Chicagoland Chamber of Commerce v. Pappas ( 2007 )

SIXTH DIVISION
December 14, 2007
No. 1-05-1488
THE CHICAGOLAND CHAMBER OF )
COMMERCE, an Illinois not-for-profit ) Appeal from the
corporation; THE CHICAGO DEVELOPMENT ) Circuit Court of Cook
COUNCIL, an Illinois not-for-profit association; ) County, Illinois, County
THE BUILDING OWNERS AND MANAGERS ) Department, Chancery
ASSOCIATION OF CHICAGO, an Illinois ) Division.
not-for-profit corporation; FRANK ORSINI;)
BARBARA CELLINI; CHRIS JACKSON; )
TRACY HELDT; DAVID O’DONNELL )
EUGENE BERNSHTEYN; RONALD SMOLEN; ) No. 04 CH 16874
MARK REESE; MICHAEL HARLEY; JOHN )
CASHMAN; ALBERT HANNA; and ANTHONY )
MORELLI, )
) Honorable Sophia Hall,
Plaintiffs-Appellants, ) Judge Presiding.
)
)
)
v. )
)
)
MARIA PAPPAS, Treasurer and Collector of )
Cook County, Illinois; DAVID ORR, Clerk of )
Cook County, Illinois; JAMES M. Houlihan, )
Assessor of Cook County, Illinois; and )
ILLINOIS DEPARTMENT OF REVENUE,)
)
Defendants-Appellees. )
JUSTICE JOSEPH GORDON delivered the opinion of the court:
This case arises out of an effort by the General Assembly, in July 2004, to provide
property tax relief through the enactment of an alternative homestead exemption. 1 Plaintiffs, the
1
This alternative exemption has subsequently expired pursuant to its sunset provision, but
has been substantially reenacted, effective October 1, 2007.
No. 1-05-1488
Chicagoland Chamber of Commerce, the Chicago Development Council, and the Building
Owners and Managers Association of Chicago (organizational plaintiffs), Frank Orsini, Barbara
Cellini, Chris Jackson, Tracy Heldt, David O'Donnell, Eugene Bernshteyn, Ronald Smolen, Mark
Reese, Michael Harley, John Cashman, Albert Hanna and Anthony Morelli (individual plaintiffs)
appeal from the dismissal of their complaint for declaratory and injunctive relief against
defendants Maria Pappas, in her capacity as treasurer and collector of Cook County, David Orr,
in his capacity as clerk of Cook County, and James M. Houlihan, in his capacity as assessor of
Cook County (defendants), in which they alleged that the General Assembly's effort as enacted
was unconstitutional. Plaintiffs contend that the circuit court erred when it determined that their
complaint did not state a legally cognizable claim in attempting to demonstrate that section 15-
176 of the Property Tax Code (Code) (35 ILCS 200/15-176 (West 2004)) violated the Illinois
Constitution by vesting the power to grant property tax exemptions in local governmental units,
by authorizing a nonuniform property tax exemption, by authorizing an ultra vires "assessment
cap" rather than a genuine constitutional exemption, and by making arbitrary and irrational
distinctions among homesteads in violation of equal protection. Plaintiffs seek a remand of the
counts raising these issues to the circuit court with outright instructions to the court to grant relief
to plaintiffs. Plaintiffs further claim that the circuit court erred by failing to recognize that there
were factual issues precluding its dismissal of a count in the complaint alleging that plaintiffs' due
process rights had been violated by a retroactive increase of their property taxes in 2003. With
respect to this claim, plaintiffs ask that we remand for further proceedings in the circuit court.
For the reasons that follow, we affirm.
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BACKGROUND
The Property Tax Code provides for the assessment of property values, the determination
of the applicability of statutory exemptions, and the collection of property taxes by officials in
Illinois' 102 counties, subject to oversight by the Department of Revenue (Department) and the
Property Tax Appeal Board (Board). See 35 ILCS 200/1 et seq. (West 2004). These county
officials calculate the assessed valuation of each property by first determining whether a property
is taxable or entirely exempt and, then, if taxable by determining its fair market value. 35 ILCS
200/9-145 through 9-255 (West 2004). To equalize the assessed valuation of properties
throughout the 102 counties, the Code calls for the Department to determine an "equalization
factor" for each county following its review of assessment data from each county and its holding
of hearings. 35 ILCS 200/17-5 though 17-40 (West 2004). The assessed valuation of each
property is then multiplied by that county's equalization factor, as determined by the Department,
to produce the equalized assessed valuation of the property. 35 ILCS 200/17-5 though 17-40
(West 2004). Following the determination of a property's equalized assessed valuation, county
officials determine whether the property is eligible for any statutory exemptions. 35 ILCS
200/15-5 through 15-180 (West 2004). The actual taxable value of the property is then
determined by subtracting the statutory exemptions for which the property is eligible from its
equalized assessed value. 35 ILCS 200/15-5 through 15-180 (West 2004).
The determination of properties' taxable value is only one step in the process of
determining how much tax shall be assessed to property owners. Various statutes outside the
Code permit various taxing districts, such as municipalities, counties, townships and school
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districts, to levy taxes. See 35 ILCS 200/18-10, 18-15 (West 2004). The taxing districts submit
their levies to their respective county clerks. 35 ILCS 200/18-40, 18-45 (West 2004). The
clerks, in turn, calculate the tax rate required to meet the levies by dividing the total taxable value
of all the property in the taxing district. 35 ILCS 200/18-40, 18-45 (West 2004). As almost all
statutes authorizing the taxing districts to levy taxes include a maximum tax rate, the clerks then
ensure that the proposed tax levy will not require a tax rate in excess of the maximum rate
available by statute. 35 ILCS 200/18-105 (West 2004). The clerks then apply the tax rate to the
taxable value of each piece of property that is both within the taxing district and the clerk's
county. 35 ILCS 200/18-40, 18-45 (West 2004).
Under the Code, Cook County is divided into three assessment districts. 35 ILCS 200/9-
220 (West 2004). District One encompasses the City of Chicago; District Two covers suburban
Cook County north of North Avenue; and District Three covers suburban Cook County south of
North Avenue. 35 ILCS 200/9-220 (West 2004). As with the borders between taxing districts
and counties throughout the state, the boundaries of the various taxing districts and the three
assessment districts of Cook County are not contiguous. Moreover, some taxing districts cut
across more than one of the three assessment districts.
Cook County, pursuant to article IX, section 4(b) of the Illinois Constitution (Ill. Const.
1970, art. IX. §4(b)) has enacted an ordinance classifying real property and imposing specific
assessment rates on those different classifications (Cook County Real Property Assessment
Classification Ordinance, Cook County Code of Ordinances, ch. 74, §63 (2006)). For example,
most residences are classified as Class 2 and are assessed at 16% of their fair cash value; large
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residential apartment buildings are classified as Class 3 and are assessed at 28% of their fair cash
value; and most commercial and industrial property is placed in Class 5 and assessed at either 36
or 38% of its fair cash value. Throughout the rest of the state, however, all properties are
assessed at 33 1/3% of their fair cash value. 35 ILCS 200/9-145 (West 2004).
In July 2004, section 15-176 was added to the Code and a new exemption structure
effecting the equalized assessed value of homestead properties went into effect. See Pub. Act 93-
715, eff. July 12, 2004. Code section 15-176 provided, in pertinent part:
“(a) For the assessment years as determined under subsection (j), in
any county that has elected, by an ordinance in accordance with subsection
(k), to be subject to the provisions of this Section in lieu of the provisions
of Section 15-175, homestead property is entitled to an annual homestead
exemption equal to a reduction in the property's equalized assessed value
calculated as provided in this Section.
***
(e) The amount of the exemption under this Section is the equalized
assessed value of the homestead property for the current tax year, minus
the adjusted homestead value***.” 35 ILCS 200/15-176(a), 15-176(e)
(West 2004).
Under the new Code section, "adjusted homestead value" was defined as:
“(A) The property's base homestead value increased by 7% for each
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tax year after the base year through and including the current tax year, or,
if the property is sold or ownership is otherwise transferred, the property's
base homestead value increased by 7% for each tax year after the year of
the sale or transfer through and including the current tax year. The
increase by 7% each year is an increase by 7% over the prior year. (B)
The property's equalized assessed value for the current tax year minus (i)
$4,500 in Cook County or $3,500 in all other counties in tax year 2003 or
(ii) $5,000 in all counties in tax year 2004 and thereafter.” 35 ILCS
200/15-176(b)(2)(A), 15-176(b)(2)(B) (West 2004).
Section 15-176, in turn, defined "base homestead value" as:
"(A) Except as provided in subdivision (b)(3)(B), ‘base homestead
value’ means the equalized assessed value of the property for the base year
prior to exemptions, minus (i) $4,500 in Cook County or $3, 500 in all
other counties in tax year 2003 or (ii) $5,000 in all counties in tax year
2004 and thereafter, provided that it was assessed for that year as
residential property qualified for any of the homestead exemptions under
Sections 15-170 through 15-175 of this Code, then in force, and further
provided that the property's assessment was not based on a reduced
assessed value resulting from a temporary irregularity in the property for
that year. Except as provided in subdivision (b)(3)(B), if the property did
not have a residential equalized assessed value for the base year, then ‘base
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homestead value’ means the base homestead value established by the
assessor under subsection (c)." 35 ILCS 200/15-176(b)(3)(A) (West
2004).
The new Code section limited the full benefit of its new, alternative exemption to existing
owners or to persons who acquired a homestead through an intrafamily transfer, providing:
"(B) If the property is sold or ownership is otherwise transferred,
other than sales or transfers between spouses or between a parent and a
child, ‘base homestead value’ means the equalized assessed value of the
property at the time of the sale or transfer prior to exemptions, minus (i)
$4,500 in Cook County or $3,500 in all other counties in tax year 2003 or
(ii) $5,000 in all counties in tax year 2004 and thereafter, provided that it
was assessed as residential property qualified for any of the homestead
exemptions under Section 15-170 through 15-175 of this Code, then in
force, and further provided that the property's assessment was not based on
a reduced assessed value resulting from a temporary irregularity in the
property.
***
(h) In the event of a sale or other transfer in ownership of the
homestead property, the exemption under this Section shall remain in effect
for the remainder of the tax year in which the sale or transfer occurs, but
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(other than for sales or transfers between spouses or between a parent and
a child) shall be calculated using the new base homestead value as provided
in subdivision (b)(3)(B). The assessor may require the new owner of the
property to apply for the exemption in the following year." 35 ILCS
200/15-176(b)(3)(B), 15-176(h) (West 2004).
On July 13, 2004, Cook County opted into the new, alternative exemption scheme under
section 15-176. See Pub. Act 93-715, eff. July 12, 2004. Under that section, the new, alternative
exemption would be phased in differently between Cook County and the remaining counties in the
state. For most counties, that assessed properties annually, the exemption would apply for three
years following the next annual assessment. Section 15-176 provided:
"In counties with 3,000,000 or more inhabitants, the provisions of
this Section apply as follows:
(1) If the general assessment year for the property is 2003, this
Section applies for assessment years 2003, 2004, and 2005. Thereafter,
the provisions of Section 15-175 apply.
