Appeal from the Circuit Court of Cook County; the Hon. John F.
Hechinger, Judge, presiding.
JUSTICE WILSON*FN1 DELIVERED THE OPINION OF THE COURT: *FN1 THIS OPINION WAS ADOPTED AS THE OPINION OF THE COURT PRIOR TO THE DEATH OF MR. JUSTICE WILSON.
This appeal arises from an action filed by the Attorney General of Illinois seeking injunctive relief and an accounting from the local chapter, Illinois Anti-Drug Coalition (IADC) and the national chapter, National Anti-Drug Coalition, Inc. (NADC), of an organization which solicited donations in Illinois but failed to register with the Attorney General as a charitable organization. Following a hearing on the Attorney General's motion for partial summary judgment, the trial court ruled that because defendants were charitable organizations pursuant to the provisions of the Charitable Trust Act (Ill. Rev. Stat. 1981, ch. 14, par. 51 et seq.) and the solicitation act (Ill. Rev. Stat. 1981, ch. 23, par. 5101 et seq.), they must comply with the registration and financial accounting provisions of those statutes.
The questions presented for review are: (1) whether the Charitable Trust Act and the solicitation act are unconstitutionally overbroad and vague; (2) whether the solicitation act violates the first amendment to the United States Constitution; and (3) whether the Charitable Trust Act and the solicitation act violate the first amendment as applied to defendants. We affirm.
On October 16, 1981, the Attorney General filed a 13-page complaint in the circuit court of Cook County alleging that defendants were charities pursuant to the Charitable Trust Act; that they solicited contributions in Illinois for charitable purposes but that they had failed to register with the Attorney General as charitable organizations and had failed to file financial accounting information as required by the Charitable Trust Act and the solicitation act.
The relief requested as to the corporate defendants was an accounting of the assets, receipts and disbursements, liquidation of the NADC and IADC and a temporary and permanent injunction enjoining those organizations from soliciting funds in Illinois. As to the individual defendants, the complaint asked that a surcharge be levied against them individually for money which had not been spent for charitable purposes.
In response, defendants answered that they were political, not charitable organizations and were not subject to the two Acts in question. Defendants alleged as affirmative defenses that the Acts amounted to a prior restraint on their protected first amendment activities and were unconstitutionally vague and overbroad. The Attorney General's motion to strike these defenses was granted.
Defendants then produced evidence of the political nature of their activities. Defendants Jones and Bettag stated in their depositions that the NADC and the IADC were "dedicated to the eradication of drug abuse in our society" and that to achieve this purpose defendants published War on Drugs Magazine of the National Anti-Drug Coalition. Defendants also solicited door-to-door, public and telephone contributions, and engaged in educational activities to alert the public as to the consequences of drug use. They also actively campaigned against public officials who favored the decriminalization of drugs. During these solicitations defendants sought subscriptions to War on Drugs.
The Attorney General then filed a motion for partial summary judgment and subsequently filed a motion to strike defendants' amended affirmative defenses which were similar to their original defenses. Following a hearing on the summary judgment motion, the trial court found that defendants were charitable organizations within the meaning of the Charitable Trust Act and solicitation act and entered an order which: (1) granted the Attorney General's motion for partial summary judgment; (2) required defendants to register under the Charitable Trust Act and the solicitation act, and (3) required that defendants provide the Attorney General with a full accounting of their assets and monies received during the time which they were not registered as a charitable organization in Illinois. The court also issued a preliminary injunction enjoining defendants from soliciting in Illinois "until further order of the court."
The record shows that in granting the Attorney General's motion for partial summary judgment, the trial court reasoned that defendants were not "strictly political organizations" because their stated goal was to educate the public and because the NADC had registered in New York as a charitable organization. Further, the court determined, the NADC had stated on a New York State registration certificate that its purpose was for scientific, education and charitable purposes.
Defendants then responded that a 1981 amendment to their original registration document had deleted "any aspect of charitable purpose from the education process." Unpersuaded by this disclosure, the court reasoned that the deletion would not change the purpose of defendants' organization in any appreciable way and that the amendment had been filed shortly after the pending matter was initiated in Illinois.
Addressing the charter filed by defendant IADC, the court pointed out that that document stated that the purpose of the IADC was to educate "the public and elected officials on the dangers of decriminalization and the reduction of drug penalties," along with other goals. The court then focused on defendants' nonprofit character and pointed out that charitable, educational, labor and political groups can fall within the category of nonprofit organizations. The court concluded that summary judgment was appropriate in this case because there was no genuine issue of material fact that defendants had a political as well as an education purpose and therefore qualified as charitable organizations under the statutes in question.
The court added that its order was "an interlocutory one in the nature of an injunction so it is appealable on an interlocutory basis." This appeal followed.
We initially note that the three issues defendants present for our consideration primarily address the alleged unconstitutionality of the Charitable Trust Act and the solicitation act. Our concern, however, is that although these issues were originally presented as affirmative defenses, they were stricken by court order, presented again in defendants' amended answers but were not argued before the trial court at the hearing on the Attorney General's motion for partial summary judgment, which motion was granted. Instead, the record of those proceedings reveals that the only question presented to the trial court was whether defendants were charitable ...