Empress Casino Joliet v. Giannoulias ( 2008 )

Docket Nos. 104586, 104587, 104590 cons.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
EMPRESS CASINO JOLIET CORPORATION et al., Appellees, v.
ALEXI GIANNOULIAS, Treasurer of the State of Illinois, et al.,
Appellants.
Opinion filed June 5, 2008.
JUSTICE BURKE delivered the judgment of the court, with
opinion.
Chief Justice Thomas and Justices Freeman, Fitzgerald, Kilbride,
Garman, and Karmeier concurred in the judgment and opinion.
OPINION
In this case, we are asked to determine the constitutionality of
Public Act 94–804 (the Act), which imposed, for a two-year period
beginning on the effective date of the amendatory Act, a 3%
surcharge on the four riverboat casinos in Illinois that had adjusted
gross receipts (AGR) of over $200 million in the calendar year 2004.
The remaining five riverboat casinos, all of which had AGRs below
$200 million, were not subject to the surcharge. The Act provided
that the proceeds of the surcharge were to be distributed to the five
horse racing tracks in Illinois. For the reasons that follow, we hold
that Public Act 94–804 withstands the constitutional challenges
raised, in the circuit court of Will County, by the four casinos subject
to the tax.
BACKGROUND
The Illinois legislature authorized riverboat casinos in 1990 under
the Riverboat Gambling Act (230 ILCS 10/1 et seq. (West 2004)).
There are 10 licenses available for riverboats in Illinois: nine are in
use, the tenth is in litigation. The nine riverboat casinos are located
in Alton, Aurora, East Dubuque, East St. Louis, Elgin, Joliet,
Metropolis, Peoria, and Rock Island. Four casinos have AGRS over
$200 million–Empress Casino Joliet, Harrah’s Casino Cruises Joliet,
Hollywood Casino-Aurora, and Elgin Riverboat Resort-Riverboat
Casino. There are five horse racing tracks with live racing in Illinois,
located in Arlington Heights, Crete, Collinsville, Stickney/Cicero,
and Melrose Park.
In May 2006, the General Assembly passed Public Act 94–804.
The Act requires those casinos with AGRs over $200 million to daily
contribute 3% of their AGR into the Horse Racing Equity Trust Fund.
The Act provides that the monies (along with interest) shall be
distributed, within 10 days of deposit into the Fund, as follows: 60%
to organization licensees to be distributed at their race meetings as
purses and 40% to racetracks “to improve, maintain, market, and
otherwise operate [their] racing facilities to conduct live racing,
which shall include backstretch services and capital improvements
related to live racing and the backstretch.” Distribution of the above-
described 40% takes place as follows: 11% to Fairmount Park
Racetrack and 89% to the other four tracks pro rata based on the
aggregate proportion of total handle1 for calendar years 2004 and
2005 from wagering on live races conducted in Illinois.
In enacting Public Act 94–804, the legislature made the following
findings:
“(1) That riverboat gaming has had a negative impact on
horse racing. From 1992, the first full year of riverboat
operations, through 2005, Illinois on-track wagering has
deceased by 42% from $835 million to $482 million.
1
The “handle” is the amount of money wagered in the pari-mutuel pool
or the total amount of bets taken.
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(2) That this decrease in wagering has negatively
impacted purses for Illinois racing, which has hurt the State’s
breeding industry. Between 1991 and 2004 the number of
foals registered with the Department of Agriculture has
decreased by more th[a]n 46% from 3,529 to 1,891.
(3) That the decline of the Illinois horseracing and
breeding program, a $2.5 billion industry, would be reversed
if this amendatory Act of the 94th General Assembly was
enacted. By requiring that riverboats agree to pay 3% of their
gross revenue into the Horse Racing Equity Trust Fund, total
purses in the State may increase by 50%, helping Illinois
tracks to better compete with those in other states. Illinois
currently ranks thirteenth nationally in terms of its purse size;
the change would propel the State to second or third.
(4) That Illinois agriculture and other businesses that
support and supply the horse racing industry, already a sector
that employs over 37,000 Illinoisans, also stand to
substantially benefit and would be much more likely to create
additional jobs should Illinois horse racing once again become
competitive with other states.
(5) That the 3% of gross revenues this amendatory Act of
the 94th General Assembly will contribute to the horse racing
industry will benefit that important industry for Illinois
farmers, breeders, and fans of horseracing and will begin to
address the negative impact riverboat gaming has had on
Illinois horseracing.” Pub. Act 94–804, §1, eff. May 26, 2006.
Plaintiffs, Empress Casino Joliet Corporation, Des Plaines
Development Limited Partnership d/b/a Harrah’s Casino Cruises
Joliet, Hollywood Casino-Aurora, Inc., and Elgin Riverboat Resort-
Riverboat Casino d/b/a Grand Victoria Casino, filed a four-count
complaint for declaratory judgment and injunctive relief against
defendants, Alexi Giannoulias as the Treasurer of the State of Illinois2
and the Illinois Racing Board.
2
Judy Barr Topinka was originally named. Giannoulias was substituted
as defendant when he took office.
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In count I, plaintiffs alleged that the Act violates the takings
clause (article I, section 15) and the due process clause (article I,
section 2) of the Illinois Constitution, as well as the due process
clause of the United States Constitution, because the surcharge is
used for a primarily private use. In count II, plaintiffs alleged that the
Act violates article VIII, section 1 (the so-called public funds clause),
of the Illinois Constitution because the surcharge was imposed for a
private purpose only. In count III, plaintiffs alleged that the Act
violates the uniformity clause (article IX, section 2) of the Illinois
Constitution as well as the equal protection clauses of the Illinois and
federal constitutions. Lastly, in count IV, plaintiffs alleged that the
Act violates the special legislation provision (article IV, section 13)
of the Illinois Constitution because the surcharge confers a benefit on
a particular private group without a reasonable basis, rather than
promoting the general welfare of the state. Plaintiffs sought a
declaration that the Act is unconstitutional and a permanent
injunction against the imposition or collection of the surcharge.
