Petition for Writ of Certiorari — Ritter v. Ross

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Case No. 92-2220

SUPREME COURT

OF THE UNITED STATES

October Term, 1993

ELMER RITTER and HELEN RITTER,

Petitioners,

Vv.

PEGGY S. ROSS, STEPHEN D.

MEYER and ROCK COUNTY,

Respondents,

Petition for Writ of Certiorari

to the United States

Court of Appeals for the Seventh Circuit

PETITION FOR WRIT OF CERTIORARI

Thomas E. Greenwald

Ann T. Dempsey

OLIVER, CLOSE, WORDEN & GREENWALD

P.O. Box 4749, Suite 300

Rockford, IL 61110-4749

Telephone 815\968-7591

QUESTIONS PRESENTED

La Whether the Rooker-Feldman

limitation on subject matter jurisdiction

bars Petitioners from bringing

constitutional claims in federal court

when Petitioners were not parties to any

prior state court proceeding because

Petitioners did not receive adequate

notice of the prior state court

proceeding?

II. Whether application of the Rooker-

Feldman doctrine by the Seventh Circuit

Court of Appeals to the facts in this

case is inconsistent with District of

Columbia Court of Appeals v. Feldman, 460

U.S. 462, 75 L.Ed 2d 206, 103 S.Ct 1301

(1983), and creates a conflict in the

United States Circuit Courts of Appeals?

TABLE OF AUTHORITIES

TABLE OF CONTENTS

REFERENCE TO OPINIONS

STATEMENT OF JURISDICTION

CONSTITUTIONAL PROVISION, STATUTES AND

ORDINANCES INVOLVED

STATEMENT OF CASE

ARGUMENT

THE ROOKER-FELDMAN DOCTRINE DOES

NOT APPLY TO THE FACTS IN THIS

CASE

COMPLAINT DOES NOT ATTEMPT TO

APPEAL OR CHALLENGE A STATE

COURT JUDGMENT

NO OPPORTUNITY TO RAISE CON-

STITUTIONAL CLAIMS IN PRIOR

STATE COURT PROCEEDINGS

NO OPPORTUNITY TO APPEAL PRIOR

STATE COURT JUDGMENT .

CONSTITUTIONAL CLAIMS ARE NOT

INEXTRICABLY INTERTWINED WITH

PRIOR STATE COURT JUDICIAL

PROCEEDINGS

CONSTITUTIONAL RIGHTS WERE

VIOLATED BY ADMINISTRATIVE AND

LEGISLATIVE ACTIONS OF ROCK

COUNTY AND ROCK COUNTY

EMPLOYEES

II. APPLICATION OF THE ROOKER-FELDMAN

DOCTRINE TO- THE FACTS IN THIS CASE

IS INCONSISTENT WITH FELDMAN AND

CREATES A CONFLICT IN THE CIRCUIT

COURTS OF APPEALS .... . ** « on

CONCLUSION : «-6“e~—s

APPENDIX

323.

TABLE OF AUTHORITIES

CASES

Blue Cross and Blue Shield v. Weiner, 868

F.2d 1550 (llth Cir. 1989) .... . . 18

Buckley v. Illinois Judicial Inquiry

Board, 997 F.2d 224 (7th Cir. 1993). . 28

Centifanti v. Nix, 865 F.2d 1422 (3rd

ie, SOON 6c sk ee eS oe See

Dist. of Col. Court of Appeals v.

Feldman, 460 U.S. 462, 75 L.Ed 2d

206, 103 S.Ct 1303 . . 17, 25, 27, 28, 34

Gauthier v. Continental Diving Services,

Inc., 831 F.2d 559 (5th Cir. 1987).16, 17

Guess v. Board of Med.. Examiners of

State of N.C., 967 F.2d 998 (4th Cir.

1992) - . J _ — a * . _ - + e _ i . 17

Leaf v. Supreme Court of State of

Wisconsin, 979 F.2d 589 (7th Cir.

1992) * * * oa . * . * o * _ jy 18, 29

Razatos v. Colorado Supreme Court, 746

F.2d 1429 (10th Cir. 1984) ...... 27

Ritter v. Ross, 992 F.2d 750 (7th Cir.

1900). «sh « 6 4s ee ee eee

United States v. Napper, 887 F.2d 1258

(llth Cir. 1989) .....4+-+«4+e4ee-s 18

Valenti v. Mitchell, 962 F.2d 288 (3rd

Gis. 19973) « «1 + © + 4 eS ee Oe

Wood v. Orange County, 715 F.2d 1543

(llth Cir. 1983), 467 U.S. 1210, 104

S.Ct. 2398, 81 L.Ed.2d 355 (1984) ..

«o « @ et@, 19, 20, 21, 22, 23, 29, 328, 3S

STA i}

28 U.&.C. $1257 . 2. -2« «© «© «© © © e.e «© «© 2

28 U.S.C. $1254 ..2« «© «© es eo we ee oe 4

28 U.&.C. $1331 . «2 «© «© © © © © @ @ e SD

28 U.S.C. $1343 . « «© « «© «© © © o@ «© © « Bl

42 U.S.C. $1983 ..+«-e« 2c « « Sy, Lb, 13

U.S. Constitution, Amendment V . .5, 12, 13

U.S. Constitution, Amendment XIV .. .6, ll

Wisconsin Statutes §75.521 . . .6, 8, 9, ll

12, 13, 22, 23 (See Appendix pp. 26-39)

Wisconsin Statutes §808.04 ....... 10

REFERENCE TO OPINIONS

Ritter v. Ross, 992 F.2d 750 (7th Cir.

1993) > bel * . *. * . *. el . . * * App. 1-10

Ritter v. Ross, Memorandum and Order,

United States District Court for the

Western District of Wisconsin; April 28,

1992 ~« «© 2«ceeee 2 0 «2 «© «© App. 11-23

Ritter v. Ross, Order, denying Petition

for Rehearing with suggestion for

rehearing in banc, Seventh Circuit

Court of Appeals, August 13,

1993 «. «© c«eee ee ee 6 « «© « 0oAPP. 24-25

STATEMENT OF JURISDICTION

The United States Court of Appeals

for the Seventh Circuit dismissed this

case in a published opinion decided May

7, 1993. Thereafter, Petitioners filed a

timely Petition for Rehearing en banc -

with the Court of Appeals for the Seventh

Circuit. In an Order Dated August 13,

1993, the Court of Appeals for the

Seventh Circuit denied the Petition for

Rehearing.

Jurisdiction of this Court to review

the judgment by Writ of Certiorari is

appropriate pursuant to 28 U.S.C. §1254.

CONSTITUTIONAL PROVISIONS,

STATUTES AND ORDINANCES INVOLVED

42 U.S.C. §1983

"Every person who, under color of any

statute, ordinance, regulation, custom,

or usage, of any State or Territory 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 oy shall be liable

to the party injured in an action at

law, suit in equity, or other proper

proceeding 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

District of Columbia."

CONST. amend. V

"No person shall be held to answer for

a capital, or otherwise infamous crime,

unless on a presentment or indictment

of a Grand Jury, except in cases

arising in the land or naval forces, or

in the Militia, when in actual service

in time of War or public danger; nor

shall be compelled in any criminal case

to be a witness against himself, nor be

deprived of life, liberty, or property,

without due process of law; nor shall

private property be taken for public

use, without just compensation."

CONST. amend. XIV §1

"All persons born or naturalized in

the United States, and subject to the

jurisdiction thereof, are citizens of

Rock

the United States and of the State

wherein they reside. No state shall

make or enforce any law which shall

abridge the privileges or immunities of

the citizens of the United States; nor

shall any State deprive any person of

life, liberty, or property, without due

process of law; nor deny to any person

within its jurisdiction the equal

protection of the laws."

County, Wis. Ordinance

See Appendix pp.26-39 for applicable

sections of Wisconsin Statutes §75.521

STATEMENT OF CASE

On or about October 30, 1989, Elmer

Ritter and Helen Ritter (hereinafter

"Ritters") lost their real property for

the alleged failure to pay $84.43 in

property taxes. Under authority of a

Rock County ordinance adopting the

procedures of Wisconsin Statute §75.521,

Rock County obtained a tax lien

foreclosure judgment which judgment inter

alia vested Rock County with an estate in

fee simple absolute in the Ritters' real

property.

