Emerald Casino, Inc. v. Illinois Gaming Board

FIRST DIVISION
November 26, 2007
No. 1-07-0881
EMERALD CASINO, INC., formerly known ) Appeal from the
as HP, INC., an Illinois Corporation, ) Circuit Court of
) Cook County.
Plaintiff-Appellant, )
)
v. )
)
ILLINOIS GAMING BOARD; GREGORY C. )
JONES; ELZIE HIGGINBOTTOM, ROBERT A. )
MARIANO; IRA ROGAL and TOBIAS G. BARRY, )
in their capacity as Members of the )
Illinois Gaming Board, )
)
Defendants-Appellees. )
----------------------------------------)
VILLAGE OF ROSEMONT, ILLINOIS, an )
Illinois municipal corporation, ) Honorable
) Sophia H. Hall,
Intervenor-Plaintiff. ) Judge Presiding.
JUSTICE WOLFSON delivered the opinion of the court:
On February 21, 2007, the Illinois Gaming Board adopted a
Resolution issuing Emerald Casino, Inc. (Emerald) a license for
renewal and relocation, effective for four years, "subject to
revocation proceedings." The issuance of the license was
pursuant to our mandate in Emerald Casino, Inc. v. Illinois
Gaming Board, 366 Ill. App. 3d 113, 116, 851 N.E.2d 843 (2006),
appeal denied, 222 Ill. 2d 570, 861 N.E.2d 654 (2006) (Emerald
[II]). The Resolution further stated the Board was not
adjudicating or waiving its rights in any other proceeding,
including its December 2005 revocation order and a subsequent
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revocation appeal.
Following the Resolution, The Village of Rosemont
(Rosemont), joined by Emerald, filed a motion to compel
compliance with our Emerald [II] mandate and for a rule to show
cause why the Board should not be held in contempt for failing to
follow the mandate. The trial court denied the motion. This
appeal followed.
We affirm the trial court’s denial of plaintiffs’ motion.
The Board complied with our mandate in Emerald [II] by issuing
Emerald a renewed license for a prospective four-year period.
There is no revocation order before this court concerning that
issue. The Fourth District of the Illinois Appellate Court has
affirmed the Board’s December 2005 order revoking Emerald’s
license. Emerald Casino, Inc. v. Illinois Gaming Board, No. 4-
06-0051 (May 30, 2007) (unpublished order under Supreme Court
Rule 23). We have no jurisdiction to review that decision. Nor
have we been asked to review it in this appeal.
FACTS
Illinois' Riverboat Gambling Act of 1990 authorized the
Board to issue ten licenses for riverboat gambling, the first
four of them for gambling on the Mississippi River. 230 ILCS
10/7(e) (West 2004). In 1992, the Board issued one of the
Mississippi River licenses to Emerald. The license was renewed
for one-year periods in 1995 and 1996.
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In April 1997, Emerald applied for a third renewal of its
license. The Board refused Emerald's application. Emerald
pursued an administrative appeal. Shortly thereafter, Emerald
stopped operating its casino. The ALJ issued an order agreeing
with the Board's denial.
The legislature amended the Act, adding section 11.2,
effective June 25, 1999. The amended subsection 11.2(a) reads as
follows:
"(a) 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)." 230 ILCS
10/11.2(a) (West 2004).
Only Emerald fit that description.
The Board declared the ALJ's previous order moot and allowed
Emerald to file a new application under the amended section. On
July 7, 1999, the Board of Trustees of the Village of Rosemont
approved Emerald's request to dock in Rosemont. Emerald
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submitted its revised application for renewal and relocation on
September 24, 1999.1
At a meeting on January 30, 2001, the Board announced its
intent to deny Emerald's request for renewal and relocation to
Rosemont. On March 6, 2001, the Board issued its written notice
of denial and filed a five-count disciplinary complaint seeking
to revoke Emerald's existing license. The disciplinary
proceedings were temporarily stayed due to Emerald's bankruptcy
proceedings.