Plaintiffs have paid the surcharge under protest pursuant to the State
Officers and Employees Money Disposition Act (30 ILCS 230/2a
(West 2006)).
Balmoral Park Racing Club, Inc., Hawthorne Race Course, Inc.,
Maywood Park Trotting Association, the National Jockey Club, and
the Illinois Harness Horsemen’s Association were granted leave to
intervene on behalf of defendants.
The parties eventually filed cross-motions for summary judgment.
The circuit court granted summary judgment in favor of plaintiffs,
holding that the Act is invalid because it violates the uniformity
clause of the Illinois Constitution. The circuit court found there was
no real and substantial difference between the four casinos taxed and
the five casinos not taxed and that no reasonable relationship had
been provided for the classification. In so finding, the circuit court
rejected defendants’ contention that the classification for the taxed
casinos was reasonable since those casinos making over $200 million
AGR were better able to absorb the surcharge. The court found that
the ability-to-absorb justification was insufficient.
Because the circuit court invalidated an Illinois statute, defendants
and intervenors appeal directly to this court. See 210 Ill. 2d R.
302(a)(1).
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ANALYSIS
Summary judgment is proper where “the pleadings, depositions,
and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.” 735 ILCS
5/2–1005(c) (West 2000). We review the circuit court’s grant of
summary judgment de novo. Arangold Corp. v. Zehnder, 204 Ill. 2d
142, 146 (2003).
We also review the constitutionality of a statute de novo.
Arangold Corp., 204 Ill. 2d at 146. “Statutes bear a presumption of
constitutionality, and broad latitude is afforded to legislative
classifications for taxing purposes.” Allegro Services, Ltd. v.
Metropolitan Pier & Exposition Authority, 172 Ill. 2d 243, 250
(1996). The party challenging a nonproperty tax classification carries
the burden of rebutting that presumption and “clearly establishing”
the Act’s unconstitutionality by showing that it “is arbitrary or
unreasonable.” Allegro Services, Ltd., 172 Ill. 2d at 250-51. We have
a duty to uphold a statute as constitutional whenever reasonably
possible. Arangold Corp., 204 Ill. 2d at 146.
I. Uniformity Challenge
A. Standards for a Uniformity Challenge
Article IX, section 2, of the Illinois Constitution provides:
“In any law classifying the subjects or objects of
non-property taxes or fees, the classes shall be reasonable and
the subjects and objects within each class shall be taxed
uniformly. Exemptions, deductions, credits, refunds and other
allowances shall be reasonable.” Ill. Const. 1970, art. IX, §2.
The standards for evaluating a challenge to a statute based on the
uniformity clause are well established:
“To survive scrutiny under the uniformity clause, a
nonproperty tax classification must (1) be based on a real and
substantial difference between the people taxed and those not
taxed, and (2) bear some reasonable relationship to the object
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of the legislation or to public policy.” Arangold Corp., 204
Ill. 2d at 153.
Relying on language from this court’s decision in Arangold
Corp., plaintiffs initially contend that, to satisfy the second prong of
the uniformity test, the tax (1) must be designed to remedy a special
burden the class in question has imposed on the state or (2) must
confer a specific benefit on the class taxed.
In Arangold Corp., wholesale distributors of cigars and chewing
tobacco challenged a tax on their products to fund long-term care for
skilled and intermediate nursing facilities, particularly for those
unable to afford the cost of such care, as a violation of due process
and the uniformity clause. We rejected both challenges. With respect
to the uniformity challenge, we concluded that the plaintiffs failed to
satisfy their burden to show that the asserted justification for the
classification was unsupported by the facts. Arangold Corp., 204 Ill.
2d at 157.
Plaintiffs maintain that, while the tax was found reasonable in
Arangold Corp., we must reach an opposite result here. Plaintiffs
argue that the critical difference between the instant case and
Arangold Corp. is that the General Assembly here could not
rationally believe the “responsibility to pay” for subsidizing the horse
racing industry “rests with the State.” Moreover, plaintiffs contend
that whatever harm the casinos have caused to the horse racing
industry, it cannot possibly be deemed a burden imposed by the
casinos on the state since the state has no responsibility to support the
horse racing industry.
Plaintiffs’ contention that the tax levied against them must be
designed to remedy a special burden the casinos imposed on the state
in order for the classification to bear a reasonable relationship to the
statute is incorrect. Plaintiffs take comments this court made in
Arangold Corp. in connection with our due process discussion and
attempt to interject them into the uniformity analysis. In Arangold
Corp., when discussing the second prong of a due process challenge,
i.e., whether the statute bears a reasonable relationship to the interest
intended to be protected, we noted that the General Assembly could
have believed the responsibility to assist the poor with long-term care
rests with the state, that persons often need long-term care due to their
use of tobacco products, and thus, distributors of tobacco products
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should bear some measure of the costs through taxation. From this
comment, plaintiffs attempt to engraft onto the second prong of the
uniformity analysis a requirement that the tax must be designed to
remedy some burden the taxed class has imposed on the state in order
to satisfy that prong. We reject this argument.
When discussing the plaintiffs’ challenge under the uniformity
clause in Arangold Corp., this court never held that, in order to bear
a reasonable relationship to the object of the legislation, the tax must
be designed to remedy some burden the taxed class imposed on the
state. The language in Arangold Corp. on which plaintiffs rely was
never part of the standard for assessing a uniformity challenge.
Rather, it was one factor we considered when, in relation to the
plaintiffs’ due process challenge, we determined whether the statute
at issue in Arangold Corp. bore a reasonable relationship to the
interest sought to be protected. Accordingly, we find no support for
plaintiffs’ claims that a tax will violate the uniformity clause unless
it is designed to remedy a special burden of the state.
Plaintiffs’ alternative argument is that the tax at issue here may be
upheld only if the casinos stand to benefit from the tax in some
special way. Because it is undisputed the casinos will not benefit from
the subsidy, plaintiffs maintain the surcharge is not reasonably related
to the purpose of the legislation. We are unpersuaded by this
argument.
