Date: 12-01-2017

Case Style:

Case Number: 17-1396

Judge: Kanne

Court: United States Court of Appeals for the Seventh Circuit on appeal from the Northern District of Illinois (Winnebago County)

Plaintiff's Attorney: James Lessmeister and Jimmy Samad

Defendant's Attorney: William Don Emmert, William Michael Goff, Troy E. Haggestad, Joel M. L. Huotari, Gary Richard Kardell, Troy Allen Lundquist, Michael Joseph Meyer, William B. Oberts, J. Daniel Porter, Jordan Alexander Rosen

Description: A dog bit a Roscoe Township employee
on Kelly and Anita Cosgriff’s property. After the employee
and the township sued the Cosgriffs, the Cosgriffs
started a petition campaign encouraging taxpayers to notify
the township that its employees should not trespass on private
property.

2 No. 17‐1396

The Cosgriffs’ next property assessment set by the township
was significantly higher than their last. The Cosgriffs
challenged the increased assessment through a hearing before
the Winnebago County Board of Review, the Illinois county
in which Roscoe Township is located. The Board ruled in favor
of the Cosgriffs and substantially reduced the new assessment.

The Cosgriffs then sued Winnebago County and numerous
individual defendants in federal district court. The Cosgriffs
principally allege that the defendants acted unconstitutionally
when they increased the Cosgriffs’ property assessment
because the Cosgriffs spoke out against township employees
trespassing on private property.

The district court dismissed the Cosgriffs’ § 1983 claims,
reasoning that comity principles barred federal courts from
hearing these federal claims. The court also relinquished supplemental
jurisdiction over the remaining state‐law claims.
The Cosgriffs appealed the dismissal of their federal claims.

We affirm.

I. BACKGROUND

We draw the facts from the complaint and presume them
to be true for this appeal. See Bible v. United Student Aid Funds,
Inc., 799 F.3d 633, 639 (7th Cir. 2015).
Kelly and Anita Cosgriff reside in South Beloit, Illinois,
which is part of Roscoe Township in Winnebago County. In
2013, they installed a $50,000 pool at their home. When two
township employees came to the home in April 2014 to reassess
its property value after the addition of the pool, one of
the Cosgriffs’ dogs bit one of the employees. That employee
and Roscoe Township sued the Cosgriffs, so the Cosgriffs

No. 17‐1396 3

posted a “No Trespass” sign on their property. They also
started a petition drive on the website “change.org” that encouraged
other Roscoe Township taxpayers to notify the Roscoe
Township Assessor and its employees not to trespass on
their own property.

Kelly Cosgriff contacted the Winnebago County Supervisor
of Assessments, Thomas Walsh, several times to learn
about the property assessment process. Thereafter, Walsh
sought the advice of Assistant State’s Attorney David Kurlinkus.

The Cosgriffs allege that the two men then implemented
a strategy to impede the Cosgriffs. In part, Kurlinkus “ghost
wrote” a letter in July 2014 from Walsh to Kelly Cosgriff, stating
that Kelly needed to direct his inquiries to the Roscoe
Township Assessor instead.

Then, on August 7th, 2014, Walsh issued a “PTAX‐228 Notice
of Property Assessment” to the Cosgriffs for their home.
This new assessment reflected a valuation that was 47.14%
higher than the previous year, an increase in fair market value
from $357,000 to $525,000 even though the Cosgriffs added
only a $50,000 pool. It was the highest increase in Roscoe
Township in 2014, a year when 99.17% of properties saw their
assessed values reduced from the previous year.

On August 8th, Kelly Cosgriff emailed Walsh complaining
about this assessment. Walsh forwarded the message to David
Kurlinkus, who then forwarded it to his son (Josef Kurlinkus,
the Roscoe Township Attorney) with the one‐word message,
“Boom.”

The Cosgriffs filed a property tax assessment complaint
with the Winnebago County Board of Review supported by a
$345,000 appraisal of their property. The Board of Review set

4 No. 17‐1396

a hearing on their complaint for February 20, 2015. That day,
before the hearing began, Josef Kurlinkus—the township’s attorney—
moved to bar the Cosgriffs from presenting their appraisal,
citing a rule that prevents taxpayers from presenting
evidence when they have excluded a tax assessor from the
property. The Cosgriffs had invited Roscoe Township to inspect
the property, giving it a 30‐day window to do so. The
township did not take the Cosgriffs up on that offer.

