of avoiding unseemly conflict be-

tween two sovereignties, the unnecessary impairment

of state functions, and the premature determination

of constitutional questions.”

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The present case reflects, at a minimum, the first two of

these criteria. First, it presents a conflict between the

‘state and federal courts in that a state procedure for

judicial review is cireumvented by federal court review.

Second, federal review of such cases allows a taxpayer to

frustrate the state statutory provisions requiring pay-

ment of the taxes under protest as an element of review.

Such circumvention clearly impairs the functioning of

the state procedure outlined above.

In Great Lakes Dredge and Dock Co. v. Huffman, 319

US 293 (1943) this Court was faced with a suit very

similar to the present one. The suit was brought in the

Federal District Court of Louisiana, challenging a Louisi-

ana tax which was alleged to be unconstitutional as it was

applied to the plaintiff. The Louisiana statute provided

a method of challenging its taxes which required payment

of the tax followed by a suit for its recovery. This

court affirmed the decision of the lower court dismissing

the action stating:

“. .. it is the court’s duty to withhold relief, when

as in the present case, it appears that the state

legislature has provided that on payment of any chal-

lenged tax to the appropriate state officer, the tax-

payer may maintain a suit to recover it back.

- . - This affords an adequate remedy to the tax-

payer, and at the same time leaves undisturbed the

state’s administration of its taxes.” Swpra at pages

300, 301.

Additional authority for abstention in such cases can be

found in this Court’s decision in Toomer v. Witsell, 334

TS. 385 (1947).

The present suit involves similar facts in that the

illinois tax system provides for payment of the tax as-

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sessed and filing of an action to recover the amount alleged

to be due the taxpayer. Hutter also seeks a declaration

that the assessment provisions are unconstitutional as

applied to him. It differs only in that Hutter seeks

damages in addition to the declaratory judgment. The

authorities cited above show clearly that the doctrine

of abstention was properly applied by both the District

Court and the Court of Appeals.

In the Supreme Court Rules, 28 U.S.C. Rule 19, this

Court has set out the basic rationale which it will con-

sider in determining review on a writ of certiorari.

That rule states that there must he some “specal and im-

portant reasons” for granting review. Such reasons are

not present in this case. There is here no decision in-

volving conflict between the various Circuits. Nor has

a state question been decided in conflict with state law or

federal law. The case has certainly not decided a federal

question in conflict with decisions of this court. Hutter

in his petition has not even alleged any of the above

factors to induce this Court to review the case. In fact,

he fails to see the issue. He is, even now, before this

Court, stating that the issue is the alleged discrimination

in rates of assessment. This issue has never heen decided

by the District Court or the Court of Appeals. The

issue can only be whether the application of the doctrine

of abstention was proper in this ease.

Even a detailed reading of Hutter’s Petition for Writ of

Certiorari uncovers no rationale for this Court to grant

review. The petition consists primarily of blatant ac-

eusations against public officials in Cook County, Illinois.

There is no reasoning to a logical conclusion. Nor is there

a legal argument presented. It is, further, noted that

BRR PONE TT LILO ELI SEN ELE ON OIE IEEE AS ME I ERS

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Hutter cites not a single authority in support of any al-

legation in his petition. This Court states in its Rules:

Briefs must be compact, logically arranged with

proper headings, concise, and free from burdensome,

irrelevant immaterial and scandalous matter. Briefs

not complying with this paragraph, may be disre-

garded and stricken by the court. 28 U.S.C. Rule 40

(5).

It is suggested that Hutter’s petition is appropriate

matter for the above action.

Hutter is challenging the tax system employed by the

State of Illinois on the basis that it deermeinates avainst

him and members of the class he purjerts to represent.

Said tax system is designed to provide adequate finances

for local government at regular igtervals. But at the

same time, it has built-in administrative remedies for

taxpayers to challenge the assessment of their property.

In addition, it provides for judicial remedy via a suit to

recover the paid tax. Any constitutional issues may be

raised, argued, and preserved for appeal. An appeal may

be carried through to the highest state court and from

there appeal can be made to this Court. Post judgment

relief is also available to the taxpayer when such re-

lief is appropriate. In view of the above, it can only be

concluded that the State of Illinois provides an adequate

remedy to the taxpayer.

Based upon this, the application of the doctrine of ab-

stention is proper. This Court has set out three factors

in its opinions any one of which render abstention within

the discretion of the district courts. Two of those factors

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are present in this case. They are, conflict between two

sovereignties and interference with complex state schemes.

This Court has held that when the above factors are

present and there is an adequate state remedy the federal

courts may apply the doctrine of abstention. The ap-

plication of the doctrine was thus proper in the present

ease.

