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People Ex Rel. Courshon v. Hirschfield

OPINION FILED NOVEMBER 18, 1976.

THE PEOPLE EX REL. JACK R. COURSHON, PLAINTIFF-APPELLANT,

v.

TED HIRSCHFIELD ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Champaign County; the Hon. ROGER H. LITTLE, Judge, presiding.

MR. JUSTICE SIMKINS DELIVERED THE OPINION OF THE COURT:

This appeal arises out of a mandamus action in which plaintiff appellant asserted that the Champaign County Board of Review, which consisted of the named defendants, had denied him certain procedural rights guaranteed by the Revenue Act of 1939 (Ill. Rev. Stat. 1973, ch. 120, par. 482 et seq.).

In August 1974, plaintiff filed three real estate assessment complaints, each of which requested a hearing. The record does not indicate that the taxing authorities had increased the assessed valuation of his parcels; and, indeed, it does show by strong implication at least, that the assessments had not been increased. Nonetheless, plaintiff chose 1974 as the year in which to request that assessments on his properties be reduced. On October 14, 1974, without having sent notice of a hearing, the board sent a notice of ruling for each parcel. It had ruled ex parte against lowering the assessments of two parcels and granted a reduction on one, but plaintiff felt the reduction was inadequate. On each notice of ruling the board included the following statement:

"If you are not satisfied you may call said Board of Review for an appointment * * * on or before October 30, 1974. Failure to call for an appointment or appear on or before the time indicated will forfeit your right to a hearing on this complaint."

Plaintiff contacted the board on October 31, one day after the deadline; and the board denied his request for a hearing. On December 9, plaintiff filed a petition for mandamus "and other relief." In this petition he alleged, in essence, that the board had made a conclusive determination prior to granting a hearing and that the board had not adopted or published any rules by which plaintiff could be granted a hearing. He prayed that mandamus issue to compel the board to grant a hearing on the complaints. The trial judge granted a hearing on the petition on December 19, 1974. On January 9, 1975, he entered an order denying the relief sought in the petition.

However, on December 31, 1974, — after the hearing but before the order — plaintiff filed, with the clerk of the court, a "First Amendment to Petition for a Judgment for Issuance of Writ of Mandamus and Other Relief." In this document plaintiff realleged all that was in his original petition but also alleged, in effect, that the actions of the board were a nullity because it was composed of only two members, whereas the statute (Ill. Rev. Stat. 1973, ch. 120, par. 489) required three, and that the board of review failed to give plaintiff proper notice of his right to appeal to the board of appeals because it failed to use the language set forth in section 109a of the Revenue Act (Ill. Rev. Stat. 1973, ch. 120, par. 590.1), i.e., that:

"`You may appeal this decision to the Property Tax Appeal Board by filing a petition for review with the Property Tax Appeal Board within 20 days after this notice is mailed to you or your agent, or is personally served upon you or your agent.'"

In this amendment plaintiff again prayed for mandamus but also prayed, in the alternative, that the court itself set the complaints for a hearing, enter final decisions on them, and "take other necessary action to permit Petitioner to seek review, judicial or otherwise, of the Board's actions, rulings and decisions."

On January 7, 1975, plaintiff filed a motion for rehearing and his motion to amend the petition. On January 9, he filed an amended motion for rehearing. On the same day, after a hearing on all the motions, the judge entered the written order denying the original petition and ruled on the others. By written orders filed January 29, he then denied the motion to amend the petition for mandamus because it raised issues not before the court on December 19, the date of the hearing on the original petition, and did not seek to merely amend pleadings to conform with the proof. (Ill. Rev. Stat. 1973, ch. 110, par. 46(3).) He granted the motion for rehearing only insofar as it sought rehearing of the issues contained in the original mandamus petition. He had, of course, reheard those issues on January 9.

In his brief on appeal, petitioner now makes the following arguments:

(1) That the board of review followed unpublished rules.

(2) That the board's issuance of a notice of ruling prior to a hearing effectively deprived petitioner of a hearing to which he was entitled.

(3) That, because the board consisted of two members whereas the statute requires three, the action in assessing the property was a nullity.

(4) That, having ruled, the board failed to give petitioner the prescribed statutory notice of a right to ...


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