APPELLATE COURT OF ILLINOIS, SECOND DISTRICT
518 N.E.2d 775, 165 Ill. App. 3d 143, 116 Ill. Dec. 153 1988.IL.47
Appeal from the Circuit Court of Kendall County; the Hon. Wilson D. Burnell, Judge, presiding.
JUSTICE WOODWARD delivered the opinion of the court. NASH and REINHARD, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WOODWARD
Defendants, Sequoia Books, Inc. (Sequoia), and Bruce and Cathy Riemenschneider (Riemenschneiders), appeal from a permanent injunction issued by the circuit court of Kendall County which restrained them from using a building commonly known as "Denmark II" for one year.
On January 7, 1986, the Kendall County State's Attorney filed a complaint for injunction directed against Sequoia and Riemenschneiders under the new authority of section 37-1 of the Criminal Code of 1961 (Code) (Ill. Rev. Stat. 1985, ch. 38, par. 37-1 et seq.). The complaint asserted, in substance, that Sequoia operated the Denmark II Bookstore at a location on U.S. Route 30, in Kendall County, which was owned by Riemenschneiders, from which location Sequoia disseminated sexually explicit items which were obscene. The complaint further contended that Sequoia and its employees continued to sell materials, including magazines, despite criminal convictions for obscenity and jury determinations that magazines sold at the store were obscene. Accordingly, the State prayed that the business location be declared a public nuisance and that the trial court issue preliminary and permanent injunctions closing the building.
Sequoia responded with a motion to dismiss which, inter alia, contended that the amended statute was unconstitutional on its face because it permitted the imposition of an invalid prior restraint on future speech and because it did not contain the procedural safeguards of a system of prior restraint. At an initial hearing on the complaint, the trial court denied the motion to dismiss and indicated its belief that the Code was constitutional.
At the February 19, 1986, hearing and at a subsequent hearing held August 29, 1986, the trial court, by the testimony of witnesses and through judicial notice, heard a body of factual evidence about the ownership and operation of the Denmark II Bookstore. Since 1982 the location has been owned by the Riemenschneiders, who lease it to Sequoia for the operation of the bookstore. Sequoia operates an adult bookstore on the business premises which offers for sale sexually explicit magazines.
From 1982 to 1985, 40 criminal cases had been filed by the Kendall County State's Attorney against Sequoia or its employees, charging violation of the obscenity statute with respect to approximately 1,500 magazines. Twenty-six of those cases were dismissed by agreement based on a policy of the State's Attorney to not prosecute clerks who left the employment of the store. Three cases against clerks resulted in directed verdicts in the defendant's favor on the basis of failure of proof on the issue of scienter. Two cases were jury verdicts of not guilty in favor of defendants who were clerks, and one jury verdict of not guilty was returned in favor of Sequoia. Two hundred thirty-three magazines had been charged in these cases. One jury verdict of guilty was returned against a defendant-clerk, and seven jury verdicts of guilty were returned against the corporate defendant. In those cases, 165 magazines were determined by the jury to be obscene, 40 magazines were determined to be not obscene, and no jury determination was obtained as to 255 magazines because they were withdrawn from consideration by the filing of amended charges.
In 1986 the Kendall County State's Attorney commenced four criminal actions against Sequoia and secured jury verdicts of guilty in each of the cases. Those verdicts included jury findings that 558 magazines were obscene and 13 magazines were not obscene.
On March 12, 1986, the trial court issued a preliminary injunction against Sequoia. The order was reduced to writing on March 14, 1986, and stated in part:
"[This] Court hereby enjoins the defendant, Sequoia Books, Inc., its agents, employees and assigns from maintaining the public nuisance . . . and further expressly enjoins the defendant, Sequoia Books, Inc., its agents employees and assigns from exhibiting, selling or offering for sale materials in violation of Chapter 38, Section 11 -- 20 Illinois Revised Statutes."
An attempted interlocutory appeal of this order was dismissed by this court on May 1, 1986, as being improperly perfected.
On July 25, 1986, the Kendall County State's Attorney filed a petition for rule to show cause against Sequoia alleging violation of the preliminary injunction order for the sale or offer of sale of obscene magazines on March 27 and 28, 1986, and May 9 and 29, 1986. Sequoia filed written objections in response on August 29, 1986, and contended that the preliminary injunction order was unconstitutional and the procedure being utilized imposed an invalid prior restraint.
On August 29, 1986, a hearing on the request for a permanent injunction was held. On January 7, 1987, the trial court orally pronounced its ruling that it would grant injunctive relief and order the building closed, but would stay the closure upon the posting of a bond:
"I think that the injunction would be that they are enjoined from selling obscene magazines on the premises and that the premises should be closed for six months unless Sequoia or -- and Riemenschneider give a bond that obscene magazines are not going to be sold from the premises and if they are, ...