Although Ritters believed the

property taxes were paid, Ritters did not

appear in- the in rem foreclosure

proceedings due to inadequate notice

hel

”n

}

thereof. Rock County subsequen

the property without notice to the

Ritters for an amount in excess of

$17,000.00 and retained all proceeds.

At that time, Wisconsin Statute

§75.521 provided that, an owner of any

right, title or interest in land which

was lost by judgment of foreclosure, may

within two years from the date of entry

of such judgment, bring an action in

circuit court to recover the fair market

value of the persons interest in land as

of the date of the judgment of

foreclosure if the circuit court

determines that the land was unjustly

foreclosed for one or more of the four

following reasons:

i. the persons interest in such

land was not subject to

taxation, special assessment,

special charge or special tax

at the time of the levy of the

tax, assessment or charge, for

non-payment of which said lands

were foreclosed;

zs that in fact such tax, special

assessment, special charge or

special tax was paid by said

owner;

3% that the tax lien upon which

the judgment of foreclosure in

rem was based was barred by the

statute of limitations;

4. such person lost said property

through fraud without fault on

his or her part.

Wis.Stats. §75.521 (89-90)

Section 75.521 does not provide for

appeal of judgments of foreclosure in

rem. At the time of the entry of

judgment of foreclosure in rem, Wisconsin

Statute §808.04 provided that an appeal

to the Court of Appeals must be initiated

within ninety (90) days of entry of the

judgment of foreclosure. Wis.Stats.

§808.04. The judgment of foreclosure was

entered October 30, 1989. Helen Ritter

first discovered the foreclosure judgment

after February 16, 1990, when she

received a tax bill from Rock County that

contained the name of the subsequent

owner. Thus, when the Ritters first

discovered their property had _ been

foreclosed by Rock County and sold after

judgment of foreclosure, the ninety (90)

appeal period had run.

Ritters subsequently filed a seven

count complaint in the United States

District Court for the Western District

of Wisconsin. Jurisdiction in che

District Court was appropriate under 28

U.S.C. §1331 and 28 U.S.C. §1343 for

Counts I - IV which allege violations of

42 0.8.¢.. 91963.

Counts I and II against Defendants

Ross and Meyer respectively, allege a

cause of action under 28 U.S.C. §1983 for

deprivation of property without due

process in violation of the Fourteenth

Amendment of the United States

Constitution. The substance of Ritters

allegation against Defendants Ross and

Meyer is that said Defendants failed to

provide Ritters with notice reasonably

calculated to apprise Ritters of the

pendency of the action and afford Ritters

an opportunity to present their

objection. The notice did not inform

Ritters of their right to answer, appear,

or otherwise contest the in rem action

against their property.

Count III of the Ritters Complaint

against Rock County asserts the same

allegations with respect to the

violations of Ritters constitutional

rights as Counts I and II but Count III

is based solely on Rock County's adoption

of the ordinance establishing

unconstitutional procedures for enforcing

property tax liens in Rock County.

Count IV of Ritters' complaint

states a cause of action against Rock

County under the Civil Rights Act for

taking Ritters' surplus property without

just compensation in violation of the

Fifth Amendment to the United States

Constitution. Ritters' complaint also

includes three pendent state claims which

are not relevant to the issues raised on

appeal.

The United States District Court for

the Western District of Wisconsin

dismissed the Ritter's complaint, holding

that the Ritters due process claims were

not ripe and could not be considered

since the state's action is not complete

until and unless it provides, or refuses

to provide, a suitable post-deprivation

remedy. The Ritters other 42 U.S.C.

§1983 claim, alleging a violation of

their Fifth Amendment right that property

not be taken without just compensation,

was likewise dismissed by the district

court as premature. (Dist. Court.

Memorandum and Order, App. pp. 11-23).

Ritters subsequently appealed the

District Court's Order and the decision

issued by the Seventh Circuit Court of

Appeals Court on May 7, 1993, affirmed

the District Court dismissal but for

lack of subject matter jurisdiction over

the Ritters case based on the Rooker-

Feldman doctrine. Since issues relevant

to the Rooker-Feldman doctrine and its

application to the facts in this case

were not presented to the Seventh Circuit

Court of Appeals, Ritters filed a

Petition for Rehearing. The Petition was

denied August 13, 1993. (Order, App. pp.

24-25).

ARGUMENT

THE ROOKER-FELDMAN DOCTRINE DOES NOT

APPLY TO THE FACTS IN THIS CASE

A. No Attempt to Appeal or Challenge

a State Court Judgqment

Counts I and II of Ritters'

complaint challenge the procedures used

by Defendants Ross and Meyer in providing

Ritters with notice of the in rem

foreclosure proceedings. This notice

failed to meet the minimum due process

requirements of the Fourteenth Amendment

in that said notice failed to inform the

Ritters that they had a right to a

hearing or to be heard by filing an

answer in the state court proceedings.

In its opinion in this case, the

Seventh Circuit held "{ijt is settled

that ‘a plaintiff may not seek a reversal

of a state court judgment simply by

casting his complaint in the form of a

civil rights action. '"™ [citations

omitted] Ritter v. Ross, 992 F.2d 750,

753 (7th Cir. 1993). Counts I and II of

Ritters complaint clearly challenge the

constitutionality of the notice provided

to the Ritters and not the judgment

itself.

However, even if Ritters' complaint

could be construed as an attack on the

state court judgment, Gauthier v.

Continental Diving Services, Inc., 831

F.2d 559 (5th Cir. 1987) allowed such an

attack in federal court without violating

the Rooker-Feldman doctrine:

We decline to apply Rooker-Feldman

in a way that would require a

federal court to give greater

deference to a state court judgment

than a court of the state in which

the judgment was rendered would give

it. For reasons explained below, we

conclude that a Louisiana state

court would permit Gauthier to

attack the consent judgment.

Consequently Rooker~Feldman does not

bar his attack in federal court.

Id. at 560.

Gauthier at least requires that a federal

court consider whether the applicable

judgment could be attacked in state

court. The opinion of the Seventh

Circuit in inconsistent with the holding

in Gauthier Vv. Continental Diving

Services, Inc., supra.

B. No Opportunity To Raise

Constitutional Claims In Prior

State Court Judicial Proceedings

The opportunity to raise a claim in

prior state court proceedings is an

important and well established

requirement before Rooker-Feldman bars

federal jurisdiction. District of

Columbia Court of Appeals v. Feldman,

(1983) 460 U.S. 462, at 482, footnote 16;

Guess v. Board of Med. Examiners of State

of N.C., 967 F.2d 998, 1003 (5th Cir.

1992); Leaf v. Supreme Court of State of

Wisconsin, 979 F.2d 589, 597-598, (7th

Cir. 1992); United States v. Napper, 887

F.2d 1528, 1533 (llth Cir. 1989); Blue

Cross and Blue Shield of Maryland, Inc.

Weiner, 868 F.2d 1550, 1554-1555 (llth

Cir. 1989); and Wood v. Orange County,

715 F.2d 1543 (llth Cir. 1983), cert

denied, 467 U.S. 1210, 104 S.Ct. 2398

(1984).

Rooker-Feldman clearly does not bar

constitutional claims by persons not

parties to earlier state court

litigation. Leaf v. Supreme Court of

State of Wisconsin, supra, at 957-958;

Valenti v. Mitchell, 962 F.2d 288, 298

(3rd Cir. 1992). It cannot be said that

Ritters were parties to the in rem

foreclosure proceedings when they never

appeared or filed an answer in said

proceedings.

In Wood v. Orange County, supra, the

plaintiffs alleged that liens entered

against their property by Orange County,

Florida, violated their due process

rights. The plaintiffs in Wood were

defendants in separate criminal cases.

The plaintiffs were represented by a

public defender and signed affidavits of

insolvency containing a waiver clause,

which clause informed plaintiffs of the

possibility that a lien would be imposed

against their property for the value of

services rendered. Liens were

subsequently obtained against the

plaintiffs' property by Orange County

without notice to the plaintiffs pursuant

to the waiver of notice. Neither

plaintiff participated in the lien

proceedings. Plaintiffs in Wood alleged

that they first received notice of the

liens many months after the liens were

imposed. Applying the Rooker-Feldman

doctrine to the facts in Wood, that court

held:

That

[(Tjhere is an important limitation

on this rule. The rule can apply

only where the plaintiff had a

reasonable opportunity to raise his

federal claim in state proceedings.

