By JOHN H. MARTIN

Judicial Rulings

Illinois Supreme Court

Common law nuisance action properly applied against obscene stage show

LIVE SEX acts performed on stage can be prohibited as a common law public nuisance as long as criminal prosecution has been proved inadequate to stop the acts and the injunction conforms to the criminal obscenity statute, the state Supreme Court ruled June 18. In the case, City of Chicago v. Festival Theatre Corporation, the appellate court, citing the U.S. Supreme Court definition of obscenity, had ruled that the concept of "common law public nuisance" was too vague to apply, and ordered the injunction against the performances removed. Justice Daniel P. Ward, speaking for the high court, agreed. But Ward, noting that Illinois' criminal obscenity statute has been found to conform to the U.S. Supreme Court's definition of obscenity, said, "The vagueness difficulty . . . may be corrected by restricting the reach of the common law nuisance action to the definition of obscenity in our criminal obscenity statute." The appellate court had rejected that argument.

Ward also disagreed with the appellate court's holding that the procedures of civil nuisance actions, particularly the absence of a jury and an easier standard of proof, made them unsuitable for obscenity actions. "We recognize that a jury may be useful in determining whether a performance in a given case is obscene according to contemporary community standards. . . [But] under our civil procedure the court is authorized to call an advisory jury to assist it where the court deems necessary. . . As to the propriety of the civil standard of proof, we would observe that the [U.S.] Supreme Court has recently held that proof beyond a reasonable doubt is not required in a civil public nuisance abatement action involving obscenity."

The appellate court had also found that the injunction constituted a prior restraint on freedom of expression. But Ward disagreed, saying, "While the injunction does list a variety of sexual acts, it does not proscribe the performance of those acts in all contexts and unconditionally. . . The injunction does no more than order the de-against obscenity at the theater. . . defendants here could not be held in contempt unless it were shown that they staged a performance that was obscene."

Ultimately, however, the high court found itself in agreement with the appellate court's decision to reject the injunction against the acts on the ground that remedies under the criminal obscenity statute had not been sufficiently tried. Although criminal proceedings were started in the case, they had not been completed by the time the injunction was issued. "We do not hold that an injunction action may not be hereafter brought against the defendants. . . An injunction, though, should not issue unless criminal prosecution is shown to be an inadequate remedy."

Builder's liability for a defective home extends beyond original purchaser

THE "IMPLIED warrant of habitability" by which homebuilders, in selling a new home, are held to imply to the new owners that the home is not only habitable but reasonably suited for its intended use was extended to subsequent owners of the home by the state Supreme Court June 18. In the case, Donald J. Redarowicz v. William H. Ohlendorf, the second purchasers had bought the home after the original owners had lived there for about one year. The new owners soon found various defects which led to leaks in the basement and roof and separation of the chimney from the house. The owners filed suit seeking, under the implied warrant of habitability, to force the builder to repair the defects, but the circuit court dismissed that count of the complaint and the appellate court affirmed.

In delivering the high court's ruling, Justice William G. Clark noted that the implied warrant of habitability came into existence as a protection to homebuyers who lacked the expertise to judge whether the home they were buying was indeed habitable. Until the present case, the implied warrant applied in Illinois only to the original purchaser. But said Clark, "Like the initial purchaser, the subsequent purchaser is usually not knowledgeable in construction practices and must . . . rely upon the expertise of the person who built the home. If construction of a new house is defective, its repair costs should be borne by the responsible builder-vendor who created the latent defect. The compelling public policies

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underlying the implied warrant of habitability should not be frustrated because of the short intervening ownership of the first purchaser. . . " Clark emphasized, however, that the court's ruling is limited to "latent defects which manifest themselves within a reasonable time after the purchase of the house."

An abstention counts as a 'yes' vote under Illinois Municipal Code

UNDER THE Illinois Municipal Code the failure of a village trustee to vote on an ordinance constitutes a "yes" vote, the Illinois Supreme Court ruled June 18. In the case, Ronald Prosser v. The Village of Fox Lake, three members of the six-member board voted yes on two related proposals; one voted no, and one was not present. The sixth member of the board, who was also acting village president, refrained from voting but approved the ordinances.

In the absence of voting procedures established by a municipal board itself, the Illinois Municipal Code requires "the concurrence of a majority" to pass a city ordinance. "The issue for our review," wrote Justice Daniel P. Ward in the high court's ruling, "is whether the failure of an elected trustee. . . to vote on a proposed ordinance during a meeting. . . at which he was present constitutes concurrence in the action taken by the majority of those voting."

An abstention, vote of "present" or refusal to vote constitutes either a "yea" or "nay" vote, depending on the voting procedures the board operates under, Ward said. "If 'the affirmative vote' of a majority. . . is required. . . then nothing less than a majority of 'yea' or 'aye' votes will result in passage. An attempt to vote to 'abstain'. . . or a failure to vote shall be considered to have the effect of a 'nay' vote." But when, as under the municipal code, the "concurrence" of a majority is required to pass an ordinance, "a failure to vote when present constitutes an acquiescence or concurrence with the members of the majority who did vote on the question involved," Ward said.

Dissenting from the majority, Justice Seymour Simon, who was joined by Justice Clark, argued that such an interpretation of concurrence could lead to legislative chaos.

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