Appeals from the Circuit Court of Madison County, the Hon.
William E. Johnson and Edward Ferguson, Judges, presiding.
MR. JUSTICE WARD DELIVERED THE OPINION OF THE COURT:
This appeal represents the consolidation of three cases. In two of the cases Bernard Scott and Robert Phillips, who are licensed harness-racing drivers, owners and trainers, were by formal order excluded from the premises of all racetracks under the jurisdiction of this State after separate indictments were returned against them by a grand jury in the circuit court of Madison County. Scott was charged in two counts with accepting a bribe and with failing to report a bribe which was intended to influence his efforts as a harness driver in a race at Fairmount Park in January of 1980. Phillips was charged with offering a bribe to another driver in the same race. Scott and Phillips, in separate proceedings in the circuit court of Madison County, applied for and obtained injunctions which barred the racetrack owners and the Illinois Racing Board (Board) from enforcing the exclusion order. The ground for their applications was a claim that section 9(e) of the Illinois Horse Racing Act of 1975 (Ill. Rev. Stat. 1979, ch. 8, par. 37-9(e)), which authorizes the exclusion of occupation licensees by organization licensees for "just cause," was violative of their rights to procedural due process and, further, that this section represented an unconstitutional delegation of legislative authority to private persons. We granted the Board's motion for direct appeal in each case and consolidated the cases with a separate appeal that had been filed by Robert Graham, vice-president and general manager of Fairmount Park Race Track. 73 Ill.2d R. 302(b).
The record shows that on March 26, 1980, a grand jury in Madison County returned an indictment against Robert Phillips for conspiring to bribe another harness driver not to use his best efforts in the 10th race on January 8, 1980, at Fairmount Park Race Track in Collinsville. Robert Graham, who was employed as vice-president and general manager of the track, and who was aware of a State investigation into rumored bribery schemes on the track premises, sent a letter to Phillips on the day the indictment was filed informing him that he was excluded from the grounds of Fairmount Park. The reason stated for excluding Phillips was his indictment. In his letter, Graham cited section 9(e) of the Illinois Horse Racing Act of 1975 as authority for his action. This section provides:
"[The Illinois Racing] Board, and any person or persons to whom it delegates this power, may eject or exclude from any race meeting or organizational grounds or any part thereof, any occupation licensee or any other individual whose conduct or reputation is such that his presence on organization grounds may, in the opinion of the Board, call into question the honesty and integrity of horse racing or interfere with the orderly conduct of horse racing; * * *. The power to eject or exclude occupation licensees may be exercised for just cause by the organization licensee or the Board, subject to subsequent hearing by the Board as to the propriety of said exclusion." Ill. Rev. Stat. 1979, ch. 8, par. 37-9(e).
On March 27, Phillips obtained a temporary restraining order against Graham, prohibiting enforcement of the exclusion order. The restraining order was later amended to include the Board, which had been added by the plaintiff as a party. The court in its order, however, also directed Phillips to seek an immediate hearing before the Board on the legality of his exclusion. A hearing was conducted before an officer of the Board on April 7, which resulted in an order affirming Graham's decision to exclude the plaintiff. The hearing officer also enlarged the order to exclude Phillips from all racetracks under the Board's jurisdiction. A hearing before the full board was set for April 23. On April 15 the circuit court issued a preliminary injunction enjoining any action by the defendants to exclude the plaintiff until further action by the full board. After an evidentiary hearing on April 23, the six-member board voted unanimously to affirm the hearing officer's decision.
Subsequent to the Board's decision, however, the circuit court, on May 5, entered a permanent injunction against the "Board and its organization, licensees, and stewards acting under the authority of the Board * * * from enforcing any exclusion against petitioner until the issues in this case are reached either by an appeal from this Order or administrative review of the Racing Board's determination, or the issuance of an opinion in some other case determinative of the issues raised herein." The issues alluded to in the order were raised by the plaintiff and concerned claims of violation of procedural due process in that the plaintiff was excluded by Graham, the organization licensee, without a hearing and also the ground that Graham had no constitutional authority to issue an exclusion order since he was not a member of the Racing Board. The defendants had contested the circuit court's authority to issue an injunction, arguing that, as the plaintiff had not exhausted his administrative remedies under the Illinois Administrative Procedure Act (Ill. Rev. Stat. 1979, ch. 127, par. 1001 et seq.), the court had no jurisdiction.
The circumstances leading to the exclusion of Bernard Scott were similar to those in Phillips' case. A two-count indictment was returned against Scott in the circuit court of Madison County on April 9, 1980, charging acceptance of a bribe and a failure to report a bribe intended to affect his performance in the 10th race at Fairmount Park on January 8, 1980. On May 7, 1980, Scott received a letter signed by two State Racing Board stewards stating that he was barred from the Quad-City Downs, located in East Moline, as well as every other racetrack in Illinois. As in the case of Phillips, the only ground given for Scott's exclusion was his indictment. Scott filed, on May 13, a notice of intention to appeal from the stewards' ruling to the Racing Board pursuant to rules promulgated by the Board. A hearing was held on May 23 at which the Board affirmed the stewards' decision to exclude Scott. On May 28 he obtained a temporary restraining order in the circuit court of Madison County, and on June 6 the court entered a preliminary injunction against Larry Cassavant, general manager of Quad-City Downs, and the Board, barring the enforcement of the exclusion order until further order of the court.
