Aida v. Time Warner Entertainment Co., LP

• Decision Date: 28 June 2002
• Docket Number: No. 1-01-3827.,1-01-3827.
• Citation: Aida v. Time Warner Entertainment Co., LP, 772 N.E.2d 953, 332 Ill. App.3d 154, 265 Ill.Dec. 582 (Ill. App. 2002)
• Parties: AIDA, an Illinois not-for-profit corporation, Plaintiff-Appellant, v. TIME WARNER ENTERTAINMENT COMPANY, L.P., a Delaware limited partnership, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

772 N.E.2d 953

332 Ill. App.3d 154

265 Ill.Dec. 582

AIDA, an Illinois not-for-profit corporation, Plaintiff-Appellant, v.TIME WARNER ENTERTAINMENT COMPANY, L.P., a Delaware limited partnership, Defendant-Appellee.

No. 1-01-3827.

Appellate Court of Illinois, First District, Third Division.

June 28, 2002.

Rehearing Denied August 5, 2002.

Enrico J. Mirabelli, Michael J. Pollelle, Chicago, for Appellant.

Timothy D. Elliott, Kirkland & Ellis, Chicago, Kirkland & Ellis, Thomas D. Yannucci, Christopher Landau, Elizabeth S. Petrela, Washington, DC, for Appellee.

Justice SOUTHdelivered the opinion of the court:

This case arises from the trial court's order granting Time Warner Entertainment Company's (Time Warner)motion to dismiss the complaint of the American Italian Defense Association(AIDA).

AIDA, an Illinois not-for-profit organization made up of over 100 members, was formed for the following purpose, set forth in its articles of incorporation:

"The corporation is organized * * * for * * * educational purposes, to-wit, the education of the public concerning the history, culture, language and customs of immigrants to the United States from Italy, and the artistic, political, scientific and educational contributions made by such persons to American society; and further including, for such purposes, the opposition by lawful means of all forms of negative stereotyping, and defamation of Italian Americans."

On April 5, 2001, AIDA filed a complaint for declaratory judgment against Time Warner.In its complaint, AIDA sought a declaratory judgment from the trial court"that various episodes of The Sopranos alone or the series when taken as a whole, breaches the Individual Dignity Clause of the Illinois Constitution with respect to Italian Americans individually or as a group by reason of, or by reference to, the ethnic affiliation of the characters portrayed in that program."

The individual dignity clause of the Illinois Constitution provides:

"Individual Dignity.

To promote individual dignity, communications that portray criminality, depravity or lack of virtue in, or that incite violence, hatred, abuse or hostility toward, a person or group of persons by reason of or by reference to religious, racial, ethnic, national or regional affiliation are condemned."Ill. Const.1970, art. I, § 20.

In its complaint, AIDA does not seek damages nor does it seek to restrain Time Warner from airing The Sopranos on HBO.

AIDA further asserts in its complaint that it has "standing" to file this lawsuit on behalf of and for the benefit of its members individually and by virtue of the right to remedy and justice clause of the Illinois Constitution.The right to remedy and justice clause provides:

"Right to Remedy and Justice.

Every person shall find a certain remedy in the laws for all injuries and wrongs which he receives to his person, privacy, property or reputation.He shall obtain justice, by law, freely, completely, and promptly."Ill. Const.1970, art. I, § 12.

On May 21, 2001, Time Warner filed a motion under section 2615 of the Code of Civil Procedure to dismiss AIDA's complaint for failure to state a cause of action.735 ILCS 5/2-615(West 2000).Time Warner argued that AIDA's complaint should be dismissed because (1) the individual dignity clause does not create a judicially enforceable private right of action, but was "purely hortatory" in nature; and (2) if the individual dignity clause did create a private right of action, AIDA's efforts would violate both the freedom of speech provisions of the state and federal constitutions.

On August 29, 2001, the trial court held hearings on Time Warner's section 2-615 motion to dismiss.During the hearing, although the issue of whether AIDA had standing to file suit against Time Warner had not been raised by Time Warner in the trial, the trial court raised the issue sua sponte.Both counsel for AIDA and Time Warner were allowed to address the issue of standing before the trial court.

On September 19, 2001, the trial court issued a memorandum opinion and order granting Time Warner's motion to dismiss.In its opinion and order, the trial court reasoned that "the basis for AIDA's standing to bring its claim is unclear.AIDA has not alleged that it has an interest that is separate and distinct from that of the general public."The court held that "other than AIDA's citation to section 103.10(b) of the Not for Profit Corporation Act, which does not by itself confer standing, there is no basis for standing that can be ascertained from the Complaint other than AIDA's claim that it represents the interest of Italian Americans."Finally, the court reasoned that "the plain language of the Individual Dignity Clause clearly demonstrates that the Clause is merely hortatory[,] * * * [it] does not expressly state that it creates a private cause of action."

On October 16, 2001, AIDA filed the instant appeal.

