*1 tо a in answer to or on brought party’s pleadings attention oral interrogatories. written has in her briefly relating alluded brief to act conducting (Ill. business under an name Rev. Stat. ch. assumed seq.) 4 et its these The court suggested applicability under facts. however, plaintiff's has addressed this issue more at assess length; its ment of incorrect. applicability
Defendant itself as a There was no corporation. did hold out proof adduced that Edith under an name. Feuquay did business assumed It would that South Roxana was appear neighborhood Market market. The record is as to manner in silent which the business was carried on. event, if in an as doing fact was business under Feuquay name, 6 of the Act par. 8a)
sumed Rev. Stat. unknown, provides not, that if her was which it was then a civil identity her brought against filing against action suit the business “by n underits name, owners, all naming designating known assumed person persons transacting ‘unknown owner or owners’ the other Regis House Hotel (Cigan business under such assumed name.” St. 197; Curtis v. Albion-Brown’s Ill. N.E.2d App. Legion Post American Illinois assuming appli This statute with even complied cability. LEAGUE, THE ILLI- Plaintiff-Appellant, v.
THE ILLINOIS MUNICIPAL al., Defendants-Appellees et RELATIONS BOARD STATE LABOR NOIS al., Plaintiffs). Village Hanover Park et (The Fourth District No. 4 — 85—0179 21, 1986. January
Opinion filed *3 GREEN, J., concurring. specially P.C., Morris, Kelty, of of Pfeifer & Stanley L. both Kelty
Thomas and W. appellant. Springfield, for Wine-Banks, General, So- Springfield (Jill Hartigan, Attorney of
Neil F. General, Chi- Terrazino, Attorney of General, Assistant and Imelda R. licitor counsel), cagо, appellees. for the opinion delivered
PRESIDING JUSTICE McCULLOUGH the court: declaratory for complaint from a seven-count arises
This action Labor Rela the Illinois Public to set aside seeking relief and injunctive 1, 1984, raising July Act effective Public (Act), tions Act 83— Ill. Rev. (See thereof. invalidity concerning alleged claims various Stat., order of seq.) February ch. 1601 et Supp., par. By Sangamon County the circuit court of dismissed the with to that lacked prejudice, having plaintiffs found V; II, III, IV, I matters in counts and that counts and VI were asserted VII, allegations and ripe adjudication; incorporating for count relief, of the other counts and and requesting injunctive declaratory order the complaint also dismissеd court’s which dismissed in its entirety. Municipal The Illinois has from the League appealed of the judgment Sangamon circuit court of affirm. County.We I alleged (1) unincorporated, Count non cities, profit, nonpolitical association of Illinois villages, incorpo towns, rated to sue on behalf of member legally municipalities, able which op interests of constitute interests within the protectable falling erative of the Act language and which would be affected adversely enforcement; (2) 3(g) Stat., Act’s section of the Act (Ill. Rev. Supp., 1603(g)) ch. requires payment moneys by municipal or, on their behalf municipalities, for which purposes vio late the first and fourteenth amendments to United Statеs Consti Const., tution (U.S. I, XIV) I, amends. and article sections Illinois (Ill. I, Constitution Const. secs. in4) art. that it denies employees freedom association and them deprives property process without due by forcing payments them make which receive no value or they compensation while them no providing thereto; means to object (3) ille 3(g), because section the Act is gal, invalid, unconstitutional, and unenforceable. II
Count 17 of alleged (1) section the Act permits employees charged the protection health, welfare of public safety, and State’s citizens to strike their employers (Ill. Rev. 1984 Supp., (2) par. 1617(a));and the Act em thereby encourages municipal ployees duties, tо abandon their resulting constitutional statutory in per XI, se violation of article section of the Constitution Illinois XI, 2). Const. art. sec. State, III of the complaint alleged
Count (1) citizens through the General have Assembly, public policy established prohibits from public employees striking, which created a policy citizens, I, protected by article of the Illinois Constitution (I I, Const. art. in this (“[tjhe sec. enumeration Con ll. *4 stitution of certain shall be rights disparage construed deny others by (2) retained the individual of the State”)); passage citizens the Act, historically with strike those provision, rights violates granted to this protected by State’s citizens and this constitutional void, and provision; (3) unconstitutional, the Act is thereforе rendered and unenforceable. a (1) Thompson, Governor alleged of the