(2) If the general assessment year for the property is 2004, this
Section applies for assessment years 2004, 2005, and 2006. Thereafter,
the provisions of Section 15-175 apply.
(3) If the general assessment year for the property is 2005, this
Section applies for assessment years 2005, 2006, and 2007. Thereafter,
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the provisions of Section 15-175 apply." 35 ILCS 200/15-176(j)(1), (j)(2),
(j)(3) (West 2004).
However, since Cook County assessed properties triennially, the alternative exemption would be
phased in among Cook County's three assessment districts over five years. The new exemption
was applicable to Assessment District 1 between tax years 2003 to 2005; to Assessment District 2
between 2004-2006; and to Assessment District 3 between 2005-07. See 35 ILCS 200/15-
176(j)(1), (j)(2), (j)(3) (West 2004).
On October 13, 2004, the organizational plaintiffs and seven of the individual plaintiffs
filed their complaint against defendants. Following the intervention of the Illinois Department of
Revenue in the litigation, the current organizational and individual plaintiffs filed their second-
amended, five-count complaint (the complaint) on December 23, 2004.
In the complaint, the organizational plaintiffs identified themselves as lessees of office
space in Chicago. Each indicated that its lease required it to pay for any increases in property
taxes on the buildings in which its office was located.
Heldt identified herself as a homeowner in a municipality located in Washington Township
in Will County. She identified her taxing district as the Prairie State Community College District,
which levies real estate taxes on property in both Will and Cook Counties.
Orsini and Cellini identified themselves as south suburban homeowners and business
owners in south suburban Cook County. Their homes were classified as Class 2 residential
property, whereas their businesses were classified as Class 5 commercial property, for real estate
tax purposes. Both received a homestead exemption against the property taxes levied against
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their homes in tax year 2002.
O'Donnell identified himself as a homeowner in a municipality in Orland Township in
Cook County. His home was classified as Class 2-78 residential property and he received a
homestead exemption in tax year 2002.
Jackson identified himself as owning Class 5-17 commercial property in Arlington
Heights, a municipality in Wheeling Township, Cook County.
Bernshteyn identified himself as a Chicago homeowner whose home was classified as
Class 2-95 residential property. He purchased his home in June 2004 and alleged that he could
not have known that the legislature would retroactively attach tax consequences on his purchase.
Smolen identified himself as a homeowner in a municipality in Niles Township. His home
was classified as Class 2-05 property and he received a homeowner's exemption for his home in
tax year 2003. He also owned a four-unit, Class 2-11 apartment building in Lakeview Township.
Harley owned a home in a municipality in Rich Township, which he purchased in 2002.
He received a homeowner's exemption for tax year 2003, but was unable to employ the legislative
cap limiting any increases on the assessed value of his home to a maximum of a 7% increase.
Cashman owned a home in Will County. His home was situated within the boundaries of
several taxing districts that included land within both Cook and Will Counties.
Reese identified himself as a homeowner in the City of Chicago, Lake Township. He
purchased his home in 2004 and it was classified as Class 2-99 residential property.
Hanna was also a Chicago homeowner. His home was classified as Class 2-06 residential
property, and he received a homestead exemption on the property for tax year 2003. Hanna also
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owned two separate apartment buildings in Chicago, the first was classified as Class 3-97
commercial property and the second as Class 3-15 commercial property.
Finally, Morelli identified himself as a River Forest homeowner, as well as an owner of
multiple businesses in Chicago, Elmwood Park, and Des Plaines. His home was classified as
Class 2-04 residential property, and he received a homestead exemption for it in tax year 2003.
At least some of his business properties were classified as Class 5-17 properties.
In the first count of the complaint, plaintiffs alleged that the amended section 15-176 of
the Code unconstitutionally delegated the exclusive power of the General Assembly to the
counties to create an alternative homestead exemption. Similarly, in count III of the complaint,
plaintiffs alleged that the "exemption" provided in amended section 15-176 did not, in fact,
operate as an "exemption" but rather as a "property assessment inflation cap" which, they
contended, was ultra vires since the General Assembly was not constitutionally empowered to
create anything to address property tax relief except for homestead exemptions. Count II of the
complaint complained that the new exemption scheme contained in amended section 15-176
created constitutionally infirm nonuniform real property taxation in that it was only in force in
Cook County, and in that it did not apply uniformly to all places of principal residence, in
particular as between Cook County's various assessment districts and as between current owners
and subsequent homestead purchasers. Count IV complained that these nonuniformities violated
the constitution's equal protection clause and that, since section 15-176 only benefitted Cook
County, it amounted to special legislation. Finally, count V alleged that the anticipated
employment of the new, variable homestead exemption to tax year 2003 would amount to the
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implementation of retroactive legislation in violation of constitutional due process. As relief,
plaintiffs requested a declaration that amended section 15-176 was unconstitutional, null and void,
plus the recalculation of 2003 tax bills to exclude the application of the exemption under section
15-176, and to enjoin any future application and enforcement of the exemption under amended
section 15-176. Alternatively, plaintiffs requested a remand to allow for the factual development
necessary to prove their due process claim.
Defendants moved to dismiss the complaint on January 18, 2005. Defendants contended
that plaintiffs failed to state a claim in their complaint. With respect to plaintiffs' nondelegation
argument in count I, defendants argued that the General Assembly had not delegated its exclusive
power to create homestead exemptions but, rather, had merely provided an alternative method of
calculating the general homestead exemption. Defendants further argued that, in any event, the
Illinois Constitution did not bar such a delegation and that the new alternative exemption
constituted a valid local option statute. With respect to count III, defendants argued that the
constitution placed broad discretion within the General Assembly surrounding the creation and
form of homestead exemptions and that the new calculation method set forth in section 15-176
was a valid exercise of that discretion. Regarding plaintiffs' uniformity challenge, contained in
count II, defendants argued that the only promise of the uniformity clause was that properties
within the same class of property within the same taxing district be taxed uniformly. They further
contended that the clause did not require "absolute equality" in property taxation, but only
"practical uniformity." They argued that since the alternative homestead exemption applied
uniformly within the established class of homesteads in Cook County, that exemption was
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practically uniform. Addressing the claim of count IV, that the new exemption of section 15-176
violated equal protection, the defendants first argued that it was an established legal principle that
constitutional equal protection was established if a taxing scheme satisfied the uniformity clause.
They further noted that our supreme court had, in another context, previously found that any
disparity in treatment caused by the gradual phasing in of taxes across the assessment districts of
Cook County was not offensive to equal protection. Surrounding the plaintiffs' retroactivity
challenge in the complaint's final count, defendants argued that the law was not, in fact, applied
retroactively in that the equalized assessment values, from which the exemptions would be
subtracted, were not determined until after passage of section 15-176. They further contended,
after noting that there was no vested right in a particular tax rate, that any retroactive effect was
not so "harsh and oppressive" as to violate due process.
The Department, likewise, moved to dismiss plaintiffs' complaint. The Department's
arguments largely mirrored those of defendants. Significantly, however, respecting plaintiffs'
uniformity challenge, the Department argued that the Illinois Constitution did not even intend for
the uniformity clause to apply to the clause permitting the General Assembly to create homestead
exemptions. The Department further argued, with respect to plaintiffs' argument that the General
Assembly had impermissibly created an inflation cap, rather than a constitutionally permissible
homestead exemption, that any measure that reduced the assessed value of homes necessarily met
the definition of a homestead exemption and comported with the purpose of such exemptions,
namely, to prevent homeowners from losing their homes on account of steeply rising property
taxes.
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Plaintiffs filed a joint response to defendants' and the Department's motions to dismiss. By
way of summary, in support of their delegation challenge, plaintiffs argued that in article IX,
section 6, the constitutional drafters' provided that “the General Assembly by law may grant
homestead exemptions.” They contended that by employing the word “grant,” as opposed to
using a phrase such as “may authorize” or “may provide for” certain measures by law, the intent
of the drafters was to require direct action by the General Assembly rather than to delegate
vicarious action by any subordinate political bodies. Plaintiffs contended that the clause allowing
the General Assembly “to grant homestead exemptions” restricts the legislature to limited, narrow
and specific power with respect to such legislation, rather than adds to its general legislative
authority to provide homestead exemptions. Thus, the normal powers that would apply to
legislative delegation would not be operative with regard to exemption enactments.
Plaintiffs further argued that the clause allowing the General Assembly to grant homestead
exemptions must, logically, be read to restrict that power to the legislature because, since the
Illinois Constitution recognized the general taxing authority of the General Assembly where the
Revenue Article (Ill. Const. 1970, art. IX, §6) was otherwise silent, there would have been no
need to draft a specific clause empowering the legislature to create such exemptions.
To bolster their uniformity challenge, plaintiffs contended that there was no authority to
suggest that homestead exemptions were exempt from the uniformity clause and noted that that
clause itself provided that any exceptions to its uniformity requirement would be specified in that
same section. With respect to their claim that the legislature enacted a cap or deduction ultra
vires, plaintiffs argued that section 15-176's determination of the amount to be reduced from the
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equalized assessed value by looking to the increase in value of a property precluded the section
from providing a true "exemption." Regarding their equal protection claim, plaintiffs argued that
the alternative exemption benefitted exclusively Cook County while discriminating against the
remaining counties of the state. Plaintiffs particularly noted that, since the remaining counties
assessed properties annually, whereas Cook County assessed properties triennially, and the
alternative exemption only applied to annual increases in the values of homesteads in excess of
7%, the remaining counties could only receive a benefit if their homesteads experienced a 7%
increase in any given year. Plaintiffs contended that the apparent unlikelihood of that event was
demonstrated by the fact that no other county had opted into the new alternative homestead
exemption. Finally, in support of their retroactivity claim, plaintiffs, while agreeing that the
"harsh and oppressive standard" applied, argued that the applicable factors used to determine
whether retroactive taxation was impermissibly “harsh and oppressive” mitigated in their favor.
Plaintiffs contended that retroactive application of the alternative homestead exemption in section
15-176 was “harsh and oppressive” because the intent of that section was discriminatory in that it
sought to provide selective tax relief to some taxpayers while shifting the burden to others;
because the period the section would retroactively cover was significant; because taxpayers
received inadequate notice of this retroactive application; and, finally, because taxpayers
reasonably and detrimentally relied on the prior homestead exemption scheme.
The circuit court entered its written ruling on defendants' and the Department's motions to
dismiss on April 22, 2005. The circuit court rejected each of plaintiffs' contentions, and on
motion of the defendants, dismissed plaintiffs’ complaint in its entirety. Plaintiffs now appeal.
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ANALYSIS
Plaintiffs' challenges to section 15-176 are all constitutional in nature. In that regard, our
General Assembly's enactments are presumed to be constitutional. See People v. Wilson, 214 Ill.
2d 394, 398-99, 827 N.E.2d 416, 419-20 (2005) ("All statutes are presumed to be constitutional,
and the burden of rebutting that presumption is on the party challenging the validity of the statute
to demonstrate clearly a constitutional violation"); South 51 Development Corp. v. Vega, 335 Ill.
