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04/29/94 GLORIA MOUSHON v. AAA AMUSEMENT

April 29, 1994

GLORIA MOUSHON, PLAINTIFF-APPELLEE, AND CHUCK MCMASTERS, PLAINTIFF,
v.
AAA AMUSEMENT, INC., AN ILLINOIS CORPORATION; CHUCK FRANK AND LINDA FRANK, D/B/A LINDA'S PLACE, DEFENDANTS-APPELLANTS, AND FLEETWOOD RESTAURANT, INC., AN ILLINOIS CORPORATION; ALLSTAR MUSIC, INC., AN ILLINOIS CORPORATION; AND ILLINOIS TAP, AN ILLINOIS CORPORATION, DEFENDANTS.



Appeal from Circuit Court of Sangamon County. No. 92L0045. Honorable Richard J. Cadagin, Judge Presiding.

As Corrected May 23, 1994. As Modified on Denial of Rehearing November 3, 1994.

Honorable Frederick S. Green, J., Honorable John T. McCULLOUGH, P.j., Honorable Robert J. Steigmann, J.

The opinion of the court was delivered by: Green

ORDER MODIFIED UPON DENIAL OF REHEARING

This case concerns section 28-8 of the Criminal Code of 1961 (Code) (720 ILCS 5/28-8 (West 1992)), which provides a cause of action for treble damages to the loser of certain illegal bets against the winner of the bets. On January 31, 1992, plaintiffs Gloria Moushon and Chuck McMasters brought this action in the circuit court of Sangamon County against defendants Fleetwood Restaurant, Inc., AAA Amusement, Inc. (AAA), Allstar Music, Inc., Illinois Tap, Inc., and Chuck and Linda Frank, d/b/a Linda's Place. Plaintiffs alleged in an amended complaint they had been patrons of a tavern called Linda's Place, the Fleetwood Restaurant (Fleetwood), and a tavern known as Illinois Tap, on various occasions between August 1, 1991, and January 15, 1992, Gloria had put money in various gambling machines at those locations and had lost various sums of money while gambling with those machines. They sought to recover under section 28-8 of the Code for those losses.

The charges against Illinois Tap and Allstar Music were brought only by McMasters and were dismissed before trial, as were the charges against Fleetwood. On July 27, 1995, following a jury trial, judgment was entered on a jury verdict in favor of Moushon and against Chuck Frank and Linda Frank in the sum of $1,252.

The Franks have appealed, maintaining (1) article 28 of the Code (720 ILCS 5/28-1 through 28-9 (West 1992)) violates Federal and State constitutional provisions; (2) the evidence did not support the verdict; (3) the circuit court erred in instructing the jury on the damages and in communicating with the jury in that respect; and (4) plaintiff and her "co-conspirator" have perpetrated a fraud on the Franks and the court. We affirm.

The constitutional question involves both the equal protection clause of the fourteenth amendment (U.S. Const., amend. XIV) and the special legislation prohibition of the Illinois Constitution of 1970 which states, in part, that "the General Assembly shall pass no special or local law when a general law is or can be made applicable." (Ill. Const. 1970, art. IV, § 13.) The first statutory provision we must consider is section 28-8 of the Code, which states in full as follows:

"Gambling Losses Recoverable. (a) Any person who by gambling shall lose to any other person, any sum of money or thing of value, amounting to the sum of $50 or more and shall pay or deliver the same or any part thereof, may sue for and recover the money or other thing of value, so lost and paid or delivered, in a civil action against the winner thereof, with costs, in the circuit court. No person who accepts from another person for transmission, and transmits, either in his own name or in the name of such other person, any order for any transaction to be made upon, or who executes any order given to him by another person, or who executes any transaction for his own account on, any regular board of trade or commercial, commodity or stock exchange, shall, under any circumstances, be deemed a 'winner' of any moneys lost by such other person in or through any such transactions.

(b) If within 6 months, such person who under the terms of Subsection 28-8(a) is entitled to initiate action to recover his losses does not in fact pursue his remedy, any person may initiate a civil action against the winner. The court or the jury, as the case may be, shall determine the amount of the loss. After such determination, the court shall enter a judgment of triple the amount so determined." 720 ILCS 5/28-8 (West 1992).

Section 28-1(a) of the Code (720 ILCS 5/28-1(a) (West 1992)) sets forth a very comprehensive list of transactions which constitute "gambling." Section 28-1(b) then states that "participants in any of the following activities shall not be convicted of gambling therefor." (720 ILCS 5/28-1(b) (West 1992).) The immunized activities include certain contests and legislatively authorized pari-mutuel betting, bingo, lotteries, raffles, charitable games, "pull tabs," "jar games," and riverboat gambling. (720 ILCS 5/28-1(b)(2), (b)(3), (b)(5), (b)(6), (b)(8), (b)(9), (b)(10), (b)(11) (West 1992).) Section 28-1(c) of the Code (720 ILCS 5/28-1(c) (West 1992)) makes various types of gambling prohibited under this section a Class A misdemeanor, and a subsequent conviction a Class 4 felony.

The thrust of the Franks' contention that section 28-8 of the Code fails to meet constitutional requirements is that the exemptions granted by various amendments to section 28-1(b) of the Code, which also creates exemptions from section 28-8 of the Code, violate the equal protection clause and create special legislation in violation of the Illinois Constitution of 1970. The Franks maintain that the amendments, without rational basis, create causes of action for repayment of certain types of gambling losses but not other types. Where legislation classifies people who commit certain types of conduct, both the equal protection clause and the special legislation prohibition usually only require that the classification have a rational basis. Nordlinger v. Hahn (1992), 505 U.S. , , 120 L. Ed. 2d 1, 13, 112 S. Ct. 2326, 2332; People ex rel. County of Du Page v. Smith (1961), 21 Ill. 2d 572, 578, 173 N.E.2d 485, 489.

In contending no rational basis exists here, the Franks cite Miller v. Sincere (1916), 273 Ill. 194, 112 N.E. 664. There, an action was brought pursuant to section 132 of the Criminal Code (Hurd's Stat. 1913, at 832), which, like section 28-8 of the Code, provided for a loser at gambling to be compensated for the loss by the winner. Section 132 was deemed to include as gambling the sale of grain or other commodity or corporate stock futures when the actual taking possession of the item involved was not intended. In 1913, an amendment to section 132 of the Criminal Code was passed which, somewhat similarly to section 28-1(b) of the Code, exempted from coverage under section 132 transactions for the sale of futures when made through "any regular board of trade or commercial or stock exchange." (1913 Ill. Laws 256, 257.) The circuit court dismissed the complaint upon a plea by the defendant that the transaction involved was a future sale on the Chicago Board of Trade and exempt under the amendment.

The Miller court held that the 1913 amendment to section 132 of the Criminal Code violated both the equal protection clause and the then special legislation provision of the Illinois Constitution of 1870. (Ill. Const. 1870, art. IV, ยง 22.) The rationale of the decision was that the amendment gave special privileges to "regular" board of trade or commercial or stock exchanges over persons operating "on the street, or any other place" ( Miller, 273 Ill. at 199, 112 N.E. at 665) without a reasonable basis for the distinction. ( ...


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