In a closed‐door deliberation on Josef’s motion, Assistant
State’s Attorney David Kurlinkus argued in favor of granting
the motion to bar the admission of the Cosgriffs’ appraisal.
The motion to bar was granted. David Kurlinkus later recused
himself after being questioned about his participation in the
hearing.

The hearing on the complaint proceeded without the appraisal
evidence, but when Roscoe Township Assessor Joann
Hawes testified, she was unable to explain how she assessed
the Cosgriffs’ property at $525,000. At the conclusion of the
hearing, Kelly Cosgriff told the township’s attorney, Josef
Kurlinkus, “You should have done the right thing,” to which
Josef replied, “You should not have put up the website or
signs.”

The Winnebago County Board of Review found the value
of the Cosgriffs’ property to be $409,000 and reduced the assessment
accordingly. They did not appeal the matter further
in the state system.

They did, however, bring a suit—now in this court on appeal—
in federal district court against (1) Winnebago County;
(2) various county and township officials, individually and in

No. 17‐1396 5

their official capacities; and (3) Kurlinkus Law Office, LLC
(the law firm of Roscoe Township’s attorney, Josef Kurlinkus).

The Cosgriffs proceeded on three federal‐law claims as
well as some state‐law claims. The federal claims alleged that
the defendants violated 42 U.S.C. § 1983 by (1) retaliating
against the Cosgriffs for exercising their First Amendment
rights to free speech (Count I), (2) conspiring to violate the
Cosgriffs’ Fourteenth Amendment rights to due process
(Count II), and (3) violating the Cosgriffs’ Fourteenth Amendment
rights to equal protection of the law (Count III).

The defendants filed a motion to dismiss the federal claims
for failure to state a claim. The district court granted that motion.
We review this decision de novo, accepting all wellpleaded
allegations as true and drawing all reasonable inferences
in favor of the Cosgriffs. See Bible, 799 F.3d at 639. We
agree that the Cosgriffs’ federal claims should be dismissed.

II. ANALYSIS

Section 1983 prohibits unconstitutional actions by persons
acting under the color of state law. Congress “cut a broad
swath” when it enacted § 1983, and the statute appears by its
terms to give a federal cause of action to state taxpayers. Fair
Assessment in Real Estate Ass’n, Inc. v. McNary, 454 U.S. 100,
103–04 (1981). But the comity doctrine, which “counsels lower
federal courts to resist engagement in certain cases falling
within their jurisdiction,” Levin v. Commerce Energy, Inc., 560
U.S. 413, 421 (2010), has limited § 1983’s scope.

And cases dealing with state tax systems fall within the
comity doctrine’s purview. Before Congress enacted § 1983,
the Supreme Court “recognized the important and sensitive

6 No. 17‐1396

nature of state tax systems and the need for federal‐court restraint
when deciding cases that affect such systems.” Fair Assessment,
454 U.S. at 102 (referring to Dows v. City of Chicago,
78 U.S. (11 Wall.) 108, 110 (1871)). And then in 1937, Congress
provided that “[t]he 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 state court. 28 U.S.C. § 1341. Together, Congress and
the Court embedded “the fundamental principle of comity
between federal courts and state governments that is essential
to ‘Our Federalism,’ particularly in the area of state taxation.”
See Fair Assessment, 454 U.S at 103.

So, though § 1983 appears to give a federal cause of action
to state taxpayers, the principles of comity nonetheless apply
to bar a state taxpayer from bringing a § 1983 suit in federal
court. See id. at 103–05. This is true even if the taxpayer is seeking
to redress the allegedly unconstitutional administration of
a state tax system. See id. at 105. Taxpayers alleging that their
federal rights have been violated by state or local tax practices
must seek relief through available state remedies if those remedies
are “plain, adequate, and complete.” Id. at 116.

