Bormann v. Tomlin

• Decision Date: 15 November 1978
• Docket Number: No. 77-3133.,77-3133.
• Citation: 461 F. Supp. 193
• Parties: Leland W. BORMANN, Plaintiff, v. Fred H. TOMLIN et al., Defendants.
• Court: U.S. District Court — Southern District of Illinois

461 F. Supp. 193

Leland W. BORMANN, Plaintiff, v. Fred H. TOMLIN et al., Defendants.

No. 77-3133.

United States District Court, S. D. Illinois, S. D.

November 15, 1978.

Leland W. Bormann, pro se.

J. William Roberts, First Asst. State's Atty., Sangamon County, Springfield, Ill., for defendants.

MEMORANDUM ORDER

J. WALDO ACKERMAN, District Judge.

Before me are cross-motions pursuant to Fed.R.Civ.P. 56 for summary judgment on the question of liability. After reviewing the affidavits and memoranda of the parties and considering oral arguments, it appears that as to several issues there is no question of material fact and partial summary judgment must be granted as to them. Plaintiff, Leland W. Bormann, received statements from the Sangamon County Treasurer's office over a period of years notifying him that he was delinquent in payment of personal property taxes. A distress warrant was issued by the Sangamon County Treasurer, Fred H. Tomlin, as ex-officio County Collector pursuant to Ill. Rev.Stat. ch. 120, §§ inter alia 651, 652, 657, and 692 commanding the deputy collectors to seize and sell enough of the plaintiff's property to cover the delinquent taxes and costs. On March 17, 1977, the distress warrant was served on plaintiff by defendant Challis, who was accompanied by defendant Cooper. Plaintiff refused at that time to make payment. Defendant Cooper, without plaintiff's permission, opened plaintiff's garage door and seized plaintiff's 1967 automobile. Defendant Ellis is a Deputy Sheriff of Sangamon County who was called to the Bormann home and was present during the search and seizure of the garage. On the afternoon of March 17, plaintiff came to the Sangamon County Treasurer's office and was allowed to take his personal effects from the car. On March 18, plaintiff was allowed to retake the impounded auto upon payment of $100 and agreement to pay $25.00 per month until the taxes were paid. Plaintiff filed this action in Federal Court seeking damages under 42 U.S.C. § 1983 for an alleged unconstitutional search and seizure of his garage.

In summary, it is my opinion, based on the Fourth Amendment to the United States Constitution, as construed by the United States Supreme Court, that the Illinois statutes to the extent they may be construed to allow search and seizure on private property to collect delinquent personal property taxes without a valid search warrant issued upon probable cause by a judicial officer is unconstitutional. My opinion is based on the following legal analysis.

FEDERAL TAX INJUNCTION ACT

I must initially consider whether the Tax Injunction Act, 28 U.S.C. § 1341 is a total bar to this action. The Act provides:

The district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State.

A reading of the Act and the opinion of the Court of Appeals in Huber Pontiac, Inc. v. Whitler, 585 F.2d 817 (7th Cir. 1978) would clearly require dismissal of any request for equitable relief, e.g., injunctive or declaratory actions. However, under the recent decision in Fulton Market Cold Storage Co. v. Cullerton et al., 582 F.2d 1071 (7th Cir. 1978), 28 U.S.C. § 1341 does not bar plaintiff's § 1983 suit for damages. Plaintiff here seeks damages for what he alleges to be an unconstitutional warrantless search and seizure by tax collection officials.

A state or county tax official will be liable for damages under § 1983 only if he violated the plaintiff's clearly established constitutional rights intentionally or with reckless disregard of those rights. The tax official must have personally acted with an impermissible motivation or with such intentional and reckless disregard of the plaintiff's clearly established constitutional rights that his action cannot be reasonably characterized as being in good faith. Fulton Market, supra at 1079-1080.

One problem reconciling Huber and Fulton Market is that in damage actions such as the one presently before the Court, the public officials may cite a state statute as being the justification for their conduct, thus a basis for good faith immunity. In evaluating defendants' good faith belief, I will necessarily have to decide whether the statute on which they relied was unconstitutional or at least whether their construction of the statute was unreasonable and their actions unconstitutional. Although my construction as to the statute's constitutionality is only the law of this case, presumably other state officers will not proceed under a statute if it is deemed not to be a defense to § 1983 liability. Thus, decisions in Fulton Market damage suits could have the indirect effect of restraining or suspending other state officials from certain tax collection processes. However, having concluded that Fulton Market allows plaintiff's damages claim under § 1983, I will proceed to analyze the constitutional violations alleged.