Count IV to article defendant, power pursuant veto permitted amendatory IV, (Ill. Const. art. IV, of the Illinois Constitution 9(e), section as prohibit has this section (2) interpreted sec. 9(e)); supreme legislation purpose the fundamental ing changing the Governor from ex rel. changes (People therein expansive making and substantial 242; Conti Ill. 2d Canton v. Crouch City of Ill. 2d Zagel (1979), co. v. Bank & Trust nental Illinois National legisla to the message veto 491); (3) amendatory a adding section 9(e) by of the Act violated tion which was basis rights employ bargaining with collective dealing section bill reference to edu deleting and Development Agency ees of the Bi-State bill; Act is ren (4) from the and employers cational and of the Illinois as a result of this violation dered unconstitutional Constitution. Act all permits employ section 17 of the alleged (1)
Count V strike, thereby confer ees, security other than employees, “special prison populations those involved with ring upon persons situated”; “may similarly others who benefit,” is denied to which distinction; (3) interest in this no State (2) compelling there is special legis “invalid Act therefore constitutes of the provision strike State”; (4) of this of the laws safety equal protection lation and denies arti IV, section the Act violates article provision the strike IV, 1970, art. Const. (Ill. of the Illinois Constitution I, section cle to the United the fourteenth amendment 13; I, sec. 2), sec. art. Const., XIV). amend. (U.S. States Constitution the Act on members (1) imposed alleged Count VI State 3(h) of the mandate, defined section League personnel while the 2203(h));(2) ch. par. Stat. (Ill. Act Rev. Mandates exempt 1623) purports ch. par. 1984 Supp., Act Rev. (Ill. spe Act, it does not state Mandates from the State its provisions 6(f) of the under required exclusion as for such cific reasons (3) 2206(f)); Rev. Stat. Mandates Act State requirements comply failure of the Act that the from the ob its members League Act Mandates relieves State Act. imposed mandate the personnel ligation implementing that the ruling court’s the circuit consider the propriеty Wefirst I and V. in counts asserted the claims lacked v. Seldin (1975), Warth relies on two cases: The League in its the trial court 2197, referred to 343, v. Dixon and Weihl opinion, memorandum
597
Warth viewed the question standing litigant as whether dispute par the decide the merits of the entitled to have Warth (1) ticular that the both con inquiry issues. determined involved (2) prudential stitutional limitations on Federal court jurisdiction, (Warth v. Seldin U.S. limitations on its exercise. 422 343, 354, 45 L. di 2197, 2205.) Ed. 2d its constitutional i.e., mension, the has plaintiff whether imports justiciability; made the out a “case or himself and defendant controversy” between within III meaning the of article of the United States Constitution (U.S. Const., III). art. Thus: aspect
“As standing question justiciability, ‘alleged has such a stake in the outcome plaintiff personal his controversy’ as warrant invocation federal-court jurisdiction and to exercise of justify the court’s remedial on his powers behalf. The Art. III ex judicial power [Citations.] ists redress only protect against or otherwise injury complaining party, though even the court’s bene judgment may fit A jurisdiction others federal court’s therefore can collaterally. be invoked when the himself suffered ‘some only plaintiff has resulting illegal threatened actual from the injury putatively ***’ (Warth v. Seldin action. 422 U.S. [Citations.]” 498-99, 343, 354-55, 45 2197, 2205.) L. Ed. 2d Apart mandate, from this minimum constitutional there are other lim- on its who persons class may invoke Federal courts’ deci- sional and powers: (1) remedial when the asserted harm is a “general- grievance” ized shared in substantially equal large measure all or a citizens, class of normally harm alone does not warrant exer- cise of jurisdiction; (2) must assert his own generally legal interests, rights and and cannot rest his claim to relief on the legal rights and (Warth Seldin interests of others.
490, 498, 343, 355, L. Ed. 2d 95 As to associa- S. Ct. tions, Warth held that ab- possibility representational standing, itself, sent association or attenuate the injury does eliminate Therefore, requirement constitutional case or controversy. asso- allege them, ciation must members, suffering one of are immediate or injury challenged threatened as a result of the action of the sort that a justiciable would make out case had members them- selves brought (422 343, 361-62, suit. L. Ed. 2d Ct. 2197, 2211.) that, S. The court further stated from the case- apart III, of article or-controversy requirement prudential considerations standing strongly against according counseled the association action, as such was an to raise prosecute attempt “putative rights” parties; third and none of the exceptions such permitting claims present. 343, 363-64, were S. Ct. 2213.
