text:
    (No. 54090.
    THE CITY OF CHICAGO, Appellant, v. FESTIVAL THEATRE CORPORATION et al., Appellees.

      Opinion filed June 18, 1982.

      Stanley Garber and William R. Quinlan, Corporation Counsel, of Chicago (Robert R. Retke, Richard F. Friedman and Jerome A. Siegan, Assistant Corporation Counsel, of counsel), for appellant.
    Patrick A. Tuite, of Patrick A. Tuite, Ltd., of Chicago, for appellees.
   JUSTICE WARD

delivered the opinion of the court:

This appeal concerns the propriety of a permanent injunction issued by the circuit court of Cook County, by which the court restrained the Festival Theatre Corporation and the theater manager, Paul Liang, from presenting obscene live exhibitions. The appellate court held that issuance of the injunction violated the first amendment to the United States Constitution (U.S. Const., amend. I). (88 Ill. App. 3d 216.) We granted the city of Chicago, which had sought the injunction, leave to appeal (73 Ill. 2d R. 315(a)).

The plaintiff, the city of Chicago, filed a complaint for injunctive relief on August 29, 1978. The complaint alleged that the defendants, Festival Theatre Corporation and Liang, on three occasions presented exhibitions that consisted of live sex acts in violation of the criminal obscenity statute (Ill. Rev. Stat. 1977, ch. 38, par. 11—20). The city alleged that the performances were harmful to its citizens, and that it had no adequate remedy at law. Also, the city alleged that the defendants were violating a municipal ordinance because they had not secured a public amusement license. The complaint petitioned for the issuance of an injunction against such performances at the theater.

The court conducted a hearing on September 25, 1978, at which several Chicago police officers testified to the following. On July 26, 1978, and August 14, 1978, plainclothes police officers paid fees of five dollars to enter the theater. On both occasions, there was a live stage show involving two women. In the July 26 show, the women danced and completely disrobed to music. On both occasions, though the shows differed in some respects, the women kissed and fondled each other, and engaged in deviate sexual acts during the performances. After the performances, the women were arrested for obscenity (Ill. Rev. Stat. 1977, ch. 38, par. 11—20(a)(4)) and public indecency (Ill. Rev. Stat. 1977, ch. 38, par. 11—9(a)(2)). The manager, Liang, was arrested for obscenity (Ill. Rev. Stat. 1977, ch. 38, par. 11 — 20(a)(2)) and for city ordinance violations.

On August 23, 1978, the stage show, which was witnessed by police officers, involved only one of the women and a man. The woman told the audience that she had to change her “act” because of previous arrests. Again she danced and removed her clothes. She was soon joined on stage by the man, who removed his clothes, and they engaged in actual or simulated intercourse and deviate acts. Both were arrested for obscenity and public indecency.

Criminal proceedings were begun after the arrests, but at the time of the hearing no dispositions had been made of them. The record does not indicate the eventual dispositions.

The court found that the performances were a public nuisance. The injunction stated:

“THE COURT DOTH FIND: That the live stage performance, as performed at the Festival Theater, 3912 N. Sheridan Road, Chicago, Illinois, is a public nuisance.
THEREFORE, IT IS HEREBY ORDERED that defendants, Festival Theater Corporation and Paul N. Liang, their employees, agents and representatives, are hereby permanently enjoined and restrained, until further order of Court, from performing or permitting the performance of lewd acts of live persons, in violation of applicable City Ordinances and State Statutes, at 3912 N. Sheridan Road, Chicago, Illinois, for the entertainment, sexual arousal, or viewing by and of members of the public; including, but not limited to, the following of such acts:
1. Actual or simulated stimulation, fondling and/ or massage of the genitals of one person by another person or by any part of the body of another person or by any part of the body of the first person himself or herself.
2. Actual or simulated stimulation, fondling and/ or massage of the breasts and/or buttocks of one person by another person or by any part of the body of another person or by any part of the body of the first person himself or herself.
3. Conduct amounting to a lewd exhibition of the genitals.
4. Actual or simulated acts of sexual intercourse where the genitals and/or buttocks of one or more of the performers are exposed.”

The appellate court considered that the city of Chicago had demonstrated that it had no adequate legal remedy. Further, the court recognized that the concept of common law nuisance enabled a court to exercise its equity powers to abate a use of premises harmful to public morals. The court held, however, that the concept of a common law public nuisance was so vague that use of it against obscenity “transgresses the constitutional boundaries *** which provide that conduct regulated as obscenity must be specifically defined.” 88 Ill. App. 3d 216, 230.

Though it did not appear to have been an issue, the appellate court stated, too, that the proceeding could not have been brought as a statutory nuisance action under “An Act regarding places used for purposes of lewdness, assignation, or prostitution ***” (Ill. Rev. Stat. 1977, ch. 1001/2, par. 1 et seq.) (The Public Nuisance Act). Relying upon decisions that it said held that the Act was aimed against prostitution and not obscenity, the court concluded that the conduct here was not covered by the terms “lewdness, assignation, or prostitution.” 88 Ill. App. 3d 216, 222.

First, as to whether the Public Nuisance Act could have been invoked under these circumstances, we do not express an opinion. The city points out it did not attempt to bring this action under the Act. The appellate court, however, did briefly discuss the question. It relied upon three decisions, People v. Movies, Inc. (1971), 49 Ill. 2d 85 (a dictum), People ex rel. Difanis v. Futia (1978), 56 Ill. App. 3d 920, and People v. Goldman (1972), 7 Ill. App. 3d 253, which stated that the Act was aimed at prostitution, not at obscenity. The court said that because the legislature did not amend the statute following those decisions, that construction of the Act presumptively reflected the legislature’s intent. Therefore, the Act was unavailable here. 88 Ill. App. 3d 216, 222.

While we need not and do not decide the question, because of the appellate court’s stated conclusion it is appropriate to point out that the unavailability of the Act here is not as clear cut an issue as the appellate court’s opinion indicates. In none of the decisions cited was the activity to be enjoined live sex acts. Movies concerned motion pictures; Futia involved a “peep show” and nude photo studio; and Goldman concerned an adult bookshop.

Courts have held that statutes providing for the abatement of places where “lewdness, assignation or prostitution” are conducted are not applicable to the exhibition of obscene films or books. (E.g., People ex rel. Busch v. Projection Room Theatre (1976), 17 Cal. 3d 42, 60-61, 550 P.2d 600, 611-12, 130 Cal. Rptr. 328, 339-40, cert. denied (1976), 429 U.S. 922, 50 L. Ed. 2d 289, 97 S. Ct. 320; State ex rel. Murphy v. Morley (1957), 63 N.M. 267, 317 P.2d 317.) Some of those holdings, however, have been based at least partially on the ground that the statutory language was directed against conduct rather than portrayal. (See State ex rel. Wayne County Prosecutor v. Diversified Theatrical Corp. (1976), 396 Mich. 244, 246, 240 N.W.2d 460, 461 (statute “was intended to apply to houses of prostitution and not motion picture theaters where sexual acts are not committed but are portrayed on the screen”); Commonwealth v. MacDonald (1975), 464 Pa. 435, 460-61, 347 A.2d 290, 304, cert. denied (1976), 429 U.S. 816, 50 L. Ed. 2d 75, 97 S. Ct. 57 (statute concerns only buildings used for “illicit sexual conduct,” not obscene films).) In California, where a statute with such language has been held inapplicable to films, courts have held that the statute could be used against a place offering live obscene performances (People ex rel. Busch v. Projection Room Theatre (1976), 17 Cal. 3d 42, 60-61, 550 P.2d 600, 611-12, 130 Cal. Rptr. 328, 339-40, cert. denied (1976), 429 U.S. 922, 50 L. Ed. 2d 289, 97 S. Ct. 320; People ex rel. Hicks v. Sarong Gals (1972), 27 Cal. App. 3d 46, 103 Cal. Rptr. 414) or a place showing obscene films where lewd sexual conduct by the audience is condoned and encouraged (People v. Mitchell (1976), 64 Cal. App. 3d 336, 134 Cal. Rptr. 358).

Thus, whether a distinction may be drawn, as the appellate court sought to do, between the abatement of obscenity and the abatement of a house of prostitution may be questioned where the obscenity consisted of live sex acts performed before a paying audience. This is true especially because this court has not restricted the meaning of “prostitution” under nuisance laws to the definition of “prostitution” in the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 11—14). City of Chicago v. Cecola (1979), 75 Ill. 2d 423 (obscene massage, though not prostitution under criminal law, is prostitution for purposes of nuisance laws).

We do hold, however, that obscene stage shows may be enjoined as common law public nuisances.

