every argument we've made in this case the critical fundamental facts i believe of the starting place here or the follow up after engaging in the series of what i think can only be described as confusing and according to the department of revenue misleading discussions about when are filing deadline was we were told explicitly that our filing deadline was twenty days from the day we received the notice civically october first now that is so fundamentally important as at least a starting place here because it means one of two things must have been true about that statement either it was correct in which case the circuit court error here and we certainly believe it was correct that's the point you make in sections two and section four of our brief or it was incorrect in which case it means that the department of revenue violated our constitutional right to proceed told the process or they forfeited the argument either way the result here should be the say we are entitled to our day in court we are entitled to the opportunity to have an illinois state judge rule on the merits question presented which is whether or not the administrative law judge got this right in holding that this amusement tax cannot be lawfully applied to our clients now we've obviously identified no sooner is mercury relieved of all obligation to look at  our obligation is the same as the obligation the supreme court identified in grammar and our obligation is to not be any really what the obligation i guess if you want to put it is that when the department of revenue chooses to try and form a party about  received from the department and then there would be no way that apartment could possibly argue that there was anything other than a due process violation here i think that's true regardless of the subsequent communications as well so so when you said if you don't pay by a  this is labeled the jeopardy tax assessment which is a notion that is unknown as a matter of cook county law but is very well known not just statewide but nationally and it's important to recognize the basic distinction here a jeopardy assessment  so if i can explain the idea the reason she was discussing that was that one of our initial arguments in the case was that because there is no such thing as he got pretty tax assessment as a matter of county l then there was no jurisdiction to apply the jeopardy type assessment against us what that it's notable department of revenue turned around said no no no we can see that there is jurisdiction here in the department of administrative hearing our response is that it history here i mean i think from the perspective of graham the point of the point is that that was confusing and misleading and therefore it violates procedural due process regardless of anything else we also have the statement in a form which is still up on the website as of this morning saying that you have twenty days from the date of receipt to file your protest and then we had a confirmation e mail saying you have twenty days from the date of her se to fire a protest and that is october first and that is just what we did this case is indistinguishable from graham for a very simple refer couple of reasons first in ground the illinois supreme court pointed out that the agency provided confusing and misleading information to a part the same is true here the department of revenue time and again provided information to us that was confusing at best innocently did they have an obligation to write the information to you about the deadline for protest or even the right to protest you know in the only supreme court explains that in brentwood the illinois supreme court said there was that in agency need not provide any information at all but when it chooses to do so it must  political here in the context of the ministry hearing it so i think it's i think it's certainly a political to the admission the initial notice i think it's certainly a political to the protest for i mean the fact that they didn't have to tell you if that's your position that the county did not have to tell you anything that's correct that's correct i think that's clear from graham and i think it's also clear i think it's a little bit more of a challenging argument when you look at the underlying u s supreme court precedent jones against floured the mennonite board of missions cases both of which say that notice has to be constructed in a way that is reasonably calculated to appraise an individual of their right so i think the only supreme court said that in graham it's binding i'm not sure that would hold up in washington and i might be able to find five votes on that but for now i'm certainly happy to live under the rule of grammar for simple reason that this case can't be distinguished from gretna think the department of revenues representations here are less defense than what the agencies represented in it the notice that was provided was that you have thirty five days from the date were served with this notice in order to file your and what the supreme court says well that's confusing because the word service is inherently ambiguous and issue of ambiguity here we have a very clear statement and now halfway through the litigation they've decided that they disagree with that statement and that there were so in addition ok so who the first notice was september ni the second notice was the protests for he said yes you're ok do you think that protest form could be fairly characterized as a construction manual for people who want to protest or how to tailored specifically to a particular type of service of the taxpayers the taxpayer could have received the notice of microphone delivery which case the department seems to view the date of delivery is the operative word well that's or they could receive it by us mail in which case they receive it is the operative who said it was mail and so are not necessarily so who did it particularly well with the right to liberty slash mail i think with the idea that the taxpayer is going to figure out which one applies well the problem just to sell us here is that they're saying this and then they're leaving this and they're leaving this ambiguity