Emerald Casino v. The Illinois Gaming Board ( 2006 )

SECOND DIVISION
June 30, 2006
No. 1-05-3142
EMERALD CASINO, INC., an Illinois ) Appeal from the
Corporation, ) Circuit Court of
) Cook County.
Plaintiff-Appellant, )
)
v. )
)
THE ILLINOIS GAMING BOARD, et al., ) Honorable
) Thomas P. Quinn,
Defendants-Appellees, ) Judge Presiding.
JUSTICE WOLFSON delivered the opinion of the court:
Emerald Casino, Inc., has launched two appellate attacks on the Illinois Gaming
Board=s license revocation order. One brought under the Illinois Riverboat Gambling
Act is pending in the Fourth Appellate District. The other, in this court, stems from an
unsuccessful Cook County circuit court challenge to the constitutionality of some of the
Board=s rules that governed the revocation proceeding.
Before we can consider the merits of Emerald=s contentions we have to decide
whether, under the circumstances of this case, this case is properly before us. We hold
it is not.
BACKGROUND
In 1992, Emerald was granted one of the 10 casino operator=s licenses
authorized by the Illinois Riverboat Gambling Act (RGA) (230 ILCS 10/1 et seq. (West
1992)). In 2001, the Board initiated disciplinary proceedings against Emerald in order to
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revoke its license, alleging Emerald had committed multiple violations of Illinois law.
On May 10, 2002, the administrative law judge presiding over the disciplinary
proceeding entered an order upholding the constitutionality of the Board=s administrative
rules in general, and its discovery rules in particular. In response, Emerald filed a
complaint for declaratory and injunctive relief against the Board in the circuit court of
Cook County, alleging that many of the Board=s administrative rules were facially
unconstitutional and denied Emerald due process of law.
The trial court dismissed Emerald=s complaint with prejudice and denied
Emerald=s motion for a preliminary injunction on September 2, 2005. Emerald
appealed.
While this appeal was pending, the disciplinary proceeding was completed. The
Board issued a final decision revoking Emerald=s license on December 20, 2005.
Emerald directly appealed the Board=s revocation decision in the Fourth District of the
Illinois Appellate Court, as required by section 17.1(a) of the RGA. 230 ILCS 10/17.1(a)
(West 2004). It referred to its petition as "seeking administrative review of a final order
of the Illinois Gaming Board."
DECISION
On appeal, Emerald contends the trial court erred when it found none of the
Board=s rules facially unconstitutional. Emerald asks us to reverse the trial court=s order
and declare the disciplinary proceedings null and void.
The Board contends Emerald may challenge the validity of the revocation order
only in a statutorily authorized proceeding for administrative review. Because Emerald
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is presently pursuing review in the Fourth District, the Board contends Emerald cannot
seek the same reliefB-directly or indirectlyB-in this appeal. We agree.
Section 17.1(a) of the RGA states:
AJurisdiction and venue for the judicial review of a final order
of the Board relating to owners, suppliers or special event
licenses is vested in the Appellate Court of the judicial
district in which Sangamon County is located. A petition for
judicial review of a final order of the Board must be filed in
the Appellate Court, within 35 days from the date that a copy
of the decision sought to be reviewed was served upon the
party affected by the decision.@ 230 ILCS 10/17.1(a) (West
2004).
The ultimate relief Emerald asks us for is a declaration that the revocation
proceedings are Anull and void.@ That is, Emerald, in fact, seeks review of a Afinal order
of the Board@ as that term is used in section 17.1(a) of the RGA.
Final administrative decisions are appealable only as provided by law. Ill. Const.
1970, art. VI, '' 6, 9; Collinsville Community Unit School District v. Regional Board of
School Trustees of St. Clair County, 218 Ill. 2d 175, 181, 843 N.E.2d 273 (2006)
(ACollinsville@). Because review of a final administrative decision may be obtained only
as provided by statute, a court is said to exercise A >special statutory jurisdiction= @ when
it reviews an administrative decision. Collinsville, 218 Ill. 2d at 182, quoting ESG Watts,
Inc. v. Pollution Control Board, 191 Ill. 2d 26, 30, 727 N.E.2d 1022 (2000). ASpecial
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statutory jurisdiction is >limited to the language of the act conferring it and the court has
no powers from any other source.= @ Collinsville, 218 Ill. 2d at 182, quoting Fredman
Brothers Furniture Co. v. Department of Revenue, 109 Ill. 2d 202, 210, 486 N.E.2d 893
(1985). The remedy under the act is exclusive and alternate methods of direct review or
collateral attack are not permitted. Board of Education of Hawthorne School District v.
Eckman, 103 Ill. App. 3d 1127, 1129, 432 N.E.2d 298 (1982); People ex rel. Peterson v.
Turner Co., 37 Ill. App. 3d 450, 456, 346 N.E.2d 102 (1976).
