People v. DiCosola

2015 IL App (2d) 140523, 33 N.E.3d 589

• Court: Appellate Court of Illinois
• Decided: January 9, 2015
• Docket: 2-14-0523
• Status: Unpublished

Opinion

2015 IL App (2d) 140523 No. 2-14-0523 Opinion filed January 9, 2015 ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Du Page County. ) Plaintiff-Appellee, ) ) v. ) No. 11-CH-5767 ) MICHELE DiCOSOLA, a/k/a Mike DiCosola, ) Honorable ) Terence M. Sheen, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

PRESIDING JUSTICE SCHOSTOK delivered the judgment of the court, with opinion. Justices Jorgensen and Birkett concurred in the judgment and opinion.

OPINION

¶1 On December 9, 2011, the Attorney General filed a complaint against the defendant,

Michele DiCosola, for his failure to comply with an investigative subpoena that the Attorney

General issued to him pursuant to sections 3 and 4 of the Consumer Fraud and Deceptive

Business Practices Act (Consumer Fraud Act) (815 ILCS 505/3, 4 (West 2010)). The complaint

sought injunctive relief. The trial court granted summary judgment in the Attorney General’s

favor on the complaint. The defendant appeals from that order. We affirm.

¶2 I. BACKGROUND

¶3 On December 9, 2011, the Attorney General filed against the defendant a complaint that

included the following allegations. The defendant sold instructional DVDs, held seminars, and 2015 IL App (2d) 140523

provided one-on-one consultations regarding bankruptcy and foreclosure laws. In May 2011, the

Attorney General received information indicating that the defendant might be in violation of the

Consumer Fraud Act (815 ILCS 505/1 et seq. (West 2010)), the Mortgage Rescue Fraud Act

(765 ILCS 940/1 et seq. (West 2010)), and the Attorney Act (705 ILCS 205/0.01 et seq. (West

2010)). Pursuant to sections 3 and 4 of the Consumer Fraud Act, the Attorney General issued to

the defendant an investigative subpoena requesting that he appear at the Attorney General’s

office on November 18, 2011, and that he bring certain documents with him. The defendant did

not appear for the meeting and did not contact the Attorney General to reschedule. The

complaint sought relief under section 6 of the Consumer Fraud Act (815 ILCS 505/6 (West

2010)). Specifically, the Attorney General sought to enforce compliance with the subpoena and

to enjoin the defendant from engaging in trade or commerce within Illinois, pending such

compliance.

¶4 On May 22, 2013, the defendant filed an answer to the complaint. The defendant

admitted to selling the DVDs but denied that they were instructional. The defendant admitted

that he held a seminar on December 9 and 10, 2011, entitled “Common Law Court Decoded,”

and that some of the attendants gave him $400. He further admitted posting testimonials on his

website and on YouTube from customers who attended his seminars. In one testimonial, the

customer stated that he attended one of the defendant’s seminars on foreclosure and further

stated: “I was able to save my house, go to court, find remedy, and win my house free and clear.

Unbelievable experience.” The defendant admitted to offering private consultations on various

topics, including issues with foreclosure cases, Internal Revenue Service cases, criminal cases,

and sovereignty documents, for $100 per 20-minute private appointment. The defendant also

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admitted that he was not licensed to practice law in any state. The defendant denied being served

with a subpoena and denied any wrongdoing.

¶5 On January 28, 2014, the Attorney General filed a motion for summary judgment,

arguing that no issue of material fact precluded a finding that the defendant’s failure to comply

with the subpoena entitled her to relief under section 6 of the Consumer Fraud Act (815 ILCS

505/6 (West 2010)). The Attorney General argued that the defendant violated or might be

violating the Consumer Fraud Act by misrepresenting that his goods and services could save a

consumer’s home from foreclosure. She further stated that she properly served the defendant

with a subpoena and a rider on November 10, 2011, and that the defendant never attempted to

comply with the subpoena.

¶6 On March 11, 2014, the defendant filed a response to the motion for summary judgment.

