Distaola v. Department of Registration and Ed.

• Citation: 391 N.E.2d 489,29 Ill.Dec. 226,72 Ill.App.3d 977
• Decision Date: 05 June 1979
• Docket Number: No. 78-913,78-913
• Parties: , 29 Ill.Dec. 226 Dominico DISTAOLA, Plaintiff-Appellee, v. DEPARTMENT OF REGISTRATION AND EDUCATION of the State of Illinois, Algis Augustine, Chief Regulatory Officer of the Department of Registration and Education of the State of Illinois, and Thomas Lima, Agent of the Department of Registration and Education of the State of Illinois, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 489

391 N.E.2d 489

72 Ill.App.3d 977, 29 Ill.Dec. 226

Dominico DISTAOLA, Plaintiff-Appellee, v. DEPARTMENT OF REGISTRATION AND EDUCATION of the State of

Illinois, Algis Augustine, Chief Regulatory Officer of the

Department of Registration and Education of the State of

Illinois, and Thomas Lima, Agent of the Department of

Registration and Education of the State of Illinois,

Defendants-Appellants.

No. 78-913.

Appellate Court of Illinois, First District, Second Division.

June 5, 1979.

William J. Scott, Atty. Gen. of the State of Illinois, Chicago (Imelda R. Terrazino, Asst. Atty. Gen., Chicago, of counsel), for defendants-appellants.

Zemel & Shapiro, Chicago (Lester Shapiro and Albert I. Zemel, Chicago, of counsel), for plaintiff-appellee.

PERLIN, Justice:

This is an interlocutory appeal by defendants from an injunction issued by the circuit court of Cook County. (Ill.Rev.Stat.1977, ch. 110A, par. 307.) The trial court enjoined defendants from introducing into evidence at an administrative license revocation proceeding certain admissions made by plaintiff because defendants' investigatory agents did not advise plaintiff of his rights under Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, prior to their interrogation of him. The sole issue for review is whether the trial court erred in granting the injunction.

We reverse.

On March 6, 1978, plaintiff, Dominico Distaola, filed a complaint for a temporary or permanent injunction against defendants, the Department of Registration and Education (hereinafter Department), Algis Augustine, chief regulatory officer of the Department, and Thomas Lima, an agent of the Department. Plaintiff alleged that he had been a registered barber in the State of Illinois since January 2, 1974; that prior to April 1, 1977, he was interrogated by two investigators of the Department and then notified that he was to appear at an informal hearing to be held on April 1, 1977 to answer questions concerning alleged violations of the Illinois Barber Law, chapter 163/4, section 14.80(h), lack of good moral character, and section 14.80(i), the obtaining or attempting to obtain a certificate of registration by fraudulent misrepresentation; ¹ and that plaintiff appeared at the hearing and was told he could continue to practice barbering. Plaintiff alleged further that in November 1977 he was notified again that an informal hearing would be held on November 16, 1977 to investigate alleged violations of the Illinois Barber Law and that plaintiff could offer any information pertinent to the investigation; and that thereafter a complaint was filed by defendants charging plaintiff with fraudulent misrepresentation and lack of good moral character. The complaint alleged that plaintiff knowingly and intentionally obtained a certificate as registered barber by fraudulent misrepresentation in that plaintiff made false statements in his license application, submitted false documents and admitted that he had never taken the required written examination. It was further alleged that plaintiff's conduct manifested a lack of good moral character and constituted grounds for suspension or revocation of his certificate. Plaintiff was notified that a formal hearing would be held on January 23, 1978 to determine the truth of the charges set forth in the complaint and that he had a right to be represented by counsel at the hearing. The hearing was subsequently rescheduled for March 27, 1978 but was never held. The proceeding is now pending.

In his complaint for injunctive relief, plaintiff sought to enjoin the Department from using any statements made by plaintiff to the Department's agents and investigators, in particular any statements in which plaintiff admitted he did not take the written examination. Plaintiff did not state specifically when these statements were made; however, it appears that they were made during the informal, investigatory hearings. Plaintiff alleged that he was never advised of his right to have an attorney; that he was threatened by defendant, Thomas Lima, with loss of his certificate if he did not answer questions; and that defendant Lima demanded that plaintiff surrender his barber's certificate, but plaintiff refused. Plaintiff alleged that he had no adequate remedy at law because any revocation of his certificate would be the result of a violation of his constitutional rights against self-incrimination and his rights under Miranda.

