Lake County Riverboat v. Ill. Gaming Bd.

• Decision Date: 19 May 2000
• Docket Number: No. 2-99-1434.,2-99-1434.
• Parties: LAKE COUNTY RIVERBOAT L.P., by FRGP, L.P., by its General Partner, Plaintiff-Appellant, v. ILLINOIS GAMING BOARD, Defendant-Appellee (Emerald Casino, Inc., f/k/a HP, Inc.; The Village of Rosemont; and West Central Municipal Conference, Intervening Defendants-Appellees).
• Court: United States Appellate Court of Illinois

730 N.E.2d 524

313 Ill. App.3d 943

246 Ill.Dec. 499

LAKE COUNTY RIVERBOAT L.P., by FRGP, L.P., by its General Partner, Plaintiff-Appellant, v. ILLINOIS GAMING BOARD, Defendant-Appellee (Emerald Casino, Inc., f/k/a HP, Inc.; The Village of Rosemont; and West Central Municipal Conference, Intervening Defendants-Appellees).

No. 2-99-1434.

Appellate Court of Illinois, Second District.

May 19, 2000.

Michael Dockterman, Paul S. Chervin, Waukegan, Susan M. Weis, Tina M. Caravette, Devlin J. Schoop, Holly L. Tomchey, Wildman, Harrold, Allen & Dixon, Chicago, Glenn K. Seidenfeld, Sr., Dallas TX, for Lake County Riverboat L.P.

James E. Ryan, Attorney General, Joel D. Bertocchi, Solicitor General, Mary E. Welsh, Assistant Attorney General, Chicago, for Illinois Gaming Board.

Jeremiah Marsh, Michael A. Ficaro, John P. Ratnaswamy, Hopkins & Sutter, Claudette P. Miller, Kevin M. Forde, Mary Anne Mason, Janice R. Forde, Kevin R. Malloy, Kevin M. Forde, Ltd., Chicago, for Emerald Casino, Inc.

Jeremy D. Margolis, Theodore J. Low, Kimberly M. DeShano, Altheimer & Gray, Chicago, for West Central Municipal Conference.

William R. Quinlan, James R. Carroll, John F. Kennedy, Michael I. Rothstein, Jean M. Prendergast, Quinlan & Crisham, Ltd., Chicago, for Village of Rosemont.

Justice RAPP delivered the opinion of the court:

This case comes to us after the supreme court issued a supervisory order directing this court to grant plaintiff's, Lake County Riverboat L.P.'s (LCR), petition for leave to appeal pursuant to Supreme Court Rule 306(a)(4) (166 Ill.2d R. 306(a)(4)). On appeal, plaintiff challenges the trial court's order granting defendant, the Illinois Gaming Board (Board), and intervening defendants, Emerald Casino, Inc., f/k/a HP, Inc. (Emerald or HP), the Village of Rosemont (Rosemont), and the West Central Municipal Conference (WCMC) (collectively, intervenors), a transfer of venue from Lake County to Cook County. After all of the briefs were filed, the intervenors moved to strike portions of plaintiff's reply brief, arguing that portions of the brief violated Supreme Court Rule 341(g) (177 Ill.2d R. 341(g)) and that certain statements made in the brief are unsupported by the record. We ordered the motion taken with the case. After careful consideration, we deny the motion.

I. FACTS

The facts relevant to this case are as follows. LCR sought to obtain a license for a riverboat gambling operation that it wished to locate on the Fox River in Lake County. According to LCR, the license it sought to obtain became available when the Board, late in June 1997, denied HP's renewal application for its East Dubuque riverboat gambling operation. See 86 Ill. Adm.Code § 3000.236 (1998). Shortly after the denial, HP ceased all operations. Under the terms of HP's license, it was required to maintain operations in order to retain its license. Thus, according to LCR, HP's license expired by its own terms and was available to be awarded to another operator. However, HP protested the Board's decision and exercised its right to a de novo administrative proceeding regarding the denial. See 86 Ill. Adm.Code §§ 3000.236(d)(1), 3000.400, 3000.405 (1998). This action kept HP's license in full force and effect.

Late in December 1997, LCR submitted an application to obtain HP's license. In February 1998, the Board denied LCR's application because there were no available licenses. The Board determined that the denial was without prejudice because it did not render a judgment on the merits of the application. Therefore, the Board permitted LCR to reapply for a license when one became available. However, the Board also resolved that it was committed to a competitive application process in awarding any future licenses. LCR did not challenge the Board's decision. Rather, LCR stood by and awaited the Board's decision on HP's license.