Generally, a party may not seek judicial relief from an administrative action
unless the party has exhausted all available administrative remedies. Arvia v. Madigan,
209 Ill. 2d 520, 531, 809 N.E.2d 88 (2004).
Where the Administrative Review Law is applicable and a reviewing court may
grant the relief a party seeks within the context of reviewing the agency=s decision, a
circuit court has no authority to entertain independent causes of action regarding the
agency=s actions. Arvia, 209 Ill. 2d at 532. A >Any other conclusion would enable a party
to litigate separately every alleged error committed by an agency in the course of the
administrative proceeding.= @ Arvia, 209 Ill. 2d at 532, quoting Dubin v. Personnel
Board, 128 Ill. 2d 490, 499, 539 N.E.2d 1243 (1989).
In its petition for administrative review in the Fourth District, Emerald launched a
global attack on the revocation order. The petition is 27 plus pages long. The reasons
for relief given by Emerald literally range from A to Z, with subsections. Most of the
issues raised by Emerald have to do with denial of due process rights. Of particular
relevance to this appeal are paragraphs N., U., and W.
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Paragraph N. contends the disciplinary proceeding was invalid because it
required Emerald to carry the burden of proving its fitness by clear and convincing
evidence. The paragraph is an attack on Rule 1140(a) (86 Ill. Adm. Code 3000.1140).
Paragraph U. contends the Board=s subpoena rules denied Emerald its right to
cross-examine and otherwise challenge adverse witnesses. That is an attack on Rule
1139 (86 Ill. Adm. Code 3000.1139).
Paragraph W. is a broad attack on the Board=s rules. It contends:
AEmerald was denied its due process rights and equal
protection of the law and is otherwise entitled to relief
because the rules under which these proceedings were
conducted and its rights were determined were
unconstitutional as a matter of law, rendering the
proceedings illegal ab initio by denying Emerald important
constitutional rights with respect to burden, discovery, cross-
examination, confrontation of witnesses, notice and fairness
of the hearing process, among others.@
In short, Emerald makes the same facial attack on the Board=s rules in its Fourth
District petition as it does in the appeal before us. It is worded a bit differently, not using
the numbers of the rules, for example, but that is a distinction without a difference. No
issue is raised in this appeal that is not and could not be raised in the administrative
review petition.
In the appeal before us, Emerald does not challenge the jurisdiction of the Board
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to proceed against it. Nor does Emerald challenge the Board=s authority to establish
rules for the conduct of a revocation hearing. Rather, it makes a facial challenge to the
constitutionality of the rules used in the proceeding. In light of Emerald=s petition for
review, we see no reason why the issues before us could not be resolved by the Fourth
District.
Emerald tells us that its appeal of the circuit court order is different than its
appeal of the Board=s revocation order. That is, different in nature and forum. They
look the same to us. The issues are the same; they simply are dressed up to look
different. This is not a matter of exhausting administrative remedies or of ripeness of
issue for decision. Those became non-issues when the Board entered its final order
and Emerald filed its Petition for Review in the Fourth District.
The cases Emerald cites do not support the proposition it urgesB-that it can
attack the Board=s rules in this court at the same time it is pursuing the same arguments
in the Fourth District appeal under the RGA. None of the decisions relied on raises that
issue. For example, In Landfill Inc. v. Pollution Control Board, 74 Ill. 2d 541, 387 N.E.2d
258 (1978), the court agreed the plaintiff could enjoin further proceedings where the
Board lacked statutory authority to conduct the hearing. In Bio-Medical Laboratories,
Inc. v. Trainor, 68 Ill. 2d 540, 370 N.E.2d 223 (1977), the court held a facial attack on an
administrative rule can be maintained where unauthorized administrative action was
threatened.
The question is whether there is any reason to ignore the statutory directive that
the appeal proceed under the Riverboat Gambling Act, with venue and jurisdiction in the
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Fourth District. We find no such reason.
We have another problem with this appeal. Emerald=s First Amended Complaint
seeks a declaration that certain Board rules are void and it asks for injunctive relief to
stop the hearing. The complaint was filed in the circuit court before the Board entered
its revocation order. Obviously, it does not and could not ask that the circuit court
vacate the Board=s order. That relief is requested in this court. This is another reason
for us to say the Fourth District is the proper place for Emerald to pursue its broad-scale
attack on the Board=s order.
The law does not provide for more than one bite of the appellate apple. Under
the circumstances of this case, the Riverboat Gambling Act creates the only permissible
avenue for Emerald=s attack on the revocation order.
We do not, then, reach the substantive issues raised by Emerald. We do not
make or intend any comment on the merits of Emerald=s facial challenge to the
constitutionality of the Board=s rules.
CONCLUSION
For the above mentioned reasons, we dismiss Emerald=s appeal.
Appeal dismissed.
GARCIA, P.J., and SOUTH, J., concur.
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