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Kurtzworth v. Illinois Racing Bd.

OPINION FILED JANUARY 7, 1981.

RICHARD KURTZWORTH, PLAINTIFF-APPELLEE,

v.

ILLINOIS RACING BOARD ET AL., DEFENDANTS-APPELLANTS. — JIM BAKER, PLAINTIFF-APPELLEE,

v.

RICHARD GARRETT ET AL., DEFENDANTS-APPELLANTS. — GARY DE LONG, PLAINTIFF-APPELLEE,

v.

OGDEN FAIRMOUNT, INC., ET AL., DEFENDANTS-APPELLANTS. — DONALD K. WALLIN, PLAINTIFF-APPELLEE,

v.

OGDEN FAIRMOUNT, INC., ET AL., DEFENDANTS-APPELLANTS. — LANNY KRESS, PLAINTIFF-APPELLEE,

v.

CAHOKIA DOWNS, INC., ET AL., DEFENDANTS-APPELLANTS. — GARY BETZER, PLAINTIFF-APPELLEE,

v.

ILLINOIS RACING BOARD, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of St. Clair County; the Hon. J.F. CUNNINGHAM, the Hon. KENNETH J. JUEN, the Hon. RICHARD GOLDENHERSH, and the Hon. THOMAS M. DALEY, Judges, presiding. APPEAL from the Circuit Court of Madison County; the Hon. A. ANDREAS MATOESIAN and the Hon. JOHN W. DAY, Judges, presiding.

MR. JUSTICE JONES DELIVERED THE OPINION OF THE COURT:

We have consolidated for opinion five cases in which we consider the propriety of certain temporary restraining orders and ensuant preliminary injunctions which, in similar though not identical terms, stayed the suspension of horse-racing-related licenses by certain agents of the Illinois Racing Board (Board). The preliminary injunctions were to remain in effect until disposition of administrative appeals by the Board.

The Illinois Racing Board and stewards are charged by law with regulating horse racing in Illinois (see the Illinois Horse Racing Act of 1975, Ill. Rev. Stat. 1977, ch. 8, par. 37-1 et seq.). The Illinois Racing Board is a department of State government and its members are executive officers appointed by the Governor. (Ill. Rev. Stat. 1977, ch. 8, par. 37-4.) Racing stewards are representatives of the Board at race tracks licensed by the Board, and they supervise horse racing meetings as provided by the rules and regulations of the Board. (Ill. Rev. Stat. 1977, ch. 8, par. 37-3.19.) The stewards are empowered to investigate violations of Board rules and to revoke or suspend the licenses of horse owners, trainers, jockeys, concessionaries, and other occupational licensees upon a finding that the rules have been violated. (Ill. Rev. Stat. 1977, ch. 8, par. 37-16.) The stewards' findings may be appealed to the full Board, where a trial de novo occurs, and then to the circuit court on administrative review. Ill. Rev. Stat. 1977, ch. 8, pars. 37-16(c) and 37-46.

A brief description of the proceedings in each of the five cases will suffice for our disposition. Our number 78-164 is Richard A. Kurtzworth v. Illinois Racing Board and Steward's Office, Cahokia Race Track, filed in St. Clair County. The complaint alleged that Kurtzworth was licensed as owner, trainer and driver (in harness races) by the Illinois Racing Board and other authorities and associations. He was hired by a veterinarian from St. Louis to transport a yearling filly to Ohio. Because of the temperament of the horse he was furnished medications with syringes and needles for administration during the trip. Upon his return to the track, being aware of the rules, he removed from his person all equipment but by oversight neglected to remove one needle. Upon entering the track enclosure on March 16, 1978, agents of the Illinois Bureau of Investigation conducted a warrantless search of his person and discovered the needle. The search was asserted to be illegal. On March 21, 1978, the stewards at Cahokia Race Track conducted a hearing which resulted in a 30-day suspension of the plaintiff. Plaintiff's sole profession is as owner, trainer and driver and the suspension would severely damage him. Plaintiff had a horse, "Hastings," entered in the seventh race at Cahokia on March 23 and he alleged that if the illegal suspension is allowed to remain in force the damage to plaintiff will be irreparable and a temporary injunction is necessary and proper. The complaint concluded with a prayer "* * * that this court conduct an immediate hearing and issue an injunction restraining the Illinois Racing Board and the Stewards Office at Cahokia from the suspension of the Petitioner."

