proceed under that procedure plaintiffs are not free to bring constitutional at all the premise for this argument is that the only matter at issue in the illinois tax objection procedure is the correctness of the plaintiff's own assessments that process could never secure kind of spread of relief efforts even if plaintiff's assessments were fully correct under state statutory law the assessor's systematic intentional illegal debasement of most other assessments in plaintiff's commercial and industrial classes violated equal protection by causing disparate inflated taxes court's decision in the friedman case which was attached to the complaint but their argument and conclusion are identical to the appellate court's that conclusion is that constitutional claims cannot be raised that is correct your honor although those are the only illinois decisions to have construed the crucial language of the statute and i have if that could could the illinois supreme court read the statute differently to save it constitutionality as applied to your clients the illinois supreme court could potentially do so but the uncertainty that has been created the young clarity and the statute that has allowed the illinois trial court and the appellate court in friedman to draw those conclusions and is allowing the defendant officials to make the argument that i've just noted to this court indicate significant uncertainty and clarity in the remedy that is offered to illinois taxpayers under this statute the language of the statute states directly that if it applies the court shell consider the objection to the text in the assessment without regard to any of the assessors methodology and intent counsel can i ask you a question about natural it's if it applies and my question as i mean it it seems to me and you know the defendants can tell me if i'm misunderstanding that cracks and how they represent the position that article twenty three just doesn't permit these kinds of constitutional claims to be aired but does article sixteen i guess i'm wondering is it the fact that article twenty three doesn't provide you of a mechanism for airing your constitutional claims wouldn't matter wouldn't permit us to exercise jurisdiction because of the tax injunction act if you had another mechanism for airing those claims your honor i think is referring to an article sixteen to the alternative remedy in the illinois property tax b s and there are two reasons that remedy is of no use to these taxpayers the st being that there's an exclusive election the taxpayers they had to make so once you're committed to the state court process and the tax objection are to your bound to that process the nd point though when this was aired in the trial court although since defendants have not raised it we did not elaborate on it in the briefs but the property tax appeal board has ruled that it cannot hear this kind dunster to tional claim going to the levels of assessments that were applied to plaintiff's property on the one hand the discriminatory levels applied to the other properties and that ruling is actually in the record it's in the separate appendix  statutory ordinance levels of assessment and the whole equal protection violation here consisted of the assessor's intentional violation of those levels of assessment with regard to the majority of the property and  the record the p t have ruled that it in commercial and industrial cases which is these point of it simply cannot consider those assessment level ish so there is a bar even stronger in the p alternative remedies it's fine for a state to propose that but it can't be a trap they can't say well one of the remedies is adequate but the other is not and too bad for you you picked the wrong one so the were intended to streamline the process for the thousands and thousands of more routine appeals that are pursued every year i understand i think your point the excluding evidence  n relevance of methodology and intent forecloses the kind of claim you want to bring is there what would the statute need to look like to satisfy both the county  you with the we in this respect it would have to allow clearly constitutional federal constitutional protection clause it's clear that under the tax injunction act in comedy the measure of adequacy of the state remedy is its ability to encompass federal constitutional claims regardless of what of state causes of action are bited so we just ought to have a catchall that says by the way all these rules have to bend in the case of a federal constitutionally that is correct your honor and indeed we have attempted to argue to the state court that the statute should be construed differently and that this methodology prohibition in particular that is the most restrictive aspect of the statute and is the foundation of the representation that no constitutional claims can be heard and we have attempted to argue that that should be read as completely in a to a case where federal constitutional claims are allege the courts have not agreed with friedman court in particular based on the exact argument that's being  today to this court has said that constitutional claims must be barred because and there's actually a logic to it if that provision applies well then it says the court cannot consider the central element of a constitutional equal protection like mr davis yes you would you consider this an appropriate case for certification to the only supreme court your honor it is possible what we would draw the court's attention to is again we are relying on the rule that the supreme court has repeatedly affirmed that any uncertainty or on clarity in the state remedy lifts the bar to federal jurisdiction and once federal jurisdiction is there it should be exercised by a quote from the supreme court in california versus grace brethren