DUE PROCESS CLAIM

Plaintiff's pro se complaint appears to raise two different objections to the seizure of his automobile. First, the seizure allegedly violated plaintiff's due process rights because he was not given a pre-seizure notice and hearing in a court of law wherein the tax debt could be proven. Secondly, the seizure allegedly violated plaintiff's Fourth Amendment rights in that the defendants did not have a warrant issued by a court when they entered plaintiff's garage without consent.

Illinois has by statute created summary proceedings for the collection of taxes. Ill. Rev.Stat. ch. 120, § 692 et seq. As stated in 84 C.J.S. Taxation § 686(b):

Laws providing summary remedies for the collection of delinquent taxes are not open to constitutional objection because they dispense with some of the formalities or ordinary judicial procedure, or cut off technical defenses, or authorize the seizure of property first, and a hearing afterward, provided the taxpayer is given an opportunity at some stage of the proceedings and before his rights are finally cut off, to contest the validity of the tax or his liability with respect to it; but a statute directly in conflict with a constitutional procedure is void . . .

Courts have long upheld summary delinquent tax collection proceedings, including the statutory method of distraint, against due process challenges. See, Phillips v. Commissioner, 283 U.S. 589, 51 S.Ct. 608, 75 L.Ed. 1289 (1931); Scottish Union and National Insurance Co. v. Bowland, 196 U.S. 611, 25 S.Ct. 345, 49 L.Ed. 619 (1905); 72 Am.Jur.2d 169, State and Local Taxation § 868. Many Illinois cases have at least impliedly supported use of the summary proceedings of levy and distress. See e.g., People ex rel. McDonough v. Chicago, Milwaukee, and Pacific Railroad Co., 354 Ill. 438, 188 N.E. 404 (1933); Ream et al. v. Stone et al., 102 Ill. 359 (1882) and Town of Geneva v. Cole, 61 Ill. 397 (1871).

Illinois statutes provide a method of review, including administrative as well as judicial to determine whether the personal property was validly subject to tax and assessed at the correct statutory rate. See Ill.Rev.Stat. ch. 120, § 575, et seq. It appears that the Illinois personal property tax procedure allows sufficient subsequent judicial review and a tax refund if necessary, so that the taxpayer's due process rights are protected. Ill.Rev.Stat. ch. 120, § 619 et seq. California's summary tax collection procedure was sustained over similar objections that it violated the taxpayer's due process rights. The Court in Bomher v. Reagan, 522 F.2d 1201 (9th Cir. 1975), held that the taxpayer's right to subsequent judicial review and a tax refund, if appropriate, satisfied due process requirements. The facts in Bomher are closely analogous to the present case. See generally Comment, "Procedural Due Process and Tax Collection: An Opportunity for a Prompt Post Deprivation Hearing", 44 U.Chi.L.Rev. 594 (1977).

FOURTH AMENDMENT SEARCH AND SEIZURE CLAIM

Assuming that this summary procedure to collect delinquent taxes withstands due process objections, the crucial issue in this case becomes whether the collector's warrant issued by a county treasurer as ex-officio county tax collector, is sufficient authority to enter upon and seize private property for payment of delinquent taxes even over the objection of the property owner. Put another way, does the Fourth Amendment to the United States Constitution require government authorities to obtain a warrant from a judicial officer in order to levy and seize personal property for tax delinquency whenever the property owner refuses them entrance.

The Revenue Act of 1939, Ill.Rev.Stat. ch. 120, §§ 651, 652, 657, 692, authorizes the County Treasurer as an ex-officio county tax collector to issue a collector's warrant which commands the town collector or deputy collectors, in case any person named in the collector's book shall neglect or refuse to pay their personal property tax, to levy the same by distress and sale of the goods and chattels of such person.¹ Acting pursuant to such a "warrant" the collectors in this case were sent to the delinquent taxpayer's premises and seized his automobile. In this case there was no consent. Mr. Bormann refused admission to his garage and defendants allegedly forced open the garage door by breaking the lock to obtain entrance. While there is some question of the degree of force used, there is no doubt that the garage door was opened.

The Fourth Amendment to the United States Constitution provides:

The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue but upon probable cause, supported by Oath or affirmation and particularly describing the place to be searched and the person or things to be seized.

The United States Supreme Court has spoken to the issue of statutes which attempt to authorize warrantless...