On the same date of March 23, 1978, the court, without notice of bond, issued a "temporary injunction" to remain in force until March 27, 1978, at 9 a.m. at which time a hearing was to be held. The writ recited:

"* * * you are hereby enjoined and restrained temporarily from [sic] That the action of suspension in this cause by the steward's [sic] of the Illinois Racing Board is unduly harsh; That the full suspension deprives the Plaintiff of his livelihood; That he will be unable to earn a living and therefore irreparably harmed; That the facts do not warrant the action taken by the Stewards. A temporary injunction issue to remain in force until Monday March 27, 1978. Richard Kurtzworth is allowed to race `Hastings' in the 7th tonight; `Barkley' on the 24th; `Garrett' on the 25th, said horses having been previously entered. Plaintiff to enter no further Horses. HEARING MARCH 27, 1978, 9:00 a.m."

A hearing was held as scheduled. The defendants objected to the jurisdiction of the court, contending that section 16 of the Illinois Horse Racing Act of 1975 (Ill. Rev. Stat. 1977, ch. 8, par. 37-16(a) through (c)) vests jurisdiction in the Illinois Racing Board until it reaches a final decision. In the ensuing order the objection to jurisdiction was denied and "* * * the injunction heretofore issued in this cause is continued in full force and effect until a final decision is rendered by the Illinois Racing Board." Our numbers 78-292 and 78-293 were consolidated for hearing in the circuit court of Madison County. No. 78-292 is Gary DeLong v. Ogden Fairmount Jockey Club, Ogden Fairmount, Inc., Illinois Racing Board and three named individuals who are stewards of the Illinois Racing Board. DeLong's complaint, filed June 5, 1978, alleges that he is a jockey licensed by the Board, a quasi-judicial administrative body with authority over parimutuel horse racing in Illinois, per the Illinois Horse Racing Act of 1975 (Ill. Rev. Stat. 1977, ch. 8, par. 37-1). On the evening of June 2, 1978, the individual defendants, stewards at Fairmount Race Track, gave notice they would conduct a hearing to revoke or suspend plaintiff's right to do business (as a jockey) at the track at 10 a.m. on June 3, 1978. The notice recited that the action was being taken because plaintiff had been indicted in one count by the grand jury of Madison County for failure to report an offer of a bribe relating to the 10th race at Fairmount on April 28, 1978. The June 3, 1978, hearing was held, but plaintiff was not afforded the right to counsel, the right to cross-examine witnesses and was not allowed to be present during the presentation of evidence against him. As a result of the hearing the plaintiff was ordered suspended from appearing at Illinois race tracks. The said Act provides for appeal and administrative review pursuant to the Administrative Review Act but does not provide for damages to the suspended person or for a stay of "sentence" for the suspended person. DeLong's complaint alleged further that unless the court restrained enforcement of the suspension order the plaintiff would lose his income and be punished while his appeal was pending, thereby causing him to suffer irreparable harm. Plaintiff has applied for a trial de novo before the Racing Board.

The complaint concluded with a prayer for a temporary restraining order to be issued immediately, without notice and without bond, ordering defendants not to enforce the order of suspension and for a hearing to be held within 10 days to consider raising the order or making it permanent. Although Ogden Fairmount, Inc., and Ogden Fairmount Jockey Club were made parties defendant, their names were not mentioned in the body of the complaint.

Our number 78-293 is the case of Donald K. Wallin against the same defendants named in the DeLong case. The complaint, also filed June 5, 1978, is similar to that in the DeLong case in that the plaintiff was indicted for failure to report a bribe and, after the same procedure described for DeLong, his license was suspended. The complaint in Wallin differs in one respect from that in DeLong. Wallin alleged that Ogden Fairmount, Inc., purportedly acting pursuant to section 9(e) (Ill. Rev. Stat. 1977, ch. 8, par. 37-9(e)) barred him from Fairmount Park Race Track because he was indicted by the Madison County grand jury and that that action, taken without notice or hearing, was in violation of his "constitutional rights to trial by jury and to the presumption of innocence." The prayer of the Wallin complaint is identical to that of the DeLong complaint.

Proceedings and orders subsequent to the filing of the complaints in both Wallin and DeLong are identical. The circuit court issued a temporary restraining order, without notice or bond, against all defendants, restraining them from enforcing the June 3, 1978, order of suspension. Hearing for preliminary injunction was set for June 15, 1978. After the hearing the following order was entered in both cases:

"Hearing had. The Temporary Restraining Order issued on June 5, 1978, is hearby made a Preliminary Injunction and is to remain in full force until the Illinois Racing Board has rendered a decision in this matter."

