APPEAL from the Circuit Court of St. Clair County; the Hon.
D.W. COSTELLO, Judge, presiding.
MR. JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
Defendants, Cathleen A. Morgan and Larry R. Kimmel, appeal from convictions for violations of the obscenity ordinance of the city of Belleville. The various charges were prosecuted in three separate cases and heard before the court, sitting without a jury. The appeals from the three have been consolidated in this court for the purpose of review. The cases involved either the sale or the offering for sale of nine different magazines at a certain magazine shop.
Defendant Morgan was found guilty in two cases on the basis of respective sales of the February 1976 issue of Playboy magazine and a magazine entitled Love Games. In the third case, she was found guilty of two sales of the February 1976 issue of Viva magazine, one sale each of the February and March 1976 issues of Playgirl magazine, the December 1974 issue of Genesis magazine and the magazine Loving Couples and of displaying for the purpose of sale the April 1976 issue of Dapper magazine. Defendant Kimmel was found guilty in the same case for the sale of the March 1975 issue of Gallery magazine. The court fined defendant $50 and court costs on each violation.
Defendants present three issues as to all the cases. In essence, they are: (1) was the refusal of the court to allow defendants to take discovery by interrogatories or depositions concerning what parts of the magazines were asserted to be obscene under the ordinance an abuse of discretion; (2) is the ordinance constitutional in light of its inclusion of nudity as an element of obscenity; and (3) are the magazines protected by the First Amendment or regulable as obscenity by the instant ordinance. In addition, defendants present the following issue as to the third case, involving numerous magazines: is the ordinance vague and overbroad, hence, unconstitutional, because it fails to advise defendants of the conduct prohibited by the ordinance.
Defendant Morgan served written interrogatories upon the City in the Playboy and Love Games cases. The interrogatories sought an enunciation as to which items in the magazines were alleged by the City to be violations of the various enumerations of offensive conduct found in the ordinance. Similarly, a motion for leave to take depositions was filed by defendants in the third case, wherein the numerous violations set out above were consolidated for trial. Both motions were denied.
Defendants contend that the court abused its discretion in denying them the requested pretrial discovery.
1 In City of Danville v. Hartshorn (1973), 53 Ill.2d 399, 292 N.E.2d 382, our supreme court, after noting the somewhat amorphous nature of prosecutions for violations of municipal ordinances, being considered civil in form although quasi-criminal in character, held that whether the discovery provisions of the Civil Practice Act might be invoked by a defendant in an ordinance prosecution is within the discretion of the trial court. In response to this holding, Supreme Court Rule 201 (Ill. Rev. Stat. 1975, ch. 110A, par. 201) was amended in 1974 (effective September 1, 1974) by the addition of paragraph (h) which provides:
"Discovery in Ordinance Violation Cases. In suits for violation of municipal ordinances where the penalty is a fine only no deposition shall be taken or other discovery procedure used prior to trial except by leave of court."
2 This court is left to conjecture as to whether the obscenity violations were punishable by fine only since the defendants never made a record of what the possible penalties were. In view of the accepted rule that any doubt arising from the incompleteness of the record will be resolved against the appellant (Solomon v. City of Evanston, 29 Ill. App.3d 782, 331 N.E.2d 380; Reed v. Hoffman, 48 Ill. App.3d 815, 363 N.E.2d 140), we must presume that the authorized penalty is fine only and that Rule 201(h) applies.
The appellate court will not find error or set aside a ruling of the trial judge based on a discretionary matter unless there has been a clear abuse of discretion. (Sherman v. City of Springfield, 111 Ill. App.2d 391, 250 N.E.2d 537.) After due consideration, we find that the court's denials of the motions for discovery were not abuses of discretion.
3 The city's ordinance is explicit as to what is considered unlawful, namely, "patently offensive representations or descriptions of nude persons, ultimate sexual acts, normal or perverted sexual conduct, whether actual or simulated, or patently offensive representations or descriptions of masturbation, excretory functions, or lewd exhibition of the genitals." As a result of this specific enumeration, defendants were adequately on notice as to what portions of the magazines required their defense. In addition, it would be illogical to require the prosecuting authority to be more specific in discovery as to the objectionable portions of the alleged obscene material than is required at trial. The United States Supreme Court has consistently regarded the materials as sufficient in themselves for determination of the questions of obscenity and rejected the need for any other ancillary evidence of obscenity once the allegedly obscene material is placed into evidence. Ginzburg v. United States (1966), 383 U.S. 463, 465, 16 L.Ed.2d 31, 86 S.Ct. 942; Paris Adult Theatre I v. Slaton, 413 U.S. 49, 56, 37 L.Ed.2d 446, 93 S.Ct. 2628; Kaplan v. California, 413 U.S. 115, 121, 37 L.Ed.2d 492, 93 S.Ct. 2680. (The city, in these cases, did confine its case against the magazines to introduction of them as exhibits.)
4 In Miller v. California (1973), 413 U.S. 15, 37 L.Ed.2d 419, 93 S.Ct. 2607, the United States Supreme Court reaffirmed numerous decisions declaring that "obscene material is unprotected by the First Amendment" (413 U.S. 15, 23, 37 L.Ed.2d 419, 430, 93 S.Ct. 2607, 2614 (and consequently not protected in the States through the Fourteenth Amendment)), and set forth the test for determining whether alleged obscene materials are regulable as obscenity or protected by the First Amendment:
"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, Kois v. Wisconsin, [408 U.S. 229, 230, 33 L.Ed.2d 312, 315, 92 S.Ct. 2245, 2246], quoting Roth v. United States, [354 U.S. 476, 489, 1 L.Ed.2d 1498, 1509, 77 S.Ct. 1304, 1311]; (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." 413 U.S. 15, 24, 37 L.Ed.2d 419, 431, 93 S.Ct. 2607, 2615.
The court also gave two examples of what a statute could define for regulation under part (b) of the announced standard. They were:
"(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or ...