We have repeatedly held that a tax may be imposed upon a class
even though the class enjoys no benefit from the tax. See, e.g.,
Arangold Corp., 204 Ill. 2d at 151 (“ ‘[n]othing is more familiar in
taxation than the imposition of a tax upon a class or upon individuals
who enjoy no direct benefit from its expenditure, and who are not
responsible for the condition to be remedied’ ”), quoting Carmichael
v. Southern Coal & Coke Co., 301 U.S. 495, 521-22, 81 L. Ed. 1245,
1260, 57 S. Ct. 868, 878 (1937). Accordingly, we reject plaintiffs’
attempts to alter the standards for analyzing uniformity clause
challenges. We reiterate: “To survive scrutiny under the uniformity
clause, a nonproperty tax classification must (1) be based on a real
and substantial difference between the people taxed and those not
taxed, and (2) bear some reasonable relationship to the object of the
legislation or to public policy.” Arangold Corp., 204 Ill. 2d at 153.
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In relation to the first prong–whether a real and substantial
difference exists between those taxed and those not taxed–it has been
recognized that “[t]he party attacking a tax classification is not
required to negate every conceivable basis that might support it.”
Arangold Corp., 204 Ill. 2d at 153. Rather, once the plaintiff
establishes a good-faith uniformity challenge, the taxing body must
produce a justification for the classification. Geja’s Cafe v.
Metropolitan Pier & Exposition Authority, 153 Ill. 2d 239, 248
(1992). It then becomes the plaintiff’s burden to persuade the court
that the justification is insufficient, either as a matter of law or as
unsupported by the facts. Geja’s Cafe, 153 Ill. 2d at 248-29. If the
plaintiff cannot do so, then, as a matter of law, judgment is proper for
the taxing body. Geja’s Cafe, 153 Ill. 2d at 249.
We further explained the nature of the uniformity clause in
Arangold Corp.:
“The uniformity clause was intended to be a broader
limitation on legislative power to classify for nonproperty tax
purposes than the limitation of the equal protection clause
(Searle Pharmaceuticals, Inc. v. Department of Revenue, 117
Ill. 2d 454, 469 (1987)) and was meant to insure that
taxpayers would receive added protection in the state
constitution based upon a standard of reasonableness that is
more rigorous than that contained in the federal constitution
(Milwaukee Safeguard, 179 Ill. 2d at 102). *** Despite the
more stringent standard under the uniformity clause, the scope
of a court’s inquiry is ‘relatively narrow.’ Allegro, 172 Ill. 2d
at 250. ‘[I]n a uniformity clause challenge the court is not
required to have proof of perfect rationality as to each and
every taxpayer. The uniformity clause was not designed as a
straitjacket for the General Assembly. Rather, the uniformity
clause was designed to enforce minimum standards of
reasonableness and fairness as between groups of taxpayers.’
Geja’s Cafe, 153 Ill. 2d at 252.” Arangold Corp., 204 Ill. 2d
at 153.
When a plaintiff challenges a legislative classification, he has the
burden of showing the classification is arbitrary or unreasonable.
Geja’s Cafe, 153 Ill. 2d at 248. If a set of facts “can be reasonably
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conceived that would sustain it, the classification must be upheld.”
Geja’s Cafe, 153 Ill. 2d at 248.
In the case at bar, the parties do not dispute that the Act creates
two classifications: (1) all casinos and (2) casinos with an AGR over
$200 million. The question before us is whether these two
classifications are arbitrary or unreasonable. The circuit court found
only that the AGR classification violated the uniformity clause.
However, plaintiffs argue to this court that the classification relating
to the casinos as a whole is also invalid. We address this
classification first, because if that classification fails, the AGR
classification would necessarily fail as well.
B. Casinos Classification
Plaintiffs contend that the Act violates the uniformity clause
because the General Assembly’s stated reason for singling out casinos
for taxation, i.e., repairing damage to the horse racing industry, fails
the rational basis test applied under uniformity clause analysis.
Defendants and intervenors, however, claim that the classification
is reasonable and not arbitrary. They note that the object of the
legislation at issue here was to reverse the decline in the horse racing
industry. The legislature’s justification for the surcharge, as expressly
set forth by the General Assembly in the Act, was that the casinos
have had a negative impact on that industry.
Since a justification has been produced, it is incumbent upon
plaintiffs to establish that the justification is insufficient as a matter
of law or that it is unsupported by the facts. In their attempt to do so,
plaintiffs offer a report entitled “A Review of Racing in Illinois with
a Comparison to National Trends in Pari-mutuel Wagering,”
compiled by Eugene Christiansen of Christiansen Capital Advisors,
a company that performs studies of the economic, management,
operation, taxation and regulation of leisure and entertainment
businesses in the United States and abroad. The report purports to
provide “trends in Illinois horse race wagering between 1983 and
2004, together with comparison of trends in Illinois horse racing with
contemporary trends in horse racing in the United States as a whole;
in States with horse racing but no casinos; and in States with horse
racing and casinos.”
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Christiansen concludes in this report:
“These trends and comparisons do not support the
statement that Illinois riverboat casinos were the sole, or even
the main, factor in the decrease of wagering at racetracks in
Illinois. *** The decline in wagering at Illinois racetracks is
principally due to off-track betting, which shifted a large
amount of wagers from racetracks to OTB facilities, while
increasing total State-wide wagering on horse races.”
Further, Christiansen opines:
“[L]icensed interactive betting services, unlicensed interactive
betting services located in other countries, and interactive
betting services licensed in other countries that accept bets
from U.S. residents also contribute to the decline in live
handle by shifting wagers from live and simulcast pari-mutual
facilities to personal computers and interactive television.
Simulcasting, off-track betting and Internet and other
interactive bettor services including telephone account
wagering were developments internal to the horseracing
industry. They were not consequences of casino gaming, in
Illinois or in the United States.”
