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Streif v. Bovinette

OPINION FILED OCTOBER 2, 1980.

LEON STREIF ET AL., PLAINTIFFS-APPELLEES,

v.

EUGENE BOVINETTE, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of St. Clair County; the Hon. WILLIAM B. STARNES, Judge, presiding.

MR. JUSTICE HARRISON DELIVERED THE OPINION OF THE COURT:

The defendant, Eugene Bovinette, brings this interlocutory appeal following an order entered February 23, 1979, in the circuit court of St. Clair County, enjoining him from certain activities which the court found to be improperly interfering with the business operations of the plaintiffs, Leon Streif and Vandalia Bus Lines, Inc. Bovinette challenges the preliminary injunction arguing that the circuit court's order (1) violates the terms of section 3-1 of "An Act to revise the law in relation to injunctions" (Ill. Rev. Stat. 1977, ch. 69, par. 3-1), respecting the specificity of language required to be contained in writs of injunction; (2) that the order is in contravention of the defendant's constitutional right to freedom of speech and his right to petition government for a redress of grievances as stipulated and protected by the first and fourteenth amendments of the United States Constitution, as well as in article I, section 5, of the Constitution of the State of Illinois; (3) that the scope of the order is both unconstitutionally vague and overbroad; and (4) that the evidence presented in the trial court fails to support the issuance of a preliminary injunction. We reverse the order of the circuit court.

The plaintiff's complaint alleges that defendant engaged in various actions which constitute a nuisance and that they have unjustifiably interfered with his commercial operations as president of Vandalia Bus Lines, Inc., located at Caseyville, Illinois. Vandalia Bus Lines, Inc., is a private corporation licensed by the Interstate Commerce Commission and the various State authorities to conduct nation-wide business as a passenger carrier and charterer of vehicles. Bovinette's home is situated in a commercially zoned district lying adjacent to property acquired by Streif in the summer of 1975. The plaintiff has used the land concerned, located at 312 West Morris, for the operation of his bus company and as a family residence since that time. Streif alleges that over a three-year period defendant engaged in a pattern of continuing harassment designed to damage the plaintiff's business interests. Included among the actions charged were allegedly unwarranted and ill-founded letters of complaint, accusing the corporation of violations of various State and Federal statutes and regulations, sent to the Illinois Department of Transportation, the Office of the Secretary of State of Illinois, the Illinois Environmental Protection Agency, the Illinois State Police, and the United States Department of Transportation. In substance they alleged road safety violations concerning the condition of buses, improprieties in inspection and licensing of the buses, lack of conformity with air, water and noise pollution standards, and alleged abuses of licensing privileges available to plaintiff as a vehicle dealership. On at least 15 different occasions during the period involved, the parties contacted the Caseyville Police Department and the State Police Department concerning verbal confrontations and other disturbances between the neighbors. These included a report that the defendant allegedly shot Streif's dog and on another occasion threatened one of his employees with a shotgun. These accusations were denied or explained by the defendant in testimony.

Plaintiff introduced exhibits consisting of copies of various correspondence between Bovinette and the State and Federal agencies he had contacted in 1978 and 1979. The tenor of these letters can only be characterized as officious, meddlesome and contentious. Streif testified that in their wake a regular stream of investigators and inspectors descended upon his business, causing an inordinate loss of man hours in addition to costs and inconveniences which otherwise would not have occurred. He indicated that the defendant had used binoculars to survey the bus yard operations searching for possible sources on which to base complaints and that virtually every allegation made to the agencies involved was without merit and wholly malicious. Bovinette countered that the complaints he had made were well-founded and worthy of official attention and that certain of them were still in the process of being investigated and would be confirmed.

