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11/15/96 PEOPLE STATE ILLINOIS v. COMMONWEALTH

November 15, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, EX REL. JOHN W. TOYNTON, COUNTY TREASURER AND EX OFFICIO COLLECTOR OF TAXES OF LA SALLE COUNTY, ILLINOIS, PLAINTIFF-APPELLEE,
v.
COMMONWEALTH EDISON COMPANY, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of the 13th Judicial Circuit, La Salle County, Illinois. Nos. 89-TX-42, SUB 1, 90-TX-41, SUB 5, 91-TX-45, SUB 2, 92-TX-24, SUB 1, 93-TX-66, SUB 2, 94-TX-42, SUB 1. Honorable Robert L. Carter, Judge Presiding.

Released for Publication December 23, 1996.

Present - Honorable William E. Holdridge, Presiding Justice, Honorable Michael P. Mccuskey, Justice, Honorable John F. Michela, Justice. Justice McCUSKEY delivered the opinion of the court. Holdridge and Michela, JJ., concur.

The opinion of the court was delivered by: Mccuskey

JUSTICE McCUSKEY delivered the opinion of the court:

In five separate cases, Commonwealth Edison (ComEd) filed objections to the taxes it paid various governmental bodies in La Salle County for the tax years 1988 through 1992. The cases were consolidated in the circuit court.

This appeal involves ComEd's objections to the real estate taxes levied by Brookfield Township (Township) and by Brookfield-Allen Multi-Township Assessment District (District). ComEd claimed that the levies by the Township and the District were illegal because of an excessive accumulation of funds. The circuit court of La Salle County determined that ComEd did not meet its burden to show that the tax levies were illegal. As a result, the court granted summary judgment in favor of the Township and the District.

On appeal, ComEd initially argues that the undisputed evidence showed the tax levies were unnecessary and illegal. ComEd therefore contends that summary judgment should have been granted in its favor. In the alternative, ComEd argues that the cases should be remanded to the circuit court because the Township and the District did not show that they were entitled to judgment as a matter of law. Following our careful review of the record, we agree with ComEd's second argument and remand the cases for an evidentiary hearing in the circuit court of La Salle County.

FACTS

ComEd filed objections to the Township's levy of taxes for its Road and Bridge fund for the 1988 and 1990 tax years. It objected to the Township's levy for its Equipment and Building fund for the 1988, 1990, 1991 and 1992 tax years. In addition, ComEd filed objections to the District's levy for its General Corporate Purposes fund for the 1988, 1989, 1990, 1991 and 1992 tax years. In each of these eleven objections, ComEd showed that the balance remaining in the fund each year plus the taxes receivable for the prior tax year greatly exceeded the average annual expenditures from the fund. The accumulations in the funds ranged from 2.01 to 2.95 times the average annual expenditures for the previous three years. ComEd claimed that these figures proved the Township and the District abused their discretion when they levied additional taxes when the funds already contained large accumulations.

On September 9, 1994, the Township and District filed a response to ComEd's objections. The response did not dispute ComEd's calculations. However, the Township and the District argued that the fund balances were within the discretionary parameters established by Illinois case law. Also, the Township and the District explained the purpose of the funds and listed some of the expenditures which had been made from the funds. However, we note from our review of the record that no affidavits or other evidentiary documents were attached to the pleadings to substantiate any of the facts alleged in the response.

On November 7, 1995, the Township and District filed a motion for summary judgment. They claimed that they were entitled to summary judgment because ComEd had failed to meet its burden to show that the levies were an abuse of the taxing bodies' discretion. ComEd filed a response and a cross-motion for summary judgment on January 2, 1996. ComEd argued that the undisputed figures proved the challenged tax levies were unnecessary and illegal because of the excessive accumulation remaining in each fund.

A hearing was held in the circuit court during which no evidence was presented. The Township and the District argued at the hearing that there is no hard and fast rule under Illinois case law concerning when an accumulation is excessive. They contended that the accumulations were not excessive based upon established Illinois law.

ComEd disagreed and argued that the fund accumulations were excessive. ComEd noted that neither the Township nor the District "offered any facts or any evidence to this Court in justification for them making a continued levy in the face of these large accumulations of funds." In response, the Township and the District argued that it was not their burden to justify the challenged levies. Following the hearing, the court concluded that ComEd had not met its burden to show that the tax levies were illegal. ...


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