HON. JOHN P. SHONKWILER
Chief Judge
Sixth Judicial Circuit
Monticello
©Copyright 2001 by John P. Shonkwiler.
Revised 10/03 by John P. Shonkwiler.
I. Introduction
A. [2.1] Scope of Chapter
B. [2.2] Contempt Defined
C. [2.3] Court's Inherent Authority
D. [2.4] Civil and Criminal Contempt Distinguished
II. Civil Contempt
A. Petition for Contempt
1. [2.5] Filing the Appropriate Petition
2. [2.6] Form of Petition
3. [2.7] Setting the Petition or Rule for Hearing
4. [2.8] Dismissal of the Petition Before Hearing
5. [2.9] Form of Order To Show Cause
B. Service of Notice of the Hearing
1. [2.10] Type of Service Required
2. [2.11] Failure To Appear After Notice
3. [2.12] Order of Attachment
4. [2.13] Forms of Motion for Attachment and Order for Attachment
C. The Hearing
1. [2.14] Due Process -- Indirect Civil Contempt
2. [2.15] Due Process -- Direct Civil Contempt
3. [2.16] Right to Court-Appointed Counsel
4. [2.17] Right to Trial by Jury
5. [2.18] Substitution of Judge
6. [2.19] Conduct of the Hearing
7. [2.20] Burden of Proof
8. [2.21] Wilfulness/Intent Not Required When Contemptuous Act Involves Violation of Injunction
9. [2.22] Double Jeopardy
10. [2.23] Use of Contempt To Enforce Discovery Orders
11. Enforcement of Child Support/Maintenance Orders
a. [2.24] In General
b. [2.25] The Unemployed Respondent/Payor
c. [2.26] Supreme Court Rule 296
12. [2.27] Direct Civil Contempt for Refusal To Answer Court's Questions at Sentencing Hearing
13. Recalcitrant Witness
14. [2.30] Use of Indirect Civil Contempt To Enforce Orders of Probation During/After Term of Probation
D. [2.31] Imposition of Sanctions
1. [2.32] Nature of Sanctions
8 2. [2.33] Use of Contempt When Fifth Amendment Invoked
3. [2.34] Civil Sanctions
4. [2.35] Compensatory Contempt
5. [2.36] Attorneys' Fees
E. The Judgment Order of Contempt
1. [2.37] Requirements of a Valid Order
2. [2.38] Requirement To Obey a Lawful Order
3. [2.39] Form of Judgment Order of Contempt
F. [2.40] Right To Appeal
G. [2.41] Defenses in Civil Contempt Cases
1. [2.42] Void Order
2. [2.43] Contempt Order Against Public Officials
3. [2.44] Lack of Knowledge of the Order
4. [2.45] Lack of Wilfulness
5. [2.46] Lack of Present Means or Ability To Comply with the Order
6. [2.47] Equitable Estoppel
7. [2.48] Laches/Limitations
8. [2.49] Discharge in Bankruptcy
9. [2.50] Automatic Stays
10. [2.51] Lack of Certainty or Clarity in the Order
11. [2.52] When Performance Would Be in Violation of the Law
III. [2.53] Criminal Contempt
A. [2.54] Constructive Direct Criminal Contempt
B. [2.55] Direct Criminal Contempt
1. [2.56] Verbal and Non-Verbal Acts of Contempt
2. [2.57] Formal Charge Not Required
3. [2.58] Due Process Rights of Contemnor in Direct Criminal Contempt
4. [2.59] Substitution/Recusal of Judge
5. [2.60] Course of Action Available to the Court
6. [2.61] Imposition of Sanctions
7. [2.62] Order of Direct Criminal Contempt
C. [2.63] Indirect Criminal Contempt
1. [2.64] Prosecution of Indirect Criminal Contempt
2. [2.65] Petition for Adjudication of Indirect Criminal Contempt
3. [2.66] Type of Action
4. [2.67] Form of the Petition
5. [2.68] Service of Notice
6. [2.69] Form of Summons -- Indirect Criminal Contempt
7. [2.70] Form of Motion for Attachment and Order of Attachment
8. [2.71] Respondent's First Appearance and Arraignment
9. [2.72] Due Process Rights -- Indirect Criminal Contempt
10. [2.73] Substitution/Recusal of Judge
11. [2.74] The Hearing -- Burden of Proof
D. [2.75] Imposition of Sanctions in Minor and Serious Contempt -- Right To Make Statement in Allocution
E. [2.76] Assessment of Attorney Fees
F. [2.77] Judgment Order of Criminal Contempt
G. Forms of Orders -- Criminal Contempt
1. [2.78 Form of Order for Adjudication of Direct Criminal Contempt
2. [2.79] Form of Order for Adjudication of Indirect Criminal Contempt
H. [2.80] Appeal
I. [2.81] Double Jeopardy
J. Use of Criminal Contempt
1. [2.82] Overstepping the Bounds of Attorney Advocacy
2. [2.83] Violating an Order of Probation
3. [2.84] Discipline of Attorneys for Violation of the Illinois Rules of Professional Conduct
4. [2.85] Forcing a Defendant To Answer Court's Questions at Sentencing Hearing
5. [2.86] Failure To Pay Child Support/Maintenance
6. [2.87] Enforcement of Discovery
7. [2.88] Enforcement of Orders of Protection
8. [2.89] Enforcing Child Visitation
K. Defenses to Criminal Contempt
1. Direct Criminal Contempt
IV. Comparison Chart
I. INTRODUCTION
A. [2.1] Scope of Chapter
This chapter addresses the basic principles of and distinctions among direct and indirect civil and criminal contempt, outlines the due process rights of the contemnor in each type of contempt, provides a step-by-step procedure in prosecuting an indirect civil or criminal contempt, and discusses the defenses available.
