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Orlove v. Novick

OPINION FILED NOVEMBER 29, 1979.

HERMAN ORLOVE ET AL., PLAINTIFFS-APPELLEES,

v.

WILLIAM NOVICK ET AL., DEFENDANTS. — (NORMAN JACOBSON, RESPONDENT-APPELLANT.)



APPEAL from the Circuit Court of Cook County; the Hon. NATHAN M. COHEN, Judge, presiding.

MR. JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:

Rehearing denied December 28, 1979.

Plaintiffs-appellees, as limited partners in the Oak Manor Venture and shareholders in Oak Manor, Inc., brought this action in the circuit court of Cook County for an accounting, and to recover money damages from defendants, as partners in the Oak Manor Venture and controlling shareholders in Oak Manor, Inc., and for other injunctive relief. Respondent-appellant, Norman Jacobson, a nonparty to the suit, was subpoenaed by plaintiffs to testify for discovery purposes in this cause. In response to questions on oral deposition, respondent invoked the privilege against self-incrimination and refused to answer questions propounded by plaintiffs' counsel. Plaintiffs filed a rule to show cause, and the circuit court held respondent in contempt of court for refusing to answer the questions propounded by plaintiffs' counsel on deposition. Respondent was fined the sum of $25 for each day that he refused to comply with the court order. This appeal is taken by respondent from that finding of contempt. We reverse.

The facts are as follows: Respondent was the principal owner of Glick Pharmacy, an Illinois corporation, which he acquired on or about February 1, 1975. Unknown to him at the time of purchase, this business was engaged in certain questionable practices, to wit, kickbacks and rebates to owners or operators of the Oak Manor Skilled Nursing Center for the furnishing of drugs and pharmaceuticals. Respondent acquiesced in that practice for a short period of time and, subsequently, was charged with a one-count misdemeanor.

The facts which follow are partially in dispute. According to respondent Jacobson, he was charged with a misdemeanor under section 1396h (42 U.S.C. § 1396h (1976)). He entered a plea agreement with the Federal government and pleaded guilty to a limited one-count misdemeanor charge covering only certain transactions in April 1975. No representations were made in the plea agreement concerning the sentence to be imposed, nor did the Federal Government waive its right to bring a subsequent prosecution based on the same or different transactions. The Federal Government made no representations either as to the severity of the sentence to be imposed or as to further prosecutions. The plea agreement was not an agreement pursuant to Rule 11 (Fed. R. Crim. P. 11) and did not bar further prosecution. His sentencing hearing was held December 8, 1976.

According to plaintiffs, the Federal plea agreement was not introduced into evidence in the circuit court proceedings and is not in this record on appeal and, therefore, is not properly before this appellate court for consideration. The respondent pleaded guilty to a misdemeanor (42 U.S.C. § 1396h(b)(1) (1976)). The statute was amended by Public Law 95-142, which upgraded the offense to felony status, only as to acts occurring or statements or representations made on or after October 25, 1977. Respondent's activities occurred prior to January 19, 1977. Finally, according to plaintiffs, the sentencing hearing was held on January 19, 1977, not December 8, 1976; that on December 8, 1976, respondent appeared in the United States District Court and was charged with, pleaded guilty to, and was convicted in a one-count information. On January 19, 1977, respondent was sentenced to 2 years unsupervised probation in connection with his guilty plea.

On May 24, 1977, respondent Jacobson was served with a subpoena for deposition in the instant case. When respondent was deposed, he was asked a series of questions touching upon his interest in Glick Pharmacy, its dealings with certain party defendants in the lawsuit, and questions pertaining to certain illegal conduct. According to respondent, these questions exceeded the scope of the transactions which were the subject of the Federal information discussed previously. As to all of these questions, on advice of counsel, respondent invoked his privilege against self-incrimination.

One of the defendants, Jacob Nayman, took a position similar to that of respondent. Nayman had pleaded guilty to eight counts of receiving kickbacks and rebates in violation of the statute (42 U.S.C. § 1396h(b)(1) (1976)). Upon questioning, he also invoked his privilege against self-incrimination. Plaintiffs argued that both respondent Jacobson and defendant Nayman had waived the privilege against self-incrimination by their earlier pleas of guilty. Nayman's privilege was sustained in large part in the ruling of March 16, 1978, when the circuit court ruled that he had not waived his privilege against self-incrimination with respect to questions concerning the Oak Manor Skilled Nursing Center.

On June 2, 1978, the circuit court ordered respondent Jacobson to answer the following questions:

1. If he paid kickbacks and bribes to a representative of the Oak Manor Skilled Nursing Center.

2. To whom he paid said kickbacks and bribes.

3. The amount that he paid as a kickback or bribe to the representative(s) of the Oak Manor Skilled Nursing Center, and

4. The date(s) on which he made the payment of kickbacks or bribes to the representative(s) of the Oak Manor Skilled Nursing Center.

Respondent again invoked his privilege against self-incrimination. On June 22, 1978, plaintiffs filed a petition for a rule to show cause. Upon his refusal to testify on July 25, 1978, the ...


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