No. 1-22-0883

Opinion filed July 28, 2023

FIFTH DIVISION

IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT

WAUKEGAN POTAWATOMI CASINO, LLC, ) ) Appeal from the Plaintiff-Appellant, ) Circuit Court of ) Cook County. v. ) ) THE ILLINOIS GAMING BOARD; CHARLES ) SCHMADEKE, Board Chairman; DIONNE R. ) No. 2021 CH 5784 HAYDEN, Board Member; ANTHONY ) GARCIA, Board Member; MARC E. BELL, ) Board Member; MARCUS FRUCHTER, Board ) Administrator; and THE CITY OF ) Honorable WAUKEGAN, ) Cecilia A. Horan, ) Judge presiding. Defendants-Appellees. )

JUSTICE MITCHELL delivered the judgment of the court, with opinion. Presiding Justice Delort and Justice Lyle concurred in the judgment and opinion.

OPINION

¶1 Plaintiff, Waukegan Potawatomi Casino, LLC, appeals an order dismissing its complaint

for declaratory judgment and injunctive relief. The principal issue presented in this appeal is as

follows: did the circuit court err in dismissing Potawatomi Casino’s complaint for lack of standing

because the alleged violations of the Illinois Gambling Act denied Potawatomi Casino its right to

compete in a lawful certification process? Because the trial court did err, we reverse and remand. No. 1-22-0883

¶2 I. FACTS

¶3 The General Assembly amended the Illinois Gambling Act in 2019 to authorize the Illinois

Gaming Board to issue 6 new casino licenses, including one in the City of Waukegan, in addition

to the 10 existing licenses. Pub. Act 101-31 (eff. June 28, 2019) (amending 230 ILCS 10/7(e-5)).

The Act provides for a licensing process specific for these new licenses, requiring the host

municipality to initiate the process.

Notably, the Board can consider issuing a license to an

applicant only after the host municipality has certified to the Board that it has negotiated with the

applicant on certain specified details of the proposed casino:

“The Board shall consider issuing a license pursuant to paragraphs (1) through

(6) of this subsection only after the corporate authority of the municipality or the county

board of the county in which the riverboat or casino shall be located has certified to the

Board the following:

(i) that the applicant has negotiated with the corporate authority or county

board in good faith;

(ii) that the applicant and the corporate authority or county board have

mutually agreed on the permanent location of the riverboat or casino;

(iii) that the applicant and the corporate authority or county board have

mutually agreed on the temporary location of the riverboat or casino;

(iv) that the applicant and the corporate authority or the county board have

mutually agreed on the percentage of revenues that will be shared with the

municipality or county, if any;

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(v) that the applicant and the corporate authority or county board have

mutually agreed on any zoning, licensing, public health, or other issues that are

within the jurisdiction of the municipality or county;

(vi) that the corporate authority or county board has passed a resolution or

ordinance in support of the riverboat or casino in the municipality or county;

(vii) the applicant for a license under paragraph (1) has made a public

presentation concerning its casino proposal; and

(viii) the applicant for a license under paragraph (1) has prepared a

summary of its casino proposal and such summary has been posted on a public

website of the municipality or the county.” 230 ILCS 10/7(e-5) (West 2020).

¶4 The City of Waukegan issued a request for qualifications and proposals, soliciting

proposals to develop and operate a casino in the City. Waukegan Potawatomi Casino, LLC

submitted a proposal in response, and the City held a public meeting during which four casino

applicants presented their proposals. Subsequently, the Waukegan City Council voted on

resolutions certifying those four applicants to the Board. The council passed resolutions certifying

three of the applicants but declined to pass the resolution certifying Potawatomi Casino. A few

days later, the council voted to reconsider the resolution regarding Potawatomi Casino but, on

reconsideration, did not pass the resolution.

¶5 Following the council’s adoption of the resolutions, Potawatomi Casino filed an action in

the circuit court of Lake County against the City, asserting claims under the fourteenth amendment

of the United States Constitution (U.S. Const., amend. XIV), the Illinois Gambling Act, and the

Open Meetings Act (5 ILCS 120/1 et seq. (West 2020)). The City removed the case to the federal

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district court, where the case remains pending. Waukegan Potawatomi Casino, LLC v. City of

Waukegan, No. 1:20-CV-750 (N.D. Ill.)

