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Scott v. Ass'n For Childbirth At Home





Appeal from the Appellate Court for the Fourth District; heard in that court on appeal from the Circuit Court of Sangamon County, the Hon. Simon L. Friedman, Judge, presiding.


Rehearing denied January 29, 1982.

This appeal concerns the investigative powers of the Attorney General under the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1977, ch. 121 1/2, par. 261 et seq.) (the Act). On October 10, 1978, the Attorney General initiated an investigation of the Association for Childbirth at Home, International (the Association), by issuing to the Association, pursuant to section 3 of the Act, a requirement to file a verified statement responding to specific inquiries within 10 days of service. The requirement included a demand for copies of certain records. On the same date an administrative subpoena was issued, pursuant to section 4 of the Act, requiring the Association to appear and testify concerning its business transactions with Illinois consumers, specifically its series of childbirth classes conducted in Illinois since 1976. (The subpoena also required the production of the same documents specified in the requirement.) Following the Association's failure to respond to the requirement and subpoena, the Attorney General, on October 25, 1978, brought separate suits, pursuant to section 6 of the Act, in the circuit court of Sangamon County against the Association and its Midwest Regional Coordinator, Cathryn S. Feral. The complaints sought orders to compel the defendants to comply with the requirement and subpoena and also, pending compliance, to enjoin defendants from conducting any business or advertising in Illinois. On defendants' motion, the suits were consolidated.

On March 24, 1980, the circuit court granted defendants' motion to dismiss the complaints for failure to state a cause of action. The court found that the subpoena and requirement were deficient because they had been signed by an assistant Attorney General rather than by the Attorney General personally, and the Act contained no specific delegation to the assistant Attorney General of the Attorney General's powers. The plaintiff appealed.

On June 20, 1980, the Appellate Court for the Fourth District affirmed the circuit court's dismissal of the complaints. (85 Ill. App.3d 311.) The appellate court, however, explicitly rejecting the circuit court's reasoning, based its decision on its holding that part of section 2 of the Act (Ill. Rev. Stat. 1977, ch. 121 1/2, par. 262), which prohibits unfair acts and practices in the conduct of trade or commerce, was unconstitutionally vague. We granted the Attorney General's petition for leave to appeal.

The Association contends, as a threshold issue, that the Act does not apply to it. The Association is a California corporation engaged in educating and training parents in the area of childbirth, and in training teachers in childbirth education, specifically oriented toward childbirth at home. The Association argues that the sale of educational services is not "trade or commerce" within the meaning of the Act. We find this argument to be without merit. Section 2 prohibits unfair and deceptive practices "in the conduct of any trade or commerce." (Emphasis added.) (Ill. Rev. Stat. 1977, ch. 121 1/2, par. 262.) Section 1(f) defines "trade or commerce" as "the advertising, offering for sale, sale, or distribution of any services and any property, tangible or intangible, real, personal or mixed, and any other article, commodity, or thing of value wherever situated, and shall include any trade or commerce directly or indirectly affecting the people of this State." (Ill. Rev. Stat. 1977, ch. 121 1/2, par. 261.) This broad language evidences an intent that the Act have correspondingly broad applicability. We find no indication in the Act's language and purpose of a legislative intent to exclude the advertising and sale of educational and training services from its coverage. We note that section 10b (Ill. Rev. Stat. 1977, ch. 121 1/2, par. 270b), while it excludes transactions by a number of entities, fails to exclude transactions by educational institutions. Moreover, it is clear that purchasers of educational services may be as much in need of protection against unfair or deceptive practices in their advertising and sale as are purchasers of any other service. See, e.g., State ex rel. Douglas v. Ledwith (1979), 204 Neb. 6, 281 N.W.2d 729 (deceptive practices by operator of professional modeling school properly enjoined), and cases cited in Annot., Practices Forbidden by State Deceptive Trade Practice and Consumer Protection Acts, 89 A.L.R.3d 449, 534-35 (1979).