The defendant noted that an administrative investigation is subject to due process constraints and

argued that none of his alleged actions gave rise to the inference that he engaged in illegal

activity. He further argued that his seminars constituted behavior protected by the first

amendment (U.S. Const., amend. I). Only his advertisements constituted unprotected

commercial speech, and they were honest and provided no basis for an investigation. The

defendant further argued that, under the fifth amendment (U.S. Const., amend. V), he could not

be required to respond to the subpoena, because that would force him to incriminate himself.

The defendant contended that the allegations against him were nearly parallel to criminal statutes

that might otherwise govern his alleged conduct. Finally, the defendant argued that he was not

properly served with the investigative subpoena. The investigator who served the defendant did

not identify himself, tell the defendant what the documents were, or tell him why he was

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delivering them. As such, when the investigator dropped the papers on the floor in front of the

defendant, the defendant did not pick them up.

¶7 The Attorney General filed a reply in support of her motion for summary judgment. The

Attorney General argued that the investigator’s affidavit was sufficient to establish that the

defendant was properly served with the investigative subpoena. She further argued that the

defendant’s affirmative defenses addressed the merits of the underlying claims but did not

provide a defense for his failure to comply with the subpoena. Finally, the Attorney General

addressed the affirmative defenses. She argued that the first amendment was not at issue,

because there was no speech at issue in the defendant’s failure to comply with the subpoena.

Further, she argued that the requested materials would not be protected by the first amendment to

the extent that they contained false or misleading commercial speech. The Attorney General

argued that enforcement of the subpoena did not require probable cause and did not violate the

fourth amendment (U.S. Const., amend. IV). As to the defendant’s challenge based on the fifth

amendment, the Attorney General argued that this right had not been properly invoked.

¶8 On May 6, 2014, a hearing was held on the Attorney General’s motion for summary

judgment. The parties stood on their briefs. The trial court found that the undisputed facts

demonstrated that the defendant violated section 6 of the Consumer Fraud Act by failing to

comply with the subpoena. The trial court found that issuing the subpoena was within the

Attorney General’s power, the demand was reasonably definite, and the information sought was

reasonably relevant. Accordingly, the trial court granted the Attorney General’s motion for

summary judgment. The trial court entered an order enjoining the defendant from “engaging in

trade or commerce within the State of Illinois by selling DVDs or other materials, holding

seminars, and providing one-on-one consultations regarding bankruptcy, foreclosure or other

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laws until such time as Defendant complies with the Attorney General’s subpoena.” The

defendant filed a timely notice of appeal.

¶9 II. ANALYSIS

¶ 10 On appeal, the defendant argues that the Attorney General’s investigation is nothing more

than a fishing expedition intended to harass him. He implicitly argues that an administrative

investigation must be supported by probable cause. The defendant also argues that none of his

alleged conduct violated the Consumer Fraud Act, the Mortgage Rescue Fraud Act, or the

Attorney Act. He further argues that the fifth amendment bars the subpoena because he is

“battling a federal criminal indictment” and there have been no promises of criminal immunity.

Finally, he argues that the first amendment bars the Attorney General’s investigation.

Specifically, he states that “[t]he protected speech at issue here was not the commercial speech

(that is, the advertisement) but the contents of the subject lectures which is protected speech.”

(Emphasis in original.)

¶ 11 The Consumer Fraud Act is “intended to curb a variety of fraudulent abuses and to

provide a remedy to individuals injured by them.” Scott v. Association for Childbirth at Home,

International, 88 Ill. 2d 279, 288 (1981). Section 3 of the Consumer Fraud Act grants the

Attorney General the authority to investigate potential wrongdoing, under the following

condition:

“When it appears to the Attorney General that a person has engaged in, is engaging in, or

is about to engage in any practice declared to be unlawful by the Act; *** or when he

believes it to be in the public interest that an investigation should be made to ascertain

whether a person in fact has engaged in, is engaging in or is about to engage in, any

practice declared to be unlawful by this Act[.]” 815 ILCS 505/3 (West 2010).