App. 3d 542, 549-50, 781 N.E.2d 528, 535 (2002) ("Statutes are presumed constitutional
[citation] ***. [Citations.] A party challenging a statute's validity bears a heavy burden of clearly
establishing that the subject legislation is unconstitutional"). Moreover, courts will construe
statutes, if possible, to be constitutional. Wilson, 214 Ill. 2d at 398-99, 827 N.E.2d at 419-20;
McKenzie v. Johnson, 98 Ill. 2d 87, 103, 456 N.E.2d 73, 81 (1983), quoting Illinois Crime
Investigating Comm'n v. Buccieri, 36 Ill. 2d 556, 561, 224 N.E.2d 236, 239 (1967) (" 'if their
construction is doubtful, the doubt will be resolved in favor of the validity of the law attacked' ");
South 51 Development Corp., 335 Ill. App. 3d at 549-50, 781 N.E.2d at 535 ("we have a duty to
sustain legislation whenever reasonably possible"). In reviewing the constitutionality of a statute,
"no power is vested in us to inquire into or pass upon the wisdom or the desirability of the public
policy which the statute proclaims. *** Our inquiry is [only] whether the legislation assailed
squares with constitutional guaranties and, conversely, whether it violates constitutional
prohibitions." People ex rel. Bernat v. Bicek, 405 Ill. 510, 516-17, 91 N.E.2d 588, 591 (1950).
See also Peabody v. Russel, 301 Ill. 439, 442, 134 N.E.2d 148 (1922) ("The constitution of this
State is a limitation upon the power of the legislature. Where the constitutional provisions are not
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applicable no limitation exists upon the legislative body"). We particularly perceive the above
principles to be important in our assessment of the constitutionality of revenue acts in light of the
fact that it "was *** clearly a concern of [the drafters of the Revenue Article in our state
constitution] that through court construction 'narrow' and 'unintended' limits might be placed
upon the General Assembly's power." Hoffmann v. Clark, 69 Ill. 2d 402, 423, 372 N.E.2d 74, 84
(1977).
I. Preliminary Procedural Matters
As a preliminary matter, we first address defendants' and the Department’s motions to
dismiss the instant appeal, raised in their briefs, for multiple failures by plaintiffs' three law firms
to comply with the supreme court rules addressing the required contents of an appellant's brief, in
spite of their tardy filing of their opening brief instanter and their later submission of what they
designated as a corrected brief. Defendants point out that: plaintiffs never address the standard
of review to be applied in their brief; plaintiffs provide a points and authorities section that does
not specifically enumerate on which pages of the brief the various points and authorities may be
found; plaintiffs' statement of facts does not appropriately cite to the record and is largely
argumentative; and, finally, plaintiffs' appendix to their brief does not contain a table of contents
or a copy of the order appealed from. See 188 Ill. 2d R. 341(e)(1), (e)(3), (e)(4)(ii), (e)(6); see
also 210 Ill. 2d R. 342(a). We would tend to agree with defendants' assessment of plaintiffs'
compliance with our supreme court rules. Additionally, we note that, in spite of the record
indicating that a hearing was held on the motion to dismiss, plaintiffs have failed to include a
transcript of that hearing, a stipulated statement of facts addressing the events at the hearing, or a
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bystander's report, though we can only assume that a record of such a hearing would have proved
helpful in our review. See Anthony v. Gilbrath, 396 Ill. 125, 128, 71 N.E.2d 84, 85-86 (1947)
("In view of this recital in the order allowing attorney's fees to appellant for services rendered on
the 'hearing,' it cannot be assumed that there was no such hearing. From this order it definitely
appears that there was a hearing of some kind. The record itself cannot be disputed or
disregarded. If there was such a hearing, and from the order we must conclusively presume there
was, then the burden was on appellant to show what transpired in the hearing by preserving a
report of proceedings and making it a part of the record on appeal"); LaPlaca v. Gilbert & Wolf,
Inc., 37 Ill. App. 3d 259, 260-61, 345 N.E.2d 774, 775 (1976) (holding that appellants have a
duty to "present a record *** which fairly and fully presents all matters necessary and material for
a decision of the question raised"). In light of these multiple instances of noncompliance by
plaintiffs with the rules of appellate procedure, we would be inclined to agree that dismissal
would not be an inappropriate consideration. See Epstein v. Galuska, 362 Ill. App. 3d 36, 42,
839 N.E.2d 532, 537 (2005) ("Where an appellant's brief fails to comply with supreme court
rules, this court has the inherent authority to dismiss the appeal"). However, since the issues
raised are of significant public interest, the record, though incomplete, appears sufficient to allow
us to evaluate plaintiffs' claims, and the manifest efforts of the parties otherwise demonstrate
serious thought and treatment; we will consider the issues raised on their merits.
II. Nondelegation Doctrine Separation of Powers
Plaintiffs’ first specific contention on appeal is that the legislature, through section 15-176,
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improperly delegated a power granted exclusively to it by the Illinois Constitution, namely, the
power to grant homestead exemptions to the counties in violation of the principle of the
separation of powers. Their first and primary attempt at doing so is by claiming that any
delegation by the General Assembly of any amount of authority surrounding homestead
exemptions would be a delegation in derogation of the separation of powers clause because the
Illinois Constitution exclusively vests the authority to grant such exemptions in the General
Assembly. Ill Const. 1970, art. IX, §6 ("The General Assembly by law may grant homestead
exemptions or rent credits"). Plaintiffs next claim that our approval of this legislative delegation
would open a Pandora's box and encourage the legislature to enact measures that would allow
local governmental units to engage in unconstitutional activity such as invidiously discriminating
against their citizens. Finally, plaintiffs argue that any legitimate delegation of authority to a local
governmental unit does not allow that governmental unit to take actions that have effects beyond
its boundaries, which, plaintiffs contend, the present delegation allows. We, however, disagree
with plaintiffs' contentions.
Plaintiffs urge that section 15-176 improperly delegates to the counties a power
exclusively vested in the legislature. Plaintiffs contend as they did in the circuit court that the
power to exempt is nondelegable. They rely on the language of article IX, section 6 : “The
General Assembly by law may grant homestead exemptions or rent credits.” Ill Const. 1970, art.
IX, §6. They contend that “by law” refers to statutes and the term “grant” limits the power to
exempt only to the immediate and direct initiatives of the legislature and not to any enactments or
initiatives of its political subdivisions or delegees. They contend that this interpretation is
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consistent with an overall intent by the constitutional convention to have a unitary standard
property tax system undifferentiated among the various counties. We disagree at several levels.
As a matter of general principle, the constitutional rule is that power granted to the
legislature cannot be delegated. See Bicek, 405 Ill. at 517, 91 N.E.2d at 592. Thus, the
“ ‘[l]egislature must decide what the law shall be, and the power delegated to that department by
the constitution cannot be again delegated to any other body or authority.’ ” See Bicek, 405 Ill. at
517, 91 N.E.2d at 592, quoting People ex rel. Breckon v. Board of Election Commissioners, 221
Ill. 9, 19, 77 N.E. 321, (1906). However, as part of its legislative power, the General Assembly
may delegate the administration of its laws to other bodies and may even grant limited discretion
to those bodies in implementing the General Assembly’s legislation. See Reif v. Barrett, 355 Ill.
104, 132-33, 188 N.E. 889 (1933) (“Legislative power is authority to pass rules of law for the
government and regulation of people or property. Where the legislative body has the power to
enact a law as a necessary adjunct to such power it has the legal right to adopt a procedure for the
administration of such law. It may do this through commissions, or through boards, and it may
grant to such administrative bodies certain authority and certain powers in keeping with the spirit
of the act for the practical application and operation of the law. It may even invest them with
certain discretion to be exercised by them in the discharge of their functions as ministerial or
administrative agencies. Such exercise of discretion may be found in laws governing the
assessment of taxes, the Industrial Commission, and different examining boards passing upon
applications of those desiring to practice professions. It is impractical for legislative acts
providing for the health, welfare, protection, and necessities of the people through boards or
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commissions, to prescribe every detail of the duties to be performed by such boards or
commissions. Such powers, when granted, are neither judicial nor legislative. *** The discretion
granted is not a judicial or legislative discretion but a ministerial discretion falling within the
doctrine of ejusdem generis as to powers conferred by the act”); accord Meadowlark Farms, Inc.
v. Illinois Pollution Control Board, 17 Ill. App. 3d 851, 855, 308 N.E.2d 829, 832 (1974), citing
Reif, 355 Ill. at 132-33, 188 N.E. 889; Bicek, 405 Ill. at 517, 91 N.E.2d at 592 (“Although the
General Assembly cannot divest itself of its inherent function to decide what the law shall be, it
may authorize others to do those things which it might properly but cannot understandingly or
advantageously do itself”).
Thus, delegation would only be improper should the General Assembly allow the body to
which it delegates authority so much discretion that it may, in effect, make the law itself. See
Bicek, 405 Ill. 2d at 517, 91 N.E.2d at 592 (“An act which vests any person with arbitrary
discretion to determine what the laws shall be in a particular situation is invalid”); accord Rogers
v. Desiderio, 274 Ill. App. 3d 446, 449, 655 N.E.2d 930, 932 (1995). The General Assembly
may avoid this result by limiting the authority of the body to which the General Assembly
delegates some of its own power through the provision of guidelines and standards for the body
to follow. See East St. Louis Federation of Teachers, Local 1220, v. East St. Louis School
District No. 189 Financial Oversight Panel, 178 Ill. 2d 399, 423, 687 N.E.2d 1050, 1063-64
(1997) (“Proper delegation of authority must provide sufficient standards to guide the
administrative body in the exercise of its functions. [Citation.] However, ‘[a]bsolute criteria
whereby every detail necessary in the enforcement of a law is anticipated need not be established
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by the General Assembly. The constitution merely requires that intelligible standards be set to
guide the agency charged with enforcement.’ [Citation.]”); People ex rel. Chicago Dryer Co. v.
City of Chicago, 413 Ill. 315, 321, 109 N.E.2d 201, 204 (1952) (“Overall, the fundamental
distinction lies between a delegation of power to make the law, which involves a discretion of
what the law shall be, and conferring authority or discretion as to its execution to be exercised
under and in pursuance of the law. The first cannot be done; the latter is unobjectionable”);
South 51 Development Corp., 335 Ill. App. 3d at 550, 781 N.E.2d at 535 (“The law is well
settled that the General Assembly may grant and administrative agency discretionary powers to
decide an issue provided it establishes standards under which the agency’s discretion may be
exercised”). Under these considerations the delegation effected by section 15-176 is neither
excessive nor otherwise improper.
The constitutional grant of power to the General Assembly to create homestead
exemptions by law does not lead to the conclusion that the General Assembly may not delegate
any of its authority on the subject. As demonstrated above, the General Assembly's authority to
incrementally delegate its own authority in furtherance of its enacted legislation is part and parcel
of its ability to pass any law on any given subject. See Reif, 355 Ill. at 132-33; Meadowlark
Farms, 17 Ill. App. 3d at 855, 308 N.E.2d at 832. The body so empowered by the General
Assembly does not exercise any power but that given to it by the legislature and essentially
amounts to a tool in the hands of the legislature. Thus, even if the power to legislate on a subject
is limited exclusively to the General Assembly, and, of course, in any event, as all concede, the
power to legislate is generally restricted to that body, the General Assembly may still delegate its
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implementation to other bodies. This conclusion is further borne out by prior judicial approval of
limited delegations by the General Assembly of other powers that have been recognized as resting
exclusively with the legislature. Compare Ill. Const. 1970, art. IX, §1 ("The General Assembly
has the exclusive power to raise revenue by law except as limited or otherwise provided in this
Constitution. The power of taxation shall not be surrendered, suspended, or contracted away"),
with Painter v. Board of Trustees of the Town of Lyons, 161 Ill. App. 3d 26, 30, 513 N.E.2d
928, 930 (1987) ("The supreme court specifically found that this funding procedure did not
violate the 1970 Constitution, noting that the General Assembly is constitutionally unrestricted in
the manner it chooses to delegate the power to tax and in the manner it directs a local government
to exercise that responsibility"); see also Forest Preserve District v. Brown Family Trust, 323 Ill.