The Public Nuisance Act does not displace common law actions to abate public nuisances. (City of Chicago v. Cecola (1979), 75 Ill. 2d 423, 427.) Rather, equitable jurisdiction to abate public nuisances is said to be of “ancient origin,” and it exists even where not conferred by statute, where the offender is amenable to the criminal law, and where no property rights are involved. (Stead v. Fortner (1912), 255 Ill. 468, 475-79; Village of Bensenville v. Botu, Inc. (1976), 39 Ill. App. 3d 634, 636.) Too, in a common law action, the extent of the concept of public nuisance is not limited to those activities the legislature has declared public nuisances. See People ex rel. Dyer v. Clark (1915), 268 Ill. 156, 162 (statute designating items as public nuisances was declaratory of common law and did not restrict class of public nuisances to items enumerated); City of Chicago v. Geraci (1975), 30 Ill. App. 3d 699, 702 (legislature need not define public nuisances, as public nuisance is a separate civil action under common law unrelated to legislative enactments).

A theater presenting obscene performances fits within the common law concept of public nuisance. This court in City of Chicago v. Shaynin (1913), 258 Ill. 69, 72, stated:

“Public nuisances, strictly speaking, are such as result from the violation of public rights. Of this class are those intangible injuries that result from the immoral, indecent and unlawful acts of parties that become nuisances by reason of their deleterious influence upon the morals or well being of society. [Citation.] To this class belong those nuisances the existence of which only needs to be proved in any locality, whether near or far removed from cities, towns or human habitations. ‘A public exhibition of any kind that tends to the corruption of morals, to a disturbance of the peace or of the general good order and welfare of society is a public nuisance. Under this head are included *** any and all exhibitions the natural tendency of which is to pander to vicious tastes and to draw together the vicious and disorderly members of society.’ [1 H. Wood, The Law of Nuisances sec. 68 (3d ed. 1893)] [citations].”

In Stevens v. Morenous (1912), 169 Ill. App. 282, 283, the court reviewed a decree enjoining a stage show alleged to be “of a comic, frivolous and unsavory character ***.” While the court concluded that it was error to have enjoined the show, which did not appear to be obscene or immoral, the court recognized that theaters do become common law nuisances “when they are used for the exhibition of immoral and vicious plays ***.” (169 Ill. App. 282, 285.) See 1 H. Wood, Nuisances sec. 52 (3d ed. 1893) (theaters become nuisances of the worst kind when they are used for the exhibition “of low and vicious plays that pander to the base passions of men”); see also General Corp. v. State ex. rel. Sweeton (1975), 294 Ala. 657, 663, 320 So. 2d 668, 672-73, cert. denied, (1976), 425 U.S. 904, 47 L. Ed. 2d 753, 96 S. Ct. 1494 (traditionally, continuing activity against public morals or decency has been considered a public nuisance).

Similarly, because brothels tend to attract lewd persons, disturb the peace and contribute to immorality, they have long been held to be public nuisances per se at common law. (People ex rel. Dyer v. Clark (1915), 268 Ill. 156, 161-62; 1 H. Wood, Nuisances sec. 29 (3d ed. 1893).) Due to the similarity between the activities of a brothel and those of a live obscene performance, the court in Commissioner v. Sidne Enterprises, Inc. (1977), 90 Misc. 2d 386, 394 N.Y.S.2d 777, held that an establishment offering obscene live nude entertainment was a common law public nuisance.

The appellate court here held, as we have noted, that the concept of public nuisance included obscene stage shows. The defendant does not challenge that holding. The court considered nevertheless that such shows could not constitutionally be enjoined as common law nuisances. The court pointed out that theatrical performances involving nudity do enjoy first amendment protection. (See Doran v. Salem Inn, Inc. (1975), 422 U.S. 922, 45 L. Ed. 2d 648, 95 S. Ct. 2561; Southeastern Promotions, Ltd. v. Conrad (1975), 420 U.S. 546, 43 L. Ed. 2d 448, 95 S. Ct. 1239.) The court recognized that obscenity is not expression protected by the first amendment and, therefore, may be regulated. (88 Ill. App. 3d 216, 220, citing Miller v. California (1973), 413 U.S. 15, 18, 37 L. Ed. 2d 419, 427, 93 S. Ct. 2607, 2612.) Too, the court acknowledged that civil injunction procedures have been held to be permissible means for regulating obscenity. 88 Ill. App. 3d 216, 221, citing Paris Adult Theatre I v. Slaton (1973), 413 U.S. 49, 37 L. Ed. 2d 446, 93 S. Ct. 2628; Kingsley Books, Inc. v. Brown (1957), 354 U.S. 436, 1 L. Ed. 2d 1469, 77 S. Ct. 1325.

The constitutional infirmity in the injunctive procedure, the court concluded, lies in the vagueness of the concept of common law nuisance. State laws regulating obscenity must specifically define the proscribed activity. The Supreme Court in Miller v. California (1973), 413 U.S. 15, 23-25, 37 L. Ed. 2d 419, 430-31, 93 S. Ct. 2607, 2614-15, stated:

“State statutes designed to regulate obscene materials must be carefully limited. [Citation.] As a result, we now confine the permissible scope of such regulation to works which depict or describe sexual conduct. That conduct must be specifically defined by the applicable state law, as written or authoritatively construed. A state offense must also be limited to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value.
The basic guidelines for the trier of fact must be: (a) whether ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest [citation]; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. *** If a state law that regulates obscene material is thus limited, as written or construed, the First Amendment values applicable to the States through the Fourteenth Amendment are adequately protected by the ultimate power of appellate courts to conduct an independent review of constitutional claims when necessary.”

The appellate court considered that the concept of public nuisance at common law was too vague to satisfy the requirements stated in Miller 88 Ill. App. 3d 216, 230.

The concept of common law public nuisance does elude precise definition. One commentator has stated, “The tort of nuisance has been said to defy definition except to the limited extent that it may be negatively defined through being distinguished from other tort actions.” (Reynolds, Public Nuisance: A Crime in Tort Law, 31 Okla. L. Rev. 318, 318 (1978), citing Winfield, Nuisance as a Tort, 4 Camb. L.J. 189 (1931).) Certainly the statement in Stevens v. Morenous that theaters presenting “immoral or vicious” plays are nuisances offers less than precise guidance as to what plays fit that category.

The vagueness difficulty, however, may be corrected by restricting the reach of the common law nuisance action to the definition of obscenity in our criminal obscenity statute (Ill. Rev. Stat. 1977, ch. 38, par. 11—20(b)). The Supreme Court in Miller, in the portion we have quoted above, said that a State law regulating obscenity that is not framed according to the Miller definition of obscenity may still be constitutional if it is construed as being limited to the Miller guidelines. Courts have resolved problems of vagueness in public nuisance statutes by such a construction. (E.g., People ex rel. Busch v. Projection Room Theatre (1976), 17 Cal. 3d 42, 56, 500 P.2d 600, 608, 130 Cal. Rptr. 328, 336, cert. denied (1976), 429 U.S. 922, 50 L. Ed. 2d 289, 97 S. Ct. 320 (vagueness in public nuisance definition of “indecent, or offensive to the senses” cured by construction in accordance with Miller obscenity standard); General Corp. v. State ex rel. Sweeton (1975), 294 Ala. 657, 663-64, 320 So. 2d 668, 673-74, cert. denied (1976), 425 U.S. 904, 47 L. Ed. 2d 753, 96 S. Ct. 1494 (vagueness in statute that, as declaratory of the common law, made “places where lewdness” is conducted public nuisances was overcome by judicial construction in accordance with the constitutional test of obscenity).) Similarly, this court has upheld the constitutionality of our criminal obscenity statute by construing it to be limited to the Miller standard. (See People v. Ridens (1974), 59 Ill. 2d 362, cert. denied (1975), 421 U.S. 993, 44 L. Ed. 2d 483, 95 S. Ct. 2000; People v. Gould (1975), 60 Ill. 2d 159.) Accordingly, in determining whether a performance is a common law public nuisance because of offense to public morality, courts are to employ the definition of obscenity in our criminal obscenity statute (Ill. Rev. Stat. 1977, ch. 38, par. 11—20), as judicially construed, which has been recognized as satisfying constitutional requirements (Ward v. Illinois (1977), 431 U.S. 767, 52 L. Ed. 2d 738, 97 S. Ct. 2085). Here, the trial court’s decision to issue the injunction was based on its finding that the performances were obscene.