On March 20, 1978, the circuit court issued an injunction and ordered that defendants were enjoined, in any hearing before the Department to suspend or revoke plaintiff's certificate, from using any statements made by plaintiff wherein he admitted that he did not take the examination for certification as a barber.

On April 4, 1978, defendants filed a motion to dismiss and vacate the injunction alleging that plaintiff had an adequate remedy under the Administrative Review Act, that plaintiff failed to exhaust his administrative remedies, and that the complaint failed to state a cause of action because the constitutional privileges found to have been violated do not apply to administrative proceedings. The court denied defendants' motion to vacate the injunction on April 28, 1978. Defendants filed this interlocutory appeal from the orders of March 20, 1978 and April 28, 1978.

Defendants contend that the trial court erred in granting the injunction because plaintiff did not establish the elements necessary for issuance of an injunction. Defendants contend that plaintiff did not establish either a legal right to Miranda warnings, irreparable injury, or lack of an adequate remedy at law. Defendants also contend that plaintiff was required to exhaust administrative remedies before pursuing an action in the circuit court. Plaintiff contends that a legal right to Miranda warnings was established and that exhaustion was not required because a constitutional right was involved.

It is well established that an injunction is an extraordinary remedy which is not granted as a matter of course but is granted only after plaintiff establishes the existence of a lawful right, irreparable harm and inadequate remedy at law. (Baugher v. Walker (4th Dist. 1977), 47 Ill.App.3d 573, 577, 5 Ill.Dec. 939, 362 N.E.2d 410; Parsons v. Walker (4th Dist. 1975), 28 Ill.App.3d 517, 521, 328 N.E.2d 920.) Before an injunction may issue, it must be shown that plaintiff seeks to protect a right that is certain and clearly ascertainable. (Potter v. School Directors of District No. 87 (4th Dist. 1974), 17 Ill.App.3d 781, 783, 309 N.E.2d 58.) Equity must not assume jurisdiction to issue an injunction where the right of the claimant is doubtful. Potter at 783, 309 N.E.2d 58.

The trial court found that plaintiff had a right to be advised of the Miranda warnings before being questioned by the Department's investigators. However, this court in People v. Myers (1st Dist. 1976), 39 Ill.App.3d 411, 415-416, 349 N.E.2d 658, Leave to appeal denied, 63 Ill.2d 561, held that Miranda warnings need not be given before interrogating a taxpayer who is not in custody, even if the investigation is oriented to potential criminal charges. The decision in Myers was based on Beckwith v. United States (1976), 425 U.S. 341, 96 S.Ct. 1612, 48 L.Ed.2d 1, in which the Supreme Court held that Miranda warnings are not constitutionally necessary except in custodial interrogation or in an interrogation in which the suspect is otherwise deprived of his freedom of action in any significant way. ² Myers was subsequently followed in People v. Hall (1st Dist. 1976), 40 Ill.App.3d 332, 352 N.E.2d 334. In Hall the court held that an identification of defendant and information given by defendant to the Illinois Department of Revenue during the Department's investigation of alleged violations of the Retailers' Occupation Tax Act were admissible in defendant's criminal trial since Miranda warnings were not required.

It is true that in Myers there was no issue of coercion, whereas in the case at bar plaintiff alleged that he was threatened by investigators. However, it has been held that compelled testimony may be admitted in civil disciplinary proceedings since they do not amount to criminal prosecutions. (In re Schwarz (1972), 51 Ill.2d 334, 282 N.E.2d 689, Cert. denied, 409 U.S. 1047, 93 S.Ct. 527, 34 L.Ed.2d 499; Douglas v. Daniels (1st Dist.1978), 64 Ill.App.3d 1022, 21 Ill.Dec. 796, 382 N.E.2d 90.) In Schwarz the court held that testimony given under a grant of immunity in a criminal prosecution was...