Dotty's Cafe,A/k/a Illinois Cafe & Services Company,LLC,and Stella's Place and Shelby's,A/k/a Laredo Hospitality Ventures,LLC v.. the Illinois Gaming Board No. 1-17-3207;2019 IL App (1st) 173207 (Ill. App. 1 Dist. May 23,2019)

¶ 4 A. The Video Gaming Act

¶ 5 In July 2009, the Illinois legislature enacted the Gaming Act (Pub. Act 96-34 (eff. July 13, 2009) (adding 230 ILCS 40/1 et seq.)), which legalized the use of video gaming machines, such as video poker, blackjack, and slots, as a form of gambling in certain locations. Every individual or business involved in video gaming in Illinois must be licensed, including the manufacturers and distributors of video gaming machines, the owner and operators of the machines, and the establishments where the machines are located. 230 ILCS 40/25, 45 (West 2016). Most relevant in this appeal are the licensed operators and licensed establishments. The operator is the individual or business that buys the video gaming machine from either a manufacturer or distributor, places that machine in a licensed establishment, and becomes responsible for the operation of the machine. Id. § 5; 11 Ill. Adm. Code 1800.250 (2014). The establishment is where the machine is located, and includes places that serve alcohol, veteran and fraternal halls, truck stops as well as other places. 230 ILCS 40/5 (West 2016).

¶ 6 But, under the Gaming Act, there is a prohibition on certain individuals and businesses holding multiple licenses. Id. § 30. One such prohibition is if an individual or business is licensed as an operator, that individual or business may not also hold a license as an owner or manager of a licensed establishment (the dual-license prohibition). Id. Instead, a licensed establishment must contract with an independent individual or business that possesses a license to be an operator. Id. § 25(e). The result of the dual-license prohibition is that, in order to operate a video gaming machine, there must be a joint enterprise between a licensed establishment and a licensed operator.

¶ 7 Not only does the Gaming Act mandate a joint enterprise between a licensed establishment and a licensed operator, the law also regulates it in various ways. See id. § 25(c), (e); 11 Ill. Adm. Code 1800.320 (2018). One such manner is how the income is divided. The money generated from any one video gaming machine, defined under the Gaming Act as the “net terminal income,” initially is taxed at 30% and collected by the state. 230 ILCS 40/5, 60(a) (West 2016). Of that 30%, five-sixths goes to a capital projects fund and the remainder to local governments. Id. § 60(b). The remaining 70%, or the after-tax profits, must be split equally between the licensed establishment and the licensed operator (the profit-splitting requirement) (id. § 25(c)), although a small percentage is paid to Scientific Games International, the operator of the central communications system, which helps the state monitor video gaming machines. Id. § 15(15); Ill. Gaming Bd., 2018 Annual Report 7 (2018), http://www.igb.illinois.gov/ FilesAnnualReport/2018IGBAnnualReport.pdf [https://perma.cc/3BUM-FAGE] (currently, Scientific Games International receives 0.8513%). Along with the profit-splitting requirement, the Gaming Act also prohibits operators from giving “anything of value” to a licensed establishment “as any incentive or inducement to locate video terminals in that establishment.” 230 ILCS 40/25(c) (West 2016).

¶ 8 Under the Gaming Act, the legislature has vested the Illinois Gaming Board (Board) with the complete authority to supervise and manage video gaming in Illinois, including the ability to adopt rules and regulations to administer the law. Id. § 78. In February 2017, the Board posted a document on its website titled “Illinois Gaming Board Policy on Inducements, Advertising and Promotions by Video Gaming Licensees” (the policy document), which included “guidance” for compliance with the Gaming Act's prohibition on inducements as well as statements on how operators and establishments must share expenses such as those related to advertising and promotions.

¶ 9 B. The current litigation

¶ 10 Plaintiffs Dotty's Cafe, Stella's Place, and Shelby's are cafe-style establishments, licensed under the Gaming Act, where patrons can buy food and alcohol and engage in video gaming. Together, plaintiffs operate over 100 such locations in Illinois, including almost 50 in Cook County. In April 2017, they brought an 11-count complaint against the Board challenging the Gaming Act's dual-license prohibition and profit-splitting requirement as well as the Board's policy document on inducements, advertising, and promotions.

