Crusius ex rel. Taxpayers of the State of Illinois v. ILLINOIS GAMING BD.

• Decision Date: 31 March 2004
• Docket Number: No. 1-02-2819.,1-02-2819.
• Parties: Philip N. CRUSIUS, a State of Illinois Taxpayer, on Behalf of and For the Benefit of the TAXPAYERS OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. ILLINOIS GAMING BOARD; Gregory C. Jones, Tobias G. Barry, Ira Rogal; Elzie Higginbottom, and Robert A. Mariano, in Their Official Capacities as Members of the Illinois Gaming Board; Daniel W. Hynes, in his Official Capacity as Illinois State Comptroller; and Judy Baar Topinka, in her Official Capacity as Illinois State Treasurer, Defendants-Appellees (The Village of Rosemont, an Illinois Municipal Corporation, Intervenor Defendant-Appellee).
• Court: United States Appellate Court of Illinois

807 N.E.2d 1207

348 Ill. App.3d 44

283 Ill.Dec. 366

Philip N. CRUSIUS, a State of Illinois Taxpayer, on Behalf of and For the Benefit of the TAXPAYERS OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. ILLINOIS GAMING BOARD; Gregory C. Jones, Tobias G. Barry, Ira Rogal; Elzie Higginbottom, and Robert A. Mariano, in Their Official Capacities as Members of the Illinois Gaming Board; Daniel W. Hynes, in his Official Capacity as Illinois State Comptroller; and Judy Baar Topinka, in her Official Capacity as Illinois State Treasurer, Defendants-Appellees (The Village of Rosemont, an Illinois Municipal Corporation, Intervenor Defendant-Appellee).

No. 1-02-2819.

Appellate Court of Illinois, First District, First Division.

March 31, 2004.

Better Government Association, Chicago (Terrance A. Norton and Jay E. Stewart, of counsel), for Plaintiff-Appellant.

Lisa Madigan, Attorney General (Mary E. Welsh, of counsel), and Gary S. Feinerman, Solicitor General, Chicago, for Defendants-Appellees.

Quinlan & Carroll, Ltd., Chicago (William R. Quinlan, James R. Carroll, James A. Niewiara, and Nicholas G. Grapsas, of counsel), for Intervenor Defendant-Appellee.

Justice McBRIDE delivered the opinion of the court:

At issue in this case is the constitutionality of section 11.2(a) of the Riverboat Gambling Act (230 ILCS 10/11.2(a) (West 2000)), which allows "[a] licensee that was not conducting riverboat gambling on January 1, 1998[, to] apply to the [Illinois Gaming] Board for [license] renewal and approval of relocation to a new home dock location." Illinois citizen and taxpayer Philip N. Crusius filed an action on behalf of all Illinois taxpayers and the State of Illinois seeking a declaratory judgment that section 11.2(a) violated the constitutional ban on special legislation (Ill. Const. 1970, art. IV, § 13) (count I). Crusius also sought to enjoin the expenditure of any state funds (count II) or the transfer of any state property (count III) in the administration of Public Act 91-40 section 30, the public act which includes section 11.2(a) and contains an inseverability clause. Public Act 91-40, § 30, eff. June 25, 1999. The circuit court of Cook County found that section 11.2(a) did not violate the constitution's prohibition on special legislation and dismissed Crusius' action with prejudice. Crusius appeals.

The defendants named in Crusius' action were the Illinois Gaming Board, the individual board members, the State Comptroller, and the State Treasurer. The Village of Rosemont, Illinois (Rosemont), was subsequently granted leave to intervene as a defendant, based on a petition indicating a gaming licensee, Emerald Casino, Inc. (Emerald), had applied for approval to relocate to Rosemont pursuant to section 11.2(a).

Defendants maintain that Crusius lacks standing. Defendants challenged his standing by way of motions for involuntary dismissal under section 2-619(a)(9) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(9) (West 2000)), which was an appropriate avenue for asserting the affirmative defense of standing. Chicago Teachers Union, Local 1 v. Board of Education of the City of Chicago, 189 Ill.2d 200, 206, 244 Ill.Dec. 26, 724 N.E.2d 914, 918 (2000); Greer v. Illinois Housing Development Authority, 122 Ill.2d 462, 494, 120 Ill.Dec. 531, 524 N.E.2d 561, 575 (1988) (standing is an affirmative defense). The determination of whether a plaintiff has standing to sue is based upon the allegations of his complaint. Martini v. Netsch, 272 Ill.App.3d 693, 695, 208 Ill.Dec. 974, 650 N.E.2d 668, 670 (1995). A section 2-619 motion admits the legal sufficiency of the complaint, but raises defects, defenses, or other affirmative matter apparent on the face of the complaint or established by external submissions which defeat the action. AIDA v. Time Warner Entertainment Co., L.P., 332 Ill.App.3d 154, 158, 265 Ill.Dec. 582, 772 N.E.2d 953, 957, 772 N.E.2d 953, 957 (2002). When ruling on a section 2-619 argument, a court must accept as true all well-pled facts in the plaintiff's complaint and all inferences that reasonably can be drawn in the plaintiff's favor. Chicago Teachers Union, 189 Ill.2d at 206, 244 Ill.Dec. 26, 724 N.E.2d at 918. Our review of the disposition of a section 2-619 motion is de novo. Chicago Teachers Union, 189 Ill.2d at 206,

244 Ill.Dec. 26,

724 N.E.2d at 918.

The doctrine of standing ensures that the person pursuing the action has a real interest in the outcome of the controversy. Chicago Teachers Union, 189 Ill.2d at 206, 244 Ill.Dec. 26, 724 N.E.2d at 918. In a declaratory judgment action, there must be an "actual" controversy between adverse parties and the party seeking the declaratory judgment must be "interested" in the controversy. Flynn v. Ryan, 199 Ill.2d 430, 436, 264 Ill.Dec. 710, 771 N.E.2d 414, 418 (2002).

