Acme Markets v. Callanan

SUPREME COURT CASES

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State: Illinois

Court: 3rd District Appellate

Docket No: 3-06-0656 Rel

Case Date: 01/14/2008

Preview:No. 3--06--0656 ______________________________________________________________________________ Filed January 14, 2008 IN THE APPELLATE COURT OF ILLINOIS THIRD DISTRICT A.D., 2008 ACME MARKETS, INC., Plaintiffs-Appellants, v. KAREN CALLANAN, County Treasurer and ex-officio County Collector of Will County, Illinois, Defendant-Appellee, ) ) ) ) ) ) ) ) ) ) ) ) ) Appeal from the Circuit Court for the 12th Judicial Circuit, Will County, Illinois

Docket No. 02-TX-205

Honorable Herman A. Haase, Judge, Presiding.

______________________________________________________________________________ JUSTICE CARTER delivered the opinion of the court: ______________________________________________________________________________ Plaintiff taxpayer Acme Markets, Inc., filed an objection over a 2001 property tax levy imposed by defendant Karen Callanan, county treasurer and ex-officio county collector of Will County, to help pay for the operation of the Will County detention facility. At a hearing the trial court found against plaintiff, denying plaintiff relief on its tax objection. The trial court later denied plaintiff's petition for a rehearing. Plaintiff now appeals the finding of the trial court and we affirm. FACTS In 1997, the Will County Board voted to impose a property tax levy to help pay for 1

"Detention Home - Operations" purposes under section 5 of the County Shelter Care and Detention Home Act (55 ILCS 75/5 (West 2004)). Will County was, at the time of the levy, subject to the provisions of the Property Tax Extension Limitation Law (hereinafter PTELL). (35 ILCS 200/18-185 et seq. (West 2004)). Prior to the enaction of the levy in 1997, no referendum was held and the levy was never submitted for approval to the voters of Will County. The levy was imposed every year between 1997 and 2001 and was never submitted for voter approval at a referendum. Plaintiff objected to the 2001 levy under PTELL, contending that since this was a "new rate," the law required that the county submit the levy to a referendum to be approved by the voters of Will County pursuant to section 18-190 (35 ILCS 200/18-190 (West 2004)). Plaintiff contended that since the levy was imposed in 1997 only by a vote of the county board and not by referendum, the levy was void. At a hearing before the trial court in June 2006, the court rejected plaintiff's notion that the levy was a "new rate" requiring a referendum. Further, the court found that any objections plaintiff had to the imposition of the levy without referendum should have been raised at the time the levy was imposed in 1997, not four years later. The trial court later denied plaintiff's petition for rehearing on the matter, and this appeal follows. ANALYSIS On appeal, this court must determine whether or not the "Detention Home - Operations" levy (hereinafter the levy) was a "new rate" for the purposes of the statute, thereby requiring a referendum before imposition. Further, if this court determines that the levy was a "new rate," we must then decide whether the failure to hold a referendum on the tax's imposition acts to void the prior tax levies imposed in 1997, 1998, 1999, and 2000, not just 2001. On appeal, both sides have stipulated as to the facts and the standard of review. There is 2

no factual dispute. Rather, the issues before this court rest entirely on statutory and case law interpretation. As this is purely a question of law and statutory interpretation, our standard of review is de novo. Central Illinois Light Co. v. Department of Revenue, 336 Ill.App.3d 908, 911, 784 N.E.2d 442, 445 (2003). Plaintiff contends that defendant erred by not submitting the levy to a voter referendum before enacting the tax. In support of this contention, plaintiff argues that as a "new rate" under section 18-190, defendant was required to submit the levy to voter consideration and that defendant's failure to do so results in the levy being void. Defendant counters that the levy is not a "new rate" under the statute and case law, and as a result, no voter referendum was required. Rather, defendant contends that only the approval of the Will County Board, which was sought and obtained, was required. The levy was imposed to pay for the operations of the detention home and was authorized under section 5 of the County Shelter Care and Detention Home Act (55 ILCS 75/5 (West 2004)). The Act states in part:

"[I]n counties with over 300,000 but less than 1,000,000 inhabitants that establish a shelter care or detention home by majority vote of their county boards, taxes for construction and maintenance of the home may be extended without adoption of this Act by the legal voters of the counties and without a referendum." 55 ILCS 75/5 (West 2004).

This provision then falls under PTELL, which states in relevant part: 3

"If a new rate or a rate increase is authorized by statute to be imposed without referendum or is subject to a backdoor referendum, as defined in Section 28-2 of the Election Code [10 ILCS 5/28-2 (West 2004)], the governing body of the affected taxing district before levying the new rate or rate increase shall submit the new rate or rate increase to direct referendum under the provisions of Article 28 of the Election Code [10 ILCS 5/28-1 et seq. (West 2004)]." 35 ILCS 200/18-190 (West 2004).