¶ 11 Two months later, the circuit court granted the Illinois Gaming Machine Operators Association, a trade association promoting the interests of operators, and J&J Ventures Gaming, LLC, and Accel Entertainment Gaming, LLC, two licensed operators (collectively, intervenors), leave to intervene as defendants in the lawsuit. Plaintiffs subsequently requested, and received, leave from the circuit court to file an amended complaint. The amended complaint added the Board's members, the Board's administrator, and the intervenors as defendants, in addition to the Board itself, and contained 11 counts based on three main issues.

¶ 12 First, plaintiffs alleged that the Gaming Act's dual-license prohibition violated both the federal and state due process clauses, both the federal and state equal protection clauses, and the special legislation clause of the Illinois Constitution (counts I through III, respectively). All three counts sought a declaration that the dual-license prohibition was unconstitutional and an injunction preventing its enforcement. The federal claims of counts I and II also sought statutory costs and attorney fees.

¶ 13 Second, plaintiffs alleged that the profit-splitting requirement violated both the federal and state due process clauses, both the federal and state equal protection clauses, and the special legislation clause of the Illinois Constitution (counts IV through VI, respectively). All three counts sought a declaration that the profit-splitting requirement was unconstitutional and an injunction preventing its enforcement. The federal claims of counts IV and V also sought statutory costs and attorney fees.

¶ 14 Third, plaintiffs brought various counts related to the Board's policy document on inducements, advertising, and promotions. Count VII alleged that the Board's posting of the policy document on its website constituted improper rulemaking under the Illinois Administrative Procedure Act (5 ILCS 100/1-1 et seq. (West 2016)). The count sought a declaration that the policy document was invalid, an injunction preventing its enforcement, and attorney fees and costs under the Administrative Procedure Act. Count VIII alleged that the Board lacked the statutory authority to enact a rule, regulation, or policy dictating how operators and establishments share various expenses. The count sought a declaration that the policy exceeded the Board's rulemaking authority, an injunction preventing its enforcement, and attorney fees and costs under the Administrative Procedure Act. Count IX alleged that the policy document was arbitrary and capricious. The count sought a declaration that the policy document was arbitrary and capricious, an injunction preventing its enforcement, attorney fees and costs under the Administrative Procedure Act, and a declaration that the prohibition on inducements in section 25(c) of the Gaming Act (230 ILCS 40/25(c) (West 2016)) requires the guilty party to act with the purpose or intent to induce a licensed establishment to locate video gaming machines in a particular establishment. Counts X and XI alleged that the policy document violated both the federal and state due process clauses and both the federal and state equal protection clauses, respectively. Both counts sought a declaration that the policy document was unconstitutional, an injunction preventing its enforcement, and attorney fees and costs under the Administrative Procedure Act and federal law.

¶ 15 Thereafter, intervenors filed a combined motion to dismiss under section 2-619.1 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619.1 (West 2016)). In relevant part, they argued that, under section 2-615 of the Code (id. § 2-615), all counts related to the dual-license prohibition and profit-splitting requirement should be dismissed because the provisions were rationally related to legitimate state interests. Additionally, defendants filed a motion to dismiss under section 2-615 of the Code (id.), similarly arguing in relevant part that all of plaintiffs' constitutional claims failed because there were rational bases for the statutory provisions. Lastly, defendants contended that the statutory claims challenging the Board's policy document on inducements, advertising, and promotions failed because the policy was merely guidance that rendered the Administrative Procedure Act inapplicable. But to the extent the policy could be considered a legislative rule, defendants asserted that the policy was still consistent with the Gaming Act and not arbitrary and capricious.

¶ 16 After defendants filed their motion to dismiss, the Board removed the policy document from its website. Defendants then brought another motion to dismiss, this time under section 2-619(a)(9) of the Code (id. § 2-619(a)(9)), arguing that plaintiffs' claims concerning the Board's policy document on inducements, advertising, and promotions were moot because the Board removed the policy document from its website. Defendants attached to their motion an affidavit from Mark Ostrowski, the Board's administrator, wherein he averred that the “document entitled ‘Illinois Gaming Board Policy on Inducements, Advertising and Promotions by Video Gaming Licensees'” was removed from the Board's website and would “not be returned to the Board's website or be made available publicly.” Additionally, Ostrowski stated that the Board would neither repost the document nor publicly disseminate it, and as a whole, the Board would not “rely” on the document “as a basis to take any action.”