In the case at bar, the legislature has provided express findings
regarding the necessity of the tax imposed on the casinos. The general
rule regarding such findings has been explained:
“Courts are not empowered to ‘adjudicate’ the accuracy of
legislative findings. The legislative fact-finding authority is
broad and should be accorded great deference by the
judiciary. Therefore, to the extent the affidavits of record may
have been offered to contest the wisdom of the legislative
enactment, we reiterate that the legislature is not required to
convince this court of the correctness of its judgment ***. See
Bernier, 113 Ill. 2d at 229, citing Vance v. Bradley, 440 U.S.
93, 111, 59 L. Ed. 2d 171, 184-85, 99 S. Ct. 939, 949-50
(1979); see also Cutinello v. Whitley, 161 Ill. 2d 409 (1994).
Our task is limited to determining whether the challenged
legislation is constitutional, and not whether it is wise.” Best
v. Taylor Machine Works, 179 Ill. 2d 367, 389-90 (1997).
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While it is clear that Christiansen holds a view different from that of
the legislature as to the cause of the decline in the horse racing
industry, that view does not render the legislative findings
insufficient. Simply because Christiansen’s report suggests that
casinos are not the sole reason for the decline of horse racing does not
mean that plaintiffs have satisfied their burden of establishing that the
justification for the classification is arbitrary or unreasonable. Giving
the legislative findings the deference they must be accorded (see Best,
179 Ill. 2d at 389-90), we conclude there is a reasonable relationship
between the classification and object of the legislation.
C. AGR Classification
As previously noted, the circuit court in the case at bar held there
was no real and substantial difference between the four casinos taxed
and the five that were not and, as a result, there was no reasonable
relationship between the AGR classification and the object of the Act.
Before this court, plaintiffs ask us to uphold this finding.
Defendants and intervenors, however, contend that the casinos
with an AGR over $200 million can better absorb the surcharge and
that this is a proper basis for distinguishing the casinos. Defendants
and intervenors maintain that the circuit court’s decision must be
reversed because plaintiffs failed to meet their burden of
demonstrating that this justification for the AGR classification is
insufficient as a matter of law or unsupported by the facts.
Initially we note that one reason the circuit court ruled as it did
was because it held that the General Assembly did not set forth its
justification for the AGR classification within the Act itself.
Defendants and intervenors contend that this was error on the circuit
court’s part. We agree.
Although none of the cases cited by the parties directly analyze
this question, it is evident from case law that the legislature is not
required to state its justification for a classification within an act. As
this court has stated: “The reasons justifying the classification,
moreover, need not appear on the face of the statute, and the
classification must be upheld if any state of facts reasonably can be
conceived that would sustain it.” Department of Revenue v. Warren
Petroleum Corp., 2 Ill. 2d 483, 490 (1954). We conclude, therefore,
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that the legislature is not required to provide its justification for a
classification within the statute itself. The circuit court’s holding to
the contrary was in error.
On a related issue, plaintiffs argue that the “ability to absorb”
justification fails because it is at odds with the expressly stated
purpose of the Act, which is to address the harm created by casinos
to horse track racing. Plaintiffs maintain that, when the legislature
states its purpose within an act, a classification cannot later be upheld
on other grounds. In support of this argument, plaintiffs rely on
Primeco Personal Communications, L.P. v. Illinois Commerce
Comm’n, 196 Ill. 2d 70 (2001).
In Primeco, a municipal infrastructure maintenance fee was
imposed by certain municipalities on telecommunications retailers.
The plaintiffs were wireless telecommunications retailers who argued
that the fee violated the uniformity clause because the fee was
intended as a means of compensating municipalities for the physical
occupation of the public right-of-way by telecommunication
providers. Because the plaintiffs, being wireless, did not physically
occupy any public right-of-way, they argued that they should not be
subject to the fee. Primeco, 196 Ill. 2d at 73. The defendants denied
that the fee was a means of compensating municipalities for their
occupation of the public right-of-way and instead argued that the fee
was a means of raising revenue. The circuit court found that the
object of the fee was to compensate municipalities for use of the
right-of-way. Because the wireless retailers did not use these right-of-
ways, the court held the classification as applied to plaintiffs was
unreasonable. Primeco, 196 Ill. 2d at 82. We affirmed the circuit
court and held there was no reasonable relationship between the
classification and the object of the legislation.
Plaintiffs maintain that Primeco “held that when the General
Assembly expressly sets forth the purpose of a tax, the taxing body
cannot defend against a uniformity challenge by offering a different
rationale.” However, this language appears nowhere in Primeco, nor
can it be implied from other language in the opinion. Primeco simply
does not so hold.
We find Primeco distinguishable for another reason. The
defendants in Primeco were attempting to define the purpose of the
act itself, not the justification for a classification. In the case at bar,
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defendants and intervenors do not assert, as plaintiffs maintain, that
the purpose for imposing the surcharge was based on the ability to
absorb. Instead, they assert that the AGR classification is based on the
ability to absorb the costs.
Defendants have produced a justification for the classification,
i.e., the ability to absorb the surcharge, which the General Assembly
could reasonably have concluded was a rational justification. It is
therefore incumbent upon plaintiffs to show that the justification is
insufficient as a matter of law or unsupported by the facts. Plaintiffs
contend that the defendants’ justification fails because it is not
supported by the facts. Plaintiffs maintain that, if the General
Assembly was concerned about a casino’s ability to absorb the cost,
it would have set the measuring point of the casinos’ financial
condition at the time the surcharge was paid, rather than the 2004
AGR. Plaintiffs assert that this retrospective view suggests the $200
million limit was arbitrarily selected to insulate the downstate casinos
from the tax and was not a point at which a casino could afford to
absorb the surcharge. Plaintiffs further argue that the $200 million
AGR was selected by the legislature because it allowed the downstate
casinos to be exempt from the tax and that exempting the downstate
casinos from the tax was the only way the legislature was able to get
the Act passed.