The appellate court erroneously rejected the suggestion that it overcome the problem of vagueness in the concept of common law nuisance by limiting the scope of the action to the definition of obscenity. It said that to do so would usurp the legislature’s prerogative to establish policy. The General Assembly, however, has already clearly expressed itself in the area of obscenity. Its determination that obscenity is contrary to public policy and offensive and dangerous to society is reflected in the enactment of the statute making obscenity a crime. That statute in part provides:

“(a) Elements of the Offense.
A person commits obscenity when, with knowledge of the nature or content thereof, or recklessly failing to exercise reasonable inspection which would have disclosed the nature or content thereof, he:
(2) Presents or directs an obscene play, dance or other performance or participates directly in that portion thereof which makes it obscene; or
(3) Publishes, exhibits or otherwise makes available anything obscene; or
(4) Performs an obscene act or otherwise presents an obscene exhibition of his body for gain; or
(b) Obscene Defined.
A thing is obscene if, considered as a whole, its predominant appeal is to prurient interest, that is, a shameful or morbid interest in nudity, sex or excretion, and if it goes substantially beyond customary limits of candor in description or representation of such matters. A thing is obscene even though the obscenity is latent, as in the case of undeveloped photographs.
(d) Sentence.
Obscenity is a Class A misdemeanor. A second or subsequent offense is a Class 4 felony.” Ill Rev. Stat. 1977, ch. 38, par. 11—20.

That conduct may be subject to the sanctions of the criminal law does not, of course, foreclose a common law nuisance abatement action against the conduct. The General Assembly has also provided in section 1 — 4 of the Criminal Code of 1961:

“This Code does not bar, suspend, or otherwise affect any right or liability to damages, penalty, forfeiture, or other remedy authorized by law to be recovered or enforced in a civil action, for any conduct which this Code makes punishable; and the civil injury is not merged in the offense.” Ill. Rev. Stat. 1977, ch. 38, par. 1—4.

Moreover, by recognizing that an action may be brought to enjoin as public nuisances live obscene exhibitions, as were involved here, judges are not given liberty to impose their individual tastes or sensitivities upon the public. In determining whether the conduct should be enjoined as obscene, the court has to be guided by “contemporary community standards.”

We cannot accept the appellate court’s observation that the procedures of a civil nuisance action make it unsuitable in obscenity cases. (88 Ill. App. 3d 216, 231-32.) Specifically, the court noted the absence of a right to a jury trial and suggested that the civil standard of proof might not be appropriate. The Supreme Court has approved the use of adversary civil injunctive proceedings against obscenity. (Paris Adult Theatre I v. Slaton (1973), 413 U.S. 49, 55, 37 L. Ed. 2d 446, 455, 93 S. Ct. 2628, 2634.) It has not held that jury trials are necessary in civil obscenity proceedings. (See Alexander v. Virginia (1973), 413 U.S. 836, 37 L. Ed. 2d 993, 93 S. Ct. 2803; Kingsley Books, Inc. v. Brown (1957), 354 U.S. 436, 443-44, 1 L. Ed. 2d 1469, 1475-76, 77 S. Ct. 1325, 1328-30.) We recognize that a jury may be useful in determining whether a performance in a given case is obscene according to contemporary community standards. But we recognize too that in not every case could reasonable minds differ as to whether a performance was obscene. Too, under our civil procedure the court is authorized to call an advisory jury to assist it where the court deems it necessary. Ill. Rev. Stat. 1977, ch. 110, par. 63.

As to the propriety of the civil standard of proof, we would observe that the Supreme Court has recently held that proof beyond a reasonable doubt is not required in a civil public nuisance abatement action involving obscenity. Cooper v. Mitchell Brothers’ Santa Ana Theater (1981), 454 U.S. 90, 70 L. Ed. 2d 262, 102 S. Ct. 172.

The appellate court held also that the injunction is a prohibited prior restraint on expression. (88 Ill. App. 3d 216, 232-35.) The court said that the circuit court’s order listed prohibited activities, such as simulated intercourse. Therefore, the defendant is enjoined from presenting performances that involve the proscribed acts in any form or context. Because arguably one or more of the proscribed acts could be performed in a show that is not obscene, the appellate court concluded that this injunction covers even protected expression.

To support its view that this restraint is improper, the court cited Vance v. Universal Amusement Co. (1980), 445 U.S. 308, 63 L. Ed. 2d 413, 100 S. Ct. 1156. There, the Supreme Court held that an injunction under a Texas public nuisance abatement statute would operate as an improper prior restraint. Under the statute a court could enjoin the exhibition of films at theaters that habitually had been used for the showing of obscene movies. The court said:

“As the District Court and the Court of Appeals construed Art. 4667(a), when coupled with the Texas Rules of Civil Procedure, it authorizes prior restraints of indefinite duration on the exhibition of motion pictures that have not been finally adjudicated to be obscene. Presumably, an exhibitor would be required to obey such an order pending review of its merits and would be subject to contempt proceedings even if the film is ultimately found to be nonobscene. Such prior restraints would be more onerous and more objectionable than the threat of criminal sanctions after a film has been exhibited, since nonobscenity would be a defense to any criminal prosecution.” 445 U.S. 308, 316, 63 L. Ed. 2d 413, 420-21,100 S. Ct. 1156, 1161.

We judge that the injunction here did not present a problem of prior restraint. While the injunction does list a variety of sexual acts, it does not proscribe the performance of those acts in all contexts and unconditionally. The order says that the defendants are “permanently enjoined and restrained *** from performing or permitting the performance of lewd acts of live persons, in violation of applicable City Ordinances and State Statutes *** for the entertainment, sexual arousal, or viewing by and of members of the public; including, but not limited to, the following of such acts: ***.” (Emphasis added.) Considering the pleadings and issues presented in the circuit court, the applicable State statutes to which the court referred obviously are the obscenity provisions of the Criminal Code. The injunction does no more than order the defendants not to violate the criminal laws against obscenity at the theater. Unlike the order in Vance, the defendants here could not be held in contempt unless it were shown that they staged a performance that was obscene. In short, the order did not touch protected expression. Any effect it could have produced relating to the first amendment was no greater than that produced by the obscenity provisions of the Criminal Code.

The injunction here would operate as Mr. Justice White in his dissenting opinion in Vance visualized (mistakenly, the majority considered) the operation of the injunction issued under the Texas statute. He believed that any injunction issued under the statute would be considered to incorporate the terms of the Miller obscenity test. He stated:

“Hence an Art. 4667(a) injunction would not by its terms forbid the exhibition of any materials protected by the First Amendment and would impose no greater functional burden on First Amendment values than would an equivalent — and concededly valid — criminal statute. It simply declares to the exhibitor that the future showing of obscene motion pictures will be punishable. It is true that an Art. 4667(a) injunction is issued by a court of law while a criminal statute is imposed by a legislature. Yet this distinction seems irrelevant for First Amendment purposes.” 445 U.S. 308, 321-22, 63 L. Ed. 2d 413, 424, 100 S. Ct. 1156, 1164 (White, J., dissenting).

Justice White also saw no constitutional difficulties in the procedures for any contempt action based on an injunction. Because those procedures would include the requirement of notice to the defendant and a judicial hearing in which the burden is on the party seeking to suppress the films to show a violation of the injunction, which would include proof of the obscenity of the films exhibited, he said “such procedures would fully satisfy the requirements of our cases.” 445 U.S. 308, 323, 63 L. Ed. 2d 413, 425, 100 S. Ct. 1156, 1165 (White, J., dissenting).

Although we have found no constitutional defect in the injunction, we do consider that it was improvidently granted. A nuisance action involves two inquiries: (1) whether the activity complained of is in fact a nuisance; and, if it is, (2) whether an injunction against the activity is an appropriate remedy. We have already seen that a common law nuisance action may be brought against a theater operator who is conducting live obscene performances. Still, an injunction should not, without more, be issued against the operators of such a theater, as seemingly was done here.

It is a principle of equity that an injunction will not issue except where there is no adequate remedy at law. (La Salle National Bank v. County of Cook (1974), 57 Ill. 2d 318, 322; People ex rel. Fitnam v. City of Galesburg (1868), 48 Ill. 485, 488; Town of Manteno v. Surprenant (1918), 210 Ill. App. 438, 444-46 (though court may prevent or remove a public nuisance through its equity powers, it will not do so where there is an adequate remedy at law).) Here, the activity complained of was the presenting of live obscene exhibitions, and those conducting such exhibitions are amenable to prosecution under the criminal obscenity laws. We deem that issuance of the injunction was error because it was not shown that criminal prosecution fails to afford an adequate remedy for the harm caused.