church which is just in the briefs stating this court has never hesitated to declare a state refund procedure in adequate to bar federal d relief if the taxpayers opportunity to raise his constitutional claims in the state proceedings is uncertain so it is our submission your honor that should the court conclude that there is a possibility for further construction of the state law for example by the supreme court it will necessarily have concluded that there is an uncertainty in the r that uncertainty in the remedy itself creates federal jurisdiction regarding how do you balance out against the concept of comedy your honor the as this court has held in cases such as  capra as the supreme court held in the fair assessment versus mcnairy case essentially the tx injunction act standard plain speedy and efficient the comedy standard of plain adequate and complete are identical so if uncertainty is the rule with regard to the t i a it is also the rule with regard to comedy and there is no basis for the federal courts to abstain and now we think that illinois would speed ily clarify its own law what the judicial decision or it might choose to clarify the law by legislative action i think it is fair to assume that that will happen very swiftly upon the federal courts taking jurisdiction of the state tax case so i think what the court may consider but obviously the court those rules are available section twenty of the illinois this court's rules  feel that also as the rd circuit ruled in the vernon corporation case there is a serious procedural due process problem with this statute as it has been construed and even with the uncertainty that's created on its face a presumption of validity of the assessment coupled with a heavy burden of proof on the taxpayer but then with a prohibition against the taxpayer bringing forth the very evidence and the very issues that are at the core of the need that cannot be procedural due process do you think the presumption in the standard of proof by themselves are unconstitutional not by themselves here on o well the thing about an adequate legal remedy is i think plaintiff is focused on the cause of action it can bring i think the decisions from this court the supreme court focus more on the remedy what do you know making the fact that you know you're overlooking the fact that those supreme court said you know now again pittsburgh coal that this kind of theory works it does violate the equal protection clause to assess property perfectly under state law if you systematically discriminate against those people whose property you assess perfectly right by under valuing everybody else's that that works i don't see how that claim can possibly be heard under the statutory  property were correct under the letter of state law that's a presumption but he can raise evidence now to the point i was getting that's that none that's not the presumption that's the theory of their case and i'm sure i understand on the allegany pittsburgh cold case perfectly correct under the letter of state law but discriminatory by under valuing other property systematically and there's always that theory which is co enormous sense in the seven to nine thousand cases a year that you've talked about ok in your briefs and that you don't have to answer in that these things have to be dealt with in enormous volumes this case with its kind of federal constitutional instead of just saying that a commercial and residential properties were treated differently even though does your a they pay the taxes that you and i lot of quired to the claim was that black property owners taxpayer of this property owner i didn't see any discussion because grew from this problem i mean there has never been so well developed an attack on this procedural problem under section twenty  statutory prohibition on methods and intent at the end of the day if we're talking about is an assessment that's improper you bring that under captive you bring that t wants to check i mean that bottom line is it doesn't really matter in terms of two thousand three hundred and fifteen what the methodology was in the sense that if the assessor had a perfect methodology came up with the wrong level of and unless a payment is made under protest there's no cause of action later this is the property tax code solves that problem for taxpayers section twenty three dollars deaths five by ruling that all payments made are presumed are paid under pressure deemed paid under protest but we know from the only supreme court in the case alvarez vs pappas is that one of the results of that is that the taxpayers then have to follow the cause of action that the that the property tax could provide that not i understand is it your theory that if the plaintiffs proceeded in federal court they would not be able to take advantage of that statutory presumption in the county could argue that they had made their payments supreme court has weighed in and whether a constitutional came can be made in the p t a mr davis referred to the p d f ruling but that hasn't been tested so we don't know the answer and if there was ever a place to raise that issue seems to me it would be for the illinois courts which goes to judge farms question of whether certification would be appropriate or our position of course is that we think on the long line of precedence about comedy in a tax injunction that this case is no different plaintiff is trying to bring an equal protection  im are you taking a position that i think the sixteen is plainly the right route and which should raise a constitutional challenge i think it possible i don't know i think that possible airplane oh i don't think it prohibits it frankly so i don't know if the point is the is that the court there recognized the equal protection theory the plaintiffs are using here and