Scott v. Association for Childbirth at Home, Intern., 16263

• Decision Date: 20 June 1980
• Docket Number: No. 16263,16263
• Citation: 85 Ill.App.3d 311,40 Ill.Dec. 840,407 N.E.2d 71
• Parties: , 40 Ill.Dec. 840 William J. SCOTT, Attorney General, State of Illinois, Plaintiff-Appellant, v. ASSOCIATION FOR CHILDBIRTH AT HOME, INTERNATIONAL, Defendant-Appellee. William J. SCOTT, Attorney General, State of Illinois, Plaintiff-Appellant, v. Cathryn S. FERAL, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 71

407 N.E.2d 71 85 Ill.App.3d 311, 40 Ill.Dec. 840 William J. SCOTT, Attorney General, State of Illinois,
Plaintiff-Appellant,
v.
ASSOCIATION FOR CHILDBIRTH AT HOME, INTERNATIONAL,
Defendant-Appellee.
William J. SCOTT, Attorney General, State of Illinois,
Plaintiff-Appellant,
v.
Cathryn S. FERAL, Defendant-Appellee. No. 16263. Appellate Court of Illinois, Fourth District. June 20, 1980.

[85 Ill.App.3d 312]

Page 72

[40 Ill.Dec. 841] William J. Scott, Atty. Gen. of Ill., Chicago (Joseph D. Keenan, III, Asst. Atty. Gen., Chicago, of counsel), for plaintiff-appellant.

Leahy & Leahy, Springfield (Mary Lee Leahy, Andrew J. Leahy, Springfield, of counsel), for defendants-appellees.

GREEN, Justice:

On October 25, 1978, William J. Scott, Attorney General of Illinois, brought separate suits in the circuit court of Sangamon County, Illinois, against defendants, Association for Childbirth at Home, International (Association), and Cathryn S. Feral, seeking relief pursuant to section 6 of the Consumer Fraud and Deceptive Practices Act (Ill. Rev. Stat. 1979, ch. 1211/2, par. 266; hereafter referred to as the Act). The cases were later consolidated. Plaintiff appeals the March 24, 1980, order of the court dismissing the complaints in bar of action upon defendants' motion.

The procedural matters involved arise from sections 3, 4, 5, and 6 of the Act (Ill. Rev. Stat. 1979, ch. 1211/2, pars. 263, 264, 265, and 266). Their consideration in some detail is necessary to an understanding of the case.

Section 3 gives certain powers to the Attorney General when (1) it appears to him that "a person has engaged in, is engaging in, or is about to engage in any practice" unlawful under the Act; (2) he receives a written complaint from a consumer or borrower of such a violation; (3) he believes it to be in the public interest to determine if any of the foregoing situations exist. The granted powers enable the Attorney General to (a) require the person suspected to file a written report, which the Attorney General may require to be verified, giving all information the Attorney General may deem necessary; (b) "(e)xamine under oath any person in connection with the conduct of any trade or commerce; (c) (e)xamine any [85 Ill.App.3d 313] merchandise or sample thereof, record, book, document, account of paper as he may consider necessary"; and (d) pursuant to court order, impound certain items produced until completion of the proceedings in which the items are involved.

Section 4 authorizes the Attorney General to hold hearings "in aid of any investigation or inquiry" pursuant to the purpose of the Act, issuing subpoenas and conducting hearings. The section also authorizes him to make rules and regulations concerning the same, which shall have the force of law.

Section 5 provides for the manner of serving subpoenas and notices requiring filing of statements.

Section 6, upon which these proceedings were brought, provides the Attorney General with judicial relief against one who disobeys a subpoena or fails to file a required report. It permits the Attorney General to obtain (a) injunctive relief prohibiting the sale or advertisement of merchandise or the conduct of the trade or commerce involved, [40 Ill.Dec. 842]

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(b) vacation, annulment or suspension of the authority of persons in disobedience to do business, and (c) other judicial relief as may be required, all pending compliance by the person involved.

Together, the complaints alleged (1) the Association was and had been "engaged in the trade and commerce of advertising, educating and training parents in the area of childbirth and training teachers in the area of childbirth education, specifically oriented toward childbirth at home," (2) Feral was the "Midwest Regional Coordinator" for the Association, (3) the Attorney General believed it to be in the public interest to determine if the Association had or was about to violate the Act, (4) a notice to file and produce certain items had issued and been served on the Association through Feral and upon Feral individually and they had failed to timely comply, (5) the Association had also been subpoenaed to appear for examination at plaintiff's office on a day certain and had failed to comply. The complaint requested that defendants be ordered to comply and pending compliance to be enjoined from selling or advertising any merchandise in the State of Illinois and from conducting trade or commerce in State. Various documents were attached to the complaint including copies of the subpoena and the requirements to file.

The motions to dismiss contended (1) the applicable provisions of the Act, both on their face and as applied, violated various provisions of the United States Constitution and the Illinois Constitution of 1970, (2) the complaints set forth no facts...