Court of Appeals of Illinois, First District, Sixth Division
Appeal from the Circuit Court of Cook County. No. 10 CH 24439. The Honorable Nancy J. Arnold, Judge Presiding.
The decisions of the Illinois Racing Board that the percentage of the Horse Racing Equity Trust Fund payable to eligible licensees under the 2008 version of the Racing Act should be the same as that previously distributed under the 2006 version of the Act were upheld, since the Board's decisions were reasonable, contemporaneous, and consistent with its prior interpretation of the statutory language, and the court would defer to the Board's experience and expertise in administering the Act.
FOR PLAINTIFF-APPELLANT: Richard J. Prendergast, Michael T. Layden, of counsel, Richard J. Prendergast, Ltd, Chicago, IL; Michael J. Murray, of counsel, Carey, Filter, White, & Boland, Chicago, IL.
FOR ARLINGTON PARK RACECOURSE, LLC, DEFENDANT-APPELLEE: P. Shawn Wood, Marcus L. Mintz, of counsel, Seyfarth Shaw LLP, Chicago, IL.
FOR ILLINOIS RACING BOARD AND ITS MEMBERS, DEFENDANT-APPELLEES: Richard S. Huszagh, Assistant Attorney General, of counsel, Lisa Madigan, Attorney General, State of Illinois, Michael A. Scodro, Solicitor General, Chicago, IL.
PRESIDING JUSTICE LAMPKIN delivered the judgbment of the court, with opinion. Justices R. Gordon and Reyes[*] concurred in the judgment and opinion.
LAMPKIN, PRESIDING JUSTICE
Plaintiff, Hawthorne Race Course, Inc. (Hawthorne), appeals the circuit court's ruling upholding the decision of defendant, the Illinois Racing Board (Board), in interpreting the Illinois Horse Racing Act of 1975 (Racing Act) (230 ILCS 5/54.75 (West 2010)). Plaintiff contends the Board erred in concluding that the percentage of the Horse Racing Equity Trust Fund (Fund) payable to each eligible licensee under the 2008 version of the Racing Act should be the same as that previously distributed under the 2006 version of the statute. Based on the following, we affirm.
The Fund was initially created in 2006 by Public Act 94-804 (Pub. Act 94-804 (eff. May 26, 2006)) and codified as section 54.5 of the Racing Act (230 ILCS 5/54.5 (West 2006)) (2006 statute). The 2006 statute became effective on May 26, 2006, and had a sunset provision, establishing automatic repeal on May 26, 2008. The Racing Act imposed surcharges on four Illinois riverboat casinos to help support the horse-racing industry, such that the money deposited into the Fund was distributed to organization licensees within the industry.  Pursuant to the 2006 statute,
60% of the Fund was to be distributed to organization licensees for further distribution at their race meetings as " purses," while the remaining 40% of the Fund was to be distributed to organization licensees to improve, maintain, market, and otherwise operate racing facilities. 230 ILCS 5/54.5(b) (West 2006).
On December 15, 2008, the legislature reenacted the repealed statute with Public Act 95-1008 (Pub. Act 95-1008 (eff. Dec. 15, 2008)), which extended the surcharges on qualifying riverboat casinos for an additional three years. Public Act 95-1008 was codified as section 54.75 of the Racing Act (230 ILCS 5/54.75 (West 2010)) (2008 statute). Public Act 95-1008, section 1, provided that the 2008 statute " re-enacts the provisions of Public Act 94-804 approved in 2006 and determined valid in 2008 by the Illinois Supreme Court [in Empress Casino Joliet Corp. v. Giannoulias, 231 Ill.2d 62, 896 N.E.2d 277, 324 Ill.Dec. 491 (2008)]." This court upheld the constitutionality of Public Act 95-1008 in Empress Casino Joliet Corp. v. Giannoulias, 406 Ill.App.3d 1040, 942 N.E.2d 783, 347 Ill.Dec. 580 (2011).
The pertinent language of the 2008 statute was identical to that of the 2006 statute. The relevant language provided:
" (a) *** Moneys in the Fund shall be distributed as directed and certified by the Board in accordance with the provisions of subsection (b).
(b) The moneys deposited into the Fund, plus any accrued interest on those moneys, shall be distributed within 10 days after those moneys are deposited into the Fund as follows:
(1) Sixty percent of all moneys distributed under this subsection shall be distributed to organization licensees to be distributed at their race meetings as purses. ***
(2) The remaining 40% of the moneys distributed under this subsection (b) shall be distributed as follows:
(A) 11% shall be distributed to any person *** who had operating control of a racetrack *** in a county with at least 230,000 inhabitants that borders the Mississippi River and is a licensee in the current year; and
(B) the remaining 89% shall be distributed pro rata according to the aggregate proportion of total handle from wagering on live races conducted in Illinois *** for calendar years 2004 and 2005 to any person *** who (i) had majority operating control of a racing facility at which live racing was conducted in calendar year 2002, (ii) is a licensee in the current year, and (iii) is not eligible to receive moneys under subparagraph (A) of this paragraph (2) .
The moneys received by an organization licensee under this paragraph (2) shall be used by each organization licensee to improve, maintain, market, and otherwise operate its racing facilities to conduct live racing, which shall include backstretch services and capital improvements related to live racing and the backstretch. Any organization licensees sharing common ownership may pool the ...