Our numbers 78-164 and 78-517 are embraced in Gary Betzer v. Illinois Racing Board. Plaintiff Betzer filed a complaint against the Illinois Racing Board, individual stewards of the Board, Ogden Fairmount, Inc., and Ogden Fairmount Jockey Club, Inc. Eventually all defendants except the Board were dismissed out of the suit. Plaintiff alleged that he was licensed by defendant Board as a jockey's agent. He was indicted by a grand jury of Madison County for corrupt practices which consisted of offering bribes to jockeys DeLong and Wallin. As a result of the indictment the jockey club (race track) barred plaintiff from the track, and the Board and its stewards suspended his license, all of which action was taken without affording plaintiff an opportunity to appear and be heard. Although the criminal charges contained in the indictment were dismissed the defendants refused to reinstate the plaintiff. In his complaint plaintiff attacked the constitutionality of relevant statutes and prayed for a temporary restraining order and preliminary injunction, both of which were ultimately entered against the Board only. No duration was fixed for the preliminary injunction, but the order found that the plaintiff had no adequate remedy of law, that the threatened injury would be immediate and great, that plaintiff had a reasonable likelihood of prevailing on the merits and that the preliminary injunction would not have an injurious effect on the general public. The court also found in its order for preliminary injunction that section 9(e) of the Horse Racing Act was unconstitutional. This court granted a stay of the preliminary injunction on December 19, 1978.

Our number 78-386 is Lanny Kress v. Cahokia Downs, Inc., East St. Louis Jockey Club, Illinois Racing Board and three named individuals who are stewards of the Illinois Racing Board. On August 4, 1978, plaintiff filed a verified complaint in the circuit court of St. Clair County for temporary restraining order and preliminary injunction. He alleged he was a jockey licensed by the Illinois Racing Board, a quasi-judicial administrative board organized under the Illinois Horse Racing Act of 1975 (Ill. Rev. Stat. 1977, ch. 8, par. 37-1 et seq.). On August 2, 1978, the individual defendants, stewards of Fairmount Race Track, gave plaintiff notice of hearing to be held on August 3, 1978, to revoke or suspend plaintiff's right to do business at race tracks in Illinois. The hearing was held but plaintiff was not allowed to confront or cross-examine witnesses. Testimony presented at the hearing established that a "D.O.I. Agent" searched "the truck" and plaintiff's wallet and discovered prescription pills and a small amount of marijuana. Plaintiff involuntarily signed a waiver allowing the search, and all the evidence consisted of incompetent evidence. Plaintiff was suspended for 30 days. The complaint further alleges that the Act and Rules provides for an appeal and judicial review, but the suspension order is immediate, and unless the defendants are restrained from enforcing the suspension order pending appeal the plaintiff will lose his income and suffer irreparable harm. Plaintiff is entitled to trial de novo before the Racing Board and had requested the same.

The complaint concluded with a prayer for a temporary restraining order against enforcement of the order of suspension, and for a hearing within 10 days to consider the raising or making permanent the restraining order. On August 4, 1978, the trial court issued a temporary restraining order, without notice or bond, against all defendants, restraining them from enforcing the order of suspension. The matter was set for further hearing on August 14, 1978. On that date, following a hearing, the following order was entered:

"The court orders that a preliminary injunction issue against the defendants restraining the defendants from enforcing its order of suspension against the plaintiff until further order of court."

