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06/19/87 Lake Louise Improvement v. Multimedia Cablevision of

June 19, 1987

LAKE LOUISE IMPROVEMENT ASSOCIATION ET AL., PLAINTIFFS-APPELLEES

v.

MULTIMEDIA CABLEVISION OF OAK LAWN, INC., DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

510 N.E.2d 982, 157 Ill. App. 3d 713, 109 Ill. Dec. 914 1987.IL.852

Appeal from the Circuit Court of Cook County; the Hon. Thomas J. O'Brien, Judge, presiding.

APPELLATE Judges:

JUSTICE MURRAY delivered the opinion of the court. LORENZ and PINCHAM, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MURRAY

This is an appeal by defendant, Multimedia Cablevision of Oak Lawn, Inc. (Multimedia), from a decision of a trial court finding unconstitutional the Illinois cable access statute (the Act) (Ill. Rev. Stat. 1985, ch. 24, par. 11-42-11 et seq.) and granting plaintiffs a preliminary injunction.

We reverse and remand without deciding at this time the constitutional issues presented.

The plaintiffs, Lake Louise Improvement Association, an Illinois not-for-profit corporation, and Zeke Olszewski, individually and as class representative of all other persons and corporations who are members of the Lake Louise Improvement Association (hereafter collectively referred to as the association), filed a complaint for declaratory and other relief in the circuit court of Cook County. The association's complaint concerns the installation of cable television equipment by Multimedia upon property held in common ownership by it.

On June 26, 1986, the trial court granted the association's motion for a preliminary injunction and restrained Multimedia during the pendency of the action from attempting to install cable television facilities upon the commonly owned property of the association.

The trial court predicated its order on a finding "that Illinois Revised Statute, chapter 24, section 11 -- 42 -- 11.1 fails to provide adequate safeguards for the taking of private property prior to compensation and that the said statute constitutes an unconstitutional taking of private property for a private use."

On July 16, 1986, Multimedia filed its notice of interlocutory appeal pursuant to Rule 307 of the Rules of the Illinois Supreme Court (107 Ill. 2d R. 307).

The sole issue on appeal is the trial court's issuance of a preliminary injunction based on its finding of the unconstitutionality of the underlying statute.

The following facts are undisputed. Illinois law authorizes its various municipalities to "license, franchise and tax" cable television systems. (Ill. Rev. Stat. 1985, ch. 24, par. 11-24-11.) The Act also provides that:

"no property owner, condominium association, managing agent . . . in possession and control of any improved or unimproved real estate located within such designated franchise area shall forbid or prevent such cable television franchisee from entering upon such real estate for the purpose of and in connection with the construction or installation . . . [upon] such real estate . . . hardware, cable, equipment, materials or other cable television facilities utilized by such cable ...


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