In the
United States Court of Appeals
For the Seventh Circuit
No. 12‐2540
LOUIS CAPRA,
Plaintiff‐Appellant,
v.
COOK COUNTY BOARD OF REVIEW et
al.,
Defendants‐Appellees.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 11 CV 04028 — Sharon Johnson Coleman, Judge.
Nos. 12‐2848 and 12‐3116
SATKAR HOSPITALITY, INC. et al.,
Plaintiffs‐Appellees, Cross‐Appellants,
v.
LARRY R. ROGERS et al.,
Defendants, Cross‐Appellees,
and
COOK COUNTY BOARD OF
REVIEW et al.,
Defendant‐Appellant.
Appeals from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 10 CV 06682 — Matthew F. Kennelly, Judge.
ARGUED JUNE 4, 2013 — DECIDED AUGUST 21, 2013
Before FLAUM, SYKES, and HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge. These appeals present issues
concerning local taxpayers’ ability to sue local tax officials for
alleged federal constitutional violations. Both cases stem from
news reports in 2009 claiming that then‐Illinois State Represen‐
tative Paul Froehlich had offered property tax reductions to his
constituents and implying that he received campaign contribu‐
tions and political support in exchange. The news reports
claimed that Rep. Froehlich arranged for many of his constitu‐
Nos. 12‐2540, 12‐2848, and 12‐3116 3
ents’ property taxes to be reduced on appeal to the Cook
County Board of Review. The plaintiffs in these two cases,
Louis Capra and Satkar Hospitality (and two of its owners),
had appealed their property tax assessments and had won
such reductions on appeal. After several news reports high‐
lighted the potential impropriety of their reductions, though,
both were called back before the Board of Review and the
Board reversed both reductions.
Capra and Satkar Hospitality filed these separate federal
lawsuits against the Cook County Board of Review and its
individual members and staff alleging several constitutional
violations. We address the two cases together because the
issues involved are so similar. As both district courts held, the
individual defendants are entitled to absolute quasi‐judicial
immunity and the Board itself is not. We conclude, however,
that the damages claims against the Board cannot proceed.
They are not cognizable in federal courts under Fair Assessment
in Real Estate Assʹn v. McNary, 454 U.S. 100, 116 (1981), which
requires federal courts to abstain in suits for damages under
42 U.S.C. § 1983 challenging state and local tax collection, at
least where an adequate state remedy is available, as it is here.
I. Factual and Procedural Background
In April and May 2009, a political blog and a Chicago
television station began reporting on Illinois State Rep. Paul
Froehlich. The reports suggested that Rep. Froehlich offered
his constituents reductions in their county property taxes in
exchange for political favors. A companion appeal, Satkar
Hospitality v. Fox Television Stations, Inc., No. 11‐3572, addresses
the content of the reports in greater detail, but here it suffices
4 Nos. 12‐2540, 12‐2848, and 12‐3116
to say that the reports at least implied that Rep. Froehlich had
handled his constituents’ property tax appeals in a way that
consistently resulted in tax reductions, and that he had done so
in exchange for political favors and support. The reports
specifically highlighted Satkar Hospitality, reporting that it
and its owners had donated thousands of dollars worth of
hotel rooms to Froehlich’s campaign.
Both plaintiffs here, Satkar Hospitality and Louis Capra,
appealed their property tax assessments for the years 2007 and
2008 and won reductions. But in June 2009, after the publicity
about Rep. Froehlich, both were called back before the Board
of Review for new hearings. Both plaintiffs’ complaints allege
that in these second hearings, the Board inquired not into the
value of their properties but into the nature of their relation‐
ships with Rep. Froehlich. The Board rescinded the reductions
for both plaintiffs. Plaintiffs allege that the Board, when
questioned about its actions, claimed that “we can do anything
we want.”
The plaintiffs filed these federal lawsuits against the Board
itself as well as its three commissioners (Larry Rogers, Joseph
Berrios, and Brendan Houlihan), its chief deputy commissioner
(Scott Guetzow), and its first assistant commissioners (Thomas
Jaconetty and John Sullivan). Both complaints allege that the
Board and its commissioners and staff (the “individual
defendants”) violated the plaintiffs’ right to equal protection
by singling them out for their association with Rep. Froehlich,
their right to due process by arbitrarily rescinding their
reductions without a fair hearing, and their First Amendment
rights by retaliating against them based on their political ties
to Rep. Froehlich. Both plaintiffs also allege that any appeal
Nos. 12‐2540, 12‐2848, and 12‐3116 5
available to them from the Board’s decisions would not satisfy
due process. They allege that their appeals before the state tax
appeal board are “red‐flagged” and could take seven to eight
years to decide. They also allege that appeal to the Cook
County Circuit Court would not provide impartial review
because judges in that court are slated for election by the
county Democratic Party, of which two individual defendants
are leaders.1
In the Satkar Hospitality case, the district court denied the
defendants’ motion to dismiss for failure to state a claim but
granted the individual defendants’ motion to dismiss on the
ground that they are absolutely immune because their work
reviewing tax appeals is quasi‐judicial. Satkar Hospitality Inc. v.