¶ 17 Ultimately, the circuit court dismissed all counts related to the dual-license prohibition and profit-splitting requirement with prejudice pursuant to section 2-615 of the Code (id. § 2-615), finding that both provisions were rationally related to legitimate state interests and thus constitutional (counts I through VI). The court also dismissed the counts related to the Board's policy document on inducements, advertising, and promotions with prejudice pursuant to section 2-619(a)(9) of the Code (id. § 2-619(a)(9)), finding them moot because the policy document had been removed from the Board's website and Ostrowski's affidavit established that the Board would not repost or rely on the policy again (counts VII through XI).

¶ 18 Plaintiffs subsequently appealed.

¶ 20 A. Regulatory overview of gambling in Illinois

¶ 21 In Illinois, there is no common-law right “to engage in or profit from gambling.” J&J Ventures Gaming, LLC v. Wild, Inc., 2016 IL 119870, ¶ 26. In fact, gambling is illegal in many forms. See 720 ILCS 5/28-1 (West 2016). But over the years, Illinois has legalized some forms of gambling. See, e.g., 20 ILCS 1605/1 et seq. (West 2016) (the Illinois Lottery Law); 230 ILCS 5/1 et seq. (West 2016) (the Illinois Horse Racing Act of 1975); 230 ILCS 10/1 et seq. (West 2016) (the Riverboat Gambling Act); 230 ILCS 15/0.01 et seq. (West 2016) (the Raffles and Poker Runs Act). And because the right to gamble legally is provided inasmuch as the legislature allows, gambling, when legal, is an activity subject to extensive regulation. Phillips v. Graham, 86 Ill. 2d 274, 285–86 (1981).

¶ 22 To better understand the Gaming Act, it is necessary to understand to some extent the Riverboat Gambling Act, which was enacted in 1990 and legalized gambling on riverboat casinos. Pub. Act 86-1029 (eff. Feb. 7, 1990) (adding Ill. Rev. Stat. 1991, ch. 120, ¶ 2401 et seq.). In legalizing riverboat gambling, our legislature stated the intent of the law was to benefit Illinois citizens economically, but cautioned that this goal would be achieved “successfully only if public confidence and trust in the credibility and integrity of the gambling operations and the regulatory process is maintained.” Ill. Rev. Stat. 1991, ch. 120, ¶ 2402(b). To that end, the legislature asserted that the “regulatory provisions of [the Riverboat Gambling Act] are designed to strictly regulate the facilities, persons, associations and practices related to gambling operations pursuant to the police powers of the State.” Id. And the Riverboat Gambling Act vested those regulatory powers in the newly created Illinois Gaming Board. Id. ¶¶ 2402, 2405.

¶ 23 Nineteen years after our legislature enacted the Riverboat Gambling Act, it enacted the Gaming Act. Pub. Act 96-34 (eff. July 13, 2009) (adding 230 ILCS 40/1 et seq.). And in doing so, it was the legislature's goal to make much of the Gaming Act consistent with the Riverboat Gambling Act. See 230 ILCS 40/80 (West 2016) (“The provisions of the Illinois Riverboat Gambling Act, and all rules promulgated thereunder, shall apply to the Video Gaming Act, except where there is a conflict between the 2 Acts.”). In the Gaming Act itself, there is no expressly stated legislative intent, meaning we can conclude that, just like the Riverboat Gambling Act, the legislative intent of the Gaming Act was to spur economic development. See id.; Ill. Rev. Stat. 1991, ch. 120, ¶ 2402. But just like the Riverboat Gambling Act, this goal could only be achieved if there is public confidence and trust in the integrity of the gaming operations and the regulatory process is maintained. See Ill. Rev. Stat. 1991, ch. 120, ¶ 2402. To be sure, the regulations of the Gaming Act, which were promulgated by the Board itself, reiterate the importance of maintaining public confidence and integrity in video gaming. See 11 Ill. Adm. Code 1800.210(d)–(f) (2009) (stating that all individuals and businesses licensed under the Gaming Act have an ongoing duty to conduct themselves in a manner that does not pose a threat to the general welfare of Illinois citizens, does not discredit the video gaming industry, and does not reflect adversely on the integrity of the video gaming industry). With that overview in mind, we now turn to the claims raised in plaintiffs' amended complaint.