We are unpersuaded by plaintiffs’ arguments. First, plaintiffs have
not shown that there is no real and substantial difference between the
downstate casinos and the upstate casinos, which are the ones that
have AGRs over $200 million. The fact is, however, that the
downstate casinos’ average intake is between $2 and $6 million per
month, while the upstate casinos, located in more populated areas,
have an average intake of $20 to $40 million per month. This is a
substantial difference.
Moreover, plaintiffs’ suggestion that a different method for
determining the financial condition of the casinos for deciding
whether to impose the surcharge is impractical. It would be
inconceivable to measure the financial condition of the casinos at the
time they were required to pay the surcharge. The Act requires the
surcharge to be levied on a daily basis. It would be logistically
impossible to measure the financial condition of each casino every
single day. The legislature had to set some measuring point. Since the
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bill was introduced in 2005, the 2004 figures were the most recent
financial figures and, thus, a logical choice to use as the measuring
point.
Further, plaintiffs’ suggestion that setting the measuring stick at
$200 million was the result of a legislative compromise is not a
relevant consideration. The justification itself is the critical focus. If
the justification is reasonable, any further inquiry into the motives of
the legislature is improper. Donovan v. Holzman, 8 Ill. 2d 87, 96
(1956) (court is not at liberty to inquire into the motives of the
legislature). Plaintiffs’ arguments fail to persuade us that the
justification for the AGR classification is not supported by the facts.
Plaintiffs further argue that mere quantitative differences in AGR
between otherwise identical businesses should never be enough,
alone, to justify an exemption from a fee. Plaintiffs maintain that a
qualitative difference must exist between the five casinos below the
$200 million threshold and the four above it, and that none exists
here, because all casinos have the similar ability to incorporate the
cost of the surcharge into the services they provide.
Initially, we do not accept plaintiffs’ premise that all casinos are
identical. While it may be true that all casinos might be able to
incorporate a surcharge into their services and pass the charge along
to customers, this does not mean the casinos are identical.
More fundamentally, however, we agree with defendants that the
uniformity clause allows subclassifications and exclusions as long as
they are reasonable. As such, quantitative differences in AGR may be
sufficient to justify a classification. We have previously held that
there need not be “proof of perfect rationality as to each and every
taxpayer.” Arangold Corp., 204 Ill. 2d at 153.
We conclude that plaintiffs have failed to meet their burden of
demonstrating there is no real and substantial difference between the
two groups of casinos. Plaintiffs have not shown the classification is
arbitrary or unreasonable. Accordingly, we conclude that the circuit
court erred in holding that the Act violates the uniformity clause of
the Illinois Constitution.
II. Public Use and Public Purpose
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In an alternative argument in support of the circuit court’s
judgment, plaintiffs claim that the Act is unconstitutional because the
subsidy to the horse racing tracks primarily benefits private parties
and not the public. In making this argument, plaintiffs rely on the
takings clause of the federal constitution and article VIII, section 1,
of the Illinois Constitution.
The federal takings clause provides: “nor shall private property be
taken for public use, without just compensation.” U.S. Const., amend.
V. This provision is made applicable to the states through the
fourteenth amendment (U.S. Const., amend. XIV). Southwestern
Illinois Development Authority v. National City Environmental,
L.L.C., 199 Ill. 2d 225, 235 (2002). Article I, section 15, of the
Illinois Constitution, the Illinois takings clause, provides: “Private
property shall not be taken or damaged for public use without just
compensation as provided by law.” Ill. Const. 1970, art. I, §15.
Plaintiffs maintain that the surcharge should be deemed a taking
because it is not characterized in the Act as a tax, but a license fee,
because it does not have the fundamental characteristic of a tax in that
it does not support government or government programs and because
it is imposed as a condition of the casinos’ continuation of a valuable
property right–their licenses. Plaintiffs argue that a takings analysis
should apply whenever the government takes property, whether real
or monetary, from one party and gives it to another and that there is
a need for heightened scrutiny to ensure a public purpose is being
served.
We reject plaintiffs’ assertion that a takings analysis applies here.
It is well settled that the takings clauses of the federal and state
constitutions apply only to the state’s exercise of eminent domain and
not to the state’s power of taxation. See County of Mobile v. Kimball,
102 U.S. 691, 703, 26 L. Ed. 238, 241 (1880) (“But neither is taxation
for a public purpose, however great, the taking of private property for
public use, in the sense of the Constitution”). The West Virginia
Supreme Court has aptly stated this rule:
“Courts universally have concluded that the takings
clauses of the various state and federal constitutions do not
apply in the context of taxing statutes, because the power to
tax is a separate constitutional power from the power to take
property by eminent domain. Case law from the United States
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Supreme Court and federal and state courts throughout the
country makes clear that the constitutional takings clause is
not a limitation upon the taxing power conferred upon
legislatures by their respective constitutions. See Brushaber
v. Union Pacific Railroad Co., 240 U.S. 1, 24, 36 S. Ct. 236,
244, 60 L. Ed. 493, 504 (1916) (the Due Process Clause of the
Fifth Amendment ‘is not a limitation upon the taxing power
conferred upon Congress by the Constitution’); Branch v.
U.S., 69 F.3d 1571, 1576 (Fed. Cir. 1995) (‘[E]ven though
taxes ... indisputably “take” money from individuals or
businesses, assessments of that kind are not treated as per se
takings’); A. Magnano v. Hamilton, 292 U.S. 40, 54 S. Ct.
599, 78 L. Ed. 1109 (1934) (taxing power of state or federal
government not considered a taking under the Fifth or
Fourteenth Amendment) ***.” In re Estate of Lewis, 217 W.
Va. 48, 58, 614 S.E.2d 695, 705 (2005).
See also Gilman v. City of Sheboygan, 67 U.S. (2 Black) 510, 17 L.
Ed. 305 (1862). See generally 71 Am. Jur. 2d State & Local Taxation
§61, at 351 (2001) (the takings clause is “appl[icable] to the power of
eminent domain, but not to the power of taxation”).