As we have previously noted, the fact that the activity complained of in a public nuisance action may give rise to a criminal prosecution does not foreclose the bringing of the action for equitable relief. The criminality of the conduct is a relevant factor, however, in determining whether an injunction should issue. (Reynolds, Public Nuisance: A Crime in Tort Law, 31 Okla. L. Rev. 318, 327 (1978); D. Dobbs, Remedies 115-18 (1973); e.g., People ex rel. Bennett v. Laman (1938), 277 N.Y. 368, 374, 14 N.E.2d 439, 441; Commissioner v. Sidne Enterprises (1977), 90 Misc. 2d 386, 394 N.Y.S.2d 777.) The purpose of giving equity jurisdiction in public nuisance actions is to offer remedies more complete than those available at law. (People ex rel. Kerner v. Huls (1934), 355 Ill. 412, 416; People ex rel. Dyer v. Clark (1915), 268 Ill. 156, 162.) To permit a public body to obtain an injunction in a public nuisance action where there is an equally effective criminal law against the conduct would give rise to strong policy objections, such as were advanced in Commonwealth v. Stratton Finance Co. (1941), 310 Mass. 469, 38 N.E.2d 640. There, the court, in decrying any general use of equity in aid of criminal statutes, stated:

“The objections to ‘criminal equity’ are that it deprives the defendant of his jury trial; that it substitutes for the definite penalties fixed by the Legislature whatever punishment for contempt a particular judge may see fit to exact; that it is often no more than an attempt to overcome by circumvention the supposed shortcomings of jurors; and that it may result, or induce the public to believe that it results, in the arbitrary exercise of power and in ‘government by injunction.’ These objections are substantial. They should cause a court to hesitate to extend the use of the injunction into the criminal field without express legislative sanction.” 310 Mass. 469, 474, 38 N.E.2d 640, 643.

For a legal remedy to be deemed adequate, “the remedy ‘must be clear, complete, and as practical and efficient to the ends of justice and its prompt administration as the equitable remedy.’ ” (Bio-Medical Laboratories, Inc. v. Trainor (1977), 68 Ill. 2d 540, 549, quoting K.F.K. Corp. v. American Continental Homes, Inc. (1975), 31 Ill. App. 3d 1017, 1021.) This court has consistently recognized that the criminal law is not such a remedy where it is shown ineffective to prevent the continuance of the nuisance. (City of Chicago v. Cecola (1979), 75 Ill. 2d 423 (maximum fine of $200 insufficient to dissuade defendants from maintaining establishment offering sexual massages); Village of Spillertown v. Prewitt (1961), 21 Ill. 2d 228 (defendant, having been arrested twice, claimed before village board he would continue stripmining despite imposition of fines under ordinance); People ex rel. Kerner v. Huls (1934), 355 Ill. 412 (criminal prosecution inadequate remedy where defendant’s statements showed that he would pay statutory penalties but still not submit his cattle for tuberculin test); People ex rel. Dyer v. Clark (1915), 268 Ill. 156 (numerous criminal convictions of keeper of brothel did not deter her from continuing the activity).

It was not shown here that criminal prosecution would not lend a remedy as clear, complete, practical, and effective as the equitable remedy. The city argues and the appellate court held that there was no adequate legal remedy because the defendants presented an allegedly obscene performance on August 23, 1978, despite the two previous arrests. The appellate court found it of significance that the record does not show any dispositions of the criminal actions begun following the arrests. (88 Ill. App. 3d 216, 219-20.) These factors, though, do not persuade us that a conclusion that there was no adequate legal remedy available may be drawn.

The injunction issued was coextensive with the criminal statute, so it did not seek to affect conduct beyond the reach of the statute. There is no contention by the city of Chicago that conviction and imposition of penalties available under the criminal obscenity law, which makes the first offense a misdemeanor and a second offense a felony, would be ineffective to deter the defendants’ activities. The injunction was issued within a few months of even the first arrest at the theater and before the criminal proceedings were completed. It is not claimed that this is a case where a risk to public health would require expedited action by a court acting through its equity powers. We do not hold that an injunction action may not be hereafter brought against the defendants. We judge only that in this action it was not shown that criminal prosecution would be an inadequate remedy.

Thus, a common law nuisance action may be maintained against a theater operator presenting live exhibitions that are obscene under our criminal law of obscenity. An injunction, though, should not issue unless criminal prosecution is shown to be an inadequate remedy.

For the reasons given, the judgment of the appellate court that reversed the circuit court is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: JUSTICE GOLDENHERSH JUSTICE UNDERWOOD,

license: Public Domain

text:
    (No. 55798.

      In re JOEL SHANE CHERNOFF, Attorney, Respondent.

      Opinion filed June 18, 1982.

      UNDERWOOD and MORAN, JJ., dissenting.
    David Beckerman, of Chicago, for the Administrator of the Attorney Registration and Disciplinary Commission.
    George B. Collins, of Collins & Amos, of Chicago, for respondent.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

On July 7, 1980, the Administrator of the Attorney Registration and Disciplinary Commission filed a complaint against respondent, Joel Shane Chernoff, who was licensed to practice law in Illinois on April 21, 1970. A panel of the Hearing Board recommended that respondent be suspended from the practice of law for a period of three months. The Administrator filed exceptions to the recommendation of the Hearing Board, and the Review Board recommended that respondent be suspended for one year.

The testimony shows that on September 13, 1978, Robert and Linda Wolff entered into a contract to buy a house in Wonder Lake and paid $1,400 as earnest money. The contract provided that the price was $38,000 and was contingent upon the Wolffs obtaining an FHA loan in the amount of $36,600. On approximately October 30, 1978, the Wolffs decided that they did not want to buy the Wonder Lake property because it was too far from their places of employment. On the recommendation of a friend the Wolffs sought advice from respondent on how to terminate the contract and obtain a refund of the earnest money.

The testimony concerning their first conference with respondent is conflicting. The Wolffs testified that respondent told them that if they filed for a divorce, FHA would not approve their loan application and their earnest money would be returned to them. Linda Wolff testified that she thought this was odd, since they had been married only three months. Respondent assured them that the “divorce” proceedings would not “leave the office” except to make FHA believe they were getting a divorce. Respondent testified that the Wolffs had come to him concerning the real estate contract because it was causing them a great deal of marital disharmony. Respondent said that Linda Wolff initiated the conversation concerning divorce, and that he only confirmed the fact that filing for divorce would cause the FHA to disapprove granting a loan to the Wolffs.

The Wolffs agreed to initiate divorce proceedings. Linda Wolff entered into a retainer agreement with respondent and, at respondent’s request, signed an affidavit that the allegations in the not-yet-prepared petition for dissolution of marriage were true. It is alleged in the petition for dissolution, inter alia, that Robert Wolff was “guilty of mental cruelty”; that Linda Wolff believed that she and her child feared for their well-being because of Robert’s previous threats towards them; that she therefore prayed for a temporary injunction restraining Robert from harming Linda or her child and from dissipating marital property; that Robert had advised Linda that he would not make support payments even if a court ordered him to do so. Respondent admitted at the hearing that he had no reason to believe that Robert had made any threats against Linda or her child. Respondent asked Robert to sign a pro se appearance form to avoid the inconvenience of having him served by the sheriff. Respondent filed the petition and the pro se appearance in the circuit court of Cook County. Respondent notified the Great Lakes Mortgage Corporation, to whom the Wolffs had applied for the FHA loan, of the pending dissolution.

Contrary to respondent’s expectations, despite notice of the dissolution proceedings, the FHA loan was approved. Robert Wolff then notified respondent that he was no longer receiving overtime compensation and that his wife had quit her job. The information concerning overtime pay was false. Respondent notified the realtors representing the sellers and Great Lakes Mortgage Corporation of the alleged change in circumstances of the Wolffs. There is nothing in the record to indicate that respondent was aware that this information was false. Great Lakes apparently checked the information and found that the information concerning Robert Wolff was incorrect.

Respondent told the Wolffs that unless they could find another purchaser for the property they would lose their down payment. The Wolffs were unable to find a purchaser. Respondent told the Wolffs that he had a friend who invested in real estate and might be interested in purchasing the property. He also told them that the property would be purchased through a trust since Mr. Osberg, the purchaser, had recently been divorced and did not want his ex-wife to know that he owned additional property. Actually, respondent and Osberg were each to own a 50% beneficial interest in the trust. The Wolffs were not told that respondent was to have an interest in the property, were not advised to seek the advice of another attorney, and were not informed of the potential conflict of interest between respondent’s interests and the Wolffs’ interests. One of the documents signed by the Wolffs showed that respondent was to have a 50% interest in the land trust; however, the Wolffs testified that they were unaware that respondent was to have an interest in the property and believed that respondent was acting as Osberg’s attorney with respect to the real estate transaction. The Wolffs also testified that respondent told them that they would be able to enter into another real estate contract and obtain FHA financing “as soon as the paper work was cleared up.” The Wolffs testified that they were never informed that the purchaser was merely assuming the mortgage and that they were still liable on the mortgage.

