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Santana v. Cook County Board of Review

March 30, 2010



Victor Santana ("Santana") filed this action against the Cook County Board of Review ("Board") and its Commissioners Larry Rogers ("Rogers"), Joseph Berrios ("Berrios") and Brendan Houlihan ("Houlihan)(collectively "Commissioners") and against Board employees Scott Guetzow ("Guetzow"), Thomas Jaconetty ("Jaconetty") and John Sullivan ("Sullivan")(collectively "Board Employees"), seeking damages under 42 U.S.C. §1983 ("Section 1983") and the Racketeering Influenced and Corrupt Organizations Act ("RICO," 18 U.S.C. §§1961-1968).*fn1 This opinion addresses two motions to dismiss Santana's Amended Complaint ("AC") pursuant to Fed. R. Civ. P. ("Rule") 12(b)(6), the first by Rogers, Guetzow, Houlihan and Sullivan and the second by Berrios, Jaconetty and Board.*fn2 For the following reasons, each motion is granted in part and denied in part.

Rule 12(b)(6) Standard

Under Rule 12(b)(6) a party may move for dismissal of a complaint on the ground of "failure to state a claim upon which relief can be granted." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 562-63 (2007) was the first case to repudiate, as overly broad, the half-century-old Rule 12(b)(6) formulation announced in Conley v. Gibson, 355 U.S. 41, 45-46 (1957) "that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." And post-Twombly cases have further reshaped a new Rule 12(b)(6) standard.

First Twombly, 550 U.S. at 570 held that to survive a Rule 12(b)(6) motion a complaint must provide "only enough facts to state a claim to relief that is plausible on its face." Or put otherwise, "[f]actual allegations must be enough to raise a right of relief above the speculative level" (id. at 555). Then Erickson v. Pardus, 551 U.S. 89 (2007)(per curiam) and Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009) provided further Supreme Court enlightenment on the issue.

Before Iqbal our own Court of Appeals, in Airborne Beepers & Video, Inc. v. AT&T Mobility LLC, 499 F.3d 663, 667 (7th Cir. 2007) described Twombly and Erickson as establishing "only that at some point the factual detail in a complaint may be so sketchy that the complaint does not provide the type of notice of the claim to which the defendant is entitled under Rule 8." And more recently Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009) has confirmed that the Airborne Beepers reading of pleading law post-Twombly and post-Erickson remains accurate after Iqbal. Brooks, id. describes Iqbal as "admonishing those plaintiffs who merely parrot the statutory language of the claims that they are pleading (something that anyone can do, regardless of what may be prompting the lawsuit), rather than providing some specific facts to ground those legal claims, that they must do more."

Familiar Rule 12(b)(6) principles--still operative under the new pleading regime--require the district court to accept as true all of Santana's well-pleaded factual allegations, with all reasonable inferences drawn in his favor (Christensen v. County of Boone, 483 F.3d 454, 457 (7th Cir. 2007)(per curiam)). What follows is therefore a summary of the facts as stated in the AC.

Factual Background

Board's function is to review property tax assessments and, on a complaint by any taxpayer or on motion by any Board member, "revise, correct, alter, or modify any assessment" (35 ILCS 200/16-95). Rogers, Berrios and Houlihan fill the elected position (35 ILCS 200/5-5) of Board Commissioners (AC ¶8), who preside over hearings on property tax adjustments. Guetzow is employed as a Chief Deputy Commissioner and Jaconetty and Sullivan are employed as First Assistant Commissioners (AC ¶¶9-10)--neither of those positions is filled by election.

Santana previously worked at Board as an analyst, where he learned how Board's property tax review process works (AC ¶¶12-13). Since he left Board employment in May 2002, he has worked as a consultant assisting taxpayers with property tax review paperwork (AC ¶¶14-15). Many other non-lawyers and business entities also provide such assistance (AC ¶¶19-21). Santana never assisted taxpayers on Board's premises, nor has he appeared before Board on a taxpayer's behalf (AC ¶¶16-18).

On May 4, 2009*fn3 Commissioners and Board Employees banned Santana from Board's premises--without giving him a reason, prior notice or opportunity for a hearing--and announced the ban through the news media (AC ¶¶23-28). At some point in 2009 Rogers, Guetzow, Jaconetty and Sullivan sent letters by certified mail to several Cook County taxpayers, stating that the recipients must appear at hearings before Board on June 18 and 23 (AC ¶¶87(a) and (c)). Although the letters were purportedly to advise the taxpayers of the possibility that they could face increased tax assessments, the actual reason for calling in the taxpayers was to question them about Santana (AC ¶¶87(a) and (c)). At the June 18 and 23 hearings Guetzow, Rogers and Sullivan did just that (AC ¶87(e)). Rogers, Guetzow and Sullivan also telephoned several Cook County taxpayers on the pretext of property-tax related Board business, but actually to question taxpayers about their association with Santana (AC ¶87(d)). Santana charges that conduct was improper and was outside the scope of Commissioners' and Board Employees' duties.

Finally, for a period of several years Commissioners have received numerous campaign donations from lawyers and law firms that appear before them at Board hearings (AC ¶¶29-30, 87(f)). Lawyers and law firms who made contributions to Commissioners experience higher success in obtaining tax reductions than do lawyers who did not make contributions (AC ¶87(f)). Santana did not contribute to Rogers' or Houlihan's recent campaign (AC ¶31).

Affirmative Defenses

Board, Commissioners and Board Employees assert several affirmative defenses--including claims of absolute, qualified and Eleventh Amendment immunity--that call for threshold examination. This opinion turns to those that require more extended discussion.*fn4

Commissioners and Board Employees are wholly unpersuasive in claiming absolute immunity. Absolute immunity bars damages liability "[f]or officials whose special functions or constitutional status requires complete protection from suit" (Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982), quoted in Mother Goose Nursery Sch., Inc. v. Sendak, 770 F.2d 668, 671 (7th Cir. 1985)). Those concepts look to the nature of the official's responsibilities (Tobin for Governor v. Ill. State Bd. of Elections, 268 F.3d 517, 521 (7th Cir. 2001)). Immunity may apply to officials acting in a capacity that is either ...

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