Cook County Bd. of Review, 819 F. Supp. 2d 727 (N.D. Ill. 2011).
As the sole remaining defendant, the Board moved for judg‐
ment on the pleadings under Federal Rule of Civil Procedure
12(c), arguing that it is entitled to either the same quasi‐judicial
absolute immunity as the individual defendants or Eleventh
Amendment sovereign immunity. The district court denied the
motion, finding that the Board, as a municipal entity, is not
entitled to quasi‐judicial absolute immunity and that the
Eleventh Amendment does not apply because the Board is a
county entity operating independently of the state treasury.
Satkar Hospitality Inc. v. Cook County Bd. of Review, No. 10 C
6682, 2012 WL 3151376 (N.D. Ill. Aug. 2, 2012). The plaintiffs
1
The Satkar Hospitality complaint also included as defendants the local
television station, political blog, and reporters and staff members of both,
and alleged defamation and false light claims under Illinois law. The appeal
from dismissal of those counts is pending in Satkar Hospitality v. Fox
Television Stations, Inc., No. 11‐3572.
6 Nos. 12‐2540, 12‐2848, and 12‐3116
appealed the district court’s finding of absolute immunity for
the individual defendants. The Board cross‐appealed the
district court’s finding that the Board was not entitled to
absolute immunity. We have jurisdiction because the district
court properly certified its dismissal of the individual defen‐
dants as a final judgment under Federal Rule of Civil Proce‐
dure 54(b), and the Board’s appeal from the denial of its
immunity defense is appealable under the collateral order
doctrine. See Behrens v. Pelletier, 516 U.S. 299, 307 (1996);
Nixon v. Fitzgerald, 457 U.S. 731, 742–43 (1982).
In the Capra case, the district court also found that the
individual defendants were entitled to quasi‐judicial absolute
immunity but that the Board was not. Capra v. Cook County Bd.
of Review, No. 11‐cv‐4028, 2012 WL 1969393 (N.D. Ill. May 30,
2012). The district court in Capra, however, dismissed the entire
case, holding that Capra had failed to state a claim against the
Board for a violation of his equal protection or due process
rights. (Capra had conceded the First Amendment claim.
Unlike the Satkar plaintiffs, he never had any contact with Rep.
Froehlich and had not contributed to his campaign.) Capra has
appealed the final judgment against him.
II. Analysis
These section 1983 actions for damages against the Board
and its members and staff face obstacles they cannot overcome.
We begin by explaining why the individual defendants are
entitled to quasi‐judicial absolute immunity. We then explain
why the Board itself is not entitled to the same absolute
immunity but that the damages claims against the Board itself
must be dismissed without prejudice based on comity concerns
Nos. 12‐2540, 12‐2848, and 12‐3116 7
under Fair Assessment in Real Estate Assʹn v. McNary, 454 U.S.
100 (1981). We conclude with a brief discussion of the pleading
requirements for plaintiff Capra’s claims against the Board.2
A. Quasi‐Judicial Absolute Immunity for Individual Defendants
“Absolute immunity is available to members of quasi‐
judicial adjudicatory bodies when they perform duties that are
functionally comparable to those of a judicial officer,” regard‐
less of the identity of the actor. Tobin for Governor v. Illinois State
Bd. of Elections, 268 F.3d 517, 521 (7th Cir. 2001), citing Butz v.
Economou, 438 U.S. 478, 512‐13 (1978). Both district courts
found that the individual defendants—the members and staff
of the Board of Review—are entitled to such absolute immu‐
nity. The district courts followed our decision on the same
question with regard to individual members of a different
Illinois county’s Board of Review. In Heyde v. Pittenger,
633 F.3d 512 (7th Cir. 2011), we affirmed a district court’s
dismissal of a similar section 1983 suit, alleging equal protec‐
tion, due process, and retaliation claims against individual
members of the Tazewell County Board of Review. We found
that those individual defendants were entitled to absolute
immunity based on their quasi‐judicial functions. Id. at 516–19.
We considered the function and role of the Tazewell
County Board of Review in light of the six factors for analyzing
quasi‐judicial immunity articulated in Butz: (1) the need to
2
In Satkar Hospitality, the Board argued before the district court that the
Rooker‐Feldman doctrine barred subject matter jurisdiction and that the
Board was protected by Eleventh Amendment sovereign immunity. The
district court correctly rejected both arguments, which have not been
renewed on appeal.