The same principle applies to fees, whether for certain services or
licensing. In Mlade v. Finley, 112 Ill. App. 3d 914 (1983), the
plaintiffs challenged certain circuit court filing fees as a violation of,
inter alia, the takings clause. Mlade, 112 Ill. App. 3d at 916. The
appellate court rejected the plaintiffs’ argument “because the ‘just
compensation’ [takings clause] provisions (Ill. Const. 1970, art. I, sec.
15; U.S. Const., amends. V and XIV, sec. 1) apply only to exercises
of the power of eminent domain, not to applications of the authority
to raise revenue for public purposes. See Zelney v. Murphy (1944),
387 Ill. 492.” Mlade, 112 Ill. App. 3d at 924. See also Alaska Fish
Salting & By-Products Co. v. Smith, 255 U.S. 44, 65 L. Ed. 489, 41
S. Ct. 219 (1921). Numerous other cases have held the same. See,
e.g., Laredo Road Co. v. Maverick County, Texas, 389 F. Supp. 2d
729 (W.D. Tex. 2005); 2284 Corporation v. Shiffrin, 98 F. Supp. 2d
244 (D. Conn. 2000); San Remo Hotel L.P. v. City & County of San
Francisco, 27 Cal. 4th 643, 41 P.3d 87, 117 Cal. Rptr. 2d 269 (2002);
Rinn v. Bedford, 102 Colo. 475, 84 P.2d 827 (1938); City of Thomson
v. Davis, 92 Ga. App. 216, 88 S.E.2d 300 (1955); BHA Investments,
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Inc. v. State, 138 Idaho 348, 63 P.3d 474 (2003); Jordan v. City of
Evansville, 163 Ind. 512, 72 N.E. 544 (1904); Bobbie Preece Facility
v. Commonwealth of Kentucky, Department of Charitable Gaming,
71 S.W.3d 99 (Ky. App. 2001); Board of Trustees of Falmouth v.
Watson, 68 Ky. 660 (1869); State ex rel. Interstate Air-Parts, Inc. v.
Minneapolis-St. Paul Metropolitan Airports Comm’n, 223 Minn. 175,
25 N.W.2d 718 (1947); Rogers v. Hennepin County, 124 Minn. 539,
145 N.W. 112 (1914); President Riverboat Casino-Missouri, Inc. v.
Missouri Gaming Comm’n, 13 S.W.3d 635 (Mo. 2000); Dunn v.
Mayor & Council of City of Hoboken, 88 A. 1053 (N.J. Sup. 1913);
Kisslinger’s Appeal, 59 Pa. D. & C. 126 (1947); Smith v. Cortes, 879
A.2d 382 (Pa. Commw. 2005); Lamb v. Whitaker, 171 Tenn. 485, 105
S.W.2d 105 (1937).
Ignoring this wealth of law, plaintiffs point to Northern Illinois
Home Builders Ass’n v. County of Du Page, 165 Ill. 2d 25 (1995),
where this court applied a takings analysis to a municipality’s
imposition of transportation impact fees. In Northern Illinois Home
Builders Ass’n, a fee was imposed in connection with land.
Specifically, a fee was imposed on persons constructing new housing
developments to fund road improvements made necessary in light of
the expected traffic growth from the development. Northern Illinois
Home Builders Ass’n, 165 Ill. 2d at 30. The fee at issue in Northern
Illinois Home Builders Ass’n was inextricably tied to real property
and, thus, a takings analysis was appropriate.
The same is not true here. The 3% surcharge is in no way tied to
real property. As such, Northern Illinois Home Builders Ass’n does
not support plaintiffs’ claim that a takings analysis is applicable here.
Plaintiffs also cite to Eastern Enterprises v. Apfel, 524 U.S. 498,
141 L. Ed. 2d 451, 118 S. Ct. 2131 (1998) (plurality op.), to support
their argument that a takings analysis may be applied to a monetary
obligation. However, we find plaintiffs’ reliance on Apfel misplaced.
In Apfel, a plurality of Justices (Chief Justice Rehnquist, and
Justices O’Connor, Scalia and Thomas) applied a takings analysis to
a monetary obligation, but a majority of the Justices rejected the
theory that an obligation to pay money constitutes a taking. Justice
Kennedy, in his separate opinion explained:
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“Our cases do not support the plurality’s conclusion that
the Coal Act takes property. The Coal Act imposes a
staggering financial burden on the petitioner, Eastern
Enterprises, but it regulates the former mine owner without
regard to property. It does not operate upon or alter an
identified property interest, and it is not applicable to or
measured by a property interest. The Coal Act does not
appropriate, transfer, or encumber an estate in land (e.g., a
lien on a particular piece of property), a valuable interest in an
intangible (e.g., intellectual property), or even a bank account
or accrued interest. The law simply imposes an obligation to
perform an act, the payment of benefits. The statute is
indifferent as to how the regulated entity elects to comply or
the property it uses to do so. To the extent it affects property
interests, it does so in a manner similar to many laws; but
until today, none were thought to constitute takings. To call
this sort of governmental action a taking as a matter of
constitutional interpretation is both imprecise and, with all
due respect, unwise.” Apfel, 524 U.S. at 540, 141 L. Ed. 2d at
481, 118 S. Ct. at 2154 (Kennedy, J., concurring in judgment
and dissenting in part).
Justices Stevens, Souter, Ginbsurg, and Breyer agreed with
Justice Kennedy that the takings clause was not implicated, finding
that “at the heart of the [Takings] Clause lies a concern, not with
preventing arbitrary or unfair government action, but with providing
compensation for legitimate government action that takes ‘private
property’ to serve the ‘public’ good.” (Emphasis in original.) Apfel,
524 U.S. at 554, 141 L. Ed. 2d at 490, 118 S. Ct. at 2161 (Breyer, J.,
dissenting, joined by Stevens, Souter and Ginsburg, JJ.). It was noted
that: “The ‘private property’ upon which the Clause traditionally has
focused is a specific interest in physical or intellectual property.