Weihlv. Dixon 251, 253-55, 56 Ill. App.
883-84, discussed Illinois law on standing: Devine, Lynch
“As stated
the court in
1140:
stated,
‘The doctrine of standing,
that a
simply
requires
from the
party seeking relief
courts must
some
allege
substantive,
his,
in fact to some
interest of
legally-protected
which is a
or interest
recognized
either
common law
*6
Parties secs.
(See
created
statute.
59 Am.
2d
26-29
Jur.
(1971).) The doctrine is used to insure that
the courts are
actual,
to decide
specific
available
controversies
between
parties and are not
in the
ques
overwhelmed
mire of abstract
tions,
issues,
moot
or cases
on
brought
parties
behalf of other
aid. Flast
v. Cohen
judicial
(1968),
who do not desire
83,
947, 961-62,
88 S. CT. 1942.’ See also
Bidwell,
Fuchs v.
503,
65 Ill. 2d
Article section 9 of the 1970 states Constitution of in Courts shall of all part: original jurisdiction jus ‘Circuit have ticiable matters ***.’ is an in Standing aspect justiciability stake in the out personal which the focus is primary come of the controversy person seeking adjudication (Flast Cohen.) v. seeking of a issue. to in particular person voke the of the court must have somе real interest jurisdiction action, in the cause of or a title or inter legal equitable right, matter Am. Jur. 2d subject controversy. (59 est Parties sec. 26 A contro (1971).) sufficient interest the actual is a for a to maintain an action versy equally prerequisite person 110, 1975, ch. judgment (Ill. for a Rev. Stat. declaratory does lacking, plaintiff an interest 57.1), and where such (Clark Refining Oil & bring the action not have Evanston, 48, 177 191). N.E.2d Corp. City v. 23 Ill. 2d *** di- questions Moreover, instant action involves cli- attorney] the plaintiff’s the interests of rectly affecting [an the subject interest title or right, him no more give ents can have would physician than controversy matter of the *** allegedly rights were It is whose they of his patient. body Plaintiff seek redress. who must they and thus it infringеd not seek of others who do on behalf remedy not invoke bring find lacks desire it. we Consequently added.) action.” (Emphasis the instant must unconstitutional attack a statute as one who would Generally, constitu allegedly the law is the class as to whom himself within 429, 430-31, 31 Ill. 2d Zuniga (1964), v. (People tionally objectionable. Trustees Board School 31, 32; County v. 202 N.E .2d Schreiber 2 Ill. 121, 848; (1954), v. Gibbons 31 Ill. 2d 198 N.E.2d Du Bois (1964), (1952), 392, 407-08, 295, 304; v. Cruttenden 2d 118 N.E.2d Jaffe 613, 715, 720; Buettgen (1946), Elmhurst v. City Ill. 107 N.E.2d of Tileston v. Ullman 282; 248, 254, (1943), 394 Ill. 68 N.E.2d the valid A court consider 493.) 87 L. Ed. will directly at the instance of one who is ity statutory provision only of a 97, 101, 120 N.E. (1918), v. Diekmann 285 Ill. (People affected 146, 166, 868; 490, 491; v. McBride 234 Ill. 84 N.E. People (1908), unless the 295), 2 Ill. 2d 118 N.E .2d (1954), Du Bois v. Gibbons in the entire act pervasive unconstitutional feature is so render is not com who is and who “pertinent inquire valid. It is therefore 337, 341, 6 Ill. 2d 129 N.E.2d (People (1955), v. Reiner plaining.” accord, 432, 435, 161; (1962), v. 24 Ill. 2d 182 N.E.2d People Munziato 199, 201; 308, 311, 433 People Wagner v. 89 Ill. 2d N.E.2d 269; District Community Commonwealth Edison Co. v. Unit School 665, 668-69, 688, 690, and No. 200 44 Ill. 358 N.E.2d App. 1, 6, therein; 63 Ill. 2d People Mayberry (1976), cases cited Ed. 2d cert. denied 50 L. Inn, 63 Ill. 2d 87; S. Ct. Schiller Park Colonial Inc. v. Berz 67; 499, 510-11, Ray (1983), People on the constitu Courts do not rule *7 theoretically party only of a statute where the tionality complaining and decide constitu alleged invalidity provision, affected by in the case. tional to the extent the issues questions only required by (1975), Co. 26 Ill. Corp. Donley Bindery v. Harris-Intertype 144-45, 140, 668, 324 N.E.2d 672. in first is made exception general
