No. 2--96--0843
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
_________________________________________________________________
CABLE TELEVISION AND COMMUNICA- ) Appeal from the Circuit Court
TIONS ASSOCIATION OF ILLINOIS, ) of Du Page County.
)
Plaintiff-Appellant, ) No. 96--CH--236
v. )
AMERITECH CORPORATION; AMERI- )
TECH NEW MEDIA ENTERPRISES, )
INC., n/k/a Ameritech New )
Media, Inc.; and THE VILLAGE OF )
GLENDALE HEIGHTS, ) Honorable
) John W. Darrah,
Defendants-Appellees. ) Judge, Presiding.
_________________________________________________________________
JUSTICE DOYLE delivered the opinion of the court:
Plaintiff, Cable Television and Communications Association of
Illinois (the Association), appeals from the dismissal of its
complaint against defendants, Ameritech Corporation (Ameritech),
Ameritech New Media Enterprises, Inc. (n/k/a Ameritech New Media,
Inc.) (Ameritech New Media), and the Village of Glendale Heights
(the Village). Ameritech New Media and the Village jointly
motioned to dismiss the complaint pursuant to section 2--619 of the
Code of Civil Procedure (Code) (735 ILCS 5/2--619 (West 1994)).
The circuit court of Du Page County entered an order granting the
motion to dismiss the complaint based on the court's determination
that the Association lacked standing to bring its complaint.
On appeal, the Association contends that the trial court erred
in dismissing the complaint because it had standing to bring the
complaint (1) under Illinois law; (2) under Federal law; and (3)
based on its past representation of its members in various legal
proceedings in Illinois.
The Association is an Illinois not-for-profit corporation
whose members are cable television companies that hold franchises
to provide cable television service in Illinois. Time Warner
Entertainment--Advance/Newhouse Partnership (Time Warner) is a
member of the Association.
Prior to August 17, 1995, Time Warner held the sole franchise
to provide cable television service in the Village. On August 17,
1995, the Village enacted an ordinance granting Ameritech New Media
a nonexclusive franchise to provide cable television service in the
Village also. Time Warner is not a party to this case and has not
sought to intervene.
On October 23, 1995, the Association filed a complaint in the
circuit court of Cook County. The case was subsequently
transferred to Du Page County. The complaint claimed that the
cable television franchise which the Village granted to Ameritech
New Media violated certain federal and state statutes. The
complaint sought declaratory and injunctive relief including a
permanent injunction prohibiting Ameritech New Media from providing
cable television services in the Village.
In response to the complaint, Ameritech New Media and the
Village jointly motioned to dismiss the complaint pursuant to
section 2--619 of the Code (735 ILCS 5/2--619 (West 1994)). The
motion to dismiss asserted that the Association lacked standing to
bring this action. Defendants argued that the Association lacked
standing because (1) the Association had not alleged in its
complaint and could not properly allege that it had suffered any
direct injury from the agreement between Ameritech New Media and
the Village; and (2) the Association's representative capacity, by
itself, did not give it standing.
The Association responded to the motion to dismiss by filing
the affidavit of its president, Gary J. Maher. Maher's affidavit
stated, inter alia, that the Association has acted as the legal
representative of its members on a number of occasions and has
acted as a party on behalf of its members in a variety of legal
proceedings. The affidavit also stated that the Association's sole
source of revenue is membership fees of 4 cents per month per
subscriber paid by its members, so that if a member loses
subscribers the result would be a decline in the Association's
revenues.
The trial court conducted a hearing on the matter. The court
noted that the underlying issue was a relatively narrow question
regarding the competitive positions, within the framework of
applicable federal and state statutes, of Time Warner and Ameritech
New Media as providers of cable television services in the Village.
The court determined that the Association, notwithstanding its
claimed loss of revenues from a decline in Time Warner's
subscribers, did not have a direct interest in the underlying issue
and therefore did not have standing.
