Tomm's Redemption, Inc. v. Hamer
7 N.E.3d 750
Ill. App. Ct.2014Background
- Tomm’s Redemption, Inc. supplies coin‑operated amusement devices and sued after Illinois amended the Video Gaming Act to add §35(a), which criminalizes possession/operation of any device that “awards credits and contains a circuit, meter, or switch capable of removing and recording the removal of credits when the award of credits is dependent upon chance.”
- Violation of §35(a) is a Class 4 felony; plaintiff claimed the provision is unconstitutionally vague and violates procedural due process.
- Plaintiff brought a facial challenge (seeking a ruling that the statute is invalid in all applications) rather than an as‑applied challenge; the circuit court dismissed the complaint with prejudice.
- Plaintiff also argued the statute effectively revoked previously issued Department of Revenue decals (which it characterized as licenses) without a hearing.
- After dismissal, plaintiff sought leave to amend to add an as‑applied challenge and other claims; the trial court denied leave because dismissal was a final judgment and the request came post‑judgment.
- The appellate court affirmed dismissal: it held §35(a) is not unconstitutionally vague and plaintiff had no protected property interest in the tax decal renewal such that procedural due process was implicated.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Vagueness of §35(a) | §35(a) is vague because enforcement may require internal inspection and determinations about whether a device is for amusement only | Statute plainly targets devices with a circuit/meter/switch that remove and record credits tied to chance (i.e., knockoff switches and retention meters) and gives ordinary persons adequate notice | Not vague; statute’s plain terms identify prohibited components and the conduct they enable, so a person of ordinary intelligence can know what is unlawful |
| Facial vs. As‑applied challenge | N/A (plaintiff framed only a facial challenge) | Plaintiff bears burden on a facial challenge to prove no circumstance exists in which statute is valid | Plaintiff raised only a facial challenge and failed to meet the heavy burden required for facial invalidation |
| Procedural due process (decals as licenses) | Decals evidencing payment of device privilege tax are licenses; revocation/criminalization under §35(a) occurred without a hearing | Decals are tax‑payment evidence, not licenses; even if they were licenses, there is no protected interest in renewal of a one‑year decal | No protected property interest in decal renewal; procedural due process claim fails |
| Leave to amend post‑dismissal | Asked to amend to add as‑applied and other claims during motion to reconsider | After final judgment, plaintiff has no statutory right to amend to add new claims; leave to amend may be denied | Denial of leave was not error because dismissal with prejudice was final and the amendment request was post‑judgment |
Key Cases Cited
- One 1998 GMC, 2011 IL 110236 (explains the heavy burden for facial constitutional challenges)
- Bartlow v. Costigan, 2014 IL 115152 (clarifies vagueness analysis and when plain statutory language ends the inquiry)
- People v. Bailey, 167 Ill. 2d 210 (vagueness standards regarding notice and arbitrary enforcement)
- Jackson v. City of Chicago, 2012 IL App (1st) 111044 (distinguishing facial and as‑applied constitutional challenges)
- Consiglio v. Dep’t of Fin. & Prof’l Regulation, 2013 IL App (1st) 121142 (licenses as protected property interests under due process analysis)