creating confusing information just like the word surgeon greg and they're leaving it out there to the public and asking the public to resolve that confusion and that's contrary to their due process obligation then they turn around and say it is twenty days from her seat which is october first that's where the due process problem lies what i'll add here is that it's that interpretation that here midway through this litigation so even if you disagree with me that this creates a due process problem and i think under graham there's not a lot of wiggle room but even if you disagree with me that means that they have changed their opinion midway through the litigation that is the navy but i took that to mean that the revenue was providing for two different possibilities depending on which was a political which form of service you know that letter is heavily redacted i can't tell if it was you know i can't tell which one and the other didn't actually check the box with either box and so it was after this case began and it says explicitly twenty days from her seat so it best while they were telling this court one thing they are telling somebody else what he was getting two different options in that form and one of them had to be picked i don't believe in the person's we can do that i just i just don't see this evidence i mean throughout you keep saying that they are shifting their positions i don't see your due process argument is as much more than just a shift of position you're talking about communications w if the department of revenue an official letter said your due date is october first we wouldn't be having this conversation if if the chief legal counsel said this is how we interpret it if on the other hand and the other extreme of it you know if you just stuff some random employee in the hallway you don't even know what they do if you do them the custodian ok we would say well why would you rely on something that somebody who doesn't have any authority would say your position is obvious who this person was high enough up she was the person you were dealing with right and the guy i can't remember her name but the auditor was the on the face of the department revenue as far as you were concerned as you were negotiating this and then once they file in individual employees actions can be unconstitutional actions can be ascribed to a state agency or state and city where that and where that that person is carrying out a department policy or practice either formal or informal so the question is not how i high up in the organization this person is the question is whether or not this person was carrying out something that looks like a policy or practice of the agency but but but what if the individual was in fact carrying out a policy i think a practice we've established that with evidence there's no contrary evidence in the record to say that this was something that was essentially a ploy that had gone broke and was saying something that had never here to forgive thought of by the agency that we are very much in that line of cases and therefore this constitutional violation can be ascribed to the agency as a whole that's the difference between a stoppel argument and a constitutional argument and the reason that's test and the constitutional line is so much more robust is that this is a constitutional rights say the u s supreme court and bear in mind most of all all of who you know who does that mean if if if we think that that was not revenues that they didn't change the rules they were actually keeping consistent with their policy but this one particular order made him stated that you don't have a due process when i come in know that i don't that would not be our position because we still have the other communications from the agency that can in and out of it themselves in our view give rise to a due process problem because they're every bit as confusing as the types of notices additional grand i don't  e mail to when the e mail makes it really easy the way i mean that i think that's the simple truth and some now if it's but so to the i think the other point i'll make here is that all of those to stop all cases that the department of revenue sites are all on merits quest so where the representation from the individual was this tax does not apply to you there is a difference when you talk in a constitutional context about procedure you you know this is the perk this is the process that will be filed and that's why i think courts are much more reluctant to find a stop against the government on a merits issue on the substance issue than on a just mere procedure issue remember we're just asking to have our being court we just are asking to have an p case makes that clear the millennium park joint venture case in tandem makes it clear you can certainly answer any questions you have about that i'm also happy to talk about why we think the statute supports jurisdiction for administrative hearings regardless of anything related to the twenty day deadline at the end of the day what we have here is an agency that has in essence half way through this litigation having lost on the merits suddenly decided that this was untimely and that there was no jurisdiction just i just wanted to say you know i've made mistakes in my career it's difficult for me to stand up here and say that the mistakes were made on the part of the representative of the taxpayer but i believe that that  what happened in this case and that is why the tax protest was filed late it's not because of the notes it's because of a mistake it was just the act here or here yes the department of revenues employee made a mistake oh there's nothing in telling the counsel for the plaintiff that the date was i told her first when it was in fact september twenty ninth she made a mistake i don't think there's anything in the record that shows that that was a appeal to the circuit court as it did not have to there is a protest form either included within that assessment or subsequently sent i don't know which of the was either one of those things scratched out of circle or example mailed in there you know there's a i believe it's page four twenty of the record the