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Scott v. Ass'n For Childbirth At Home





APPEAL from the Circuit Court of Sangamon County; the Hon. SIMON L. FRIEDMAN, Judge, presiding.


On October 25, 1978, William J. Scott, Attorney General of Illinois, brought separate suits in the circuit court of Sangamon County, Illinois, against defendants, Association for Childbirth at Home, International (Association), and Cathryn S. Feral, seeking relief pursuant to section 6 of the Consumer Fraud and Deceptive Practices Act (Ill. Rev. Stat. 1979, ch. 121 1/2, par. 266; hereafter referred to as the Act). The cases were later consolidated. Plaintiff appeals the March 24, 1980, order of the court dismissing the complaints in bar of action upon defendants' motion.

The procedural matters involved arise from sections 3, 4, 5, and 6 of the Act (Ill. Rev. Stat. 1979, ch. 121 1/2, pars. 263, 264, 265, and 266). Their consideration in some detail is necessary to an understanding of the case.

Section 3 gives certain powers to the Attorney General when (1) it appears to him that "a person has engaged in, is engaging in, or is about to engage in any practice" unlawful under the Act; (2) he receives a written complaint from a consumer or borrower of such a violation; (3) he believes it to be in the public interest to determine if any of the foregoing situations exist. The granted powers enable the Attorney General to (a) require the person suspected to file a written report, which the Attorney General may require to be verified, giving all information the Attorney General may deem necessary; (b) "[e]xamine under oath any person in connection with the conduct of any trade or commerce; (c) [e]xamine any merchandise or sample thereof, record, book, document, account or paper as he may consider necessary"; and (d) pursuant to court order, impound certain items produced until completion of the proceedings in which the items are involved.

Section 4 authorizes the Attorney General to hold hearings "in aid of any investigation or inquiry" pursuant to the purpose of the Act, issuing subpoenas and conducting hearings. The section also authorizes him to make rules and regulations concerning the same, which shall have the force of law.

Section 5 provides for the manner of serving subpoenas and notices requiring filing of statements.

Section 6, upon which these proceedings were brought, provides the Attorney General with judicial relief against one who disobeys a subpoena or fails to file a required report. It permits the Attorney General to obtain (a) injunctive relief prohibiting the sale or advertisement of merchandise or the conduct of the trade or commerce involved, (b) vacation, annulment or suspension of the authority of persons in disobedience to do business, and (c) other judicial relief as may be required, all pending compliance by the person involved.

Together, the complaints alleged (1) the Association was and had been "engaged in the trade and commerce of advertising, educating and training parents in the area of childbirth and training teachers in the area of childbirth education, specifically oriented toward childbirth at home," (2) Feral was the "Midwest Regional Coordinator" for the Association, (3) the Attorney General believed it to be in the public interest to determine if the Association had or was about to violate the Act, (4) a notice to file and produce certain items had issued and been served on the Association through Feral and upon Feral individually and they had failed to timely comply, (5) the Association had also been subpoenaed to appear for examination at plaintiff's office on a day certain and had failed to comply. The complaint requested that defendants be ordered to comply and pending compliance to be enjoined from selling or advertising any merchandise in the State of Illinois and from conducting trade or commerce in the State. Various documents were attached to the complaint including copies of the subpoena and the requirements to file.

The motions to dismiss contended (1) the applicable provisions of the Act, both on their face and as applied, violated various provisions of the United States Constitution and the Illinois Constitution of 1970, (2) the complaints set forth no facts indicating (a) the existence of any of the grounds upon which the grant of power to the Attorney General under section 3 is based, or (b) probable cause that any person had engaged in, was engaging in or was about to engage in prohibited practices, and (3) the complaint set forth no "subject matter for investigation by which to determine the relevancy and materiality of the materials requested." Although not stated in the motion to dismiss, other issues, to be discussed later, were raised by defendants at the hearing on the motion. Plaintiff does not dispute that we may consider those points.

The trial court supplemented its order of dismissal with a comprehensive memorandum of opinion. It concluded that section 4 authorizing the Attorney General to "issue subpoenas" and section 3(a) authorizing him to "[r]equire that person to file * * * a statement or report," requires the subpoena and filing request to be personally signed by the Attorney General rather than by an Assistant as was done here. As the validity of these documents was basic to the Attorney General's right to proceed here, the court deemed the complaint together with attachments to show that no cause of action existed. The court deemed it unnecessary or premature for it to pass upon other issues.

Plaintiff maintains on appeal that the circuit court was incorrect in requiring the personal signature of the Attorney General for the valid issuance of the subpoena and filing requests. In addition to asserting that the circuit court was correct in its holding, defendants also contend that the circuit court judgment is supportable because plaintiff's pleading shows that (1) the Act does not apply to defendants, (2) the Act is void for vagueness both on its face and as applied to defendants, and (3) the subpoena which the complaint seeks to enforce is so overbroad and general that it constitutes an unreasonable search and seizure under both the State and Federal constitutions.

Both sections 3(a) and 4 speak in terms of the Attorney General having power to "require that person to file * * * a statement or report" and to "issue subpoenas," respectively, without any statement that he may do so by assistant. On the other hand, legislation authorizing investigative hearings to be conducted by the Attorney General in matters involving charities specifically states that such a hearing may be held before the Attorney General or a specifically designated assistant (Ill. Rev. Stat. 1979, ch. 23, par. 5110). Similarly, legislation authorizing investigations by the Director of Insurance specifically states that hearings connected therewith may be conducted by the director "or other officer designated by him" (Ill. Rev. Stat. 1979, ch. 73, par. 1015). The circuit court concluded that the failure of the legislature to give specific authority to the officer involved to delegate authority under the Act while having done so in other similar legislation, indicated an intention that the writs here were required to be issued only by the Attorney General personally. Defendants urge that the circuit court's interpretation is particularly appropriate because the Act creates broad investigative powers which could be used oppressively. They note that here a membership list was requested, a governmental demand that was held to be an infringement of first amendment rights under the circumstances involved in NAACP v. Alabama (1958), 357 U.S. 449, 2 L.Ed.2d 1488, 78 S.Ct. 1163.

• 1 Although we share defendants' concern with the scope of investigative power given by the Act, we do not agree that the legislature intended that the writs in question must be signed by the Attorney General personally. In People v. Nahas (1973), 9 Ill. App.3d 570, 292 N.E.2d 466, the court examined legislation prohibiting eavesdropping unless done with permission of a party to the conversation and at the request of "a State's Attorney" (emphasis added) (Ill. Rev. Stat. 1969, ch. 38, par. 14-2(a)). The court concluded that an Assistant State's Attorney was intended to have the full powers of a State's Attorney when the State's Attorney was absent, sick or otherwise occupied. Even more reasons exist to imply that an Assistant Attorney General has implied power to act on behalf of the Attorney General.

In 1925 the supreme court ruled upon the question of whether the Attorney General had power to appoint assistants to enforce provisions of legislation concerning searches and seizures, although no legislative provision was made for his appointing Assistant Attorneys General except in relation to matters ...

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