# Opposition Brief — Harte v. Lehnhausen > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_1393%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1975 - **Citation:** 423 U.S. 912 ## Text INDEX Ee Che CE Lie hala n'ss AVRNEMAS SER EAA KS I iy cna Gk ene eh asee nein se ne aon es I eV cele se MEAR MERRION © ENS 8 Reasons for Denying the Writ ..................... EEE SE chaniewmeiin ss cictventutueteccedssess TABLE OF AUTHORITIES Clarendon Associates v. Korzen, 56 Ill. 2d 101, 106, 108, 306 N.E. 2d 299 (1973) ...........2..eeeeeeee 10 Davis v. Board of Education, 323 Tll. 281, 282, 154 N.E. Sia ae aE Dest nO ae 9 Eichman v. Anderson, 23 Ill. App. 2d 329, 333, 162 8 ey gs Re rT oer 9 Hammer v. Lehnhausen, 60 Ill. 2d 400, 328 N.E. 2d 11 SES Cd Deu chs chaGd be Wabene sk REA Gah DTN RE SANE EAS er iit) ero eee reer neers 10 Ss Se ND enn sc Sok dcddkw dee Wbsees wavwekves vad 5 iii ee ee eS NN og eo a Bos 5 AIRSET SRE ar ey RR nance 6, 8 a ee 5 5 RINNE MRE Rep a eee aia eciiae 5 I es ee a 5 nr ia a es 5 WU co tg oe Ns 10 Attorney General’s Opinion, File No. S-404 (February et oe ee ee ee eae eee eee ee es | oe eee IN THE Supreme Court of the United States Octoser Term, 1975 No. 75-253 CLARE HARTE, on her own behalf and on behalf of all citizens and taxpayers of Cook County, Illinois, Plaintiff -Petitioner, vs. ROBERT J. LEHNHAUSEN, Former Director of the De- partment of Local Government Affairs, State of Illinois; MICHAEL J. BAKALIS, Superintendent of Public In- struction, State of Illinois; and FRANK A. KIRK, Director of the Department of Local Government Af- _ fairs, State of Lllinois, Defendants-Respondents. BRIEF IN OPPOSITION TO PETITION FOR WRIT OF CERTIORARI 2 FRANK A. KIRK, Director of the Department of Local Government Affairs and DR. JOSEPH M. CRONIN, State Superintendent of Education, by WILLIAM J. SCOTT, Attorney General of the State of Illinois, file this brief in opposition to the Petition for Writ of Certiorari to the Supreme Court of Illinois. OPINIONS BELOW The opinion reported at 60 Ill. 2d 542, 328 N.E. 2d 543 is one of a series of interrelated cases decided by the Su- preme Court, or now pending before the Llinois courts, involving the implementation of full value property assess- ment, classification of real property and intra and inter- county equalization. Two of these related cases are re- ported at 58 Ill. 2d 266, 319 N.E. 2d 55 and 60 Ill. 2d 400, 328 N.E. 2d 11. QUESTION PRESENTED Whether it is an abuse of judicial discretion to order the prospective remedy of a long standing problem and to re- ject non-statutory, burdensome and impractical proposals for retroactive relief. STATEMENT OF THE CASE: The Llinois Supreme Court held: ‘‘In our opinion, however, it would be comp!etely in- appropriate to direct the Superintendent of Public Instruction to distribute school aid in a manner con- trary to law in order to remedy the mistakes of other governmental departments which have ignored the law. Furthermore, to utilize one multiplier for purposes of taxation and a different one for other purposes, such as computing State school aid as urged by [petitioner] does nothing to resolve the fundamental problem, which is the failure of both local and State assessing authorities to implement the statutory system for property assessments designed to achieve uniform equalized assessments among the counties at 50% of actual value. Nor does [petitioner’s] remedy alleviate similar problems in other areas, such as public aid, arising from this nonfeasance. While not of major significance in the context of this case, adoption of [petitioner’s] suggested remedy would compel tax- payers in those few counties with equalized assessed valuations higher than Cook to contribute portions of their sales and income tax payments (the sources of the common school fund) to make up the amount [peti- tioner] claims due in Cook County school districts. The problems presented by this case are the direct result of the failure of governmental officials to per- form their duties in the manner prescribed by law. As we indicated in People ex rel. Hamer v. Jones (1968), 39 Ill. 2d 360, 372, these problems ‘‘do not readily lend themselves to judicial solution,’’ and, as the trial court here indicated in denying the preliminary injunction, the remedies sought may cause such additional diff- culty, delay and expense as to make their use impracti- 4 cal. That, in our judgment, is true here as to past years. As to equalized, assessed valuations for 1975 taxes, payable in 1976, a different situation exists. As to them our judgment in Hamer v. Lehnhausen (1975), 60 Ill. 2d 400, should prove dispositive and eliminate inequities in future years.” —- 5 REASONS FOR DENYING THE WRIT I The Illinois public school system (as most other services provided by local governmental units) ‘is supported by a tax on the real property located within the loca] taxing body. (Ill. Rev. Stats. 