Heyde v. Pittenger

• Decision Date: 11 January 2011
• Docket Number: No. 09–1388.,09–1388.
• Citation: 633 F.3d 512
• Parties: Raymond R.S. HEYDE, Plaintiff–Appellant,v.Gary PITTENGER, et al., Defendants–Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

633 F.3d 512

Raymond R.S. HEYDE, Plaintiff–Appellant,

v.Gary PITTENGER, et al., Defendants–Appellees.

No. 09–1388.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 16, 2010.Decided Jan. 11, 2011.

Gregory A. Hunziker, Attorney, Hunziker & Walton, Peoria, IL, Michelle N. Schneiderheinze (argued), Attorney, Bloomington, IL, for Plaintiff–Appellant.Peter R. Jennetten, Attorney, Quinn, Johnston, Henderson & Pretorius, Peoria, IL, James D. Green (argued), Attorney, Thomas, Mamer & Haughey LLP, Champaign, IL, for Defendants–Appellees.Before CUDAHY, ROVNER, and EVANS, Circuit Judges.EVANS, Circuit Judge.

Raymond Heyde, the trustee of an entity called the Raymond R.S. Heyde Revocable Trust, holds title to residential property located in Tazewell County, Illinois. Heyde brought suit against five members of the Tazewell County Board of Review (“BOR”): Gary Pittenger, Lloyd Orrick, Joe Varda, Rob Paulin and Robert Kieser; as well as Kristal Deininger, acting Supervisor of Assessments, Jim Unsicker, temporary acting Supervisor of Assessments, and Richard Brehmer, Deer Creek Township Assessor (“the Assessors”). Heyde asserts that by setting his property's assessment at levels grossly disproportionate to its fair market value, the BOR and the Assessors deprived him of his equal protection rights, conspired to violate his equal protection rights, and retaliated against him for previously exercising his right to challenge assessments—all in violation of 42 U.S.C. § 1983. He sought, among other things, damages against the defendants.

The district judge granted the BOR's Rule 12(b)(6) motion, finding they had absolute immunity. The judge later dismissed the case without prejudice against the remaining Assessors. Citing principles of comity, he found that the case was premature because Heyde had not exhausted his available state remedies. The judge also denied Heyde's motion for reconsideration. Heyde now appeals.

Some might think that Tazewell County, Illinois, is an unlikely spot for a nasty dispute like the one in this case. The county, which is just south of Peoria, describes itself on its website as a “central Illinois community which combines city assets with the serene beauty and quiet countryside of rural living.” But looks can be deceiving as Mr. Heyde's decision to go to war in federal court with eight of his fellow county residents is anything but serene and quiet.

In Tazewell County, the Township Assessor makes the initial assessment value of each property. According to Illinois law, the assessor shall assess “the property at 33 1/3% of its fair cash value.” 35 ILCS 200/9–155. If a resident is dissatisfied with an assessment, he is entitled to file a complaint with the BOR. “[T]he board of review upon application of any taxpayer or upon its own motion may revise the entire assessment of any taxpayer or any part of the assessment as appears to it to be just.” 35 ILCS 200/16–30. The BOR may not increase the assessment without giving the taxpayer notice and an opportunity to be heard. 35 ILCS 200/16–25, –30, –55. The BOR has the power to “summon any assessor, deputy, or other person to appear before it to be examined under oath concerning the method by which any evaluation has been ascertained.” 35 ILCS 200/16–10.

If, after the BOR has rendered its decision, the property owner remains dissatisfied, he may appeal the decision to the Illinois Property Tax Appeal Board (“PTAB”). 35 ILCS 200/16–160. A hearing before the PTAB “shall be granted if any party to the appeal so requests.” 35 ILCS 200/16–170. The PTAB may request the production of any material documents and issue subpoenas. Id., 35 ILCS 200/16–175. All PTAB decisions are subject to review by the state circuit courts, pursuant to Administrative Review Law and may be further appealed through the state court system. 35 ILCS 200/16–195.

In the fall of 2003, Heyde received his 2004 notice of assessment. The BOR assessed his property at $207,270. Heyde filed a complaint with the BOR, challenging the assessment as exceeding 33 1/3% of the property's fair market value. The BOR granted relief and decreased the assessment to $140,000.

In August 2004, Heyde received a notice which increased the assessment for 2005 to $149,850. Heyde again filed a complaint with the BOR. This time, the BOR declined to reduce the assessment.¹

In January 2005, Heyde hired an independent appraiser, who appraised his property at a fair market value of $435,000, which would result in an assessment of $145,000. In September 2005, Heyde received his 2006 notice of assessment. This time the assessment was set at $153,776. Yet again, Heyde filed a challenge with the BOR, submitting the independent appraiser's estimate as well as measurements of the house. In its June 1, 2006 decision, however, the BOR declined to reduce the assessment. Instead, the assessment was increased, very significantly, to $436,276. The huge jump in assessed value was apparently based on the belief that the house was much bigger than it was originally thought to be. The house on the property, which sits behind a locked gate and cannot be seen from any public way, was thought to include over 10,000 square feet of living space.