Where the plaintiff has had no such

opportunity, he cannot fairly be

said to have "failed" to raise the

issue. Moreover, an issue that a

plaintiff had no reasonable

opportunity to raise cannot properly

be regarded us part of the state

case. . .Finally interpreting Rooker

to preclude a federal district court

from considering an issue that the

plaintiff had no reasonable

opportunity to raise in state court

might pose due process problems.

Such a harsh rule might deprive the

plaintiff of any forum, state or

federal, where he has a reasonable

opportunity to present his federal

constitutional clain, a result

arguably contrary to the

requirements of due precess. . .The

crucial issue, therefore, is whether

plaintiffs had a reasonable

opportunity to raise their

objections in the proceedings where

the judgment creating the liens was

entered and affirmed.

iG. @. 15467.

Court held no-_ such opportunity

existed and Rooker-Feldman did not bar

jurisdiction of plaintiffs due process

claims in federal court. Wood v. Orange

County, supra, at 1546.

Likewise, Ritters did not have a

reasonable opportunity to raise their

federal claims in a prior state court

proc xeding. It is precisely this lack of

opportunity which forms the basis of

Ritters due process claims. If Ritters

did have an opportunity to appear in the

state court in rem tax foreclosure

action, they would have no due process

claims against Defendants, Ross’ and

Meyer. Baring Ritters constitutional

claims from federal court when they _ had

no prior opportunity to raise these

claims is an extreme deviation from the

well established interpretation of

Rooker-Feldman.

C. No Opportunity To Appeal Prior

State Court Judgment

The defendants in the Wood case also

argued that the plaintiffs could have

raised their constitutional claims on

appeal from the judgment creating the

lien. That court held:

Because plaintiffs did not receive

actual notice of the judgment until

well after the time for filing an

appeal had elapsed, they lacked a

reasonable opportunity to appeal the

judgment.

Likewise, the Ritters did not

receive actual notice of the foreclosure

judgment until after the ninety (90)

appeal period under Wisconsin law had

elapsed. Therefore, Ritters has no

"reasonable opportunity" to appeal the

foreclosure judgment.

Like Wisconsin, Florida law also

provided plaintiffs in Wood with a

procedure for filing an objection to set

aside the final judgment creating the

The Wood court also addressed the

plaintiffs opportunity to collaterally

attack the judgment creating the lien:

A Rule 1.540 motion is not a

substitute for appeal, and the court

deciding such a motion does not act

as an appellate court. [citation

omitted] The rule permits a special

kind of collateral attack on, rather

than an appeal of, the judgment. . .

Because Rule 1.540 proceedings are

not part of the process of appellate

review of the original judgment, it

does not matter for purposes of

Rooker that plaintiffs could have

raised their claims in such

proceedings. The federal court may

perform a role that a state court

deciding a Rule 1.540 motion might

also be able to perforn. But the

federal court is not usurping the

role of the state appellate court

because a state court deciding a

Rule 1.540 motion does not act as an

appellate court ... Rooker is not a

requirement that a plaintiff exhaust

all conceivable state remedies; it

does not require that where possible

he institute proceedings so that

state courts can consider’ the

plaintiff's federal claims in the

first instance. The important point

is that plaintiffs lacked a

reasonable opportunity to raise

their claims in the proceedings

surrounding entry of the judgment.

te. @t 19549.

Ritters complaint contains a pendent

state claim pursuant to Wisconsin

Statutes §75.521 which states that the

allegedly delinquent property taxes in

the amount of $84.83, were in fact paid

by Ritters. Pursuant to the holding in

Wood, this cause of action is not a

substitute for appeal. Even if Ritters

did not have ae specific basis to

collaterally attack the foreclosure

judgment under Wisconsin Statutes

§75.521, Ritters would still have a due

process claim which they should be

allowed to bring in federal court.

Potential plaintiffs in these two

situations should not be treated

differently.

D. Constitutional Claims Are Not

Inextricably Intertwined With

Prior State Court Proceedings

In Feldman, this court held "[iJjf

the constitutional claims presented to a

United States District Court are

inextricably intertwined with the state

court's denial in a judicial proceeding .

.then the District court is in essence

being called upon to review the state-

court decision. This the District Court

may not do." Dist. Col, Court of

Appeals v. Feldman, supra, at 223, fn.

16. The Wood Court recognized that the

federal courts do not have subject matter

jurisdiction over issues that are raised

in state court proceedings and

"inextricably intertwined with the state

court judgment". Wood, supra at 1547.

The meaning of "inextricably intertwined"

is further explained by the Wood Court

not to include issues which the parties

did not have an opportunity to raise in

the state court proceedings. Id. at 1547.

In the present case, Ritters raised

no issues in state court proceedings.

Therefore, their federal claims cannot be

"inextricably intertwined" with issue(s)

raised in state court.

E. Constitutional Rights Were Violated

By Administrative And Legislative

Actions Of Rock County And Rock

County Employees

Count III of Ritters' complaint

challenges the constitutionality of the

Rock County Ordinance on its face. This

ordinance provides for a procedure which

does not meet the minimum requirements of

due process. It is not the judgment of

foreclosure which the Ritters attack but

the ponetitusiauat ae of the ordinance

providing for foreclosure procedures and

enforcement. The opinion on appeal does

not address Ritters challenge to the

constitutionality of the Rock County

Ordinance.

Ritters also assert a claim against

Rock County in Count IV of their

complaint alleging an unconstitutional

taking of their surplus property, the

difference between the amount of back

taxes allegedly due and owing to Rock

County plus any administrative costs and

the amount which Rock County received in

the subsequent sale of the Ritter's land.

The Rooker-Feldman doctrine clearly

does not apply to the Ritters

constitutional challenge to the Rock

County Ordinance on its face or to the

Ritters claim of an unconstitutional

taking without just compensation.

Razatos v. Colorado Supreme Court,746

F.2d 1429, 1433-1434 (10th Cir. 1984);

Centifanti v. Nix, 865 F.2d 1422, 1428

(3rd Cir. 1989); Valenti v. Mitchell, 962

F.2d 288, 298 (3rd Cir. 1992); and

Buckley vv. Illinois Judicial Inquiry

Board, 997 F.2d 224, 226 (7th Cir. 1993).

In District of Columbia Court of

Appeals V. Feldman, Supra, Feldman

challenged the D.C. Court of Appeals'

denial of his petition requesting a

waiver for admission to the District of

Columbia bar. Feldman alleged that the

court's failure to grant a waiver thus

denying him admission to the bar violated

his constitutional rights. Regarding

this issue, the United States Supreme

Court held that the U.S. District Court

had no subject matter jurisdiction to the

extent that Feldman sought review of the

D.c. Court of Appeals denial of his

petition for a waiver. Id at 482.

Feldman's district court couptaint

also challenged the constitutionality of

a District of Columbia rule regarding bar

admissions. Addressing Feldman's

challenge to the constitutionality of the

rule, the Supreme Court held:

To the extent Hickey and Feldman

mounted a general challenge to the

constitutionality of Rule 46I(b) (3),

however, the District Court did have

subject matter jurisdiction over

their complaints . . . Challenges to

the constitutionality of state bar

rules, therefore, do not necessarily

require a United States District

Court to review a final state court

judgment in a judicial proceeding.

Instead, the District Court may

Simply be asked to assess’ the

validity of a rule promulgated ina

non-judicial proceeding. ia, st

482-486.

Like Feldman's constitutional

challenge to the D.C. Circuits bar

admission rule, Ritters' complaint raises

a challenge to the constitutionality of

the Rock County Ordinance.

In Leaf v. Supreme Court of State of

Wisconsin, 979 F.2d 589 (7th Cir. 1992),

the court discussed the state court

judicial proceedings requirement of the

Rooker-Feldman doctrine.

A district court, however, may have

Jurisdiction when the litigant's

challenge is not directed at a state

court's judicial proceedings but

rather involves a state court's

administrative, legislative, or

ministerial actions. Id., at 596 to

597.

In reviewing the constitutionality

f the Rock County Ordinance, the federal

district court would not be reviewing a

final judgment of a state court - a

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- TY? _ > - = ~ Cas rn ; . . +

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Nor does the Ritters Fifth

Amendment takings claim require a federal

district court to review a final state

court judgment Ritters allege that Rock

County unconstitutionally retained

Surplus funds received from the

Subsequent sale of the Ritter property.