8 Nos. 12‐2540, 12‐2848, and 12‐3116
assure that the individual can perform her functions without
harassment or intimidation; (2) the presence of safeguards that
reduce the need for damages actions as a means for controlling
unconstitutional conduct; (3) the insulation from political
influence; (4) the importance of precedent; (5) the adversarial
nature of the process; and (6) the correctability of error on
appeal. See id. at 517, citing Butz, 438 U.S. at 512. We observed
that the Board’s hearing process was similar to a judicial
proceeding—with notice and the opportunity to be heard and
to present evidence—as laid out by the Board’s governing
statute. Id. at 518; 35 Ill. Comp. Stat. § 200/16‐10 (board has
power to “summon any assessor, deputy, or other person to
appear before it to be examined under oath concerning the
method by which any evaluation has been ascertained, and its
correctness”); §§ 200/16‐25, ‐30, ‐35 (requiring notice in writing
to taxpayer and opportunity to be heard). We also observed
that the Board’s function of reviewing property assessments
warranted insulation from harassment or intimidation because
it was “inherently controversial and likely to result in disap‐
pointed parties and, unless checked, a multitude of lawsuits.”
Heyde, 633 F.3d at 519. Finally, we observed that Illinois law
provided adequate opportunity to appeal from an unfavorable
Board decision, noting that taxpayers may appeal as a matter
of right to the Property Tax Appeal Board, whose decisions are
appealable to Illinois state courts of general jurisdiction. Id.
Heyde controls here. The Tazewell County Board of Review
serves the same function as the Cook County Board of Review,
just in a different county. The Boards are defined and governed
Nos. 12‐2540, 12‐2848, and 12‐3116 9
by parallel Illinois statutes.3 The plaintiffs offer no convincing
argument for distinguishing Heyde. They argue that the Board
in Heyde actually did an investigation and provided its reasons
and rationale for its ruling, whereas the Board here allegedly
made its decisions before the taxpayers’ respective hearings.
But the actual conduct or alleged wrongdoing of an official
acting in a quasi‐judicial capacity does not temper the protec‐
tion of absolute immunity. See Tobin for Governor, 268 F.3d at
524 (“judicial officers are entitled to that immunity even when
they act in error, maliciously, or in excess of their authority”).
That is the rule because “the threat of being subjected to any
litigation impedes the officers’ ability to engage in independent
and fearless decision‐making.” Id. We find no reason to
question Heyde. The individual defendants are entitled to
quasi‐judicial absolute immunity.
B. No Absolute Immunity for the Board of Review
The Cook County Board of Review argues that it should
also be entitled to the same quasi‐judicial absolute immunity
since it performs the same functions. Unlike individuals sued
in their individual capacities, though, municipal entities are
not entitled to absolute immunity. The Supreme Court made
this quite clear in Monell v. Department of Social Services:
we express no views on the scope of any municipal
immunity beyond holding that municipal bodies sued
3
The Tazewell Board is governed by sections 200/16‐20 through 200/16‐90
of chapter 35 of the Illinois code, which apply to counties with fewer than
3,000,000 residents. The Cook County Board is governed by sections
200/16‐95 through 200/16‐155, which apply to the only county with more
than 3,000,000 residents. The language is not identical, but the powers,
duties, and required procedures are equivalent.
10 Nos. 12‐2540, 12‐2848, and 12‐3116
under § 1983 cannot be entitled to an absolute immunity,
lest our decision that such bodies are subject to suit
under § 1983 “be drained of meaning.”
436 U.S. 658, 701 (1978) (emphasis added), quoting Scheuer v.
Rhodes, 416 U.S. 232, 248 (1974).
We have followed this directive and held consistently that
municipal entities are not entitled to absolute immunity even
where the entity’s officers are entitled to immunity. In Reed v.
Village of Shorewood, 704 F.2d 943 (7th Cir. 1983), we held that
a village mayor who served as local liquor commissioner was
entitled to quasi‐judicial absolute immunity, but the immunity
did not extend to the village itself. Id. at 953. We reasoned that
the rationale of Owen v. City of Independence, 445 U.S. 622
(1980), which declined to afford qualified immunity to a
municipality despite the good faith of its individual officers,
should apply with as much force to legislative and judicial
officers and did not extend to the village the absolute judicial
and legislative immunity we afforded to its mayor and trustees
as individuals. Reed, 704 F.2d at 953 (“[T]he municipality’s
liability for such acts extends to acts for which the policy‐
making officials themselves might enjoy absolute immunity
because the acts were legislative or judicial in character.”).
More recently, we explained in Hernandez v. Sheahan,
455 F.3d 772 (7th Cir. 2006), that “units of government are not
entitled to immunity in suits under § 1983,” in part because
immunities are “personal defenses designed to protect the
finances of public officials whose salaries do not compensate
them for the risks of liability,” unlike local governments,
“which can tap the public fisc.” Id. at 776 (finding city and
Nos. 12‐2540, 12‐2848, and 12‐3116 11
sheriff’s department not entitled to quasi‐judicial immunity
from § 1983 suit).4
The Board points to no examples of a circuit court applying
absolute immunity to a municipal entity, and we have found
none. Most of the cases it cites involved state entities, which
frequently will be protected from suit by Eleventh Amendment
sovereign immunity or its statutory parallel under Will v.
Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989) (holding
that states and state officials sued in official capacities are not
“persons” who can be sued under § 1983). See, e.g., Olsen v.