For the above stated reasons the County of Cook prays

this Honorable Court to enter an order denying Hut-

ter’s Petition for Writ of Certiorari.

Respectfully submitted,

Bernarp Carey,

State’s Attorney of Cook County, Illinois,

500 Chicago Civic Center,

Chicago, Dlinois

Attorney for Respondent.

SHELDON GARDNER,

Chief of the Civil Division.

Paut P. Bienen, Jr.,

DoxaLp P. Sarru,

Assistant State’s Attorneys,

Of Counsel.

SPITE, POLE POOLE LIE IOS, EST FEES PRS MS

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EXHIBIT ‘“‘A”’

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

October 10, 1972

Before

Hon. THOMAS E. FAIRCHILD, Circuit Judge

Hon. WALTER J. CUMMINGS, Circuit Judge

Hon. JOHN PAUL STEVENS, Circuit Judge

. . Appeal from the

JOHN A. HUTTER, et al, United States

Plaintiffs-Ajellants, District Court

Vs. for the Northern

No. 72-1316 District of

COOK COUNTY, ILLINOIS, P. J. f oe

CULLERTON, ASSESSOR, spingeecons

Defendants-Appellees. (71 € 2984)

t Judge Will

ORDER

This is a Federal question (28 U.S.C. § 1331(a)) involv-

ing a suit which seeks damages of one-half billion dollars

and punitive damages for defendants’ alleged violation of

plaintiffs’ Constitutional right to equal protection. The

district court dismissed the complaint. We affirm.

Plaintiffs sue as owners of property in Chicago and in

behalf of all similarly situated property owners. They

ie IGE SONAR NSA ARE TINE EBT AE RS PON TTS II MELE IN MEN Ea SPIE ELI FC SUES ER Oe ee NE me eer

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assert that P. J. Cullerton, Cook County Assessor, vio-

lated their right to equal protection by willfully assess-

ing the taxes on their property at a rate of 70% of its

fair market value while arbitrarily assessing similar prop-

erties at rates of 15-20% of fair market value.

Defendants moved to dismiss upon various grounds.

On February 9, 1972 the district court dismissed upon the

following stated grounds: (1) that the suit was barred

by 28 U.S.C. § 1341 which the district court concluded was

‘*not restricted to suits seeking only equitable relief, that

the doctrine of comity codified in this section prohibits

a narrow reading thereof and that this suit, therefore,

must be deemed to fall within its restrictions;’’ and (2)

even if §1341 did not apply because this suit was tech-

nically one for damages rather than a suit in equity to

‘‘enjoin, suspend or restrain,’’ nevertheless, the taxpay-

er’s failure to raise his Constitutional argument concern-

ing equal protection in a prior state court proceeding

constituted a waiver which precluded this suit. Finally

(3) assuming that §1341 did not constitute a bar and

that there was no waiver, nevertheless the federal court

should abstain until the state courts are given an oppor-

tunity to decide the question.

The plaintiffs-appellants and the defendants-appellees,

Cook County, Illinois et al. have filed briefs with this

Court. On September 19, 1972 the latter meved pursuant

to Circuit Rule 22 for affirmance without oral argument.

We express no opinion with regard to the applicability

of § 1341 of Title 28; nor do we believe that discussion of

waiver of Constitutional rights is appropriate. We affirm

solely on the ground that application of the abstention doc-

trine was proper in this case.

fons Cr > os et: PRE LOE YSOT TR RE Sie ate oot eS A

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As Mr. Justice Harlan indicates in his concurring opin-

ion in Zwickler v. Koota, 389 U.S. 241, 255 (1967), 88 S.

Ct. 391, abstention is appropriate where the order to re-

pair to the state court would avoid the hazard of unset-

tling some delicate balance in the area of federal-state

relationships. See Louisiana Power & Light Co. v. City of

Thibodaux, 360 U.S. 25, 32 (1958), 79 S. Ct. 1070. While

Zwickler v. Koota, supra at n. 4 suggests that the better

practice in a case raising a federal Constitutional claim

is for the district court to retain jurisdiction, rather than

to dismiss, there is ample authority indicating that un-

der the circumstances presented here dismissal is proper.

In Martin v. Creasy, 360 U.S. 219, 224 (1958), 79 S. Ct.

1034, the Court held that a three-judge court convened

to determine the scope of a Pennsylvania statute should

have ‘‘declined to adjudicate this controversy’’ because of

the potential for (1) ‘‘unseemly conflict between two sov-

ereignties,’? (2) ‘‘the unnecessary impairment of state

functions,’’ and (3) ‘‘the premature determination of Con-

stitutional questions.’’ Moreover, in Toomer v. Witsell,

334 U.S. 385, 387-392 (1947), the Court upheld the dismis-

sal of suit brought in a federal district court because:

“‘{a]nother ... statute ... permits any taxpayer who be-

lieves a tax to be illegal for any cause to pay the tax

under protest and then sue in a state court to recover

amounts so paid.”’

