In re Objection to 2005 Tax Levy of LaSalle County, Illinois

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State: Illinois

Court: 3rd District Appellate

Docket No: 3-08-0782 Rel

Case Date: 08/25/2009

Preview:No. 3--08--0782 Filed August 25, 2009 IN THE APPELLATE COURT OF ILLINOIS THIRD DISTRICT A.D., 2009 In re OBJECTION TO 2005 TAX LEVY OF LA SALLE COUNTY, ILLINOIS, LA SALLE COUNTY TREASURER-COLLECTOR (Tax Objectors, Plaintiffs-Appellants, v. Tax Collector, Defendant-Appellee). ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Appeal from the Circuit Court of the 13th Judicial Circuit, La Salle County, Illinois,

Case Nos. 06--TX--4 06--TX--5 Honorable Marc P. Bernabei, Judge, Presiding.

JUSTICE SCHMIDT delivered the opinion of the court:

This appeal involves two tax objection cases regarding the 2005 La Salle County tort immunity levy. Both cases arrive,

consolidated for all purposes, under a Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)) finding, after the trial judge struck the tax objectors' use of the doctrine of representation and the common fund doctrine at the pleading stage. In essence, the

trial court's decision struck the claims of what plaintiffs' attorneys estimate to be 64,000 unnamed taxpayers.

This appeal presents two issues for review: (1) whether the doctrine of representation applies in property tax objection proceedings of the Illinois Property Tax Code (35 ILCS 2001/1--1 et seq. (2004)); and (2) whether the common fund doctrine may be used in conjunction with tax objection proceedings. BACKGROUND The tax objectors claim that the La Salle County tort levy is unauthorized under the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/9-101 (West 2004)). The Tort Immunity Act authorizes a local

government to levy a tax for the narrow purposes outlined by section 9--107. In the case at bar, La Salle County has

allegedly been using its tort levy to pay for the unauthorized costs of employee health insurance, payments for a self-insurance bond, and other costs beyond what is authorized by the Tort Immunity Act. The objectors filed their original complaint in the La Salle County circuit court. The county collector filed motions to

dismiss under sections 2--615 and 2--619 of the Code of Civil Procedure (735 ILCS 5/2--615, 2--619 (West 2004)). The objectors

filed a response with a motion to amend the tax objection complaint to allow every taxpayer of record to proceed under the equitable doctrine of representation. The trial court granted

the collector's section 2--615 motion to strike the tax 2

objectors' use of the doctrine of representation and the common fund doctrine and denied the collector's section 2--619 motion. The merits of the tax objection to the levy of almost $7 million have not yet been decided. The trial court held that its

striking of the thousands of other "parties" (or the plaintiffs' claim that they could represent the unnamed taxpayers) is one for proper review under Supreme Court Rule 304(a). 304(a). The objectors filed a timely appeal. ANALYSIS I. Doctrine of Representation The objectors first argue that the doctrine of representation applies in property tax objection proceedings of the Illinois Property Tax Code as an equitable remedy. This 155 Ill. 2d R.

presents a question of law; the standard of review is de novo. People v. Johnson, 206 Ill. 2d 348, 359, 794 N.E.2d 294, 302 (2002). In rebuttal, the collector argues that the doctrine of

representation is not an equitable remedy and, alternatively, that general equitable considerations do not apply to this case. The doctrine of representation is a procedural doctrine that provides an exception to the necessary party rule. The doctrine

allows the actual parties to proceed and represent absent and otherwise necessary parties under certain circumstances. Crum &

Forster Specialty Insurance Co. v. Extended Stay America, Inc., 375 Ill. App. 3d 654, 666, 873 N.E.2d 964, 974-75 (2007), citing 3

Oglesby v. Springfield Marine Bank, 385 Ill. 414, 52 N.E.2d 1000 (1944). Therefore, the threshold question is whether all taxpayers of La Salle County are "necessary" parties in a tax objection proceeding. A necessary party is one who has a legal or

beneficial interest in the subject of the litigation and would be affected by the action of the court. Holzer v. Motorola

Lighting, Inc., 295 Ill. App. 3d 963, 970, 693 N.E.2d 446, 452 (1998). The Holzer court explained that there are three reasons

to consider a party "necessary" such that the litigation should not proceed in his or her absence: (1) to protect an interest

that the party has in the subject matter of the controversy that would be materially affected by the judgment entered in his or her absence; (2) to protect the interests of those who are before the court; and (3) to enable the court to make a complete determination of the controversy. 970. In the case at bar, the plaintiff objectors cite no cases that hold all taxpayers in the county are necessary parties in a tax objection action such as this one. The collector argues that Holzer, 295 Ill. App. 3d at

no party has a legal or beneficial interest in another's right to a refund. A taxpayer's individual refund simply does not affect Moreover, an

a decision regarding another taxpayer's refund.

individual objector does not need other objecting taxpayers to be 4

joined in order for his/her interest or right to a refund to be protected and litigated. The collector further argues that the objector's attempted use of the doctrine of representation is a disguised effort to avoid the express prohibition of a class action. In 1995, the

General Assembly removed class actions from the Property Tax Code. 35 ILCS 200/23--15(a) (West 2004). While permitting

joinder of plaintiffs, section 23--15(a) provides: "A tax objection complaint under section 23-10 shall be filed in the circuit court of the county in which the subject property is located. Joinder of plaintiffs shall be permitted to the same extent permitted by law in any personal action pending in the court and shall be in accordance with Section 2-404 of the Code of Civil Procedure; provided, however, that no complaint shall be filed as a class action." (Emphasis added.) (West 2004). The objectors contend that the statutory removal of class actions left them without a legal remedy and, therefore, a complete remedy will only be achieved through the equitable doctrine of representation. Moreover, the statute forbidding the 35 ILCS 200/23--15(a)

filing of a statutory class action cannot deny an Illinois court 5

its constitutional authority to exercise judicial power which is vested solely in the judiciary (Ill. Const. 1970, art. VI,

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