Idaho State Bd. of Med., 363 F.3d 916, 924–26 (9th Cir. 2004) (state
medicine and professional discipline boards; court did not
address why the state boards were entitled to the same
immunity as their members and staff); Goluszek v. H.P. Smith
4
Other circuits have held similarly that municipal entities are not entitled
to the immunities that protect their officers. See Bass v. Attardi, 868 F.2d 45,
51 (3d Cir. 1989) (per curiam) (city planning board, “as a governmental
entity has no immunity whatsoever” against damages suit under § 1983);
Aitchison v. Raffiani, 708 F.2d 96, 100 (3d Cir. 1983) (in suit under § 1983,
“liability against the municipality is not precluded simply because the
defendants were found immune in their individual capacities”);
Hernandez v. City of Lafayette, 643 F.2d 1188, 1196 (5th Cir. 1981) (“We
consider the Supreme Court’s decision in Owen and its caveat in Lake
Country Estates to be dispositive of the cityʹs argument and hold that the
City of Lafayette is not entitled to a legislative immunity from damages
under § 1983 in connection with its zoning regulations.”); cf. Turner v.
Houma Mun. Fire and Police Civil Serv. Bd., 229 F.3d 478, 483–486 (5th Cir.
2000) (affirming denial of absolute quasi‐judicial immunity for individuals
in official capacity and municipal fire and police board, as “defenses such
as absolute quasi‐judicial immunity, that only protect defendants in their
individual capacities, are unavailable in official‐capacity suits[,]” which are
entitled to only the immunities that would apply to the entity).
12 Nos. 12‐2540, 12‐2848, and 12‐3116
Paper Co., No. 93 C 5329, 1993 WL 358160 (N.D. Ill. Sept. 14,
1993) (Illinois attorney disciplinary commission, which is a
committee of the Illinois Supreme Court); Tate v. Nevada Bd. of
Med. Examiners, No. 2:11‐CV‐1613 JCM (VCF), 2011 WL
5101987 (D. Nev. Oct. 26, 2011) (state board of medical examin‐
ers; in brief preliminary injunction opinion, court did not
differentiate between board members and board itself), aff’d,
Tate v. Neyland, 485 F. App’x 861 (9th Cir. 2012).
The Board also cites a district court opinion from Louisiana
that extended absolute quasi‐judicial immunity to a city
alcohol control board, but the Fifth Circuit later interpreted the
case as finding only immunity only for individual defendants.
Compare Brossette v. City of Baton Rouge, 837 F. Supp. 759, 763
(M.D. La. 1993), aff’d, 29 F.3d 623 (5th Cir. 1994) (per curiam),
with Turner v. Houma Mun. Fire & Police Civil Serv. Bd., 229 F.3d
478, 485 & n.13 (5th Cir. 2000) (clarifying that Brossette and
other cases’ possible extension of immunity to municipal
entities was necessarily limited to individual capacity claims
because a “grant of official‐capacity immunity would also have
barred the claim against the city, contrary to Monell and its
progeny”). Whatever the district court in Brossette might have
intended, the Fifth Circuit’s clarification in Turner was certainly
correct. The Board also cites Crenshaw v. Baynerd, 180 F.3d 866
(7th Cir. 1999), and Thompson v. Duke, 882 F.2d 1180 (7th Cir.
1989), for broad language that quasi‐judicial immunity applies
to agencies, but in both cases the language referred to state
entities that were not even parties to the suits.
Given Monell and the history of the Civil Rights Act,
extending absolute immunity to the Board here would be a
dramatic expansion of immunity that would severely limit the
Nos. 12‐2540, 12‐2848, and 12‐3116 13
scope of section 1983 further than Congress intended and
further than the Supreme Court ever has. Insulating municipal‐
ities from suit on a theory of quasi‐judicial immunity when a
policy, custom, or policymaker has violated the Constitution
would, as the Supreme Court noted in Monell, drain that
important decision of its meaning. 436 U.S. at 701. The Board
is not protected by quasi‐judicial absolute immunity.
C. Comity
1. The General Rule of Abstention
There is, however, another narrower reason that these suits
cannot proceed against the Board itself. In Fair Assessment in
Real Estate Assʹn v. McNary, 454 U.S. 100 (1981), the Supreme
Court relied on principles of comity to erect a high barrier to
section 1983 damages suits against state and local tax systems
such as this. In Fair Assessment, taxpayers sued county and
state tax officials claiming that certain taxing practices de‐
prived them of equal protection and due process. The Court
considered whether such a suit could be entertained by a
federal court at all, acknowledging the tension between section
1983, which provides broadly for suits under federal law
against state and local governments and employees, and the
Tax Injunction Act, 28 U.S.C. § 1341, which forbids federal
courts from enjoining or interfering with the collection of state
taxes. The Court ultimately concluded that the principles of
comity and federalism underlying the Tax Injunction Act
should apply, and the Court held that “taxpayers are barred by
the principle of comity from asserting § 1983 actions against
the validity of state tax systems in federal courts.” Fair Assess‐
ment, 454 U.S. at 116. Instead, taxpayers alleging that their
14 Nos. 12‐2540, 12‐2848, and 12‐3116
federal rights have been violated by state or local tax practices
must first seek relief through the available state remedies, as
long as those remedies are “plain, adequate, and complete.”