On May 21, 2001, Emerald filed a complaint in the circuit
court seeking a declaratory judgment and a writ of mandamus
ordering the Board to approve Emerald's application for renewal
and relocation. The parties filed cross-motions for summary
judgment, disputing whether the Board had the authority to deny
Emerald's application since Emerald met the two criteria set
forth in section 11.2(a) of the Act. The circuit court granted
summary judgment in favor of the Board.
On appeal to this court, we held the word "shall" in section
11.2(a) was mandatory and required the Board to grant Emerald’s
application. Emerald Casino, Inc. v. Illinois Gaming Board, 346
Ill. App. 3d 18, 36, 803 N.E.2d 914 (2003) (Emerald [I]). We
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Emerald disputes the validity of the September 1999 date,
contending its August 10, 1999, application is the appropriate
point of reference under section 11.2.
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reversed and remanded with instructions to enter summary judgment
in favor of Emerald and Rosemont and proceed in accord with our
opinion. Emerald [I], 346 Ill. App. 3d at 36-37. Our mandate
issued July 7, 2004.
On April 14, 2005, the Board resumed the revocation
proceeding it had initiated against Emerald in March 2001.
On June 9, 2005, the circuit court entered an order
directing the Board "to grant Emerald’s September 24, 1999
Application for Renewal and Relocation under Section 11.2 of the
Illinois Riverboat Gambling Act upon receiving notice of this
Order."
On June 29, 2005, the Board passed a Resolution granting
Emerald’s application retroactively "as of September 24, 1999,
for a period of 4 years, subject to Section 11.2 of the Act being
determined constitutional in Crusius." Also in 2005, the supreme
court upheld the constitutionality of section 11.2 in Crusius v.
Illinois Gaming Board, 216 Ill. 2d 315, 333, 837 N.E.2d 88
(2005).
Emerald and Rosemont filed motions asking the trial court to
hold the Board in contempt for violating the court’s order by
issuing a license that was expired at issuance. The circuit
court denied the motions, finding the Board’s Resolution was not
precluded by the language of Emerald [I].
On November 15, 2005, following a hearing, ALJ Abner J.
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Mikva recommended to the Board that it revoke Emerald’s license.
On December 20, 2005, the Board entered an order adopting the
ALJ’s recommendation and revoking Emerald’s license. Emerald
filed a petition for judicial review of the Revocation Order in
the Fourth District of the Appellate Court.
On June 13, 2006, on appeal of the denial of the contempt
motions, we held the Board and the circuit court had ignored the
plain words of our mandate and thwarted the will of the
legislature that enacted section 11.2(a). Emerald Casino, Inc.
v. Illinois Gaming Board, 366 Ill. App. 3d 113, 116, 851 N.E.2d
843 (2006), appeal denied, 222 Ill. 2d 570, 861 N.E.2d 654 (2006)
(Emerald [II]). We directed the circuit court to "order the
Board to issue Emerald’s license for renewal and relocation
within 30 days of the receipt of the circuit court’s order. The
license shall be effective as of the date of the issuance and
shall remain in effect for four years, subject to revocation
proceedings." Emerald [II], 366 Ill. App. 3d at 119.
Our Emerald [II] mandate issued on January 9, 2007. Emerald
filed an emergency motion to redocket the case and for issuance
of an order pursuant to the mandate. On January 29, 2007, the
circuit court entered an order redocketing the case and stating:
"Within 30 days of this Order, the Illinois
Gaming Board shall issue Emerald’s license
for renewal and relocation, effective as of
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the date of the issuance and remaining in
effect for four years, subject to revocation
proceedings."
On February 16, 2007, Emerald filed an "Emergency Motion to
Enjoin Defendants from Interfering with Appellate Court Mandate
in Emerald [II] and Trial Court Order of January 29, 2007."
Emerald asked the court to enjoin defendants from interfering
with our mandate in Emerald [II] and from applying the December
20, 2005, Revocation Order and underlying revocation proceedings
to the new license. The court denied Emerald’s motion on
February 20, 2007. Emerald appealed the court’s order pursuant
to Supreme Court Rule 307(a)(1). 188 Ill. 2d R. 307(a)(1). That
appeal was dismissed by this court for lack of jurisdiction.