In fact, the takings claim could not be a

challenge to a state court judgment

because at the time of entry, the county

had not yet sold the land, much less

retained the surplus funds.

The state court judgment does not,

by itself, cause a deprivation of

property within the meaning of the

Fourteenth Amendment. The

deprivation is not complete until

the judgment is enforced, and under

the governing statute, the county

has authority to enforce the

judicially created liens. Wood v.

Orange County, 715 F.2d 1543 (1983),

cert. denied, 467 U.S. 1210, 104

S.Ct. 2398, 81 L.Ed.2d 355 (1984).

Enforcement of the judgment of

foreclosure in rem against the Ritter

property was clearly done by and through

administrative actions and procedures by

Rock County. Ritters constitutional

challenge to the retention of surplus

funds by Rock County is not an attack on

the state court judgment itself. fThus,

the federal district court does not lack

subject matter jurisdiction to hear this

constitutional claim.

Dismissal for lack of subject matter

jurisdiction by the Seventh Circuit of

Ritters constitutional challenge to the

Rock County Ordinance and administrative

procedures is such a departure from the

holding in Feldman and its subsequent

cases, that this creates a special and

important reason for review by the

Supreme Court.

Il.

APPLICATION OF THE ROOKER-FELDMAN

DOCTRINE TO THE FACTS IN THIS CASE IS

INCONSISTENT WITH FELDMAN AND CREATES A

CONFLICT IN THE CIRCUIT COURTS OF APPEALS

Whether a constitutional issue is

inextricably intertwined with a matter

plaintiffs raised or could have raised in

a state court proceeding, is one of the

factors to be applied in determining if a

district court lacks subject matter

Jurisdiction under the Rooker-Feldman

doctrine. Prior to the appellate

decision in this case, the Rooker-Feldman

limitation on federal subject matter

jurisdiction required a reasonable

opportunity to raise constitutional

issues in state court. This decision

established a new standard to determine

if Rooker-Feldman applies and the

plaintiffs are precluded from bringing

their constitutional claim in federal

court, the "but for" test. Ritter v.

Ross, 992 F.2d 750, 754 (7th Cir. 1993).

Holding: “{b]jefore this court the Ritters

admit that but for the tax lien

foreclosure judgment in Rock County

Circuit Court they would have _ ~no

complaint; they would still have their

land and would have suffered no injury."

Id. at 754. This “but for" test, clearly

a deviation doctrine, would close the

doors of the federal courthouse to many

with meritorious constitutional claims.

Application of the "but for" rule to

any facts will result ir a finding that

the state court proceedings were

"Judicial" and “inextricably intertwined"

with the constitutional claims. In

Feldman, “but for" the decision of the

B.¢. Court of Appeals denying his

admission to the bar, Feldman would have

no injury. But, the Supreme Court in

Feldman held that even though Feldman had

an opportunity to be heard in a state

court proceeding, to the extent that

Feldman presented a general challenge to

the constitution-ality of the bar rule,

the district court did have subject

matter jurisdiction. District of Co.

Court of Appeals v. Feldman, supra.

Likewise, in Wood v. Orange County, but

for the state court proceedings which

imposed a lien on the plaintiff's

property, the plaintiffs would have no

injury.

The Seventh Circuit's deviation from

the well established "inextricably

intertwined" standard to a “but for"

standard changes the meaning of the

Rooker-Feldman doctrine and raises

serious constitutional issues which

should be addressed by the Supreme Court

to resolve the conflict in the Circuit

Courts of Appeals created by this case.

CONCLUSION

The decision in this case creates a

"Catch-22" situation for the Ritters

which precludes the Ritters from ever

bringing their constitutional claims in

federal court. Wood v. Orange County,

supra, at 1547, raised this concern when

that court held that due process problems

may arise if Rooker-Feldman can bar a

claim for lack of subject matter

jurisdiction, without a reasonable

opportunity to raise the constitutional

issues in prior state court proceeding.

The appellate decision suggested

that Ritters have state court "options"

available to contest the foreclosure

judgment. The District Court held

Ritters constitutional claims were not

ripe due to adequate state post-

deprivation remedies. - However, if ‘the

Ritters first chose to collaterally

attack the in rem foreclosure judgment in

state court pursuant to the allowed claim

that the taxes were in fact paid, and if

Ritters lost is state court, then Rooker-

Feldman clearly would bar any

constitutional claim in federal court

because Ritters would have had an

opportunity to raise the federal issues

in the state court action collaterally

attacking the judgment.

The decision rendered in this case

expands the Rooker-Feldman doctrine by

applying a "but for" test to determine if

a state court judgment deprived persons

of their constitutional rights. This new

standard raises serious and important

constitutional issues which should be

reviewed by the Supreme Court.

Respectfully Submitted,

Petitioners

ELMER RITTER AND HELEN RITTER,

BY: OLIVER, CLOSE, ORDEN &

GREENWALD

dhme E/

Thomas E. Greenwald

Thomas E. reenwald

Ann T. Dempsey

OLIVER, CLOSE, WORDEN & GREENWALD

124 N. Water St., Suite 300

P.O. Box 4749

Rockford, IL 61110-4749

815/968-7591

Dated: November 10, 1993

APPENDIX

Index to Appendix

Ritter v. Ross, 992 F.2d 750, (7th Cir.

1993) No. 92-2220, slip op. (7th Cir.

may @, A@ea} «© «© «© «@ «4 @ 6 & @ @ 0 « £50

Ritter v. Ross, Memorandum and Order,

United States District Court for the

Western District of Wisconsin; April

a6, Bee a a 6a ee eR ee 4 4. & 22RD

Ritter v. Ross, Order, denying Petition

for Rehearing with suggestion for

rehearing en banc, Seventh Circuit Court

of Appeals, August 13, 1993 ... . .24=-25

Wisconsin Statutes §75.521 ...... 26-39

In the

United States Court of Appeals

Hor the Seventh Circuit

No. 92-2220

ELMER RITTER and HELEN RITTER,

Plaintiffs-Appellants,

PreGcy S. Ross, County Treasurer for Rock County, Wis-

consin, STEPHEN D. MEYER, Corporate Counsel for Rock

County, Wisconsin and Rock CouNTY, a body politic in

the State of Wisconsin,

Defendants-Appellees.

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 91 C 925—John C. Shabaz, Judge.

ARGUED JANUARY 27, 1993—DEcIDED May 7, 1993

Before Co?FEY and EASTERBROOK, Circuit Judges, and

Woop, JR., Senior Circuit Judge.

Woon, JR., Senior Circuit Judge. “For want of a nail

the shoe is lost, for want of a shoe the horse is lost, for

want of a horse the rider is lost.’’ George Herbert, in

Bartlett’s Familiar Quotations 270 (Emily M. Beck ed.,

15th ed. 1980). And for want of $84, a homesite was lost.

Specifically, for allegedly failing to pay $84.43 in back

taxes, Elmer and Helen Ritter may have permanently lost

thirty- eight acres in Rock County, Wisconsin.

2 No. 92-2220

In 1982, the Ritters purchased an undeveloped tract of

land for $30,000, intending it to serve as the site for their

retirement home. In 1986 the county treasurer, Peggy

Ross, notified the Ritters they still owed a part of their

1984 property taxes for this tract. The Ritters claimed

they had paid the full amount by money order and sent

Ross a copy of that order. Despite this and other corre-

spondence, the two sides failed to reach an agreement.

On December 15, 1988, Ross sent the Ritters a letter

stating that “the County will be taking this property be-

cause of back taxes.” On July 14, 1989, the County acted

on its stated intention. Ross and Stephen Meyer, Rock

County’s Corporate Counsel, commenced proceedings in

rem to foreclose tax liens against the Ritters’ property

based on the $84.43 of allegedly unpaid 1984 property.

taxes. cog *

One week later, the Ritters received from the County

a “Notice of Commencement of Proceedings In Rem to

Foreclose Tax Liens by Rock County.” This document ran

forty pages and included a “List of Tax Liens of Rock

County Being Foreclosed.” The list included 108 parcels;

the Ritters’ parcel was number forty-seven and appeared

on page twenty. The notice indicated that September 24,

1989, was the last day for redemption by payment of taxes;

the document did not advise the Ritters that they had

a right to contest the proceedings.

The Ritters did not contact the Defendants or an attor-

ney and did not file an answer in the foreclosure proceed-

ing. Plaintiffs explain their inaction by stating that they

are “unsophisticated in legal matters” and that they never

saw their name or their property on the list of tax liens.