We have consistently barred taxpayers from bringing
§ 1983 suits “challenging the validity or imposition of state
and local taxes in federal courts unless the available state remedies
for those injuries are not adequate, plain, and complete.”
Capra v. Cook Cty. Bd. of Review, 733 F.3d 706, 713 (7th
Cir. 2013). In Werch v. City of Berlin, for example, we agreed
that a plaintiff’s § 1983 suit against the city of Berlin, the Board
of Review, and several individual city officials was meritless;

No. 17‐1396 7

the plaintiff alleged the city’s tax on his farm equipment denied
him equal protection of the law. 673 F.2d 192, 196 (7th
Cir. 1982).

And in Capra, we affirmed the dismissal of § 1983 suits
brought by Illinois taxpayers against the Cook County Board
of Review, its three commissioners, its chief deputy commissioner,
and its first assistant commissioners. 733 F.3d at 708,
718. The defendants increased the taxpayers’ property taxes
by revoking their property tax reductions. Allegedly, they revoked
the reductions after 2009 news reports claimed that
then‐Illinois State Representative Paul Froehlich had offered
property tax reductions to his constituents in exchange for
campaign contributions. See id. at 707. The suits alleged that
the defendants violated the taxpayers’ rights to equal protection
of the law, their rights to due process, and their First
Amendment rights to freedom of association. Id. at 708.

Importantly, we went on in Capra to find that Illinois’s procedures
for appealing property tax assessments are “adequate,
plain, and complete.” Id. at 714–17. “State remedies are
‘plain, speedy and efficient’ if they provide the taxpayer with
a ‘full hearing and judicial determination at which she may
raise any and all constitutional objections to the tax.’” Id. at
714 (citation omitted). In Illinois, taxpayers can appeal a decision
of a county Board of Review to the Property Tax Appeal
Board or file a tax objection complaint directly with a county
court. See id. at 714–15. If they select the former, they can appeal
that decision to the Illinois state courts. Id. Through either
route, the taxpayers can be heard by a state court of general
jurisdiction, appealing through the state court system to
the Supreme Court. Id.

8 No. 17‐1396

The Cosgriffs brought their § 1983 claims in federal
court—closely mirroring those three brought by the Capra taxpayers—
against the County and various individual officials.

The Cosgriffs attempt to remove their claims from the purview
of comity considerations by arguing that they are not
concerned about the tax that was imposed on them, but they
are instead concerned about the defendants’ unconstitutional
actions against them. This is a distinction without a difference.
If the defendants acted unconstitutionally, they only did
so because they increased the Cosgriffs’ tax burden by assessing
the Cosgriff property to be worth more than it was.

More specifically, the defendants allegedly conspired to impose
a higher tax on the Cosgriffs without due process as retaliation
for the Cosgriffs’ exercise of free speech. In doing so,
the defendants deprived the Cosgriffs of equal protection of
the law. These claims are of the same character, then, as those
brought by the Capra plaintiffs, and the principles of comity
apply to preclude the Cosgriffs’ claims from being heard in
federal court just as those principles applied to bar the Capra
plaintiffs’ claims from being heard.

Further, before bringing this federal suit, the Cosgriffs utilized
their Illinois state remedies by appealing their property
tax assessment. If they were still dissatisfied after their property
tax assessment was reduced, they could have continued
through the state process to obtain further review and raise
any and all constitutional objections to the tax. The fact that
they did not do so is not dispositive. “The focus is on the procedural
sufficiency of state remedies, not their substantive outcomes.”
Id. at 714. Thus, consistent with our previous decision
in Capra, the Cosgriffs cannot bring their tax‐related claims in
federal court.

Outcome: Because the Cosgriffs challenge the administration of a local
tax system under § 1983, their claims fall outside the scope
of the statute, in accordance with Fair Assessment. The available
state remedies are plain, adequate, and complete.
The Cosgriffs did not appeal the district court’s decision to
relinquish supplemental jurisdiction over their remaining
state‐law claims. Accordingly, we AFFIRM the district court’s
dismissal of the Cosgriffs’ federal‐law claims and relinquishment
of jurisdiction over their state‐law claims.

Plaintiff's Experts:

Defendant's Experts:

Comments: