O'Donnell v. City of Chicago
| Decision Date | 21 December 2005 |
| Docket Number | No. 1-04-3474.,1-04-3474. |
| Citation | 842 N.E.2d 208 |
| Parties | Terrence O'DONNELL, Plaintiff-Appellee, v. The CITY OF CHICAGO, a Municipal Corporation; Richard M. Daley, Mayor of the City of Chicago; Terry Hillard, Superintendent of Police of the City of Chicago; and Hugh Murphy, Director of Revenue of the City of Chicago, Defendants-Appellants. |
| Court | United States Appellate Court of Illinois |
Brown, Udell & Pomerantz, Chicago (Glenn L. Udell and James R. Donoval, of counsel), for Appellee.
This appeal arises from an order of the circuit court granting plaintiff Terrence O'Donnell's motion for a permanent injunction enjoining defendants the City of Chicago and City of Chicago officials Mayor Richard M. Daley, Superintendent of Police Terry Hillard and Director of Revenue Hugh Murphy from enforcing sections 4-156-150, 4-156-190 and 4-156-280 of the City of Chicago's Municipal Code (Code) (Chicago Municipal Code § 4-156-150 (amended July 25, 2001), § 4-156-190 (amended April 1, 1998), § 4-156-280 (amended April 1, 1998)). Defendants argue that the court erred in finding the Code sections, which relate to automatic amusement devices used in illegal gambling, unconstitutional and invalid. We reverse.
On April 1, 1998, the City of Chicago enacted amendments to chapter 4-156 of the Code relating to the prevention of illegal gambling. Effective May 9, 1998, amended section 4-156-150 provided the following definition":
Chicago Municipal Code § 4-156-150 (amended April 1, 1998).
Amended section 4-156-190 provided for the seizure of an illegal amusement device as follows:
Chicago Municipal Code § 4-156-190 (amended April 1, 1998).
The City also amended sections 4-156-280 and 4-156-510, which provide for penalties to be imposed if an automatic amusement device is used for illegal gambling. Chicago Municipal Code §§ 4-156-280, 4-156-510 (amended April 1, 1998).
On May 8, 1998, plaintiff, an owner, lessor and operator of automatic amusement devices, filed a complaint against defendants, asserting, in salient part, that the amended ordinances are vague, ambiguous and overbroad and violate the freedom of speech, equal protection and due process constitutional guarantees; the City's "eminent domain" seizure and destruction of automatic amusement devices without just compensation would constitute an unconstitutional taking of plaintiff's property; in enacting the amendments, the City exceeded and violated its home rule power for the aforementioned reasons; and plaintiff was entitled to a declaratory judgment that the amended ordinances were invalid, unconstitutional and unenforceable.
Plaintiff simultaneously filed a motion for a preliminary injunction and emergency motion for a temporary restraining order seeking to enjoin defendants from enforcing any provisions of the amended ordinances while the case was pending. The same day, finding the contested sections of the Code "cannot be enforced as they are vague, ambiguous and overbroad," the court granted plaintiff's motion for a temporary restraining order enjoining defendants from enforcing the ordinances, as amended.
On July 25, 2001, the Chicago city council again amended section 4-156-150. Effective September 1, 2001, the amendment added the following definitions to section 4-156-150:
"`Knock-off circuit' means any mechanical or electrical device, circuitry or modification on an automatic amusement device, whereby free games shown on an externally visible indicator are released, while a record of games so released is maintained on a second indicator, meter or counter, either inside or outside the device. A reset button installed by the manufacturer of the automatic amusement device shall not, without more, constitute a knock-off circuit.
The phrase `more than 10 replays or free games' means more than 10 replays or free games at one time. `Free game or replay' does not include an extension of a game awarded as a result of the player's skill, such as an extra ball in a pinball game or extended playing time in a video game.
`Payoff' means the giving of money or other thing of value in exchange for a player's accumulated points or free games or replays.
The phrase `a count of payoffs or the number of times a player has won a game played on the device' means a tally, whether on paper, mechanical or electronic, and regardless of whether maintained inside, on or outside the automatic amusement device. The phrase is not intended to include a record of scores, accessible to players of the device, and linked to previous players' names, nicknames, initials or other identifiers, for purposes of comparison and competition.
The phrase `tally of players' scores other than the tally displayed to players does not include a record of scores, accessible to players of the device, and linked to previous players' names, nicknames, initials or other identifiers, for purposes of comparison and competition." Chicago Municipal Code § 4-156-150 (amended July 25, 2001).
In light of the amendment, defendants moved to dissolve the temporary restraining order and dismiss plaintiff's amended complaint, arguing that the amendments clarified the terms of the gambling ordinance and thus rendered plaintiff's claims moot. The court granted the motion to dissolve the restraining order but stayed the dissolution until December 20, 2001. The court granted plaintiff leave to file a second amended complaint and a new motion for a temporary retraining order and preliminary injunction, which he did on December 17, 2001. Plaintiff's second amended complaint made essentially the same arguments as his original complaint, including that the ordinances are facially overbroad, vague, ambiguous and unintelligible and give enforcement officers unbridled discretion to determine which amusement devices were prohibited. The court granted plaintiff's motion for a temporary restraining order, again enjoining enforcement of the four amended sections of chapter 4-156 pending resolution of the case. The court denied defendants' motion to dismiss the complaint and the case went to trial.
Following a full hearing, the court issued its order and opinion on October 20, 2004, granting plaintiff's request for permanent injunctive relief. Although the court found no merit in plaintiff's estoppel argument, it did find sections "4-156-150, 4-156-190 and 4-156-[2]80 * * * unconstitutional, invalid and unenforceable" and permanently enjoined the city and its officials "from enforcing any provision" of those sections. On November 1, 2004, pursuant to the parties' agreement, the court ordered that there was no just reason to delay enforcement or appeal of the matter. Defendants filed their timely notice of appeal on November 18, 2004.
Defendants argue on appeal that the court erred in finding that (1) section 4-156-150's definition of "illegal amusement device" is internally...
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