On October 30, 1989, the County obtained a tax lien

foreclosure judgment in the Rock County Circuit Court.

On December 1, 1989, the County sold the property to

a third party for $17,345 and kept the entire amount. It

was not until February 1990 that the Ritters discovered

No. 92-2220

the County had acquired and then sold their property.

Subsequent to this revelation, the Ritters had their bank

trace the money order they reportedly sent to pay their

taxes; they found it had never been cashed.

The Ritters filed a seven-count complaint against Ross,

Meyer, and Rock County on October 30, 1991, in federal

district court. The Ritters alleged that Ross and Meyer

each violated 42 U.S.C. § 1983 by depriving the Ritters

of property without due process. These charges stem from

the “Notice of Commencement of Proceedings In Rem to

Foreclose Tax Liens by Rock County,” which the Ritters

claim failed to provide them with notice of the pendency

of the foreclosure action and of their opportunity to ob-

ject. The Ritters also charged Rock County with the same

violation, based solely on the County having adopted the

ordinance that established the procedures for enforcing

property tax liens. In addition, Plaintiffs claim Rock Coun-

ty violated the civil rights statute by taking property with-

out just compensation in violation of the Fifth Amendment.

The County did this, said the Ritters, by keeping all the

proceeds from the foreclosure sale, not just the amount

owed for taxes. The additional counts were pendent state

claims.

Defendants moved for summary judgment on March 12,

1992, asserting the notice of the foreclosure proceedings

was adequate, that a tax lien foreclosure does not impli-

cate the Fifth Amendment, and that adequate post-depri-

vation remedies were available which precluded Plaintiffs’

constitutional claims. In response, the district court dis-

missed all of the Ritters’ claims without prejudice.

The district court concluded the Ritters’ constitutional

claims were not “presently viable” as the Plaintiffs “failed

to pursue state post-deprivation remedies.”’ Wisconsin law

provides the Ritters with a number of options to recover

1 At oral argument the state advised that the Wisconsin delin-

quent tax procedures have now been modified, but this case is

not affected by those subsequent changes.

4 No. 92-2220

their land or the money from its sale, and the district

court felt it could not gauge whether Plaintiffs had been

deprived of their constitutional rights until the Ritters ex-

hausted those options. Having dismissed these claims, the

court also dismissed Plaintiffs’ state law claims without

prejudice for lack of subject matter jurisdiction.

IT.

On appeal, the Ritters argue they are not required to

proceed with state post-deprivation remedies before bring-

ing an action under the Civil Rights Act; they request

this court reverse the district court and remand the cause

for adjudication. We must first examine whether the dis-

trict court, and indeed this court, has subject matter juris-

diction. Our examination starts by asking a question not

addressed by either party or the court below, and that

is whether the Rooker-Feldman doctrine stands as a bar

to the litigation of this dispute in federal court. See Auto-

cephalous Greek-Orthodox Church v. Goldberg & Feldman

Fine Arts, Inc., 917 F.2d 278, 284 n.7 (7th Cir. 1990) (this

court on its own motion may raise issue of subject matter

jurisdiction); Fed. R. Civ. P. 12(hX3) (same).

IIT.

In Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923),

the plaintiff sought to overturn a state court decision

which had been affirmed by the state’s Supreme court and

then denied review by the United States Supreme Court.

Plaintiff filed a complaint in federal district court alleg-

ing the state court decision rested on an unconstitutional

state statute. The district court ruled it had no jurisdic-

tion over the suit and the Supreme Court agreed: “{N]o

court of the United States other than this Court could

entertain a proceeding to reverse or modify the judgment

for errors of that character. To do so would be an exer-

cise of appellate jurisdiction. The jurisdiction possessed

by the District Courts is strictly original.” Jd. at 416 (cita-

tions omitted).

No. 92-2220) 5

ht et te

In declaring the district court to be without jurisdic-

tion, the Supreme Court noted the validity of the state

court decision. The state circuit court had jurisdiction of

the subject matter and the parties, it conducted a full

hearing, and the judgment was responsive to the issues.

Id. at 415.

Sixty years later, the Court reaffirmed Rooker in Dis-

trict of Columbia Court of Appeals v. Feldman, 460 U.S.

462 (1983). Feldman concerned two lawyers, Hickey and

Feldman, who wished to become members of the District

of Columbia bar. The lawyers petitioned the District of

Columbia Court of Appeals for a waiver of the bar ad-

mission rule which required applicants to have graduated

from an accredited law school. The D.C. Court of Appeals,

the functional equivalent of a state’s highest court, denied

their petitions. Plaintiffs then filed complaints in United

States district court challenging the deidial of their peti-

tions and the constitutionality of the bar admission rule.

In their complaints, Plaintiffs alleged the D.C. Court of

Appeal’s refusal to waive the bar admission requirement

violated the Fifth Amendment in that it deprived them

of liberty and property without due process of law. Plain-

tiffs also asked for a declaration that the bar requirement,

as applied or on its face, violated the Fifth Amendment.

The district court dismissed their complaints for lack of

subject matter jurisdiction, asserting that to do otherwise

would place it in the position of reviewing an order of

a jurisdiction’s highest court. Jd. at 470. The district court

explained that “ ‘the admission and exclusion of attorneys

by the members of the highest court of a state is the ex-

ercise of a judicial function which may be reviewed only

by the United States Supreme Court.’ ”’ Jd. at 473 (cita-

tion omitted).

The Supreme Court agreed that “a United States Dis-

trict Court has no authority to review final judgments of a

state court in judicial proceedings.” Jd. at 482. The Court

also agreed that the proceedings in the D.C. Court of Ap-

peals were judicial in nature. /d. at 479. ‘““Therefore, to

6 No. 92-2220

the extent that Hickey and Feldman sought review in the

District Court of the District of Columbia Court of Ap-

peals’. denial of their petitions for waiver, the District

Court lacked subject-matter jurisdiction over their com-

plaints.” Id. at 482. The Court stated, however, that the

district court did have subject matter jurisdiction over

plaintiffs’ complaints “{t]o the extent that Hickey and

Feldman mounted a general challenge to the constitution-

ality” of the D.C. bar admission rule. Jd. at 482-83.

In short, the Feldman Court held that United States

district courts may review a state court’s nonjudicial ac-

tion for constitutional error, but not a state court’s judicial

decision whether or not constitutional error is alleged:

United States district courts, therefore, have subject-

matter jurisdiction over general challenges to state

bar rules, promulgated by state courts in nonjudicial

proceedings, which do not require review of a final

state-court judgment in a particular case. They do

not have jurisdiction, however, over challenges to

state-court decisions in particular cases arising out

of judicial proceedings even if those challenges allege

that the state court’s action was unconstitutional. Re-

view of those decisions may be had only in this Court.

Id. at 486.

Taken together, Rooker and Feldman stand for the prop-

osition that “lower federal courts lack jurisdiction to en-

gage in appellate review of state-court determinations.”

Pennzoil Co. v. Texaco Inc., 481 U.S. 1, 21 (1987) (Bren-

nan, J., concurring); accord Asarco Inc. v. Kadish, 490

U.S. 605, 622 (1989) (“The Rooker-Feldman doctrine in-

terprets 28 U.S.C. § 1257 as ordinarily barring direct re-

view in the lower federal courts of a decision reached by

the highest state court, for such authority is vested sole-

ly in this Court.”’).

This statement, of course, should not be read out of con-

text. Congress does allow federal district courts to review

state judicial decisions in habeas corpus proceedings. See

No. 92-2220 7

28 U.S.C. § 2241 (habeas corpus); Lynk v. LaPorte Su-

perior Court, 789 F.2d 554, 563 (7th Cir. 1986) (noting

habeas corpus exception). One commentator states that

Rooker-Feldman “simply forbids federal district court ap-

pellate review of state court judgments in the guise of

collateral attacks when no federal statute authorizes such

review.” James S. Liebman, Apocalypse Next Time?: The

Anachronistic Attack on Habeas Corpus/irect Review

Parity, 92 Colum. L. Rev. 1997, 2008 n.46 (1992).

Engaging in an impermissible appellate review may oc-

cur when a district court is asked to entertain a claim

that was not even argued in the state court but is “in-

extricably intertwined” with the state court judgment.

