# Opposition Brief — Lehnhausen v. Lake Shore Auto Parts Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0103%3A06 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1973 - **Citation:** 410 U.S. 356 ## Text a ae of proposed Article IX-A of the 1870 Illinois Constitution Since that was the result reached by the Illinois Supreme Court, we, therefore, appear here to argue that the deci. sion of the Illinois Supreme Court was: (a) correct, (b) based upon long-standing prior rulings of this Court, (0) adequate to dispose of the issues raised, and (d) sony from a public policy standpoint. This brief will take up (in order) the arguments raised in the three petitions for , writ of certiorari and the one jurisdictional statement {, which it is addressed. OPINIONS BELOW This entire litigation arises out of the meaning anj effect of an amendment to the 1870 Illinois Constitutin which was initiated by Senate Joint Resolution #30 of the Illinois General Assembly passed June 30, 1969, sub mitted to referendum of the electorate of that state o November 3, 1970 and declared ratified on November 3, 1970. The language of that clause, called Article IX-A, is as follows: Notwithstanding any other provision of this Constitn. tion, the taxation of personal property by valuation js prohibited as to individuals. The majority, and dissenting opinions, of the Lllinois Supreme Court found different legal results emanating from the language of Article IX-A. The majority opinion, written by Mr. Justice Schaefer found the language to be violative of the equal protection clause of the 14th Amend. ment to the United States Constitution in that: “The new article classifies personal property for the purpose of imposing a property tax by valuation, upon a basis that does not depend upon any of the characteristics of the property that is taxed, or upon : ; , : ‘ on the use to which it is put, but solely upon the owner- ship of the property.” Mr. Justice Schaefer and the majority thus find that a property tax imposed only upon the property hel a by corporations is unconstitutional. Mr. Justice Davis in his dissenting opinion agrees that the intent of Article LX-A was to impose a personal property tax payable only by corporations. He then goes on to say? “Here the question for determination is whether, absent the requirement of a state constitution that corporate and individual personal properties be taxed the same, the equal protection clause of the 14th Amendment permits them to be taxed differently? I be- lieve that it does!” The full opinions of the Illinois Supreme Court, the trial courts and the texts of statutes and constitutional provisions involved are to be found in the three petitions to which this brief is a response, = By a BS “G ‘: " ss af ° \ i é a * x % LN & bs ¥ tia &. rennet & ounies. I. BRIEF IN OPPOSITION TO PETITION FOR A Wer OF CERTIORARI BY ILLINOIS ATTORNEY GENERA oa BEHALF OF A STATE OFFICER — DOCKET no, -685. * * * THE FINDING OF THE ILLINOIS SUPREME Coun? THAT CORPORATIONS MAY NOT CO ALLY BE SINGLED OUT FOR AD VALOREM PR. SONAL PROPERTY TAXATION IS NEITHER NOVE, NOR ERRONEOUS AND IS NOT, ALONG WITH TH RULES OF OONSTRUCTION OF ILLINOIS Lay WHICH EXPOSES THAT INFIRMITY, A PROPR SUBJECT FOR A GRANT OF REVIEW UNDER Om. TIORARI JURISDICTION. On page 27 of Illinois Attorney General William J. Scott’s petition, the following statement is to be found: “It is submitted that the issues in this case are: (1) Was the majority of the Illinois Supreme Court cor. rect when it held that any distinction between ip. dividuals and corporations with the imposition of a/ valorem personal property taxes was an invidious and unreasonable distinction; (2) Was Justice Davis cor. rect in his dissent when he held that it was reasonabk to distinguish between all individually owned persoml property as against all corporately owned persoml property; or (3) Was Judge Donovan”® in error when he ruled that it is reasonable to exempt from th ad valorem personal property taxes “the persoml property owned by individuals and used for their per. sonal enjoyment and that of their families” and had to continue the tax upon the property of individuals, partnerships and corporations which is used for bus- ness and profit-making purposes.” f * Trial judge in case #71-691. SEG PRahhray sii aain The Attorney General, argues that his proposed Issues No. 1 and No. 2 are within the permissable ambit of cer- tiorari jurisdiction. The substance of those two issues is, of course, whether a personal property tax collectable only from the property owned by corporations is consti- tutional. These respondents submit that