Respondent eventually bought out Osberg’s interest in the trust for $500. The property was rented, but unexpected problems were encountered in obtaining tenants, and at times payments on the mortgage were not made for periods as long as six months.

The Wolffs entered into an agreement to purchase another house and made an earnest money payment in the amount of $2,000. They then learned that they could not obtain an FHA-insured mortgage because they were liable for the mortgage on the Wonder Lake property. They complained to respondent who agreed to obtain a release for them. FHA, when it discovered that the property was held as investment property and was not occupied as the owner’s residence, demanded an additional 5% principal payment. Respondent refused to pay the additional 5%. The Wolffs testified that they lost their $2,000 earnest money because while they were attempting to get a release from respondent on the Wonder Lake property mortgage their realtor was declared bankrupt.

State Farm Insurance Company had issued a home owners’ policy covering the Wonder Lake property. After the closing of the real estate transaction with the original owners, respondent called to cancel the policy. Since the State Farm office was next door to respondent’s office, State Farm gave respondent the refund check. The check was made payable to Linda and Robert Wolff. Respondent signed Robert and Linda’s names to the back of the check and deposited the check in his business account. Respondent did not notify the Wolffs that he had received the check or that he had signed their names on the back of the check. When the Wolffs discovered that a check had been issued to them and was purportedly endorsed by them, they went to respondent to find out what had happened. Respondent told them that he was entitled to the refund, and refused to pay them anything. Respondent testified that he believed he was entitled to the money, but admitted to the Hearing Board that it was “a mistake” to sign the Wolffs’ names on the back of the check. It is not clear from the testimony who had paid the premium or whether respondent was entitled to the refund.

Respondent testified that he had taken a course in professional responsibility in his third year of law school. He stated that he was unaware that it was unethical to do business with a client; he thought that the only restriction when transacting business with a client was that the transaction had to be at arm’s length.

The Hearing Board found that the Wolffs, when they first came to respondent’s office, did not intend to get a divorce; that respondent was aware of this and “had no intention to pursue the divorce proceeding except as a ruse to prevent FHA approval of their application.” Concerning the real estate transaction, the Hearing Board concluded that the inference to be drawn from respondent’s telling the Wolffs that they would be able to get a mortgage approximately six weeks after the transaction was closed was that the Wolffs would no longer be responsible on the mortgage. The Board also concluded that respondent did not disclose his interest in the real estate transaction, that he failed to inform them that they should seek the advice of another attorney, and that the Wolffs believed that Os-berg was the sole purchaser of the property. The first time that the Wolffs became aware that they were still liable on the Wonder Lake property mortgage was after they made a $2,000 down payment on another house and were told that they could not, for that reason, obtain FHA-insured financing. The Hearing Board concluded that the Wolffs were not released from liability on the Wonder Lake mortgage because an additional 5% down payment was required which respondent refused to pay. Although the record does not show in what manner it was effected, the Hearing Board found that in December 1980 the Wolffs were released from further liability on the mortgage. Concerning respondent’s signing the Wolffs’ names to the back of the insurance premium refund check, the Board found that respondent’s “mistake” was not the result of a good-faith misunderstanding on his part.

The Review Board affirmed the findings and the conelusions of the Hearing Board but recommended suspension for one year.

Respondent argues that the dissolution proceedings were not “wrongful” and should not be the basis of discipline, and that he did not act dishonestly in the real estate transaction. Conceding that he should not have endorsed the Wolffs’ names on the insurance check, he argues that there was no conversion of clients’ funds. The testimony concerning these matters was conflicting. The resolution of conflicting testimony is best resolved by the hearing panel, since it had the advantage of observing the witnesses. (In re Hopper (1981), 85 Ill. 2d 318, 323; In re Wigoda (1979), 77 Ill. 2d 154, 158-59.) As the trier of fact, the Hearing Board’s findings are entitled to substantially the same weight as any initial trier of fact. (In re Feldman (1982), 89 Ill. 2d 7, 10; In re Mandell (1982), 89 Ill. 2d 14, 23.) After reviewing the record, we find substantial support in the record for each of the Hearing Board’s findings.

It is the Administrator’s position that in advising the Wolffs to file “a fraudulent divorce” and in filing a petition for dissolution and affidavit containing statements which he knew to be false, respondent perpetrated a fraud on the court. It does not appear that any order or judgment was sought on the basis of the pleadings, and we do not, therefore, reach the questions whether the filing of the pleadings constituted a fraud on the court or was designed, as charged by the Administrator, to defraud the FHA. The filing of the petition for the sole purpose of effecting disapproval of the application for the FHA loan was conduct prejudicial to the administration of justice proscribed by Rule 1-102(a)(5). 79 Ill. 2d R. l-102(a)(5).

Accepting as we must, the finding of the Hearing Board that respondent entered into a business transaction with his clients without making a full disclosure of his interest and without advising that they seek the opinion of other counsel, it is clear that respondent violated Rule 5 — 104(a) of the Code of Professional Responsibility, which provides:

“(a) A lawyer shall not enter into a business transaction with a client if they have conflicting interests therein and if the client expects the lawyer to exercise his professional judgment therein for the protection of the client, unless the client has consented after full disclosure.” 79 Ill. 2d R. 5 — 104(a).

Concerning the matter of the insurance refund, although the record does not support the Administrator’s contention that there was a conversion of his clients’ funds, there is no question that respondent, without authorization, endorsed the check by which the refund was effected. Even assuming that he was entitled to the money and that the clients had no further interest in it, this type of conduct is unprofessional and cannot be condoned.

The decision of what sanction is appropriate in a disciplinary matter, admittedly difficult, rests with this court. (In re Hopper (1981), 85 Ill. 2d 318, 323; In re Sherman (1975), 60 Ill. 2d 590, 593.) While each case is unique, to the extent possible sanctions should be imposed consistent with those in cases with similar factual situations.

From our review of the record we are not persuaded that respondent’s conduct in filing the petition for dissolution was motivated by fraud and deceit. As we said in In re Schuyler (1982), 91 Ill. 2d 6, 18, “There is no clear and convincing evidence that the respondent’s conduct was the result of anything more than exceedingly poor judgment.”

Concerning the matter of the respondent entering into the transaction with the Wolffs which culminated in his acquiring a one-half beneficial interest in the trust, there is no question that one of the documents signed by the Wolffs reveals respondent’s interest. Despite the violation of the disciplinary rule it does not appear that respondent defrauded or overreached his clients. In view of the small amount of money involved, consultation with other counsel would appear to have been impractical, but nevertheless, respondent’s conduct falls far short of the degree of disclosure required in a transaction between an attorney and his client.

With respect to the matter of the endorsement of the check for the insurance refund, there is no question that endorsement of drafts without authority is improper. (In re Dombrowski (1978), 71 Ill. 2d 445, 450.) We note, however, that there appears to have been a bona fide dispute as to whether respondent or the Wolffs were entitled to the return of the money, and the Hearing Board made no finding of conversion of funds.

The Review Board agreed with the Hearing Board with respect to the findings of fact and disagreed only as to the appropriate sanction. To a great extent the appropriate sanction to be imposed must depend upon the venality of the misconduct. Upon review of the record and the recommendations of the Hearing and Review Boards we conclude that suspension for a period of six months would be an appropriate sanction. Respondent is, accordingly, suspended for a period of six months.

Respondent suspended.

JUSTICE UNDERWOOD,

dissenting:

In my judgment nothing short of the one-year suspension recommended by the Review Board is appropriate to the misconduct of which respondent was guilty.

JUSTICE MORAN joins in this dissent.


author: JUSTICE CLARK JUSTICE UNDERWOOD,

text:
    (No. 55039.

      In re FLOYD NORMAN NADLER, Attorney, Respondent.

      Opinion filed June 18, 1982.

      UNDERWOOD and MORAN, JJ., dissenting.
    Mary M. Conrad, of Chicago, for the Administrator of the Attorney Registration and Disciplinary Commission.
    William J. Harte, Ltd., of Chicago (William J. Harte, of counsel), for respondent.
   JUSTICE CLARK

delivered the opinion of the court:

On September 5, 1979, the respondent, Floyd Norman Nadler, was convicted in the United States District Court for the Northern District of Illinois of submitting a false income tax statement. He was fined $5,000 and placed on probation for two years. The probationary period was later reduced to one year. Respondent’s conviction was affirmed on appeal.

On January 30, 1980, this court, pursuant to Rule 761 (73 Ill. 2d R. 761), entered an order suspending respondent until further order of the court. The current proceeding was brought by the Administrator of the Attorney Registration and Disciplinary Commission to determine whether respondent’s crime warrants discipline and, if so, the extent of discipline. Since respondent acknowledges that discipline is warranted, the only issue before this court is the measure of discipline to be imposed.