¶ 24 B. Counts I through VI

¶ 25 Plaintiffs first contend that they sufficiently alleged that the Gaming Act's dual-license prohibition and profit-splitting requirement were unconstitutional and, thus, the circuit court's dismissal was improper.

¶ 26 The circuit court dismissed counts I through VI—all counts related to the dual-license prohibition and profit-splitting requirement—pursuant to section 2-615 of the Code (735 ILCS 5/2-615 (West 2016)). A motion to dismiss under section 2-615 challenges the legal sufficiency of the complaint based on defects that are apparent on its face. Wilson v. County of Cook, 2012 IL 112026, ¶ 14. The critical question is whether the allegations in the complaint, when viewed in the light most favorable to the plaintiffs, are sufficient to state a cause of action upon which relief can be granted. Bogenberger v. Pi Kappa Alpha Corp., 2018 IL 120951, ¶ 23. In answering this question, we must accept all well-pled facts and reasonable inferences from those facts as true. Khan v. Deutsche Bank AG, 2012 IL 112219, ¶ 47. A complaint should be dismissed “only if it is clearly apparent that no set of facts can be proved that would entitle the plaintiff to relief.” Wilson, 2012 IL 112026, ¶ 14. We review the circuit court's ruling on a motion to dismiss de novo (id.), and we may affirm the lower court on any basis appearing in the record, even if the court did not rely on that specific reasoning (Razavi v. School of the Art Institute of Chicago, 2018 IL App (1st) 171409, ¶ 41).

¶ 27 Additionally, in reviewing a claim concerning the constitutionality of a statute, we must presume that the challenged legislative enactment is constitutional, and the party raising the constitutional challenge has the burden to prove otherwise. Bartlow v. Costigan, 2014 IL 115152, ¶ 18. Where a party asserts a facial constitutional challenge, as is the case here, that burden is “particularly heavy.” Id. “A facial challenge to a legislative act is the most difficult challenge to mount successfully because the challenger must establish that under no circumstances would the challenged act be valid.” Hope Clinic for Women, Ltd. v. Flores, 2013 IL 112673, ¶ 33. We review the constitutionality of a statute, as a question of law, also de novo. Oswald v. Hamer, 2018 IL 122203, ¶ 9.

¶ 28 In this case, plaintiffs have alleged that the dual-license prohibition and profit-splitting requirement are unconstitutional under the federal and state due process clauses, the federal and state equal protection clauses, and the special legislation clause of the Illinois Constitution.

¶ 29 The due process clauses, which are found in the fourteenth amendment to the United States Constitution (U.S. Const., amend. XIV) and article I, section 2, of the Illinois Constitution (Ill. Const. 1970, art. I, § 2), prohibit the government from depriving a person of life, liberty, or property without due process of law. Consistent with their nearly identical language, our courts generally analyze federal and state due process claims using the same standards unless good cause exists to interpret them differently. Hope Clinic, 2013 IL 112673, ¶ 92. Good cause is shown where there is “something in the constitutional debates and records, or our state history or custom, which would suggest that a different meaning should attach to our due process” clause. Id. The parties do not suggest a departure is necessary, and we similarly find nothing warranting one, so we may analyze the federal and state due process claims together.

¶ 30 Due process claims are either procedural or substantive. See In re Marriage of Miller, 227 Ill. 2d 185, 197 (2007). Procedural claims concern the procedures used to allegedly deny a person of life, liberty, or property, whereas substantive claims concern the government's ability to regulate the alleged deprivation at issue, regardless of the procedures involved. Id. This case involves the latter, where the threshold question is whether the statute at issue implicates a fundamental right. Hayashi v. Illinois Department of Financial & Professional Regulation, 2014 IL 116023, ¶ 28. The parties agree that no fundamental right is implicated, meaning we analyze the statute by employing the rational-basis test. Marks v. Vanderventer, 2015 IL 116226, ¶ 25.