[Citations.] *** This case involves not an interest in physical or
intellectual property, but an ordinary liability to pay money ***.”
Apfel, 524 U.S. at 554, 141 L. Ed. 2d at 490-91, 118 S. Ct. at 2161-62
(Breyer, J., dissenting, joined by Stevens, Souter and Ginsburg, JJ.).
Observing that “application of the Takings Clause here bristles with
conceptual difficulties,” Justice Breyer noted that the plurality’s
analysis would seemingly be applicable to ordinary taxes and other
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statutes and rules that routinely create financial burdens for some that
benefit others. Apfel, 524 U.S. at 556, 141 L. Ed. 2d at 491-92, 118
S. Ct. at 2162-63 (Breyer, J., dissenting, joined by Stevens, Souter
and Ginsburg, JJ.). Thus, five Justices of the Supreme Court in Apfel
reaffirmed the traditional rule that regulatory actions requiring the
payment of money are not takings.
In light of the foregoing, we conclude that the surcharge at issue
here is not subject to a takings challenge. The Act does not involve an
interest in physical or intellectual property, nor does it operate upon
or alter an identifiable property interest. The case at bar does not
involve the state’s exercise of its eminent domain powers, but rather
involves its exercise of its taxing powers. We conclude that the
surcharge is not a taking of private property within the meaning of the
constitutional takings clauses. As such, a takings analysis is not
applicable to plaintiffs’ claim.
We now turn to plaintiffs’ challenge that the surcharge violates
article VIII, section 1, of the Illinois Constitution (the public funds
clause).
Article VIII, section 1, of the Illinois Constitution of 1970
provides that “[p]ublic funds, property or credit shall be used only for
public purposes.” Ill. Const. 1970, art. VIII, §1. “[I]n order to proceed
under article VIII, section 1(a) of the Illinois Constitution, facts must
be alleged indicating that governmental action has been taken which
directly benefits a private interest without a corresponding public
benefit ***.” Paschen v. Village of Winnetka, 73 Ill. App. 3d 1023,
1028-29 (1979). In Friends of the Parks, we reiterated the well-settled
principles regarding a public purpose:
“ ‘This court has long recognized that what is for the public
good and what are public purposes are questions which the
legislature must in the first instance decide. [Citations.] In
making this determination, the legislature is vested with a
broad discretion, and the judgment of the legislature is to be
accepted in the absence of a clear showing that the purported
public purpose is but an evasion and that the purpose is, in
fact, private. [Citations.] In the words of Justice Holmes, “a
declaration by a legislature concerning public conditions that
by necessity and duty it must know, is entitled at least to great
respect.” [Citation.]’ ” Friends of the Parks v. Chicago Park
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District, 203 Ill. 2d 312, 320 (2003), quoting In re Marriage
of Lappe, 176 Ill. 2d 414, 429-30 (1997).
We have further expressed:
“What is a ‘public purpose’ is not a static concept, but is
flexible and capable of expansion to meet the changing
conditions of a complex society. [Citations.] Moreover,
‘ “[t]he power of the State to expend public moneys for public
purposes is not to be limited, alone, to the narrow lines of
necessity, but the principles of wise statesmanship demand
that those things which subserve the general wellbeing of
society and the happiness and prosperity of the people shall
meet the consideration of the legislative body of the State,
though they ofttimes call for the expenditure of public
money.” ’ [Citation.] The consensus of modern legislative and
judicial thinking is to broaden the scope of activities which
may be classified as involving a public purpose. [Citations.]”
In re Marriage of Lappe, 176 Ill. 2d at 430-31, quoted by
Friends of the Parks, 203 Ill. 2d at 320-21.
See also People ex rel. City of Urbana v. Paley, 68 Ill. 2d 62, 75, 76
(1977) (“ ‘[w]e have held on a number of occasions that if the
principal purpose and objective in a given enactment is public in
nature, it does not matter that there will be an incidental benefit to
private interests.’ ” and “ ‘[w]e have indicated that there is no
constitutional prohibition against the use of public funds which inure
to the benefit of private interests, so long as the money is utilized for
a public purpose’ ”), quoting People ex rel. City of Salem v.
McMackin, 53 Ill. 2d 347, 355-59 (1972) (observing that the courts
of Illinois have adopted an expanding concept of “public purpose”
where economic welfare is involved and that we have upheld
legislation that has “economically benefited private interests, but has
been motivated by, and served, a more compelling public interest”).
In deciding whether a purpose is public or private, courts are
“ ‘largely influenced by the course and usage of the
government, the object for which taxes and appropriations
have been customarily and by long course of legislation levied
and made, and what objects have been considered necessary
to the support and for the proper use of the government.
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Whatever lawfully pertains to this purpose and is sanctioned
by time and the acquiescence of the people may well be said
to be a public purpose and proper for the maintenance of good
government.’ Hagler [v. Small], 307 Ill. [460,] 474 [(1923)].”
In re Marriage of Lappe, 176 Ill. 2d at 430.
See also In re Marriage of Lappe, 176 Ill. 2d at 437 (“If the principal
purpose of the enactment is public in nature, it is irrelevant that there
will be an incidental benefit to private interests”). If the purpose
sought to be achieved by the legislation is a public one and it contains
elements of public benefit, then the question of how much benefit the
public derives is for the legislature, not the courts. McMackin, 53 Ill.
2d at 357-58.
Plaintiffs contend that, from the face of the Act, the primary
intended beneficiaries are private parties and, thus, the Act fails the
public-purpose test. The standards established above require us to
defer to the legislative findings announced in the Act unless plaintiffs
have made a showing that the findings are evasive and that the
purpose of the legislation is principally to benefit private interests.
Plaintiffs have not shown that the legislative findings, as stated in
the Act, are evasive or deceptive. Thus, our inquiry turns on whether
the surcharge created by the Act serves a public purpose.
Plaintiffs argue that the primary intended beneficiary of the
surcharge are private parties, the track owners, and not the public.