The hearing panel recommended that respondent be suspended for two years. The Review Board recommended suspension for three years and until further order of this court. Both the Administrator and respondent excepted to the report and recommendation of the Review Board. Respondent argues that the sanction is unduly harsh; the Administrator contends it is too lenient and urges disbarment.

Respondent was admitted to practice in Illinois on May 21, 1959. Until his suspension he practiced in the Chicago area, principally in the field of matrimonial law.

The conviction and the other charges against respondent arise from his acting as attorney in certain private adoptions between 1972 and 1975. The testimony before the hearing panel showed that, in 21 of the 23 private adoptions respondent handled during this period, illegal cash payments were made by the adopting couple to the physician who provided the baby. In each case, the cash was given to respondent to transmit to the physician. These cash payments were omitted from the schedule of expenses prepared by respondent that was required to be filed with the circuit court when an adoption was approved. The respondent caused the adopting couples to sign false affidavits stating that no fees other than those listed in the schedule had been paid in connection with the adoption, and submitted these affidavits to the circuit court.

Respondent testified that private adoptions were only a small part of his practice. His usual fee for handling an adoption was a flat $500, and such fees amounted to no more than 4% of his gross receipts annually.

The first adoption respondent handled was accomplished without illegal payment being made. Thereafter, respondent testified, the doctors demanded a cash premium, varying from $500 to $5,000, for providing a baby for adoption, in addition to the usual fee for medical services in delivering the child. There appear to have been several obstetricians who dealt with respondent on a regular basis. Typically, they would call respondent shortly before a patient who wished to give up her baby was to deliver and inform him that the infant would be available for adoption at a certain time. Respondent testified that he regularly, indeed continually, received calls from couples seeking to adopt children. When respondent learned that an infant was available for adoption, he would call an interested couple. The couples were informed that the physician would require a premium in cash in addition to the medical fee.

Respondent testified that he was aware of the Illinois statute prohibiting the payment and the acceptance of compensation other than usual medical or legal fees in connection with a private adoption. (Ill. Rev. Stat. 1975, ch. 4, par. 9.1—21, now Ill. Rev. Stat. 1979, ch. 40, par. 1526.) Though he never explained the statute to the adopting couples, he testified that he believed they were aware that the cash payments were illegal.

The adopting couple typically would bring the cash in an envelope to respondent’s office and hand it over to respondent, who later, when the adoption was completed, passed it on to the doctor. Respondent testified that he was merely a conduit for the illegal payments, and that, with one exception to be discussed, he transmitted all cash so received to the doctors.

Among the legal documents prepared by respondent for an adoption was an affidavit attesting that the expenses listed were the only ones paid in connection with the adoption. The affidavit was required by rule of the circuit court of Cook County. Respondent would instruct the adopting couple to sign the affidavit; he as their attorney would also sign it. The illegal payments to the physicians were never included in these affidavits. Respondent testified that the adopting couples were aware that the affidavits they signed were false. Respondent testified that he did not instruct the couples to lie to the court if they were questioned about the truth of the statements in the affidavit. He admitted, however, that on several occasions, in response to questions by the court, adopting couples did state falsely that the affidavits were complete and accurate. On these occasions respondent, though present, remained silent. This constituted a fraud upon the court.

In 1974, respondent handled an adoption for a couple named Kujak. Respondent testified that a tentative arrangement had been made for the Kujaks to adopt a baby which would be born in November. The obstetrician was demanding a $2,500 cash premium, and respondent had informed the Kujaks of this. In October, however, respondent learned from a different doctor of a newborn which was available for immediate adoption. He asked the Kujaks whether they would prefer to adopt this infant rather than the one originally discussed, and the Kujaks agreed that they would.

When the Kujaks arrived at respondent’s office to execute the adoption papers, Mr. Kujak handed respondent an envelope containing $2,500. However, the obstetrician who delivered the baby ultimately adopted by the Kujaks had told respondent that no cash premium would be required. Nevertheless respondent accepted the envelope with the money. Though he later had contact with the Kujaks, respondent neither returned the money to them nor mentioned that it had not been needed to pay off the doctor. Respondent testified that he considered returning the Kujaks’ money but ultimately kept it and used it.

Respondent’s failure to report this $2,500 as income on his Federal tax return for 1974 led to his conviction in 1979 for tax evasion. During his Federal trial, respondent filed an amended return and paid the tax due and interest. At about the same time he returned the $2,500 to the Kujaks.

At the hearing, a number of respected attorneys and a circuit judge testified to respondent’s high integrity and good moral character. In addition, 110 affidavits to the same effect were received in evidence.

Dr. Bernard Suran, a clinical psychologist who gave marital counseling to respondent and his wife in 1977, testified as an expert witness for respondent. According to Dr. Suran, respondent suffers from a personality disorder known as an “accommodating personality.” Dr. Suran defined “accommodating personality” as a person with low self-esteem, who will go to great lengths, including taking personal risks, to obtain the approval and respect of others. He described it as a mild form of mental disorder. In Dr. Suran’s opinion, respondent’s conduct in the adoptions was not motivated by greed, but rather by his need to win the esteem and approval of others. Since respondent sought treatment, Dr. Suran testified, he had made progress in overcoming his difficulties, and his prognosis was good.

The hearing panel, in recommending that respondent be suspended for two years, found that “the conduct of respondent in spending money that was never his, in consistently deceiving the court in adoption cases, and in failing to report $2,500 of illegally received income, requires a severe penalty.” It agreed with Dr. Suran that “respondent is a safe risk as far as future transgressions are concerned.”

The Review Board, in recommending a suspension of three years and until further order of the court, noted that the charges against respondent were serious. Respondent had been convicted of a crime involving “dishonesty, fraud, deceit, or misrepresentation” in violation of D.R. 1—102(A)(4) of the Illinois Code of Professional Responsibility (Illinois State Bar Association (rev. ed. 1977)). In filing false affidavits regarding the adoptions, respondent established a pattern of violating D.R. 1 — 102(A)(5) and D.R. 7-102(AX3), (A)(4), (A)(6), and (A)(7) (Illinois State Bar Association (rev. ed. 1977)). In retaining his clients’ money for his own use, respondent violated D.R. 9 — 102(A) (Illinois State Bar Association (rev. ed. 1977)).

The Review Board recognized a number of mitigating factors. It noted that respondent had acknowledged the seriousness of the charges against him, expressed regret for his misconduct, and recognized the appropriateness of discipline. It accepted respondent’s testimony and the testimony of Dr. Suran that respondent’s conduct in the adoptions, though improper, was not motivated by greed. To the extent that respondent’s emotional problems contributed to his improper conduct, respondent had sought treatment and showed progress in overcoming them. While retaining a client’s money was, in itself, a serious matter, the Review Board observed that respondent’s misappropriation of the Kujaks’ money appeared to be an isolated incident, that restitution had been made, and that no complaint was filed against respondent by the Kujaks. The Board also gave consideration to the character testimony of the witnesses and the affidavits.

Counsel for both sides agree that discipline is appropriate. The question is one of degree. The Administrator argues that the magnitude of respondent’s misconduct warrants disbarment. Respondent contends that the sanction imposed by the Review Board is unduly harsh.

It is well settled that this court has the final responsibility for determining the discipline to be imposed on an attorney found guilty of professional misconduct. The purpose of a disciplinary proceeding is to safeguard the public, to maintain the integrity of the profession, and to protect the administration of justice from reproach. (In re Saladino (1978), 71 Ill. 2d 263, 275; In re Lacob (1972), 50 Ill. 2d 277, 279.) In determining the sanction that is appropriate to serve this purpose, this court has been concerned both to achieve uniformity and evenhandedness in the application of discipline, and to consider each individual case on its own merits. In re Chapman (1978), 69 Ill. 2d 494; In re Andros (1976), 64 Ill. 2d 419.

The Administrator cites a number of cases as relevant to the issue of what measure of discipline is appropriate, referring to statements in our opinions that uniformity and fairness require the court to compare the conduct of this respondent with that of others. (In re Saladino (1978), 71 Ill. 2d 263; In re Cook (1977), 67 Ill. 2d 26.) After reviewing these cases, however, we find that none involved a pattern of conduct or surrounding circumstances sufficiently analogous to this respondent’s to be determinative of the sanction to be imposed in this case. Moreover, “ ‘[t]he doctrine of stare decisis cannot really be applied to the particular discipline meted out in any particular case, as the conduct of each respondent must be judged individually,’ and ‘the discipline in each case must turn upon the particular factual situation presented.’ ” In re Leonard (1976), 64 Ill. 2d 398, 404, quoting In re Nesselson (1966), 35 Ill. 2d 454, 461.