tax assessment with the big stamp saying may have mailed september ninth is is that on that page i don't think that was my recollection is that that piece of the record that assessment was not there other copies of the assessment that appear at various points in the record that are redacted but but they're the same it's the same assessment that it's just in there several times because people have written on it i'm sorry i lost my train of thought i asked a couple questions or not this notice here you're right it says male september night i'm so one of the things that says if payment is not received by the due date the cook county department of revenue will schedule  you know i have to say that that's it's it's not consistent with the order of thirty four dash eight which says that it's actually not thirty four if yes actually it is it says that if you don't file your protest and petition for hearing within twenty days of the mailing of the assessment that assessment is going to become final right and so the notice seems to suggest otherwise i can't i'm not going to say that the that the text of the items in the notice say things that they don't say and so if i'm the lawyer for her career if i just heard every i see that i think oh it looks like there's going to be administrative hearing anyways like maybe if i don't pay by the due date that's deemed a protest which wouldn't be an unreasonable thing to think that by not paying you saying no enough i'll pay it and i'm protesting and then you schedule a hearing well we did have a section in our brief where we addressed the two deshon i know way versus two that you know i know i know i was just referencing that trying to make sense of what this possibly could have met other than a protester i don't think you made a protest here in here but that's just what you meant but reading this doesn't this lead someone to think that they are going to get that protest hearing without doing anything litigant is not familiar with you know ordinances that have time periods in them but we have a dueling concept here which is that the appellate court can affirm for any basis account on the record and the record here shows without me getting into it because i notified that the if if there was not a payment made the an assessment would issue and they that there would be you know a tax assessment issued upon them that there were thirty four different email going on the record but yeah talking about th the ability to protest or even more specifically the deadline for filing there's nothing in the record just to demonstrate that that was discussed that i did i don't think that there's anything in the record that says by the way you have according to thirty four dash eighty a you have twenty days from the date of the mailing of the assessment i believe that that's true but there's a lot of evidence in the record that shows that the that the council was very familiar with the county's code of ordinances  at least the black letter law says that the due process is a flexible concept and it depends upon the facts and circumstances so in the grim vs halak a case which was written from the perspective of a pro se litigant even though there is mention of an attorney in the background of that opinion distinguishable also in grimm the notice said you have thirty five days to file in the circuit court of after the date that you were served and then it went on to say it purported to to missed the the filing deadline so in this case we have an ordinance that i counsel was familiar with it it's a there's a reasonable inference that she was familiar with it may be uniform penalties ordinance thirty four or eighty eight that says twenty days from the date of mailing and it was not it appears that she relied upon the representation of the of the department of revenue employee which i have to believe was a mistake and not some cynical attempt to mislead i before i forget  you're referring to the twenty thirteen notices but those weren't then again though those notices say what they say he didn't hear but but but those were the notices that wasn't the form of notice that was received in the in this case  was there were no pro se individuals involved this was totally handled by counsel i did want to point out because opposing counsel mentioned that we had a change in litigation posture i was the attorney that litigated the matter in the department of administrative hearings we had a hearing on them on the merits and the first time that i became aware that the petition that the protest petition was filed late was when the l j issued her decision and she said by the way it was filed late but too bad it's a statute of limitations and you guys didn't say anything about it so you to get well that's why i raised that happy circuit court level because jurisdictional issues can be raised at any time but i would client never told me anything about what the judge did the ail jay did and as i said it's a matter that can be raised at any time if if if if i had known i would raise them and maybe we wouldn't have had a hearing and maybe the result would be the don't believe that you can show relief under the one thousand nine hundred three except for intentional misconduct and the this record does not show intentional misconduct on the part of the employee if anything it was a mistake so i don't think the that that is  to that is going to be relevant the protest i did want to mention the protest form i'm not sure if the protest form was included with the assessment or if it was subsequently sent but the protest form is for the benefit of the taxpayer and it to that it says the assessment was mailed slash delivered that is i believe that that's for the taxpayer to fill out the taxpayer says the note what if they picked it up physically or if it was not mail they'll say it was delivered on whatever the date was if it was mailed put in september ninth why i gather that was the point of how you get it yet delivered refers to personal delivery and maybe just the first u s mail but that's fine if that's what you meant to do but we have to look at this from the viewpoint  september eleventh and that's a good think