SUPREME COURT OF ILLINOIS
537 N.E.2d 302, 127 Ill. 2d 271, 130 Ill. Dec. 235 1989.IL.375
Appeal from the Appellate Court for the Second District; heard in that court on appeal from the Circuit Court of Kendall County, the Hon. Wilson D. Burnell, Judge, presiding.
JUSTICE CLARK delivered the opinion of the court. CHIEF JUSTICE MORAN took no part in the consideration or decision of this case. JUSTICE MILLER, Dissenting. JUSTICE RYAN joins in this Dissent.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CLARK
The precise question presented upon this appeal is whether the State may, consistent with the first amendment, enjoin persons who have sold obscene books out of a building from using that building for any purpose during a specified period of time unless they first post a bond forfeitable upon the renewed sale of obscene books from the premises. We answer this question in the negative.
On January 7, 1986, the Kendall County State's Attorney filed a complaint for preliminary and permanent injunctions against the appellees, Sequoia Books, Inc., Bruce Riemenschneider, and Cathy Riemenschneider, under the authority of sections 37-1 and 37-4 of the Criminal Code of 1961 (Code) (Ill. Rev. Stat. 1985, ch. 38, pars. 37-1, 37-4). After various proceedings, detailed below, the circuit court issued the requested injunctions in written orders, and the defendants appealed. On appeal, the appellate court, in a unanimous decision, held section 37-1 et seq. unconstitutional as applied to adult bookstores which sell sexually explicit materials, and reversed the orders. (165 Ill. App. 3d 143.) This appeal followed.
The provision which the appellate court found unconstitutional states in pertinent part that "[a]ny building used in the commission of offenses prohibited by Section. . . 11-20 . . . of the 'Criminal Code of 1961' . . . or used in the commission of any inchoate offense relative to any of the aforesaid principal offenses is a public nuisance." (Ill. Rev. Stat. 1985, ch. 38, par. 37-1.) Section 11-20 of the Criminal Code defines the offense of obscenity, a Class A misdemeanor. (Ill. Rev. Stat. 1985, ch. 38, par. 11-20.) Knowing maintenance of a public nuisance is also a Class A misdemeanor. (Ill. Rev. Stat. 1985, ch. 38, par. 37-1(b).) Under a subsequent provision,
"The Attorney General of this State or the State's Attorney of the county wherein the nuisance exists may commence an action to abate a public nuisance as described in Section 37-1 of this Act, in the name of the People of the State of Illinois, in the circuit court. Upon being satisfied by affidavits or other sworn evidence that an alleged public nuisance exists, the court may without notice or bond enter a temporary restraining order or preliminary injunction to enjoin any defendant from maintaining such nuisance and may enter an order restraining any defendant from removing or interfering with all property used in connection with the public nuisance. If during the proceedings and hearings upon the merits . . . the existence of the nuisance is established, and it is found that such nuisance was maintained with the intentional, knowing, reckless, or negligent permission of the owner or agent of the owner managing the building, the court shall enter an order restraining all persons from maintaining or permitting such nuisance and from using the building for a period of one year thereafter, except that an owner, lessee or other occupant thereof may use such place if the owner shall give bond with sufficient security or surety approved by the court, in an amount between $1,000 and $5,000 inclusive, payable to the People of the State of Illinois, and including a condition that no offense specified in Section 37-1 of this Act shall be committed at, in or upon the property described and a condition that the principal obligor and surety assume responsibility for any fine, costs or damages resulting from such an offense thereafter." (Emphasis added.) Ill. Rev. Stat. 1985, ch. 38, par. 37-4.
The facts adduced at the hearings below, which are essentially undisputed, are as follows. Since 1982 the Riemenschneiders have owned the building which houses the Denmark II Bookstore, located on U.S. Route 30 in Kendall County. The Riemenschneiders lease the building to Sequoia Books, which operates the store. The store sells sexually explicit magazines.
From 1982 to 1985, 40 criminal cases were 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 the 40 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 defendants' favor because of lack of proof on the issue of scienter. Three other cases resulted in jury verdicts of not guilty in favor of two defendants who were clerks, and one jury verdict of not guilty in favor of defendant 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 Sequoia. In the eight cases in which guilty verdicts were returned, 165 magazines were determined by the juries to be obscene, 40 magazines were determined to be not obscene, and no jury determination was obtained as to an additional 255 magazines because they were withdrawn from consideration by the filing of amended charges.
In 1986, the Kendall County State's Attorney commenced four more criminal actions against Sequoia and secured jury verdicts of guilty in each of these cases. Those verdicts included findings that 558 magazines were obscene and 13 magazines were not obscene.
On January 7, 1986, the State's Attorney filed a complaint for an injunction under sections 37 -- 1 and 37 -- 4 of the Code. The complaint asserted, in essence, the facts stated above, further contending that Sequoia and its employees continued to sell materials, including magazines, despite their criminal convictions for obscenity and jury determinations that the magazines sold at the store were obscene. Accordingly, the State asked that the property 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, asserting that the statute, as applied to sexually explicit materials, was invalid on its face because it permitted the imposition of an invalid prior restraint, and because it did not contain the procedural safeguards a valid system of prior restraint requires. At an initial hearing on the complaint, the trial court denied the motion to dismiss and indicated its belief that the Code was constitutional.
An initial hearing was held on February 19, 1986. The facts alleged above were introduced into evidence. On March 14, 1986, the trial court issued a preliminary injunction against Sequoia. The injunction stated in part:
"his 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."
On May 1, 1986, the appellate court dismissed an attempted interlocutory appeal of this order as being improperly perfected.
On July 25, 1986, the State's Attorney filed a petition for rule to show cause against Sequoia alleging that Sequoia had violated the preliminary injunction by selling and offering to sell obscene magazines on two specified dates. On August 29, 1986, Sequoia filed written objections in response, contending that the preliminary injunction was unconstitutional and that the procedure being utilized imposed an invalid prior restraint. On that same date, another hearing was held, this time to consider the State's request for a permanent injunction.
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 on 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, then they will -- then judgment will be entered against them for that amount."
On January 21, 1987, the trial court entered a written order which enjoined Sequoia from maintaining a public nuisance in the Denmark II Bookstore location and expressly enjoined the exhibition, offer, or sale of obscene materials from the premises. The written order also enjoined both Sequoia and the Riemenschneiders from using the business premises for one year, provided upon posting a bond in the amount of $5,000 and further conditioned upon no further commission of the offenses specified in section 37 -- 1 of the Code, the building could be used.
Also on January 21, 1987, the trial court found that Sequoia had violated the preliminary injunction order of March 14, 1986, by selling and offering to sell obscene magazines on May 9 and on May 29, 1986. Finding Sequoia in contempt, the trial court imposed a fine of $500.
Sequoia posted the $5,000 bond as required by the January 21, 1987, order. While Sequoia appealed the permanent injunction, the State moved to revoke the bond and vacate any stay of enforcement of the trial court's January 21, 1987, order. The appellate court remanded for a factual hearing, which was conducted in the trial court on April 29, 1987. On May 4, 1987, the trial court entered an order finding that Sequoia had violated the conditions of the bond by selling obscene magazines on March 4 and March 5. On May 11, 1987, over the objections of Sequoia, the appellate court entered an order revoking the ...