The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
Nine Lake and DuPage County taxpayers have brought this class
action*fn1 under 42 U.S.C. § 1983 ("Section 1983") and the
Fourteenth Amendment against officials and governmental bodies
involved in the real estate tax assessment systems of all
Illinois counties other than Cook.*fn2 Count I of the plaintiffs'
Second Amended and Supplemental Complaint (the "Complaint")
attacks those systems as violative of the Illinois Constitution
and the federal constitutional guaranties of due process and
equal protection. Complaint Counts II, III and IV seek damages.
With the class issues having been resolved, State Defendants
have moved under Fed.R.Civ.P. ("Rule") 12(b)(6) to dismiss the
Complaint for failure to state a claim upon which relief can be
granted.*fn3 They advance three reasons for dismissal:
1. No "case or controversy" is involved, as
required by Article III of the Constitution.
2. Allegations of the Complaint are legally
insufficient because they are vague and conclusory.
3. This Court should abstain from acting because,
as a matter of law, the State of Illinois offers
"plain, speedy, and efficient" remedies for
plaintiffs' alleged injuries.
Each of these grounds will be considered in turn.
Article III Justiciability Requirements
State Defendants contend (Mem. 3) "plaintiffs' real complaint
is against the Illinois legislature, which has promulgated the
statutes by which the State defendants are bound. . . . [T]hese
defendants do no more than interpret and enforce the state tax
laws." That argument is a total irrelevancy in Article III
terms.*fn4 It is elementary Eleventh Amendment law that a state
official may be sued in equity for actions that implement an
unconstitutional state law — a law that necessarily found its
origin in the legislature. See Ex parte Young, 209 U.S. 123, 28
S.Ct. 441, 52 L.Ed. 714 (1908).
Here the Complaint alleges (1) the manner in which each State
Defendant implements the state property tax system and (2) actual
injury to the plaintiff classes by that system. Each state
official that implements the system visits the complained-of
injury on plaintiffs (or at least threatens to do so). Any
complaint that alleges actual or threatened injury as a result of
illegal (here unconstitutional) conduct by defendants states a
justiciable case or controversy.
Duke Power Co. v. Carolina Environmental Study Group,
438 U.S. 59, 81-82, 98 S.Ct. 2620, 2634-35, 57 L.Ed.2d 595 (1978); Warth
v. Seldin, 422 U.S. 490, 498-99, 95 S.Ct. 2197, 2205, 45 L.Ed.2d
One State Defendant merits special comment: Justice Ward, a
single Justice of the Illinois Supreme Court.*fn5 Plaintiffs allege
that Court's interpretation of Illinois law in denying relief
from wrongful property tax assessments is federally
At first blush the notion of such an action against the highest
level of the state judiciary seems bizarre. Surely the Illinois
Supreme Court will adhere to a definitive ruling*fn6 as to the
impact of the Constitution on one of that court's lines of
authority — that after all is what the Supremacy Clause means.
Yet the case law teaches it is permissible to seek declaratory or
injunctive relief against state judges despite the doctrine of
judicial immunity. Person v. Ass'n of the Bar of the City of New
York, 554 F.2d 534, 537 (2d Cir.), cert. denied, 434 U.S. 924, 98
S.Ct. 403, 54 L.Ed.2d 282 (1977) (declaratory relief); Littleton
v. Berbling, 468 F.2d 389, 406-08 (7th Cir. 1972), rev'd on other
grounds sub nom. O'Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669,
38 L.Ed.2d 674 (1974) (injunction); Mudd v. Busse, 68 F.R.D. 522,
531 (N.D.Ind. 1975) (Eschbach, J.) (equitable or declaratory
But Justice Ward is sued individually, not in a representative
capacity. And the Justices of the Illinois Supreme Court act only
collectively, not individually. Consequently this Court's
upholding of the Complaint against Justice Ward is conditioned ...