Appeal from the Circuit Court of Cook County; the Hon. Harold
A. Siegan, Judge, presiding.
JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:
Defendant, Richard Brzeczek, the superintendent of the Chicago police department, and intervenor, Neil Hartigan, the Attorney General of Illinois, appeal a preliminary injunction issued by the circuit court restraining them, their agents, servants and employees, from arresting anyone for possessing and/or selling copies of the Minority News Review, a news magazine published by plaintiffs, G.A. Carney, Ltd., and Gregory A. Carney, that contain entry forms for the "Daily Devil," a contest based on the numbers drawn in the Illinois State Lottery. (Ill. Rev. Stat. 1981, ch. 120, par. 1151 et seq.) The issue on appeal is whether the issuance of the injunction constituted an abuse of the circuit court's discretion. For the reasons hereinafter stated, we conclude that the court erred in issuing the injunction and reverse.
On October 22, 1982, plaintiffs, G.A. Carney, Ltd., and Gregory A. Carney, its president, filed a complaint for injunctive relief against Richard Brzeczek, the superintendent of the Chicago police department, and his employees, agents or successors, seeking to enjoin them from arresting persons for distributing, selling or possessing copies of plaintiffs' publication, the Minority News Review, containing entry forms for the "Daily Devil," a contest based on the numbers selected in the Illinois State Lottery. Plaintiffs' amended complaint alleged that on September 30, October 1 and October 2, 1982, Chicago police officers arrested six persons for distributing, selling or possessing copies of the Minority News Review and charged them with violating provisions of the Criminal Code of 1961 that prohibit gambling in the form of a lottery. (Ill. Rev. Stat. 1981, ch. 38, pars. 28-1(a)(7), 28-3.) On December 9, 1982, the circuit court entered a temporary restraining order enjoining such arrests. On December 16, 1982, a hearing commenced to determine whether a preliminary injunction should be granted. On January 5, 1983, the Illinois Attorney General was allowed to intervene. The hearing concluded on January 17, 1983.
At the hearing, Gregory A. Carney testified that he is the publisher and editor of the Minority News Review, a digest of information of interest to Blacks and Hispanics, which has been published periodically since July 1982 and which has an average circulation of 10,000 to 15,000 copies. The Minority News Review is distributed by City Wide Distributors to between 20 and 25 vendors for sale to the public. There are no present subscriptions, and no issues have yet been offered for sale directly from newsstands.
Carney stated that as a "circulation stimulant," the vendors' copies of the Minority News Review include an entry form for a contest entitled the "Daily Devil," which is promoted as a "free shot at the lottery." The contest allows players to pick various combinations of three or four numbers. The winning numbers for each day are the same numbers drawn that day in the Illinois State Lottery. Participants are eligible to win cash prizes. The "Daily Devil" does not have winning numbers on days the Illinois State Lottery does not draw winning numbers.
To enter the "Daily Devil" contest, a player must use a three-part entry form which is attached to the Minority News Review. Copies of the publication with the entry form are available only on issues sold through vendors. The entry forms are not provided with complimentary copies nor will they be available on copies sold at newsstands because, according to the publisher, "they don't have the facilities to take care of that." Carney repeatedly stated that no one may enter the contest without purchasing the magazine at an authorized vendor. A vendor will not honor a blank entry form separate from the magazine.
The cover price of the Minority News Review is $1. The vendor will not sell or give away the entry form for the "Daily Devil" separate from the publication. The contest must be played at the time and place of purchase. The vendor, not the purchaser, completes the three-part entry form attached to the publication and makes "the proper entries for the reader and then give[s] the reader a copy of that particular entr[y] form." The vendor retains the second copy for his own records and sends the third copy to the publisher.
If a contestant wins, he must return to the vendor where he played the "Daily Devil" to collect his prize. The vendor pays the winnings to the contestant from the proceeds of his sale of the magazine. After deducting his commission of 20 cents per copy, the vendor sends the balance of the net proceeds to the distributor. The distributor, in turn, deducts his commission of five cents per copy and gives the remaining funds to the publisher. The commissions are not affected by the outcome of the contest. Carney testified that he paid approximately $6,000 in prizes from July 1982 to September 30, 1982.
The contest rules printed on the three-part entry form state: "No Purchase Necessary. Free entry blanks can be obtained at the office of the publisher. No charge or obligation." The publisher's address does not appear on the entry form itself. The form provides that "employees of the publication and KK Features and their families are not eligible * * *." The address of KK Features, from whom Carney acquired the right to use the copyright "Daily Devil" contest, is listed on the entry form as Greenbrae, California.
The "office" of the publisher listed in the magazine, 20 East Delaware, Apartment 1105, Chicago, Illinois, is Carney's studio apartment in a residence hotel. The name Minority News Review does not appear on the building directory. No telephone number for the publication may be found in the Chicago telephone directory. The Minority News Review has no employees and its contract writers do not work at Carney's apartment.
Carney testified that if a person came to his office to obtain a free entry form when he was not in, that person could leave a message with the desk clerk and Carney would make arrangements to meet him later. Carney, however, will not send or accept any entry forms by mail. Cheryl Tillman, the manager of the hotel where Carney resides, testified that the hotel does not and will not distribute free "Daily Devil" entry forms for the publisher. She has instructed her staff not to assist anyone in entering the contest or in locating the "office" of the Minority News Review. An investigator for the Illinois Attorney General's Office corroborated Tillman's testimony.
Although he has sold more than 100,000 copies of the Minority News Review, Carney testified that he has given away only "two or three" free entry forms for the "Daily Devil." In each instance, Carney filled out the form for the contestant. (Free entry forms must be completed at the office of the publisher.) Carney, however, had no records of the names, addresses, entry numbers or copies of the free entry forms he distributed. He stated that he kept records of winning entries only, which did not include any of the free entry forms he gave away. Carney could not estimate how many persons had played the "Daily Devil" since the contest began.
Two police officers testified that on September 30 and October 1, 1982, they arrested several persons for distributing, selling or possessing copies of the Minority News Review with the entry form for the "Daily Devil" attached. Both officers stated that they would not arrest anyone for possessing or selling the magazine without the entry form.
Carney testified further that he stopped publishing the Minority News Review from October 3, 1982, until December 12, 1982, three days after the temporary restraining order was issued, because vendors, fearing arrest, refused to accept the magazine for ...