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Mazzotti v. Edgar

OPINION FILED MAY 7, 1984.

DONALD M. MAZZOTTI, D/B/A NOTARY PUBLIC AGENCY, PLAINTIFF-APPELLANT,

v.

JAMES EDGAR, SECRETARY OF STATE, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Sangamon County; the Hon. Simon L. Friedman, Judge, presiding.

JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:

The principal issue presented for review is whether the following portion of section 16 of the Illinois Notary Public Act constitutes an impermissible restraint on commercial speech in violation of the first amendment (U.S. Const., amend. I):

"[No person shall] solicit any applicant renewing a Notary's Commission and offer to provide a Surety Bond more than 30 days in advance of the expiration of such Commission." (Ill. Rev. Stat. 1981, ch. 99, par. 16.)

We conclude that section 16 does not violate the first amendment.

On April 6, 1983, plaintiff, Donald M. Mazzotti, d/b/a Notary Public Agency, filed a two-count complaint in the circuit court of Sangamon County against defendant, James Edgar, Secretary of State, State of Illinois. The complaint alleged that (1) plaintiff was doing business as Notary Public Agency in Sangamon County; (2) defendant had a statutory duty (Ill. Rev. Stat. 1981, ch. 124, par. 5) to give plaintiff a list containing the names of notaries public commissioned by defendant pursuant to the Illinois Notary Public Act (INPA) (Ill. Rev. Stat. 1981, ch. 99, par. 1 et seq.); (3) since March 28, 1983, defendant had refused to perform this statutory duty; (4) plaintiff had complied with all of the conditions precedent to the performance of defendant's statutory duty; and (5) defendant's refusal to perform this statutory duty had injured plaintiff because he had been unable to "solicit certain surety bond business relating to notaries public that he [had] solicited for a long time past."

Count I requested that the trial court enter a judgment of mandamus in favor of plaintiff, commanding defendant to give plaintiff certain lists of persons commissioned by defendant as notaries public (notaries lists). Count II requested that the trial court enter a preliminary injunction directing defendant to furnish plaintiff with copies of the notaries lists.

At the conclusion of a hearing held on April 14, 1983, the trial court denied plaintiff's motion for a preliminary injunction.

In a counterclaim filed on April 26, 1983, defendant alleged that plaintiff's practice of soliciting notaries to provide surety bonds more than 30 days prior to the expiration of a notary's commission constituted a violation of section 16 of the INPA. The counterclaim requested that the trial court enter an order permanently enjoining plaintiff from issuing such solicitations more than 30 days in advance of the expiration of a notary's commission.

In his reply to defendant's counterclaim, plaintiff admitted that he solicited notaries more than 30 days prior to the expiration of their commissions, but (1) denied that this conduct violated section 16, and (2) stated that section 16 was an impermissible restraint on commercial speech.

A hearing on plaintiff's complaint for mandamus and defendant's counterclaim for a permanent injunction was held on May 6, 1983. At the outset of this hearing, the parties stipulated that defendant had stated that he would not give plaintiff unlimited access to the notaries lists and that such lists would only be made available to plaintiff 30 days prior to the expiration of a notary's commission.

In an order entered on July 25, 1983, the trial court determined that (1) defendant had no statutory duty to refuse to give notaries lists to plaintiff based upon defendant's perception that plaintiff would use the information illegally (Ill. Rev. Stat. 1981, ch. 124, par. 5); (2) plaintiff's practice of mailing solicitations more than 30 days prior to the expiration of notaries commissions constituted a violation of section 16 of the INPA; (3) section 16 is related to a substantial governmental interest, is not overbroad, and is not an unnecessary burden on commercial free speech; and (4) section 18 of the INPA provides that after a showing of a violation of section 16 the trial court has the power to issue a permanent injunction against the violation. In the order, the trial court (1) issued a writ of mandamus against defendant commanding him to give notaries lists to plaintiff, and (2) permanently enjoined plaintiff and his agents from issuing solicitations to renew commissions or to provide surety bonds more than 30 days in advance of the expiration of the commission of the notary so solicited.

Only that portion of the trial court's order which permanently enjoined plaintiff from issuing solicitations more than 30 days prior to the expiration of notaries' commissions has been appealed. Plaintiff asserts that (1) section 16 unconstitutionally restricts commercial speech, and (2) his solicitations qualify for the so-called "letterhead exemption" contained in section 16.

In a series of cases decided in the mid-1970's, the United States Supreme Court determined that commercial speech was entitled to a certain degree of first amendment protection. See 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; Bigelow v. Virginia (1975), 421 U.S. 809, 44 L.Ed.2d 600, 95 S.Ct. 2222; Pittsburgh Press Co. v. Pittsburgh Com. (1973), 413 U.S. 376, 37 L.Ed.2d 669, 93 S.Ct. 2553.

In Central Hudson Gas & Electric Corp. v. Public Service Com. (1980), 447 U.S. 557, 65 L.Ed.2d 341, 100 S.Ct. 2343, an electrical utility brought suit to challenge the constitutionality of a New York Public Service Commission regulation which completely banned promotional advertising by the utility. The commission alleged that the purpose of this ban was to further the national policy of conserving energy. The Supreme Court, in determining that ...


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