App. 3d 686, 691, 753 N.E.2d 1110, 1114 (2001), quoting Village of Hyde Park v. Oakwoods
Cemetery Ass’n, 119 Ill. 141, 149, 7 N.E. 627 (1886) (" 'The necessity or propriety of exercising
the right of eminent domain is a political question, -one which belongs exclusively with the
legislature to determine.' [Citation.] However, the legislature may delegate the power of eminent
domain to other governmental bodies").
Appellants contend that notwithstanding the limited delegation otherwise permissible
under the general powers of the General Assembly, such delegation has been particularly
circumscribed under the provisions of article IX, section 6, of the 1970 Constitution. Ill. Const.
1970, art. IX, §6. They contend that the use of the terms “by law may exempt” and “by law may
grant” in that provision is intended to vest the power to exempt solely in the General Assembly
and to restrict the power to delegate beyond any restrictions applicable to ordinary legislative
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delegation. This contention is unsupported textually or otherwise. Appellants provide no
underlying rationale to explain why, aside from purported arbitrary design, there should be greater
concern with respect to the General Assembly’s power to delegate its exemption authority beyond
the latitude otherwise permissible in the delegation of its other legislative powers, under
guidelines which have been held not to conflict with the general principle that the power invested
in the legislature by the constitution is nondelegable. Bicek, 405 Ill. 2d at 517, 91 N.E.2d at 592;
Chicago Dryer Co., 413 Ill. at 321, 109 N.E.2d at 204. We further note that arguably the use of
the operative terms, “by law may grant” and “by law may exempt,” is particularly appropriate to
exemptions that instead of broadly providing for rights and duties focus upon singular entities and
act to identify and cull certain properties for specific tax relief.
Moreover, the attribution to the language of section 6 of article IX of the 1970
Constitution, an intent to limit or proscribe legislative delegation with respect to exemptions
beyond the guidelines that control such delegation in other legislative areas is inconsistent with
the following comments of John Karns, the chairman of the Committee on Revenue and Finance
Proposal Number 2 during the 1970 Constitutional Convention in support of the adoption of
current exemption provided in article IX section 6. See Sixth Illinois Constitutional Convention,
May 22, 1970 to July 9, 1970, at 2080 (June 25, 1970) (statements of Delegate Karns).
“Mr. President, I was, I suppose, the principal proponent of the sentence that the
General Assembly may grant homestead exemptions and rent credits, and I would
like to speak against Delegate Garrison’s amendment.
I think in 1870 when our present constitution was adopted and did not
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provide for a homestead exemption, it was not contemplated that the – the heavy
burden of taxation on residential real estate. The language does not require or
mandate any particular form of exemption but is a rather broad grant of power to
the General Assembly to devise an equitable system of exemptions of rent credits.
I would point out to the Convention that when you limit the credit to the
elderly needy, there are many, many people in our society today that are not
elderly but are needy. I submit that the General Assembly might want to provide
some relief to widows, regardless of age, with families.
This provision is a flexible one, and I think in a day and age where the
burden of taxation is so great on residential real estate, it should be in the
constitution granting this power to the General Assembly.” Sixth Illinois
Constitutional Convention, May 22, 1970, to July 9, 1970, at 2080 (June 25,
1970) (statements of Delegate Karns).
There would appear to be no reason why a provision so concerned with operational flexibility in
addressing changing social concerns as reflected in Delegate Karns’ statements would be entirely
inflexible with respect to the General Assembly’s ability to exercise its powers to delegate to
those bodies most capable of achieving the intended legislative ends.
Moreover, even if credence were given to the contention that the constitution intended to
impose more severe limitations on delegation involving exemptions than delegations of other
legislative power, that limitation would not be inconsistent with the granting of a local option,
since the local option does not delegate any discretion in structuring or formulating the operative
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rule of law which is wholly crafted by the legislature. It is not a delegation of the type involved in
the delegation of a right to draft specific rules and regulations to implement a general policy
formulated by the legislature. There is no designation of any legislative rule-making authority,
i.e., authority to formulate and draft a rule, but only a “take it or leave it option” of a fully drafted
and fully formulated piece of legislation.
This kind of delegation has repeatedly been approved of and found not to violate the non-
delegation doctrine or separation of powers. See Hoogasian v. Regional Transportation
Authority, 58 Ill. 2d 117, 128-29, 317 N.E.2d 534, 540-41 (1974). There our supreme court
declared:
“Plaintiffs next argue that the Act improperly delegates legislative authority
by permitting the voters to determine whether or not the RTA should be created.
In this regard, emphasis is placed on the language of the Act which refers to
electors approving ‘creation’ of the Authority which is to be ‘established’ only
upon a favorable vote.
Although the power to make laws is vested in the legislature, which may
not delegate that power to other bodies, authorities or persons (People ex rel.
Chicago Dryer Co. v. City of Chicago, [413 Ill. 315, 109 N.E.2d 201 (1952)];
Sheldon v. Hoyne, [261 Ill. 222, 103 N.E.2d 1021 (1913)]; Rouse v. Thompson,
[228 Ill. 522, 81 N.E. 1109 (1907)]), it has long been recognized that the
legislature may properly enact a complete law which is to become operative upon
the happening of a specified contingency such as the affirmative vote of the people
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in the area or district to be affected. (People v. Chicago Transit Authority, 392 Ill.
77, 64 N.E.2d 4 (1945); People v. Kelly, [357 Ill. 408, 192 N.E.2d 372 (1934)];
People ex rel. Thomson v. Barnett, [344 Ill. 62, 176 N.E. 108 (1931)]; People v.
McBride, [234 Ill. 146, 84 N.E. 865 (1908)]; Home Insurance Co. V. Swigert,
[104 Ill. 653 (1882)]; Erlinger v. Boneau, [51 Ill. 94 (1869)]; People ex rel.
Wilson v. Salomon, [51 Ill. 37 (1969)]). The above-cited authorities support the
conclusion that the RTA Act did not improperly delegate legislative powers to the
voters. When the Act became effective on December 12, 1973, all of its terms
were fixed and complete with nothing being left to the voters to decide as to the
substance of the Act. The one contingency which the legislature determined must
be met prior to the time the Authority was to be established and become operative
was a favorable vote of the electors in the six northeastern counties to be served
by the proposed authority.” Hoogasian, 58 Ill. 2d at 128-29, 317 N.E.2d at 540-
41.
Accord Chicago Dryer Co., 413 Ill. at 320, 109 N.E.2d at 204 (“it is also recognized that the
ultimate operation of law may by its own terms be made to depend upon a contingency, such as
an affirmative vote of the electors in a given district or upon the action of some municipality,
commission, or other public agency named in the act”); Rogers, 274 Ill. App. 3d at 449, 655
N.E.2d at 932 (“The supreme court has determined that the legislature does not impermissibly
delegate lawmaking power when it grants to voters the privilege of organizing school districts
under statutes which specify with particularity the rules and conditions under which the
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organization may be made”); Malito v. Marcin, 14 Ill. App. 3d 658, 660, 303 N.E.2d 262, 265
(1973) (stating, where local voters voted to preclude the sale of alcohol in their precinct, as they
were permitted to do under the Liquor Control Act enacted by the General Assembly, “The
voters were not asked to decide what the law should be within the precinct, but whether a law
already enacted by the legislature should become operative within that precinct. The voters
possessed no discretion to do anything beyond that”); see also Reece v. Board of Education of
the City of Chicago, 328 Ill. App. 3d 773, 783-84, 767 N.E.2d 395, 404 (2002) (General
Assembly may delegate authority to local school boards to waive certain statewide statutory
school board mandates).
Additionally, the local option available under section 15-176 does not permit rejections of
any homestead exemption, but only permits a narrow window of choice between the existing
homestead exemption fully fleshed out by the General Assembly under section 15-175 and the
fully fleshed-out alternative exemption under section 15-176. Thus the local option embodied in
section 15-176 gives full reflection of the design and intent of the legislature with regard to the
exercise of its constitutional authority to provide homestead exemptions.
In effect each county is asked to determine whether the economic needs of its
homeowners and their corresponding impact on neighborhood stability to which the alternative
exemption under section 15-176 is targeted are confronted in their local communities so as to
warrant its adoption. The alternative would be to burden the legislature to survey and conduct
studies on its own in order to determine the local conditions of each of 102 counties within the
state of Illinois and surmise which and whether any of such counties require the relief which
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section 15-176 is designed to provide. In that sense each county is a tool of the legislature to
implement policies and laws that the legislature has devised and approved of. The counties have
no discretion to engage in any lawmaking of their own beyond their empowerment to select
between two legislatively crafted and developed alternatives.
Also we cannot be driven by plaintiffs’ arguments surrounding possible further delegations
by the General Assembly, beyond the alternative homestead exemption at issue, were we not to
hold that section 6 of article IX (Ill. Const. 1970, art. IX, §6) precluded any delegation of
authority by the legislature. The plaintiffs hypothesize scenarios in which so many different
alternative homestead exemptions would be allowed that a wholly nonuniform, completely
unworkable system of taxation would come into being, or where the legislature would delegate its
power to exempt properties used for religious purposes and local entities would invoke that
authority to discriminate against unfavored groups. As stated by our supreme court in Hoffmann
v. Clark, 69 Ill. 2d 402, 424, 372 N.E.2d 74, 84-85 (1977):
“We cannot read into the Constitution a limitation which it does not contain solely
to prevent some possible future abuse. Whether the principle of classification may
at some time in the future be unwisely applied is not of judicial concern. The
formation of tax policy although it may be foolish and unwise, so long as it
remains within constitutional limits, is peculiarly within the province of the elected
representatives of the People.”
We generally find that such speculative projections and concerns exist more in the
universe of advocacy rather than in actuality. We have no reason to question at this time that the
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legislature will act responsibly and can well cope with any such legislative excess if and when it
may arise.
Likewise, in considering whether the grant of a local option constituted an undue
delegation simply because it may have extraterritorial impact, insofar as it extends to a local
taxing district which may intersect and overlap with collar counties which did not adopt the
alternative exemption, we cannot rule that a county's selection of the alternative homestead
exemption may impermissibly have extraterritorial effect in the form of resulting different tax rates
in other counties. Plaintiffs contend that valid delegations of discretion by the legislature to
smaller governmental units only allow those units to address purely local questions with
corresponding exclusive local effect. But, we find this contention belied by the case in
Hoogasian, 58 Ill. 2d at 134-35, 317 N.E.2d at 543-44. In that case, after addressing a number of
delegation challenges to the Regional Transportation Authority Act which, among other things,
permitted the RTA to levy taxes and issue bonds, the court considered its plaintiffs' allegation that
the authority granted to the RTA would undercut other municipalities' attempts at providing
public transportation as well as other existing public transportation districts. Hoogasian, 58 Ill.