¶ 31 The equal protection clauses, which are also found in the fourteenth amendment to the United States Constitution (U.S. Const., amend. XIV) and article I, section 2, of the Illinois Constitution (Ill. Const. 1970, art. I, § 2), prohibit the government from denying a person equal protection under the law. Similar to due process claims, our courts generally analyze federal and state equal protection claims using the same standards. In re Destiny P., 2017 IL 120796, ¶ 14. The guarantee of equal protection requires the government to treat similarly situated individuals “in a similar fashion unless the government can demonstrate an appropriate reason to treat them differently.” Id. Axiomatically, in an equal protection claim, the party raising the claim must show that it is similarly situated to the comparison group. In re M.A., 2015 IL 118049, ¶ 25. And, like due process claims, when a fundamental right is not implicated, we analyze the statute by employing the rational-basis test. In re Destiny P., 2017 IL 120796, ¶ 14.

¶ 32 The special legislation clause of the Illinois Constitution prohibits the legislature from enacting a “special or local law when a general law is or can be made applicable.” Ill. Const. 1970, art. IV, § 13. The clause prohibits the legislature “from conferring a special benefit or privilege upon one person or group of persons and excluding others that are similarly situated.” Moline School District No. 40 Board of Education v. Quinn, 2016 IL 119704, ¶ 18. Its purpose is to prevent the legislature from enacting arbitrary classifications that discriminate in favor of a particular group absent a legitimate reason. Id. But merely because a law treats one group of people differently than another does not mean that the special legislation clause is implicated. Id. ¶ 22. Determining whether a law runs afoul of the special legislation clause requires a two-part analysis. Id. ¶ 23. First, we must determine if the statutory classification discriminates in favor of a particular group, and second, if it does, we must determine whether the classification is arbitrary. Id. Like due process and equal protection claims, where a fundamental right or suspect class is not implicated, we analyze the statute by employing the rational-basis test. Id. ¶ 24.

¶ 33 For simplicity sake, we will assume arguendo that licensed operators are similarly situated to licensed establishments for purposes of the equal protection and special legislation clause claims, and the dual-license prohibition and profit-splitting requirement discriminate in favor of licensed operators for purposes of the special legislation clause. Because of these preliminary assumptions, we may proceed directly to the ultimate inquiry of whether there is a rational basis for the statutory provisions.

¶ 34 Under the rational-basis test, a statute will be found constitutional if it “bears a rational relationship to a legitimate legislative purpose and is neither arbitrary nor unreasonable.” Marks, 2015 IL 116226, ¶ 25. In employing this test, we first must determine whether the public interest the statute is intended to serve is legitimate, and if so, “determine whether the statute bears a rational relationship to that interest, and, finally, determine whether the method chosen by the legislature to protect or further that interest is reasonable.” Village of Lake Villa v. Stokovich, 211 Ill. 2d 106, 125 (2004). Though rational-basis review is “highly deferential” to the legislature (id.), this does not mean that we can blindly accept legislation. People v. Pepitone, 2018 IL 122034, ¶ 17. But we cannot focus on whether the provision at issue is the best method to achieve the desired result or even wise. Hayashi, 2014 IL 116023, ¶ 29. That analysis is only within the purview of our legislature. Id. In the judiciary, our inquiry is constrained, and so “long as there is a reasonably conceivable set of facts showing that the legislation is rational, it must be upheld.” Id. In performing our analysis, we “may hypothesize reasons for the legislation, even if the reasoning advanced did not motivate the legislative action.” People ex rel. Lumpkin v. Cassidy, 184 Ill. 2d 117, 124 (1998). And as our review of the legislative history of both provisions reveals no express discussion of either of them, and the parties on appeal do not direct us to any such legislative history, we are left with only hypothetical reasons for the legislation.

¶ 67 C. Counts VII through XI

¶ 68 Plaintiffs lastly contend that their claims related to the policy document on inducements, advertising and promotions that the Board posted on its website were not moot, but even if they were moot, an exception applies.