Respondent’s misconduct is of a serious nature. We agree with the hearing panel and the Review Board, however, that a repetition of the misconduct is most unlikely. Respondent has obtained treatment for the emotional problems that may have contributed to his misconduct and has made progress in overcoming them. His awareness of the gravity of his misconduct and his remorse seem genuine. Before the hearing panel he stated his intention, if allowed to return to the practice of law, not to handle any private adoptions in the future. As the hearing panel recognized, the present disciplinary proceeding is the first complaint of professional misconduct by respondent in some 20 years of practice. An impressive number of reputable attorneys, clients and former clients, and a circuit judge are convinced of respondent’s good moral character and high integrity.

In view of the foregoing mitigating factors, the sanction of disbarment urged by the Administrator would be unduly harsh. The sanction of suspension imposed by the hearing panel and the Review Board indicate their belief that respondent, despite his past misconduct, is capable of acting with integrity as an attorney in the future. There is no purpose in imposing a sanction that benefits neither the public nor the legal profession. (In re Leonard (1976), 64 Ill. 2d 398, 406.) Since respondent has been under an order of interim suspension since January 30, 1980, we believe that a suspension of three years from the date of the filing of this opinion is appropriate.

Respondent suspended.

JUSTICE UNDERWOOD,

dissenting:

In my judgment nothing short of disbarment is appropriate for a lawyer who in 21 of 23 adoptions handled by him in a three-year period regularly encouraged his clients to commit perjury and to violate the statute prohibiting payment of compensation to private persons for the placement of “black market” or “gray market” babies; who then filed the perjurious affidavits with the courts, advised some clients to lie to the judge if asked about them and remained silent when his clients were asked and answered falsely; and who finally converted $2,500 of one client’s funds. While characterizing respondent’s conduct in these terms may seem harsh, the fact is that he was systematically and regularly assisting his clients in deceiving the judges before whom they appeared and in committing serious violations of the law without, apparently, any explanation to them of the possible consequences of their conduct.

Given the fact that respondent’s testimony leaves no doubt that he completely understood the situation, I find the psychologist’s testimony regarding respondent’s “accommodating personality” disorder insufficient to establish any real excuse for what was done. Nor, in my opinion, can the evidence as to respondent’s prior reputation and good character warrant limiting the sanction imposed here to suspension. In re Rosenthal (1978), 73 Ill. 2d 46.

The fact that respondent may have been motivated, at least in part, by a desire to provide babies for couples who could not secure them by legitimate methods cannot serve to justify the deliberate and long-continued violation of the adoption and criminal laws of this State. But, even assuming respondent’s motives for those violations sufficient to warrant a sanction less than disbarment, nothing of a mitigating nature can be said of the conversion of the Kujak funds. In re Smith (1976), 63 Ill. 2d 250.

While I find the disbarment of an attorney a most unwelcome duty, it seems to me that in the aggravated circumstances of this case nothing short of disbarment will serve to maintain the integrity of the profession.

JUSTICE MORAN joins in this dissent.


author: JUSTICE GOLDENHERSH

text:
    (Nos. 55461, 55474 cons.
    MARY G. OPPENHEIM, Petitioner, v. CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT et al., Respondents.—CHARLOTTE HAMMOND, Petitioner, v. CIRCUIT COURT OF COOK COUNTY et al., Respondents.

      Opinion filed June 18, 1982.

      SIMON, J., took no part.
    Jay A. Canel, Leroy G. Inskeep, and David G. Lynch, of Rudnick & Wolfe, of Chicago, for petitioner Mary G. Oppenheim.
    James Walker, Ltd., of Bloomington, and William Van Hagey, of Chadwell, Kayser, Ruggles, McGee & Hastings, of Chicago, for petitioner Charlotte Hammond.
    Patrick W. O’Brien, Michael J. O’Rourke, John M. Heaphy, and Hope G. Nightingale, of Mayer, Brown & Platt, of Chicago, for respondent Max E. Meyer.
    Gerald D. Mindell, of Chicago, for respondent Continental Illinois National Bank and Trust Company of Chicago.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

Pursuant to Supreme Court Rule 381 (73 Ill. 2d R. 381) we allowed two motions for leave to file original petitions for writs of prohibition or mandamus or for the exercise of this court’s supervisory authority, and consolidated the actions. In cause No. 55461, Mary G. Oppenheim, liquidating receiver (the receiver), as petitioner, named as respondents the “CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT, County of McLean, JAMES KNECHT, One of the Judges of that Court, CHARLOTTE HAMMOND, Prevailing Party.” In cause No. 55474, Charlotte Hammond (Hammond) named as respondents “CIRCUIT COURT OF COOK COUNTY; HAROLD SIEGAN, One of the Judges of the Circuit Court of Cook County; MARY G. OPPENHEIM, Liquidating Receiver, MAX E. MAYER, Trustee Under Liquidating Trust Agreement of North American Asbestos Corporation; CONTINENTAL ILLINOIS NATIONAL BANK & TRUST COMPANY OF CHICAGO; and NORTH AMERICAN ASBESTOS CORPORATION.”

The exhibits filed with the petitions show that in 1975 Hammond filed suit in the circuit court of McLean County against North American Asbestos Corporation (NAAC) and Cape/Overseas Ltd., its sole shareholder, seeking damages for injuries suffered by her husband, Charles Hammond, while employed by NAAC. On February 26, 1981, a verdict was returned in favor of Hammond and against NAAC in the amount of $500,000. Judgment was entered on the verdict. Summons was issued directed against Continental Illinois National Bank & Trust Company (Continental) as garnishee, and an interrogatory was submitted to the garnishee inquiring whether it had on deposit funds of NAAC, or Max E. Meyer, as trustee of an NAAC liquidating trust (Meyer). The garnishee responded that it held $153,747.21 in two accounts titled “North American Asbestos Corporation Liquidating Trust” and that “there may be a third party interest in the said described account.” A motion was filed by NAAC praying that the garnishment be quashed for the reason that the “judgment entered upon the jury verdict has not become final and a post-trial motion filed in apt time stays execution on that judgment ***.”

On March 26, 1981, NAAC filed a post-trial motion. A hearing was held on July 7, 1981, and the motion was denied. An appeal bond was set at $600,000. Hammond’s counsel moved for judgment on the garnishment, and on July 8, 1981, judgment was entered against the garnishee in the amount of $153,747.21.

On July 2, 1981, Meyer, as trustee of the liquidating trust, petitioned the chancery division of the circuit court of Cook County to appoint a receiver “to assume administrative responsibility and authority over the Liquidating Trust and its assets ***.” Herbert C. Brook had resigned as trustee on May 13, 1980. The petition stated that it had become apparent to the trustee that the assets held by the trust would not be sufficient to pay all of the claimants claiming an interest in the funds, and that in order to insure an equitable distribution of the assets a receivership was necessary. A hearing was held on the petition on July 8, 1981. The next day, Judge Siegan entered an order finding that pursuant to section 86(c) of the Business Corporation Act (Ill. Rev. Stat. 1977, ch. 32, par. 157.86(c)) the court “had the power of assuming jurisdiction over the assets of the Liquidating Trust” and granting the relief prayed for in the emergency petition. The court appointed Mary G. Oppenheim receiver. The order was dated July 9, 1981, but was entered “as of July 8, 1981.”

The July 9, 1981, order restrained Continental from transferring any assets of the trust. On July 10, 1981, Judge Siegan also entered an order enjoining Hammond “from effecting any execution on the judgment order which was entered on the garnishment proceedings ***.” The order directed Oppenheim to amend the pleadings in order to add Hammond as a party defendant. By order entered July 17, 1981, a temporary injunction was issued enjoining Continental and Hammond from the actions prohibited by the earlier temporary restraining orders. On August 3, 1981, Hammond petitioned the circuit court of McLean County for a rule to show cause why Continental should not be held in contempt of court for failure to pay over the assets as ordered by the July 8, 1981, order. The court issued a rule to show cause. The next day, Oppenheim, in her capacity as liquidating receiver, filed a petition to intervene in this action. On August 6, 1981, Hammond filed a motion in the circuit court of Cook County seeking to vacate the order of July 9 on the grounds that there had been no bond filed as required by section 1 of “An Act concerning the appointment and discharge of receivers” (Ill. Rev. Stat. 1977, ch. 110, par. 407); and on the grounds that the court had no jurisdiction because the assets were already under the jurisdiction of the circuit court of McLean County. Hammond also moved to vacate the order of July 17, 1981, on the grounds that the circuit court of Cook County had no jurisdiction because the circuit court of McLean County had assumed jurisdiction.