certiorari should not be granted to consider a point so well established in law. Rule 19 of the United States Supreme Court sets out the type of case which the Court might desire to review on certiorari : “(b) Where a state court has decided a Federal ques- tion of substance not theretofore determined by this court, or has decided it in a way probably not in accord with applicable decisions of this 5 eee A consideration of the opinion of the Illinois Supreme Court and of the case law upon which that opinion relies will show ‘that the criteria of Rule 19 have not been met in the Attorney Generals’ petition or in the other petitions. The majority opinion in finding Article [X-A unconstitu- tional relies entirely upon the rule of the equal protection clause of the 14th Amendment to the Federal Constitution. Mr. Justice Schaefer writes: “Tt cannot rationally be said that the prohibition pro- motes any policy other than a desire to free one set of property owners from the burden of a tax imposed upon another set. All of the arguments in favor of the abolition of the Personal Property Tax upon the property owned by natural persons apply with equal force in favor of the abolition of that tax upon the property owned by others.” Since Mr. Justice Schaefer and the majority can find no distinction between the personal property owned by an ig— individual and personal property owned by a corporation, the court concludes that the constitutional amendmey; which attempted to bring about such a result must fal] ~ Federal constitutional grounds. In the Illinois Supreme Court, petitioner Lake Shon correctly contended most strongly that it and other Illinois corporations could not be discriminated against by a per. sonal property tax which applied only to corporate ownei property. While the Maynard petitioners disagree with Lake Shore on a number of issues (See Argument Nl), we are of one mind on the clarity and settled nature of the main constitutional issue at bar. The brief of Lake Shor Auto Parts Co. in the Illinois Supreme Court containg an excellent discussion of the applicable case law in this area. We, therefore, set out pages 18 to 26 of that brie with Lake Shore’s permission and our compliments: “For nearly ninety years it has been settled doctrine that an ad valorem property tax may not be imposed which discriminates against property owners solely by reason of the fact that they are corporations. Sucha classification is per se unreasonable, and constitutes a deprivation of the equal protection of the laws guaran teed by the 14th Amendment to the United States Con. stitution. “A leading writer states this rule in the following language : ‘Classification for exemption purposes may hk based on the use to which property is devoted, as well as the nature of the property; but property cannot be exempted merely because of its owner. ship where the same kind of property owned by others is taxed . . . Instead of classifying property for the purpose of exemption either by its charac teristics or by its uses, the legislature cannot ‘classify the owners of property according to some characteristic possessed by them, or connected aE a. a ar, [Continuation of quoted matter] with their conduct, and thereupon base an exemp- tion of the property of such persons, regard- less of the characteristics possessed by it and of the uses to which it is put.’ 1 Cooley on Taxa- tion (4th ed.) 280, p. 594. “Another author has stated ‘that there would very probably be no dissent’ from the proposition that the United States Supreme Court is prepared to guar- antee to all corporations equality with individuals in respect to all property taxation. Sholley, Corporate Taxpayers and the Equal Protection Clause, 31 Ill. LR. 463, 589 (1937). “The doctrine, insofar as it is relevant to the case at bar, had its origin in two decisions of the 9th Fed- eral Circuit Court in the California Railroad Tax cases: San Mateo County v. Southern Pacific R. Co., 13 Fed. 722 (1882), app. dism. per. stip., 116 U.S. 138; and Santa Clara County v. Southern Pacific R. Co., 18 Fed. 385 (1883), aff’d. on other grounds, 118 U.S. 394. “The history and background of these famous cases has been detailed elsewhere.