Following the BOR's June 1 decision, Richard Brehmer, the Tazewell County Assessor, reported the property's assessment at $458,860. Jim Unsicker, the acting Supervisor of Assessment for the county, mailed the 2007 notice of assessment to Heyde. In May 2007, Heyde again filed a complaint with the BOR. But the BOR affirmed the $458,860 assessment.

For the subsequent tax years until 2009, the BOR refused to lower the assessment on Heyde's property. Heyde continued to file complaints with the BOR. The roadblock to resolving the dispute seems to be that Heyde, for several years, declined to allow anyone from the county onto his property to do an inspection. The BOR continued to affirm the assessment.

On July 5, 2006, before filing this action with the district court, Heyde appealed the BOR's June 1, 2006 decision to the PTAB. A PTAB hearing officer heard the case on May 4, 2009. By this time, Heyde had allowed the BOR onto his property and both Heyde and the BOR stipulated that the residence contained 4,021 square feet of living area.

On November 25, 2009, the PTAB ordered a reduction in the assessment of Heyde's property for the 2005 tax year. The PTAB, however, did not reduce the assessment to Heyde's liking, and on December 30, 2009, he filed a complaint with the Tenth Judicial Circuit Court for Tazewell County, Illinois, seeking administrative review of the PTAB decision pursuant to 735 ILCS 5/3–101 et seq. Heyde currently has additional appeals pending before the PTAB for other tax years up to 2009. Apparently, none have been scheduled for a hearing.

In July 2007, Heyde filed a complaint in federal court against BOR Chairman Pittenger and former BOR members Orrick and Varda. On December 14, 2007, he amended his complaint to include current BOR members Paulin and Kieser, as well as Tazewell County Assessors Deininger, Unsicker, and Brehmer. He sought “in excess of $400,000 plus punitive damages.”

The district judge granted the BOR members' Rule 12(b)(6) motion, finding that they were entitled to absolute immunity. The remaining defendants (the Assessors) later filed a motion for summary judgment arguing that Heyde's case was premature because he has appeals pending before the PTAB and thus he has not exhausted his state remedies. In the alternative, they argued that they were protected by qualified immunity. The district judge found Heyde's claims to be premature under principles of comity. The judge accordingly dismissed Heyde's case without prejudice and did not reach the question of qualified immunity. The judge also denied Heyde's motion for reconsideration.

As a preliminary matter, the BOR and the Assessors argue that we do not have jurisdiction to hear this appeal because the district judge dismissed the case without prejudice. The Assessors argue that because Heyde can return to federal court after he has exhausted his state remedies the district judge's ruling was not a final order.

In Taylor–Holmes v. Office of the Cook County Public Guardian, however, we noted that “[a] dismissal without prejudice is an appealable final order if it ends the suit so far as the district court is concerned.” 503 F.3d 607, 610 (7th Cir.2007). Heyde correctly points out that the district judge's order effectively ends this suit because after Heyde has exhausted his state remedies the only federal court that can review the state court judgment is the Supreme Court. See Fair Assessment in Real Estate Ass'n, Inc. v. McNary, 454 U.S. 100, 116, 102 S.Ct. 177, 70 L.Ed.2d 271 (1981). Therefore, the district judge's order effectively ended the suit so far as the federal district court was concerned. Accordingly, we have jurisdiction to hear this appeal.

Next, we review the district judge's grant of the BOR's Rule 12(b)(6) motion to dismiss finding that the BOR is entitled to absolute immunity. Orders granting motions to dismiss are reviewed de novo. Justice v. Town of Cicero, 577 F.3d 768, 771 (7th Cir.2009). “In assessing whether the plaintiff has stated a valid claim for relief, we construe the complaint in the light most favorable to the plaintiff, accepting as true all well-pleaded facts alleged, and drawing all possible inferences in her favor.” Golden v. Helen Sigman & Associates, Ltd., 611 F.3d 356, 360 (7th Cir.2010) (internal quotations omitted). To state a claim under 42 U.S.C. § 1983, “[a] plaintiff[ ] must allege that a government official, acting under color of state law, deprived [him] of a right secured by the Constitution or laws of the United States.” Estate of Sims ex rel. Sims v. County of Bureau, 506 F.3d 509, 514 (7th Cir.2007). Dismissal is proper “if the complaint fails to set forth ‘enough facts to state a claim to relief that is plausible on its face.’ ” St....