On August 7, 1981, Oppenheim’s petition to intervene in the McLean county action was heard and denied. Oppenheim filed a notice of appeal. On August 7, 1981, Continental, Meyer and Oppenheim, jointly, filed a notice of appeal from the garnishment judgment entered on July 8, 1981. On August 10, 1981, Oppenheim filed a motion to amend the order entered July 9, “as of July 8, 1981,” nunc pro tunc with respect to its failure to make any provision for a bond of the applicant. A hearing on this motion was set for August 13, 1981. On August 13, 1981, Hammond filed her response to the motion, contending that it should be denied on the ground that an order nunc pro tunc would not merely correct clerical error but that its effect would be to supply omitted judicial action. The circuit court of Cook County entered an order which found that “the order entered on July 9, as of July 8, 1981, ought to have been done without bond of the applicant ***.” On August 14, 1981, Hammond’s motions to vacate came on for hearing. Judge Siegan set a briefing schedule, and the hearing on the motions was continued until October 5, 1981. The court directed Oppenheim to file a petition for a rule directed against Hammond and her attorney ordering them to show cause why they should not be held in contempt of court for violating the July 17, 1981, order restraining Hammond from proceeding against Continental. The order provided that a hearing on the petition for rule to show cause would be held on August 24, 1981. On August 7, 1981, Oppenheim filed a petition for rule to show cause against Hammond and her attorney. On August 20, 1981, Hammond filed a petition for injunction in the circuit court of McLean County asking that court to enjoin Oppenheim, Meyer and Continental from presenting or proceeding on their petition for rule to show cause in the circuit court of Cook County and from doing any other act which would prevent Hammond from enforcing her judgment obtained in McLean County. The court issued a preliminary injunction on that day granting the relief requested.

On August 24, 1981, all parties to this action appeared before Judge Siegan in the circuit court of Cook County. The parties agreed that the hearing on the petition for rule to show cause should be continued until September 16, 1981, and that the hearing scheduled in McLean County on that rule to show cause should be continued until September 17, 1981, so that petitions could be presented to this court.

The parties have briefed and argued a number of complex issues, many of which need not be reached in the decision of this case. Simply stated, it is Oppenheim’s contention that NAAC’s assets were conveyed to a valid trust and therefore were not subject to garnishment. She argues that the purpose of the trust was to put NAAC’s assets beyond the reach of individual creditor’s suits and preserve them for equal distribution to all creditors. She contends that although not drawn in the terms characteristic of that type of instrument, the trust agreement is an assignment for the benefit of creditors. It was therefore proper, she argues, for the circuit court of Cook County to enjoin Hammond from attempting to enforce her judgment against the assets of the receivership.

It is Hammond’s position that the circuit court of McLean County properly obtained jurisdiction over the assets of the judgment debtor NAAC being held by the garnishee, that its jurisdiction was not affected by the subsequent proceedings in Cook County, that the appointment of Oppenheim as receiver was invalid, and that the temporary restraining order and temporary injunction were erroneously issued.

It is the contention of Meyer, as liquidating trustee, that NAAC’s assets were conveyed to a valid trust for the benefit of all of its creditors and its stockholder and that because there was a valid assignment for the benefit of creditors the assets are not subject to garnishment. Continental, in its brief, states that it is entitled to a resolution of the conflict in which it has been placed by reason of the inconsistent court orders, and also entitled to the reasonable costs and expenses which it has incurred as a result of the conduct of the principal parties.

We need not and do not reach the questions of the validity of the liquidating agreement as an assignment for the benefit of creditors, nor is it necessary that we consider whether the circuit court of Cook County erred in appointing a receiver without requiring a bond pursuant to the provision of the statute. The sole issue presented in the actions pending both in Cook and McLean counties is whether the funds held by Continental are subject to garnishment in satisfaction of the judgment entered in favor of Hammond.

The rule long established in this jurisdiction, as stated in White Way Sign & Maintenance Co. v. Seltzer Pontiac, Inc. (1974), 56 Ill. 2d 342, 344, is:

“Garnishment is an ancillary proceeding designed to obtain satisfaction of a judgment (Wieboldt Stores, Inc. v. Sturdy, 384 Ill. 271, 275) and is not a distinct or separate suit from the original action for judgment (Zimek v. Illinois National Casualty Co., 370 Ill. 572, 574).”

The garnishment summons and interrogatories were served on Continental on March 11, 1981, and its answers were filed on March 23, 1981. The circuit court of McLean County had jurisdiction in this cause from the inception of the original action against NAAC and over the property which is the subject of this litigation from the time of the institution of the garnishment proceeding. A garnishment proceeding is in the nature of a proceeding in rem (Freeport Motor Casualty Co. v. Madden (1933), 354 Ill. 2d 486, 489), and in PSL Realty Co. v. Granite Investment Co. (1981), 86 Ill. 2d 291, 307, this court said:

“In an in rem proceeding, in which the court must have control of the property which is the subject matter of the suit in order to grant the relief sought, the court first acquiring control of the property is entitled to maintain and exercise its jurisdiction to the exclusion of other courts.”

The garnishment act (Ill. Rev. Stat. 1979, ch. 62, par. 33 et seq.) provides for the adjudication of adverse claims to the property held by a garnishee, and there is nothing in the record before us to indicate that the adverse claims of Hammond, Meyer and Oppenheim cannot be adjudicated under its provisions. Similarly, the questions whether the circuit court of McLean County erred in entering judgment or in denying Oppenheim’s petition for leave to intervene can be determined in the pending appeals.

Prior to July 2, 1981, there was nothing pending before the circuit court of Cook County. If and when it appears that there are other creditors of NAAC involved, there may be other issues presented, but at the time when the circuit court of Cook County acted, the only issue presented was identical with the issue involved in the garnishment proceedings. In People ex rel. Phillips Petroleum Co. v. Gitchoff (1976), 65 Ill. 2d 249, this court allowed a motion for leave to file an original petition for a writ of mandamus. A judge of the circuit court of Macon County entered an order consolidating a counterclaim pending in the circuit court of Madison County with a complaint pending in the circuit court of Macon County. A circuit judge in Madison County entered an order directing that the clerk of that court not transmit the record pertaining to the counterclaim to the circuit clerk in Macon County. The court denied the issuance of the writ but entered a supervisory order directing that the judge vacate his order which had directed the clerk of the circuit court of Madison County not to transmit the record. In so doing, the court said:

“We need not here resolve the opposing arguments of the parties on the question whether the Madison counterclaim and the Macon action were ‘pending in the same court’ so as to authorize their consolidation by the Macon County judge pursuant to section 51 of the Civil Practice Act (Ill. Rev. Stat. 1973, ch. 110, par. 51). It is entirely clear that the pendency before different judges of separate suits involving identical parties and issues is incompatible with the orderly and efficient administration of justice. It is equally clear that irrespective of the propriety of the Macon County order consolidating the proceedings, the refusal of the Madison County court to abide by that order was improper. One circuit judge may not review or disregard the orders of another circuit judge in the judicial system of this State (People ex rel. Kelly, Ketting, Furth, Inc. v. Epstein (1974), 61 Ill. 2d 229), and such action can only serve to diminish respect for and public confidence in our judiciary (East Side Levee, 54 Ill. 2d 442, 445).
Section 16 of article VI of the 1970 Constitution vests ‘General administrative and supervisory authority over all courts’ of this State in this court. In the exercise of that authority we have heretofore ordered the correction of patently erroneous action by trial judges. People ex rel. Kelly, Ketting, Furth, Inc. v. Epstein, 61 Ill. 2d 229; People ex rel. Bowman v. Woodward, 61 Ill. 2d 231.” 65 Ill. 2d 249, 257.

We need not here determine whether the liquidating trustee had standing to seek the appointment of a receiver under the provisions of section 86(c) of the Business Corporation Act (Ill. Rev. Stat. 1977, ch. 32, par. 157.86(c)). We need not determine whether, as contended by Hammond, the liquidating agreement fails to qualify as an assignment for the benefit of creditors because it contains provisions which purport to limit the liability of the trustees in a manner impermissible in a common law assignment for the benefit of creditors. It suffices to say that the issue presented and the contending parties are the same in both proceedings and the matters in controversy should properly be adjudicated in the garnishment action in the circuit court of McLean County.

In the exercise of this court’s supervisory authority, it is accordingly ordered that Judge Harold Siegan vacate the orders purporting to enjoin or restrain the parties from proceeding in the garnishment action in McLean County and that no further action be taken in Cook County to interfere with orders entered in the McLean County proceedings.

Writs denied; supervisory order entered.

JUSTICE SIMON took no part in the consideration or decision of this case.