¶ 69 An issue on appeal can become moot when intervening events have occurred that prevent the reviewing court from granting effectual relief (In re Benny M., 2017 IL 120133, ¶ 17) or where there is no longer an active controversy (In re J.T., 221 Ill. 2d 338, 349 (2006)). In other words, “[m]ootness occurs once the plaintiff has secured what he basically sought and a resolution of the issues could not have any practical effect on the existing controversy.” Hanna v. City of Chicago, 382 Ill. App. 3d 672, 677 (2008). A reviewing court generally will not consider issues that are moot and will not issue advisory opinions. In re Alfred H.H., 233 Ill. 2d 345, 351 (2009). Where an opinion does not “affect the result as to the parties or controversy in the case before it, a court should not resolve the question merely for the sake of setting a precedent to govern potential future cases.” In re Adoption of Walgreen, 186 Ill. 2d 362, 365 (1999). “The mere voluntary cessation of allegedly wrongful conduct, however, cannot render a case moot, unless it becomes absolutely clear that such behavior could not reasonably be expected to recur,” a burden the defendant bears. Cohan v. Citicorp, 266 Ill. App. 3d 626, 629 (1993). And even if an issue is moot, certain exceptions exist to allow the reviewing court to address the issue, such as the public interest exception or when the issue is capable of repetition yet evading review. In re J.T., 221 Ill. 2d at 350. But before these exceptions become relevant, there must be a threshold showing of mootness. See In re Benny M., 2017 IL 120133, ¶¶ 18–19. We review a dismissal based on mootness grounds de novo. Hanna, 382 Ill. App. 3d at 676–77.

¶ 70 Defendants assert that the issues concerning the policy document were rendered moot because the Board removed the policy document from its website and the Board has established by affidavit that it will not rely on the policy or repost it. Defendants note that the policy document was removed from the Board's website based on this court's decision in Windy City Promotions, LLC v. Illinois Gaming Board, 2017 IL App (3d) 150434.

¶ 71 In Windy City, as in this case, the Board posted a document to its website opining that certain promotional kiosks violated a section of the Gaming Act. Id. ¶ 1. The plaintiff filed a complaint seeking, among other things, a declaration that the Board lacked the authority to post the document to its website. Id. ¶ 4. During proceedings in the circuit court, another party was allowed to intervene as a plaintiff, and together, the plaintiffs also argued that the Board engaged in improper administrative rulemaking by posting the document to its website. Id. ¶¶ 7, 13. The circuit court, however, rejected the plaintiffs' claims regarding the Board's posting of the document to its website and granted the Board judgment on the pleadings. Id. ¶¶ 1, 13. The plaintiffs' subsequently appealed. Id. ¶ 14.

¶ 72 While the appeal was pending, the Board apparently removed the document from its website. Id. ¶ 19. As a result, the appellate court initially focused on whether the claims related to the document were moot. Id. ¶¶ 19–21. Although the court never expressly found that the claims were moot due to the Board removing the document from its website, the court implicitly found as such because it went on to discuss how an exception to the mootness doctrine applied. See id. ¶ 21. In doing so, the court found that, despite the Board removing the document from its website, the claims related to the document were capable of repetition yet evading review. Id. The court therefore rejected the Board's mootness argument. Id. In addressing the merits of the claims regarding the Board's authority to post the document on its website, the court concluded that the Board had the authority to attempt to adopt the policies contained in the document, but failed to follow the appropriate rulemaking procedures during its attempt. Id. ¶¶ 26–27. Consequently, the appellate court held that the attempted rule on promotional kiosks was invalid. Id. ¶ 28.

¶ 73 In this case, plaintiffs argue that we need not even determine if a mootness exception applies because their claims challenging the policy document are not moot in the first place. One of plaintiffs' arguments is that, because the Board is a state agency, its conduct could significantly change based upon an adverse ruling, meaning this court can still provide effective relief. To support this argument, plaintiffs rely on Balmoral Racing Club, Inc. v. Illinois Racing Board, 151 Ill. 2d 367 (1992).

¶ 74 In that case, the Illinois Racing Board denied a racetrack's application for certain racing dates—the dates on which a racetrack could legally conduct horse racing—for the 1991 calendar year. Id. at 376–77, 382. The racetrack sued and challenged the Illinois Racing Board's denial. Id. at 383. Ultimately, the case ended up before our supreme court, by which time the 1991 calendar year had already passed and the issue of mootness was raised. Id. at 385–86. The racetrack argued that, despite its initial lawsuit seeking an award of 1991 racing dates, the propriety of the Illinois Racing Board's denial was not moot because its lawsuit also sought a determination that its procedural rights had been violated by the Illinois Racing Board. Id. at 386.

