Forsberg v. City of Chicago, s. 84-1223

• Decision Date: 26 November 1986
• Docket Number: Nos. 84-1223,84-1230,84-1234 and 84-1349,s. 84-1223
• Parties: , 104 Ill.Dec. 20 Roy L. FORSBERG, John L. Reynertson, Gary V. Banser, Roy Laufter, Joseph Black and Russ Mills, et al., Plaintiffs-Appellants, v. The CITY OF CHICAGO, a Municipal Corporation, et al., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 283

502 N.E.2d 283

151 Ill.App.3d 354, 104 Ill.Dec. 20

Roy L. FORSBERG, John L. Reynertson, Gary V. Banser, Roy Laufter, Joseph Black and Russ Mills, et al Plaintiffs-Appellants, v. The CITY OF CHICAGO, a Municipal Corporation, et al Defendants-Appellees.

Nos. 84-1223, 84-1230, 84-1234 and 84-1349.

Appellate Court of Illinois First District, Third Division.

Nov. 26, 1986.

Rehearing Denied Jan. 8, 1987.

Craig E. Anderson, Lowell H. Jacobson, Allen D. Choka and Herbert I. Rothbart, Chicago, for plaintiffs-appellants Roy L. Forsberg, John L. Reynertson, Gary V. Banser, Roy Laufter, Joseph Black and Russ Mills.

Bernard Wiczer and Fred F. Harbecke, Wiczer and Associates, Ltd., Chicago, for plaintiffs-appellants Chicagoland Boat Owners' Assn., Leon M. Delano, Jr., Kipp M. Webb, John D. Hirn and Melvin Bechina.

Joseph S. Wright, Jr. and Nicholas J. Nedeau, Martin, Craig, Chester & Sonnenschein, Chicago, for John J. Lynch and Joseph S. Wright, Sr.

Justice McNAMARA delivered the opinion of the court:

Plaintiffs filed four separate actions against defendants city of Chicago and its various officers challenging the constitutionality of the Chicago boat mooring tax. Plaintiffs appeal from trial court orders dismissing their actions on various grounds. The four actions were consolidated on appeal.

The mooring tax was enacted by the Chicago city council December 27, 1983 and was to be effective January 1, 1984. It reads, in relevant part:

"200.8-2.A. A tax is hereby imposed upon any watercraft moored or docked for a fee in any harbor, river or other body of water within the corporate limits or jurisdiction of the City of Chicago, at a rate of 50% of such mooring or docking fee. * * * The tax herein shall be due by March 1 of each calendar year for mooring or docking fees paid by February 1 of such year for the right to moor or dock said watercraft in said year. For any mooring or docking fee paid after February 1 of any year for the right to moor or dock said watercraft in said year, the tax herein shall be due within 30 days of the payment of said fee.

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200.8-6.B. The tax imposed herein shall not apply to any watercraft, its owner, operator or person in possession to the extent the imposition of this tax upon such would violate the Constitution of the United States or the State of Illinois.

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200.8-6. Whenever it appears to any person that he should not be required to pay any tax imposed herein he may file a protest along with his payment and request a hearing. A hearing shall, thereafter, be provided by the Director * * *.

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200.8-8. Any person found guilty of violating, disobeying, neglecting or refusing to comply with any of the provisions of this Chapter, except as otherwise provided, upon conviction shall be punished by a fine of not less than $50.00 nor more than $100.00 for each offense in any 180-day period, provided, that all actions seeking the imposition of fines only shall be filed as quasi-criminal actions subject to the provisions of the Illinois Code of Civil Procedure * * *. Repeated offenses in excess of three within any 180-day period may also be punishable as a misdemeanor by incarceration in the County Jail for a term not to exceed six months under the procedures set forth in section 1-2-1.1 of the Illinois Municipal Code * * * and under provisions of the Illinois Code of Criminal Procedure * * * in a separate proceeding." (Municipal Code of the City of Chicago, ch. 200.8 (1984).)

In Forsberg v. City of Chicago, on January 12, 1984, plaintiffs Roy L. Forsberg, John L. Reynertson, Gary V. Banser, Roy Laufter, Joseph Black and Russ Mills filed a class action on behalf of the named plaintiffs and all persons paying the mooring or docking fee upon which the tax is based against defendants, the city of Chicago and Charles Sneider, the director of revenue for the city. Plaintiffs sought a declaratory judgment that the tax was unconstitutional and invalid, and sought injunctive and other relief. On February 10, 1984, the trial court entered agreed orders certifying the class; approving lead counsel; preliminarily enjoining the city from imposing penalties for non-payment of the tax; and establishing a mooring tax escrow account. On February 15, 1984, those orders were vacated. On February 21, 1984, a mooring tax escrow account was established. On February 22, 1984, the city was enjoined from collecting the tax. On May 16, 1984, the trial court ordered that a new mooring tax escrow account be established.