The Association cites our decision in Steinberg v. Chicago Medical School (1977), 69 Ill.2d 320, for the proposition that the Act does not apply to educational institutions. In Steinberg we held that a rejected applicant to the medical school had no cause of action under the Act. (69 Ill.2d 320, 328.) However, the issue before the court there was the right of a private person to sue under the Act, not the right of the Attorney General to investigate or the scope of the Act's regulation. The court held that the Act did not provide a remedy for persons in Steinberg's position, because he, as an applicant, was not a "consumer" — that is, he was not a purchaser of educational services. We do not believe that Steinberg can be read as holding either that educational institutions are exempt from the Act or that students are not entitled to sue for violations.

We now consider the issue on which the decision of the appellate court turned: whether section 2 of the Act is void for vagueness. Due process, of course, requires that statutory language give fair notice of what conduct is prohibited. A statute is unconstitutionally vague when its terms are so indefinite that "persons of common intelligence must necessarily guess at its meaning and differ as to its application." (Polyvend, Inc. v. Puckorius (1979), 77 Ill.2d 287, 300.) The Association contends, however, that the Act is subject to a stricter standard, first, because it affects the exercise of rights protected by the first and fourteenth amendments to the Federal Constitution and, second, because it is a penal statute. Citing cases in which the United States Supreme Court invalidated statutes on the ground of vagueness, the Association argues that where a statute is capable of being applied to conduct protected by the first amendment, the due process clause of the fourteenth amendment "demands a greater degree of specificity than in other contexts." Smith v. Goguen (1974), 415 U.S. 566, 573, 39 L.Ed.2d 605, 612, 94 S.Ct. 1242, 1247.

What are the activities that the Association claims require us to hold the Act to this stricter standard, and how does the Act affect them? The Association's childbirth-training activity, it asserts, is "intimately related" to the exercise by parents of constitutionally protected rights of privacy and freedom of personal choice in matters relating to the decision to have children, as well as to their rearing and nurture. The Consumer Fraud and Deceptive Business Practices Act is aimed at regulation, not of fundamental rights, but of unfair, fraudulent and deceptive business practices. Even assuming that prospective parents do have a constitutionally protected right to learn about or to practice home childbirth, the Act affects it only incidentally, if at all, and we do not believe it impermissibly encroaches on a constitutionally protected area. *fn1

We reject the Association's argument that the Act must be held to a stricter standard of definiteness because it is capable of reaching constitutionally protected speech. In recent years it has been recognized that even "purely commercial" speech is entitled to a limited degree of first amendment protection. (Bigelow v. Virginia (1975), 421 U.S. 809, 44 L.Ed.2d 600, 95 S.Ct. 2222; Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. (1976), 425 U.S. 748, 48 L.Ed.2d 346, 96 S.Ct. 1817.) However, the Supreme Court has repeatedly emphasized that the first amendment is not a bar to State regulation prohibiting false, misleading or deceptive commercial speech. (Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. (1976), 425 U.S. 748, 771, 48 L.Ed.2d 346, 364, 96 S.Ct. 1817, 1830; Bates v. State Bar of Arizona (1977), 433 U.S. 350, 383, 53 L.Ed.2d 810, 835, 97 S.Ct. 2691, 2708.) "By definition, commercial speech is linked inextricably to commercial activity: while the First Amendment affords such speech `a limited measure of protection,' it is also true that `the State does not lose its power to regulate commercial activity deemed harmful to the public whenever speech is a component of that activity.'" (Friedman v. Rogers (1979), 440 U.S. 1, 10-11 n. 9, 59 L.Ed.2d 100, 110 n. 9, 99 S.Ct. 887, 894 n. 9, quoting Ohralik v. Ohio State Bar Association (1978), 436 U.S. 447, 456, 56 L.Ed.2d 444, 453, 98 S.Ct. 1912, 1918.) Thus the investigation and regulation of unfair or deceptive business practices under the Act does not, because it cannot, impinge upon constitutionally protected speech. Since the Act prohibits only such speech as amounts to a fraudulent or deceptive practice, i.e., false or misleading advertising, it can affect only speech that is by definition outside the ambit of first amendment protection, and within the scope of permissible State regulation. The Association's right to impart truthful and accurate information concerning its services was not threatened by the Attorney General's investigation. Moreover, there is little likelihood that protected speech would be inhibited or "chilled" by the Act. As the court stated in Bates: "Since the advertiser knows his product and has a commercial interest in its dissemination, we have little worry that regulation to assure truthfulness will discourage protected speech." 433 U.S. 350, 383, 53 L.Ed.2d 810, 835, 97 S.Ct. 2691, 2709.