AIDA raises three issues on appeal: (1) whether Time Warner waived the issue of "standing" by failing to raise it in the trial court; (2) whether a request only for declaratory relief based on the verdict of a jury is an appropriate remedy for effecting the individual dignity clause in the Bill of Rights of the Illinois Constitution; and (3) whether the individual dignity clause contained in the Bill of Rights of the Illinois Constitution is simply a platitudinous "constitutional sermon" without any legal effect.

Prior to addressing AIDA's issue with regard to standing, we must note that Time Warner filed a section 2-615motion to dismiss in this case.A section 2-615 motion admits all well-pleaded facts and attacks only the legal sufficiency of the complaint (735 ILCS 5/2-615(West 2000);Janes v. First Federal Savings & Loan Ass'n of Berwyn,57 Ill.2d 398, 406, 312 N.E.2d 605(1974)); a section 2-619 motion admits the legal sufficiency of the complaint, but raises defects, defenses or other affirmative matter appearing on the face of the complaint or established by external submissions which defeat the action (735 ILCS 5/2-619(West 2000);Joseph v. Chicago Transit Authority,306 Ill.App.3d 927, 930, 240 Ill.Dec. 46, 715 N.E.2d 733, 736(1999)).Since lack of standing is generally considered an affirmative defense, it may be raised under section 2-619.Glisson v. City of Marion,188 Ill.2d 211, 220, 242 Ill.Dec. 79, 720 N.E.2d 1034, 1039(1999).However, this court may affirm a correct dismissal by the trial court for any reason appearing in the record.Gunthorp v. Golan,184 Ill.2d 432, 438, 235 Ill.Dec. 21, 704 N.E.2d 370(1998);see alsoGeick v. Kay,236 Ill.App.3d 868, 873, 177 Ill.Dec. 340, 603 N.E.2d 121(1992)(we note that the order the plaintiff appeals from does not specify whether the dismissal of the complaint was pursuant to section 2-615 or section 2-619; however, we may affirm a correct decision for any reason appearing in the record regardless of the basis relied on by the trial court).As such, even though Time Warner never filed a section 2-619 motion to dismiss, we may still affirm the trial court's dismissal if the record indicates that there were other bases in the record that could have supported the dismissal.

Our review of a dismissal pursuant to both sections 2-615' and 2-619 is de novo.T & S Signs, Inc. v. Village of Wadsworth,261 Ill.App.3d 1080, 1084, 199 Ill.Dec. 467, 634 N.E.2d 306(1994).

In this case, AIDA urges that due to Time Warner's failure to raise this issue in its motion to dismiss, it has been waived for purposes of appeal.AIDA cites Greer v. Illinois Housing Development Authority,122 Ill.2d 462, 120 Ill.Dec. 531, 524 N.E.2d 561(1988), in support of its position.In Greer, the Illinois Supreme Court stated that "lack of standing in a civil case is an affirmative defense, which will be waived if not raised in a timely fashion in the trial court."Greer,122 Ill.2d at 508, 120 Ill.Dec. 531, 524 N.E.2d 561.

Although we agree that standing is an affirmative defense that normally should be raised in the trial court, we will address the issue in this case for several reasons.First, the facts in Greer are distinguishable from the facts in the instant case.The supreme court specifically noted that in Greer, not only did the developers fail to present the issue of standing at trial, but the trial court record was completely devoid of a factual basis for determining the issue of standing.Greer,122 Ill.2d at 509, 120 Ill.Dec. 531, 524 N.E.2d 561.There were no oral arguments on the issue of standing in the trial court and the issue was never raised by the trial court.

In this case, during the hearings on Time Warner's motion to dismiss, the trial court raised the issue of standing, sua sponte, and both sides were given the opportunity to address the issue fully at the hearing.Furthermore, although we recognize that it is not AIDA's burden to prove standing as part of its prima facie case, AIDA specifically asserted in its complaint that it has standing to file this lawsuit on behalf of and for the benefit of its members individually and by virtue of the right to remedy and justice clause of the Illinois Constitution.As such, unlike the facts in Greer,the trial court was provided with the factual and legal basis upon which AIDA asserts standing to file this lawsuit.

Second, the waiver rule is a limitation on the parties and not the jurisdiction of this court.Michigan Avenue National Bank v. County of Cook,191 Ill.2d 493, 518, 247 Ill.Dec. 473, 732 N.E.2d 528(2000);M.A.K. v. Rush-Presbyterian-St-Luke's Medical Center,198 Ill.2d 249, 261 Ill.Dec. 710, 764 N.E.2d 1(2001).

Keeping in mind that our Illinois Supreme Court has stated that this court may affirm a correct dismissal for any reason appearing in the record (Gunthorp,184 Ill.2d at 438,235 Ill.Dec. 21,704 N.E.2d 370), we will address the issue of standing.See alsoPre-School Owners Ass'n of Illinois, Inc. v. Department of Children & Family Services,119 Ill.2d 268...