that theory needs to be available to them either in the state courts or injunction comedies i'd undernet national private truck council if they can get their full remedy which they can hear and these are questions of these are evidentiary questions for a state court judge whether or not they could raise the you know the issues that they wan center the key phrase is if an objection is made claiming in a correct evaluation the court should consider the objection without regard to the correctness of any practice procedure or method evaluation followed by the assessor board of appeals or board of review in making a reviewing assessment and without regard to the intent or motivation of the s s i think the public policy underneath that statute was that language you were knocking at weevil or legislature post the ford motor company case maybe it will be useless to try this again but no but the assessor who is deliberately under valuing the properties of favored groups let's say whites democrats christians can be brought i would i would go with the language from from caspar from from judge canny that it's a distinction without a difference if the at the end of the day the damage is based on the improper assessment and the and the every bit as valuable every bit as important in terms of public policy as the policy against against discrimination where someone as a christian or are based on the color skin or what have you and yet judge what it did to court and judge can you say to a distinction without that's the one you're making now with the argument with respect to these claims and it's based on the fact that the remedies are the same in both the state court claims and what they believe that's being requested here and so the plaintiffs have been firing these circumstances right your theory is that you were in that in the counties theory is that the remedy is available in the state courts and therefore they had to pursue that they have been pursuing that and now that it seems reasonably clear that the state courts are not open early sufficiently for purposes of federal constitutional dark comedy and in the t i a to my initial question they should have filed at the same time i suppose that's true and asked the federal courts to stay the case for ten or fifteen years to decide well what purpose would that serve well that it wouldn't be sta for ten or fifteen years if the court were to decide whether there was relief allowed in the federal court and there was a question about which form should proceed and that wouldn't necessarily take ten years for that  client did not retain the documents it's true we were not a party to the claim there was no litigation hold the documents continued to be destroyed after the subpoena was issued that is my that's my understand i was the basis for please the court i guess at this point all i can say is that the only thing that is clear is how unclear the remedy is in the state court if the state attorney of cook county is correct that the statute bars consideration of constitutional claims and bars any evidence of the assessor's methodology or intent that would support an equal protection claim then the state law remedies here are it adequate not even considering the fifteen year delay that makes the remedies not speedy either the cases including this court's decision in ca's where the supreme court's decision and rosewell make clear that to constitute a plain remedy the taxpayer has to be able to have a meaningful opportunity to present his or her constitutional claims in a state forum and if i understand the state's attorney's brief and if i understand the state's attorney's argument that does not exist here and that in my mind is what truly differentiates this case from perry from capra and from all of the other decisions of this court finding that illinois provided a clean speedy and efficient remedy for unconstitutional te the state remedy in those cases may well have been adequate but in this case this kind of a claim it was pretty much the same process right it's just that for example in capra adequacy of state remedies was an afterthought not even brought up until oral argument before this court so the parties hadn't developed case you all have had this process slates from the beginning previously well that's  i don't know we have the process in our sights from the beginning but certainly the way the process has played out in this case and on the heels of treatment opinion the remedy here is decidedly in adequate because of our inability to present these constitutional claims in the state court but seems like capra silm that twenty feet vailable but i don't think from your experiences that indeed it is not well capper didn't deal with this kind of a claim in your honor act put her finger on it a little earlier in that our claim is based on the undervaluation of similarly classified properties not on an improper evaluation of our own property and that's where lee puts the methodology prohibition at issue and that you didn't have a paper so i think that all things considered we simply don't have a plain remedy here it certainly has not been speedy and i think there is federal jurisdiction i do want to come back to the question that judge flarm raised regarding certification to the illinois supreme court and i do agree with my colleague that the uncertainty here along is sufficient for purposes of federal jurisdiction and that this case should proceed but if there is any question in this about the uncertainty of illinois law or about whether the state is properly representing that law i think that certification may well be appropriate for a lack of federal jurisdiction under twelve b want it is not appropriate for the court to consider as an alternative bases of court for months rule twelve b six arguments such as the