¶ 75 After reviewing the general principles of mootness, our supreme court noted that “there may be life in an appeal where a ‘decision could have a direct impact on the rights and duties of the parties.’” Id. at 387 (quoting People ex rel. Bernardi v. City of Highland Park, 121 Ill. 2d 1, 6–7 (1988)). The court found that, had the racetrack's action concerned only the award of 1991 racing dates, the appeal would be moot. Id. But a decision in the case “regarding whether the [Illinois Racing] Board's procedures were inadequate to protect the rights of [the racetrack] and other racing participants could have ‘important consequences' for all the parties involved.” Id. And a ruling against the Illinois Racing Board could result in the agency “undergo[ing] significant changes in the conduct of its race meetings.” Id. at 387–88. Consequently, our supreme court found the appeal was not moot. Id. at 388.

¶ 76 Our supreme court expanded on the mootness principles of Balmoral in two subsequent decisions: Mohanty v. St. John Heart Clinic, S.C., 225 Ill. 2d 52 (2006), and Berlin v. Sarah Bush Lincoln Health Center, 179 Ill. 2d 1 (1997). Initially in Berlin, 179 Ill. 2d at 4–5, the plaintiff, a doctor, had signed an employment contract containing a postemployment restrictive covenant with a nonprofit hospital to practice medicine. The doctor left the practice, began working at a medical clinic and sued the hospital seeking a declaration that the restrictive covenant was unenforceable. Id. at 5. Ultimately, the circuit court found the entire employment contract unenforceable because, by hiring the doctor to practice medicine as an employee, the hospital had violated the prohibition against corporations practicing medicine. Id. at 6. The hospital appealed, and by the time the case reached our supreme court, the time period protected by the restrictive covenant had already lapsed. Id. at 7. Addressing the possible mootness of the appeal, our supreme court found that its decision had important consequences for both parties. Id. at 8. If the court found that hospitals were barred from employing physicians, hospitals would have to significantly alter their relationships with medical staff, and such a finding could subject the hospital and the doctor to various penalties for violating the law. Id. Conversely, if the court found that hospitals were allowed to employ physicians, the hospital could have possible causes of action against the doctor based upon their contract. Id. Our supreme court therefore found that the appeal was not moot. Id.

¶ 77 In Mohanty, 225 Ill. 2d at 63–64, another case involving a restrictive covenant in a doctor's employment contract, our supreme court found the question of the restrictive covenant's enforceability was not moot despite the time period protected by the covenant already passing because a resolution on its enforceability would directly impact the doctor's potential liability for damages based on a countercomplaint filed by the defendants.

¶ 78 Although the circumstances of the present case are unlike those in Berlin and Mohanty, this court's decision in Filliung v. Adams, 387 Ill. App. 3d 40 (2008), which relied on Mohanty, is instructive. There, two plaintiffs sued the Illinois Department of Human Services (IDHS) and three of its officials under multiple causes of action, all based on two written policies of a mental health center operated by the IDHS. Id. at 42–43. One count alleged that the health center improperly promulgated the policies in violation of the Administrative Procedure Act, while the remaining counts challenged the substance of the rules. Id. During the course of the litigation, a department-wide regulation issued by the IDHS superseded both the policies at issue. Id. at 44. On cross-motions for summary judgment, the circuit court dismissed the count related to alleged improper rulemaking, finding that the mental health center was not an agency for purposes of the Administrative Procedure Act and dismissed the remaining counts on the basis that they were mooted by the IDHS's department-wide regulation. Id. at 46–47. The plaintiffs appealed. Id. at 47.

¶ 79 On appeal, this court found all of the plaintiffs' counts related to the substance of the two written policies of the mental health center moot because of the superseding department-wide regulation. Id. at 55. However, the court found the count related to alleged improper rulemaking—the count that challenged the procedure by which the rules were promulgated at the health center—not moot. Id. Principally, and relying on Mohanty, the court found “the process which [the] plaintiffs challenged, namely the implementation by facilities of rules not promulgated according to the [Administrative Procedure Act], still continues, and thus still affects plaintiffs' rights and defendants' duties.” Id. at 55–56. But regardless, the court found that the public interest exception to the mootness doctrine would have been applicable. Id. at 56. Despite this count still presenting an active controversy, this court agreed with the circuit court that the mental health center was not an agency for purposes of the Administrative Procedure Act and, thus, found the count was properly dismissed. Id. at 55.

