dissenting:
Without delving too deeply into the debate between deontological and teleological ethics or the relationship between morality and positive law, I dissent from the majority’s decision. My remarks are directed at the disposition of the defendant’s first claim of error, concerning the government’s conduct in its investigation of the nightclub.
The defendant has correctly acknowledged that entrapment is not at issue here and argues instead that the government’s participation in the acts of prostitution reached such a level of outrageousness that he has been denied due process.
As the State sought and obtained an injunction, the questions in this case are governed by equitable principles. A party seeking equitable relief must come into court with clean hands; the government’s participation in illegal activities has tainted its position. Accepting the State’s evidence as true, the three recruits, who were instructed to obtain evidence of prostitution at The Spot by engaging in sexual activity with employees, were guilty of patronizing prostitutes (Ill. Rev. Stat. 1979, ch. 38, par. 11 — 18). By knowingly directing the recruits to The Spot for that purpose, the persons in charge of the investigation were guilty of soliciting prostitution (Ill. Rev. Stat. 1979, ch. 38, par. 11 — 15) and official misconduct (Ill. Rev. Stat. 1979, ch. 38, par. 33 — 3(b)). The unclean hands principle is as applicable to the government as it is to private parties. Olmstead v. United States (1928), 277 U.S. 438,484,72 L. Ed. 944,959, 48 S. Ct. 564, 574 (Brandéis, J., dissenting).
No statutory authorization exists to absolve the government and its agents of this misconduct. Unlike the Department of Law Enforcement, which is authorized by statute to purchase controlled substances and cannabis in gathering evidence of drug use (Ill. Rev. Stat. 1979, ch. 127, par. 55a(15), 55j), the State’s attorney and the local police departments can point to no similar provision permitting the type of investigatory activity used in this case. The existence of the statute permitting drug purchases may reflect the judgments that drugs present a greater danger to society than other forms of criminality or that drug trafficking is too difficult to detect without the use of undercover purchases. Neither reason applies to prostitution, however.
The State could have obtained its evidence without directing its agents to have sex with the alleged prostitutes. The normal course of feigning interest and stopping short of sex yields evidence sufficient to enjoin the nuisance or to convict. City of Chicago v. Cecola (1979), 75 Ill. 2d 423, 389 N.E.2d 526; City of Chicago v. Geraci (1975), 30 Ill. App. 3d 699, 332 N.E.2d 487.
The question posed by the evidence and tactics in this case is whether the nature of the nuisance excuses the investigatory methods used, or more simply, whether the end justifies the means. We must keep in mind what this case does not involve: National security was not in danger of being breached; lives were not threatened; the future of western civilization was not at stake. Those dangers are the usual excuses for order and safety at any cost, but the goal here was neither so important nor so worthy. The principles of equity should not be treated cavalierly; nothing in this case convinces me that the government’s misconduct should be ignored or overlooked or excused. The State comes into court with unclean hands and the requested relief should have been denied. I would exclude the evidence when the taint is slight and bar the action when the taint pervades the entire suit, as it does here.
The antecedents for my argument are found in earlier cases and more specifically in earlier dissents. Participation by the government in illegal activities is not new; the reasons against countenancing it in a court are still valid today. Refusing to permit the government to use criminal means for gathering evidence helps to maintain respect for the law, engenders public trust in the judicial system, and keeps the courts untainted. (Olmstead, 277 U.S. 438, 484, 72 L. Ed. 944, 959, 48 S. Ct. 564, 574-75 (Brandéis, J., dissenting).) In Casey v. United States (1928), 276 U.S. 413, 72 L. Ed. 632, 48 S. Ct. 373, where the government had instigated the crime for which the defendant was being prosecuted, Brandéis said, again in dissent:
“This prosecution should be stopped, not because some right of Casey’s has been denied, but in order to protect the government. To protect it from illegal conduct of its officers. To preserve the purity of its courts.” (276 U.S. 413,425, 72 L. Ed. 632, 637,48 S. Ct. 373, 376.)
Permitting the State to bring actions based on evidence obtained through criminal acts ultimately demeans the judicial system. The courts become partners in the illegality. The immediate result may appear innocuous but the infection remains; in the long run illegal and evil means will attenuate the principle that we are governed by laws rather than persons. It is true that in the long run we are all dead, yet future generations will have to live with the precedents we create. I am afraid that bad law, like bad money, drives out good. I foresee a decline in the public’s trust in its judicial system, for by approving illegal police tactics we invite disrespect and cynicism:
“A nation devoted to the proposition of equality under law and the sanctity of individual freedom should not permit the government it has entrusted with the task of protecting those principles to flout them in the name of ‘law enforcement.’ The laws being enforced are meaningless if those bound to enforce them place themselves above the law.” (Cohn, The Need for an Objective Approach to Prosecutorial Misconduct, 46 Brooklyn L. Rev. 249, 267 (1980).)
Preserving the integrity of the courts is not such an idle or meaningless task that we may safely ignore the abuses disclosed by the record in this case. If judicial integrity is to be meaningful, we must do more than accord that principle vacant obeisance. Keeping the courts clean is a daily job; we must not relegate it to holiday observance. Justice Holmes viewed the problem as a choice between two conflicting goals, punishing criminals and preventing governmental lawlessness:
“We have to choose, and for my part I think it a less evil that some criminals should escape than that the government should play an ignoble part.” Olmstead,, 277 U.S. 438,470,72 L. Ed. 944,953,48 S. Ct. 564, 575 (Holmes, J., dissenting).
This need to preserve the courts from seediness is not just a banner waved by dissenters; the role of policy in reaching decisions and the precise policy involved here are both continuing forces in law. First, we see policy at work in decisions as diverse as Riggs v. Palmer (1889), 115 N.Y. 506, 22 N.E. 188, and Henningsen v. Bloomfield Motors, Inc. (1960), 32 N.J. 358, 161 A.2d 69. Riggs involved a murderer’s claim to the victim’s estate; the murderer was an heir. Although positive law gave the murderer the estate, the court defeated the normal rule with the principle that one should not profit from wrongdoing. In Henningsen, the court applied considerations of public policy to pierce a car manufacturer’s limitation of warranty. Dworkin cites the two cases to distinguish rules from principles and to illustrate the different ways they operate. (R. Dworkin, Taking Rights Seriously 22-28 (1977).) Applicable rules dictate a particular result; principles do not dictate results but may be used to justify departures from the rules. See also Barlow, Entrapment and the Common Law: Is There a Place for the American Doctrine of Entrapment? 41 Modern L. Rev. 266 (1978), for a discussion of Dworkin and the jurisprudential basis for the objective theory of entrapment.
In re Friedman (1979), 76 Ill. 2d 392, 392 N.E.2d 1333, was a disciplinary action against a prosecutor who had directed policemen to accept bribes and to perjure themselves in a scheme designed to ferret out unscrupulous attorneys. Although the six judges deciding the case split three ways, four of the six concluded that Friedman’s tactics had stained the courts and were not excused on the grounds that the end justified the means.
The recent rise of the due process defense also reflects displeasure with government-sanctioned lawlessness, for the government’s conduct is the controlling aspect in determining whether that defense applies. United States v. Twigg (3d Cir. 1978), 588 F.2d 373; State v. Morris (Minn. 1978), 272 N.W.2d 35; People v. Isaacson (1978), 44 N.Y.2d 511, 406 N.Y.S.2d 714, 378 N.E.2d 78.
In its zeal to enjoin a nuisance, the majority overlooks a fundamental policy of our legal system. I must dissent from this shortsightedness.