2d at 134, 317 N.E.2d at 543. The Hoogasian plaintiff contended that by this delegation of
authority to the RTA, the General Assembly actually was impermissibly de facto amending the
Greater Lake County Mass Transit Act, which authorized the creation of the other local
transportation districts, without expressly amending the statute as constitutionally mandated.
Hoogasian, 58 Ill. 2d at 134, 317 N.E.2d at 543. In responding to this argument, our supreme
court stated:
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"It may well be that the establishment of the RTA will ultimately have an
effect on the programs, plans and policies of units of local government
such as the Greater Lake County Mass Transit District. However, we are
unable to concur with plaintiffs that this is constitutionally objectionable."
Hoogasian, 58 Ill. 2d at 135, 317 N.E.2d at 544.
III. Uniformity
Section 4(a) of article IX provides that, “Except as otherwise provided in this Section,
taxes upon real property shall be levied uniformly by valuation ascertained as the General
Assembly shall provide by law.” Ill. Const. 1970, art. IX, §4(a). This clause is intended to
prevent different tax treatment among similar classes of property within a taxing district. See
Kankakee County Board of Review v. Property Tax Appeal Board, 131 Ill. 2d 1, 20-21, 544 N.E.
2d 762, 771 (1989) ("The principle of uniformity of taxation requires equality in the burden of
taxation. [Citation.] This court has held that an equal tax burden cannot exist without uniformity
in both the basis of assessment and in the rate of taxation. [Citation.] The uniformity requirement
prohibits taxing officials from valuating one kind of property within a taxing district at a certain
proportion of its true value while valuating the same kind of property in the same district at a
substantially lesser or greater proportion of its true value. [Citations.]"); Rodgers v. Whitley, 282
Ill. App. 3d 741, 751, 668 N.E.2d 1023, 1031 (1996) ("a claim that a statute is unconstitutional
under the uniformity of taxation clause must allege a disparate valuation or rate of taxation for
similar properties within individual taxing districts"); People ex rel. Hawthorne v. Bartlow, 111
Ill. App. 3d 513, 520, 444 N.E.2d 282, 287 (1983) ("The rule of uniformity which has developed
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from article IX, section 4(a), requires that one person shall not be burdened with a greater
proportion of the taxes, according to the value of his property, than another. It does not permit
valuation by taxing officials of property in the same taxing district at a certain proportion of its
true value while other property in that district is valued at a substantially lesser or greater
proportion").
Plaintiffs recognize that exemptions by their very nature cannot be assessed in uniformity
with similar properties. They acknowledge that the very designation of an exemption
disassociates properties subject to the exemption for assessment and taxation purposes from
properties that would otherwise be similar but for the characteristics that they bear to invoke the
exemption. They, nevertheless, contend that they are still subject to the uniformity provisions of
section 4(b) applicable to the uniformity to which the classification of property is made subject,
namely that there must be uniformity within the class of homestead properties. See Ill. Const.
1970, art. IX, §4(b). They contend that section 4(a) (Ill. Const. 1970, art. IX, §4(a)) extends to
the homestead exemption clause under section 6 (Ill. Const. 1970, art. IX, §6) to the extent that
“this or any homestead exemption must be uniform within the class of homestead property ***
that is the class on which the exemption operates.” On this supposition, they argue that section
15-176 of the Code violates the requirement of uniform taxation within the “class” of similar
homestead property in the following ways: first, the alternative exemption is nonuniform
geographically in that not all counties are covered, nor is treatment uniform for homestead
owners in a taxing district overlapping between Cook County and the collar counties; second, the
alternative exemption is nonuniform as between new owners of property and established owners
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of property or owners who have received property through an intrafamily transfer; third, plaintiffs
contend the alternative exemption is nonuniform in that younger persons and senior citizens who
do not qualify for the senior freeze exemptions receive a larger benefit over those citizens who
qualify for the senior freeze exemption (35 ILCS 200/15-172 (West 2004)). They further point to
the disparity resulting from the staggered effect of the quadrannual assessment to which the
alternative exemption looks in determining the base price.
As shall be discussed below, plaintiffs’ contentions fail on two grounds: first, the
assumption that exemptions still remain subject to the strictures of uniformity under section 4(a)
is not well-founded; second, even if homestead exemptions were still subject to uniformity
requirements of section 4(a), those requirements are not absolute and would flex to accommodate
the disunity inherent in the constitutional grant of the power to exempt.
Plaintiffs contend that any exception to the uniformity strictures of section 4(a) must be
contained or set forth within that specific section pursuant to its specific provision that states that
uniformity is required in taxation “[e]xcept as otherwise provided in this section.” Ill. Const.
1970, art. IX, §4(a). Plaintiffs assert that since power to exempt homesteads is provided in a
different section, namely, section 6 of article IX (Ill. Const. 1970, art. IX, §6), rather than section
4(a) (Ill. Const. 1970, art. IX, §4(a)), uniformity is required. We disagree. Plaintiffs do not
support that argument with any citation to authority and more overridingly ignore the basic
purport of the term “exemption,” which denotes an intent to except and exclude. To exempt
property, in its statutory context, means to except it from the general strictures of the assessment
process, which would include the strictures of uniformity as well. As shall be demonstrated, to
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harness exemptions to uniformity requirements of section 4(a) would undermine and defeat the
basic policy, purpose, and function of section 6 as articulated on the convention floor and by our
supreme court, which is primarily to provide tax relief where needed to protect homeowners from
displacement resulting from the rapid appreciation of market property values and the
corresponding increase in property taxes. See McKenzie, 98 Ill. 2d at 107, 456 N.E.2d at 83 ("At
the very least article IX, section 6, authorizes the legislature to grant exemptions to specific
classes of needy homeowners who are 'threatened with the loss of their residence through high
property taxes.' [Citation.]"); Proviso Township High School District No. 209 v. Hynes, 84 Ill. 2d
229, 240, 417 N.E.2d 1290, 1295 (1980) ("the committee's concern was not with persons or
entities who owned residential property solely as an investment, but with owner-occupants who
were threatened with the loss of their residence through high property taxes"); Doran v.
Cullerton, 51 Ill. 2d 553, 559, 283 N.E.2d 865, 867 (1972) (upholding a homestead exemption
applicable to seniors after the effective date of the 1970 Constitution and stating: "In these times
of increasing real estate taxation and rising prices, the benefits conferred by many retirement plans
may not provide adequate income"). Toward this end, the drafters of our state constitution
attempted to impart for passage by the people a “ ‘flexible’ ” provision delivering a “ ‘broad grant
of [authority] to the General Assembly.’ ” McKenzie, 98 Ill. 2d at 107, 456 N.E.2d at 83,
quoting 3 Proceedings of the Sixth Constitutional Convention 2080-81 (statements of Delegate
Karns).
In fact, in its explanation of the provision to the voters prior to the referendum on the
1970 constitution, the convention asserted that the homestead exemption provision “ ‘permits tax
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relief or tax credit to people who own or rent their homes. Such relief may be limited to the
elderly or needy, or, at the discretion of the General Assembly, may be granted to everyone.’
[Citation].” (Emphasis omitted.) Proviso Township, 84 Ill. 2d at 240, 417 N.E.2d at 1295; see
also McKenzie, 98 Ill. 2d at 108, 456 N.E.2d at 83 ("it was the intention of the delegates by
adopting article IX, section 6, to grant the legislature broad powers to fashion homestead
exemptions that would promote other legitimate social policies as well, such as rewarding the
patriotic service of veterans 'who have been obliged to drop their own affairs to take up the
burdens of the nation.' [Citation.]"); Doran, 51 Ill. 2d at 559, 283 N.E.2d at 867. This mandate
requires broad latitude to meaningfully pinpoint and target the exemption to provide relief to
properties most suitable to accomplish the social, economic and humane purposes for which the
power to exempt was designed.
This result would by no means permit exemptions to be extended arbitrarily or
discriminatorily without constitutional scrutiny or control. Although not subject to the uniformity
requirements of section 4(a), such exemptions would nevertheless remain subject to the
uniformity imposed under the equal protection doctrine. See U.S. Const., amend XIV; Ill. Const.
1970, art. I, §2. However, as shall be more fully discussed below, to hamstring the grant of such
exemptions by tying them to the relatively rigid requirements of uniformity under section 4(a), as
opposed to the more flexible rational basis standard under the equal protection clause, would
contravene the policy and purpose of the exemption clause in facilitating tax relief where a special
need arises.
The rationale for this conclusion is reflected in some of the very disparities which
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plaintiffs use to demonstrate the would-be breach of the uniformity requirement of section 4(a).
As noted, plaintiffs contend that the alternative exemption creates disparities between new
resident owners and old resident owners; between intrafamily purchases and arm’s-length
purchases outside the family; and between senior citizens who are eligible for the senior freeze
under section 15-172 of the Code (35 ILCS 200/15-172 (West 2004)) and those who are not.
In each of these instances it is apparent that the nonuniformity is mandated by the
expressed policy and purpose of the homestead exemption to provide tax relief where most
needed for the public good, without necessitating that the exemption be available to properties
where the need for its remedial effect is either absent or less acute. As articulated by the United
States Supreme Court in Nordlinger v. Hahn, 505 U.S. 1, 12, 120 L. Ed. 2d 1, 14, 112 S. Ct.
2326, 2333 (1992), the provision of the homestead exemption is designed to avert the
displacement of lower income families by “forces of gentrification.”
This was the very basis upon which the distinction was made in Proviso Township, 84 Ill.
2d at 240, 417 N.E.2d at 1295, between residential property owned solely as an investment but
not owner-occupied and homestead property which was owner-occupied, in order to protect
against ultimate dispossession by occupants in an appreciating market who could not be able to
keep up with the increasing tax burden. Just as in Proviso, the availability of the homestead
exemption is not challengeable on the grounds that it was nonuniform with nonhomestead
property. See Proviso Township, 84 Ill. 2d at 240, 417 N.E.2d at 1295. So too, even where the
property is owner-occupied and therefore meets the broad definition of homestead, the uniformity
clause should not be available to prevent further delineations based upon the extent of need and
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thus defeat the overall policy upon which the constitutional drafters premised the availability of
the exemption in the first instance.
Demonstrably, the homestead exemption is more appropriate for less recent ownership
than for new ownership since it is designed to ameliorate the economic pitfalls experienced by
older residents who initially purchased property at a price commensurate to their income but who
because of rapid escalation in price, find that the property appreciated far in excess of their
income level and their ability to pay the increased taxes. To that extent, as articulated in
Nordlinger, the State can “legitimately *** conclude that a new owner at the time of acquiring his
property does not have the same reliance interest warranting protection against higher taxes as
does an existing [one].” Nordlinger, 505 U.S. at 12, 120 L. Ed.2d at 14, 112 S. Ct. at 2333. It is
the old owner who may have purchased the property which was priced at a price commensurate
with his income who is going to be displaced by the appreciation of the property where his
income level is left in the dust.
