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United States District Court, Northern District of Illinois, E.D

May 18, 1983


The opinion of the court was delivered by: Shadur, District Judge.


Fifteen Lake County taxpayers originally brought this putative class action under 42 U.S.C. § 1983 ("Section 1988") against officials and governmental bodies responsible for administering Lake County's real estate tax assessment system.*fn1 Focusing on the years 1977 through 1979, plaintiffs' Second Amended Complaint (the "Complaint") attacks the system on due process and equal protection grounds. All remaining defendants in this case (Lake County, the Board and its members and Jasper) now move pursuant to Fed.R.Civ.P. ("Rule") 12(b)(1) and 12(h)(3) to dismiss this lawsuit for want of subject matter jurisdiction. For the reasons stated in this memorandum opinion and order, that motion is granted.

Findings of Fact*fn2

To illuminate the issues raised by the motion to dismiss, this section of the opinion will first explore the state remedies available to taxpayers who wish to challenge their real estate tax assessments. It will then turn to plaintiffs' own experiences in pursuing those remedies.

Any dissatisfied taxpayer must first file an assessment complaint with the Board. Shortly thereafter (between six months to a year before the actual tax bill arrives, for Illinois tax bills are rendered during the year following the assessment year) the taxpayer is afforded a hearing, at which he or she must "[b]e prepared to discuss the market value of [his] property as of January 1", of the assessment year (Pl.Ex. A*fn3). In addition the taxpayer may tender (in advance of the hearing) a list of no more than three comparable properties assessed at lower rates. To receive serious consideration from the Board, the taxpayer must have cooperated with the field appraisers who visited the property before the hearing to conduct an independent appraisal. In arriving at its determination the Board compares that appraisal with the original assessment. Because of the large number of assessment complaints filed each year, the Board schedules hearings at 15-minute intervals.

If the taxpayer is dissatisfied with the Board's disposition of his or her complaint, he or she has two mutually exclusive remedies, both of which afford de novo consideration. One option is an appeal to the state Property Tax Appeal Board ("PTAB"). Ill. Rev.Stat. ch. 120, § 592.4 makes PTAB's final determinations reviewable by the Circuit Court of Lake County. Alternatively the taxpayer may pay the contested tax under protest, then file a tax objection when the Lake County Collector files an application for judgment before the Circuit Court.

None of the plaintiffs properly availed himself or herself of the second option in any of the three years at issue. Several plaintiffs attempted to do so in 1978, but the Circuit Court dismissed their tax objections because they had either failed to exhaust their administrative remedy (before the Board) or had already invoked the PTAB remedy for that year. As for the first alternative, none of the plaintiffs (or of the six other putative class members identified by plaintiffs) sought relief from both the Board and PTAB in all three tax years.*fn4 However, in each of those years at least one plaintiff did fully exploit the two-step second alternative.

To prove their jurisdictional allegations, plaintiffs have focused on the experiences of plaintiffs Gilbert Bogen ("Bogen") and Deloris Axelrod ("Axelrod") before the Board and PTAB. They will be dealt with in turn.

As the following table reveals, PTAB did lower Bogen's assessment in 1978 — but nearly two-thirds of that reduction*fn5 was restored by the higher 1979 assessment (imposed by local appraisers only a week after the PTAB action):

Bogen Assessment

Year          Assessor            Board                    PTAB
1977            ---               No Complaint               ---
1978          $30,590             $30,590                  $25,280
1979          $28,760             $28,760                  $28,750

Upset over that turn of events, Bogen wrote PTAB Chairman Albert Seppi for an explanation. Seppi responded (1) PTAB decisions are binding on Lake County only for the tax year involved and (2) Bogen's only recourse was to appeal to the Board and, if necessary, to PTAB. Bogen followed that recommended course without success (as the table shows, PTAB reduced the assessor's appraisal by a mere $10).

Axelrod encountered a different problem in her dealings with PTAB: its refusal to entertain constitutional objections to assessment practices in general. In rejecting her 1981 appeal, PTAB stated:

  The record also contains an extensive discussion of
  assessment practices in the township. However, the
  Property Tax Appeal Board may only make decisions with
  respect to specific properties appealed to it.*fn6

This then is the factual backdrop against which defendants' motion to dismiss must itself be appraised. That analysis, though it requires discussion, does not pose serious legal problems.

Motion To Dismiss

Defendants' motion seeks dismissal of the entire action — equitable and damage claims alike — under the Tax Injunction Act of 1937 (the "Act"), 28 U.S.C. § 1341, and comity principles as articulated in Fair Assessment in Real Estate Ass'n, Inc. v. McNary, 454 U.S. 100, 102 S.Ct. 177, 70 L.Ed.2d 271 (1981). Under the Act:

  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.