First, plaintiffs maintain that, because all of the proceeds of the
surcharge are turned over to the track owners, this demonstrates the
intended beneficiary is private. In a related argument, plaintiffs
maintain that, because there is no effective control on how the track
owners can use the 40% of the surcharge given to them, this
demonstrates the intended beneficiary was private.
The plain language of the Act belies this argument. While it may
be true the proceeds go directly to the track owners, the manner in
which the owners must utilize the funds is controlled by statute. The
Act specifically states how the money must be used: 60% goes to the
tracks as purses and 40% goes to the tracks “to improve, maintain,
market, and otherwise operate [their] racing facilities to conduct live
racing, which shall include backstretch services and capital
improvements related to live racing and the backstretch.” The track
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owners cannot simply pocket any of the funds they receive, not even
the 40%. The 40% is earmarked for specific purposes and must be
used by the tracks for those purposes.
Plaintiffs also maintain that the benefits are conferred on the
tracks without regard to need. We disagree. The legislature could
reasonably have concluded that the total handle of a track related to
how much of a benefit to the economy that track could achieve.
Stated differently, the legislature could have believed that the tracks
with the larger handles would be able to contribute more benefit to
the industry and economy as a whole and, thus, should be entitled to
more support.
Plaintiffs’ arguments do not support their contention that the Act
benefits only private parties. Certainly, the principal purpose of the
Act is a public one: to stimulate economic activity, including the
creation and maintenance of jobs and the attraction and retention of
sports and entertainment, particularly betting on horse racing. See
Friends of the Parks, 203 Ill. 2d at 316. We conclude that the Act
does, in fact, serve a public purpose. The surcharge will benefit the
general well-being of society and the prosperity of the people of the
State of Illinois. See Friends of the Parks, 203 Ill. 2d at 316; see also
People ex rel. City of Urbana, 68 Ill. 2d at 75 (“[s]timulation of
commercial growth and removal of economic stagnation are ***
objectives which enhance the public weal”). The emphasis of the Act
is to benefit the entire horse racing industry, not simply the track
owners, and the collateral businesses associated with that industry.
The surcharge will serve to reduce the costs of unemployment and the
evils attendant thereto should the industry collapse and the 35,000-
plus associated jobs lost. See People ex rel. City of Urbana, 68 Ill. 2d
at 74 (upholding act “whose stated object was to ‘reduce conditions
of unemployment and the evils attendant thereto, and to encourage the
increase of industry within the State’ ”), quoting McMackin, 53 Ill. 2d
at 354. The ultimate result of the surcharge will encourage an increase
in industry in this state, including farming, breeding, and training,
will stimulate commercial growth, and will revitalize an economically
stagnant industry. All of these are objects that enhance the public
“weal.” People ex rel. City of Urbana, 68 Ill. 2d at 75. Illinois has a
strong interest in preserving the viability of industries in this state,
which in turn will benefit the economy of the state as a whole.
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As we stated in McMackin:
“We believe that conditions of unemployment within the
State are well known and need no documentation. Legislation
intended to alleviate these conditions and their inherent
problems certainly is in the public interest. New and
expanded industry in communities within the State provides
work and opportunities not only for those who would be
directly employed, but also for others who provide goods and
services to those who live and work in the community. ***
The potential impetus to economic development within our
State, which otherwise might be lost to other States with
financing of this type, likewise serves the public interest. The
private benefit resulting from the Act is incidental to the
public purpose and benefit to be served, and there is no
contravention of the constitution in this regard.” McMackin,
53 Ill. 2d at 358.
The same is true here.
Because we find that plaintiffs have not shown the legislative
findings in the Act are evasive nor have they shown that the purpose
of the Act is primarily to benefit private interests, we defer to the
legislative findings in the Act and the legislature’s determination that
the Act was necessary. Accordingly, we conclude that the Act does
not violate article VIII, section 1.
III. Retroactivity
Plaintiffs raise a cursory argument regarding retroactivity.
Plaintiffs argue that it is impermissible to impose the tax at issue here
because it retroactively punishes them for entirely lawful competition.
Citing to Apfel, 524 U.S. 498, 141 L. Ed. 2d 451, 118 S. Ct. 2131,
plaintiffs contend the surcharge was unconstitutionally imposed as a
retribution for past success which they could not possibly have known
of.
In Apfel, a majority of the Court struck down, on varying
constitutional grounds, an act that required coal mine operators to
fund health-care benefits for retired workers. Apfel, 524 U.S. at 537,
141 L. Ed. 2d at 479, 118 S. Ct. at 2153. There, the liability reached
back 30 to 50 years (Apfel, 524 U.S. at 531, 141 L. Ed. 2d at 475-76,
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118 S. Ct. at 2150) and was a considerable financial burden on the
defendant (Apfel, 524 U.S. at 531, 141 L. Ed. 2d at 476, 118 S. Ct. at
2150). Moreover, the liability would continue for many years in the
future. Apfel, 524 U.S. at 531, 141 L. Ed. 2d at 476, 118 S. Ct. at
2150. Lastly, the liability was unrelated to any injury the defendant
had caused. Apfel, 524 U.S. at 537, 141 L. Ed. 2d at 479, 118 S. Ct.
at 2153.
The case at bar is distinguishable from Apfel. The surcharge does
not reach back in the distant past and is of a very limited duration,
i.e., two years. Further, while the surcharge might be a temporary
financial burden on plaintiffs, it is related to injury the casinos caused
to the horse racing industry. We find no constitutional violation on
this ground.
IV. Equal Protection and Special Legislation
No arguments have been raised before us in connection with the
equal protection and special legislation challenges and, thus, we need
not address them.
CONCLUSION
The circuit court erred in granting summary judgment in favor of
plaintiffs. Public Act 94–804 does not violate the uniformity clause.
Moreover, the Act is not subject to a takings analysis, does not violate
the public funds clause of the state constitution, and is not
impermissibly retroactive. Accordingly, we reverse the judgment of
the circuit court.
Reversed.
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