Likewise, there is far less need to extend the homestead exemption to instances where
property is acquired by a stranger rather than through intrafamily transfers between spouses or
parents and children, which simply involves the shifting of funds within a single close family unit,
often in the context of children helping to finance the acquisition of proper care for aging parents
through a transfer of title to the family home.
Similarly, plaintiffs’ contention that the alternative exemption violates section 4(a) insofar
as it does not apply to senior citizens eligible for the senior freeze exemption under section 15-
172 of the Code (35 ILCS 200/15-172 (West 2004)) completely ignores the basic purpose and
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policy underlying the grant of homestead exemptions as envisioned by the drafters of the
constitution, which as recited in McKenzie authorizes the legislature to grant exemptions to
specific classes of needy homeowners threatened with loss of homes by high property taxation.
McKenzie, 98 Ill. 2d at 82-83, 456 N.E.2d at 105-06. Obviously, for those who are eligible for a
senior freeze exemption under section 15-172 (35 ILCS 200/15-172 (West 2004)), there is less
need for the enhancement of the alternative exemption and there would be no need to allow them
to stack these exemptions.
To apply the strictures of section 4(a) uniformity as urged by the plaintiffs would
demonstrably obstruct, if not totally preclude, the extension of any homestead exemptions. Such
relief by exemption depletes the tax base and therefore must be measured out carefully so as not
to unnecessarily shift the burden to other taxpayers by depletions that are not otherwise
warranted. Exemptions therefore cannot by their very nature be extended to all properties
bearing such similar general assessment characteristics without reflecting the requisite degree of
economic need and social benefit that the exemptions are designed to subserve. If anything,
plaintiffs would postulate that the requirements of uniformity under section 4(a) would not permit
reasonable delineations between greater and lesser economic and social needs, which are the
predicates established for the extension of exemptions in the first place. Plaintiffs would require
that if basic assessment characteristics are similar, exemptions be extended on an all-or-nothing
basis, as would be the case under their interpretation of the uniformity requirements under the
classification provision of section 4(b).
The conclusion, which would recognize a constitutional intent to alleviate exemptions
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from the hobbles of section 4(a) uniformity, is, as already pointed above, fully consistent with the
pronouncements of McKenzie, Doran, and Proviso Township, and is even more explicitly
supported by the decision of our supreme court in Grais v. City of Chicago, 151 Ill. 2d 197, 601
N.E.2d 745 (1992). In Grais, the city of Chicago passed an ordinance creating a special service
area/taxing district to pay for improvements in public transportation in the central area of the city.
Grais, 151 Ill. 2d at 203-04, 601 N.E.2d at 748-49. The Grais plaintiff filed suit contending,
among other things, that the creation of the special service area created nonuniformity in taxation.
Grais, 151 Ill. 2d at 208, 601 N.E.2d at 751. Our supreme court rejected this challenge, however.
Grais, 151 Ill. 2d at 208, 601 N.E.2d at 751. The Grais court observed that the local special
service area power established in another article of the constitution was an intended departure
from the requirements of the uniformity clause and specifically rejected its plaintiff's claim that the
uniformity clause must predominate over the special service area clause. Grais, 151 Ill. 2d at 208,
601 N.E.2d at 751. The court further noted, "[i]ndeed, if complete uniformity of property taxes
were required, it would be impossible for local governments to create special service areas."
Grais, 151 Ill. 2d at 208, 601 N.E.2d at 751. Plaintiffs here, however, argue that Grais has no
instant application on the grounds that the special service area power is in another article of the
constitution, whereas the homestead exemption power is in the same article as the uniformity
clause. We are unpersuaded by this argument, however. What we find most significant is that,
like the special service area power in Grais, the homestead exemption clause is a freestanding
grant of legislative authority, irrespective of wherever it may have been placed within the
constitution. Moreover, we discern that if the uniformity clause were as universal and ironclad as
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plaintiffs claim, then our supreme court would have to have decided Grais differently.
From another perspective, even if we were to accept the premise that homestead
exemptions are not completely free from the strictures of section 4(a), plaintiffs would be
compelled to concede, as noted above, that the uniformity requirements of section 4(a) even from
their perspective would have to yield to the fact that exemptions by their very nature entail a
measure of nonuniformity with properties that do not qualify as homesteads although they are
otherwise similar in every other respect. See Proviso Township, 84 Ill. 2d at 240, 417 N.E.2d at
1295.
Although the requirements of section 4(a) uniformity are not as malleable and appropriate
to implement the purpose of section 6, as they would be if determined exclusively under equal
protection analysis, those requirements under section 4(a) would nevertheless be sufficiently
flexible to accommodate to the provisions of the alternative tax exemption under section 15-176
of the Code. Our supreme court has long held that uniformity need not always be pure, absolute,
or fully consistent. See Apex Motor Fuel Co. v. Barrett, 20 Ill. 2d 395, 401-02, 169 N.E.2d 769,
773 (1960) (all that is required is a reasonable degree of uniformity). As stated in Peacock v.
Property Tax Appeal Board, 339 Ill. App. 3d 1060, 1069-70, 792 N.E.2d 367, 374 (2003),
quoting Schreiber v. County of Cook, 388 Ill. 297, 303, 58 N.E.2d 40, 43 (1944):
“ ‘Perfect equality and uniformity of taxation as regards individuals or
corporations or different classes of property subject to taxation can hardly be
visualized. Absolute equality is impractical in taxation and is not required by the
equal protection clause of the constitution. Inequalities that result occasionally
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and incidentally in the application of a system that is not arbitrary in its
classification, and not applied in a hostile and discriminatory manner, are not
sufficient to defeat the tax.’ ”
See also In re Application of the County Treasurer & Ex-Officio County Collector of Cook
County, 175 Ill. App. 3d 564, 573, 529 N.E.2d 1104, 1109 (1988) ("The constitutional
requirement of uniformity is met where: (1) the intent of the statute is to adjust the burden with a
reasonable degree of uniformity; and (2) the effect of the statute in its general operation is that it
adjusts the burden with a reasonable degree of uniformity").
The record of the constitutional convention makes clear that the drafters of the uniformity
clause did not intend for that clause to hamstring the General Assembly in addressing changing
social problems. See Hoffmann, 69 Ill. 2d at 421, 372 N.E.2d at 83 ("the Committee on Revenue
and Finance recognized that the constitution which was being written should not prohibit the use
of this means [classification of real property] to cope with future problems which may be brought
about by changing conditions. The committee stated in its report to the convention: 'Finally, the
complexity of urban life and the rapid changes that occur in our society mean that a uniform
property tax may have undesirable economic and social effects. For example, the property tax
may discourage the maintenance of property. It often encourages the use of land in ways that are
not in the best interest of society--creating urban sprawl and the development of urban and rural
slums.' [Citation.]"). Further, the convention recognized that, in addressing such future problems,
some nonuniformity could arise. See Hoffmann, 69 Ill. 2d at 421-22, 372 N.E.2d at 83 ("Also,
along the same line, the committee stated further: 'The Committee feels that it would be
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undesirable to permit 102 different systems of real estate taxation in the state. Nevertheless, the
Committee does not believe that it is desirable to prevent any possible future use of classification.'
[Citation.]").
Therefore, even if section 6 were not entirely independent of the requirements of section
4(a) uniformity, the result would be the same with respect to the disparities engendered by the
senior freeze and by the differentiations between intrafamily transfers and arm’s-length transfers
and between new purchasers and preexisting ones. Manifestly, even if section 4(a) would
otherwise control, it would have to be interpreted to provide sufficient latitude for exemptions to
target areas of greater need and public benefit without being burdened and shackled under section
4(a) to unnecessarily deplete the tax base by extending itself to a substantially broader range of
properties, not otherwise deserving, or as deserving, of such tax breaks. See McKenzie, 98 Ill. 2d
at 82-3, 456 N.E.2d at105-06; Apex Motor Fuel Co., 20 Ill. 2d at 401-02, 169 N.E.2d at 773;
Proviso Township, 84 Ill. 2d at 240, 417 N.E.2d at 1295; Peacock, 339 Ill. App. 3d at 1069-70,
792 N.E.2d at 374.
With respect to plaintiffs' claim that section 15-176 creates an impermissible non-
uniformity in taxation throughout Illinois in that not all counties adopted section 15-176, as
defendants point out, our constitution only requires uniformity among properties within the same
taxing district. Such disparity between counties is inherent under section 4(b), which permits
classification on a county-by-county basis and should also therefore apply to homestead
exemptions once we accept, as we do, the constitutionality of the local option which section 15-
176 provides. Thus uniformity, if required, would be intracounty, rather than intercounty. Du
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Page County Board of Review v. Property Tax Appeal Board, 284 Ill. App. 3d 649, 653, 672
N.E.2d 1309,1312 (1996), citing Kankakee County Board of Review v. Property Tax Appeal
Board, 131 Ill. 2d 1, 21, 544 N.E.2d 762, 771 (1989) ("the supreme court noted that the uniform
assessment requirement mandates that property not be assessed at a substantially greater
proportion of its value when compared to similar properties located within the taxing district.
[Citation.]" (Emphasis in original.).
Moreover, argument can be made that the disparity between counties is not one which is
germinated by the General Assembly since the option is made equally available to everyone.
Whether to opt in or out of the ordinance is presumptively determined by each county’s
evaluation of the need for an extended homestead exemption based upon the economic and social
circumstances within its boundaries, which differ from county to county. Counties with lesser
degree of appreciation in property values or with correspondingly greater economic equilibrium
between income levels of occupants and increasing values of the property, or with a smaller
overall tax bite as reflected in their rates and levies, or with whatever other variables may
rationally determine the need for exemptions, will refuse to opt in. That decision should not
preclude homeowners within counties such as Cook, where the need for enhanced exemptions is
manifest and obvious, from opting in.
In that same regard, plaintiffs’ argument that the alternative exemption injects
nonuniformity in a taxing district if it happens to overlap with property in a collar county which
chooses not to adopt the alternative exemption must also fail. This potential for disparity is
inherent as well under section 4(b) classifications since each county may decide whether to
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classify and where Cook County has thus far been the only one to classify. Once the local option
under section 15-176 is found to be a constitutional delegation, as we have found, there is no
reason to distinguish more between disparities resulting from that delegation than there is for the
disparities inherently resulting under the local option provided in section 4(b) with respect to
classification. Moreover, as already stated, the local option under section 15-176 recognizes that
each county may have a legitimate basis upon which to either accept or reject the local option. If
anything, that potential would constitute a relatively minor imperfection within the reasonable
limitations of practical uniformity as set forth in Crozer v. People ex rel. v. Hanberg, 206 Ill. 464,
69 N.E. 489 (1903), and the recognition that such imperfections may result in isometrically
balancing the requirements of uniformity against the policy and purpose of exemptions,
classifications, and other accommodations made under the constitution . See In re Application of
the County Treasurer, 175 Ill. App. 3d at 573, 529 N.E.2d at 1109 ("The constitutional
requirement of uniformity is met where: (1) the intent of the statute is to adjust the burden with a
reasonable degree of uniformity; and (2) the effect of the statute in its general operation is that it
adjusts the burden with a reasonable degree of uniformity").