1973, Chap. 122, § 10-20.3, § 17-2) Each school district (and all other local governmental units) adopts an annual budget, and authorizes a tax levy to meet the district’s needs as provided in the budget. (Ill. Rev. Stats. 1973, Chap. 122, § 17-1, § 34-43, 34-44, 34-53) The capacity of the taxing body to raise revenue by a levy is directly related to the total value of its taxable property as equalized. [See e.g. Serrano v. Priest, 96 Cal. Reptr. 601, 487 P. 2d 1241 (1971); Rodiguez v. San Antonio Independ- - ent School District, 337 F. Supp. 280 (W.D. Texas, 1971), rev. 411 U.S. 1,96 S. Ct. 1278 (1973)] The taxing capacity of school districts is enlarged by increases in aggregate assessed valuation, and diminished by decreases. Indeed, the School Code was amended in 1972 (ill. Rev. Stats., 1973, Chap., 122, §34-44.1) to author- ize the Chicago school district to adopt a supplementary budget for the use of added potential revenues when the value of taxable property in the school district is increased by the establishment of a new and higher equalization mul- tiplier. . However, it is the magnitude of the budget and tax levy when extended to individual parcels of real estate, not level of assessment, which determines the actual tax to be col- lected from each taxpayer. To encourage a state-wide foundation level of expen- ditures for public education, when a school district has levied taxes upon itself at prescribed minimum qualifying rates, the School Code provides for an ‘‘equalization quo- ta’’ from the State common school fund to supplement the 6 district levy so as to produce the sum of $520 per pupil in average daily attendance. (Ill. Rev. Stats. 1973, tig 122, § 18-8) No school district receives the ‘‘equalization quota’’ except as its local taxing effort at the qualifying rate fails to produce $520 per pupil. Some districts tax them- selves at less than the qualifying rate and receive no ‘*equalization quota’’ at all. Most districts tax themselves in excess of the qualifying rate to enable education expen- ditures in excess of $520 per pupil. The Chicago school district taxes itself at the maximum statutory limit. Since computation of any State supplement is interre- lated with the value of taxable property as equalized by the Department of Local Government Affairs, as revenues produced at the qualifying tax rate decline, the amount of State supplement necessary to produce $520 per pupil increases. For most Cook County school districts, however, assess- ment at less than full value as authorized by statute would mean losing approximately $2 in budgeted tax rev- enue for every $1 gained in State aid. Consequently, any decrease in the ‘‘multiplier’’ to effect equalization of Cook County real property at less than the statutory 50% of actual value, as petitioner argues, would actually produce unmanageable deficits for the various county school districts unless compensatory tax increases could be enacted. Moreover, the Revenue Act provides that the equaliza- tion factor or ‘‘multiplier’’ is certified to the County Clerk for all taxing purposes, and used to establish taxes to be extended by all the county taxing bodies. (Ill. Rev. Stats. 1973, Chap. 120, § 632, 643; Tr. 545-547) Any change in the ‘‘multiplier’’ intended to produce a reduction in 7 assessed valuation for school districts would also simul- taneously shrink the tax base of al] other major taxing bodies and plunge them into unexpected deficits and chaos. The very issue raised by Petitioner came before the IIli- nois General Assembly when the Department of Local Gov- ernment Affairs proposed to reduce the Cook County ‘‘multiplier’’ from the existing 1.59 to 1.48. Strenuous ob- jection was voiced by the school districts and taxing bodies to be affected, and P.A. 78-1097, (Ill. Rev. Stats. 1973 Chap. 120, § 643), effective July 26, 1974, was hurriedly enacted to mandate a freeze of the Cook County multiplier at the higher 1.59 rate certified in 1972. It should also be noted that, as a consequence of classi- . fication, Petitioner’s residential property is actually as- sessed substantially less than the statutory 50% of ac- tual value, and even after equalization remains at a lower level of assessment than identical parcels of residential property in downstate counties. Non-uniformity is inherent in a classification system, and is recognized and embodied in the 1970 Illinois Con- stitution [Art. IX, § 4(b)] and amendments to the Reve- nue Act of 1939 [inter alia, Il]. Rev. Stats. 