Our number 78-281 is Jim Baker v. Richard Garrett and Illinois Racing Board. On March 31, 1978, plaintiff filed a complaint for temporary restraining order and injunction in the circuit court of St. Clair County. He alleged that he was licensed by the Board to conduct a "Tack Room" business and that it is the whole support for himself and his family. The Board is a quasi-judicial administrative body organized under the Illinois Horse Racing Act of 1975 (Ill. Rev. Stat. 1977, ch. 8, par. 37.1 et seq.), and Richard Garrett is an assistant State steward appointed pursuant to that Act. On March 15, 1978, pursuant to section 16 of the Act, defendant Garrett gave notice that he would conduct a hearing on March 23, 1978, to suspend or revoke plaintiff's right to do business at Cahokia Race Track. The notice never specified any wrongful acts plaintiff had committed but merely recited the rules and regulations of the Board. The hearing board of stewards had participated in the investigation against the plaintiff and discussed the evidence with officers of the D.O.I. (Illinois Department of Investigation) and indicated a prejudgment prior to the hearing. The evidence against the plaintiff consisted of all incompetent evidence. The plaintiff was ordered suspended for the remainder of 1978. A copy of the suspension order was attached to the complaint. It recited that the suspension was for possession and sale of prescription drugs to licensed horsemen while on the grounds of Cahokia Downs and Fairmount Park, the plaintiff not possessing a pharmacist's license and having no right to possess or sell drugs on a race track. The Act and Rules provided for an appeal and judicial review, but the suspension order is immediate and plaintiff is ordered off the track pending appeal. Unless the court restrains defendants from enforcing the suspension order plaintiff will lose his income, be punished while his appeal is pending and suffer irreparable harm. Plaintiff was not accused nor was it alleged that he sold or possessed any substance that was capable of influencing a horse on a race track. Plaintiff is entitled to a trial de novo before the Racing Board and has requested same.

The complaint concluded with a prayer that a temporary restraining order be issued ordering the defendants not to enforce their order of suspension and for a hearing to be held within 10 days to consider the raising of or making permanent the said order. On March 31, 1978, the court issued a temporary restraining order restraining defendants from enforcing the suspension of the license of plaintiff to do business on Illinois race tracks and from enforcing the suspension order of defendant Garrett of March 29, 1978. Further hearing on the temporary restraining order was set for April 10, 1978. Hearing was held on that date and an order thereon entered on May 8, 1978. In the order the court found plaintiff would suffer irreparable harm should a preliminary injunction not issue and that no hardship will result to defendants, that the doctrine of exhaustion of administrative remedies is inapplicable to the case and that plaintiff has made a timely appeal for a hearing de novo before the Board. It was then ordered that a preliminary injunction issue enjoining defendants from enforcing the suspension order pending hearing before the Board and the plaintiff's appellate proceedings, if any. It was further ordered that defendant not interfere with plaintiff's continuance in his employment at the local race tracks pending hearing before the Racing Board and plaintiff's appellate proceedings, if any.

Defendants have taken an interlocutory appeal from the orders for preliminary injunction in all five cases pursuant to Supreme Court Rule 307(a) (Ill. Rev. Stat. 1977, ch. 110A, par. 307(a)).

In a supplemental brief filed by the appellants this court was advised that, following the issuance of the preliminary injunctions, the plaintiffs pursued their administrative remedy of appeal to the Board. Kurtzworth's suspension was upheld by the Board and by the circuit court upon administrative review. DeLong was reinstated by the Board. The suspensions of Baker and Kress were upheld by the Board. There has been no final administrative action by the Board with regard to Wallin.

It thus appears that the preliminary injunctions in Kurtzworth, DeLong and Baker have expired by their terms. The preliminary injunction in Kress was to be in effect "until further order of court." Although the suspension of Kress' license was upheld by the Board and the time of suspension has since expired, we are not made aware of any further orders of court, and presumably the preliminary injunction in Kress is moot.

• 1 Although nothing appears of record to indicate mootness as to Wallin, we deem it likely that that condition also pertains in his case. We judicially note that in People of the State of Illinois v. Donald Wallin, Fifth District, No. 78-306, this court filed an unpublished order on September 21, 1979, in which we affirmed an order of the circuit court of Madison County suppressing certain statements of the defendant to a steward at the Fairmount Park Race Track in a case where Wallin was being prosecuted for failure to report a bribe. Nothing appears of record to indicate what further proceedings were had or what disposition was made of the Betzer case. We can only presume that since the criminal charges were dropped his case also became moot. Nothing of record suggests proceedings beyond the entry of the preliminary injunction order and its stay by this court.

In the face of both real and apparent mootness of all cases involved in this appeal the appellants submit and argue the issue that the public interest nevertheless requires a determination of the appeals. They pose the question:

"Whether the public interest requires a determination by the Court of the propriety of injunctive relief where such relief prevents a department of state government from discharging its lawful responsibility, where state revenues are adversely affected, and where such relief promotes practices detrimental to the public good?"