¶6 Subsequently, Potawatomi Casino filed a separate action in the circuit court of Cook

County against the City and the Board. In its complaint, Potawatomi Casino sought a declaratory

judgment that the City had failed to comply with the statutory requirements in the Illinois

Gambling Act to certify applicants to the Board. It also sought to enjoin the Board from issuing a

casino license until the City had satisfied those requirements. The circuit court denied Potawatomi

Casino’s emergency motion for a temporary restraining order, and this court affirmed. Waukegan

Potawatomi Casino, LLC v. Illinois Gaming Board, No. 1-21-1561 (filed Dec. 16, 2021) (order

denying plaintiff’s interlocutory appeal). The Board, soon after, issued a finding of preliminary

suitability in favor of one of the certified applicants, Full House Resorts. The City and the Board

moved to dismiss Potawatomi Casino’s complaint (735 ILCS 5/2-615, 2-619.1 (West 2020)), and

the circuit court dismissed the complaint with prejudice for lack of standing. Potawatomi Casino

timely appealed. Ill. S. Ct. R. 303(a) (eff. July 1, 2017).

¶7 II. ANALYSIS

¶8 A. Standing

¶9 Potawatomi Casino argues that the circuit court erred in dismissing its complaint for lack

of standing because it did suffer an injury to its right to compete in a lawful certification process.

Under Illinois law, standing “tends to vary” from federal law “in the direction of greater liberality.”

Greer v. Illinois Housing Development Authority,

(1988). Illinois courts are

generally more willing than federal courts to recognize standing on the part of any person “who

shows that he is in fact aggrieved.”

Lack of standing under Illinois law is an affirmative defense;

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it is not jurisdictional. Glisson v. City of Marion,

(1999); see also Soto v. Great

America LLC,

. As a consequence, a defendant bears the burden to

raise and establish lack of standing, and if not timely raised, it is forfeited. Lebron v. Gottlieb

Memorial Hospital,

(2010). A defendant may properly raise lack of

standing in a motion to dismiss brought under section 2-619 of the Code of Civil Procedure. 735

ILCS 5/2-619(a)(9) (West 2020); Glisson,

. When considering such a motion, a

court must accept as true all well-pleaded facts in the complaint as well as any inferences that may

reasonably be drawn in the plaintiff’s favor. Sandholm v. Kuecker,

. We

review a dismissal under section 2-619 de novo. 1 Glisson,

.

¶ 10 The doctrine of standing is designed to preclude parties who have no interest in a

controversy from bringing suit and assures that suit is brought “only by those parties with a real

interest in the outcome of the controversy.”

. In general, standing requires “some injury

in fact to a legally cognizable interest.”

(citing Greer,

). The claimed injury

must be (1) distinct and palpable, (2) fairly traceable to the defendant’s actions, and

(3) substantially likely to be redressed by the grant of the requested relief. Greer,

.

¶ 11 Potawatomi Casino claims a legally cognizable interest in its right to compete in a casino

certification process that is fairly and lawfully conducted. The Illinois Gambling Act prescribes a

process with which the City is unambiguously required to comply before the Board can consider

1 The City argues that we should review the appeal for “clear error” because it somehow implicates the Board’s decision. This contention is wholly without merit. When a circuit court dismisses a complaint under section 2-619, our review is de novo. See Helping Others Maintain Environmental Standards v. Bos,

(2010) (reviewing a section 2-619 dismissal of administrative review complaint de novo).

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issuing a license. 230 ILCS 10/7(e-5) (West 2020). An applicant participating in such statutorily

mandated selection process would thus have a right to have a fair and compliant process. See

Keefe-Shea Joint Venture v. City of Evanston,

(2002) (a duty is owed

to a bidder to award the contract to the lowest, responsive, responsible bidder as statutorily

required, and, “as a necessary corollary, a bidder has the right to participate in a fair bidding

process”). Although this interest is often implicated in cases involving a competitive bidding

process, it is not strictly limited to such context. See, e.g., Illinois Road & Transportation Builders

Ass’n v. County of Cook,

(the plaintiffs had standing where the county’s

unconstitutional diversion of transportation funds decreased the number of projects they could bid

on); Aramark Correctional Services, LLC v. County of Cook, No. 12 C 6148,

,

at *1, 5 (N.D. Ill. Sept. 10, 2012) (request for proposals).