Feldman, 460 U.S. at 483 n.16; see also Guess v. Board

of Medical Examiners, 967 F.2d 998, 1002-03 (4th Cir.

1992) (Plaintiffs who lose in state court may not “recast

their claims in federal court under the guise of federal

constitutional claims that were not raised or decided by

the state court .. . if the constitutional claims are inex-

tricably intertwined with the merits of the state court

judgment.”’).

There is, unfortunately, no bright line that separates

a federal claim that is “inextricably intertwined” with a

state court judgment from a claim that is not so inter-

twined. The crucial point is whether “the district court

is in essence being called upon to review the state-court

decision.”’ Feldman, 460 U.S. at 483-84 n.16. Do the con-

stitutional claims, then, force a district court to assume

appellate jurisdiction over the state court judgment? Jus-

tice Brennan, the author of Feldman, stated his belief in

Pennzoil that the inferior federal courts are not forced

into this impermissible appellate review when the constitu-

tional claims are “ ‘separable from and collateral to’ the

merits of the state-court judgment.” Pennzoil, 481 U.S.

at 21 (Brennan, J., concurring) (citation omitted). See gen-

erally Leaf v. Supreme Court of Wisconsin, 979 F.2d 5839,

598-600 (7th Cir. 1992) (discussing the “inextricably inter-

twined”’ standard).

8 No. 92-2220

It is clear, though, that a constitutional claim is not “in-

extricably intertwined” merely because it could have been

raised, but was not, in the earlier state proceeding. If the

opposite were true, the Court would not have allowed the

litigants in Feldman to bring their general constitutional

challenges to the bar admission rule in federal district

court. This conclusion is further buttressed by Pennzoil,

where separate concurrences by a majority of the Court

indicated Rooker-Feldman would not automatically bar a

federal claim that was not raised in the state court. See

Pennzoil, 481 U.S. at 18 (Scalia & O’Connor, JJ., concur-

ring); 7d. at 21 (Brennan, J., concurring); id. at 28 (Black-

mun, J., concurring); id. at 31 n.3 (Stevens, J., concurring).

But cf. Leaf, 979 F.2d at 600-01 (res judicata may bar

claims where Rooker-Feldman does not).

With this understanding of the Rooker-Feldman doc-

trine, we now turn to the Ritters’ appeal.

IV.

It is settled that “a plaintiff may not seek a reversal

of a state court judgment simply by casting his complaint

in the form of a civil rights action.” Hagerty v. Succes-

sion of Clement, 749 F.2d 217, 220 (5th Cir. 1984), cert.

denied, 474 U.S. 968 (1985); accord Guess v. Board of

Medical Examiners, 967 F.2d 998, 1005 (4th Cir. 1992)

(“Artificial attempts to redefine the relief sought are not

sufficient to overcome the requirements of Feldman.’’);

Owens-Corning Fiberglas Corp. v. Moran, 959 F.2d 634,

635 (7th Cir. 1992) (section 1983 does not automatically

permit federal court to review state judicial decision):

Worldwide Church of God v. McNair, 805 F.2d 888, 893

(9th Cir. 1986) (Feldman applies in § 1983 context): Lynk

v. LaPorte Superior Court, 789 F.2d 554, 563 (7th Cir.

1986) (federal courts rebuff efforts to retry state suits in

federal courts under section 1983).

We must distinguish whether the Ritters are asking a

federal court to review the state court judgment through

No. 92-2220 9

use of their section 1983 action or instead are mounting

a general challenge to the Wisconsin statute which autho-

rized the foreclosure of the tax lien. The Tenth Circuit

aptly noted that “the distinction is often difficult to draw.”

Razatos v. Colorado Supreme Court, 746 F.2d 1429, 1433

(10th Cir. 1984), cert. denied, 471 U.S. 1016 (1985). This

difficulty is evinced by the varying outcomes courts reach

when faced with similar facts. See Gary Thompson, Note,

The Rooker-Feldman Doctrine and the Subject Matter Ju-

risdiction of Federal District Courts, 42 Rutgers L. Rev.

859, 880 n. 95, 881 n. 98 (1990) (listing conflicting court

decisions).

Before this court the Ritters admit that but for the tax

lien foreclosure judgment in Rock County Circuit Court

they would have no complaint; they would still have their

land and would have suffered no injury. The state court

proceedings, as the Plaintiffs themselves state, ‘“‘are the

subject of this case.” Appellants’ Reply Br. at 5. The Rit-

ters, like the plaintiff in Rooker, are essentially seeking

a federal district court appellate review of a state judicial

proceeding; their claims against Defendants are inextricably

intertwined with the merits of that proceeding. As in

Rooker, the lower federal courts have no jurisdiction over

this complaint. See Leaf v. Supreme Court of Wisconsin,

979 F.2d 589, 598 (7th Cir. 1992); see also Guess, 967 F.2d

at 1003-04 (“‘A plaintiff may not relitigate in federal court

a particularized challenge to an adjudication against him

in state court.’’).

Even if the Rooker-Feldman doctrine were no bar to

the Ritters’ action, we would feel compelled to dismiss

their complaint. As Judge Shabaz noted, there are a va-

riety of options available to the Ritters in Wisconsin state

courts to either overturn the state court foreclosure judg-

ment or to recover the proceeds from the sale of their

land; the Ritters, in fact, have told us they are currently

involved in state court litigation concerning the foreclosure.

10 No. 92-2220

We conclude both this court and the district court lack

subject matter jurisdiction over the Ritters’ case and we

therefore affirm the district court’s dismissal of both their

state and federal claims. Any relief for the Ritters must

come from the Wisconsin judicial system and not from us.

Although we do not have jurisdiction over the present

appeal, we must admit our surprise and dismay that the

dispute over the Ritters’ alleged back taxes was not solved

in Rock County. For want of $84.43, both the Ritters and

the County have now invested more money and time with-

out a resolution of the dispute.

AFFIRMED.

A true Copy:

Teste:

eee tt ttt Eee

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA AO7XXXC-92-001—Midwest Law Printing Co., Inc., Chicago—5-7-93

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WISCONSIN

ELMER RITTER AND HELEN RITTER,

Plaintiffs,

Vv.

PEGGY S. ROSS, County Treasurer for

Rock County, Wisconsin, STEPHEN D.

MEYER, Corporate Counsel for Rock

County, Wisconsin, and ROCK COUNTY,

a body politic in the State of

Wisconsin,

Defendants.

MEMORANDUM AND ORDER

91-C-925-S

Plaintiffs Elmer and Helen Ritter bring

this action pursuant to 42 U.S.C. §1983

alleging that the defendant Rock County, its

Corporate Counsel, Stephen D. Meyer, and

Treasurer, Peggy S. Ross, violated

plaintiffs’ constitutional rights in

foreclosing a real estate tax lien.

Plaintiffs also assert several claims under

State law seeking to void the foreclosure

judgment or recover the value of the

property from the defendants.

The matter presently comes before the

Court on defendants' motion for summary

judgment. Jurisdiction is based upon 28

U.S.C. §1331. The following is a summary of

undisputed facts.

FACTS

Plaintiffs Elmer and Helen Ritter

purchased certain real estate in Rock

County, Wisconsin, in 1982, which was

Subject to general property taxes. In 1984

the property was assessed taxes in the

amount of $710.00. Plaintiffs made certain

payments to defendant Rock County for 1984

property taxes.

Plaintiffs received tax bills for tax

years 1985, 1986, 1987 and 1988, each of

which stated at the tope center, "Redemption

Taxes Due." On December 15, 1988, defendant

Ross sent a letter to plaintiff Elmer Ritter

which stated in part:

According to our records you still

owe taxes back to 1984.

The County will be taking this

property because of back taxes.

If your records show that they are

paid, please bring to this office

or send copies of the receipts.

In response to this letter plaintiff Helen

Ritter replied indicating her belief that

taxes were paid in full.

On January 3, 1989, defendant Ross sent

a letter to plaintiff Elmer Ritter

summarizing tax records which indicated a

remaining balance of $84.43 for the tax year

1984.

On July 14, 1989, defendants filed a

petition in Rock County Circuit Court for a

Proceeding in Rem to Foreclose Tax Liens by

Rock County. This action was taken pursuant

to Rock County Ordinance which provided that

the County proceed under Wis. Stat. §75.521

to enforce tax liens. A copy of the entire

petition and a list of 108 parcels to be

foreclosed under the petition were sent to

plaintiffs and received by them on July 21,

1989. The petition provided that September

27, 1989 was the last day for redemption by

payment of taxes.