The standing doctrine requires that a party, either in an
individual or representative capacity, have a real interest in the
action brought and in its outcome. In re Estate of Wellman, 174
Ill. 2d 335, 344 (1996). The purpose of the standing doctrine is
to make sure that only parties with a sufficient stake in the
outcome of the controversy raise the issues before the court.
Harris Trust & Savings Bank v. Duggan, 95 Ill. 2d 516, 527 (1983).
Under Illinois law, an association's representative capacity,
by itself, is not enough to give it standing to maintain an action
for declaratory relief on behalf of its members. Underground
Contractors Ass'n v. City of Chicago, 66 Ill. 2d 371, 377 (1977).
Rather, an association must also have a recognizable interest in
the dispute peculiar to itself and capable of being affected.
Underground Contractors Ass'n, 66 Ill. 2d at 377.
With few exceptions, Illinois courts have consistently held
that an association does not have standing to bring an action on
behalf of its members unless it has been or will be directly
injured and therefore has a personal claim related to its own
property, or that it has suffered or will suffer injury to a
substantive legally protected interest in its individual capacity.
See, e.g., Underground Contractors Ass'n v. City of Chicago, 66
Ill. 2d 371 (1977) (no standing where association was not in the
construction business and did not bid for public works contracts in
its individual capacity); Westwood Forum, Inc. v. City of
Springfield, 261 Ill. App. 3d 911 (1994) (no standing where
associations did not own any property and were not in the business
of owning or selling property); Indian Hill Neighbors' Ass'n, Inc.
v. American Cablesystems, 171 Ill. App. 3d 789 (1988) (no standing
where association had no property rights in area to be developed by
cable television franchisee); Forsberg v. City of Chicago, 151 Ill.
App. 3d 354 (1986) (no standing where associations were not subject
to the boat-mooring tax in question, did not own boat moorings, and
did not pay boat-mooring fees).
In this case, the Association first contends on appeal that it
has standing under Illinois law because it satisfies the direct
injury requirement. The Association bases its contention on its
probable loss of revenues as a result of the provision of cable
television services to the Village's residents by Ameritech New
Media. The Association asserts that it will likely suffer a loss
of revenues because the provision of cable television services to
the Village's residents by Ameritech New Media will reduce the
number of Time Warner's subscribers. The Association maintains
that this will result in a proportionate reduction in the
membership fees Time Warner pays to it. The Association argues
that such a loss of revenues would constitute a real injury to a
legally cognizable interest in its individual capacity sufficient
to confer standing on it to bring this action.
We disagree. The loss of revenues that the Association claims
it will suffer is not a direct injury. Rather, the projected loss
of revenues is merely an indirect result of a claimed reduction in
the number of Time Warner's subscribers. The Association itself is
not in the business of providing cable television services and
therefore does not have any subscribers whose numbers could be
reduced by competition from Ameritech New Media. The Association's
linkage of its revenues to the number of its members' subscribers
does not change the indirect nature of its claimed injury. Thus,
under Illinois law, the Association does not have standing to bring
this action.
Alternatively, the Association contends that it has standing
under the federal associational standing doctrine set forth by the
United States Supreme Court in Warth v. Seldin, 422 U.S. 490, 45 L.
Ed. 2d 343, 95 S. Ct. 2197 (1975), and Hunt v. Washington State
Apple Advertising Comm'n, 432 U.S. 333, 53 L. Ed. 2d 383, 97 S. Ct.
2434 (1977). In Warth and Hunt the court held that an association
has standing to bring a suit in its representative capacity in
certain situations even if the association has not suffered a
direct injury.
The Association acknowledges that Illinois courts are not
bound to follow the federal associational standing doctrine, but
urges us to adopt it on the ground that the rationale of the Warth
and Hunt decisions is compelling. In support of its position, the
Association asserts that (1) the Illinois Supreme Court has never
explicitly rejected the federal association standing doctrine; (2)
the appellate court's rejection of the federal doctrine in Forsberg
v. City of Chicago, 151 Ill. App. 3d 354 (1986), was misplaced
because a review of our supreme court's decisions indicates that
the court would be receptive to adopting the federal standard; and
(3) numerous other states have chosen to follow the federal
doctrine.