Will County falls under the provisions of PTELL. It is also a county with between 300,000 and one million inhabitants. Further, the levy may be extended without a referendum. Therefore, if it is a "new rate," it will be subject to voter approval of a referendum under PTELL. 35 ILCS 200/18-190 (West 2004). Whether a tax of the type imposed by defendant is considered new under PTELL was first examined in In re Application of the Du Page County Collector for the Year 1993, 288 Ill.App.3d 480, 681 N.E.2d 135 (1997) (hereinafter 1212 Associates). In 1212 Associates, property owners brought an action against a county collector where they objected to a tax levied by a public library district for building and equipment purposes. 1212 Associates, 288 Ill.App.3d at 481, 681 N.E.2d at 136. The objectors argued that the 1993 Glenside Public Library District levy violated section 18-190(a) of the Tax Cap Act (35 ILCS 200/18-190(a) (West 1994)) because it had not been approved by a direct referendum. 1212 Associates, 288 Ill.App.3d at 481, 681 N.E.2d at 136. (The statute concerned in this case was the Property Tax Extension Limitation Act, or "Tax Cap 4

Act," a prior version of PTELL that operated in the same manner.) The trial court, siding with the objectors, ruled that the tax was invalid because section 18-190(a) required a referendum be held before a "new rate" or "rate increase" was imposed. 1212 Associates, 288 Ill.App.3d at 481, 681 N.E.2d at 136. In reversing the trial court's ruling invalidating the tax , the Second District Appellate Court, Justice McLaren, wrote:

"After reviewing the terms `new rate' and `rate increase' in context with the entire provision, we determine that the terms do not apply to the 1993 Glenside Public Library District building and maintenance rate. When read in context, the terms are clear and unambiguous. The terms `new rate' and `rate increase' are followed by the phrase `authorized by statute.' Thus, section 18190(a) of the Tax Cap Act applies only to rates that have been newly authorized by statute or rate limits that have been increased by statute. Since 1978 public library districts have been authorized to levy a building and maintenance tax at a rate of 0.02%. Pub. Act. 80-1152, eff. July 1, 1978. Because the tax was authorized before 1993, the 1993 Glenside Public Library District building and maintenance tax is not a `new rate.' Further, because the tax rate limit of 0.02% has not been increased, the 1993 Glenside Library District building and maintenance tax is not a `rate increase.' Thus, section 18-190(a) does not apply and a direct referendum was not required. Accordingly, the trial court erroneously granted the Objectors' motion for judgment on the pleadings." 1212 Associates, 288 Ill.App.3d at 483, 681 N.E.2d at 137-38. 5

1212 Associates, however, was later called into question by a subsequent decision from the Second District also written by Justice McLaren, Allegis Realty Investors v. Novak, 356 Ill.App.3d 887, 827 N.E.2d 485 (2005). In Allegis Realty, property taxpayers filed objections to a tax imposed by the Naperville Township Road District, alleging:

"[T]he county clerk extended a hard-road tax levy of $248,000 for 1997, at a rate of $0.0127 per $100 of assessed valuation, by including that amount in an annual certificate of levy. The purported authority for the extension was a referendum held at the annual township meeting in 1979. That referendum authorized a `special tax rate of $0.167 on the [sic] $100 of assessed valuation.' However, the 1979 referendum was void because notice was not provided as specified in section 6-601 of the Illinois Highway Code (Ill.Rev.Stat.1977, ch. 121, par. 6-601)." Allegis Realty, 356 Ill.App.3d at 888, 827 N.E.2d at 486-87.

In Allegis Realty, the relevant section under the Township Code (hereinafter Code) required that before establishing or increasing any township tax rate that may be established or increased by the electors at the annual township meeting, the township clerk must be presented with a petition authorizing that action signed by not less than 10% of the township's registered voters. 60 ILCS 1/30-20(b) (West 1996). The objectors contended that section 30-20(b) applied, and since the petitions presented at the 1997 meeting contained only 50 signatures, far less than the 10% of registered voters required, the referendum violated the Code. In reply, the 6

township road district contended that section 30-20(b) did not apply, asserting that section 3020(b) was limited to establishing or increasing a tax rate but that the district's hard-road fund tax levy had been authorized and extended for many years before 1997 and thus the tax was not established or increased for 1997. Allegis Realty, 356 Ill.App.3d at 889, 827 N.E.2d at 487-88. The trial court granted the district's motion for summary judgment. In reversing the trial court, the appellate court found that section 30-20(b) did apply. The district, on appeal, tried to use the decision in 1212 Associates to argue that the 1997 referendum did not establish or increase a township tax rate because, regardless of the district's prior actions, the General Assembly had long before authorized the tax rate, and the referendum was based on this long-standing grant of legislative authority. Allegis Realty, 356 Ill.App.3d at 891, 827 N.E.2d at 489. The appellate court disagreed, and distinguished 1212 Associates, stating:

"[T]he statutes are distinguishable. In 1212 Associates, we held that, in section 18-190(a), the phrase `authorized by statute' directly modified `new rate or rate increase.' Thus, a `new rate or rate increase' meant a rate or increase brought about by the General Assembly, not by the local taxing body. However, section 30-20(b) contains no such limitation." Allegis Realty, 356 Ill.App.3d at 891-92, 827 N.E.2d at 489.

The court reasoned that 30-20(b) applied whenever the electors at an annual township meeting vote on whether to establish or increase township taxes, as the body doing the increasing or establishing, based on the statutory language, is the township, not the General Assembly. 7

Allegis Realty, 356 Ill.App.3d at 892, 827 N.E.2d at 489. Thus, 1212 Associates was distinguishable based on the applicable statutes. However, the court went on to cast doubt on the continued validity of its ruling in 1212 Associates. The court stated:

"We also agree with plaintiffs that the legislative history of section 18190(a) casts great doubt on the precedential value of 1212 Associates. Before we issued our opinion there, the legislature amended the statute to specify that `[r]ates required to extend taxes on levies subject to a backdoor referendum in each year there is a levy are not new rates or rate increases under this Section if a levy has been made for the fund in one or more preceding 3 levy years. ***[These changes] are declarative of existing law and not a new enactment.' Pub. Act 89-718,

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