1973 Chap. 120, § 482(24), § 501 (1)]. In People ex rel. Kutner v. Cullerton, 58 Tll. 2d 266, 319 N.E. 2d 55, the court found that lack of uniformity per se did not constitute a viola- tion of the due process and equal protection clauses of the constitutions of the United States and Illinois. Moreover, Cook County is accorded special classification under the Revenue Act in many different respects. Be. In both People ex rel. Hillison v. C.B. & Q. R.R. Co., 22 Ill. 2d 88, 102 (1961) and People ex rel. Kohorst v. G.M. & O. R.R. Co., 22 Til. 2d 104, 112 (1961) the allega- tion had been made that taxpayer’s property was assessed 8 by the Department of Revenue, predecessor to the Depart- ment of Local Government Affairs, at 100% of full, fair cash value while locally assessed property, after equaliza- tion, was assessed at levels ranging from 38.50% (22 IIl. 2d at 114) to 55% (22 Ill. 2d at 102). ' This Court there stated (p. 102) :- ‘*The theory of defendant’s tax objection is construc- tive fraud. Logically, therefore, the measure of recov- ery should be the amount by which it was ‘construc- tively defrauded’ by the failure of the assessing and equalizing authorities to comply with the statutory mandate of assessing and equalizing locally assessed property at its full cash value. This would be the dif- ference between defendant’s 1958 taxes and _ the amount its taxes would have been had locally as- sessed property been equalized at a level represent- ing 100% of full cash value. Such a measure of re- covery is not only more consistent with the theory of constructive fraud, but also involves a less obvious de- parture from the statutory requirement of full value assessment. . . . the departure from the law on the part of the Department of Revenue was not in assessing defend- ant’s property at its full value, but in failing to equal- ize locally assessed property at its full value.” Because State school aid is a residual grant program, contingent upon the magnitude of local tax collections (Ill. Rev. Stats. 1973 Chap. 122, § 18-8), Petitioner seeks to reassess and re-extend the taxes in 1969 through 1972 in order to claim an increased ‘‘equalization quota.’’ If excessive taxes were collected in those years, the taxpayer must be entitled to a refund from the taxing bodies. It is undisputed by Petitioner that the tax years in dis- pute are closed and all taxes expended for their budgeted 9 purposes. In effect, then, Petitioner would have the court go back and attempt to unscramble an egg. The possibility of a retroactive reassessment was con- sidered in an Attorney General’s Opinion, File No. S-404, issued February 16, 1972 to the Department of Local Government Affairs. At page 6 of the opinion, it con- cludes : ‘*’.. you have asked whether the Department has the power to order a reassessment for the year 1970 and prior years on which taxes have been extended and collected. The foregoing statute [Chap. 120, § 621] clearly states that no substitute assessment shall in- validate any prior assessment as to taxes extended thereon. Since the taxes for the year 1970 and prior thereto have already been extended, I am of the opinion that the Department would not have the power to order a reassessment for the year 1970 and prior thereto.’’ See also People ex rel. Cannella v. City of Chicago, 7 Ill. 2d 416, 419-420, 131 N.E. 2d 98, 100 (1955); People ex rel. Town of Cicero v. Sweitzer, 339 Ill. 28, 44, 170 N.E. 728, 734 (1930); People ex rel. Stettauer v. Olsen, 215 Tll. 620, 624, 74 N.E. 785, 786 (1905). The law has long been settled that even an illegal tax voluntarily paid cannot be recovered by the person pay- ing it. Eichman v. Anderson, 23 Ill. App. 2d 329, 333, 162 N.E. 2d 673, 675 (1959) ; Davis v. Board of Education, 323 Ill. 281, 282 (1926); People ex rel. City of Highland Park v. McKibbin, 380 Ill. 447, 452, 44 N.E. 2d 449, 451 (1942). See also, S.A.S. Co. v. Kucharski, 53 [ll. 2d 139, 142 (1972). In People ex rel. Eitel v. Lindheimer, 371 Ill. 367, 371, 21 N.E, 2d 318, 320 (1939), this court said : 10 ‘*|. . any right to a refund or a credit of taxes is purely of statutory origin, and in the absence of an authoritative statute, taxes voluntarily, though erro- neously, paid, cannot be recovered, nor even volun- tarily refunded by a county, although there be jus- tice in the claim.”’ Petitioner makes no allegation that in the years in dis- pute, taxes were paid under protest as provided by statute. (Chap. 120, § 675, § 716; Chap. 127, § 172) In Clarendon Associates v. Korzen, 56 Ill. 2d 101, 106, 108 (1973) the court concluded that, to obtain relief when assessment levels are disputed, the taxes must be paid un- der protest and objections filed to the application for judgment. Similarly, the court took pains to state in Peo- ple ex rel. Hillison v. C.B.