Likewise, the disparity resulting in valuation from the quadrannual system of staggered
assessments in Cook County has been tested and found to be within permissible latitude in Apex
Motor Fuel Co., 20 Ill. 2d at 401, 169 N.E.2d at 773. There our supreme court stated:
“Uniformity in taxation, as required by the constitution, implies equality in
the burden of taxation, and this equality in burden cannot exist without uniformity
in the basis of assessment as well as in the rate of taxation. (Bistor v.
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McDonough, 348 Ill. 624[, 181 N.E.2d 417 (1932)].) The rule of uniformity
requires an equality of taxation in proportion to the value of the property taxed. It
prohibits the taxation of one kind of property within the taxing district at one value
while the same kind of property in the same district for taxation purposes is valued
at either a grossly less value or a grossly higher value. People ex rel. Wangelin v.
Gillespie, 358 Ill. 40[, 192 N.E.2d 664 (1934)].
Within this constitutional limitation, however, the General Assembly has
the power to determine the method by which property may be valued for tax
purposes. (See Anderson v. City of Park Ridge, 396 Ill. 235, 244[, 72 N.E.2d 210
(1947)].) The constitutional provision for uniformity does not require that
property be assessed on any particular day or on the same day (Heidenway v.
Harding, 336 Ill. 606, 614[, 168 N.E.2d 630 (1929)]); nor does it call for a
mathematical equality. The requirement is satisfied if the intent is evident to
adjust the burden with a reasonable degree of uniformity and if such is the effect of
the statute in its general operation. A practical uniformity, rather than an absolute
one, is the test. Crozer v. People ex rel. Hanberg, 206 Ill. 464[, 69 N.E. 489
(1903)]; 51 Am. Jur. 202, Taxation, sec.152.” Apex Motor Fuel Co., 20 Ill. 2d at
401, 169 N.E.2d at 773.
IV. Enactment of an Ultra Vires Cap or a Constitutionally Permissible Homestead Exemption?
Plaintiffs third appellate contention is that section 15-176 was enacted by the General
Assembly ultra vires. See Lewis-Connelly v. Board of Education of Deerfield Public Schools,
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District 109, 277 Ill. App. 3d 554, 560, 660 N.E.2d 283, 287 (1996) (explaining that an ultra
vires act is one which is an actor is not empowered to make and which act is, therefore, void).
Plaintiffs argue that, while article IX, section 6, of the Illinois Constitution empowers the
legislature to enact "homestead exemptions," section 15-176 is, instead, an "assessment cap"
which the legislature is not constitutionally empowered to enact. Plaintiffs delineate the
difference between the two terms by contending that section 15-176 "limits the taxable increase in
valuation of a homestead parcel by 'exempting' a percentage of the last or most recent part of the
property value. This is precisely the reverse of a true 'exemption,' which excludes from taxation
the first or base part of the property's valuation." (Emphasis in original). Plaintiffs further
purport that "the one factor that cannot be used in a genuine 'exemption' law is the assessed
valuation of the property. Use of that factor to measure the amount of an 'exemption' throws a
flexible exemption over the constitutional line and into the assessment/valuation side of the
Revenue Article." (Emphasis in original).
We begin our consideration of plaintiffs' contentions by noting, as pointed out by
defendants, that plaintiffs provide no citations to any authorities to demonstrate any settled
meaning of "exemption" or to show how the scheme of section 15-176 falls short of any technical
requirements so that it may not qualify as an "exemption." Plaintiffs, further, make no
representations, even after defendant's waiver challenge, that their research revealed no applicable
authority. Therefore, we will find plaintiffs to have waived their contentions through failing to
supply proper argument as required by Supreme Court Rule 341(e)(7) (188 Ill. 2d R. 341(e)(7));
Eckiss v. McVaigh, 261 Ill. App. 3d 778, 786, 634 N.E.2d 476, 481 (1994) ("A reviewing court
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is *** entitled to have issues clearly defined with pertinent authority cited and coherent arguments
presented; arguments inadequately presented on appeal are waived. [Citation.] Mere contentions
without argument or citation of authority do not merit consideration on appeal [citation], nor do
statements unsupported by argument or citation of relevant authority"); People v. O'Malley, 356
Ill. App. 3d 1038, 1046, 828 N.E.2d 376, 384 (2005); see also In re E.H., 224 Ill. 2d 172, 180,
863 N.E.2d 231, 235 (2006) (noting that courts must avoid considering constitutional questions
where the case can be decided on nonconstitutional grounds).
We further note, in any event, that there is authority suggesting, as noted in our previous
discussion, that the term "homestead exemption" is a flexible one, which does not hinge upon
formal structure. See McKenzie, 98 Ill. 2d at 106, 456 N.E.2d at 82. In McKenzie, our supreme
court reversed the judgment of the circuit court where that court had determined that an enacted
homestead improvement exemption did not qualify as a homestead exemption as contemplated
under the Illinois Constitution. McKenzie, 98 Ill. 2d at 106-8, 456 N.E.2d at 82-84. In reaching
its determination, the McKenzie court considered the views of constitutional convention delegate
Karns, who stated " 'The language [allowing for the General Assembly to enact homestead
exemptions] does not require or mandate any particular form of exemption but is a rather broad
grant of power to the General Assembly to devise an equitable system of exemptions [and] rent
credits.' " (Emphasis omitted.) McKenzie, 98 Ill. 2d at 106-07, 456 N.E.2d at 83, quoting 3
Proceedings of the Sixth Constitutional Convention 2080-81 (statements of Delegate Karns).
More overridingly, in McKenzie, our supreme court rejected an ultra vires claim against a
homestead improvement exemption which, like section 15-176, exempted the increase in the last
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or most recent part of the property's value and not the first or base part. McKenzie, 98 Ill. 2d at
102-08, 456 N.E.2d at 81-84.
Conversely, in Hoffman v. Lehnhausen, 48 Ill. 2d 323, 327, 269 N.E.2d 465, 468 (1971),
faced with an argument that a partial homestead exemption should be treated as a classification,
our supreme court stated:
“The defendants also take the position that the homestead exemption is merely a
‘property valuation reduction’ and not an exemption. A valuation reduction is a partial
exemption, and if the value was reduced to zero, it would be a full exemption. Looking to
the practical effect of the statute before us, we think it clear that section 3 of article IX of
the 1870 constitution does not authorize the legislature to grant an exemption in the guise
of a homestead ‘valuation reduction.’ ”
Finally, we observe that there is no readily discernible basis on which to insist that
homestead exemptions follow any particular form in order to be considered an "exemption," so
long as they comport with the purpose of reducing the tax burden on homesteads. (Defendants,
in fact, maintain a measure removing a part of a property's value from taxation as an alternative
definition for "exemption.") Since the constitution would not appear to place any limit on the
amount of a homestead exemption, so that, if it saw fit, the General Assembly could relieve
homesteaders entirely from property taxation, a fortiori, any measure capping the amount of the
valuation to be used in determining the tax would have to be acceptable. Plaintiffs attempted
technical argument never addresses this consideration and, thus, would appear to attempt to
elevate form over substance. See People v. Leach, 245 Ill. App. 3d 644, 653, 612 N.E.2d 825,
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830 (1993) ("We will not elevate form over substance").
V. Equal Protection/Special Legislation
Plaintiffs next argue that section 15-176 violates their right to equal protection under the
law, including their right to not be disadvantaged by special legislation that is passed exclusively
for the benefit of a different set of persons or entities. Like in their last argument, plaintiffs here,
again, fail to present any authority specifically in support of their claims. In fact, plaintiffs do not
even provide authorities setting out the general legal framework under which their claims should
be evaluated. Their only citations to authority are to those cited by defendants in the proceedings
below in an attempt to distinguish those cases. Hence, we must, again, find their contentions
waived. See Eckiss, 261 Ill. App. 3d at 786, 634 N.E.2d at 481. However, in any event, we
would also find their claims to be without merit.
Our supreme court has repeatedly recognized that mere unequal treatment in taxation will
not implicate equal protection concerns; to merit relief, a plaintiff complaining of unequal
protection must demonstrate an embodiment of invidious discrimination in his or her tax
treatment. See Doran, 51 Ill. 2d at 559, 283 N.E.2d at 868, quoting Doolin v. Korshak, 36 Ill. 2d
521, 527-28 (1968) (" 'The governing principles are clear. "It is well established that the
legislature has broad powers to establish reasonable classifications in defining subjects of
taxation." [Citation.] The "prohibition of the Equal Protection Clause goes no further than the
inviduous [sic] discrimination." [Citation.] "A statutory discrimination will not be set aside if any
state of facts reasonably may be conceived to justify it." [Citation.] And "[t]he burden is on the
one attacking the legislative arrangement to negative every conceivable basis which might support
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it." [Citation.]' "); Schreiber v. County of Cook, 388 Ill. 297, 303, 58 N.E.2d 40, 43 (1944)
("Perfect equality and uniformity of taxation as regards individuals or corporations or different
classes of property subject to taxation can hardly be visualized. Absolute equality is impracticable
in taxation and is not required by the equal protection clause of the constitution. Inequalities that
result occasionally and incidentally in the application of a system that is not arbitrary in its
classification, and not applied in a hostile and discriminatory manner, are not sufficient to defeat
the tax. [Citations.] Mere inequities in the administration of the law violate no constitutional
rights. [Citation.]"). See also Ferguson v. Skrupa, 372 U.S. 726, 732, 10 L. Ed. 2d 93, 98, 83 S.
Ct. 1028, 1032 (1963) ("it is only 'invidious discrimination' which offends the Constitution").
"Invidious discrimination is defined as a classification which is arbitrary, irrational, and not
reasonably related to a legitimate purpose." Matter of B.N.B., 959 P.2d 989, 991 (Ok. Civ. App.
1998); accord McLaughlin v. Florida, 379 U.S. 184, 191-92, 13 L. Ed. 2d 222, 227-28, 85 S. Ct.
283, 288-89 (1964).
Plaintiffs contend that section 15-176 "creates irrational discriminations as against ***
non-homesteader plaintiffs on whom the tax burden is arbitrarily shifted." Were this to be a valid
example of invidious discrimination, however, then there could never be a valid homestead
exemption: equal protection would necessarily trump the homestead exemption otherwise
specifically provided for by our state constitution. And, we will not interpret one section of the
constitution to render another section a nullity. Moreover, homestead exemptions survived a
similar challenge in Doran, 51 Ill. 2d at 560, 283 N.E.2d 868. In Doran, our supreme court sated:
"We have heretofore recognized the inherent differences between lessors (those who hold
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title) and lessees of personal property for the purposes of classification for taxation
[citation], and plaintiff offers no rationale which prohibits the same application to owners
and lessees of real estate. We therefore conclude that the homestead exemption for
property assessed in the year 1972 and subsequent years does not violate the equal
protection clauses under either the Federal or State constitutions." Doran, 51 Ill. 2d at
560, 283 N.E.2d 868.