In May 1999, the Board's hearing officer recommended against renewing HP's license because the renewal application failed to meet the requirements of the Riverboat Gambling Act (Act) (230 ILCS 10/1 et seq. (West 1998)). The hearing officer noted that HP admitted that it intended to relocate its gaming operations to Rosemont and, relying on an earlier Attorney General's opinion finding that relocation of HP's operations could not occur without the opportunity for other prospective operators to apply for the license (1995 Ill. Atty. Gen. Op. ___, No. 95-011), the hearing officer recommended that HP reapply for the license as part of a competitive application process. Before the Board acted upon the hearing officer's recommendations, the legislature passed Public Act 91-40, adding section 11.2 to the Act. Section 11.2 provides:

"A licensee that was not conducting riverboat gambling on January 1, 1998[,] may apply to the Board for renewal and approval of relocation to a new home dock location authorized under Section 3(c) and the Board shall grant the application and approval upon receipt by the licensee of approval from the new municipality or county, as the case may be, in which the licensee wishes to relocate pursuant to Section 7(j)." Pub. Act 91-40, § 15, eff. June 25, 1999 (adding 230 ILCS 10/11.2).

HP was the only entity able to benefit from the passage of section 11.2. As a result of the new legislation, in September 1999, the Board ruled that the hearing officer's recommendations were moot. The Board therefore prepared to renew HP's license and approve its relocation to Rosemont under the new name of Emerald Casino. At the time, LCR did not have an application pending before the Board.

Nonetheless, on October 8, 1999, LCR filed a complaint against the Board in the circuit court of Lake County. The complaint sought injunctive relief and a declaratory judgment concerning the constitutionality of section 11.2 of the Act. LCR alleged that section 11.2 was unconstitutional because it was special legislation and it violated due process and equal protection. LCR also alleged that it suffered a constitutional injury because it made substantial efforts and expended substantial amounts of money to qualify for a license and the passage of section 11.2 absolutely precluded it from obtaining a license. As a result, LCR sought to enjoin the Board from enforcing the allegedly unconstitutional provision. The case was assigned to Judge John R. Goshgarian.

On October 19, 1999, the Board moved to transfer venue to Cook County. The Board argued that, under section 2-103(a) of the Code of Civil Procedure (Code) (735 ILCS 5/2-103(a) (West 1998)), venue was proper only in Cook County because that is where its principal office is located and because "the transaction which forms the basis of the Plaintiff's complaint [the enactment of an allegedly unconstitutional statute]" did not occur in Lake County.

The Board subsequently scheduled a meeting for October 26, 1999, to take action pursuant to section 11.2 of the Act. The meeting was to take place at the Board's offices in Cook County. In response, on October 22, 1999, LCR filed an emergency petition for a temporary restraining order (TRO) against the enforcement of section 11.2 of the Act. Judge Goshgarian granted the TRO and scheduled a hearing on the issue of venue for October 28, 1999.

On October 27, 1999, Rosemont filed an emergency petition to intervene and, during a brief hearing, stated that it was joining in the Board's motion to transfer venue to Cook County. Rosemont also filed its own written motion to transfer venue that incorporated, by reference, the Board's motion to transfer venue. Rosemont's motion to transfer venue was accompanied by a memorandum of law raising arguments identical to those raised by the Board in its motion.

Following the October 28, 1999, hearing, Judge Goshgarian denied the Board's motion to transfer venue and scheduled a later hearing on intervention. Judge Goshgarian reasoned that Lake County was a proper venue because LCR's preparatory actions caused legal positions to change, thereby amounting to a continuing "transaction" under the second prong of section 2-103(a) of the Code. The Board did not appeal Judge Goshgarian's venue order, though it clearly had the right to seek leave to appeal. See 166 Ill.2d R. 306(a)(4). Moreover, Rosemont's motion to transfer venue was technically not before the trial court because Rosemont was not yet a party to the litigation.

On November 1, 1999, Judge Goshgarian extended the TRO indefinitely. Also in early November, WCMC and Emerald each filed separate petitions to intervene. Along with the petitions, WCMC moved to dismiss LCR's complaint, and Emerald moved both to dismiss LCR's complaint and to transfer venue to Cook County. WCMC did not file a motion to transfer venue and never indicated that it was joining in the other parties' motions.

Judge Goshgarian heard the three petitions to intervene on November 16, 1999. At the hearing, the following colloquy took place:

"THE COURT: What assurances can you give me there won't be any delays, any distractions from the core issue?

MR. QUINLAN [Intervenors' Counsel]: Your Honor, there have been no delays up until now. * * *

* * *

THE COURT: Do you anticipate bringing in any other parties?

MR. DOCKTERMAN [Plaintiff's Counsel]: No, Your Honor.

MR. QUINLAN: We are here to represent our own interests.

THE COURT: How about any new issues?

MR. QUINLAN: Well, [Y]our Honor, the issues I think have been pretty well joined. I don't know of any new issues. We have to see how the case develops. In terms of issues within the confines of this case, we will not develop issues.

THE COURT: So far your pleadings are a two-edged sword. You mirror what the Attorney General has already filed so, that leads me to believe that it won't affect delay. Of course on the other hand, they are mirroring what the Attorney General has already done.

MR. QUINLAN: Your Honor, we can take positions that side with the Attorney General that are appropriate and we can take positions that don't

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