People v. Sequoia Books, Inc., s. 2-87-0074
| Citation | 165 Ill.App.3d 143,518 N.E.2d 775,116 Ill.Dec. 153 |
| Decision Date | 19 January 1988 |
| Docket Number | 2-87-0157,Nos. 2-87-0074,s. 2-87-0074 |
| Parties | , 116 Ill.Dec. 153 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. SEQUOIA BOOKS, INC., et al., Defendants-Appellants. |
| Court | United States Appellate Court of Illinois |
J. Steven Beckett (argued), Reno, O'Byrne & Kepley, P.C., Champaign, for Sequoia Books, Inc.
Daniel J. Cain, Sreenan & Cain, P.C., Rockford, for Bruce and Cathy Riemenschneider.
Dallas C. Ingemunson, Kendall Co. State's Atty., Yorkville, William L. Browers, Deputy Director, Marshall M. Stevens (argued), State's Attorneys Appellate Prosecutor, Elgin, for the People.
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:
"[T]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."
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, 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, sale, or offer of sale of obscene materials from the premises. The written order also enjoined both Sequoia and Riemenschneiders from using the business premises for one year, provided that upon posting a bond in the amount of $5,000 and further conditioned upon no violation of 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, for the sale and offer of sale of magazines on May 9 and 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 this appeal was pending, the People moved to revoke the bond and vacate any stay of enforcement of the trial court's January 21, 1987, order. This court remanded for a factual hearing, which was held in the trial court on April 29, 1987, and on May 4, 1987, the trial court entered an order finding that on March 4 and 5, 1987, Sequoia had sold obscene magazines at the business premises and had, therefore, violated the conditions of the bond. On May 11, 1987, over the objections of Sequoia, this court entered an order revoking the appeal bond and dissolving the stay of the injunctive order. On May 29, 1987, the Illinois Supreme Court denied Sequoia's request for a supervisory order to impose a stay.
There are two issues before this court; namely, does the injunction which was entered pursuant to the Code constitute a prior restraint and, if so, whether the Code provides sufficient "procedural safeguards designed to obviate the dangers of a censorship system." (Freedom v. Maryland (1965), 380 U.S. 51, 58, 85 S.Ct. 734, 739, 13 L.Ed.2d 649, 654.) For purposes of this appeal, we do not need to address the issue raised by Riemenschneiders.
The Code which is central to this case reads in pertinent part:
"Any building used in the commission of offenses prohibited by * * * or used in the commission of an inchoate offense relative to any of the aforesaid principal offenses is a public nuisance." (Ill.Rev.Stat.1985, ch. 38, par. 37-1.)
Ill.Rev.Stat.1985, ch. 38, par. 37-4.
It is well established that prior restraint upon speech is antithetical to the first amendment. (Near v. Minnesota ex rel. Olson (1931), 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357.) In Near, the court considered the validity of a Minnesota public nuisance statute. The statute defined as a public nuisance the possession or sale of an obscene or defamatory publication. The statute permitted injunctive relief against future publication and provided for abatement of the nuisance, along with criminal penalties. The defendant, who had been permanently enjoined from publishing his weekly newspaper, argued that the statute violated first amendment guarantees.
In analyzing the case before it, the Near court wrote as follows:
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