Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. IP 77 140 C - William E. Steckler, Judge.
Cummings, Pell and Sprecher, Circuit Judges.
Pursuant to 28 U.S.C. § 1343 and 42 U.S.C. § 1983, plaintiff filed this action to attack Center Township, Marion County, Tax Assessor Cunningham's imposition of an Indiana personal property tax on all tangible personal property held in pawn by plaintiff's pawn shop on March 1 during the years 1970 through 1974. The gravamen of the complaint is that this taxation violated plaintiff's rights under the Equal Protection clause of the Fourteenth Amendment because during those years Cunningham allegedly did not assess any personal property tax on tangible personal property held in pawn by the other six pawn shops in Center Township, Marion County, Indiana. In addition to seeking an injunction against Marion County Treasurer Sutton's collection of these taxes in the amount of $44,000, plaintiff sought $65,000 in compensatory damages and $55,000 in punitive damages from defendant Cunningham.
The district court dismissed plaintiff's claim for equitable relief for lack of subject matter jurisdiction and dismissed its complaint against defendant Cunningham for failure to state a claim upon which relief could be granted. In denying injunctive relief, the court relied on the 1937 Tax Injunction Act (28 U.S.C. § 1341) which provides as follows:
"The district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State."
Citing Miller v. Bauer, 517 F.2d 27 (7th Cir. 1976) and Green v. Klinkofe, 422 F. Supp. 1021 (N.D. Ind. 1976), Judge Steckler held that the Tax Injunction Act applied because plaintiff had an available state remedy.*fn1 As to plaintiff's Section 1983 claim for damages from defendant Cunningham, the district court held it was barred by the two-year statute of limitations provided for injuries to person, character or personal property. Indiana Code 34-1-2-2 First. We affirm as to the Tax Injunction Act and reverse as to the statute of limitations.
I. The Tax Injunction Act
A starting point in determining whether the state remedies available to the plaintiff are "plain, speedy and efficient" for purposes of Section 1341 is this Court's opinion in Miller v. Bauer, 517 F.2d 27 (7th Cir. 1976), which reviewed Indiana's now-repealed statutory scheme for challenging tax assessments*fn2 and indicated that Indiana's scheme did provide a "plain, speedy and efficient" forum for a constitutional challenge. Id. at 32. The essence of plaintiff's position here is that at least as applied to its claim, those Indiana procedures*fn3 in fact are inadequate because they focus only on the legality of the taxpayer's own assessment without reference to the assessments of others and therefore do not permit an equal protection claim based on discriminatory assessment.
Plaintiff's position, however, is not borne out by Indiana's applicable constitutional and statutory provisions or by its case law. As a general matter, the state constitution mandates an "equal rate of property assessment and taxation"*fn4 and the legislature has provided that "all tangible property which is subject to assessment shall be assessed on a just valuation basis and in a uniform and equal manner."*fn5 Although neither party cited these provisions or cases construing them, it would be unreasonable to assume that the state would establish these rights and then deny judicial review to vindicate them, and our research indicates that such a denial has not taken place. See generally Indiana State Board of Tax Commissioners v. Lyon & Greenleaf Co., 172 Ind. App. 272, 359 N.E.2d 931 (Ind.App. 3d Dist. 1977); State ex rel. Standard Oil Co. v. Review Board of Indiana Employment Security Division, 230 Ind. 1, 101 N.E.2d 60 (1951).*fn6
More specifically, at least one of two statutory avenues of review appears to be available.*fn7 On direct review, Ind. Code 6-1.1-13-5 provides that a county board of review shall on its own motion or on sufficient cause take steps to "reduce or increase the assessed value of any tangible property in order to attain a just and equal basis of assessment between the taxpayers of the county;"*fn8 Ind. Code 6-1.1-15-1 et seq. then provides review of assessments and of determinations of this type first by the state board of tax commissioners and then in the state courts.*fn9 The statutes also provide a refund procedure after payment of the tax that covers claims that "the taxes, as a matter of law, were illegal."*fn10 Plaintiff's assertions that the direct review procedure is limited to a reassessment based only on the taxpayer's own property and that the refund procedure is limited to ultra vires illegality are belied by the case law and by the constitutional and statutory mandates of equality. In short, plaintiff has provided no persuasive reason why the remedies held to be sufficient in Miller would not have been sufficient here.
Because this case comes to us after a dismissal without appeal in state court of plaintiff's claim against collection of the same taxes, each party has raised an additional argument, neither of which affects the result. Plaintiff's contention is that the dismissal proves the unavailability of a state remedy. If this argument means that the remedy as a practical matter is now unavailable, the answer is that the application of Section 1341 depends on whether a state remedy was at some time available to the taxpayer and the taxpayer's failure to win in state court or to use the remedy properly does not negate the existence of the remedy. See Aluminum Co. of America v. Michigan, 522 F.2d 1120 (6th Cir. 1975). If, on the other hand, the argument is that plaintiff's experience proves as a general matter that the equal protection claim cannot be made in state court, the answer is that, as the district court found, plaintiff's state complaint did not raise the equal protection issue.*fn11
Defendants seize on the same state court proceedings to contend that plaintiff's failure to appeal the state court judgment constituted a failure to exhaust state remedies and that any failure to pursue state remedies must bar federal relief. The argument in favor of a per se exhaustion rule reflects a basic misunderstanding of the Tax Injunction Act because, as has been implicitly recognized in numerous cases, the purposes of that Act are satisfied if the taxpayer can prove, based on state statutes or case law, that the state courts would not entertain its challenge. See e.g., Garrett v. Bamford, 538 F.2d 63, 68 (3d Cir. 1976), certiorari denied, 429 U.S. 977, 50 L. Ed. 2d 585, 97 S. Ct. 485. Here, however, the taxpayer was unable to prove that the state courts would not entertain its challenge and thus was unable to prove that the bar of Section 1341 should not apply.
II. The Statute of Limitations
As to plaintiff's claim for damages against Assessor Cunningham under 42 U.S.C. § 1983, the district court held the action was barred by the two-year provision in Indiana Code 34-1-2-2 ...