Illinois’ Revenue Act of 1939, (Ill. Rev. Stat., Ch. 120,

§§ 482-811), provides a complex method of property tax

assessment and collection. Property owners such as the

plaintiff are afforded an opportunity to complain of as-

sessment before a tax is levied, See, Ill. Rev. Stat., Ch.

120, §598 (Cum. Supp. 1972). After a tax is owing a fur-

ther method of challenging the assessment is afforded by

RGD SLL NESE DLL, NI YIELRLOR ODA NILE ERNE NID aR LRN

paying taxes under protest. Sec, I. Rer. Stat., Ch. 120,

$675. The record in this appeal indicates that the Mr.

Hutter has also filed a challenge to the Illinois Revenue

Act in Illinois Courts without paying taxes due. The chal-

lenge is currently pending before the United States So-

preme Court. Hatter v. Korzen, No. 71-1419, 40 U.S.L.W.

3596.

In addition to the availability to state statutory reme-

dies it is apparent that suits challenging method and

equality of assessment under the equal protection clause

of the Federal Constitution have been considered in the

Illinois State Courts, and there ix no discernible pattern

of prejudice against the taxpayer. See e.g. Proples Gas

Light and Coke Co. v. Stuckort, 286 Ti. 164, People v.

Orvis, 301 Ti. 350, Bestor v. McDonough, 348 Til. 624, and

People v. Pickard, 377 Ti. 610.

The decision of the federal district court is affirmed.

EXHIBIT “B”

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

JOHN A. HUTTER .

CLARA N. HUTTER

Class of Taxpayers who own apart-

ment buildings in Chicago and

Cook County, Illinois, -

Plaintiffs > “1 C 2984

v.

COOK COUNTY ILLINOIS and P. J.

CULLERTON, ASSESSOR,

Defendants. |

MEMORANDUM OPINION

The complaint in this lawsuit purports to state a class

action by the plaintiffs as representatives of the class of

taxpayers who own apartment buildings in Cook County.

Asserting jurisdiction under 28 U.S.C. §1331 and the

Fourteenth Amendment, the plaintiffs allege malfeasance

and discrimination on the part of the Assessor of Cook

County in fraudulently assessing taxes against the plain-

tiffs and the other class members in such a manner as to

violate the equal protection clause of the Fourteenth

Amendment. Specifically, they allege that the Assessor as-

sesses high rise office and apartment buildings at a rate

of their fair market value significantly lower than the

rate at which the plaintiffs’ property is assessed and that

other residential property located on the same block as

RE EE 8 Oe re SEE er

and that we therefore do not possess jurisdiction over

any reason exists pursuant to Jil. Rer. Stat., Ch. 120, § 675,

the suit. The Illinois statute states in pertinent part:

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It has similarly been held that where there is available

an efficient remedy in the state tax agencies and/or courts

whereby a taxpayer can contest the imposition of a dis.

criminatory tax, federal courts are without jurisdiction to

entertain a suit seeking relief, no matter how the suit is

structured or denominated. Great Lakes Dredge & Dock

Co. v. Huffman, 319 U.S. 292 (1943), 63 S. Ct. 1070;

Hackensack Water Co. v. North Bergen Township, 103 F.

Supp. 133 (D.N.J. 1952), aff'd. 200 F. 2d 313 (3rd Cir.

1952); cf., Hillsborough Township v. Cromwell, 326 US.

620 (1946), 66 S. Ct. 445. We conclude from a reading of

these cases, plus the fact that § 1341 is not restricted to

suits seeking only equitable relief, that the doctrine of

comity codified in this section prohibits a narrow reading

thereof and that this suit, therefore, must be deemed to

fall within its restrictions. Accordingly, we must deter-

mine if the Illinois statute quoted above would provide the

plaintiffs with a plain and efficient remedy.

A review of the Illinois tax statutes relating to the pro-

testing of assessed taxes leads the Court to the conclusion

that the plaintiff indeed did possess an adequate and effi-

cient remedy in the state courts, which apparently they

have chosen to bypass rather than following the prescribed

form of lodging their protest at the time that they paid

their taxes. As we read the plaintiff's brief in opopsition

to the motion to dismiss, they are not actually contend-

ing that they are without a plain and efficient remedy in

the state courts but rather are asserting that the require-

ment that they pay their taxes as a condition precedent to

lodging their constitutional complaint against such taxes

is, in and of itself, a violation of the Fourteenth Amend-

ment.