An rules of 449, 444, 451 (1983), Holder 96 Ill. 2d (People amendment cases. v. 820, L. Ed. 2d 467 U.S. 831, 833, (1984), denied N.E.2d cert. v. Okla however, Broadrick observed, 3511.) As Holder S. 93 Ct. 601, 615, 37 L. Ed. 2d (1973), homa conduct, merеly and not where particularly determined real, only must not a statute involved, overbreadth speech, legiti plainly to the statute’s well, in relation judged but substantial 444, 450, 451 N.E.2d 96 Ill. 2d v. Holder (People mate sweep. would be that a statute statement to Broadrick’s 831, 834.) Referring con- face when the flaw is a substantial only declared on its overbroad whole, cern in the context of the statute as a Holder determined that the flaw in the Dlinois was not a con- statutory provision “substantial cern” legitimate when viewed in the context of the of an intimi- sweep dation statute. not necessarily infringed
Freedom association is “fair agreements.” share The Act for em provides protection public both ployees associating purposes interested themselves for collec conditions, bargaining improved working tive and for those employ (See Stat., ees who wish to refrain therefrom. Ill. ch. Supp., Rev. unfair pars. 1606(a), 1610(a)(1)(employer practice), 1610(b)(1) labor Further, (labor 6 of the organization practice).) unfair labor section Act, which the term “fair share rather than the employs agreement,” Act, definitional section of the does not 3(g), appear require rather, share agreements; agreements” such inclusion “fair in col negotiated lective contracts to cover bargaining public employees within the terms of the Act is Rev. permitted. Supp., This par. 1606(e), (g).) any unconstitutionality prob attenuates lem based “substantial overbreadth” test.
Moreover, counts I and not to allege injury and V and, law, under Dlinois an association does not have plaintiff; showing to maintain an action in its representational capacity absent dispute that it has a interest in the to itself and recognizable peculiar v. (Underground affected. Contractors Association capable being 371, 377, 298, 301; 66 Ill. 2d Retail City Chicago (1977), v. Liquor Dealers Protective Association Schreiber the Dlinois Su urged The 462.) plaintiff Underground allowing Federal court’s position, Court to preme adopt apply.the situations, to maintain suits solely in limited standing, association to ad unnecessary found it Undergrоund the benefit of its members. since, v. applying the Federal rule Warth underlying dress the merits 422 U.S. Seldin even un
Underground’s support standing was insufficient to der the Federal rule. mem allege must
The Federal rule is that an association them, or threatened bers, suffering one of are immediate make out challenged action of the sort as a result would brought (Under themselves suit. justiciable case had members Ill. 2d (1977), 66 City Chicago ground Contractors Association representational of such possibility require constitutional not eliminate or standing does attenuate In Warth Seldin controversy. ment of case or *8 2197, the referred to an association’s 45 L. Ed. 2d 95 S. Ct. members, held it did not seek relief for its standing prospective to facts sufficient to allege failed standing complaint have because brought had the members themselves controversy make a case or of its mem project any referred to no complaint specific action. The challenged as uncon either the ordinance precluded bers was There no aver enforcing action in it. city’s stitutional or by building for a applied city permit ment that member had any any a variance with current neither was there respect any project; city delayed any project proposed indication that the had or thwarted Warth the association association’s members. concluded that had injury failed show the existence of to its members of suffic any ient immediacy ripeness to warrant intervention. judicial Under ground plaintiff’s found the evidenced of the same de complaint many ficiencies found in Ellyn Savings Warth. Glen & Loan Association v. Tsoumas 56.
