dissenting:
I respectfully dissent from the majority’s conclusion that exhaustion of remedies does not apply in this case. The flaw I see in the majority opinion is a failure to distinguish between an agency’s clear power to construe a statute it is charged with administering, and its lack of power to construe its own statute in such a way that exceeds its authority.
It is not a fair reading of Illinois law to say that whenever the question is one of pure statutory construction, with no issues of fact involved, the circuit court may entertain a declaratory judgment action to construe the statute. If that were the case, the exception would devour the rule. Whenever a party felt aggrieved by an agency’s anticipated interpretation of a statute it is charged with administering, the party could abandon administrative review in mid-course and seek a declaratory judgment to correct the agency’s anticipated blunder. That is, in fact, what happened here.
A party to an administrative proceeding may always file a declaratory judgment action challenging the “jurisdiction” or authority of the administrative agency to render an anticipated decision. See County of Knox ex rel. Masterson v. Highlands, L.L.C., 188 Ill. 2d 546, 553, 723 N.E.2d 256 (1999) (defining an agency’s “jurisdiction” to include an element of statutory authority). If the agency is without authority, the court may proceed. If, on the other hand, the agency has the authority to make the decision, the failure to exhaust administrative remedies must result in the dismissal of the action and remand to the agency. Here, neither the majority nor the circuit court asked the question: Does the Illinois Gaming Board (Board) have the authority to decide the meaning of section 11.2(a) of the Riverboat Gambling Act (the Act) (230 ILCS 10/11.2(a) (West 2002))? A review of the majority’s own citations makes clear that our supreme court has invoked a “pure statutory construction” exception only when the ultimate issues in the case turn on the authority of the agency to make the challenged interpretation.
In Knox County, the court applied the statutory construction exception where the agency’s authority to define a hog facility under the Counties Code (55 ILCS 5/1 — 1001 et seq. (West 1998)) was attacked. Knox County, 188 Ill. 2d 546. At issue was whether a hog facility fell within the “agricultural purposes” exemption from zoning regulation. Knox County, 188 Ill. 2d at 556. Our supreme court intervened to block the zoning board’s anticipated interpretation after finding, in reliance on the plain meaning of “agricultural purposes” gleaned from sources outside the Counties Code, that the phrase could never be construed to give the board authority to regulate a hog facility. Knox County, 188 Ill. 2d at 556-57.
Similarly, in Office of the Cook County State’s Attorney v. Illinois Local Labor Relations Board, 166 Ill. 2d 296, 652 N.E.2d 301 (1995), the court set aside the exhaustion rule where the anticipated interpretation of the Illinois Public Labor Relations Act (5 ILCS 315/1 et seq. (West 1992)) by the Labor Relations Board would place assistant State’s Attorneys within the board’s authority to regulate. At issue was whether assistant State’s Attorneys were nonmanagerial employees entitled to engage in collective bargaining. Cook County, 166 Ill. 2d at 300. The court found the board’s expertise was not implicated because the issue could be resolved by relying on the statute granting power to the State’s Attorney and case law describing the position of the assistant State’s Attorney. Cook County, 166 Ill. 2d at 305-06. The court concluded that assistant State’s Attorneys were managerial employees as a matter of law, and that the board would exceed its authority if it found otherwise. Cook County, 166 Ill. 2d at 302.
The court in Getto v. City of Chicago, 77 Ill. 2d 346, 396 N.E.2d 544 (1979), concluded the exhaustion rule did not apply where the agency lacked authority to grant the relief requested by the aggrieved party. The plaintiff sought to enjoin collection of an invalid tax by the City of Chicago. Getto, 11 Ill. 2d at 352. The court held exhaustion would not provide the plaintiff with an adequate remedy because the Illinois Commerce Commission, while having authority to grant a refund, lacked authority to suspend the tax. Getto, 77 Ill. 2d at 356-57.
These cases do not support application of the statutory construction exception here, where the statute under consideration is one that the Board administers and its anticipated interpretation, while arguably incorrect, does not implicate the Board’s “jurisdiction” or authority under the statute. It is undisputed that the Board is charged with the exclusive jurisdiction to administer the Act, including section 11.2(a). It is also undisputed that the Board has “jurisdiction” or authority to consider and ultimately grant or deny an application under section 11.2(a). The precise issue is whether the Board has discretion to deny an application where the applicant has shown: (1) it was not conducting riverboat gambling on January 1, 1998; and (2) there has been approval from the municipality or county in which the applicant wishes to relocate. As the majority points out, this is an issue involving the construction of section 11.2(a). But this is also an isr sue that involves the Board’s particular expertise to construe its own statute. See People ex rel. Birkett v. City of Chicago, 202 Ill. 2d 36, 48-49, 779 N.E.2d 875 (2002). The statutory construction exception to the exhaustion rule does not fit under these facts.