¶ 12 First, Potawatomi Casino’s alleged injury to this legally cognizable interest is distinct and

palpable. “A distinct and palpable injury refers to an injury that cannot be characterized as a

generalized grievance common to all members of the public.” (Internal quotation marks omitted.)

Illinois Road & Transportation Builders Ass’n,

. Potawatomi Casino

submitted an application to participate in the City’s casino certification process and paid a

nonrefundable application fee of $25,000. Potawatomi Casino pursued a significant business

opportunity to fairly compete for a casino license, and where that opportunity was denied due to

the City’s alleged failure to perform the process lawfully, there is a distinct and palpable injury.

See Messenger v. Edgar,

(1993) (“ ‘[I]nterested’ does not mean merely having

a curiosity about or a concern for the outcome of the controversy ***.”).

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¶ 13 Next, this injury is fairly traceable to the actions of the City and the Board. The Act plainly

requires that the host municipality “memorialize the details concerning the proposed riverboat or

casino in a resolution that must be adopted *** before any certification is sent to the Board.” 230

ILCS 10/7(e-5). The Board can act upon the license applications only after the municipality sends

certifications to the Board.

The statute does not require the municipality to negotiate with every

applicant, but it does require a good-faith negotiation on enumerated items with applicants the

municipality certifies to the Board.

Here, the resolutions that the city council voted on only

stated, without more, that the City and each applicant agreed “in general terms” on the enumerated

items. The resolutions pointed to each applicant’s initial proposal for “the details of the mutual

agreements” and contemplated that final negotiations would take place after the Board completes

its licensing process. 2

¶ 14 Potawatomi Casino alleged that the City did not engage in any negotiations with the

applicants during the certification process and that the City passed the certifying resolutions that

fall short of the statutory requirements. The complaint expressly alleges the following violations:

“a. Contrary to the representation in the City’s ‘certifying resolutions,’ and the

Gambling Act’s requirements, the City did not negotiate in any respect with casino

applicants during the RFQ process.

b. The City and the applicants the City purported to ‘certify’ did not ‘mutually

agree’ on the items required by the Gambling Act. In fact, the City’s ‘certifying resolutions’

2 The City maintains that these resolutions are in substantial compliance with section 7(e-5). However, where Potawatomi Casino sufficiently alleged facts, including that the City did not engage in any negotiations with the applicants and that the City contemplated negotiating “after the fact,” we accept those factual allegations as true for the purpose of a section 2-619 motion to dismiss. Sandholm,

.

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recited only that the City and the applicant had ‘mutually agreed in general terms’ on the

required items. [Citations.]

c. *** [T]he City did not ‘memorialize the details concerning the proposed

riverboat or casino in a resolution’ adopted by the City’s corporate authority, as the

Gambling Act requires, and the City’s ‘certifying resolutions’ do not purport to include

any such memorialization.” C 17-18.

¶ 15 Further, the City’s corporation counsel admitted that the City did not engage in negotiations

with any applicant during the certification process and that it was “fundamentally impossible” to

mutually agree with the applicants on the items as to which the Act requires mutual agreement

before the Board may consider issuing a casino owner’s license. It is this very failure that

Potawatomi Casino complains of. The injury is also traceable to the Board’s conduct of acting on

the applications that have been certified in a non-compliant process. According to the allegations

of the complaint, the Board’s acquiescence in accepting the deficient resolutions and commencing

the licensing process is necessarily intertwined with the City’s conduct, together denying

Potawatomi Casino an opportunity to participate in a lawful and fair process: 3

“35. *** Upon information and belief, the City’s decision not to negotiate with

applicants reflected and facilitated the City’s plan to manipulate the casino certification

process to achieve a predetermined outcome. For example, in purporting to rank casino

proposals, upon information and belief, the City’s outside consultant solicited and

considered supplemental information from other applicants, including Full House, but

3 That the injury is traceable to the Board’s conduct is further evidenced by the redressability, as explained below, since the relief that redresses the injury would, in part, require the Board to retract the license already issued to another applicant.

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refused to consider supplemental information from plaintiff. [Citation.] Upon information

and belief, this discriminatory treatment occurred with the knowledge of and at the

direction of the City. [Citation.]

