County of Cook v. Village of Rosemont

Fourth Division
December 11, 1997

No. 1-97-2472

COUNTY OF COOK, a body politic and ) APPEAL FROM THE
corporate, ) CIRCUIT COURT OF
) COOK COUNTY.
Plaintiff-Appellee, )
)
v. )
)
VILLAGE OF ROSEMONT, a municipal )
corporation, )
)
Defendant-Appellant, )
)
and )
)
JAM PRODUCTIONS, LTD., )
an Illinois Corporation, ) HONORABLE
) LESTER BONAGURO,
Defendant. ) JUDGE PRESIDING.

JUSTICE WOLFSON delivered the opinion of the court:
This case represents a turf war between Cook County and the
Village of Rosemont. The County imposes a tax from patrons of
places of amusement--charging owners, managers, and operators
with the duty of collecting the taxes. Rosemont owns, manages,
and controls places of amusement. It does not want the tax to be
collected at those places and it said so in an ordinance.
Our decision in this case does not resolve the dispute.
Hopefully, it will get it back on track.

BACKGROUND
On November 22, 1996, Cook County (the County) enacted an
Amusement Tax Ordinance, effective February 1, 1997, (amended on
March 18, 1997). The ordinance imposed a 3% tax on the patrons
of any "amusement" (as that term was defined in the ordinance)
that took place in the County. The ordinance also made it the
duty of "every owner, manager, or operator of an amusement ... to
secure from each patron the tax imposed" and register as a tax
collector.
The Village of Rosemont (the Village), as owner of certain
Village facilities, including the Rosemont Horizon, the Rosemont
Convention Center, and the Rosemont Theater, opposed the tax.
The Village believed that the County tax would "deter persons who
promote and produce events such as shows, concerts, and public
exhibitions from booking such events" at the Village facilities
and thereby reduce revenue to the Village.
The Village, however, did not bring an action against the
County to challenge the tax. Rather, the Village enacted its own
ordinance (Village of Rosemont Ordinance No. 97-1-8) with the
specific and stated intention of creating a conflict with the
County Ordinance. The Village ordinance provided that the
Village of Rosemont and its officers and employees "shall not"
collect the County Amusement Tax "from any person who attends or
participates in an amusement that occurs at a Village facility."
The Rosemont Ordinance also affirmatively stated that persons
attending an amusement at a Village facility "shall not be
subject to the County Amusement Tax."
The Village enacted its ordinance in reliance on article
VII, sections 6(a) and (c) of the Illinois Constitution, which
state in pertinent part:
"(a) Except as limited by this Section, a home rule
unit may exercise any power and perform any function
pertaining to its government and affairs, including,
but not limited to, the power to regulate for the
protection of the public health, safety morals and
welfare; to license; to tax; and to incur debt.
***
(c) If a home rule county ordinance conflicts with an
ordinance of a municipality, the municipal ordinance
shall prevail within its jurisdiction."
On March 12, 1997, the County brought an action against the
Village of Rosemont for mandamus, injunction, and other relief,
seeking to compel the Village to collect and remit the County
Amusement Tax in accord with the County Ordinance. In an amended
complaint filed April 28, 1997, the County added allegations that
the Village exceeded its authority under the Illinois
Constitution when it enacted the ordinance and that the Village
ordinance was unconstitutional because it had extraterritorial
effect. The County requested a declaration that the Village
Ordinance was void and unconstitutional. In a separate petition
filed with the amended complaint, the County sought a preliminary
injunction to compel the Village's compliance with the County
Amusement Tax Ordinance, that is, to require the Village to
collect the County tax.
Both parties submitted briefs on the petition for
preliminary injunction and a hearing was held on June 27, 1997.
No evidence or testimony was taken at the hearing. After the
hearing the trial court entered an order denying the County's
petition for preliminary injunction. In addition, however, the
court ruled that the Village Ordinance was unconstitutional.
At a later hearing on July 8, 1997, the court explained that
it denied the County's motion for preliminary injunction because
the County had an adequate legal remedy -- administrative action
to enforce its tax ordinance. The court stated, however, that it
had ruled on the declaratory judgment count "on the merits" when
it found, as a matter of law, that the Village ordinance was
unconstitutional.
Both parties expressed surprise that the court intended to
enter an order on the declaratory judgment count when only a
petition for preliminary injunction was before the court on June