Id.5
Like the Tax Injunction Act, this comity doctrine “serves to
minimize the frictions inherent in a federal system of govern‐
ment” and embodies longstanding “federal reluctance to
interfere with state taxation.” Empress Casino Joliet Corp. v.
Balmoral Racing Club, Inc., 651 F.3d 722, 725 (7th Cir. 2011) (en
banc); see also National Private Truck Council, Inc. v. Oklahoma
Tax Commʹn, 515 U.S. 582, 589–90 (1995) (extending Fair
Assessment to hold that plaintiffs cannot seek declaratory or
injunctive relief against state taxes in state courts under § 1983
where state law provides an adequate legal remedy).
Fair Assessment has been applied consistently to bar
plaintiffs from bringing section 1983 suits challenging the
validity or imposition of state and local taxes in federal courts
unless the available state remedies for those injuries are not
adequate, plain, and complete. In Werch v. City of Berlin,
5
The parties did not raise or address Fair Assessment in the district courts
or in this court. We raised the issue at oral argument and ordered the
parties to file post‐argument briefs addressing the case. We view abstention
under Fair Assessment as comparable to other abstention doctrines rooted
in federalism concerns, which an appellate court may raise even if it is not
a jurisdictional issue that must be raised. See Intʹl Coll. of Surgeons v. City of
Chicago, 153 F.3d 356, 360 (7th Cir. 1998) (Pullman and Burford abstention);
Barichello v. McDonald, 98 F.3d 948, 955 (7th Cir. 1996) (all abstention
doctrines); Waldron v. McAtee, 723 F.2d 1348, 1351 (7th Cir. 1983) (Pullman
abstention). Also, our opinion in Heyde, which was addressed in detail in
the district courts in both cases, discussed and applied Fair Assessment in a
very similar case. See 633 F.3d at 519–22.
Nos. 12‐2540, 12‐2848, and 12‐3116 15
673 F.2d 192 (7th Cir. 1982), we considered a section 1983 suit
for injunctive relief and damages against the city of Berlin, its
Common Council and Board of Review, and several individual
city officials alleging that the city’s tax on the plaintiff’s farm
equipment denied him equal protection of the law. We found
that the district court could not consider the plaintiff’s claims:
“Principles of comity bar a taxpayer from contesting the
validity of a state tax in a section 1983 damage action,” and
Wisconsin state law provided “plain, adequate, and complete”
remedies for his claim. Id. at 194–95.6 See also Kerns v. Dukes,
153 F.3d 96, 101–03 (3d Cir. 1998) (suit against county tax
officials and state environmental agencies alleging change
requiring property owners to join local sewer system, which
imposed fees and service charges, was barred by Fair Assess‐
ment and the Tax Injunction Act because suit essentially
challenged a state and local tax and Delaware provided
6
In Werch we said that the court lacked “jurisdiction” to hear such a claim,
but the Supreme Court has not been clear on whether Fair Assessment
removes such suits from federal court jurisdiction or rather precludes courts
from hearing certain cases even though they might fall within their
jurisdiction. Compare Hibbs v. Winn, 542 U.S. 88, 107 n.9 (2004) (noting that
Fair Assessment “preclude[d] original federal‐court jurisdiction only when
plaintiffs have sought district‐court aid in order to arrest or countermand
state tax collection”), with Levin v. Commerce Energy, Inc., 560 U.S. 413, —,
130 S. Ct. 2323, 2330 (2010) (citing Fair Assessment for proposition that
“comity doctrine counsels lower federal courts to resist engagement in
certain cases falling within their jurisdiction”). Since Werch, the Supreme
Court has been more precise in narrowing the scope of truly jurisdictional
doctrines. See generally Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 160–61
(2010); Arbaugh v. Y&H Corp., 546 U.S. 500, 510–16 (2006). In light of the
Supreme Court’s more recent decisions, the better understanding is that Fair
Assessment presents not a mandatory jurisdictional limit but a prudential
comity issue that the court may raise itself.
16 Nos. 12‐2540, 12‐2848, and 12‐3116
adequate remedies). Our decision in Heyde v. Pittenger is
directly relevant on this point, too. There, after finding the
individual defendants were absolutely immune, we applied
this doctrine of comity and abstention to affirm dismissal of the
remaining equal protection and due process claims against the
county board of review itself. 633 F.3d at 520–21.
Capra and Satkar Hospitality’s lawsuits fall squarely within
the rule of Fair Assessment. The plaintiffs challenge the applica‐
tion of a local tax under section 1983 on federal constitutional
grounds. We must abstain from considering the claims unless
the available state remedies are not adequate, plain, and
complete.