The courts was discussed in standing associations Federal Kentucky Rights Organization (1976), Simon v. Eastern Welfare 450, 461-62, 1917, 1925: L. 48 Ed. 2d organizations, “We note at the outset that the five respondent which described dedicated to access of promoting themselves as services, to health their poor standing could establish on the of that Our decisions make clear that simply goal. basis an organization’s abstract concern with a that could subject adjudication affected does not for the concrete substitutе injury required by organi- Art. III. Insofar as these [Citations.] in the zations seek based on their interest special they health their must fail. problems poor Since no as and indeed allege injury organizations, to themselves suit, could not they context this can establish who have only representatives those their members been their injured fact, brought and thus could have suit in own in this suit therefore right. standing question [Citation.] any respondent turns whether individual has established an actual or whether the have injury, respondent organizations indigent established actual of their members.” (Emphasis added.)
Simon v. Eastern Kentucky Rights Organization Welfare 48 L. Ed. found it speculative remedial in the suit would powers desired exercise of court’s sought; result in the of the services availability respondent stated: D.
“The R.S. v. Richard principle [Linda this and Warth controls 93 S. Ct. 1146] *9 of Warth, As in is that indirectness principle case. stated make it sub necessarily standing, ‘may while not fatal to injury, of the minimum requirement more difficult to meet stantially that, fact, injury Art. the asserted III: establish actions, or that re prospective of the defendants’ consequence U.S., have Respondents lief the harm.’ 422 at 505. will remove necessary inferences are carry Speculative failed to this burden. actions of challenged petitioners. to connect their Moreover, suggests no substantial likelihood receiving in respondents’ in this suit would result victory court, cogni A properly treatment desire. federal hospital they require zant Art. III limitation must upon jurisdiction, respondents proceeding more than have shown before 450, 464-65, 96 26, 48 L. Ed. 2d S. Ct. (426 merits.” U.S. 1917, 1927-28.) Fed-
Thus, of for associations standing applied even under the view courts, standing. eral not have League does rights pub that the complaint allege
Counts I and V of
affected,
Applying
rather than those
plaintiffs.
lic
will be
present
not
frame and
League
properly
the above
did
principles,
challenges
on the constitutional
standing
sufficient facts to warrant
in certain
may,
maintains that a
League
party
raised. The
nevertheless
difficult, if
be
circumstances, assert the
of others when would
rights
to present
are asserted
persons
rights
not
for the
whose
impossible,
three cases:
cites
their
before
court.
grievance
Cir.
Center,
(7th
v.
Board Health
Chicago
Medical
Ltd.
Friendship
997, 43 L. Ed. 2d
1141,
denied
420 U.S.
1974),
505 F.2d
cert.
680,
1438,
ex
Patterson
NAACP v. Alabama
rel.
Singleton
and
L. Ed. 2d
S. Ct.
Wulff
These cases do
(7th Cir. re Appeals 1438, the Seventh Circuit Court Ed. and a physi corporation of an action a medical versed the dismissal clinic, seeking injunction an cian, an abortion operated who owned and unconstitutionality abortion and declaration of enforcement against Health. The Board of Chicago regulations promulgated service to claim the abortiоn had found the plaintiffs Circuit Seventh patients; of their rights infringed privacy unduly regulations stand, further, could regulations the abortion view of (1) privacy, (2) equal protection women’s fundamental plaintiffs given clause. Circuit found had The Seventh — directly aimed at and on the challenged regulations operated were were of a nature with real plaintiffs continuing potentially very the rights criminal sufficient to allow to assert consequences plaintiffs addition, (505 1147.) their F.2d In the Court of patients. Ap- the first peals regarded patient’s right during to an abortion tri- fundamental, mester wholly and stated it would be a undesirable situation for physician placed position guessing, at the risk of criminal he honor liability, give could еffect to that right. (505 F.2d We note that there is no criminal liability for the I alleged claims in counts and V. Singleton Wulff(1976), 49 L. Ed. 96 S.