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Section 4 of the Consumer Fraud Act grants the Attorney General the power to issue subpoenas

as a manner of conducting investigations. 815 ILCS 505/4 (West 2010). Additionally, the

Consumer Fraud Act provides remedies for the failure to cooperate in an investigation. Pursuant

to section 6 of the Consumer Fraud Act (815 ILCS 505/6 (West 2010)), the Attorney General

may file a complaint in the circuit court, seeking injunctive relief for the failure to comply with

an investigation. The injunctive relief may “restrain[] the sale or advertisement of any

merchandise *** or the conduct of any trade or commerce.” 815 ILCS 505/6(a) (West 2010).

¶ 12 In the present case, the Attorney General alleged that she had received information

suggesting that the defendant might be violating the Consumer Fraud Act, the Mortgage Rescue

Fraud Act, and the Attorney Act. Pursuant to sections 3 and 4 of the Consumer Fraud Act (815

ILCS 505/3, 4 (West 2010)), the Attorney General had the power to conduct an investigation and

issue an investigative subpoena. It is undisputed that the defendant failed to comply with the

subpoena. Accordingly, under section 6 of the Consumer Fraud Act (815 ILCS 505/6 (West

2010)), the Attorney General was entitled to summary judgment and the injunctive relief granted

by the trial court.

¶ 13 As noted, the defendant implicitly argues that an administrative investigation must be

supported by probable cause. However, it is well settled that neither the Illinois nor the federal

constitution requires a showing of probable cause to initiate an administrative investigation.

Scott, 88 Ill. 2d at 293 (citing Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 208-09

(1946)). At this point in the proceedings, the Attorney General was not required to state

allegations demonstrating specific violations of the Consumer Fraud Act, the Mortgage Rescue

Fraud Act, or the Attorney Act. Rather, the purpose of the investigation and the reason for

issuing the subpoena was to determine whether in fact the defendant violated any of these

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statutes. See Scott, 88 Ill. 2d at 298 (the purpose of an administrative investigation is to gather

information that “may or may not” provide grounds further action).

¶ 14 In evaluating whether an investigative subpoena is valid and enforceable, courts consider

the following: (1) the constitutionality of the authorizing statute; (2) whether the contemplated

agency proceedings are included within the statutory authority; (3) the reasonableness of the

demand; and (4) the relevance of the information sought. Scott, 88 Ill. 2d at 296. The Consumer

Fraud Act is constitutional (id.), and sections 3 and 4 authorized the Attorney General to conduct

the investigation (815 ILCS 505/3, 4 (West 2010)). The defendant does not argue that the

information sought was unreasonable or irrelevant. Accordingly, the subpoena does not violate

the fourth amendment.

¶ 15 The defendant further argues that, pursuant to the fifth amendment, he is not required to

comply with the investigative subpoena. The fifth amendment provides that no person “shall be

compelled in any criminal case to be a witness against himself.” U.S. Const., amend. V. In an

analogous context, our supreme court held that “[w]hen served with a subpoena in a disciplinary

proceeding which requests an appearance, the privilege against self-incrimination is not properly

claimed by merely failing to appear.” In re Zisook, 88 Ill. 2d 321, 335 (1981).

¶ 16 In Zisook, three attorneys received subpoenas to testify concerning certain matters. Id. at

326. The subpoenas were issued at the request of the Attorney Registration and Disciplinary

Commission (ARDC). Id. The attorneys informed the ARDC that they believed that the

information being sought would incriminate them, and they thus refused to appear or produce

documents in response to the subpoena. Id. at 327. The ARDC initiated proceedings in our

supreme court, and a rule to show cause was issued requiring the attorneys to appear and explain

why they should not be suspended from the practice of law for failing to comply with the

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subpoenas. Id. Our supreme court held that, while the attorneys possessed the right against self-

incrimination, refusing to appear in response to a subpoena was not an appropriate way to invoke

it. Id. at 328. The court explained that, in order to invoke the right, a party must appear in

response to a subpoena and invoke it with respect to each specific request that implicates it, so

that, if necessary, a judicial determination can be made as to the validity of the assertion. Id. at

333.

