People ex rel. Difanis v. Futia

• Decision Date: 07 February 1978
• Docket Number: No. 14566,14566
• Citation: 373 N.E.2d 530,15 Ill.Dec. 184,56 Ill.App.3d 920
• Parties: , 15 Ill.Dec. 184 The PEOPLE of the State of Illinois ex rel. Thomas DIFANIS, State's Attorney of Champaign County, Illinois, Plaintiff-Appellee, v. Leonard FUTIA, Bud Ross, d/b/a L & L Theatre and Fantasy Photo Studios, Kenneth E. Johnson and Patricia M. Johnson, Defendants-Appellants, Village of Thomasboro, Illinois, a Municipal Corporation, Amicus Curiae.
• Court: United States Appellate Court of Illinois

Page 530

373 N.E.2d 530

56 Ill.App.3d 920, 15 Ill.Dec. 184

The PEOPLE of the State of Illinois ex rel. Thomas DIFANIS State's Attorney of Champaign County, Illinois Plaintiff-Appellee, v. Leonard FUTIA, Bud Ross, d/b/a L & L Theatre and Fantasy Photo Studios, Kenneth E. Johnson and Patricia M Johnson, Defendants-Appellants Village of Thomasboro, Illinois, a Municipal Corporation, Amicus Curiae.

No. 14566.

Appellate Court of Illinois, Fourth District.

Feb. 7, 1978.

Charles C. Hall, Young, Welsch, Young & Hall, Danville, for defendants-appellants.

Thomas J. Difanis, State's Atty., Urbana, Joseph D. Pavia, for plaintiff-appellee.

Webber, Balbach & Thies, P. C., Urbana, for amicus curiae.

MILLS, Presiding Justice.

" * * * the task of trying to define what may be indefinable. * * * hard-core pornography. I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it * * *." Mr. Justice Stewart, concurring, Jacobellis v. Ohio (1964), 378 U.S. 184, 197, 84 S.Ct. 1676, 1683, 12 L.Ed.2d 793, 803-804.

A seamy matter the libidinous, the salacious.

Yet as vapid and offensive as the subject matter before us may be, we are required to reverse.

The Illinois Public Nuisance Act (Ill.Rev.Stat.1975, ch. 100 1/2, pars. 1-11) is the statutory focus of this opinion. Defendants timely appealed the trial court's entry of a default judgment and its refusal to vacate same. This court granted defendants' motion for a stay pending appeal and also granted the Village of Thomasboro's amicus petition. Defendants contend (1) that a decision by Judge Harold Jensen dissolving the temporary injunction entered under the Act amounted to a dismissal of the action; (2) that Judge Robert Steigmann abused his discretion in striking defendants' answer and entering a default judgment; and (3) that Judge Steigmann further abused his discretion in failing to vacate the default judgment.

We agree; all three issues raised by defendants compel reversal. A thorough chronological recitation of events is necessary due to the pervasiveness of error which occurred.

The Illinois Public Nuisance Act was enacted by our legislature in 1915. Section 1 states that all buildings "used for (the) purposes of lewdness, assignation, or prostitution" are declared to be public nuisances and may be abated as provided in the statute. Remedies include perpetual injunctions from maintaining or permitting any such nuisance within the court's jurisdiction, enjoining use of the building involved for any purpose for one year, and forfeiture of fixtures from the building. (Ill.Rev.Stat.1975, ch. 100 1/2, par. 5.) On June 7, 1977, pursuant to the Public Nuisance Act (and a Thomasboro ordinance identical to the Act except for the ordinance's inclusion of "masturbatory massage parlor" in its definition of a public nuisance), the Champaign County State's Attorney filed a verified complaint with exhibits charging that two business establishments operated by defendants in the Village of Thomasboro were public nuisances. On the same day, Judge Jensen entered a "temporary writ of injunction" as provided in Section 2 of the Act (Ill.Rev.Stat.1975, ch. 100 1/2 par. 2). ¹

On June 17, 1977, defendants filed a motion to dissolve the temporary injunction; among the grounds stated was that the complaint failed to state a cause of action. The verified complaint alleged both the L & L Theatre and the Fantasy Photo Studio to be public nuisances. Newspaper ads held out the theatre as an "adult peep show" with live entertainment; a tape recording activated by calling a number listed in the ad described the theatre as "something new and fascinating to excite your wildest imagination." Newspaper ads for the photo studio noted "special props" were available to patrons taking pictures of live models and that the studio specialized in "bondage photography." A taped telephone ad stated young ladies would pose for patrons in private studios either in exotic clothing or nude; the studios were designed to let the customer's "imagination run wild." Paragraph 18 further alleged that females interviewed for employment were told that, once the "heat" was off, they would be allowed to masturbate customers and, later on, to have intercourse with customers. After extensive argument by counsel, the court addressed the question of whether the allegations of the complaint (taken by defendants as true for the purposes of the motion) showed that a nuisance (as defined by the Act) existed. Regarding the allegations of occurrences after the "heat" was off, Judge Jensen stated that the complaint established that such acts were in the future and speculative and that the State could not proceed to enjoin something which might occur in the future.