¶ 80 This case is similar to Filliung. Here, plaintiffs brought five counts related to the Board's policy document. While the majority of those counts related to the substance of the policy, counts VII and VIII related to the process by which the Board adopted the policy, i.e., posting the document on its website and its statutory authority to enact such a policy. And thus, plaintiffs' challenge to the implementation of the policy and the Board's statutory authority to do so still remains and still affects their rights and the Board's duties. See id. at 55–56. Notably, in a January 2019 meeting, the Board approved for submission to the index department of the Illinois Secretary of State a proposed rule regarding inducements. See Ill. Gaming Bd., Regular Board Meeting (Jan. 30, 2019), https://www.igb.illinois.gov/FilesBoardMeeting/20190130VideoAudio.mp3 [https://perma.cc/8D8T-JC49]. This demonstrates that the Board's statutory authority to enact specific rules, regulations, or policies regarding inducements is still an active issue.

¶ 81 Moreover, an adverse ruling on plaintiffs' two counts undoubtedly could result in the Board undergoing significant changes in the way it conducts itself with regard to policies, guidance, rulemaking, etc. See Balmoral, 151 Ill. 2d at 387–88. Although the substance of the Board's policy document is no longer at issue because the Board removed the document from its website, the procedures leading up to that policy and the Board's authority to enact such a policy still remain in controversy. Additionally, a determination that the Board procedurally violated the Administrative Procedure Act by posting the policy document to its website or exceeded its statutory authority in doing so would allow plaintiffs to pursue “reasonable expenses of the litigation, including reasonable attorney's fees.” 5 ILCS 100/10-55(c) (West 2016); see also Balmoral, 151 Ill. 2d at 388 (noting that “a determination that the [Illinois Racing] Board violated [the racetrack's] rights through the procedure adopted could also have significant monetary consequences for the parties” because if the Illinois Racing Board violated the Administrative Procedure Act, the plaintiffs “may seek an award of costs and fees” under the Administrative Procedure Act). Consequently, counts VII and VIII are not moot because they challenged the procedures and authority utilized by the Board in enacting the policy document.

¶ 82 However, counts IX through XI challenged the substance of the policy document on grounds that the policy was arbitrary and capricious, the policy violated federal and state due process clauses, and the policy violated federal and state equal protection clauses, respectively. In particular, these three counts challenged the policy document's statements regarding how certain costs must be shared among operators and establishments. As such, these three counts challenged purely the substance of the policy document, rendering them moot. See Filliung, 387 Ill. App. 3d at 55. And this remains true despite count IX also requesting a declaration that the prohibition on inducements in section 25(c) of the Gaming Act (230 ILCS 40/25(c) (West 2016)) requires the guilty party to act with the purpose or intent to induce a licensed location to locate video gaming machines in its establishment because the underlying basis of that count was a challenge to the substance of the policy document. See Filliung, 387 Ill. App. 3d at 55.

¶ 83 Although counts IX through XI are moot, we cannot find the exception for issues that are capable of repetition yet evading review applies, as argued by plaintiffs. That exception requires the challenged action to “be too short in duration to be litigated fully prior to its cessation” and there must be “a reasonable expectation that the same complaining party will be subject to the same action again.” In re Benny M., 2017 IL 120133, ¶¶ 19–20.

¶ 84 Plaintiffs posit that Windy City, 2017 IL App (3d) 150434, involved nearly identical circumstances to the present case, and we should likewise find the exception for issues that are capable of repetition yet evading review applicable. But in Windy City, the court found that the Board “could repost the Website Document,” the specific document at issue in the appeal, “and thereby resurrect the same controversy.” (Emphasis added.) Id. ¶ 21. Or, in other words, the second element necessary for the exception to apply was satisfied. In this case, however, the second element is not satisfied because of the affidavit from Ostrowski, wherein he averred that the Board would not repost or rely on the specific policy document again. His affidavit conclusively foreclosed any reliance by the Board on the specific policy document as a basis to take any action, and thus, there is no reasonable expectation that plaintiffs would be subjected to the same policy document again. See In re Benny M., 2017 IL 120133, ¶ 20. As a result, unlike Windy City, the counts challenging the substance of the policy document itself are not capable of repetition yet evading review, and the circuit court properly dismissed them. Accordingly, while the circuit court properly dismissed counts IX through XI, we reverse its dismissal of counts VII and VIII and remand the matter to the circuit court for further proceedings on those counts.