¶ 17 In the present case, as in Zisook, the defendant might be entitled to invoke the right

against self-incrimination, but refusing to appear in front of the Attorney General in response to

the subpoena was not an appropriate way to invoke it. Rather, the defendant was required to

appear and then invoke the fifth amendment in response to any questions asked or requests for

certain documents. The defendant also argues that forcing him to respond to the subpoena would

violate the fifth amendment because he is subject to a federal criminal indictment. We agree that

an administrative agency may not use its subpoena powers for the improper purpose of obtaining

documents to aid in a criminal prosecution. Department of Revenue v. Olympic Savings & Loan

Ass’n, 78 Ill. App. 3d 668, 675 (1979). However, there is no evidence that the Attorney General

is aiding or participating in any criminal prosecution of the defendant. As such, the fifth

amendment does not provide the defendant with any proper basis for noncompliance with the

subpoena.

¶ 18 Finally, the defendant argues that the “sweeping injunction” entered in this case violates

his first amendment rights, as the underlying commercial speech was not false or misleading.

This argument is premature. The defendant is raising a first amendment defense to the

underlying conduct that the Attorney General is attempting to investigate. The underlying

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conduct is not at issue in this case. Rather, the defendant’s failure to comply with the subpoena

is the conduct at issue here.

¶ 19 We note that the defendant cites United States v. Benson, 561 F.3d 718 (7th Cir. 2009),

for the proposition that the injunction violates his first amendment rights. In that case, an

injunction was entered against the defendant, William Benson, pursuant to section 7408 of the

Internal Revenue Code (26 U.S.C. § 7408 (2006)), enjoining him from promoting and selling tax

avoidance materials that were false and misleading. In promoting his materials, Benson

promised potential customers that his products would free them from taxation and defend them

in the event of prosecution. Benson, 561 F.3d at 725. The court held that these promises were

made for the purpose of selling his materials and were thus commercial. It further held that the

promises were false because, rather than selling a way to avoid tax liability, Benson was really

selling a way to increase tax and criminal liability for failing to pay taxes. Id. at 726.

Accordingly, because of the false promises, Benson’s speech was not protected by the first

amendment. Id. In so ruling, the court noted:

“Benson may openly share his views about the ratification of the Sixteenth Amendment

or the tyranny of the federal government and IRS. It is not illegal for Benson to urge his

followers to take political action. What is illegal, and enjoined, is for Benson to try to

sell something he does not possess• the golden ticket of tax evasion without

consequences. Therefore, according to our great tradition of tolerating nutty opinions, the

marketplace of ideas remains open to Benson; the commercial marketplace, however, is

appropriately limited to speech that is not deceptive.” Id.

¶ 20 Benson does not support the defendant’s argument that the injunction in this case was too

broad. Rather, Benson supports the proposition that enjoining false commercial speech does not

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violate the first amendment. Id. At this stage, the Attorney General is still investigating whether

the defendant’s promotion and sale of his DVDs, seminars, and consultation services are false

and misleading commercial speech. In Scott, our supreme court rejected a first amendment

challenge to section 2 of the Consumer Fraud Act. Scott, 88 Ill. 2d at 287. In so ruling, the court

noted that “the Supreme Court has repeatedly emphasized that the first amendment is not a bar to

State regulation prohibiting false, misleading or deceptive commercial speech.” Id. It further

noted that “ ‘the State does not lose its power to regulate commercial activity deemed harmful to

the public whenever speech is a component of that activity.’ ” (Internal quotation marks

omitted.) Id. (quoting Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 456 (1978)). Here, the

Attorney General is conducting a statutorily authorized investigation into the defendant’s

activities, and the subpoena at issue is relevant to that investigation. The injunction is a proper

way to urge compliance with the subpoena. 815 ILCS 505/6 (West 2010); see also People ex rel.

Scott v. Johnson, 77 Ill. App. 3d 529, 532 (1979) (holding that preliminary injunction under

section 6 of the Consumer Fraud Act is justified by the potential for harm to the public pending

disposition of the underlying suit).

¶ 21 III. CONCLUSION

¶ 22 For the reasons stated, we affirm the judgment of the circuit court of Du Page County.

¶ 23 Affirmed.

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