Ct. respondents, two Missouri licensed physicians, brought injunctive action for relief and a declaration the unconstitutional- ity of a statute Missouri which excluded abortions that not “med- were ically indicated” from the for which benefits purposes Medicaid were *10 available needy persons. to The Court of Appeals had accorded the doctors to (and granted assert relief partly upon) based the rights patients. of their The Supreme Court had to thus decide tertii jus whether the assertion of a one: proper however, any general rule, “Like this one ap- should be pliеd underlying its justifications where are in absent. With this mind, the Court has looked to primarily two factual elements to determine whether the rule apply should in a case. particular litigant The is the person first the to the whose relationship seeks If right right he to assert. the is enjoyment the inex- the litigant bound the to tricably up activity pursue, wishes the court at be right least can sure that its of the is construction not unnecessary right’s in the sense that the will enjoyment Furthermore, by unaffected the outcome of the suit. the rela- litigant the tionship between the and third be such party may that fully, very nearly, the former is as a proponent effective *** right the as the latter. the other factual element which Court has lookеd is the the his ability right. third assert own Even where party close, the relationship persons is reasons to as- requiring sert their own will still rights If there is some generally apply. genuine assertion, obstacle however, to such third party’s from court its tendency absence loses his suggest right that is stake, him, at truly important who truly party and right’s propo- best available in court becomes default is Alabama, 449, 2L. 2d Ed. Thus, in NAACP v. nent. held that the National 78 S. Ct. the Court resisting People, of Colored Association for the Advancement members, of its could divulge that it the names order of those Amendments rights assert First and Fourteenth The Court reasoned anonymous. members to remain ‘[t]o the members themselves right] be claimed require [the moment right very in nullificаtion of the at would result (1976), 428 U.S. (Singleton its assertion.” v. Wulff 2868, 2874-75.) L. 2d 49 Ed. League and relationship
Defendants between argue is necessar is not such public employees members and rights of employees’ as effective ily very nearly, proponent fully, to have a ho unlikely A given as would be. municipality employees rights af insofar as their interests mogeneous group employees, re element are As to the other factual forded Act concerned. own third to assert his party to in Singleton, ability ferred asserting and a forum for rights, have both a public employees 1611.) 1610(b)(1), their Rev. Supp., pars. rights. ex This from NAACP v. Alabama rel. Patterson case differs there no compara Ed. L. concrete could not themselves raise ble that public reason recogni There is an inherent application of the Act. objections their public public employees tion in the Act that the interests of conditions, such matters are working regarding wages, employers from con proceed potentially Employees employers adverse. of self- and, extent, antagonistic concepts trary viewpoints 460 U.S. Co. NLRB (See Metropolitan interest. Edison argument League’s 75 L. 103 Ct. Despite Ed. S. on their be suits own contrary, employees do fact public See, e.g., half. Ellis v. Brotherhood Clerks Ry. *11 1883; 428, L. 2d Ct. v. Detroit Board Educa 80 Ed. 104 S. Abood of 261, 270, 97 Ct. 52 L. Ed. 2d S. (1977), tion 431 U.S. 1782, 1788; (9th 1976), Cir. 533 F.2d Douglas Corp. v. McDonnell Seay 1126, Feder 1128; Association v. Robbinsdale Robbinsdale Educаtion 96, 437, vac. 307 Minn. 239 N.W.2d (1976), ation Teachers Local 872 160, 225; Perry 880, Ed. 97 S. Ct. 429 50 L. 2d (1976), & rem. U.S. (7th Machinists Cir. Lodge No. 2569 International Association of 413 U.S. 1258, 1259; v. Oklahoma 1983), 708 F.2d Broadrick 601, 830, Ct. 2908. 37 L. Ed. 2d 93 S. The of a ruled correctly. possibility the trial court
We conclude
605 to support future actual too remote to controversy to its mem- injuries League suit. I nor V allege Neither counts bers, facts to alleges specific but Neither count only employees. concrete, that the Act specific only show a but employees, constitutionally rights. violate The employees’ protected Act, itself so cannot be harmed its enforce- subject is not ment. determining next consider court erred in
We trial III, IV, the matters asserted counts and VI plaintiff’s II, are ripe adjudiсation. League’s for As the brief contains no argument complaint, alleging on of count ripeness IV V, that the amendatory 9(e) Governor’s veto violated article Constitution, the 1970 Illinois we its argument conclude has been aban doned.
As noted in Warth v. Seldin 422 U.S. 45 L. Ed. 2d 95 S. Ct. close affinity ripeness bears —whether the harm asserted has matured judicial warrant inter- sufficiently vention—as well as for judicial mootness—whether the occasion inter- vention (422 n.10, persists. n.10, 45 L. Ed. The n.10.) doctrine has been defined as: ripeness
“The constitutional mandate of case controversy, U.S. III, Const. Art. requires appellate to consider whether a case has matured into a ripened controversy worthy ad judication beforе will determine the same.