After hearings on defendants' motion to dismiss, the trial court made specific findings. The trial court found that the mooring tax was not beyond the territory or jurisdiction of the city; that the tax was not a tax on the Chicago Park District or its property; that the tax is not a license fee on the Chicago Park District; and that the tax does not violate any portion of the Illinois Constitution as to the authority of the city to tax or as a power not given to a home rule unit. The trial court found further that the tax is not a tax on an occupation; that the tax is not a discriminatory tax as to a group to which it applies, and meets the test of uniformity; that the tax is not licensing for revenue; and that the tax is not a special tax on one group for the benefit of others any more than any other valid city tax which falls on some citizens and not others. The trial court also found that the taxpayers are not under this ordinance deprived of property without due process, and a specific provision in the ordinance relates to protests and hearings; that the tax is not indefinite or ambiguous; that the tax is not a tax on the use of navigable waters or on interstate commerce; and that while a large portion of the base of the tax apparently does not benefit boat owners, this does not invalidate the tax because the remedy for boat owners is to attack the Chicago Park District mooring fees in another action. The trial court also found that the definitions of the boundaries of the city and its jurisdiction are adequately met by the ordinance, coupled with existing statutes and cases; that the tax is not ultra-vires of the city and is within the power of the city; and that any other ground of the complaint was without merit.

The trial court granted defendants' motion to strike and dismiss the complaint with prejudice in Forsberg pursuant to section 2-615 of the Code of Civil Procedure. (Ill.Rev.Stat.1983, ch. 110, par. 2-615.) In addition, plaintiffs' oral motion for leave to file an amended complaint and pending motion for class certification were denied, and all pending and further discovery was barred. The trial court ordered that for the year 1984, the tax would be due on June 1, 1984 for any mooring or docking fee paid before February 1, 1984. For any mooring or docking fee paid on or after February 1, 1984, the tax would be due June 1, 1984, or 30 days after the mooring or docking fee was paid, whichever date was later. Penalties under the ordinance would be effective after June 1, 1984. Beginning January 1, 1985, all provisions of the ordinance would be in effect as passed by the Chicago city council. The city was permanently enjoined from changing in any way any portion of the tax ordinance, except through appropriate action by the city council. The injunction against the city from collecting the tax was lifted. Finally, the court noted that a mooring tax escrow account for segregating tax funds received under the ordinance was established under a separate order dated May 16, 1984. On May 31, 1984, this court stayed the enforcement and collection of the tax, pending this appeal. On appeal, plaintiffs in Forsberg contend that the trial court erred in dismissing the complaint; erred in denying plaintiffs' motion to amend the complaint; and erred in denying plaintiffs' motion for class certification.

In Lynch v. City of Chicago, on January 17, 1984, plaintiffs John J. Lynch and Joseph S. Wright, Sr., filed a class action on behalf of commercial and pleasure vessel boat owners. On May 18, 1984, the trial court dismissed the complaint in Lynch. On appeal, the plaintiffs in Lynch contend that the mooring tax is unconstitutional for several reasons.

In Chicagoland Boat Owner Association v. City of Chicago, on February 10, 1984, the Chicagoland Boat Owners Association (CBOA) and four individually named plaintiffs, Leon M. Delano, Jr., Kipp M. Webb, John D. Hirn, and Melvin Bechina, filed suit against defendants, the city of Chicago, and its Director of Revenue, its Treasurer, its controller and its mayor, seeking declaratory and injunctive relief.

On May 18, 1984, the trial court granted defendants' motion to strike and dismiss plaintiffs' amended complaint. The court found that the CBOA had no standing to challenge the mooring tax; and that pursuant to section 2-619(a)(3) of the Code of Civil Procedure, the class action and individual plaintiffs' actions were barred by prior pending actions. On appeal, plaintiffs in CBOA contend that the trial court erred in finding it had no standing to challenge the mooring tax; and that the trial court erred in finding that plaintiffs' actions were barred by prior pending actions.

In Chicago Yachting Association v. City of Chicago, on January 20, 1984, the Chicago Yachting Association (CYA) filed suit against defendants, the city of Chicago, its Director of Revenue, and the Chicago Park District, seeking declaratory and injunctive relief. (Subsequently, the Chicago Park District was allowed to become realigned as a party plaintiff. It filed its own suit against the city of Chicago, alleging that the tax is an unconstitutional interference with its grant of authority to provide recreational harbors at a reasonable fee. Its request for preliminary relief was denied, and that judgment was affirmed by this court and by our supreme court. Chicago Park District v. City of Chicago (1984), 127...