36. Upon information and belief, by failing to reach agreement on details of casino

proposals, the City was able to obscure contingencies and weaknesses in other parties’

casino proposals. For example, upon information and belief, before the City’s purported

certification votes, North Point conditioned its casino proposal on being the City’s sole

selection, and advised the City that its proposal would be less favorable to the City if the

City certified multiple proposals to the Gaming Board. [Citation.] Yet the City’s resolution

for North Point does not reflect this critical qualification. [Citation.]

37. Upon information and belief, the City did not negotiate with applicants because

its casino certification process was a sham. Indeed, just before the formal start of the

October 17, 2019 special City Council meeting, according to the sworn testimony of a City

Council member in the related federal action, Waukegan Mayor Samuel Cunningham

approached the City Council member and told him which proposals to vote for:

. . . as the mayor entered, he came by, he had to pass by my chair, and he said to

me, these are the three that we want to send to Springfield [i.e., to the Gaming

Board]. Right. And that was what the vote was going to be. Right. Put those three

down there. [Citation.]” C 18-19.

¶ 16 The City and the Board both argue that Potawatomi Casino’s alleged injury is not traceable

to their actions because the City Council had voted to not certify Potawatomi Casino. However,

Potawatomi Casino’s complaint alleged that the City engaged in a predetermined sham to certify

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applicants despite their applications’ contingencies and shortfalls while deliberately shutting

Potawatomi Casino out of the process. Based on the allegations of the complaint, the City

Council’s vote to not certify Potawatomi Casino itself constitutes a part of the City’s unfair and

unlawful certification process at the cost of Potawatomi Casino’s opportunity.

¶ 17 As a result, the requested relief is substantially likely to redress Potawatomi Casino’s injury,

the lost opportunity. Potawatomi Casino sought declarations that the City failed to satisfy statutory

requirements for certification and that the Board consequently lacks authority to issue a casino

license as well as an injunctive relief enjoining the Board from issuing a casino license until the

City complies with the statute. In essence, Potawatomi Casino seeks to repeat the application

process on fair and lawful terms. This remedy would correct the alleged injury since it would

require the City to conduct the certification process again without the alleged illegality or

unfairness. Because the injury is the lost opportunity, Potawatomi Casino need not be certain

whether it would ultimately secure the City’s certification to the Board in a fair process, so long

as the opportunity itself is given. See Illinois Road &Transportation Builders Ass’n,

(“[P]articularly when the injury to a plaintiff is the loss of opportunity to obtain a

benefit due to the government’s failure to perform a required act *** it is rarely possible to know

with any confidence what might have happened had the government performed the act at issue or

the improper conduct had been corrected.” (Emphasis in original and internal quotation marks

omitted.)). Accordingly, the circuit court erred in dismissing Potawatomi Casino’s complaint for

lack of standing.

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¶ 18 B. Private Right of Action

¶ 19 Defendants argue that the absence of a private right of action under the Act provides an

alternative basis on which to affirm. See Kagan v. Waldheim Cemetery Co.,

(where there was no right of private action under the statute, the plaintiffs did not

have standing to sue for statutory violations). The argument, however, is misguided. Plaintiff here

is not seeking to bring an independent cause of action akin to a tort, but rather it is seeking to force

statutory compliance. Noyola v. Board of Education of Chicago,

(1997) (the

four-factor test for private right of action not necessary where the plaintiffs were “not attempting

to use a statutory enactment as the predicate for a tort action” but sought to force public officials

“to do what the law requires”); Landmarks Illinois v. Rock Island County Board,

(the plaintiffs sought only injunctive relief, not tort damages, to “enforce their

protectable right to ensure that the public entity defendants do not act in a manner that would

frustrate the proper operation of the law”). Accordingly, Potawatomi Casino need not demonstrate

that the Act creates an implied right of action with respect to its claim to compel the City and the

Board to comply with the Act. 4

4 Similarly, the argument that the Board has exclusive jurisdiction over Potawatomi Casino’s claim is unpersuasive. While the Board has the authority under the Act to “fully and effectively execute [the] Act” (230 ILCS 10/5 (West 2020)), an administrative agency’s authority is limited to that which is specified by statute. Modrytzkji v. City of Chicago,

. The plain language of section 7(e- 5) conditions the Board’s exercise of authority on the host municipality’s certification. 230 ILCS 10/7(e-5) (West 2020). There is nothing in the language that allows the Board to bypass the City’s noncompliant certification process, and Potawatomi Casino’s claim here is not a claim on which the Board may exercise its exclusive jurisdiction. See LifeEnergy, LLC v. Illinois Commerce Comm’n,

(when the plaintiff “challeng[ed] the scope of the agency’s power to act, not just identifying irregularities or defects in the process of exercising its power,” the claim is proper before the court).