Emerald Casino, Inc. v. Illinois Gaming Board, No. 1-07-0447
(2007) (unpublished order under Supreme Court Rule 23).
On February 21, 2007, the Board adopted and approved a
Resolution stating, in part:
"BE IT RESOLVED, that pursuant to the
Appellate Court’s decision in Emerald
[II] and the Circuit Court’s January 29, 2007
order on remand, Emerald’s license is issued
for renewal and relocation, effective as of
this date and remaining in effect for four
years, subject to revocation proceedings.
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BE IT FURTHER RESOLVED, that this
Resolution does not constitute a finding or
adjudication by the Gaming Board on any
matter, is not a waiver of, and is without
prejudice to, the Gaming Board’s rights or
position in any other matter or proceeding,
including without limitation the Revocation
Order and the Revocation Appeal."
On February 27, 2007, Rosemont filed a motion in the circuit
court seeking an order compelling the Board to comply with the
Emerald [II] mandate and the court’s January 29, 2007, order, and
entering a rule to show cause why the Board should not be held in
contempt for failing to do so. Emerald partially joined the
motion. On April 6, 2007, the court denied the motion. The
court’s order is the subject of the instant appeal.
On May 30, 2007, the Fourth District issued its decision
affirming the December 20, 2005, revocation order. Emerald
Casino, Inc. v. Illinois Gaming Board, No. 4-06-0051 (May 30,
2007) (unpublished order under Supreme Court Rule 23).
Emerald’s petition for leave to appeal of the Fourth
District decision is pending in the Illinois Supreme Court. The
Fourth District has stayed the issuance of its mandate at
Emerald’s request.
DECISION
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The trial court is bound by this court’s mandate and should
consult the opinion to determine what the mandate requires. PSL
Realty Co. v. Granite Investment Co., 86 Ill. 2d 291, 308-309,
427 N.E.2d 563 (1981). Whether the trial court complied with the
mandate is a question of law, subject to de novo review. Clemons
v. Mechanical Devices Co., 202 Ill. 2d 344, 352, 781 N.E.2d 1072
(2002). We will overturn the trial court’s denial of a motion
for a finding of contempt only where the court abused its
discretion. Technology Innovation Center, Inc. v. Advanced
Multiuser Technologies Corp., 315 Ill. App. 3d 238, 247, 732
N.E.2d 1129 (2000); Fairbanks Capital v. Coleman, 352 Ill. App.
3d 550, 555, 816 N.E.2d 695 (2004).
Emerald and Rosemont contend the Board’s Resolution,
granting Emerald a license but reserving the right to apply the
pending revocation order to the new license, thwarts our mandate
in Emerald [II]. Rosemont contends the Resolution is non-final
and unenforceable, thus disobeying our mandate to allow
plaintiffs to obtain "meaningful relief; that is, a license that
can be used, that will be ‘put to work.’ " Emerald [II], 366
Ill. App. 3d at 115-16, quoting Emerald [I], 346 Ill. App. 3d at
34.
Rosemont contends the "law of the case" doctrine precludes
revocation of the renewed license based on the prior revocation
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order. Because this court was aware of the December 2005
revocation order when we decided Emerald [II], and because we
denied the Board’s motion to stay the appeal, Rosemont says we
must have intended that the prior revocation order no longer
applies to Emerald’s renewed application. Rosemont is mistaken.
In Emerald [I], we clearly held the issue of renewal and
relocation was separate from revocation. We said:
"Nothing in section 11.2(a) prevents the
Board from moving to revoke Emerald’s
license. In fact, the Board began revocation
proceedings on March 6, 2001, obviously with
something less than dispatch. The May 1999
legislative debates show us the legislature
did not intend to tinker with the Board’s
authority to revoke Emerald’s license."
Emerald [I], 346 Ill. App. 3d at 34.
Again, in Emerald [II], we said:
"We stress that our only intent is to address
the question of whether our mandate has been
enforced. Nothing else. Whether Emerald and
Rosemont possess sufficient moral fiber to
conduct and host a gambling business is not
now our concern. We said before and we say
again: ‘Nothing in section 11.2(a) prevents
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the Board from moving to revoke Emerald’s
license.’ Emerald [I], 346 Ill. App. 3d at
34***" Emerald [II], 366 Ill. App. 3d at
118.
