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IN RE COUNTY COLLECTOR OF WINNEBAGO

February 26, 1996

IN THE MATTER OF THE APPLICATION OF THE COUNTY COLLECTOR OF THE COUNTY OF WINNEBAGO, ILLINOIS, FOR JUDGMENT AND ORDER OF SALE FOR TAXES ON LANDS AND LOTS UPON WHICH THE GENERAL TAXES AND/OR SPECIAL ASSESSMENTS FOR THE YEAR[S] 1991, 1992 AND 1993 ARE DELINQUENT; AND FOR JUDGMENT FIXING THE CORRECT AMOUNT OF ANY TAX PAID UNDER PROTEST.


The opinion of the court was delivered by: REINHARD

 INTRODUCTION

 In these three actions, consolidated for purposes of the pending motions, the tax objectors seek to challenge the authority of the Rockford Board of Education, School District No. 205 (school district), pursuant to an interim consent order entered by United States District Judge Stanley J. Roszkowski in the separate People Who Care desegregation lawsuit, No. 89 C 20168 (PWC case), to levy taxes via section 9-107 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act), 745 ILCS 10/9-107, to pay for the cost of remedying alleged racially discriminatory practices within the school district. While a district court judge does not ordinarily review findings of another district court judge in a separate case, the United States Court of Appeals for the Seventh Circuit has stated in its opinion affirming the denial of the objectors' petition to intervene in the PWC case that the ordinary rules of res judicata and collateral estoppel prohibiting such review do not apply in this case, see People Who Care v. Rockford Bd. of Educ., 68 F.3d 172, 177-79 (7th Cir. 1995), and the school district has so conceded by an express waiver in its brief. *fn1" Both the objectors and the school district have moved for summary judgment in this case. While several procedural issues have been raised by the school district concerning the manner in which the tax objections have been presented, the focus of the respective summary judgment motions addresses the ultimately dispositive issue of whether section 9-107 of the Tort Immunity Act authorizes the school district to levy taxes to pay for remedies necessitated by the Federal constitutional tort of racial discrimination in education, the nature of which requires the expenditure of money to effect necessary mandatory injunctive relief. *fn2" The court finds that in this particular case of racial discrimination, and the nature of the remedies involved, section 9-107 authorizes such a levy and, therefore, grants the summary judgment motions of the school district and denies the summary judgment motions of the objectors.

 FACTS

 The court need not provide an extensive factual discussion of the history of the underlying school desegregation case that eventually gave rise to the present tax objection litigation. Suffice it to say that since 1989, the school district has been involved in the PWC lawsuit in which it is alleged that the school district has engaged in racially discriminatory conduct in providing education to the students of the district. As part of that lawsuit, pending a hearing on liability, several orders were issued, including the second interim order entered by Judge Roszkowski on April 25, 1991. The second interim order contained, among other things, a consent order between the school district and the People Who Care plaintiffs finding that the school district "may pay for such recurring and continued incremental costs for such programs specified in this Order by additional levies in the [school district's] Tort Immunity Fund." The consent order further states that the school district "is mandated to fund the cost of the activities required" therein. Additionally, the consent order found that the funding of such remedies:

 
constitutes and is the payment by the District of a liability, tort judgment or settlement that authorizes the issuance of the District's non-referendum general obligation bonds referred to in Section 9-105 of the Tort Immunity Act or the levying of an annual rate of tax in the District's annual levy for Tort Immunity purposes, to pay for the annual and recurring costs (other than the institution of capital improvements) as required by this Order. Second Interim Order, § F.2 p. 78 (PWC Dkt. 376).

 Based on the consent order and other orders of the court related to the second interim order, the school district issued bonds and levied taxes for 1991, 1992 and 1993 under provisions of the Tort Immunity Act. These tax levies were, in turn, challenged by the various tax objectors for each tax year in state court, and the cases subsequently were removed to federal court. *fn3" The objectors moved to remand all three cases to state court. This court, in an order dated April 21, 1995, denied the motions to remand in all three cases, finding the state court actions were an attempt by the objectors to interfere with an order of the federal district court and because, under the All Writs Act, 28 U.S.C. § 1651(a), this court has the power to retain jurisdiction over the state cases as necessary or appropriate to effectuate and prevent the frustration of orders it has previously issued. While these cases were pending, Judge Roszkowski ultimately entered a final order of declaratory judgment and permanent injunction in the PWC case on March 29, 1994, finding the school district had unlawfully segregated students on the basis of race and ethnic origin and ordering the school district to eliminate all vestiges of segregation and discrimination against minority students.

 There are several provisions of the Tort Immunity Act implicated by the challenge of the objectors in these cases. The first is section 9-107, which states, in pertinent part:

 
§ 9-107. A local public entity may levy or have levied on its behalf taxes annually upon all taxable property within its territory at a rate that will produce a sum which will be sufficient to pay the cost of settlements or judgments under Section 9-102, to pay the costs of protecting itself or its employees against liability, property damage or loss, including all costs and reserves of being a member of an insurance pool, under Section 9-103, to pay the costs of and principal and interest on bonds issued under Section 9-105, to pay tort judgments or settlements under Section 9-104 to the extent necessary to discharge such obligations, to discharge any and all obligations under Section 34-18.1 of The School Code, as now or hereafter amended, and to pay the cost of risk care management programs. *fn4"

 Section 9-102, in turn, provides, in pertinent part:

 
§ 9-102. A local public entity is empowered and directed to pay any tort judgment or settlement for compensatory damages for which it or an employee while acting within the scope of his employment is liable in the manner provided in this Article.

 The term "tort judgment" is defined in section 9-101(d) as "a final judgment founded on an injury, as defined by this act . . ." The term "injury" is defined in section 1-204 as:

 
§ 1-204. "Injury" means death, injury to a person, or damage to or loss of property. It includes any other injury that a person may suffer to his person, reputation, character or estate which does not result from circumstances in which a privilege is otherwise conferred by law and which is of such a nature that it would be actionable if inflicted by a private person. "Injury" includes any injury alleged in a civil action, whether based upon the Constitution of the United ...

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