• 2 The general rule is that when a reviewing court has notice of facts which show that only moot questions or mere abstract propositions are involved, or where the substantial questions involved in the trial court no longer exist, it will dismiss the appeal. But when the issue presented is of substantial public interest there is a well-recognized exception to the general rule. Among the criteria considered in determining the existence of the requisite degree of public interest are the public or private nature of the question presented, the desirability of an authoritative determination for the future guidance of public officers and the likelihood of future recurrence of the question. People ex rel. Wallace v. Labrenz (1952), 411 Ill. 618, 104 N.E.2d 769; Illinois News Broadcasters Association v. City of Springfield (1974), 22 Ill. App.3d 226, 317 N.E.2d 288; Johnson v. Board of Education (1967), 79 Ill. App.2d 22, 223 N.E.2d 434.

We have determined that the criteria are present in this case to a degree sufficient to warrant consideration of the two issues presented in these cases.

Authority to grant writs of injunction, temporary restraining orders and preliminary injunctions is conferred by "An Act to revise the law in relation to injunctions (Ill. Rev. Stat. 1979, ch. 69). It is unnecessary to discuss the width and breadth of the injunctive powers of the circuit courts>. Authority for issuance of injunctions is not in question. It is the application of injunctive authority in the peculiar facts of this case that defendants call into question. Their position with regard to the propriety of the preliminary injunctions as issued is stated in separate briefs filed in each consolidated case. Most of defendants' objections generally relate to the traditional defenses interposed to the issuance of a preliminary injunction. These are disposed of by the posture of mootness and have no bearing on the public policy questions we consider. However, we deem two of defendants' objections germane, plaintiffs' failure to exhaust their administrative remedy, and violation of the constitutional doctrine of separation of powers. Defendants' briefs filed in the separate cases vary somewhat in their descriptions of the issues we address. Nevertheless, they present a central theme from which we easily form primal issues. Examples of the defendants' arguments are these:

"The instant injunctions have had the deleterious effect of allowing plaintiffs to circumvent statutory remedies and to prevent the Board from carrying out the intention of the legislature with regard to racing."

"Not only has the legality of the Board's conduct never been challenged by plaintiffs, the records demonstrate beyond doubt that it was plaintiffs who violated the law."

"Betzer alleged, and the circuit court found, that sec. 37-9(e) of the Horse Racing Act was unconstitutional as applied to him. However, this argument did not relieve him of the duty to pursue his administrative remedies as it is well settled that administrative remedies must be exhausted unless the relevant statutes' unconstitutionality is attacked on its face. [Citation.] Moreover, injunctive relief is improper unless the statute is alleged to be unconstitutional on its face. [Citation.]"

These arguments go directly to the issues as we have posited them, and they require resolution for future guidance of public officials and present issues that are likely to be of a recurring nature. The issues which we believe are presented and which we will address are (1) whether the circuit court in the exercise of its traditional chancery powers of injunction may intrude other than by judicial review into administrative hearing proceedings; and (2) were the plaintiffs deprived of due process of law when their race-track-related licenses were suspended by the race track stewards pending a hearing before the Illinois Racing Board?

The first issue arose in all the cases we have under consideration when the plaintiffs-licensees filed complaints in the circuit courts> of their respective counties seeking a temporary restraining order and/or a preliminary injunction. In none of the complaints did the plaintiffs seek relief upon any substantative issue that was being submitted to the court for consideration. The courts> were not asked to rule upon the merits of any cause of action. No attack was made upon the validity of any statute or rule except in Betzer. Each complaint concluded with a prayer for the solely provisional relief of temporary restraining order and preliminary injunction, to remain in effect until such time as the Board had issued its ruling on the hearings which were to follow the suspension action of the stewards. In the instance of each plaintiff, the provisional relief was granted in terms that tied the expiration of the provisional relief to the administrative determination of the Board.

We can find no Illinois precedent for such procedure. In P.S.L. Realty Co. v. Granite Investment Co. (1976), 42 Ill. App.3d 697, 356 N.E.2d 605, we held that a preliminary injunction (and, necessarily, a temporary restraining order) is an ancillary and provisional remedy and cannot constitute the ultimate relief afforded with respect to the matter in dispute. It was further determined on appeal that since the remedy of preliminary injunction was pursued as the only relief sought, the preliminary injunction must be dissolved.

The cases at bar, the complaints being for purely provisional relief from the circuit courts>, superficially beg for invocation of the rule of the P.S.L. Realty Co. case with the consequence of dissolution. However, there is an important difference. In P.S.L. Realty Co., there was no averment in the complaint asking substantative relief in the merits of a claim or linking the sought after preliminary injunction with proceedings pending or contemplated in another tribunal. In the cases under consideration the preliminary injunctions were linked to pending or ...


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