in the record so it would be strange but it seems like if you receive this by mail you can say delivery means the day i got it i mean you refer to mail as being delivered to someone's house when i don't know i think that they have standard forms that they use from time to time i don't know i think that they i think that that tax protest though is something that was supposed to be filled out by the taxpayer in saying of course that in this case it would have been taxpayer  filing this protest because my assessment was mailed on september ninth and therefore i am now filing this text protest within twenty days to sort of establish that to to to fix the fact that there that there is  something that is really part of the notice that the county is sending to the taxpayer that's something that the taxpayer is filling out it would you make them fill it out i mean you put it on your website and before people fill things out before people file maybe someone might happen somebody grosse you basically are expecting the taxpayers to use that form right we are providing that form as a as a benefit as a to be used by the taxpayer but let me say this what it suppose that the taxpayer doesn't fill out the date when it says mail slash delivered and i leave it blank on the taxpayer i'm filing my protest i think the black instead i file my protest on i don't know september twentieth but i mean the plan i mean what i'm trying to say is i don't think that the department of revenue is relying upon the taxpayer to provide the correct date of mailing or personal delivery that's something that's in the form that you can fill up but if it's left blank the department is going to say we mailed that they're going to consult their own records they're going to say here's a copy of our tax assessment it has a temper one stamped on it the protest that's filed by the taxpayer does not say supreme court night in fact they left it blank but they filed their protest on september twentieth which is well within the twenty day range and therefore now the department of administrative hearing says you're expecting to hear this case so it's not a the form is not a requirement we're so that if it if the say that the court can affirm for any basis on the ground of the record and there is there are there are cases that say that everyone is presumed to know the law statutory and otherwise you know you have some obligation depending on who you are first time twenty one year old or seasoned attorney to who to especially if you have experience in this area you got to know that there is something in the ordinances that says when you have to file you don't have to rely on the person of the department of revenue that you e mail or call up to tell you and so that's it didn't put any evidence in the record so the only evidence in the record are the ones that have been presented indicating that they have for a very long period of time represented to people i'll be confusingly it sometimes at the due date is twenty days from the date of receipt and all of the speculation that opposing counsel provided here today has no evidentiary basis in the record and if you look at the record all that we know is that there was one position in the past and there is a new position there in this element under menow but the intent in a procedural due process case is not an intent to mislead it is an intent to provide information that would be inconsistent with their  to provide procedural due process in essence the intent here had to be the intent to carry out the policy or practice of the agency there is no such thing as an as a malicious intent requirement procedural due process and i think this case shows why what would we have done if that were the standard well we would have said we would like to depose mr belgrade us we'd like to depose all of the individuals at the department who went through this we also want their e mails and every document that has ever been sent to anyone regarding this practice so that we can show up in malicious intent report obviously that's not the law the last point i want to make is this because the department of revenue keeps going back to this idea that there are two different rules that apply when it comes to due process one for those with sophisticated counsel and that one with that first i don't know how one is supposed to determine whether or not a council is sufficiently sophisticated so as to be able to be and the idea that you would draw that distinction between them and this case i would think would go down a very slippery slope in terms of grading the competency of counsel and procedural due process cases the other point all that is that's the argument is fundamental with the u s supreme court's decisions a serious look at the mennonite ordinations case and it sets the government has a responsibility to provide a fair and adequate procedural due process fair and adequate notice even to those who are sophisticated and who have lots of resources and have good legal counsel so in that at the end of the day i think it's important just to rule bear in mind what the department of revenue is in essence say they are not saying that there is a way to distinguish this case from ram there is not a way to distinguish this case from the u s supreme court's decisions in this area they are saying that that line of cases should be rolled back and it strikes me that that is not the role of the appellate court when there binding and controlling precedent from the our supreme court a brief last shot the presumption that is at the heart of the department of revenue is hard to make here today was that this deadline was jurisdictional i think that is very very much in dispute and it's very much in dispute because of the cho's ek switch says the question is whether the right that the party is seeking to vindicate was a common law right and millennium park joint venture sets that there has been eight hundred fifty year tradition and a common law right to challenge taxes as an authorized by law so your honour's this is the end of the day strikes me as a relatively easy case under the doctrine and for that reason we ask this work to give us a chance to