In turn the comity doctrine bars federal district courts from granting damages in such state tax cases unless available state remedies are "plain, adequate and complete" — a formulation McNary (454 U.S. at 116 n. 8, 102 S.Ct. at 186 n. 8) specifically equates with the "plain, speedy and efficient" test of the Act.*fn7

Defendants contend plaintiffs have failed to carry their burden*fn8 of proving the Complaint's jurisdictional allegation that "Illinois does not provide a plain, speedy and efficient remedy for wrongful tax assessments and levies."*fn9 Alternatively defendants seek dismissal because of plaintiffs' asserted failure to exhaust their administrative remedies in each tax year. Because defendants' first (and main) contention has merit, the exhaustion argument need not be reached.

Leaning heavily on the nine identical affidavits already referred to, plaintiffs advance a host of reasons why one of the two avenues for assessment relief — filing with the Board and then appealing to PTAB — falls short of the "plain, speedy and efficient" jurisdictional standard. They may fairly be summarized in these terms:

1. "Efficiency" is not served by the Board, for it encourages taxpayers to prepare their cases in an inefficient manner by advising them to (a) determine the assessments of three comparable houses on their block, (b) discuss their assessments (in light of such information) with their township assessor, (c) let a field appraiser into their homes whenever his unannounced visit occurs and (d) be able to discuss the market value of their property as of January 1 of the assessment year.

2. Taxpayers are not given enough time to present their complaints at the Board hearing.

3. PTAB's appeal form requires information layman taxpayers can obtain only with great difficulty.

4. PTAB hearings will not be continued for any reason without 30 days' prior written notice.

5. At the PTAB hearing the same appraisers who originally assessed the property testify on behalf of Lake County.

6. PTAB decisions are typically not forthcoming until after the taxpayer has paid the contested property tax.

7. PTAB will not entertain constitutional challenges to assessments.

8. Township appraisers generally nullify any relief obtained from PTAB by boosting assessments in subsequent tax years, forcing taxpayers to invoke state remedies each year.

All but the last two contentions are either frivolous or wholly unsupported. Accordingly the first six merit short shrift (in the sequence in which they have been presented):

1. On their face the four Board recommendations are designed to facilitate expeditious resolution of assessment grievances. Given plaintiffs' failure to explain (let alone prove) how the recommendations caused any "ineffectual activity"*fn10 on their part, the argument simply dissolves.*fn11

2. Again in surface terms, the 15-minute limitation on Board hearings actually enhances the capacity of the administrative remedy to be "speedy" and "efficient." Having already tendered the bulk of his or her evidence (the list of comparable properties) to the Board before the hearing, the taxpayer can readily present his or her claims within that time frame. Moreover, there is no basis for presupposing the Board's unwillingness to relax its 15-minute rule in any situation in which additional time is necessary (and plaintiffs have not pointed to even one such situation).

3. PTAB's appeal form is a straightforward document. Its only entry that conceivably calls for information about which a layman might arguably need help is that calling for the "legal description" of the property. As for that item, it takes little sophistication to know the taxpayer's readily available title insurance policy or deed contains the information. For the wholly unworldly taxpayer, legal assistance is always available (at worst, paid legal assistance, though in Lake County the odds seem to favor at least one next-door or across-the-street neighbor being a member of the profession available to give such minimal advice).

4. Plaintiffs do not cite a single instance where the 30-day advance notice provision foreclosed a taxpayer from PTAB review of his assessment claim. Furthermore, common sense suggests the rule is a reasonable procedure for assuring the PTAB appeal process as "speedy" and "efficient" for all taxpayers.

5. Lake County's use of the original appraisers as witnesses at PTAB's hearing seems eminently reasonable. At any rate the practice certainly doesn't necessitate "ineffectual activity" on the taxpayer's part or delay PTAB's ultimate decision.

6. None of the plaintiffs waited more than six months from the due date for final tax payments to receive their PTAB decisions. That length of time for exhaustion does not even approach the two-year delay Rosewell, 450 U.S. at 518-21, 101 S.Ct. at 1231-1233 found "falls [within] the boundary of a `speedy' remedy."

While certainly more substantial, plaintiffs' remaining two arguments are also unconvincing. They too will be dealt with in turn.

As for PTAB's asserted refusal to hear constitutional claims, plaintiffs are of course correct in asserting the ability to press federal rights (including constitutional ones) as an indispensible ingredient of "a plain, speedy and efficient remedy." Rosewell, 450 U.S. at 514-15, 101 S.Ct. at 1229-1230. Despite the validity of that legal premise, plaintiffs' position is flawed on two levels.