Plaintiffs made no attempt to contact

defendants or an attorney and did net file

an answer in the foreclosure proceeding. on

October 30, 1989, defendant Rock County

obtained a tax lien foreclosure judgment

vesting it with an estate in fee Simple

absolute to plaintiffs’ property. Defendant

Rock County sold the property on December Ry

1989 for $17,345.00.

MEMORANDUM

Plaintiffs claim that under the

procedure followed by the defendants the

notice of foreclosure they received was

insufficient to meet the due _ process

requirement of the Fourteenth Amendment.

They further claim that by taking title to

property valued at over $17,000.00 in

payment of $84.00 in back taxes defendants

violated their Fifth Amendment right against

the taking of property without just

compensation. Defendants now move for

summary judgment, asserting among other

things that the notice received by the

plaintiffs was adequate, that a tax lien

foreclosure does not implicate the Fifth

Amendment, and that adequate post-

deprivation remedies are available which

preclude the constitutional claims.

Summary judgment is appropriate when,

after both parties have the opportunity to

submit evidence in support of their

respective positions and the Court has

reviewed such evidence in the light most

favorable to the nonmovant, there remains no

genuine issue of material fact and the

moving party is entitled to judgment as a

matter of law. Rule 56(c), Federal Rules of

Civil Procedure.

A fact is material only if it might

affect the outcome of the suit under the

governing law. Disputes over unnecesary or

irrelevant facts will not preclude summary

judgment. A factual issue is genuine only

if the evidence is such that a reasonable

factfinder could return a verdict for the

nonmoving party. Anderson v. Liberty Lobby,

inc., 477 U.S. 242, 248 (1986). Under Rule

56(e) it is the obligation of the nonmoving

party to set forth specific facts showing

that there is a genuine issue for trial.

The Court finds as a matter of law that

the constitutional claims advanced by the

plaintiffs are not presently viable,

plaintiffs having failed to pursue state

post-deprivation remedies.

Due Process Claim

The essence of plaintiffs' due process

claim is that they received inadequate

notice advising them of the existence of the

foreclosure proceeding and their right to

participate. Plaintiffs contend that the

notice they received was not reasonably

calculated to inform them of the action

against the property because the list

contained a description of 108 parcels of

real property and the notice document

consisted of over 41 pages. Because of the

voluminous nature of the notice plaintiffs

allege that they were misled and confused

and did not realize that their property was

subject to foreclosure.

iii

Wisconsin Statute §75.521(3)(c), the

procedure pursued by the defendants in the

foreciosure action, provides that "[a] copy

of the petition and so much of the list of

tax liens as shall include the description

of a particular parcel shall be mailed by

registered or certified mail . ‘ »*

Plaintiffs allege that by including the

entire list of tax liens the notice they

received was inadequate and not in

compliance with the procedure specified in

the statute.

Plaintiffs also assert that the notice

was inadequate because it did not inform

them of their right to appear and answer and

participate in the foreclosure proceeding.

However, based upon the facts in the record,

it seems highly unlikely that this alleged

error had any impact upon the loss of the

property by the plaintiffs. As plaintiffs!

attorney noted in his letter to the

defendants,

The Ritters, who are 65 years old

and unsophisticated in legal

matters, never saw their name or

their property on the list. If

they had, they obviously would

have paid the $84.43 in order to

protect their property.

Clearly, the fact that the plaintiffs were

allegedly unaware that their property was

being foreclosed is the alleged critical

error in the notice. As plaintiffs concede,

had they been aware that their property was

involved in the foreclosures they would have

paid the $84.43.

An unauthorized deprivation of property

by a state employee, "does not constitute a

violation of the procedural requirements of

the due process clause of the Fourteenth

Amendment if a meaningful post-deprivation

for the loss is available." Hudson v.

Palmer, 468 U.S. 517, 533 (1984). This is

because the state's action is not complete

until and unless it provides or refuses to

provide a suitable post-deprivation remedy.

Id. Because the plaintiffs allege that the

notice they received was not in compliance

with the prescribed notice procedure of the

Wisconsin Statutes, the defendants' action

was the type of unauthorized conduct to

which Hudson v. Palmer applies.

Since the plaintiffs are pursuing a

variety of state remedies which would

correct any unlawful taking of property, the

due process claim is not ripe. Under

Wisconsin law a judgment of foreclosure is

void where a county fails to fully comply

with the requirements of §75.521. “Absence

strict compliance, it violates due process

clause to allow such a government taking."

Foreclosure of Tax Liens v. Young, 106

Wis.2a@ 244, 251, 316 N.W.2d 362 (1982).

Under such circumstances a plaintiff may

seek relief from the judgment or order

pursuant to § 806.07, Wis. Stat. Id.

Additionally, § 75.521(14a) permits’ the

plaintiffs to recover the value of their

property if they can establish, as they

allege, that the tax in question had been

paid. Finally, the plaintiffs assert

several other common law state actions

against the defendants, all seeking to

remedy their deprivation. Under these

circumstances it cannot be determined that

the state will fail to provide an adequate

remedy for the taking of plaintiffs'

property. Since the state's action is not

complete until and unless it provides or

refuses to provide a suitable post-

deprivation remedy, plaintiffs' due process

claim is not ripe and cannot be considered

by this Court.

y #

Taking Without Just Compensation

Similarly, a property owner has not

suffered a violation of the just

compensation clause of the Fifth Amendment

until the owner has unsuccessfully attempted

to obtain such compensation through the

procedures provided by the state.

Williamson County Regional Planning Com. v.

Hamilton Bank of Johnson City, 473 U.S. 172,

195 (1985). Because of the numerous state

remedies pursued or available it cannot be

determined whether state procedures will

compensate plaintiffs for the taking of

their property. Until they pursue their

state remedies any claim under the Fifth

Amendment is premature.

State Claims

The sole basis for this Court's

jurisdiction is the existence of a federal

question under 28 U.S.C. § 1331. Because

the Court concludes that both ae plaintiffs'

constitutional claims are premature, it

follows that this Court is without

jurisdiction to hear the remaining pending

state claims. United Mine Workers v. Gibbs,

383 U.S. 715 (1955). Each of the

plaintiffs' claim will be dismissed without

prejudice pending a pursuit of the state

remedies available to them.

ORDER

he IS ORDERED that plaintiffs'

Constitutional claims are DISMISSED without

prejudiced.

IT IS FURTHER ORDERED that plaintiffs'

claims unde: state law are DISMISSED without

prejudice tor lack of subject matter

jurisdiction.

Entered this 28th day of April, 1992.

BY THE COURT:

JOHN C. SHABAZ

District Judge

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

August 13, 1993

Before

Hon. JOHN L. COFFEY, Circuit Judge

Hon. FRANK H. EASTERBROOK, Circuit Judge

Hon. HARLINGTON WOOD, JR., Senior Court

Judge

No. 92-2220 ) Appeal from the United

) States District Court

ELMER RITTER AND ) for the Western

HELEN RITTER, ) District of Wisconsin.

)

Plaintiffs/Appellant)

) No. 91 C 925

Vv. ) John C. Shabaz, Judge.

)

PEGGY S. ROSS, )

County Treasurer for)

Rock County, )

Wisconsin, STEPHEN )

D. MEYER, Corporate )

Counsel for Rock )

County, Wisconsin, )

and ROCK COUNTY, )

a body politic in )

the State of )

Wisconsin, )

)

ORDER

Defendants/Appellees

On consideration of the petition for

rehearing in banc filed in the above-

entitled cause by plaintiffs-appellants on M

ay 21, 1993, no judge in active service has

requested a vote thereon, and all of the

judges on the original panel have voted to

deny a rehearing. Accordingly,

IT IS ORDERED that the aforesaid

petition for rehearing with suggestion for

rehearing in banc be, and the same is

hereby, DENIED.

Wisconsin Statutes §75.52(3)

COMMENCEMENT OF PROCEEDING TO FORECLOSE

TAX LIEN.

(a) Whenever any land has been included in a

tax certificate, the treasurer may file in

the office of the clerk of the circuit court

of the county, one or more lists of parcels

of property affected by unpaid tax liens as

shown on the tax certificates in the

treasurer's office. The treasurer may file

the list when any of the following time

periods elapses after the date of the tax

certificate:

1. One year, if razing, removing and

restoration of the site to a dust-free and

erosion-free condition costs incurred by any

city or village are included in the amount

due for taxes.