2. The Exception to Abstention
After we raised the Fair Assessment abstention problem,
plaintiffs argued that their cases fall within the exception
because there are no “adequate, plain, and complete” state
remedies available to them. We disagree.
In determining whether available state remedies are
“adequate, plain, and complete” for purposes of Fair Assess‐
ment, we have used the comparable standard from the Tax
Injunction Act, which bars federal courts from enjoining state
taxes where a “plain, speedy and efficient” state remedy is
available. 28 U.S.C. § 1341. See Werch, 673 F.2d at 194–95; see
also Lawyer v. Hilton Head Pub. Serv. Dist. No. 1, 220 F.3d 298,
304–06 (4th Cir. 2000) (relying on language from section 1341
cases to explicate the “plain, adequate, and complete” excep‐
tion under Fair Assessment); Kerns, 153 F.3d at 101 (where both
section 1341 and Fair Assessment applied, court considered
whether state remedies were “plain, speedy and efficient”).
Nos. 12‐2540, 12‐2848, and 12‐3116 17
Thus, we take guidance from both comity and Tax Injunction
Act case law in determining whether available state remedies
are so flawed as to allow plaintiffs to avoid the Fair Assessment
abstention doctrine.
State remedies are “plain, speedy and efficient” if they
provide the taxpayer with a “full hearing and judicial determi‐
nation at which she may raise any and all constitutional
objections to the tax.” Rosewell v. LaSalle Nat’l Bank, 450 U.S.
503, 514 (1981) (internal quotations omitted). A state remedy is
not deficient merely because it will not result in the taxpayer’s
desired outcome. The analysis focuses on whether the state
court remedy “meets certain minimal procedural criteria.” Id. at
512 (reversing our circuit’s decision that had allowed case
challenging Cook County property tax assessments to proceed
under federal Constitution); accord, Huber Pontiac, Inc. v.
Whitler, 585 F.2d 817, 821 (7th Cir. 1978) (finding Illinois courts
afforded a “viable method of contesting” state tax hearing
procedures and noting that “[m]ere futility of state court
proceedings does not allow a federal court to ignore the
explicit prohibitions of Section 1341”). The focus is on the
procedural sufficiency of state remedies, not their substantive
outcomes. Rosewell, 450 U.S. at 512 (in past analyses of “plain,
speedy and efficient” language from section 1341, “the Court
has emphasized a procedural interpretation in defining both the
entire phrase and its individual word components”).
Under Illinois law, taxpayers dissatisfied with a decision of
a county Board of Review have two options for appeal. They
can either appeal to the Property Tax Appeal Board (PTAB),
35 Ill. Comp. Stat. § 200/16‐160, or file a tax objection complaint
directly with a county circuit court, § 200/23‐15. See also
18 Nos. 12‐2540, 12‐2848, and 12‐3116
Millennium Park Joint Venture, LLC v. Houlihan, 948 N.E.2d 1,
10–11 (Ill. 2010). If they select the PTAB route, they can appeal
the PTAB’s decision directly to Illinois state courts. 35 Ill.
Comp. Stat. § 200/16‐195. Although the PTAB is not expressly
authorized to consider claims beyond objections to assessment
values, we have found no provision in its authorizing statute
or regulations precluding it from doing so.7 And before the
PTAB, taxpayers may supplement the record with evidence
beyond what was before the Board of Review. § 200/16‐180 (“A
party participating in the hearing before the Property Tax
Appeal Board is entitled to introduce evidence that is other‐
wise proper and admissible without regard to whether that
7
The regulations provide in part: “The Property Tax Appeal Board may
consider appeals based upon contentions of law. Such contentions of law
must be concerned with the correct assessment of the subject property. If
contentions of law are raised, the party shall submit a brief in support of his
position.” 86 Ill. Admin. Code § 1910.65(d). The second sentence of that
provision could be interpreted as allowing constitutional challenges to the
Board of Review procedures used to determine the “correct assessment,”
or perhaps might be interpreted more narrowly. We have found no Illinois
case law that would bar the PTAB from considering such challenges. We
recognize that the Supreme Court has said on several occasions that
uncertainty surrounding the scope of a state remedy “may make it less than
‘plain.’” See Rosewell, 450 U.S. at 517, citing Tully v. Griffin, Inc., 429 U.S. 68,
76 (1976) (dictum), citing in turn Township of Hillsborough v. Cromwell,
326 U.S. 620, 625 (1946) (state remedies were at best speculative where long
line of state supreme court precedents barred effective relief). Whatever the
scope of this uncertainty exception might be, any uncertainty surrounding
the scope of the PTAB’s powers could not overcome the federal‐court
barrier here because the state courts will ultimately have jurisdiction to hear
and decide the constitutional challenges plaintiffs contemplate. See Rosewell,
450 U.S. at 517 (“There is no question that under the Illinois procedure, the
court will hear and decide any federal claim.”).
Nos. 12‐2540, 12‐2848, and 12‐3116 19
evidence has previously been introduced at a hearing before
the board of review of the county.”).