27th. There was some discussion over the finality and
appealability of the ruling. It was suggested that the order
was, in actuality, a grant of summary judgment on count IV, which
sought declaratory judgment. As such, it was an interlocutory
order, but not appealable unless Rule 304(a) language was added.
The court agreed that summary judgment was being entered on
the count, but expressed his belief that the ruling was
appealable because it was part of the judgment denying a
preliminary injunction and refused to enter 304(a) language. The
court also said that while he believed it was implicit in his
ruling that the ordinance was unconstitutional, he would add
language enjoining the Village from enforcing the
unconstitutional ordinance. This, the court said, would insure
the appealability of the order.
An amended order was entered July 8, 1997, in which the
court ordered the Village of Rosemont be enjoined from enforcing
its ordinance based on its unconstitutionality.
The Village filed a notice of appeal on July 9, 1997.
Although it is the prevailing party on the petition for
preliminary injunction (the petition which was before the court),
the Village appeals the remainder of the order which held the
Village Ordinance unconstitutional and enjoined the Village from
enforcing its ordinance. The Village brings the appeal pursuant
to Supreme Court Rule 307(a)(1), which provides for interlocutory
review of an order "granting, modifying, refusing, dissolving, or
refusing to dissolve or modify an injunction."
DECISION
This case presents an unusual and intriguing situation.
Appeal is brought pursuant to Supreme Court Rule 307(a), from an
interlocutory order granting an injunction. However, the
injunction that was granted and which this court is asked to
review is not the injunction sought in the petition brought by
the County of Cook. The County's petition sought an injunction
to compel Rosemont to collect the taxes as required by the County
Amusement Tax Ordinance. That request was denied and the
propriety of that ruling is not being appealed by the County or
the Village.
The injunction which the Village asks this court to review
was issued as an adjunct to the decision to declare the Village
ordinance unconstitutional. The trial court entered an order
enjoining the Village of Rosemont from enforcing Village
Ordinance 97-1-8, after it ruled that the Village ordinance was
unconstitutional. That injunction is being appealed.
Generally, when an appeal is brought pursuant to Supreme
Court Rule 307(a), the reviewing court considers the propriety of
the trial court's decision to grant or deny the preliminary
injunction requested. Schweickart v. Powers, 245 Ill. App. 3d
281, 613 N.E.2d 403 (1993). In assessing the trial court's
ruling, the reviewing court ascertains whether the party
requesting the injunctive relief has (1) demonstrated a clear and
certain right that needs to be protected, (2) shown that
irreparable harm will be suffered without the injunction, (3)
demonstrated that there is no adequate remedy at law, and (4)
shown a likelihood of success on the merits. Magee v. Huppin-
Fleck, 279 Ill. App. 3d 81, 664 N.E.2d 246 (1996).
In reviewing the trial court's decision, this court is
limited to determining whether the trial court abused its broad
discretionary powers in granting or denying the injunction.
Vasquez v. City of Woodstock, 242 Ill. App. 3d 766, 771, 611 N.E.2d 44 (1993). In that context, it is appropriate to consider
whether the trial court's ruling preserves the status quo while a
hearing on the merits is pending, one of the prime purposes for
granting a preliminary injunction. Continental Cablevision of
Cook County, Inc. v. Miller, 238 Ill. App. 3d 774, 606 N.E.2d 587
(1992); Lake Louise Improvement Ass'n v. Multimedia Cablevision
of Oak Lawn, Inc., 157 Ill. App. 3d 713, 718, 510 N.E.2d 982
(1987).
In Lake Louise Improvement Ass'n v. Multimedia Cablevision
of Oak Lawn, Inc., the court stated that, as a general rule, a
trial court should not resolve a question on the
constitutionality of a statute when ruling on an application for
a temporary injunction. Constitutionality of a statute should be
resolved only, if at all, to the extent required by the matter
before the court. "[A]ny injunction must be reasonable and go no
further than is essential to safeguard plaintiff's rights."
Lake Louise Improvement Ass'n, 157 Ill. App. 3d at 717.
The issue before the trial court was whether the County
would be irreparably harmed by Rosemont's continued refusal to
collect the taxes required by the County Amusement Tax Ordinance.
Though the County did seek, in its case in chief, a declaration
that the Rosemont Ordinance was invalid and unconstitutional,
that issue was not before the court on June 27, 1997, nor was a