2. One year, if the tax certificate is

held by any city authorized to proceed under

s.74.87 or by any county that has a

population of 500,000 or more.

4. Two years, if none of the

conditions specified in subds. 1 and 2

applies.

(am) The parcels shall be numbered

consecutively in the list prepared under

par.(a). The list shall be known as the

"List of Tax Liens of....County Being

Foreclosed by Proceeding in Rem 19..,

No...." and shall bear the following

caption:

'STATE OF WISCONSIN

CIRCUIT COURT

- « ~-COUNTY

In the matter of the foreclosure of tax

liens under section 75.521 Wisconsin

Statutes by ....County, List of Tax Liens

for 19.., Number ....". ~ The list shall

contain as to each parcel, the following:

1. A brief description sufficient to

identify each parcel affected by such tax

lien. The description shall state the lot,

block and section number of any parcel upon

any tract, the plat or map of which is filed

in the office of the register of deeds of

such county. If the lands be unplatted an

engineer's metes and bounds description

shall be a sufficient description.

2. The name or names of the last owner

or owners, and mortgagee or mortgagees of

such parcel as such Ownership or mortgage

interest appears of record in the office of

the register of deeds of the county wherein

such parcel is situated, and the state of

Wisconsin where it has a determined but

unpaid inheritance tax lien, a filed,

nonoutlawed income tax warrant or a docketed

judgment, all in the county where such

parcel is situated.

NOTE: Subd.2 is amended by 1987

Wis.Act.27, eff.1-1-92, to read:

"2. The name or names of the last owner

or owners and mortgagee or mortgagees of the

parcel as the ownership or mortgage interest

appears of record in the office of the

parcel is situated, and the state of

Wisconsin if it has a determined but unpaid

death tax lien, a filed, nonoutlawed income

tax warrant or a docketed judgment, all in

the county where the parcel is situated."

36 A statement of the amount of the

principal sum of each tax lien in the hands

of the country treasurer, together with the

date from which and the rate at which

interest shall be computed on said principal

sum.

4. A petition to the court for

judgment vesting title to each of said

parcels of land in the county, as of the

date of entry of judgment and barring any

and all claims whatsoever of the former

owner or any person Claiming through and

under him since the date of filing the list

of tax liens in the office of the Clerk of

the circuit court.

5. The names of all municipalities,

other than the foreclosing county, having

any right, title or interest in the land or

in the tax liens or in the proceeds thereof.

(b) Such list of tax liens shall be

verified by the affidavit of the county

treasurer and shall be posted in his office.

The fiiing of such list of tax liens in the

office of the clerk of the circuit court

shall constitute and have the same effect as

the filing and recording in the office of

the register of deeds of such county of a

separate and individual notice of the

pendency of such proceeding as to each

parcel described in such list, and likewise,

not withstanding any other provision of law,

shall constitute the commencement of a

special proceeding by the county against

each parcel of real estate therein described

and have the same effect as the filing of an

individual and separate petition or

complaint by the county against each parcel

of real estate therein described to enforce

the payment of the tax liens against such

property.

of the list of tax liens as shall include

the description of a particular parcel shall

be mailed by registered or certified mail,

return receipt requested, by the county

treasurer to the last-known post-office

address of each owner and mortgagee of

record, the state of Wisconsin in the

instances specified in par. (am) 2, and to

each municipality, other than the

foreclosing county, having any right, title

or interest in the land or in the tax liens

or the proceeds thereof. An affidavit of

the treasurer setting forth the names of the

owners, mortgagees, the state of Wisconsin

in the proper case and municipalities for

whom a post-office address has _ been

ascertained, giving the addresses’ and

stating that notice was mailed, giving the

date of mailing, and stating that no present

post-office address was ascertainable for

the other owners and mortgagees, shall be

filed and constitute full compliance with

this paragraph.

Wisconsin Statutes §75.521(6)

PUBLIC NOTICE OF IN REM PROCEEDING.

Upon the filing of such list in the office

of the clerk of the circuit court, the

county treasurer forthwith shall prepare a

notice that such list of tax liens and

petition has been so filed and a copy

thereof posted in the office of said county

treasurer. The treasurer shall cause such

notice, together with the list of tax liens

and petition, to be published as a class 3

notice, under ch. 985. Such notice shall be

in substantially the following form:

NOTICE OF COMMENCEMENT OF PROCEEDING

IN REM TO FORECLOSE TAX LIENS

BY ...-COUNTY

(Here insert list of tax liens and petition

as filed in office of clerk of the circuit

court.)

TAKE NOTICE That all persons having or

Claiming to have any right, title or

interest in or lien upon the real property

described in the list of tax liens, No..... ,

on file in the office of the clerk of the

circuit court of ..... ‘county, dated ..... ?

and hereinabove set forth, are hereby

notified that the filing of such list of tax

liens in the office of the clerk of the

circuit court of .... county constitutes the

commencement by said .... county of a

Special proceeding in the circuit court for

county to foreclose the tax liens

therein described by foreclosure proceeding

in rem and that a notice of the pendency of

such proceeding against each piece or parcel

of land therein described was filed in the

office of the clerk of the circuit court on

(insert date). Such proceeding is

brought against the real property herein

described only and is to foreclose the tax

liens described in such list. No personal

judgment will be entered herein for such

taxes, assessments or other legal charges or

any part thereof.

TAKE FURTHER NOTICE That all persons

having or claiming to have any right, title

or interest in or lien upon the _ real

property described in said list of tax liens

are hereby notified that a certified copy of

such list of tax liens has been posted in

the office of the county treasurer of ...

county and will remain posted for public

inspection up to and including ... (here

insert date at least 8 weeks from the date

of the first publication of this notice)

which date is hereby fixed as the last day

for redemption.

TAKE FURTHER NOTICE That any person

having or claiming to have any right, title

or interest in or lien upon any such parcel

may, on or before said ...(insert redemption

final date), redeem such delinquent tax

liens by paying to the county treasurer of

..county, the amount of all such unpaid tax

liens and in addition thereto, all interest

and penalties which have accrued on said

unpaid tax lien, computed to and including

the date of redemption.

---County

BY .

County Treasurer

Wisconsin Statutes §75.521(14a)

DAMAGES. Any person who was the owner of

any right, title or interest in lana which

was lost by judgment of foreciosure as

provided in this section may within 2 years

from the date of entry of such judgment, in

the cases hereinafter mentioned other than

fraud and within 6 years in the case of

fraud, commence an action in the circuit

court against the county to recover the fair

market value of the person's interest

therein at the date of entry of said

judgment of foreclosure in rem. If the

court determines that such person's right,

title and interest in said land was unjustly

foreclosed and lost because said person's

interest in such lands was not subject to

taxation, special assessment, special charge

or special tax at the time of the levy of

the tax, assessment or charge, for

nonpayment oof which said lJlands’~ were

foreclosed, or that in fact such tax,

special assessment, special charge or

special tax was paid by said owner, or that

the tax lien upon which the judgment of

foreclosure in rem was based was barred by

the statute of limitations, or if such

person lost said property through fraud

without fault ion his or her part, the court

shall determine the fair market value of

said iand or of said person's’ interest

therein as hereinabove set forth. The fair

market value shall not exceed the amount

arrived at by dividing the assessed

valuation of such lands in the year in which

such judgment in rem was entered by the

percentage ratio of real estate assessments

prevailing for the taxing district in which

the lands were located as set forth in the

equalization for state tax purposes of the

Same year. The court shall award judgment

to such plaintiff in such amount, together

with a reasonable attorney's fees to be

fixed by the court, and the plaintiff's

costs and disbursements of such action. The

amount awarded the plaintiff shall be

reduced by the total amount due, as of the

date of entry of such judgment, for all

current taxes and upon all tax certificates

held by the county on such date that the

court shall find were valid. Upon payment

of the judgment the county may charge back

as a tax to any taxirg district the amount

which such district received from the county

in payment of taxes and interest on said

land either by distribution of proceeds of

sale thereof by the county or though other

payment by the country to the extent that it

exceeds the amount distributable to such

district had the same been based upon the

payment of the taxes and interest found by

the court to be properly payable at the time

of the entry of the judgment of foreclosure

and applied in reduction of the amount

awarded to the plaintiff hereunder. .

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.