(*) The litigation arose out of a provision of the California Constitution which required that the value of any outstanding mortgage be deducted from the assessed value of real estate, except as to railroads and other quasi-public corpora- tions. The chief opinion in each of the cases was writ- ten by Justice Field, an Associate Justice of the United States Supreme Court assigned to the circuit. In each ease, also, there is a concurring opinion by Justice Sawyer. (*) See, Sholley, op. cit. supra, 31 Til. L. R. 463 at 469-74 (1937) ; McLaughlin, The Court, The Corporation, and Mr. Conkling, 46 Am. Hist. Rev. 45, 52 (1940); and see the dissenting opinion of Justice Douglas, and the concurring opinion of Justice Jackson in Wheel- be) Corp. v. Glander, 337 U.S. 562, 576, 574 _— [Continuation of quoted matter] “Justice Field first undertook to meet the argument that the constitutional provision did nothing more thy, impose a ‘reasonable classification’, stating (13 Fed, at p. 737-8): ‘It is not classifying property to provide that th property of certain parties . . . shall be assesgej at its value after deducting the mortgage: ani that the property of other parties . . . shall taxed at its full value without any deduction, Tha is not providing for a different rate of taxation for different kinds of property, but for taxation according to the character of the owner’ (emphasis added) “See also Justice Field’s subsequent opinion in the Santa Clara case (18 Fed., at p. 408), restating the basis for rejecting the ‘reasonable classification’ contention, and Justice Sawyer’s concurring opinion in that same case (18 Fed. at p. 432). “To the argument that even if the assessment could not be sustained as a property tax, it ought to be sus. tained as a franchise tax,—i.e., a ‘condition of the continued existence of the railroad corporation’ Justice Field presented two answers (13 Fed. at D 754) : 1) The California constitutional provision in ques tion, and the statute thereunder, were not intended a a franchise tax or a condition for the continuation of the franchise; 2) The right of the state to exclude the corporation altogether does not mean that the state may, as a con- dition for continued permission to do business, require the corporation to waive and forego the rights other- wise guaranteed to it by the United States Constitu- tion: “What the state may do, even with the creations of its own will, it mist do in subordination to the inhibi- tions of the federal constitution.” wine BE sees [Continuation of quoted matter] “Despite the lack of a definitive Supreme Court de- cision, the Califorma Railroad Tax cases immediately - became accepted as the law of the land. “In Walker v. Northern Pacific Ry., 47 Fed. 681, 686 (C.C.N.D. 1891), an act of the North Dakota territorial legislature which placed real estate owned by the Northern Pacific Railroad in a more favorable tax status than that of other real estate was held to be violative of the equal protection clause of the United States Constitution. “The holding of the California Railroad Taz cases has been followed on many occasions : Northern Pacific Ry. Co. v. Sanders County, 214 Pac. 596, 599 (Mont., 1923); State ex rel Northern Pacific Ry. Co. v. Duncan, 219 Pac. 638, 640 (Mont., 1923); Gamble-Robinson Fruit Co. v. Thoreson, 204 N.W. 861, 864-5 (N.D. 1925) ; d Northwestern Improvement Co. v. State, 220 N.W. , & 436, 439-40 (N.D. 1928). e “In those few states wherein income taxes have ‘Ff . CUM ‘~~ ee OF oe D Ce Ce D been held to be taxes on property, it necessarily fol- lows that an income tax applicable only to corporations is an unreasonable classification,—not only under the . & state constitution, but under the equal protection clause 7: - of the 14th Amendment as well: f Redfield v. Fisher, 292 Pac. 813 (Ore. 1930), reh. den. sub nom. Redfield v. Norblad, 295 Pac. 461 1 (1931), cert. den. 284 U.S. 617 (1931) ; - & Aberdeen S. & L. Ass’n. v. Chase, 289 Pac. 536, 2 541 (Wash., 1930), op. on reh., sub nom. Wash- . & ington Mutual Savings Bank v. Chase, 290 Pac. 5 697 (1930). E “Tt was not until 1928, in Quaker City Cab Co. v. 1 § Pennsylvania, 277 U.S. 389, that the Supreme-Conrt of the United States was squarely faced with an equal protection challenge to a state tax, not deemed an ) ion [Continuation of quoted matter] excise tax, which directly discriminated against cor. porations. “In the Quaker City Cab Co. case, the United State, Supreme Court, relying on The California Railroa Taz cases, held unconstitutional, as a violation of th equal protection clause a statute of Pennsylvania whid, imposed a tax on the gross receipts of incorporata taxi-cab companies (both domestic and foreign) whi, wholly exempting the receipts of unincorporated tay. cab businesses. “Although a tax on business receipts is not ordi thought of as a property tax, the Supreme Cour stated (p. 402): ‘Here the tax is one that can be laid upon rn ceipts belonging to a natural person quite ag ep. veniently as upon those of a corporation. It ig not peculiarly applicable to corporations, as are taxe on their capital stock or franchises. . . . The char. acter of the owner is the sole fact on which the dis tinction and discrimination are made to depend The tax is tmposed merely because the owner is 4 corporation. . . . It follows that the section faik to meet the requirement that a classification, t be consistent with the equal protection clause, must be based on a real and substantial difference hay. ing a reasonable relation to the subject of th legislation.’ (emphasis added). “Three dissenting justices took sharp issue with the majority’s view that ‘the tax is imposed merely be cause the owner is a corporation’. They viewed the tax in question as an excise tax, so that ‘ownership, as such, had nothing at all to do with it. “The ‘character of the owner’, of course, has no bearing whatsoever in the case of a true excise tax By definition, ownership is irrelevant. The tax is im- posed upon the exercise of some act or privilege. (See Annotation, What is a Property Tax as Distinguished 8s SS Oe US ho nin tis [Continuation of quoted matter] From Excise, License and Other Taxes, 103 A.L.R. 18). In Bromley v. McCaughn, 280 US. 124, 137 (1929), the Supreme Court recognized that an excise or privi- lege tax may be imposed ‘upon the exercise of one of the numerous rights of property, but each is clearly distinguishable from a tax which falls upon the owner merely because he ts owner, regardless of the use or disposition made of his property.’ (emphasis added). “Presumably, each of the dissenting justices in Quaker City Cab would have joined the majority in condemning a true property tax which discriminated against corporations solely on the basis of ownership. In any event, there can be no doubt that the Quaker City Cab case stands for the proposition that the equal protection clause prohibits discriminatory taxation against corporations based solely on the ownership of property. : ; “The Quaker City.Cab case has been followed in many subsequent cases, in both state and federal courts, e.g. : Garysburg Mfg. Co. v. Pender County, 42 Fed. 94 500, 506 (E.D.N.C. 1930), rev’d. on other grounds, 50 Fed. 2d 732 (4th Cir. 1931) ; Mount Hope Cemetery Co. v. Pleasant, 32 Pac. 2d 500, 503 (Kan. 1934) ; State v. Hunt, 9 N.E.2d 676, 681-2 (Ohio, 1937) ; H. Rouw Co. v. Texas Citrus Comm’n., 247 S.W. 2d 231, 234 (Tex. 1952). “Tn all of the cases thus far considered, the discrimi- nation held unconstitutional was directed against cor- porations as such, and in favor of natural persons. Also relevant to the problem at hand is a long and well- established line of cases in the United States Supreme Court which have laid down the rule that a property tax may not, under the 14th Amendment, serve as the basis for discriminating against foreign corporations and in favor of domestic corporations. See Wheeling Steel Corp. v. Glander, 337 U.S. 562, 571-2 (1949), ek, ee [Continuation of quoted matter] and WHYY, Inc. v. Borough of Glassboro, 393 qs 117, 119 (1968). “Both the Cook County defendants and defends Lehnhausen rely almost exclusively upon extengiy, quotations from the case of Thorpe v. Mahin, 43 1113; 36 (1969), wherein this Court, in the course of uphold. ing the corporate-individual rate discrimination unde the Illinois Income Tax Act, indicated the broad Beope of classification which is permissible under the equal protection clause of the United States Constitution, “The language of Thorpe v. Mahin, however, mu be read in the light of the Court’s preliminary holding -(43 Ill. 2d at p. 42) that: ‘We hold that the tax in question is not a prop erty or “The Brine Soi of that holding was not only t free the income tax from the constrants of the mi. formity clause of the Illinois Constitution (a matter with which we are not concerned in the instant case), but it also served as an essential prerequisite to this Court’s ruling on the equal protection argument, This is demonstrated by this Court’s strong reliance, i Thorpe v. Mahin, upon the leading case of Flint 1, Stone Tracy Co., 220 U.S. 107 (1911), in which the United States Supreme Court upheld a federal tx exclusively on corporations and measured by net in come. “The result in Flint v. Stone Tracy depended, in the first instance, upon the Court’s characterization of the tax as an excise, rather than a tax on property, and the holding on this point was preceded by an elaborate and enlightened discussion of the problem (220 US. at 145-147, 150-152). “Although the equal protection clause of the 14h Amendment was not directly involved in Flint v. Stow Tracy, the Supreme Court did repeatedly go ont of its way to observe that the