&Q. R.R. Co., 22 Til. 2d 88, 103 (1961) and People ex rel. Kohorst v. G.M.&O. R.R. Co., 22 Ill. 2d 104, 114 (1961), where equalization adjustments were allowed: ‘*.. . the amount of recovery is, of course, limited by the amount of the protest.’’ Since all tax monies belatedly being disputed by Peti- tioner have been collected and expended, and since no protest payments were made, and no other statutory procedure exists for reassessment or adjustment of past tax years, there can be no retroactive review. IIl. Stripped of its ambiguities, Petitioner has really peti- tioned the Court to direct payment of millions of dollars from the State common school fund although no statutory authority exists for such a procedure. Where money claims are involved, the Illinois Court of Claims Act, Section 8(a), Ill. Rev. Stats. 1973, Chap. 37, § 439.8 (a) provides: 11 ‘“The Court of Claims shall have exclusive jurisdic- tion to hear and determine the following matters: (a) all claims against the State founded upon any law of the State of Illinois, or upon any regulations thereunder by an executive or administrative officer or agency... .’’ Article VIII, Section 1(b) of the 1970 Constitution of the State of Illinois provides: ‘“‘the State . . . shall make payments from public funds only as authorized by law or ordinance.’’ The State Controller Act, Section 9, Ill. Rev. Stats. 1973, Chap. 15, § 209 provides: ‘‘No payment may be made from public funds held by the State Treasurer ... except by warrant drawn by the Controller and presented by him to the Treas- urer ...No warrant for the payment of money by the State Treasurer may be drawn by the Controller without the presentation of itemized vouchers indi- eating that the obligation or expenditure is pursuant to law and authorized... .”’ Petitioner desires remedial and corrective changes to existing statutes. Only the legislature has the constitutional power to alter the manner in which the common school fund shall be allocated and apportioned, and in the absence of en- abling legislation, neither the Court nor Petitioner have discretion to distribute public funds as Petitioner seeks. By either a public policy or a common sense test, the conclusion to be drawn is the same: if certain school dis- tricts outside Cook County have been unjustly enriched due to underassessment, the proper recourse is not an action which ignores the law and wreaks havoc upon the districts which are in compliance with the Revenue Act and School Code. 12 CONCLUSION The Illinois Supreme Court has assumed jurisdiction to prospectively resolve the problem of full value assess- ment and equalization as provided in the Illinois statutes. The retroactive solution advocated by Petitioner is con- trary to law, impractical and would occasion confusion, expense and other inequities. The Illinois Supreme Court has properly exercised its judicial discretion. Wherefore respondents respectfully pray that the peti- tion for writ of certiorari to the Illinois Supreme Court be denied. Respectfully submitted, Wuuum J. Scort, Attorney General of the State of Illinois, 160 North La Salle Street, Chicago, Illinois 60601, Attorneys for Respondents. Herpert Lee Capian, Assistant Attorney General, 312/793-3587 Of Counsel. 13 No. 75-253 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1975 CLARE HARTE, on her own behalf and on behalf of all citizens and taxpayers of Cook County, Illinois, Plaintiff -Petitioner, vs. ROBERT J. LEHNHAUSEN, Former Director of the Department of Local Government Affairs, State of Illi- nois; MICHAEL J. BAKALIS, Superintendent of Pub- lic Instruction, State of Illinois; and FRANK A. KIRK, Director of the Department of Local Government Af- fairs, State of Illinois, Defendants-Respondents. CERTIFICATE OF SERVICE I, Herbert Lee Caplan, Assistant Attorney General, a member of the Bar of the Supreme Court of the United States, and counsel for the Respondents, hereby certify that I have this 29th day of September, 1975, served three copies of the Brief in Opposition to Petition for Writ of Certiorari upon William J. Harte, Kevin M. Forde, 111 West Washington Street, Chicago, Illinois 60602, by de- positing same, first class postage prepaid, in the United States mail chute at 160 North LaSalle, Chicago, Ilinois. All parties required to be served here have been served. HERBERT LEE CAPLAN --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_1393%3A2. Public record. Not legal advice.