The "actual controversy" component of standing "`"does not mean that a wrong must have been committed and injury inflicted. Rather, it requires a showing that the underlying facts and issues of the case are not moot or premature, so as to require the court to pass judgment on mere abstract propositions of law, render an advisory opinion, or give legal advice as to future events. [Citations.] The case must, therefore, present a concrete dispute admitting of an immediate and definitive determination of the parties' rights, the resolution of which will aid in the termination of the controversy or some part thereof [Citations.]"'" Flynn, 199 Ill.2d at 436-37, 264 Ill.Dec. 710,771 N.E.2d at 418, quoting Illinois Gamefowl Breeders Ass'n v. Block, 75 Ill.2d 443, 450-51, 27 Ill.Dec. 465, 389 N.E.2d 529 (1979).

Additionally, the "interested in the controversy" component of standing "`"does not mean merely having a curiosity about or a concern for the outcome of the controversy. Rather, the party seeking relief must possess a personal claim, status, or right which is capable of being affected."'" Flynn, 199 Ill.2d at 437, 264 Ill.Dec. 710, 771 N.E.2d at 418, quoting Gamefowl Breeders, 75 Ill.2d at 450-51, 27 Ill.Dec. 465, 389 N.E.2d 529.

Therefore, to have standing to challenge the constitutionality of a statute, the plaintiff must have sustained or be in immediate danger of sustaining a direct injury as a result of the enforcement of the statute. Flynn, 199 Ill.2d at 437, 264 Ill. Dec. 710, 771 N.E.2d at 418-19; Chicago Teachers Union, 189 Ill.2d at 206, 244 Ill.Dec. 26, 724 N.E.2d at 918. The plaintiff's "claimed injury must be (1) distinct and palpable; (2) fairly traceable to [the] defendant's actions; and (3) substantially likely to be prevented or redressed by the grant of the requested relief." Chicago Teachers Union, 189 Ill.2d at 207, 244 Ill.Dec. 26, 724 N.E.2d at 918.

A taxpayer may enjoin the use of public funds, based upon the taxpayers' ownership of the funds and their liability to replenish the public treasury for the deficiency caused by the misappropriation thereof. Martini, 272 Ill.App.3d at 695, 208 Ill.Dec. 974, 650 N.E.2d at 670 (and cases cited therein). "Consequently, a taxpayer has standing to bring suit, even in the absence of a statute, to enforce the equitable interest in public property which he claims is being illegally disposed of." Martini, 272 Ill.App.3d at 696, 208 Ill.Dec. 974, 650 N.E.2d at 670. In addition, section 11-301 of the Code of Civil Procedure provides, "An action to restrain and enjoin the disbursement of public funds by any officer or officers of the State government may be maintained either by the Attorney General or by any citizen and taxpayer of the State." 735 ILCS 5/11-301 (West 2000). See also 735 ILCS 5/11-303 (West 2000) (specifying procedures for commencing citizen's action). Crusius' action was premised on section 11-301.

There is no requirement that a plaintiff taxpayer have a substantial individual interest when bringing suit under section 11-301. Snow v. Dixon, 66 Ill.2d 443, 450, 6 Ill.Dec. 230, 362 N.E.2d 1052, 1055 (1977), citing the Disbursement of Public Moneys Act (Ill.Rev.Stat.1975, ch. 102, par. 11 et seq. (now 735 ILCS 5/11-301 (West 2000)). Further, even though a taxpayer is not subject to the provisions of the act, the taxpayer may bring suit to enjoin misuse of public funds in administering an illegal legislative act. Snow, 66 Ill.2d at 450, 6 Ill.Dec. 230, 362 N.E.2d at 1055; Krebs v. Thompson, 387 Ill. 471, 56 N.E.2d 761 (1944) (addressing plaintiff's arguments, after noting plaintiff did not claim to be subject to challenged act or affected by its provisions, except as a taxpayer).

These principles indicate that plaintiff Crusius had standing. He had the right to enforce his interest as a taxpayer in public resources that were allegedly being used in administering an illegal legislative act. He alleged a distinct and palpable injury to a legally cognizable interest in state resources. The expenditure of the state resources was traceable to the actions of the Illinois Gaming Board, the State Comptroller, and the State Treasurer. If the court granted the requested declaration and injunctions, further injury to the taxpayer's interests would have been prevented. We reject defendants' contention that Crusius lacked standing because he erroneously alleged he "has paid taxes to the State of Illinois in the form of riverboat admission tax and riverboat wagering tax," when these taxes are actually paid by gaming licensees, not visitors of the riverboats. See 230 ILCS 10/12, 13 (West 2000). This allegation, although erroneous, was unnecessary in light of his earlier, undisputed allegation that he "paid, and is paying taxes to the State of Illinois, including, but not limited to, sales taxes, income taxes, motor vehicle taxes and motor vehicle fuel taxes." Crusius' inclusion of a superfluous, erroneous allegation was of no consequence in light of other allegations indicating he was interested in the outcome of the controversy. Cole v. Guy, 183 Ill.App.3d 768, 773-74, 132 Ill.Dec. 126, 539 N.E.2d 436, 440 (1989) ("If a...