County of Shelby v. Illinois Property Tax Appeal Board

Mr. JUSTICE KARNS,

dissenting:

These numerous cases arise from a general, nonquadrennial reassessment of all real property in Shelby County, approximately 21,000 parcels, mandated by the Department of Local Government Affairs in order to equalize property assessments in Shelby County at the statutorily required percentages of fair market value. The reappraisal work was performed in 1975 and 1976. The Department of Local Government Affairs had issued an opinion to the Shelby County authorities that the July 10 publication date was directory, not mandatory. Andrews v. Foxworthy (1978), 71 Ill. 2d 13, 373 N.E.2d 1332, was pending in the trial court in Vermilion County when changes in assessment were published in Shelby County on December 7, 1976. The reassessments had not been completed by the July 10 statutory date. Property owners were also mailed notice of any change in assessment. The Board of Review of Shelby County remained in session, as its term was extended by the Department of Local Government Affairs, and approximately 3,500 complaints were filed and hearings were had before the Board. After decisions by the Board of Review, some 1,600 appeals were perfected to the Property Tax Appeal Board where 1,400 cases were consolidated and approximately 1,283 decided after the supreme court’s decision in Andrews v. Foxworthy.

I do not believe that the result reached by the majority follows from the supreme court’s decision in Roth v. Yackley (1979), 77 Ill. 2d 423, 396 N.E.2d 520. Roth dealt with an attempt by the General Assembly to alter, retroactively, the construction the supreme court had theretofore placed on section 10 of the Illinois Cannabis Control Act (Ill. Rev. Stat. 1973, ch. 56½, par. 710) in People v. DuMontelle (1978), 71 Ill. 2d 157, 374 N.E.2d 205. Roth v. Yackley, however, in reality dealt with an attempt by the General Assembly to increase the penalty for a crime after its commission.

The punishment for a criminal offense cannot be increased by an amendatory statutory enactment taking effect after the offense has been committed. (People v. Peach (1976), 39 Ill. App. 3d 757, 350 N.E.2d 583; Ill. Rev. Stat. 1977, ch. 131, par. 4.) The supreme court had placed a construction on the Cannabis Control Act in DuMontelle. Roth was entitled to the benefit of this construction of the Act. Otherwise, the General Assembly could effectively increase the punishment for a violation of the Act by presuming to direct the court as to the proper construction and interpretation of the Act as it would have accomplished by amending the Act to take effect retroactively. Ex post facto laws are proscribed by the Constitution of the United States and by article 1, section 16 of the Illinois Constitution of 1970. A law increasing the penalty for a crime retroactively is an ex post facto law. People v. Bowling (1976), 43 Ill. App. 3d 932, 357 N.E.2d 724; People v. Johnson (1970), 133 Ill. App. 2d 818, 263 N.E.2d 901; People v. Wyckoff (1969), 106 Ill. App. 2d 360, 245 N.E.2d 316.

While the supreme court did not discuss ex post facto application of criminal laws in Roth v. Yackley, no discussion was warranted as the amendment to the Cannabis Control Act did not purport to be a validating or curative act but a clarification of prior legislative intent. In the area of civil legislation, however, specifically those statutes dealing with property taxation, it has been uniformly held that no one has a vested right in the continuation of a particular statutory enactment so long as the effect of the legislative action does not impair the obligation of a contract. People ex rel. Eitel v. Lindheimer (1939), 371 Ill. 367, 21 N.E.2d 318; People ex rel. Toman v. B. Mercil & Sons Plating Co. (1941), 378 Ill. 142, 162-63. 37 N.E.2d 839, 850.

In Andrews v. Foxworthy (1978), 71 Ill. 2d 13, 373 N.E.2d 1332, the supreme court emphasized that the publication of assessment roles or changes in a property owner’s individual assessment was not required by any constitutional mandate. The passage of Public Act 80-1471, effective November 30,1978, prior to the decision of the circuit court in the instant cases, simply changed the law applicable to these cases by no longer requiring publication by July 10. Validating or curative acts have long been upheld in the area of property taxation. See People ex rel. Ball v. Anderson (1961), 21 Ill. 2d 396, 172 N.E.2d 760; People ex rel. Bauer v. Elmhurst — Villa Park — Lombard Water Com. (1960), 20 Ill. 2d 139, 169 N.E.2d 350; People v. Holmstrom (1956), 8 Ill. 2d 401, 134 N.E.2d 246.

The effect of the amendment to the statute was not to overrule retroactively the decision of the supreme court in Andrews v. Foxworthy; that case had been finally decided. It did change the law as it applied to similar cases between different parties that were not yet before the court. I see nothing in Andrews that suggests an intention to overrule People v. Holmstrom (1956), 8 Ill. 2d 401, 134 N.E.2d 246. In Holmstrom, the supreme court approved a validating act that cured the failure to publish assessments for 1954 and all prior years by the date required by the Revenue Act. This is precisely what the General Assembly has done here. The fact that the supreme court had ruled in another case between different parties when the Revenue Act required publication by July 10 seems to me of no consequence to the proper decision of these cases.