criteria for reasonable class- fication of an excise tax under the 14th Amendmat th Ese 3S SR BHWRERAE om = z Is Bee BES = BEE br BFS & on [Continuation of quoted matter] are comparable to the criteria under Article I, 4 8, Clause 1, of the United States Constitution—the pro- vision involved in Flint v. Stone Tracy, See, 220 U.S., at pp. 158 and 161. “Flint v. Stone Tracy thus stands for two propo- sitions : (1) That a tax on businesses, measured by net income, is an excise tax and not a property tax. Hence it need not be apportioned among the sev- eral states, and it may be ‘reasonably classified’. (2) That it is reasonable to classify the excise so as to impose it only on corporations for the privilege of doing business in corporate form, while at the same time exempting unincorporated businesses and individuals. “Similarly, Thorpe v. Mahin stands for two propo- sitions : (1) That a tax measured by income is not a property tax. (2) That it is reasonable (under both the state constitution and the equal protection clause of the federal constitution) to classify the tax by imposing it only on corporations for the privilege of doing business in corporate form,’ while at the same time exempting unincorporated businesses and individuals, or taxing them at a lesser rate or on a different base. “Neither case offers any support to defendants’ ap- parent contention that a property tax may be classified solely on the basis of the ownership of the property.” (End of quoted material.) The only important case cited by the Attorney General and not discussed in the Lake Shore brief is Allied Stores of Ohio, Inc. v. Bowers, 358 U.S. 522 (1959). In that case Ohio passed a statute exempting from ad valorem taxa- tion “merchandise or agricultural products belonging to a non-resident .. . if held in a storage warehouse for storage josie i only”. The plaintiff, an Ohio corporation, sued the tar commissioner of the state alleging that the statute denied equal protection of the laws to residents of Ohio. Ty Supreme Court found that the exemption was constitn. tional. The Illinois Attorney General attempts to use the Allied case to indicate that the same wide latitude Which exists in income tax classification carries over to ad valoren taxation. While the Court does invite state inventiveness in tax classifications, the facts of the Allied case and the opinions of the Supreme Court are not helpful to the peti. tioner’s argument. In Allied, the classification did Dot create an exemption based upon a corporate-individnsl dicotomy. The distinction was not upon ownership but upon residence coupled with a state policy. The majority opinion discussed in detail the possible public policy reg. sons which might have motivated the Ohio legislature jp passing the law. Unlike the Ohio’ case, no economic benefit to particular select groups or particular industries was to be brought about by Illinois Article IX-A. In the present case the only motivation which has been or could be suggested for the passage of Article IX-A is that the corporate tar. payer is a lucrative and easy target for taxation. The language previously quoted from Mr. Justice Schaefer's opinion is the best proof that the Illinois Supreme Court sought but was unable to find any legitimate policy motive underlying the admitted discrimination: “It cannot rationally be said that the prohibition pro- motes any policy other than a desire to free one set of property owners from the burden of a tax imposed upon another set.” a) en The argument of the Maynard respondents is not limited to the fact that no public policy justification for the cor- rate discrimination was presented to nor found to exist by the Illinois Supreme Court. At this late date there is no acceptable public policy justification for the course urged by the Illinois Attorney General. Any attempt to strip corporations of the constitutional protections emanating from the Quaker City Cab case must be made in the face of the practical results of such a decision. Courts have agreed that corporations can be compelled to pay fran- chise taxes and higher rate income taxes for engaging in the same businesses as non-corporate entities. Corpora- tions have, however, for 90 years, been free of arbitrary classification in ad valorem taxation. Corporate decisions and state taxation systems and policies have been made upon this firm and basic assumption of constitutional law. To upset such law would be to make corporations non- persons for the purposes of the United States Constitu- tion and effectively end the equal protection guarantee in the field of corporate taxation. Such a startling