The questions presented are (1) whether the exclusion orders violated the plaintiffs' right to procedural due process; (2) whether the authority given organization licensees to exclude occupation licensees under section 9(e) was an unconstitutional delegation of legislative power; (3) whether the circuit court had jurisdiction to consider the plaintiff's application for an injunction; and (4) whether the injunctions properly issued.
In considering whether an individual has been deprived of "life, liberty or property" without due process of law (U.S. Const., amend. XIV; Ill. Const. 1970, art. I, 2) we must first determine whether a protectable interest was involved. (See Polyvend, Inc. v. Puckorius (1979), 77 Ill.2d 287, 294.) There is no question that the license of the plaintiffs to pursue an occupation, as a trainer, owner and driver of harness horses, is a property interest given protection by the due process clause. (Barry v. Barchi (1979), 443 U.S. 55, 64, 61 L.Ed.2d 365, 375, 99 S.Ct. 2642, 2649. See also Board of Regents v. Roth (1972), 408 U.S. 564, 572, 33 L.Ed.2d 548, 558, 92 S.Ct. 2701, 2706-07, quoting Meyer v. Nebraska (1923), 262 U.S. 390, 399, 67 L.Ed. 1042, 1045, 43 S.Ct. 625, 626; Slaughter-House Cases (1873), 83 U.S. (16 Wall.) 36, 21 L.Ed. 394; Pozner v. Mauck (1978), 73 Ill.2d 250, 254; Rios v. Jones (1976), 63 Ill.2d 488, 496-97.) Therefore, the plaintiffs could not have been "finally deprived" of their property interest until a hearing was held to determine the rights of the parties. (Mathews v. Eldridge (1976), 424 U.S. 319, 333, 47 L.Ed.2d 18, 32, 96 S.Ct. 893, 902. See generally Fuentes v. Shevin (1972), 407 U.S. 67, 32 L.Ed.2d 556, 92 S.Ct. 1983.) Regarding the question of when this hearing must take place, the Supreme Court has held that "`[w]here only property rights are involved, mere postponement of the judicial inquiry is not a denial of due process, if the opportunity given for ultimate judicial determination is adequate.'" Mitchell v. W.T. Grant Co. (1974), 416 U.S. 600, 611, 40 L.Ed.2d 406, 416, 94 S.Ct. 1895, 1902, quoting Phillips v. Commissioner (1931), 283 U.S. 589, 596-97, 75 L.Ed. 1289, 1297, 51 S.Ct. 608, 611.
To determine whether due process requires an evidentiary hearing prior to the impairment or deprivation of a property right, as opposed to a hearing thereafter, the Supreme Court has said that an "analysis of the governmental and private interests that are affected" is necessary. (Mathews v. Eldridge (1976), 424 U.S. 319, 334, 47 L.Ed.2d 18, 33, 96 S.Ct. 893, 902.) In Mathews v. Eldridge the Supreme Court went on to say:
"[I]dentification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of erroneous deprivation of such interest through the procedures used, and the probable value, if any, of any additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail." 424 U.S. 319, 335, 47 L.Ed.2d 18, 33, 96 S.Ct. 893, 903.
The plaintiffs first argue that their interest in pursuing their occupation will be irreparably impaired if the defendants asserted right to exclude them, prior to a judicial determination of their guilt, is upheld. The irreparable impairment or harm which the plaintiffs claim is monetary; if they are excluded from all Illinois racetracks they will be unable to practice their occupation and thus will suffer an irreversible economic loss. We do not see the effect as being as drastic as the plaintiffs say. First, the potential loss of earnings is reduced by the fact that the plaintiffs, under the exclusion order, are still able to train and race their horses, albeit through other owners, trainers or drivers. Second, the order did not impose the more serious penalty of suspension or revocation. Thus, the plaintiffs' licenses remained unaffected, allowing them to carry on with their occupation, though admittedly under the restriction that they could not pursue their activities in person on racetrack premises. Third, the order would not affect races taking place outside the State. The record shows that Phillips had planned to enter a race in Kentucky on April 15. From these considerations, we conclude that there was no "final deprivation" of property without a prior hearing as would violate procedural due process.
With respect to "the risk of erroneous deprivation," which is the second consideration in Mathews, we would note, as illustrated above, that the deprivation here is only partial. The plaintiffs contend, however, that any decision to exclude or "deprive" must be based on reasonable or good cause. They argue that using the fact of an indictment as the sole ...