In Emerald [II], we also cited Crusius, where the supreme
court responded to the State’s claim that a mandatory reading of
section 11.2(a) undermines the Act’s goal of strict regulation.
Observing "revocation proceedings have, in fact, been initiated
against" Emerald, the supreme court added:
"Thus, regardless of Emerald’s eligibility
for license renewal and relocation under
section 11.2(a), if Emerald has failed to
comply with the requirements of the Act, it
could lose its riverboat gambling license in
accordance with the Act’s provisions, as is
the case with any other licensee." (Emphasis
added.) Crusius, 216 Ill. 2d at 333.
We believe the court’s use of the word "has" reflects its
view that the then-pending revocation proceedings could apply to
the newly issued license. We see no indication the court was
thinking about future, post-license misconduct. We see no intent
to grant amnesty for pre-license behavior. Nor are we so
inclined. Even if the supreme court’s language is dictum, it is
judicial dictum, which must receive dispositive weight in this
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court. People v. Williams, 204 Ill. 2d 191, 206-07, 788 N.E.2d
1126 (2003).
We reject Rosemont’s contention that it is the "law of the
case" that the Board may not apply the prior revocation order to
the new license, or that our opinion in Emerald [II] would be
merely advisory if we failed to rule for the plaintiffs. The
issue before us in Emerald [II] was whether section 11.2(a)
required the Board to grant Emerald’s application for renewal and
relocation. Our decision was not contingent on a future outcome.
See Shipp v. County of Kankakee, 345 Ill. App. 3d 250, 255, 802
N.E.2d 284 (2003) (If the harm claimed by a plaintiff is
speculative or contingent, the claim is unripe and the court
should not decide it.)
Revocation was not an issue before us then, and it is not
before us now. The only issue is whether the trial court and the
Board complied with our mandate. They did.
We directed the court to order the Board to issue a license
that was to "remain in effect for four years, subject to
revocation proceedings." Emerald [II], 366 Ill App. 3d at 119.
Both the court and the Board followed our directions to the
letter. We would have no reason to say "subject to revocation
proceedings" unless we were referring to the ongoing disciplinary
proceedings. We had read Crusius. And we knew the revocation
issue was being reviewed by the Fourth District Appellate Court.
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The parties’ citation to the legislative debates surrounding
section 11.2 is not relevant to the issue of whether the court
and Board followed our mandate. We are not interpreting any
statutes in this case.
Nor are we persuaded by Rosemont’s argument that section
7(g) of the Act allows a license-holder to renew its license
after it has been revoked. See 230 ILCS 10/7(g) (West 2004)
("Upon the termination, expiration, or revocation of each of the
first 10 licenses, which shall be issued for a 3 year period, all
licenses are renewable annually***") In the prior appeals,
plaintiffs argued section 7(g) did not apply to them. We said in
Emerald [I] that section 11.2(a) makes no reference to section
7(g), "a seeming rebuttal to the Board’s claim that the
legislature could not have intended to disregard standards for
renewal and relocation contained in other parts of the Act."
Emerald [I], 346 Ill. App. 3d at 36. Certainly, the plaintiffs
benefitted from our holding that a mandatory reading of "shall"
in section 11.2(a) created an exception to the license renewal
requirements in section 7 of the Act, Emerald [I], 346 Ill. App.
3d at 35, as they benefitted from our direction in Emerald [II]
to issue a prospective license. Emerald [II], 366 Ill. App. 3d
at 119. All that remained was for Emerald to win its revocation
case, in the Fourth District or beyond.
We affirm the trial court’s denial of plaintiffs’ motion to
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compel compliance with our Emerald [II] mandate.
We also affirm the court’s denial of the motion for a rule
to show cause. The court did not abuse its discretion in failing
to find the Board in contempt. The Board followed the directions
of the circuit court pursuant to our mandate.
Affirmed.
CAHILL, P.J., and GARCIA, J., concur.
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