change of American law should hardly be the end result of one small piece of bad draftsmanship by the Illinois General Assembly. As the third ground for review, the Attorney General presents an approach suggested by the trial court judge in the Shapiro case. In Shapiro, Judge Donovan thought to avoid all constitutional issues by so interpreting Article IX-A as to free it from any constitutional infirmity. At page A-39 of the Attorney General’s petition, a clause of Judge Donovan’s order is set out as follows: “That Article IX-A is free of the ambiguity and un- certainty of intendment charged by the plaintiffs, and that its intendment is clearly declared to prohibit the taxation of personal property by valuation ex- —18—”" clusively as to natural persons, where that p is used, by them, for the personal enjoyment - then. selves and their families.” The argument that Article [X-A prohibits the taxatip of the non-business personal property of natural pe. sons is an attractive one. In the Maynard respondeny brief and oral arguments before the [Illinois Suprey Court, we presented that position to the court ag » alternative argument. The alternative. argument reg purely upon an appeal to rules of statutory interpretation concerning the meaning of the word “individuals”, §yq an interpretation, had it been adopted, would have pe. mitted the court to avoid any constitutional issues. Despit the fact that this approach was suggested by the Maynari plaintiffs, the State’s Attorney of Cook County, and th Attorney General of the State of Illinois, both the majority and. dissenting opinion of the Illinois Supreme Cour, rejected that tactfully limited interpretation of the phn» “as to individuals”. Both Mr. Justice Davis and Justice Schaefer felt that the only valid issue in this cax related to the validity of Article IX-A in light of the equi protection clause. The majority opinion specifically dis cussed and rejected the proffered interpretation of stat law which would have avoided constitutional infirmity. It has been the oft-stated opinion of the United State Supreme Court that it is bound by judgments of State Supreme Courts on questions of state law. Henry v. Missi. sippt, 379 U.S. 443 (1965) ; Scripto, Inc. v. Carson, 362 US 207 (1960); Kedroff v. St. Nicholas Cathedral, 34 US 94 (1952); Madden v. Kentucky, 309 U.S. 83 (1940). Thu, the United States Supreme Court has bound itself to a — cept a State Supreme Court’s construction of a State Co- stitutional provision or statute. Cramp v. Board of Public _ Bt ton rr. ats’ me a sts on ueh Xr. ite ard the rity art, ase Mr. se ual dis. tate . ates tate sis. 8 IS hus, ae ‘00 bhc am $9 Instruction, 368 U.S. 278 (1961); First National Bank v. Ayers, 160 U.S. 660 (1896). Petitioner’s third stated issue flies in the face of this established principle of Federal law. 7 In the case at bar, the Illinois Supreme Court has con- sidered and unanimously rejected the contentions stated by the Illinois Attorney General as Issues No. 1, 2, and 3. By its own decisions, the United States Supreme Court should not grant certiorari to reconsider either a matter of long-standing Federal law or a state statutory inter- pretation previously disposed of by the highest court of the state. sie GR sai II. BRIEF IN OPPOSITION TO PETITION FOR A Wry OF CERTIORARI BY STATE’S ATTORNEY OF (Cox COUNTY ON BEHALF OF COUNTY OFFICERS. DOCKET NO. 71-691. ‘ * 7 THE ILLINOIS CONSTITUTION OF 1970, EFFE. TIVE JULY 1, 1971, MADE NO CHANGE IN THE on, TERIA GOVERNING DECISION OF THIS CASE. TH ILLINOIS SUPREME COURT DID NOT IGNORE (2 OVERLOOK THE NEW ILLINOIS CONSTITUTION BUT CORRECTLY CONCLUDED THAT THE Basi FEDERAL QUESTION, INVOLVING VIOLATION 7 THE EQUAL PROTECTION CLAUSE, REMAINED Uy. AFFECTED BY THE NEW CONSTITUTION. The petition for writ of certiorari, filed by Edward J, Barrett, County Clerk of Cook County, et al., is devoted almost completely to arguments concerning the adoption of the Illinois Constitution of 1970 which became effe. tive several days prior to the rendition of the opinion and judgment herein sought to be reviewed. Without ex. plaining how the new Constitution remedied the invidiow discrimination implicit in Article IX-A of the 1870 Co. stitution and violative of the equal protection clans, petitioners charge that the Illinois Supreme Court ignored the new constitution, which in their view introduced a new dimension in this case. In developing this theme, they present a number of unsupported and irrelevant variations. For example, in “Questions Presented” they gratuitously demand to know how “the highest court of the state ca ignore the existence of the