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Illinois Power Co. v. Latham

OCTOBER 30, 1973.

ILLINOIS POWER COMPANY, PLAINTIFF-APPELLEE,

v.

PAUL LATHAM ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of St. Clair County; the Hon. WILLIAM P. FLEMING, Judge, presiding. MR. PRESIDING JUSTICE EBERSPACHER DELIVERED THE OPINION OF THE COURT:

This is an appeal from an injunction order of the circuit court of St. Clair County.

The plaintiff-appellee, Illinois Power Company, is a public utility in the business of distributing natural gas in East St. Louis and nearby areas. In East St. Louis, maintenance repairs and other gas services are performed by construction crews who are employed by the Illinois Power Company and who are members of certain construction craft unions. During the month of March, 1971, certain citizens began to request that the Illinois Power Company hire additional minority workers on its work crews. After several meetings with the Mayor of East St. Louis and other city officials, and with the announcement by the plaintiff that there were no openings, these same citizens held a series of demonstrations to dramatize the situation. During some of these demonstrations criminal acts were allegedly committed by the defendants.

On August 13, 1971, the plaintiff filed its complaint alleging that the defendants, named and unnamed, had engaged in a violent, intimidating and disruptive course of conduct which endangered not only plaintiff's personnel and property, but the public safety as well. The complaint additionally alleged that the defendants had made unlawful demands on the plaintiffs, in that defendants demanded the hiring of members of the United Black Workers Association to the exclusion of all others, in violation of the stated policy and laws of the State of Illinois and the United States of America. Plaintiff's complaint finally alleged irreparable harm and the inadequacy of any legal remedy, and prayed for an injunction restraining certain activities on the part of the defendants. The answer filed on behalf of the defendants, denied all of the material allegations and raised the affirmative defenses of preemption by federal law, lack of jurisdiction of a court of equity to enjoin criminal acts, infringement of the state and federal constitutional rights of the defendants, and failure of plaintiff to meet the equitable requirement of "clean hands". The answers of the named defendants Paul Latham, Willie Gregory, Dwight Quinn and Lewis Norton were stricken pursuant to Supreme Court Rule 219(c), after being properly called under Section 60 of the Civil Practice Act. (Ill. Rev. Stat. 1971, ch. 110, par. 60.) The appellants did not below, nor do they here, contest the propriety of the trial court's action. The circuit court denied the plaintiff's petition for a restraining order and permanent injunction, after determining that it was without authority to restrain criminal acts.

On appeal, this Court remanded the case to the circuit court, holding that a petition for a restraining order and for a permanent injunction against defendants was improperly denied on the sole ground that the acts complained of were crimes and that the court could not restrain criminal acts, since, although a court of equity is reluctant to issue an injunction to intervene in purely criminal matters, it will do so where the relief is necessary to protect the rights of the public or of private individuals. (Illinois Power Co. v. Latham (1972); 3 Ill. App.3d 1000, 279 N.E.2d 133.) On remand, after considering all the evidence and testimony previously taken, and upon consideration of the case, an injunction order was issued.

The defendants-appellants seek reversal of the permanent injunction order and dissolution of the decree on one or more of the following grounds: that the trial court erred in granting the injunction because it violates their constitutional rights as guaranteed by the Fourteenth Amendment; because the terms of the injunction are constitutionally too broad; because the order seeks to enjoin conduct not pleaded or proved; because the evidence fails to sustain the burden of proof with respect to defendant Metro-East Labor Council, Inc.; and because the plaintiff entered a court of equity with unclean hands.

• 1-3 Appellants first argue that the state courts cannot constitutionally enjoin the right of private citizens to exercise freedom of speech in the form of peaceful picketing and peaceful appeals to the public, and that this injunction order clearly transgresses this right guaranteed by the Fourteenth Amendment. The problem faced by the circuit court in this case was to strike a balance between the State's interest in public safety and an individual's interest in his first amendment right to freedom of speech. When dealing with attempts by individuals to exercise their first amendment rights to freedom of speech in the form of picketing, a court must take into consideration the purpose for which the picketing is being conducted to ascertain whether it is in furtherance of a lawful purpose and not contrary to some statute or public policy. (Cielesz v. Local 189, 25 Ill. App.2d 491, 167 N.E.2d 302.) Peaceful picketing, distribution of pamphlets, and the organization of demonstrations to protest allegedly racially discriminatory hiring practices of an employer would be protected under the Federal Civil Rights Act and Fair Employment Practices Act (42 U.S.C. § 2000(e)-2a). (Centennial Laundry Co. v. West Side Organization (1966), 34 Ill.2d 257, 215 N.E.2d 443.) Appellants contend that their picketing and demonstrations were peaceful attempts to dramatize the fact that the plaintiff hired few minority workers. However, the evidence in this case presented at the hearing does not sustain appellants' contention. There was testimony that defendants-appellants came to various job sites of the plaintiff and threatened plaintiff's employees with axe handles and guns, beat on plaintiff's equipment with axe and pick handles, beat plaintiff's employees with axe handles, attempted to push one of plaintiff's employees into an excavation, attempted to stop work at various sites, and threatened that plaintiff would be unable to get its equipment out of the plant on a certain day. All of this testimony serves to illustrate that the various demonstrations carried on by the defendants were anything but peaceful. They were entangled with threats, intimidation, coercion, and violence. The courts of this state and the United States Supreme Court have consistently held that mass picketing and violence, obstruction of ingress and egress, threats, intimidation and coercion may be enjoined. (Ossey v. Retail Clerk's Union (1927), 326 Ill. 405, 158 N.E. 162; Ellingsen v. Milk Wagon Drivers Union (1941), 377 Ill. 76, 35 N.E.2d 349; General Electric Co. v. Local 997 (1955), 8 Ill. App.2d 154, 130 N.E.2d 758; and Milk Wagon Drivers Union v. Meadowmoor Dairies, Inc. (1941), 312 U.S. 287.) There was also testimony to the effect that defendants had on several occasions demanded that the plaintiff hire blacks who were members of the United Black Workers Association, and that defendant Latham told plaintiff's employees to tell the office of the Illinois Power Company that they had better start hiring not just any black, but to hire his blacks. This kind of conduct has also been held to be enjoinable. In Centennial Laundry Co., supra, the court stated, at 261, that picketing, distribution of pamphlets and the organization of demonstrations for the purpose of forcing an employer to hire a quota of Negro employees would be properly enjoinable as violative of the Federal Civil Rights Act and the Fair Employment Practices Act.