constitutional determination necessary to the court's decision on
the injunction. If the court were to grant the preliminary
injunction requested, it would have to find a likelihood that the
ordinance relied on by Rosemont to exempt itself from the
operation of the County Ordinance would be declared invalid at a
later stage of the proceedings.
Though it might be arguable that the trial court could have
ruled on the constitutionality of the Village ordinance to
support its decision to grant preliminary injunctive relief, the
court, incongruously, denied the preliminary injunction requested
by the County. It is clear, therefore, that the court's
determination that the Village Ordinance was unconstitutional was
not necessary to the decision that was before the court or
"essential to safeguard plaintiff's rights."
Even if we consider the propriety of the trial court's
injunctive order on its own merits, outside the context of the
court's determination on the preliminary injunction requested by
the County, we find little justification for the court's
determination. The purpose of a temporary injunction is to
prevent a threatened wrong or the further perpetration of an
injury in the interim before a full hearing on the merits of the
case can be held. Toushin v. Chicago, 23 Ill. App. 3d 797, 320 N.E.2d 202 (1974).
In this case, after a brief hearing held for the purpose of
determining whether to grant or deny a preliminary injunction,
and without the benefit of evidence or testimony, the trial court
resolved the defining issue in the case -- whether the Village
had the authority, under the Illinois Constitution, to enact
legislation in conflict with the County ordinance and thereby
exempt itself from the requirements of the County ordinance. The
injunction flowed from that decision. This situation is a
complete turn-about from the usual circumstances -- where a court
is asked to enter a preliminary injunction and must make a
constitutional ruling in deciding whether an injunction is
proper.
The order enjoining the Village of Rosemont from enforcing
its ordinance is not in the nature of a preliminary injunction,
but a permanent one. The injunction does not preserve the status
quo.
We conclude the temporary injunction in this case, granted
in conjunction with a summary judgment order on a matter not
before the court at the time, was improvidently granted. It is
clear to us the order was entered as a vehicle for obtaining
appellate review of the order declaring Rosemont Ordinance 97-1-8
unconstitutional. That is not the proper office of a temporary
injunction. The trial court exceeded the scope of matters before
it at the preliminary injunction hearing on June 27, 1977.
Because we vacate the temporary injunction, we also vacate the
order finding the ordinance unconstitutional. See Northwestern
Steel & Wire Co. v. Industrial Comm'n, 254 Ill. App. 3d 472, 477,
627 N.E.2d 71 (1993).
If Ordinance 97-1-8 is constitutionally valid it will have
a grave impact on relations between the County and the Village.
The question is too significant to be dealt with in an off-hand
manner. There should be a complete hearing and a considered
judgment when the decision is made.
In addition, we note the trial judge's finding of
unconstitutionality was based on his view that the "subject
matter of the ordinance [owning and managing places of amusement]
is a non-governmental function***" within the meaning of article
VII, section 6(a) of the Illinois Constitution. For that reason,
he did not reach the conflict and prevalence issue created by
section 6(c). He said: "I do not reach the conflict question."
At oral argument, the County informed us it thought the
judge was wrong when he relied on the "government and affairs"
provision of section 6(a). That leaves the trial judge's
decision without a principled underpinning. The County contends
the right reason for finding the ordinance unconstitutional is
that it purports to tell the County when, where, and whether
county taxes may be collected. That may be the County's reason,
but it was not the trial judge's reason.
We express no opinion on the merits of the dispute over
validity of the ordinance. On remand, the trial judge will
consider whether the ordinance survives section 6(a) analysis.
If it does, the trial judge then will examine section 6(c) to
determine whether the ordinance trumps the County tax at Village
amusement facilities. Once those decisions are made, we are
confident the trial judge will proceed according to law.
CONCLUSION
The trial court's orders finding Rosemont Village Ordinance
97-1-8 unconstitutional and granting a temporary injunction
barring its enforcement are vacated. This cause is remanded for
proceedings consistent with this opinion.
VACATED AND REMANDED.
CERDA, P.J. and McNAMARA, J., concur.