new state constitution . . . and cireumscribe the extent of its examination in determining the public policy of the state ...?” They ask how the cout could ignore the context in which Article [X-A of the prior constitution was adopted, claiming the constitutional LJ a ee eS oN ew CU — - _— —_ OES Ee — OE ll. ee. .lC OCCU Leelee eel _ _ (‘ le’Ol SOU DUC’! a pe amendment which was held invalid was “the first step of the program provided in the new constitution for the event- yal abolishment of the personal property tax.” They strongly imply that either by oversight (Pet. p. 39) or by deliberate design (Pet. p. 5) the Illinois Supreme Court ignored its own precedents and failed to apply the law existing at the time of decision in favor of the law exist- ing at the time the case arose. Petitioners even go 80 far as to argue that by failing to mention the new con- stitution of 1970 in its opinion, the Illinois Supreme Court “eaused to be born... a substantial federal question im- pelling this court’s consideration . . .” (Pet. p. 5). We take issue with these arguments of the petitioners, The contention that the Illinois Supreme Court ignored or overlooked the advent of the Illinois Constitution of 1970 is totally unsupportable in point of fact. The petitioners’ arguments that the Constitution of 1970 requires valida- tion of Article IX-A are likewise without merit in point of law. To argue that the Illinois Supreme Court would ignore or overlook such an important development in the su- preme law of the state as the taking effect of a new con- stitution is scarcely plausible on its face. The facts are totally the other way. Both in the briefs and in the oral arguments presented to that Court, the new constitution was the subject of serious and repeated references by counsel for the several parties. The leave granted to these respondents (as petitioners in Maynard No. 44308) to file as a matter of original jurisdiction their petition for declaratory judgment, was in response to their petition which recited the importance of considering the new con- stitution, as well as the old, in deciding the issues of the case and contained their offer to make such a presentation to the Court. One of the respondents’ attorneys who par- ee ticipated in the arguments before the Illinois Suprem Court, served as President of the Sixth Illinois Constity tional Convention, the body which drafted the new em. stitution. Clearly the court was aware of the new om, stitution and its provisions relating to personal property taxation. It should be obvious that there is no rational basis for concluding, as petitioners have done, that, bécanse th court failed to mention the new Constitution in its opinim it either ignored or overlooked the document. It isvévident from the opinion that the court viewed the basic Feder constitutional question, i.e., the violation of the equal pn tection clause, as unaffected by the emergence of th Illinois Constitution of 1970. Petitioners would justify the invidious discrimination implicit in the constitutional amendment by urging upm this court that there is a public policy in Illipois which looks to ultimate abolishment of all ad valorem~persoml property taxation. That such a policy exists is clear; that such a policy cannot justify violation of the equl protection clause is equally clear. Petitioners assert (ani petitioner Lake Shore Auto Parts, Inc. (Pet. p. 7) make a similar argument) that Article [X-A was the initial step in a program of the new Constitution to end all such taxation by 1979. These interpretations are at the best but half truths, and petitioners are totally in error if they mean to assert that the new Constitution mandates immed- ate abolishment of individual personal property taxes. To the contrary, the new document carries forward only such individual exemptions as shall ultimately be defined and held valid by the courts. That, of course, is whit the present case is all about and hence petitioners beg the question by their circuitous argument. SR PE ila r-— See™ — EN Fe == ZS TE Ss we BS ted nied Os oe The Constitutional amendment, which is at issue in this case, was proposed by Senate Joint Resolution No. 30 enacted by the Illinois General Assembly following the call of the Constitutional Convention and prior to its con- vening. The amendment was required to be voted on at the general election of November 3, 1970, which occurred prior to the referendum on the new constitution. Thus, throughout its deliberations, the Convention was faced with a drafting dilemma. It was necessary for it either to structure any revenue article of a new constitu- tion