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28 East Jackson Enterprises Inc. v. Cullerton

March 24, 1977

28 EAST JACKSON ENTERPRISES, INC., PLAINTIFF-APPELLEE,
v.
P. J. CULLERTON, INDIVIDUALLY AND AS COOK COUNTY ASSESSOR, AND BERNARD J. KORZEN, INDIVIDUALLY AND AS TREASURER AND EX-OFFICIO COLLECTOR OF COOK COUNTY, DEFENDANTS-APPELLANTS



ON SECOND PETITION FOR REHEARING.

Fairchild, Chief Judge, Swygert and Sprecher, Circuit Judges.

Author: Fairchild

FAIRCHILD, Chief Judge.

Plaintiff, 28 East Jackson Enterprises, Inc., claims that the decision of the Illinois Supreme Court in the case of 28 East Jackson Enterprises, Inc. v. Rosewell, 65 Ill. 2d 420, 358 N.E.2d 1139, 3 Ill. Dec. 454 (1976), establishes that plaintiff has no "plain, speedy and efficient remedy" in the courts of Illinois for the wrongful tax assessment it complains of in this action, and therefore, that our initial decision in this case, 28 East Jackson Enterprises, Inc. v. Cullerton, 523 F.2d 439 (7th Cir. 1975), directing dismissal of petitioner's complaint for lack of federal jurisdiction because we believed such remedy to exist, should be reconsidered. We have read the opinion of the Illinois Supreme Court in the Rosewell case and do not believe it establishes that the courts of Illinois would not grant equitable relief to a taxpayer able to prove the facts alleged by plaintiff. Accordingly, we deny the petition to rehear.

I. Plaintiff's Federal Suit

The facts of this case, insofar as plaintiff claims wrongful tax assessments of its property in violation of the equal protection and due process clauses of the United States Constitution and of various provisions of the Illinois Constitution and Code, are set forth in this court's initial opinion, 28 East Jackson Enterprises, Inc. v. Cullerton, 523 F.2d 439 (7th Cir. 1975). We there reversed the district court's grant of a preliminary injunction prohibiting the tax authorities of Illinois from selling petitioner's property to satisfy past taxes owing. From our reading of various recent Illinois decisions, we concluded that the courts of Illinois would be willing to grant equitable relief in a case of improper tax assessment, that petitioner therefore had a "plain, speedy and efficient remedy" in state court for the injury he complained of, and that, as a result, the federal courts, pursuant to 28 U.S.C. ยง 1341,*fn1 lacked jurisdiction to consider petitioner's case. We remanded the case to the district court with directions to lift the injunction and dismiss the complaint for lack of jurisdiction. Our mandate to the district court has been stayed, first by plaintiff's application for certiorari*fn2 and then by order of this court pending final adjudication of plaintiff's state court case involving taxes on the same property, but for different years. It was our understanding that in plaintiff's state court case it was making the same claims as in its federal case, and based on that assumption, we were willing to stay our mandate and entertain a second petition for rehearing if the ultimate decision in the state court case established that there is no plain, speedy, and efficient state remedy for plaintiff's federal claims in plaintiff's alleged circumstances.

II. Plaintiff's State Suits

In October, 1975, plaintiff commenced proceedings in an Illinois court to enjoin the sale of its property for failure to pay taxes for the years 1972 and 1973. Shortly thereafter, plaintiff filed another suit seeking the same relief with respect to its unpaid taxes for 1974. In the latter case, the Circuit Court of Cook County refused to issue a preliminary injunction and subsequently granted the defendant's motion to dismiss. Appeal*fn3 was transferred directly to the Supreme Court of Illinois which affirmed the lower court's dismissal, 28 East Jackson Enterprises, Inc. v. Rosewell, 65 Ill. 2d 420, 358 N.E.2d 1139, 3 Ill. Dec. 454 (1976). Plaintiff cites this affirmance as evidence that equitable relief is not available to it and that our decision in 28 East Jackson Enterprises, Inc. v. Cullerton was erroneous.

We have considered the Rosewell decision of the Illinois Supreme Court and do not find that it evidences an unwillingness on the part of the courts of that state to grant equitable relief to a taxpayer in plaintiff's alleged circumstances. Indeed, it does not appear that Mr. Justice Schaefer's opinion addresses the issue of what relief is available in such cases. Rather, as the court saw it,

The fundamental question . . . concerns the authority of Illinois courts to enter judgments which concededly lack finality because the issues that may be determinative have been deliberately excluded from judicial consideration.

And in response to this, Mr. Justice Schaefer wrote:

As this case has been shaped, the role of the Illinois judicial system closely resembles that of a master in chancery for the Federal district court. Any judgment that an Illinois court might render would not definitively adjudicate the rights of anyone. The Illinois Constitution does not vest this authority in its justices.

Plaintiff must certainly bear primary responsibility for the Illinois Court's refusal to address the point here of interest, i.e. whether a "plain, speedy and efficient" remedy in a case of wrongful tax assessment is available in the courts of that state for a taxpayer in plaintiff's alleged circumstances. For throughout the state court litigation, plaintiff sought to exclude from consideration the merits of its federal claim. In its Rosewell complaint, plaintiff stated:

Plaintiff specifically excepts from its Complaint any allegations of or reliance upon its rights under the Constitution and laws of the United States, reserving solely to the ...


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