As previously discussed, plaintiffs’ other proffered examples of discrimination, likewise,
have largely already been determined against them. For example, our supreme court found that
whatever inequalities may result from Cook County's staggered assessment scheme among its
three taxing districts were within constitutional limits in Apex Motor Fuel Co., 20 Ill. 2d at 401-
02, 169 N.E.2d at 773 ("Plaintiff's argument based on fluctuation in real-estate values between the
different quadrennial assessment years fails to show such a gross inequality as to render the act
void"). As discussed previously, courts have also approved of different treatment between new
and existing owners of homesteads. See Nordlinger v. Hahn, 505 U.S. at 12-13, 120 L. Ed. 2d at
13-14, 112 S. Ct. at 2333 ("the State has a legitimate interest in local neighborhood preservation,
continuity, and stability. [Citation.] The State therefore legitimately can decide to structure its tax
system to discourage rapid turnover in ownership of homes and businesses ***. By permitting
older owners to pay progressively less in taxes than new owners of comparable property, the ***
assessment scheme rationally furthers this interest. Second, the State legitimately can conclude
that a new owner at the time of acquiring his property does not have the same reliance interest
warranting protection against higher taxes as does an existing owner. The State may deny a new
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owner at the point of purchase the right to 'lock in' to the same assessed value as is enjoyed by an
existing owner of comparable property, because an existing owner rationally may be thought to
have vested expectations in his property or home that are more deserving of protection than the
anticipatory expectations of a new owner at the point of purchase"); accord Ball v. Village of
Streamwood, 281 Ill. App. 3d 679, 665 N.E.2d 311 (1996).
Plaintiffs' only novel attempt at alleging invidious discrimination through section 15-176
appears to be through their claim that section 15-176 was an exercise of brute political strength
by Cook County to shed its own legitimate tax burdens and to place them on the remaining
counties in violation of local legislation principles. See Ill. Const. 1970, art. IV, §13 ("The
General Assembly shall pass no special or local law when a general law is or can be made
applicable"); Allen v. Woodfield Chevrolet, Inc., 208 Ill. 2d 12, 21-22, 802 N.E.2d 752, 758-59
(2003) ("The special legislation clause expressly prohibits the General Assembly from conferring a
special privilege or benefit upon a person or group of persons while excluding others similarly
situated. [Citation.] Although the legislature enjoys broad discretion in making statutory
classifications, the legislature is prohibited, under the special legislation clause, from making
arbitrary classifications which discriminate in favor of a select group without a sound and
reasonable basis. [Citation.] Our analysis thus involves a dual inquiry. We must determine first
whether the statutory amendments discriminate in favor of a select group and, if so, whether the
classification created by the statutory amendments is arbitrary"). But, a "law may be general, and
yet be operative in a single place. It is not requisite that it should be *** applicable to every
person, or to every city," or other subsidiary political unit, "within the [s]tate." West Chicago
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Park Commissioners v. McMullen, 134 Ill. 170, 176, 25 N.E. 676 (1890). Likewise, "an act is
not local or special merely because it operates in only one place, if that is where the conditions
necessary to its operation exist." Apex Motor Fuel Co., 20 Ill. 2d at 405, 169 N.E.2d at 775.
We note that, throughout its appellate arguments, as well as in its complaint below,
plaintiffs never allege that there were not local conditions surrounding property values in Cook
County, different from those in any of the other counties in Illinois, to which the General
Assembly could rationally have responded by enacting that section. In fact, plaintiffs
acknowledge that the debates surrounding section 15-176 focused on the particular need for tax
relief in that vicinity. They state in their brief: "The legislative debates disclose only an urgent
effort to manufacture some tax relief for Chicago and, to a lesser extend, Cook County
homeowners experiencing large assessment increases in some areas." (Emphasis in original.) See
also 93d Ill. Gen. Assem., House Proceedings, May 5, 2004, at 29 (statements of Representative
Fritchey) ("With respect to Cook County, this Bill is not about the rich and powerful. This Bill is
about a number of my neighbors who live within blocks from me who will have to sell their homes
if this Bill doesn't pass. This Bill is about people that stayed and fought for their communities to
improve their communities over the years that want nothing more than the ability and the dignity
to stay in their homes and not be forced out"). Thus, plaintiffs identify themselves a peculiar local
problem suited to address by the General Assembly.
Moreover, while the legislature may have identified the rapidly rising property values in
Chicago as its impetus in passing section 15-176, we note that there is no reason to believe that
such a phenomenon would necessarily be restricted to that locale. Section 15-176, of course,
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would allow any other county to opt into its alternative exemption, in that case. Thus, section 15-
176 on its face does not appear to exclude a benefit from others similarly situated as required by
Allen in order to constitute impermissible special legislation. Allen, 208 Ill. 2d at 21, 802 N.E.2d
at 758-59. Plaintiffs would reject our determination by contending that no other county is
similarly situated to Cook County since no other county undergoes triennial assessments.
However, as the triennial assessment procedure that could create a greater local need for tax
relief, since property values will accrue more over time, has already been judicially approved (see
Apex, 20 Ill. 2d at 401-02, 169 N.E.2d at 773), we fail to see how a statute that would remedy
those particular, local conditions would amount to invalid special legislation. See Crusius v.
Illinois Gaming Board, 348 Ill. App. 3d 44, 58, 807 N.E.2d 1207, 1221 (2004) (“Legislation that
affects only one entity will be found constitutional provided there is a rational justification for its
limited application and its narrow classifications are reasonably related to that justification”).
VI. Retroactivity
Plaintiffs' final contention is that the adoption of section 15-176 more than six months
after the end of the 2003 tax year had the effect of retroactively increasing real property taxes on
nonhomestead properties in a "harsh and oppressive" manner so that the increase was in violation
of due process. While this contention still raises a constitutional issue, unlike in their previous
arguments, here, plaintiffs do not claim to have already established an entitlement to judgment in
their favor. Rather, they contend that the circuit court erred by interpreting relevant factors in
evaluating their claim as elements and then dismissing their claim for failure to properly plead the
existence of one or more misinterpreted elements. We disagree.
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The parties agree that our supreme court set out the framework for evaluating whether
retroactive tax legislation satisfied due process in Commonwealth Edison Co. v. Will County
Collector, 196 Ill. 2d 27, 749 N.E.2d 964 (2001). In that case, our supreme court observed that a
retroactive tax measure must be “ ‘ “harsh and oppressive” ’ ” to violate due process.
Commonwealth Edison Co., 196 Ill. 2d at 43, 749 N.E.2d at 974, quoting General Telephone Co.
v. Johnson, 103 Ill. 2d 363, 379, 469 N.E.2d 1067 (1984), quoting Welch v. Henry, 305 U.S.
134, 137 83 L. Ed. 87, 93, 59 S. Ct. 121, 126 (1938). In order to determine whether retroactive
tax measures were “harsh and oppressive,” the Commonwealth Edison court instructed that one
should look to whether the legislative purpose of the measure, specifically as to whether it was as
a means of retribution against unpopular groups or individuals; the temporal length of the
retroactivity; whether the taxpayer detrimentally relied on the previously existing law; and
whether the taxpayer received adequate notice of the change in taxation. Commonwealth Edison,
196 Ill. 2d at 43-44, 749 N.E.2d at 974.
Plaintiffs argue that they pled a claim under this framework by alleging section 15-176's
improper purposes in their uniformity and equal protection claims, by alleging that plaintiff
Bernshteyn purchased a home prior to section 15-176 going into effect, and "[b]y alleging that
they have been deprived of money by virtue of defendants' retroactive application of the 7% Cap,
including its retroactive application to real estate transaction which had closed prior to the law's
enactment." However, we have already found in our evaluation of plaintiffs' uniformity and equal
protection claims that section 15-176 did not embody any improper purpose, let alone a means of
retribution. Further, we agree with defendants that plaintiffs cannot demonstrate any lack of
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substantial notice or detrimental reliance.
The legislative record reflects that the organizational plaintiffs were actively involved in
the fight against section 15-176's passage. 93d Ill. Gen. Assem., Senate Proceedings, May 25,
2004, at 23 (statements of Senator Lauzen) (stating prior to the vote on what would be codified
as section 15-176, "Just to read off some of the opponents: *** Chicagoland Chamber of
Commerce, *** Chicago Development Council, *** the Building Owners and Managers
Association of Chicago"); 93d Ill. Gen. Assem., House Proceedings, May 5, 2004, at 11
(statements of Representative Winters) ("I have one analysis . . . just to put a number out there,
and again this is based on assumptions by the Chicagoland Chamber ***") . While plaintiffs argue
that their knowledge of the General Assembly's consideration of the measure is not equivalent to
their knowledge of the measure becoming law, this view is contrary to established precedent. See
United States v. Darusmont, 449 U.S. 292, 299, 66 L. Ed. 2d 513, 519, 101 S. Ct. 549, 553
(1981) ("Assuming, for purposes of argument, that personal notice is relevant, appellee is hardly
in a position to claim surprise at the 1976 amendments to the minimum tax. The proposed
increase in rate had been under public discussion for almost a year before its enactment. ***
Appellee, therefore, had ample advance notice of the increase in the effective minimum rate").
Thus, the "commercial, industrial and non-homestead" property owners had sufficient notice of
the potential tax changes that could come about through passage of section 15-176.
Finally, as a matter of law, the "commercial, industrial and non-homestead" property
owners can show no detrimental reliance. In evaluating detrimental reliance in the case before it,
the Commonwealth Edison court noted the distinction between a taxpayer being subject to an
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adjusted amount of an existing tax as compared with being subject to an entirely new tax, stating:
“Edison knew that, under either the old or new versions of sections 5-1024 and 9-107, it
would be obligated to pay 1994 county property taxes. The only question was how much
its tax bill would be. Edison's position would be *** more an upsetting of 'settled
expectations,' if an entirely new tax, rather than a new tax rate, were being imposed by the
amendments to section 5-1024 and 9-107. This important distinction between a new,
retroactive tax rate and a new, retroactive tax has been frequently noted:
' "Nobody has a vested right in the rate of taxation, which may be retroactively
changed at the will of Congress at least for periods of less than twelve months; Congress
has done so from the outset . . . . The injustice is no greater than if a man chance to make
a profitable sale in the months before the general rates are retroactively changed. Such a
one may indeed complain that, could he have foreseen the increase, he would have kept
the transaction unliquidated, but it will not avail him; he must be prepared for such
possibilities, the system already being in operation. His is a different case from that of one
who, when he takes action, has no reason to suppose that any transactions of the sort will
be taxed at all." ' United States v. Darusmont, 449 U.S. 292, 298, 66 L. Ed. 2d 513, 518-
19, 101 S. Ct. 549, 552-53 (1981), quoting Cohan v. Commissioner, 39 F.2d 540, 545 (2d
Cir. 1930) (Hand, J.).” (Emphasis omitted.) Commonwealth Edison, 196 Ill. 2d at 48-49,
749 N.E.2d at 977.
So too here, the "commercial, industrial and non-homestead" property owners identified in
plaintiffs' brief as those being deprived of due process knew that some form of homestead
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exemption would impact their share of the tax burden; it was only a question of to what extent.
Section 15-176 imposed no new tax upon the identified plaintiffs. Therefore, even if the
considerations our supreme court set out in Commonwealth Edison were only factors, not
elements, those factors necessarily weigh against plaintiffs; there is no need for a remand for
factual development and the circuit court's dismissal of the retroactivity count was proper.
VII. Conclusion
For all the foregoing reasons, we affirm the judgment of the circuit court.
Affirmed.
McNULTY, J., and FITZGERALD SMITH, P.J., concur.
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