The circuit court found that the majority of the complaints were without merit and that the actions in which defendant had engaged constituted a nuisance for the purpose of disrupting Streif's and Vandalia Bus Lines' business operations by means of direct and indirect coercion. It deemed these actions an interference with the plaintiff's property rights, which it characterized as purposed in harassment intended to cause economic ruination and that the communications made to governmental agencies under the facts could not be fairly construed as a constitutionally protectible exercise of the freedom of speech. The trial judge held that this abusive exercise of speech and the right to petition intended to harass the plaintiffs "under the cloak of publicizing the purported truth of police, safety or environmental violations" was violative of the public policy of the State of Illinois. In addition, the court determined that no adequate remedy at law was available because of the economic and other practical impediments to filing repeated actions against defendant in light of the repetitive nature of his activities. In accordance with these findings a preliminary injunction was granted and on March 22, 1979, pursuant to Illinois Supreme Court Rule 307(a)(1) (Ill. Rev. Stat. 1977, ch. 110A, par. 307(a)(1)), appellant filed notice of interlocutory appeal requesting that this court reverse the decision of the circuit court.

What we believe to be the unique facts of the present cause confront this court with the problems of adjusting important competing interests, interests which call into conflict the exercise of rights with which every citizen is endowed. We consider the accommodation of these interests to be a matter of the utmost gravity, especially today when so much is heard in the body politic of the restraints and exactions of administrative regulation on commercial enterprise. No doubt, as plaintiffs' testimony indicated, the full weight of an inquiring bureaucracy may unintentionally cause considerable cost, dislocation and plain interference in the conduct of daily business. Where such inquiry is set in motion through vindictiveness or irresponsibility, we concur in recognizing the serious and reprehensible injury that may result.

• 1 The plaintiffs are entitled to be free from improper and unjustified interference with their right to conduct a lawful business (see, e.g., Doremus v. Hennessy (1898), 176 Ill. 608, 614-15, 52 N.E. 924), which is a property right that equity may clearly intervene to protect. (O'Brien v. Matual (1957), 14 Ill. App.2d 173, 192, 144 N.E.2d 446; but see Montgomery Ward & Co. v. United Retail Employees (1948), 400 Ill. 38, 79 N.E.2d 46.) Seen in one perspective, the facts before us may be analogized to those cases dealing with tortious commercial disparagement, also known as injurious falsehood, in which the plaintiff alleges that the party charged had intentionally and falsely disparaged his business, or the products of his business. (Aerosonic Corp. v. Trodyne Corp. (5th Cir. 1968), 402 F.2d 223, 231; Crinkley v. Dow Jones & Co. (1978), 67 Ill. App.3d 869, 876-77, 385 N.E.2d 714; see generally Prosser, Torts § 128, at 915 ff. (4th ed. 1971); Smith, Disparagement of Property, 13 Colum. L. Rev. 13, 132-40 (1913); Note, The Law of Unfair Competition in Illinois, 1950 U. Ill. L. Forum 675, 690.) In the proper circumstances equity has recognized the need to enjoin unfair competitive practices which employ disparagement. (Black & Yates, Inc. v. Mahogany Ass'n, Inc. (3d Cir. 1941), 129 F.2d 227; Prosser, Torts § 128, at 917; see also Note, The Law of Commercial Disparagement: Business Defamation's Impotent Ally, 63 Yale L.J. 65, 96-103 (1953).) But unlike the cases and commentary cited above, the present cause is complicated by the fact that the alleged disparagement has been communicated to government rather than the public at large, nor is the defendant a competitor in a purely commercial context.

