United States District Court, Northern District of Illinois, E.D
October 4, 1983
MARGARET COLEMAN, ET AL., PLAINTIFFS,
ROBERT MCLAREN, ET AL., DEFENDANTS.
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 on
plaintiffs' joinder of the other Justices as co-defendants.*fn7
Sufficiency of the Complaint's Allegations
State Defendants urge the Complaint is so vague it does not
meet even the lenient standards of notice pleading. They say
(Mem. 3) "plaintiffs' allegations against the State defendants
are little more than legal conclusions and pure speculation."
Such an argument is seldom meritorious, given the principles
exemplified by Conley v. Gibson, 355 U.S. 41, 47-48, 78 S.Ct. 99,
102-03, 2 L.Ed.2d 80 (1957) and its progeny. And this Court has
already found (Opinion I at 3-4) the Complaint "alleges at great
length the specific improprieties on each defendant's
part. . . ." No more need be done to withstand dismissal.
State Defendants also attempt to distinguish cases holding a
cause of action may lie against state officials for failure to
remedy wrongful property tax assessments. They state (R.Mem. 3)
the wrongs suffered by the plaintiffs in Township of Hillsborough
v. Cromwell, 326 U.S. 620, 66 S.Ct. 445, 90 L.Ed. 358 (1946), and
Sioux City Bridge Co. v. Dakota County, 260 U.S. 441, 43 S.Ct.
190, 67 L.Ed. 340 (1923), are greater than those alleged here.
That argument is at best premature (after all, only the pleadings
are at issue now) and at worst groundless.*fn8
Abstention Because of Adequacy of State Remedies
State Defendants claim Rosewell v. LaSalle National Bank,
450 U.S. 503, 101 S.Ct. 1221, 67 L.Ed.2d 464 (1981) and this Court's
decision in Axelrod v. Earhart, 565 F. Supp. 549 (N.D.Ill. 1983)
require abstention from taking jurisdiction over plaintiffs'
challenge to Illinois' tax assessment system.*fn9
But those cases held only that their respective plaintiffs had
not proved the absence of "plain, speedy and efficient" Illinois
By contrast, on the current Rule 12(b)(6) motion all that is at
issue is the sufficiency of plaintiffs' jurisdictional
allegations, not the truth of those allegations. In those terms
Complaint ¶¶ I-14, I-15 and I-16, which describe the respects in
which Illinois remedies are inadequate, surely suffice. Indeed
this Court earlier ruled in Axelrod (Feb. 2, 1982) that even a
simple allegation that "Illinois does not provide a plain, speedy
and efficient remedy for wrongful tax assessments and levies"
withstands a Rule 12(b)(6) motion.
State Defendants have further protracted this already overripe
litigation by a barren Rule 12(b)(6) motion. At the October 5,
1983 status call the parties are expected to address means of
dealing with substance, not form.