First, plaintiffs' evidentiary foundation — the two-sentence excerpt from the PTAB decision received by Axelrod — is extremely shaky, for that cryptic passage is susceptible to an innocuous interpretation no less plausible than plaintiffs' reading: PTAB's refusal to confront Axelrod's constitutional assault on general assessment practices reflected its policy of not addressing constitutional claims that fail to implicate the specific property assessment at issue. Surely such an aversion to advisory opinions is unexceptionable. Because the record does not disclose whether Axelrod's constitutional arguments did bear on her own assessment, neither interpretation can be viewed as more tenable. In the legal version of baseball's "ties go to the runner," the party that fails to satisfy its burden of proof (here plaintiffs) must lose.

But even were plaintiffs factually correct, they would not have proved the overall refund scheme is not "plain, speedy and efficient." It will be remembered that a taxpayer who fails to obtain relief from the Board has the option of presenting his or her assessment objections (1) to PTAB and then to the Circuit Court on appeal or (2) directly to the Circuit Court. So long as the Circuit Court is willing to consider a taxpayer's constitutional challenges in either procedural context, PTAB's refusal to do so does not taint the County's overall refund procedure under the "plain, speedy and efficient" formulation. Plaintiffs' conspicuous failure even to discuss the Circuit Court's role in this scheme*fn12 is hardly surprising, for that forum's receptiveness to such constitutional claims is well-established. See, e.g., LaSalle National Bank v. County of Cook, 57 Ill.2d 318, 324, 312 N.E.2d 252, 255-56 (1974); Uretsky v. Baschen, 47 Ill. App.3d 169, 175, 5 Ill.Dec. 552, 557, 361 N.E.2d 875, 880 (2d Dist. 1977) ("The legal validity or constitutionality of a property tax assessment may be treated in tax objection proceedings in the Circuit Court . . . as well as in proceedings in the Circuit Court on administrative review of the State Property Tax Appeal Board's decision"). Accordingly, the state remedies available to County taxpayers afford sufficient opportunity to urge constitutional objections.

Plaintiffs' final contention — that the County's refund procedure is not "efficient" because it requires repetitive assessment challenges in succeeding years — is equally flawed. Its defects can be more readily perceived by dissecting the argument into its analytical components:

    1. PTAB decisions are not binding on township
  assessors in later tax years.

    2. Whenever PTAB reduces an assessment, those
  assessors generally raise it to its original
  discriminatory level for the next two years.*fn13

Though concededly true, the first proposition — standing alone — does not establish the inefficiency of resorting to PTAB. On the contrary, because real estate values are constantly fluctuating, a tax system that simply carried forward prior reductions instead of taking a fresh look would not be "efficient." Only if appraisers systematically ignored the factual basis of PTAB decisions in their subsequent assessments could the PTAB remedy be termed not "efficient."*fn14 Thus plaintiffs must depend on the validity of their second premise.

On that score plaintiffs offer two kinds of proof:

    1. Each of the nine previously-mentioned affidavits
  asserts baldly:

    That if the Property Tax Appeals Board did grant me
    relief for any particular years the assessor would
    reassess my property at a higher value thereby
    negating any relief that may have been granted.

    2. Plaintiffs also proffer various documents showing
  the increase in Bogen's 1979 assessment erased about
  two-thirds of the PTAB-ordered reduction in his 1978

Once more plaintiffs fall woefully short of meeting their burden.

As for the affidavits, this Court cannot accord them probative value. According to PTAB and Board records, five of the nine affiants*fn15 never appeared before the Board (or consequently PTAB) in any of the three tax years involved in this action. Three of the other four affiants (plaintiffs Ruth Lustig, Deloris Axelrod and Sherry Graditor) never received PTAB assessment reductions from the PTAB. Remaining affiant Gerald Brin ("Brin") obtained an assessment reduction in 1977. Neither side has furnished any Board or PTAB records that would conclusively reveal how the assessor in Brin's township responded to that PTAB determination. But those administrative records that have been adduced indicate Brin never even filed an assessment complaint in the following two years. Brim's failure to seek assessment relief in 1978 and 1979 strongly suggests either (1) Brin's lowered assessment was not in fact restored to the earlier level or (2) Brin viewed any assessment increase imposed as justified in market terms.*fn16

Nor does the appraises' treatment of Bogen after PTAB lowered his assessment manifest their general disregard for PTAB judgments.*fn17 It is clear from the record the local officials did not revert in knee-jerk fashion to their pre-relief assessment. They performed a new appraisal (as was their duty). Their re-examination confirmed the excessiveness of their original assessment (further substantiating their good faith) but also indicated the property had appreciated somewhat during 1978. Indeed their upward revision of Bogen's assessment must have comported with PTAB's own view, for PTAB (as well as the Board) left it essentially intact when Bogen appealed. Moreover, even if the appraisers had flouted PTAB's earlier determination (as the evidence does not show), a single instance of PTAB subversion could scarcely establish a widespread course of conduct among assessors. Only the latter sort of generic determination can defeat the applicability of the "plain, speedy and efficient" exception.


Defendants' motion to dismiss is granted. This action is dismissed for want of subject matter jurisdiction.*fn18

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