with concern for the meaning, application and legal effect of the pending Constitutional amendment—matters which were anything but clear; or it could proceed to draft new provisions without concern for the pending proposi- tion—a course publicly unacceptable. The difficulty was also compounded by the doubts which existed concerning the interpretation of the word “individuals” as used in the amendment and doubts. concerning the constitutionality of particular interpretations under the equal protection clause. A measure of the uncertainty felt by many dele- gates to the Convention was aptly expressed in floor debate by Stanley C. Johnson, a member of the Revenue Com- mittee, who stated: “Mr. President, the amendment in November is clouded with so much uncertainty as to its application that we will be years, we fear, trying to figure out what it really means. There have been opinions registered that it will not apply to joint tenants, that it will not apply to trusts, that it will not apply to partner- ships. Certainly it will not apply to corporations. So that it may eventually boil down to what it applies _to is whether or not the property is used in the pro- duction of income or not.” (June 25, 1970, Transcript Vol. 74, p. 11) —%— Professor Dawn Clark Netsch, who served ag Vig Chairman of the Revenue Committee (referring to gy tion 5(b) of Article IX of the Constitution of 1970, here, after quoted) wrote in the November, 1970 issue of ty Chicago Bar Record, p. 114: “The coverage of this subsection depends, in tum, on the coverage of the proposed November amen ment abolishing the tax ‘as to individuals’. Pregy, ably, the courts will have settled these questions by the time the personal property tax is finally eliminaty in 1979. If the courts should decide—possibly to ayoij equal protection issues—that an individual engaged iy a retail grocery business as a sale proprietorship js not relieved of paying the personal property tax pu: suant to the November referendum because his cop. petitor down the street, who is incorporated, is no relieved, that business individual would be picked up by subsection (c) and relieved of the tax in th second phase-out. He would then be liable for a shar of the replacement tax.” In this context of timing problems and uncertainties a: to meaning and legality the Convention drafted a consti. tutional program, subsequently approved by the voter, which provided for legislative phasing-out of all ad valoren personal property taxation by 1979, with safe-guards to avoid disasterous results to the public schools and mmic. pal services. The program did not mandate the immediate exemption of individuals from personal property taxation as suggested by petitioners. It merely provided for the recognition of such abolition of individual personal prop erty taxation, if any, as the courts would determine to have occurred under the preceding constitution as amended by Article IX-A. sr Ff BS ate eknP FP ees eat? EP ~] 6&6 PF > SF OO UC SS Ee Oe Oe ee The Maynard respondents submit the arguments put forward by Lake Shore are not sufficient to cause this Court to either note probable jurisdiction or issue its writ of certiorari. CONCLUSION In a well litigated and vigorously contested lawsuit the Illinois Supreme Court found that the Constitution of the United States would not be bent so as to make corpora- the only payers of the Illinois ad valorem personal rty tax. The Court, perhaps realizing that corpora- tions can hardly defend themselves at the polls against in- yidious discrimination, rejected the attempts of legislators to bestow such a singular burden upon them. The Illinois Supreme Court relied upon established precedents of this Honorable Court in reaching its politically unpopular but tions ‘legally correct and just result. This Court need hardly hear the case to restate the point that the equal protection danse of the 14th Amendment does not shift with pre- vailing political winds. Therefore the motion to dismiss should be granted and the petitions for writ of certiorari denied. Respectfully submitted, Aycet, Sroxesirer & Guink Witwer, Moran & BuRLAGE + Léois ANCEL SaMvuEL W. WITWER | ASrewart H. DiaMonp 141 W. Jackson Boulevard ; 111 W. Washington Street Chicago, Illinois 60604 ; Chicago, Illinois 60602 427-8750 782-7606 Attorneys for Respondents Evorse L. Maynarp, Proviso Township High School District #209, Bellwood Grade School District #88, Cicero Grade School District #99, and River Grove Grade School District #85-14, all in Cook County, Illinois. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0103%3A06. Public record. Not legal advice.