The Association argues that it satisfies the federal
requirements for associational standing. In the Association's
view, if we adopt the Federal doctrine, we must conclude that the
Association has standing to bring this action.
We decline to adopt the federal associational standing
doctrine. It is well established that Illinois courts are not
required to follow federal law on issues of standing. Greer v.
Illinois Housing Development Authority, 122 Ill. 2d 462, 491
(1988). Moreover, the Association has not cited any Illinois case
that has followed the federal doctrine. In Underground Contractors
Ass'n, where our supreme court determined that it was not required
to address the merits of the federal doctrine, the court noted:
"Illinois decisions which have discussed an
association's standing to maintain, on behalf of its
members, an action for declaratory relief clearly indicate
that an association's representational capacity alone is not
enough to give it standing, absent a showing that it has a
recognizable interest in the dispute, peculiar to itself and
capable of being affected." Underground Contractors Ass'n,
66 Ill. 2d at 377.
Subsequently, Illinois courts have continued to use the direct-
injury requirement to determine whether an association has
standing. See, e.g., Illinois Gamefowl Breeders Ass'n v. Block, 75
Ill. 2d 443 (1979); Westwood Forum, Inc. v. City of Springfield,
261 Ill. App. 3d 911 (1994).
Perhaps most important, in Forsberg v. City of Chicago, 151
Ill. App. 3d 354 (1986), the appellate court specifically declined
to follow the federal doctrine. The Association has not persuaded
us to reject Forsberg. We agree with Forsberg, and the cases cited
therein, that an association's representative capacity alone is not
enough to give it standing in an action for declaratory and
injunctive relief.
For these reasons, we decline to follow the federal
associational standing doctrine. Accordingly, we need not
determine whether the Association has satisfied the requirements
for standing under the federal doctrine.
The Association's final contention that it has standing to
bring this action is based on its assertion that in the past it has
advanced the interests of its members in a variety of legal
proceedings throughout Illinois. In support of this contention,
the Association cites three Illinois cases: Illinois-Indiana Cable
Television Ass'n v. Illinois Commerce Comm'n, 55 Ill. 2d 205
(1973), Central Illinois Public Service Co. v. Illinois Commerce
Comm'n, 268 Ill. App. 3d 471 (1994), and People ex rel. O'Malley v.
Illinois Commerce Comm'n, 239 Ill. App. 3d 368 (1993). The
Association argues that these cases show that it has been
recognized and accepted as an appropriate party in litigation
involving the interests of its members and the cases therefore
support its claim of standing in this case.
The cited cases do not support the Association's claim that it
has standing. The cited cases are all distinguishable from this
case because the cited cases involve appeals from the Illinois
Commerce Commission (the Commission) proceedings under the Public
Utilities Act (Act) (220 ILCS 5/1--101 et seq. (West 1994)). The
Act provides that "any person or corporation" may bring a complaint
before the Commission and that "[n]o complaint shall be dismissed
because of the absence of direct damage to the complainant." 220
ILCS 5/10--108 (West 1994). Thus, under the Act, an association,
in a representative capacity, may properly bring a complaint before
the Commission or pursue an appeal from a decision by the
Commission. Illinois Telephone Ass'n v. Illinois Commerce Comm'n,
67 Ill. 2d 15, 24-25 (1977). However, this does not conflict with
our holding that representational capacity alone is not enough to
give an association standing to bring a declaratory judgment
action. Illinois Telephone Ass'n, 67 Ill. 2d at 25-26.
It follows that the Association's representation of its
members in appeals from decisions by the Commission, as in the
cited cases, has no bearing on whether the Association has standing
to bring this action. Therefore, the Association's argument that
it has standing in this case because of its history of
representation of its members in the cited cases fails.
Based on the foregoing, we conclude that the circuit court did
not err when it dismissed the Association's complaint on the ground
that the Association does not have standing to bring this action.
Accordingly, the judgment of the circuit court of Du Page County is
affirmed.
GEIGER, P.J., and THOMAS, J., concur.