I also find troubling the majority’s alternative finding that exhaustion would be futile and cause Emerald Casino, Inc. (Emerald), substantial harm. The majority has not explained, nor does the record indicate, the basis for this conclusion. Even assuming there were clear indications that the Board would ultimately deny Emerald’s application, this is not enough to avoid the exhaustion requirement. See Castaneda v. Illinois Human Rights Comm’n, 132 Ill. 2d 304, 328, 547 N.E.2d 437 (1989). While Emerald suggests that the Board is dragging its feet and has shown it intends to delay a decision “to death,” these allegations are conclusory. It is unfair to say that the Board has delayed action in deciding Emerald’s application where there has been an ongoing investigation into alleged misconduct by Emerald. The Board has the right under the Act to suspend or revoke a license as it sees fit. 230 ILCS 10/5(11), (15) (West 2002). Nothing in the Act directs the Board to address an application for renewal and relocation under section 11.2(a) before revocation is addressed.
While I believe this case should have been dismissed in the circuit court on exhaustion principles, I will comment briefly on the majority’s analysis of section 11.2(a). The majority opinion assumes that the interpretation of section 11.2(a) turns on the meaning of the word “shall.” Of course “shall” means “shall.” But our inquiry does not end there. We must consider “shall” in context, and decide what our legislature intended when it said the “Board shall grant the application.” (Emphasis added.) 230 ILCS 10/11.2(a) (West 2002). To avoid an absurd result, “application” should be construed to mean an application free from substantive defects enumerated in the Act. If an admitted convicted felon filed an application under section 11.2(a), the Board has a statutory (and perhaps under their oath as Board members, a constitutional) duty to deny the application. Under Emerald’s analysis, with which the majority agrees, the Board must disregard this duty and award the license. The majority dismisses this absurd result with a vague reference to a case involving snail darters. Citing only the legislative history (and conceding that “each side finds some solace in the debates”), the majority concludes that the Board must grant Emerald’s license without regard to the regulatory provisions of the Act. 346 Ill. App. 3d at 36-37. This cannot be what the legislature intended.
In fact, the legislature codified its intent in section 2 of the Act, saying: “While authorization of riverboat gambling will enhance investment, development and tourism in Illinois, it is recognized that it will do so successfully only if public confidence and trust in the credibility and integrity of the gambling operations and the regulatory process is maintained.” 230 ILCS 10/2(b) (West 2002). To serve this purpose, the “regulatory provisions of this Act are designed to strictly regulate the facilities, persons, associations and practices related to gambling operations.” 230 ILCS 10/2(b) (West 2002).
A reading of section 11.2(a) that does not offend the express legislative intent is one that interprets “shall” to mean “shall” but only where the application complies with all other provisions of the Act. These provisions require a truthful, candid application from anyone seeking a gaming license in Illinois. As summarized by the Board in its motion to dismiss Emerald’s complaint, Emerald’s application was defective in the following ways:
“(1) Emerald failed to truthfully and accurately disclose the facts and circumstances surrounding Emerald’s selection of Rosemont as its relocation site;
(2) Emerald failed to truthfully and accurately disclose the facts and circumstances surrounding various meetings between Emerald management and prospective Emerald shareholders, including Marvin Davis and Richard Duchossois;
(3) Emerald failed to truthfully and accurately disclose the degree of involvement of Kevin Flynn in various Emerald activities;
(4) Emerald failed to truthfully and accurately disclose certain agreements relating to the construction of a casino in Rosemont and ownership interests in Emerald; and
(5) Emerald failed to conduct usual and customary due diligence regarding any prospective shareholders, resulting in, among other problems, Emerald and Donald Flynn entering into agreements to sell shares in Emerald to individuals who are associated with persons who have been identified as members and associates of organized crime.”
I cannot believe it was the intent of the legislature that a request for renewal and relocation of a gaming license based on an application saddled with these allegations must he granted by the Board before those allegations are aired and resolved. The reading mocks the heightened scrutiny built into the Act and casts a cloud over an industry that the legislature clearly intended to be closely regulated.
The order of the circuit court should be reversed and the case remanded with directions to dismiss the complaint.