• 2 Opposing plaintiffs' commercial interest are those rights of expression which the defendant claims have been abridged by the court's order. Among these are the first amendment's guarantee of freedom of speech and its protection of the right of citizens to petition the government for a redress of grievances. It is especially the latter right which is called into question here, for the injunction's only particularized reference to offensive conduct is to future "spurious complaints" to government agencies. The concept of petition in Anglo-American jurisprudence, dating back to Magna Carta (1215), has slowly expanded through the centuries. "It is no longer confined to demands for `a redress of grievances,' in any accurate meaning of these words, but comprehends demands for an exercise by the Government of its powers in furtherance of the interest and prosperity of the petitioners, and of their views on politically contentious matters." (The Constitution of the United States of America: Analysis and Interpretation 915 (6th ed. 1964).) While the petitioning process, historically, has been of a public political nature (at various times involving the legislative machinery between king and parliament and, in the 17th and 18th centuries, a way of addressing and defining constitutional relationships and of protesting fundamental constitutional infringements) it has been, since the time of Blackstone, the right of every citizen. (G. Wills, Inventing America: Jefferson's Declaration of Independence 54-64 (1978).) We believe that the right of a citizen to lodge complaints with appropriate governmental agencies must be considered as naturally flowing from this historical concept. A citizen's right to communicate and to address his government in matters which he deems to be important cannot be lightly subjected to restraint. (See, e.g., Brown v. Glines (1980), 444 U.S. 348, 366, 62 L.Ed.2d 540, 553, 100 S.Ct. 594, 612 (Brennan, J., dissenting) (challenge to validity of Air Force Regulations requiring approval of commander before servicemen may circulate petitions on base); Edwards v. South Carolina (1963), 372 U.S. 229, 235, 9 L.Ed.2d 697, 702, 83 S.Ct. 680 (civil rights demonstration on the grounds of the South Carolina State House); Bridges v. State of California (1941), 314 U.S. 252, 86 L.Ed. 192, 62 S.Ct. 190, 201 (telegram to Secretary of Labor concerning pending labor litigation in Los Angeles County Superior Court); In re Quarles (1895), 158 U.S. 532, 535, 39 L.Ed. 1080, 15 S.Ct. 959 (right of private citizen to inform Federal official of violation of internal revenue laws); Stern v. United States Gypsum, Inc. (7th Cir. 1977), 547 F.2d 1329, 1342 cert. denied (1977), 434 U.S. 975, 54 L.Ed.2d 467, 98 S.Ct. 533 (suit by Internal Revenue agent against audited corporation concerning complaints by defendant to the Internal Revenue Service dealing with agent's performance of audit); Adams v. Carlson (E.D. Ill. 1973), 352 F. Supp. 882, 896, rev'd in parts not here relevant (7th Cir. 1973), 488 F.2d 619 (censorship of outgoing prison mail); accord, Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc. (1961), 365 U.S. 127, 138, 5 L.Ed.2d 464, 471, 81 S.Ct. 523 (Sherman Act suit against railroad companies' congressional lobbying efforts aimed at adoption and retention of laws destructive of trucking business).) We make no finding as to the validity of the first amendment issues which counsel for both parties have raised, ably researched and argued. It has been our purpose here only to note that in considering the various arguments advanced, we have taken special cognizance of the important rights concerned.

Because of our decision regarding the issue of the particularity of the language used by the court below in issuing a preliminary injunction against the defendant, we find it unnecessary to decide other questions which the parties have presented.

In respect to its decision to either grant or refuse to grant a preliminary injunction, the trial court is vested with a large measure of discretion; absent a demonstrated abuse of that discretion its determination will not be overruled. (Shorr Paper Products, Inc. v. Frary (1979), 74 Ill. App.3d 498, 502, 392 N.E.2d 1148; Shappert v. Roettger (1976), 36 Ill. App.3d 452, 456, 343 N.E.2d 695.) The issuance of such an injunction is a remedy of an extraordinary nature, which of necessity must be granted with the utmost care. One of its principal objectives is to preserve the status quo between the parties, defined as the last, actual, peaceable and uncontested status preceding the instant controversy. (Office Electronics, Inc. v. Grafic Forms, Inc. (1978), 56 Ill. App.3d 395, 398, 372 N.E.2d 125.) As a remedy it is merely provisional in character, concluding no rights, which must await determination in a final hearing on the merits. Hence, it is improper if its tendency is to change the status quo of the litigants rather than preserve it. Spunar v. Clark Oil & Refining Corp. (1977), 53 Ill. App.3d 477, 481, 368 N.E.2d 990; P.S.L. Realty Co. v. Granite Investment Co. (1976), 42 Ill. App.3d 697, 699, 356 N.E.2d 605.

• 3 The order which the circuit court entered on February 23, 1979, states that:

"IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that

1. Plaintiff is given leave to file his amended complaint.

2. A preliminary injunction is hereby ordered to issue enjoining defendant from annoying or harrassing [sic] the plaintiff in any manner as described in plaintiff's complaint and from interfering in any way with plaintiff's use and enjoyment of his property rights and his business operations; defendant is specifically enjoined from making ...


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