The court then turned its inquiry to present activities allegedly occurring. The focus was on the definition of "lewdness" in the Act. The court stated:

"In view of Goldman, which says what lewdness must mean, we know that (a pornographic bookstore) isn't and masturbatory massage parlors are. The question then, is, do the activities which we may reasonably conclude go on there rise to the level of lewdness as defined by Goldman, and though my personal definition might be otherwise, I think the language of Goldman leads me to a holding that this injunction could not stand and accordingly on that basis I'm going to allow the motion to dissolve the injunction * * *." (Emphasis supplied.)

The State's Attorney did not seek review of Judge Jensen's decision. Defendants filed their answer to the complaint prior to the hearing on the motion to dismiss.

On or about July 5, 1977, plaintiff sent written interrogatories (73 in number) to each defendant and copies to defense attorney Leff. The defendants never received the interrogatories since the mail was addressed to the Thomasboro business address and there is no general delivery in Thomasboro; and proper mailing addresses of the businesses were in Urbana. After a short time, the interrogatories were returned unclaimed. Mr. Leff received the interrogatories on July 8 and ignored them, based on his view of the legal effect of the June 24 order. On July 20, 1977, the State moved to strike defendants' answer and prayed the trial court enter a default judgment, since answers to the interrogatories had not been filed within 10 days of receipt as provided in section 4 of the Act. On July 25, 1977, the motion was heard before Judge Steigmann.

I.

Defense counsel Hall argues that the court should not have even heard the motion since as a matter of law Judge Jensen's earlier order dissolving the temporary injunction amounted to a dismissal of the complaint; therefore, serving interrogatories would be a useless act. The State rejoins that defendants' position is not supported by presently viable law and defendants have waived the argument and are estopped from asserting the issue since defendants had not previously moved to dismiss the complaint. The State maintains the correctness of the trial court's July 26, 1977, written order finding the defendants' legal argument unmeritorious and that defendants should have earlier moved for dismissal if they believed the earlier order was tantamount to a judgment on the merits. Amicus argues that if defendants are correct on the law, this court, in effect, would be denying the plaintiff's right to appeal the June 24 order.

The appellate court in Clayton v. Hubbard (1962), 33 Ill.App.2d 439, 179 N.E.2d 845, restated the long-standing rule that when the only relief sought by a complaint (in equity) is an injunction, an order dissolving the injunction for want of equity apparent on the face of the complaint is, in effect, an order denying all relief and is a final disposition of the case. (See also Goddard v. Chicago & N. W. R. R. Co. (1903), 202 Ill. 362, 365, 66 N.E. 1066; Titus v. Mabee (1851), 25 Ill. 232). Judge Jensen held "this injunction could not stand" since the acts complained of presently occurring were not "lewdness, assignation, or prostitution" under this court's decision in People v. Goldman (1972), 7 Ill.App.3d 253, 287 N.E.2d 177. The complaint sought the injunctive relief provided in the statute and abatement orders pertaining thereto. Practice and procedure under the Public Nuisance Act is not intended to be different from procedure followed in other chancery cases. (People ex rel. Thrasher v. Eisenberg (1916), 202 Ill.App. 63.) Under Clayton, Goddard, and Titus, the order dissolving the temporary injunction for failure to allege a public nuisance, as defined by case law, amounted to an order denying all relief and was a final disposition of the case.

Consequently, this action ended on June 24, 1977. In so ruling, we do not, and have not, denied the State an opportunity to appeal. Assuming, arguendo, the June 24, 1977, order was not final, it was nonetheless an appealable order under Supreme Court Rule 307(a)(1). (Ill.Rev.Stat.1975, ch. 110A, par. 307(a) (1).) There was no appeal taken. The State cannot now complain that Judge Jensen's determination was erroneous.

Defense counsel's attempt below to argue that the case had been terminated by the June order fell on deaf ears. Judge Steigmann stated:

"I don't know what evidence was presented at (the first hearing). It's not before me. If any was presented. I don't know what portions of the injunction temporarily issued by Judge Jensen he felt were no longer sound, or his precise reasons for doing it. But as I indicated, I think it's beyond the purview of the Court to have to speculate. Accordingly I am not willing to accept the argument of the defendants that the complaint is without substance * * *."

The trial judge erred when he did not attempt to determine the nature and effect of the earlier ruling (as distinguished from a judicial review of the evidence...