Although we are uncertain as to the relationship of the

constitutionality of the Illinois statute to the issue of

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whether it is speedy and efficient, we believe that even if

such issue is relevant, the plaintiffs’ argument is not valid.

They cite no authority for the proposition that the con-

stitution is violated by a state's requiring a citizen who

believes his tax is improper to pay his tax prior to hav-

ing his challenge heard. Nor can we even imagine the ex-

istence of such authority. Logic dictates that a govern-

ment which relies significantly upon the property tax as

the major source of its revenues must be allowed to con-

tinue to collect its taxes even though a challenge has been

made either to the tax itself or to its particular appli-

cation. If the contrary were true, a local government could

be brought to a total standstill merely because many of

its citizens believed, erroneously or otherwise, that the

taxes assessed were improper. The degree of chaos that

would result from such set of procedures which the plain-

tiffs claim are constitutionally required could clearly lead

to the total breakdown of all local revenue collections.

We conclude that such a system is not constitutionally re-

quired and that Jil. Rer. Stat., Ch. 120, $675, is not un-

constitutional. We further conclude that the plaintiffs

possessed a plain, speedy, and efficient remedy in the

courts of Illinois in which they could have asserted their

claims. Accordingly, the complaint must be dismissed pur-

suant to 28 U.S.C. $1341.

Even if the jurisdictional restrictions of $1341 do not

apply to this suit because a complaint for damages may

not technically be deemed as seeking to *‘enjoin, suspend

or restrain the assessment, levy, or collection”’ of a state

tax, we nevertheless believe that the complaint must be

dismissed. Faced with a suit very similar to the one in-

volved herein, the Third Cireuit has concluded that when

a taxpayer possesses an adequate remedy in the state

courts for challenging taxes levied against him, his fail-

ure to assert the grounds for challenge in the state pro

ceedings renders stale any subsequent suit in the federal

courts based upon those grounds. Hackensack Water Co.

v. Township of North Bergen, 200 F. 2d 313 (3rd Cir.

1952). In that case, the taxpayer argued that it did not

have an adequate state remedy to assert its particular

ground for challenging its tax assessment and that the

personal property taxes assessed for the years 1940

through 1948 were unconstitutional. After concluding that

the taxpayer did possess an adequate state remedy and

that it had never made any attempt to raise in the state

proceedings the type of claim which it was asserting in

federal court (although it had raised other grounds in the

state court), the Third Cireuit concluded that the taxpay-

er’s delay in asserting the alleged unconstitutionality of

the tax caused its claims to become stale. The Court stated:

i whatever right it possessed to object on con-

stitutional grounds. . a aes ae

ery sought by [the taxpayer] under the circumstances

here revealed would seriously and capriciously en-

danger the ordinary functioning of government agen-

cies. 200 F. 2d at 317.

We believe that the Third Cireuit’s reasoning is per-

suasive and that the taxpayers herein are precluded from

challenging in this court the constitutionality of taxes

21

which they have paid and which they never challenged in

the state courts. To allow the plaintiffs to assert their

stale claims would be to encourage the bypassing of a

state system designed specifically to handle such chal-

lenges and the disruption of the orderly processes and

functioning of state and municipal governments. Accord-

ingly, the plaintiffs’ complaint must be dismissed.

Finally, even assuming that 28 U.S.C. § 1341 does not

preclude the taxpayers from bringing this suit and that

they could not be legally deemed to have waived their

elaims by bypassing the authorized state procedures for

challenging taxes for any reason, we would nevertheless

believe that this Court should abstain from exercising

whatever jurisdiction we do possess because of the nature

of the claim asserted in the complaint. The complaint chal-

lenges the heart of the financing system of a state subdi-

vision. Before the federal courts should interfere with this

funetion so peculiarly oriented to the very existence of a

unit of state government, we believe that the courts of

the state should be presented with the opportunity to at

least hear and rule upon the contentions raised. Even if

we have jurisdiction to rule upon the plaintiffs’ claims on

the merits after the state courts first have been presented

with this opportunity, to do so now in the type of law-

suit involved herein would upset the delicate balance of

comity long recognized by federal courts and by the Con-

gress in 28 U.S.C. § 1341. Thus, even if the restrictions

of § 1341 do not technically apply to this suit, the rationale

behind that statute convinces us to refrain from exercis-

ing such jurisdiction as we might then possess prior to any

proper attempts on the part of the plaintiffs to seek reso-

oe wees

22

lution of these issues in the state courts, either through a

protest properly lodged with the payment of taxes or by

a suit in the Circuit Court challenging the constitutionality

of the practices herein complained of.

An appropriate order will enter granting the defend-

ants’ motion to dismiss the complaint.

/s/ HUBERT WILL

United States District Judge

Dated: February 9, 1972

TORENT ERS TE RYLTI MS EE

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