The question each case whether there is a substantial controversy, parties interests, between having- legal adverse immediacy and reality warrant the issuance of a sufficient judgment. declaratory MacMullan, Lake Carriers’ Ass’n v. S. 92 Ct. (Emphasis added.) 257.” (Black’s (5th Law Dictionary 1979).) ed.
The League two ripeness cites cases to support claim: United Pub lic Workers v. Mitchell L. Ed. Petroleum, and Mid-Town Inc. Dine
wherein the plaintiff sought declaratory injunctive against relief members the United States Civil Service Commission prevent enforcement of provision the “Hatch Act” Federal em prohibiting ployees from actively political Only one of participating campaigns. the plaintiffs been charged violating had As to actually act. the plaintiffs charged, who had no been so court found issue ripe adjudication. rationale for the doctrine of ripeness *12 606 con- to of “actual fundamentally concept in tied the
stated Mitchell Union, & Longshoremen’s Warehousemen’s troversy.” International 98 L. Ed. Local 37 Boyd S. stated: Ct. rule that a effect asked the District Court to
“Appellants of which had not set in motion statute the sanctions been against sought, on whose relief was because individuals behalf not arisen, applied an for had would to doing occasion not be so That the contingency them if in future such a should arise. a to a it is endeavor to obtain a right; not lаwsuit enforce an govern hypothetical that a does not court’s assurance statute challenged that make statute may ap- situations or not of constitutionality leg- of plicable. scope Determination effect in the context islation in advance of immediate adverse an inquiry of a case too remote and abstract concrete involves for of exercise function.” proper judicial law, controversy” Illinois there must be an “actual to an Under wrong for relief. does not mean that a declaratory action “Actual” require “Actual” does injury must have been committed and inflicted. a issues the case are not moot showing underlying that facts and of of dispute or there a concrete which admits premature; must be (Under parties’ rights. immediate and definitive determination Ill. (1977), 66 ground City Chicago Contractors Association v. at able to 298, 300.) The must least be party N.E.2d sustaining, a sustained, danger show that he has is in immediate challenged statute. direct as a result of the enforcement injury in Illinois Game The “actual element was discussed controversy” 75 Ill. 2d v. Block Breeders Association fowl case, alleged In it owned animals plaintiff N.E.2d 531-32. challenged meaning, application within the intent and scope, criminal potential pros such raised the threat ownership statute. As ecution, bring declaratory judg entitle was sufficient to action statute. сhallenging constitutionality ment comparable position. is not in a Ill. 2d Wright (1956), Co. Manufacturing Barco plaintiffs’ Court Supreme rejected the Illinois case, petition In that funds. public disbursement enjoin State assessment subject in the alleged employers ers were they fund, and compensation voluntary unemployment contributions they The court found funds. sought enjoin public disbursement They merely them a sue. giving a special injury failed to show experi- the State adversely affect would alleged payments such them; higher ence tax rate ultimately factor and result remote, extremely of such result was uncertain and be possibility ing cognizable only possibility injury, equity: bare of future “It to perma is a fundamental tо entitle one principle equity nent he actual substantial injunctive relief must establish technical, damage; and not merely inconsequential, speculative allay such relief unfounded fears granted misap will 157, 166, 139 prehensions.” 10 Ill. 2d 232. *13 743, Lynch Devine (1977),
To the same effect is 45 Ill. 3d App. 750, 1137, 1142, plaintiff alleged 359 N.E.2d wherever he a con tractor sought letting and to defendants from certain enjoin (State) types which highway compliance construction contracts not in were with Prevailing certain of the provisions Wage reviewing Act. The interpreted purpose the the statute to mean that payments the prevailing wage possibility tends to lessen the of strikes and in workers; creases the no the but there were in the quality allegations had, that complaint fact, defendants’ in raised conduct the possibility of a work, strike or resulted or that poor quality there was any other immediate to a danger interest. public substantial Clyde Savings & Loan Association v. May Department Stores
In 189, 192, 958, 100 Ill. 3d App. 955, 426 N.E.2d the court looked to the statute specifying that circuit court shall entry refuse a declaratory judgment unless it will result the termination “the controversy part some thereof” emphasizing as fact declaratory judgment procedure litigation is not to permit intended moot or hypothetical cases. ch. (Ill. par. 57.1.) Rev. Stat. The court found the action therein was moot.
