Emerald Casino, Inc. v. Illinois Gaming Board

• Court: Appellate Court of Illinois
• Decided: November 26, 2007
• Docket: 1-07-0881 NRel
• Status: Unpublished

Opinion

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 1-07-0881

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06-0051 (May 30, 2007) (unpublished order under Supreme Court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

1 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

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.