In a most important case, because it is the closest factually to the case at bar, Milk Wagon Drivers Union v. Meadowmoor Dairies, Inc., supra, the United States Supreme Court affirmed the issuance of an injunction by an Illinois court. In that case the dairies departed from union standards in selling milk and the union took action to compel compliance. Union conduct was found to have involved violence on a considerable scale in that there was property damage, beatings and a display of guns. The Illinois court issued a permanent injunction restraining all union conduct, violent and peaceful. The U.S. Supreme Court granted certiorari on the question of whether a state can choose to authorize its courts to enjoin acts of picketing in themselves peaceful when they are enmeshed with contemporaneously violent conduct, which is concededly illegal. The Court stated, at 294, that "the picketing * * * was set in a background of violence" and that "* * * it could justifiably be concluded that the momentum of fear generated by past violence would survive even though future picketing might be wholly peaceful." And, at 294, 295, the Court concluded that it was not written into the "Fourteenth Amendment that a State through its courts cannot have protection against future coercion on an inference of a continuing threat of past misconduct."

The cases cited by the appellants do not sustain their contentions. In American Federation of Labor v. Swing, (1941), 312 U.S. 321, the Supreme Court reversed an injunction issued by an Illinois court on the grounds that peaceful picketing or persuasion are unlawful when conducted by strangers to the employer. The Supreme Court held, at 326, that "the right of free communication cannot * * * be mutilated by denying it to workers, in a dispute with an employer, even though they are not in his employ." Swing has no application because it was "an instance of peaceful persuasion disentangled from violence" and the evidence in the case at the bar showed picketing that was anything but peaceful.

The Ellingsen case, supra, also cited by the appellants, is likewise not applicable because it merely holds that where there is no threat of future violence, an injunction against peaceful picketing should not stand.

The last case cited by the appellants is Hughes v. Superior Court of California, 339 U.S. 260. In Hughes the petitioners demanded that respondents' stores hire Negroes until the proportion of Negro clerks to white clerks approximated the proportion of Negro to white customers, and they picketed the stores to force compliance. The picketing was enjoined as being for an unlawful purpose, although pursued in a peaceful manner. The issue presented to the Supreme Court was whether the Fourteenth Amendment to the Constitution bars a State from use of the injunction to prohibit picketing of a place of business solely in order to secure compliance with a demand that its employees be in proportion to the racial origin of its then customers. The Court held, at 466, that it could not "construe the Due Process Clause as precluding California from securing respect for its policy against involuntary employment on racial lines by prohibiting systematic picketing that would subvert such policy." This case, if anything, appears to support plaintiff-appellee's argument rather than appellants' and, again, may not be applicable at all because the picketing was peaceful.

• 4 We therefore hold, that the issuance of the injunction does not violate appellants' constitutional rights guaranteed by the Fourteenth Amendment.

Appellants' second contention deals with the injunction itself. Appellants argue that its terms are constitutionally too broad, that it seeks to enjoin a class of all minority group individuals, and that it seeks to enjoin conduct not pleaded or proved. The injunction order reads as follows:

"Therefore, upon proper consideration of the case, it is the Order of this Court to enjoin the following defendants, Paul Latham, Oscar Phillips, Willie Gregory and Dwight Quinn, Lewis Norton, individually and as members and representatives of a voluntary unincorporated association known as the United Black Workers Association and the Metro East Labor Council, Inc. together with the other members of said association and corporation, individually and as representatives of an unnamed class of persons:

1. From compelling or coercing or attempting to compel or coerce plaintiff to engage in any acts declared to be an unfair employment practice under the provisions of the Illinois Fair Employment Practices Act ...


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