Thus, through either the PTAB or the circuit courts, any
statutory or constitutional claims can be heard by a state court
of general jurisdiction and can be appealed through the Illinois
court system to the Illinois Supreme Court and the Supreme
Court of the United States. In Heyde we found that these appeal
procedures were adequate for Fair Assessment purposes, noting
that we “have continually found that the available state
procedures for challenging the Illinois tax system are accept‐
able” under Fair Assessment. 633 F.3d at 520 (collecting cases).
Despite these precedents, plaintiffs maintain that appeals
through the PTAB and directly to the circuit courts are proce‐
durally inadequate. They argue that the entire Cook County
judiciary “could not adequately hear these specific cases”
because the cases are highly political and “against the man
who selected the majority of the county judiciary,” referring to
defendant Joseph Berrios. Pl. Supp. Br. 8. They refer to Berrios
and his “cohorts on the Board of Review” as “corrupt
‘Chicago‐style’ politicians” whose property tax decisions were
so “brazenly and openly” political that “to expect the Cook
County judiciary to treat [the decisions] as anything other than
a political hot potato is naïve.” Id. at 8–9.
The federal Constitution does not prohibit popular election
of state court judges. Plaintiffs’ argument amounts in essence
to an argument that some issues and claims are, as a matter of
federal constitutional law, simply too hot for elected state
judges to handle fairly. To accept this theory would both
accept an extraordinary expansion of federal power and
20 Nos. 12‐2540, 12‐2848, and 12‐3116
endorse a sweeping condemnation of the state judiciary. We
reject plaintiffs’ theory. Where there are corrupt or incompe‐
tent individuals, there are remedies. If plaintiffs find them‐
selves before a Cook County circuit judge who they believe has
too close ties to the Board, Illinois law provides a procedural
mechanism to substitute judges. See 735 Ill. Comp. Stat. § 5/2‐
1001(a)(2)‐(3), (c) (parties entitled to one substitution of a judge
as matter of right and may request substitution for cause,
possibly to different county). Thus, we see no procedural
inadequacy with a direct appeal to the state courts: Illinois law
provides ample opportunity for plaintiffs to receive a fair
hearing before a Cook County circuit judge, and plaintiffs can
appeal an adverse circuit court decision through the Illinois
court system.
But plaintiffs did not appeal directly to the circuit courts.
They chose instead the option of appealing to the PTAB. They
argue that the PTAB also cannot provide a plain, adequate, and
complete remedy because their cases with the PTAB were
“red‐flagged,” will take too long to be decided, and will not be
reviewed de novo, but rather that the PTAB will “rubber stamp”
the Board’s decisions. We are not persuaded.
First, significant delay does not doom the adequacy of state
remedies. In Heyde we found that a delay of more than two
years alleged by the plaintiff did not render Illinois procedures
inadequate. 633 F.3d at 521. Relying on Rosewell, where the
Supreme Court found that delays in Illinois tax appeals were
not “outside the boundary” of a speedy remedy, 450 U.S. at
521, we held that, “while the delays in the Illinois system are
unfortunate, this case fits within the parameters of [Fair
Assessment] and our previous decisions.” Heyde, 633 F.3d at
Nos. 12‐2540, 12‐2848, and 12‐3116 21
520–21. The same is true here. Briefing before the PTAB
proceeded in a timely manner and was completed by late 2011.
The parties now wait for a hearing to be scheduled. This is not
the seven‐ to eight‐year delay plaintiffs alleged in their
complaints. Even if it is“unfortunate,” it still falls within the
range considered acceptable in Rosewell and Heyde. Id. at 521.
Second, plaintiffs allege that the PTAB is not an adequate
state remedial process because their cases have been “red‐
flagged.” In oral argument they explained that by “red‐
flagged” they mean that someone within the Board of Review
has been in contact with the PTAB and that nothing would be
done to change the Board’s decisions. We do not know the
factual basis for this allegation, but even if the PTAB affirms
the Board’s decisions and the plaintiffs can show that was
because the cases were “red‐flagged” or otherwise the subject
of improper influence, further appeal to Illinois state courts
will be available. See Huber Pontiac, 585 F.2d at 820–21 (avail‐
ability of appeal through Illinois courts and ultimately Su‐
preme Court of United States meant state remedies were plain,
speedy, and efficient where plaintiff alleged that tax hearing
officer was prejudiced by ex parte contacts with the state tax
department). We cannot say that the appeal procedure through
the PTAB is inadequate or incomplete because parties fear they
may be dissatisfied with the process and ultimate outcome.
Plaintiffs also argue that PTAB review is not adequate
because it is only a “rubber stamp” for the Board. Pl. Supp. Br.
5. They point to provisions of the relevant regulations that
place the burden of proof on the appealing property owner and
require parties to prove unequal treatment by “clear and
convincing evidence.” See 86 Ill. Admin. Code § 1910.63(e). By
22 Nos. 12‐2540, 12‐2848, and 12‐3116
law the PTAB is required to review appeals de novo. 35 Ill.