Applying above not principles, plaintiffs present do claims which ripe II, III, II, are in сounts or VI. With to count respect per taining by public to strikes which employees public affect health, defendants out that section 18 of Act point Rev. 1984 Supp., provides 1618) a mechanism such enjoining III, I, strikes. With to respect alleging count that article the 1970 Illinois Constitution has guaranteed somehow as the “estab lished public this policy prohibit state to from public employees striking,” the League argument. advances no substantial It appears legislature has the to enact a authority provision permitting for the to strike for public certain cate exempting gories. VI, As to count the League argues that will face municipalities costs, increased and that such possibility creates an actual controversy. We disagree that this makes the controversy ripe for determination.
Dismissal with it prejudice should be made unless clearly 608 would entitle set of facts could be established which that no
appears Hospital, & Trust Co. v. Paris (Edgar County Bank to relief. plaintiff Fechtner Lake 259, 262; Inc. Ill. 2d (1974), 57 Ill. & Loan Association (1977), 2d County Savings injunction, a a a seeking declaratory judgment, preliminary all facts nec plaintiff required is permanent injunction, specify sought. alleged relief Such facts must be unusual essary justify is al upon plaintiff it incumbent certainty precision; harm. conclu well, in terms the Mere lege, particular irreparable Corp. v. Steel Container inadequate. (People ex rel. Fahner sions are Ellyn Glen Sav 68, 71; 369, 371, N.E.2d App. v. Tsoumas 294- ings Loan Association Ill. & Joseph court stated in St. Data 55.) Finally, as this N.E.2d Service, Insurance Co. Ill. Inc. v. Thomas Life Jefferson of the burden App. 3d specification to include dismissal persuade judge the trial plead appears if he wishes over. It prejudice without such, As upon. as framed ruled complaint rested the facts sufficient if count does not state show relief, a dismissal should showing make to warrant ripeness, and some not, however, holding Our as to that count. No error. does be upheld case. preclude proper suit
As of the have been the merits counts *14 court, we not con reviewing the as a court will passed upon trial Savings Harris Trust & Bank sider the constitutional issues raised. v. Wil 69, 74; Runyan 449 N.E.2d Duggan Ill. 2d v. Williams 497; People 628, 630, liams 146 N.E. 315 Ill. v. Hale 1110, 1115; People 179, 189, 66 Ill. 2d American National 454, 455; Ill. 2d (1964), 31 App. 3d Colby Bank & Trust Co. 19 Ill.
N.E .2d 307. above, the of cir- the judgment for the reasons stated Accordingly, is cuit court affirmed.
Affirmed.
TRAPP, J., concurs. GREEN, specially concurring:
JUSTICE the judgment the of circuit the to affirm I concur in decision is in the of stated with most what agree dismissing the majority. opinion comprehensive
As at least adver- by majority, partially stated the inherent and prevents sarial relationship employers between being from entities appropriate its member units plaintiffs seek to I that rights employees. agree claimed uphold lacked standing counts I and V. well documents the reluctance Illinois courts to find opinion litigation of an until is almost at hand. controversy existence actual
I agree injunction provisions of section of the Act Rev. that 1618) Supp., justifies conclusion count III does also present ripe agree not claim. I under decision Manufacturing Wright (1956), Barco Co. v. 227, any claim made by subject count VI is to the same infir mity. III, however,
Count purports allege of a existence constitu- tional prohibition against by governmental strikes I employees. agree implication majority clearly prohibition no such exists. The majority considers this lack of merit apparently in the count as the chief reason an actual why presented is not controversy by the I agree count. do not that the lack of merit in the count is substantial relevance to the dispute whеther is If the ripe. issue set forth in the count would, is not ripe, apparently, ripe only become when a particular strike municipal employees threatened. actually I am reluctant to on the pass of whether so if do question this is we not have to.
I recognize that should ordinarily (1) we avoid on a passing consti- tutional question when case can be decided on other grounds; (2) pass on issue of resolving substance without the question Nevertheless, issue I ripe. would do so here because the lack of merit in III question count is so clear and the ripeness so complicated. though Even pass trial court on merits did III, allegations count I would the trial court’s dismissal of justify count on basis that the prohibition constitutional claimed does not exist.