APPEAL from the Circuit Court of Lake County; the Hon. HARRY
D. STROUSE, JR., Judge, presiding.
JUSTICE UNVERZAGT DELIVERED THE OPINION OF THE COURT:
This is an appeal from an order of the circuit court of Lake County permanently enjoining the defendant from selling or offering for sale 57 magazines which the trial court found were obscene. The judgment was the culmination of a lengthy procedural history which is detailed in full below as necessary background for the issues raised here.
On February 11, 1980, the plaintiff, City of North Chicago, filed a complaint in the circuit court of Lake County for temporary and permanent injunctions against G.L. Hobbies to enjoin it from continuing to sell obscene books, magazines and motion pictures, which practice had resulted in several prosecutions for violation of the North Chicago Obscenity Ordinance, thus constituting what the plaintiff alleged to be a nuisance for which there was no adequate remedy at law. North Chicago News, Inc., was later permitted to be substituted as defendant in an amended complaint filed on March 12, 1980. The defendant filed a motion to strike and dismiss on April 2, 1980, and plaintiff moved for a preliminary injunction against defendant on May 7, 1980. On May 14, 1980, the trial court reserved its ruling on the motion to dismiss and allowed plaintiff time to file a bill of particulars or a second amended complaint specifying the publications of which it complained. Plaintiff's second amended complaint, filed on May 29, 1980, specified nine magazines and two films which it alleged were sold or offered for sale by the defendant and were obscene. On June 17, 1980, the defendant moved to strike and dismiss the second amended complaint; this motion was denied on June 17, 1980. Defendant filed its answer to the second amended complaint, and plaintiff filed a "Request for Production of Documents" on August 12, 1980, seeking inter alia one copy of each magazine or booklet which pictorially depicted nude male or female homosexual activities, oral-genital heterosexual activity, or bestiality. Plaintiff then moved for summary judgment on October 27, 1980, enumerating the sale date, title and price of 13 specific works and two films which it alleged to be obscene and/or pornographic in violation of the city's ordinance. This motion was supported by five photographs of the interior of the defendant's premises showing display racks holding apparently sexually explicit materials and various devices.
On December 1, 1980, the defendant filed its "Suggestions in Opposition to Plaintiff's Motion for Summary Judgment," which in essence alleged the attempted suppression of materials not previously judicially determined to be obscene was a violation of defendant's first amendment rights, and that the materials in question are not "patently offensive" since a majority of Illinois adults consider it acceptable to purchase and view sexually explicit materials. That allegation was based on the results of a survey noted in People v. Nelson (1980), 88 Ill. App.3d 196; according to defendant's supporting affidavit, it had not yet been able to procure an affidavit from the author of that survey. Defendant also submitted a memorandum in support of its opposition to the summary judgment motion. Plaintiff filed a reply on January 14, 1981, and on that date at defendant's request the trial court set a hearing for February 9, 1981, on the issue of community standards. On January 15, 1981, plaintiff filed a "Notice to Produce at Trial" requesting the defendant produce at the February 9 hearing:
"One copy of each magazine offered for sale in January 1981 which:
1. * * * contains photographs of women and men engaging in oral sexual activities with other's genitalia.
2. * * * depicts oral sexual activity between members of the same sex.
3. * * * contains portrayals of ejaculation.
4. * * * contains portrayals of anal sexual relations.
5. * * * portray[s] women licking or eating male spermazoa [sic].
6. * * * contain[s] close-ups of male and female genital organs engaged in a sexual relationship."
Defendant did not comply with that notice to produce, ostensibly because the cause was not yet "at trial." At the February 9 hearing, in lieu of presenting testimony on the issue of community standards, the defendant filed a supplemental answer to the plaintiff's motion for summary judgment which was supported by the affidavits of Professor Roderick Bell and George Sullivan, which included numerous documentary and pictorial supporting exhibits. Bell had conducted the obscenity survey discussed in People v. Nelson, and Sullivan was a private investigator employed by the defendant to investigate the availability in other stores of materials similar to those offered for sale by the defendant. Plaintiff replied to defendant's supplemental answer which recognized the one remaining issue in the case was "whether the material offends community standards," and that the trier of fact — either judge or jury — may decide this in determining whether the materials are obscene or not based on the evidence of the material itself. Plaintiff alleged that Bell's survey was inadequate to present a question of fact since it did not seek opinions with respect to "hardcore pornography" of the type offered for sale by the defendant.
On February 19, 1981, the trial court entered an order finding 23 specifically named items were obscene, permanently enjoining the defendant from selling the items by writ issued instanter, finding no just cause to delay enforcement or appeal of the injunction order, and noting that all remaining issues in the cause would be continued, to be taken up on notice of the parties. Defendant timely filed a notice of appeal from that order. This court granted defendant's substituted counsel's motion to voluntarily dismiss that appeal without prejudice on April 9, 1981, and, according to the defendant, "no issues relative to the February 9, 1981, injunctive order of Judge Strouse are raised by this appeal."
Thereafter, on March 11, 1981, plaintiff filed a petition for additional relief alleging that on February 28, March 2 and March 4, 1981, the defendant and/or through its employees sold six specified items which were "the same type of pornographic material which [the] court reviewed in detail on January 14 and February 19, 1981." The petition sought judicial review of the six items for a determination of their obscenity, and an injunction against sale of those items and "other materials substantially identical in content." In the alternative, the plaintiff requested that the court order the defendant to produce for examination by the court all magazines and paperback books presently available for sale, or that the defendant cease business for an appropriate period of time as a sanction. The six items specified in the petition were marked as exhibits Nos. 1 through 6 and filed with the court. On March 16, defendant filed an answer and a motion to strike and dismiss. The basis of the dismissal motion was that the petition raised issues which had ...