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¶ 20 C. Mootness

¶ 21 While this appeal was pending, in February 2023, the Board issued a temporary operating

permit to Full House, and Full House began operating a temporary casino. On June 15, 2023, the

Board issued an owner’s license to Full House and approved a one-year extension to operate the

temporary casino while the permanent casino facility is under construction. After the issuance of

the owner’s license, both the City and the Board moved to dismiss the appeal as moot.

¶ 22 Defendants argue that the Board’s grant of the license moots the appeal because the court

can no longer grant effective relief. An appeal becomes moot “when the resolution of a question

of law cannot affect the result of a case as to the parties, or when events have occurred which make

it impossible for the reviewing court to render effectual relief.” Marion Hospital Corp. v. Illinois

Health Facilities Planning Board,

(2002). Here, Potawatomi Casino sought

more than just an injunction to prohibit the Board from issuing a license. It also sought a

declaration that the Board lacked authority to issue a license because of the City’s failure to comply

with the statutory prerequisites in certifying applicants to the Board. If the court were to provide

this requested relief, defendants would be required to retract the issued license and repeat the

process. See Provena Health v. Illinois Health Facilities Planning Board,

(2008) (case not moot even when the Board had already granted the construction permit because

the court could still order effectual relief by enjoining the hospital from proceeding with the

construction or from obtaining an operating license without a valid permit). Further, the permanent

casino is still under construction, and Full House would be operating at its temporary location for

another 12 months. This case is decidedly different from Marion, which involved the interplay

between a planning permit for a surgery center obtained from the Illinois Health Facilities Board

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and an operating license issued by the Illinois Department of Public Health. Marion,

. By the time of the Marion appeal, which challenged only the planning permit, a capital

expenditure had been approved and made and an operating license had been issued (to which there

was no challenge): “No statute or regulation had been cited which would have authorized the

Department to suspend or revoke [the] operating license or otherwise limit its medical functions

based on an improperly granted planning permit.”

. In short, even assuming the planning

permit was improperly issued, there was no longer an effective remedy because there was no legal

basis to rescind the operating license.

¶ 23 Further, the fact that Full House has already commenced gambling operations at its

temporary facility is of no moment. The Administrative Code allows the Board to find an applicant

not suitable for licensing at the final stage of review, even after it has issued the applicant a

temporary operating permit. 86 Ill. Adm. Code 3000.230(f)-(g) (2000).

¶ 24 Thus, the current circumstances of the case are such that the court may compel “a

restoration of the status quo ante,” and where the court is able to render such effectual relief, the

case is not moot. Blue Cross Ass’n v. 666 North Lake Shore Drive Associates,

(1981) (“[I]f the defendant does any act which the complaint seeks to enjoin, he acts at

his peril and subject to the power of the court to compel a restoration of the status quo ante ***.”).

¶ 25 III. CONCLUSION

¶ 26 The motions to dismiss the appeal as moot are denied.

¶ 27 The judgment of the circuit court of Cook County is reversed, and the case is remanded for

further proceedings.

¶ 28 Reversed and remanded.

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Waukegan Potawatomi Casino, LLC v. Illinois Gaming Board,

Decision Under Review: Appeal from the Circuit Court of Cook County, No. 2021-CH- 5784; the Hon. Cecilia A. Horan, Judge, presiding.

Attorneys Michael J. Kelly, Jill C. Anderson, Dylan Smith, and Martin for Syvertsen, of Freeborn & Peters LLP, of Chicago, for appellant. Appellant:

Attorneys Kwame Raoul, Attorney General, of Chicago (Jane Elinor Notz, for Solicitor General, and Christina T. Hansen, Assistant Attorney Appellee: General, of counsel), for appellees Illinois Gaming Board, Charles Schmadeke, Dionne R. Hayden, Anthony Garcia, Marc E. Bell, and Marcus Fruchter.

Glenn E. Davis and Charles N. Insler, of HeplerBroom LLC, of St. Louis, Missouri, for other appellee.

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