Comp. Stat. 200/16‐180 (“All appeals shall be considered de
novo … .”); 86 Ill. Admin. Code § 1910.63(a) (“Under the
principles of a de novo proceeding, the Property Tax Appeal
Board shall not presume the action of the board of review or
the assessment of any local assessing officer to be correct.”).
The provisions plaintiffs cite do not address the standard of
review but set out a burden‐shifting procedure for PTAB
appeals. Contesting taxpayers must first provide evidence or
legal argument “sufficient to challenge the correctness of the
assessment,” and once they have done so, the Board is required
to provide evidence or legal argument “sufficient to support its
assessment.” See 86 Ill. Admin. Code § 1910.63(b)–(c). Plain‐
tiffs’ argument confuses the de novo standard of review with
the evidentiary burdens applicable in PTAB appeals. The fact
that the plaintiffs bear an evidentiary burden does not render
the PTAB appeal process inadequate or incomplete. The
prospect that the PTAB’s decisions on the merits of these
plaintiffs’ appeals might be wrong falls well short of any
showing that state remedies are inadequate.
Even if these allegations about the adequacy and partiality
of the PTAB and the Cook County circuit courts plausibly
affected the adequacy of those processes, they are premature.
Certainly, tax appeal procedures exist in Illinois, and we have
repeatedly held that those procedures are adequate for
purposes of Fair Assessment and the Tax Injunction Act. See
Heyde, 633 F.3d at 520 (collecting cases). Plaintiffs’ claim that
facially adequate procedures will not function adequately in
the future is premature. See, e.g., Williamson Cnty. Regʹl
Planning Commʹn v. Hamilton Bank of Johnson City, 473 U.S. 172,
Nos. 12‐2540, 12‐2848, and 12‐3116 23
195–97 (1985) (federal courts should abstain from considering
challenges to state eminent domain proceedings if state
remedies have not been exhausted, in part because the claims
are not ripe as a prudential matter without state court exhaus‐
tion).
Thus, under Fair Assessment, the district courts in these
cases were required to abstain from considering the merits of
plaintiffs’ claims for damages against the Board under section
1983 because the available state remedies were plain, adequate,
and complete.
D. Final Disposition
Comity requires that the claims against the Board be
dismissed without prejudice, i.e., without a ruling on the
merits. This ruling therefore should not bar plaintiffs from
raising any federal constitutional issues in their state proceed‐
ings to appeal their property tax assessments. On this topic, we
also note that the district court in Capra erred in applying too‐
stringent pleading requirements for a class‐of‐one equal
protection claim. The court found that Capra did not state such
a claim because he did not identify in his complaint similarly
situated properties that were not subject to the same (allegedly
improper) reductions.
Plaintiffs alleging class‐of‐one equal protection claims do
not need to identify specific examples of similarly situated
persons in their complaints. As we explained in Geinosky v. City
of Chicago, 675 F.3d 743 (7th Cir. 2012):
Even in a case where a plaintiff would need to
identify a similarly situated person to prove his
24 Nos. 12‐2540, 12‐2848, and 12‐3116
case, … we see no basis for requiring the plaintiff
to identify the person in the complaint … . Rule
8(a)(2) requires only “a short and plain statement
of the claim showing that the pleader is entitled
to relief.” Even the more demanding pleading
requirements under Iqbal and Twombly do not
require a plaintiff to identify specific compara‐
tors in a complaint.
Id. at 748 n.3. Here the plaintiffs alleged in Satkar Hospitality
that “[s]imilarly situated property owners, who had not
contributed to Rep. Froehlich, were not singled out thusly,”
Satkar Compl. ¶ 51, and in Capra, “[s]imilarly situated taxpay‐
ers who were not suspected of associating with Rep. Paul
Froehlich were not denied the right to petition the Board of
Review.” Capra Compl. ¶ 41. At the pleading stage these
allegations suffice.8
8
We need not address the extent to which plaintiffs would need to provide
evidence of near‐exact similarly situated property owners after discovery.
But the question is an open and interesting one, especially in light of
Swanson v. City of Chetek, where we reversed summary judgment for a
defendant and held that a “clear showing of animus, absent a robust
comparison to a similarly situated individual, may sustain a class‐of‐one
equal protection claim.” 719 F.3d 780, 783, 785 (7th Cir. 2013) (where
plaintiff “identified his specific harasser, provided a plausible motive and
detailed a series of alleged actions by [the defendant] that appear illegiti‐
mate on their face”).
Nos. 12‐2540, 12‐2848, and 12‐3116 25
III. Conclusion
In the Capra appeal, No. 12‐2540, we affirm the judgment.
The claims against the individual defendants are dismissed
with prejudice, and the due process and equal protection
claims against the Board of Review are dismissed without
prejudice. In the Satkar Hospitality appeals, we affirm the
judgment in favor of the individual defendants in No. 12‐3116,
and remand for dismissal of the claims against the Board of
Review without prejudice in No. 12‐2848.