We find the Association's argument that the Act must be held to a strict standard of definiteness because it is penal in nature to be entirely without merit. The Act is a regulatory and remedial enactment intended to curb a variety of fraudulent abuses and to provide a remedy to individuals injured by them. Its stated purpose, set forth in its preamble, is to protect Illinois consumers, borrowers, and businessmen against fraud, unfair methods of competition, and other unfair and deceptive business practices. The Act is clearly within the class of remedial statutes which are designed to grant remedies for the protection of rights, introduce regulation conducive to the public good, or cure public evils. (82 C.J.S. Statutes § 388 (1953); see American Buyers Club v. Honecker (1977), 46 Ill. App.3d 252, 257.) The fact that a civil penalty of up to $50,000 can be imposed does not make the Act a penal statute. (See Helvering v. Mitchell (1938), 303 U.S. 391, 399-401, 82 L.Ed. 917, 921-23, 58 S.Ct. 630, 633-34; One Lot Emerald Cut Stones v. United States (1972), 409 U.S. 232, 237, 34 L.Ed.2d 438, 443, 93 S.Ct. 489, 493.) Rather, as in the case of the Environmental Protection Act, the penalty is but one part of the regulatory scheme, intended as a supplemental aid to enforcement rather than as a punitive measure. City of Monmouth v. Pollution Control Board (1974), 57 Ill.2d 482, 490.

In light of the foregoing, we conclude that whether section 2 is void for vagueness is to be determined by the inquiry whether it is sufficiently clear and definite as to give adequate notice to persons of reasonable intelligence of what conduct it proscribes. Section 2 declares to be unlawful "[u]nfair methods of competition and unfair or deceptive acts or practices, including but not limited to the use or employment of any deception, fraud, false pretense, false promise, misrepresentation or the concealment, suppression or omission of any material fact, with intent that others rely upon the concealment, suppression or omission of such material fact, or the use or employment of any practice described in Section 2 of the `Uniform Deceptive Trade Practices Act,' approved August 5, 1965, in the conduct of any trade or commerce * * *." (Ill. Rev. Stat. 1977, ch. 121 1/2, par. 262.) The section further directs that it be construed in light of the interpretations given to section 5(a) of the Federal Trade Commission Act (15 U.S.C. § 45 (a) (1976)) by the decisions of the Trade Commission and the Federal courts.

We believe that such words as "deception," "false pretense," "misrepresentation," and "fraud," while they are descriptive and generic terms, are words commonly used and understood by the general public and by businessmen. They are "sufficiently explicit to inform those who are subject to [the Act] of the conduct on their part to which it applies" (Stein v. Howlett (1972), 52 Ill.2d 570, 580), and therefore cannot be said to be unconstitutionally vague. (Stein v. Howlett ("constructive control" and "close economic association," in Governmental Ethics Act, not vague); Polyvend, Inc. v. Puckorius (1979), 77 Ill.2d 287 ("business entity" and "direction or authorization of a responsible official" in Illinois Purchasing Act commonly used and understood, and not vague).) In Chastek v. Anderson (1981), 83 Ill.2d 502, we held that the term "unprofessional conduct" as used in the dental-licensing statute was not unconstitutionally vague, noting that it was susceptible of common understanding by those to whom it applied, and that, in light of the statutory purpose, it provided fair notice to licensed professionals that acts of incompetent ...

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