B. [2.2] Contempt Defined
"Contempt" is defined as verbal or non-verbal conduct that
1. embarrasses or obstructs the court in its administration of justice or derogates from its authority or dignity (In re Estate of Melody, 42 Ill.2d 451, 248 N.E.2d 104 (1969));
2. brings the administration of justice into disrepute (id.); or
3. constitutes disobedience of a court order or judgment (County of Cook v. Lloyd A. Fry Roofing Co., 59 Ill.2d 131, 319 N.E.2d 472 (1974)).
C. [2.3] Court's Inherent Authority
Although a number of statutes provide for the exercise of the court's contempt power, the courts have inherent power to enforce their own orders and punish for contemptuous acts.
The concept of contempt of court developed during the early rule of English kings. It was a vehicle for assuring the dignity and respect for the sovereign. As society became more diverse, the monarch found it necessary to have some aspects of his powers exercised by representatives. The courts acted for the monarch, and their exercise of power arose from the presumed contempt of the monarch's authority. Gradually, this basic concept shifted from a power of the courts as adjuncts of the monarch to one inherent in the courts themselves.
The inherent power of contempt followed English common law to the colonies and was adopted by United States courts. In 1873, the United States Supreme Court stated:
The power to punish for contempt is inherent in all courts; its existence is essential to the preservation of order in judicial proceedings, and to the enforcement of the judgments, orders and writs of the courts, and consequently to the due administration of justice. Ex Parte Robinson, 86 U.S. 505, 510 , 22 L.Ed. 205 (1873).
The power to punish for contempt does not depend on constitutional or legislative grant. Because the power to enforce court orders through contempt proceedings inheres in the judicial branch of the government, the legislature may not restrict its use. In re G. B., 88 Ill.2d 36, 430 N.E.2d 1096, 1098, 58 Ill. Dec. 845 (1981), citing In re Baker, 71 Ill.2d 480, 376 N.E.2d 1005, 17 Ill. Dec. 676 (1978), and People ex rel. Rusch v. White, 334 Ill. 465, 166 N.E. 100 (1929). See also Doyle v. London Guarantee & Accident Co., 204 U.S. 599, 51 L.Ed. 641, 27 S. Ct. 313 (1907).
Illinois courts are constitutional courts and, as such, are procedurally bound only by the U.S. Constitution, the U.S. Supreme Court, and the Illinois reviewing courts -- they cannot be circumscribed in their powers of contempt by the legislature. Federal district courts and some foreign state courts, on the other hand, are creatures of the legislative process, and their contempt powers are legislatively prescribed.
Contempt has no statute of limitations. Hence, a court can proceed in contempt at any time while it retains jurisdiction over the matter. However, the time for proceeding in contempt has been discussed in terms of laches. The circumstances in each case should be carefully examined to determine when lapse of time would make it unjust or unfair to compel a respondent to answer contempt charges. People ex rel. Chicago Bar Association v. Barasch, 21 Ill.2d 407, 173 N.E.2d 417 (1961).
D. [2.4] Civil and Criminal Contempt Distinguished
The primary distinguishing factor between civil and criminal contempt is the sanction imposed -- from this point spring all other elements of the contempt process.
In People ex rel. Chicago Bar Association v. Barasch, 21 Ill.2d 407, 173 N.E.2d 417, 418 (1961), the Supreme Court of Illinois stated:
Contempt proceedings, while usually called civil or criminal, are, strictly speaking, neither. They may best be characterized as sui generis, and may partake of the characteristics of both. . . . Proceedings in the nature of criminal contempt have been defined as those directed to preservation of the dignity and authority of the court, while it has been said that civil contempts are those prosecuted to enforce the rights of private parties and to compel obedience to orders or decrees for the benefit of opposing parties. . . . These principles, while seemingly plain and adequate, are most difficult to apply. The line of demarcation in many instances is indistinct and even imperceptible. . . . A further guide may be found in the purpose of punishment. Imprisonment for criminal contempt is inflicted as a punishment for that which has been done, whereas imprisonment for civil contempt is usually coercive and, as was said in the case of In re Nevitt, 8 Cir., 117 F. 448, 461, "he (the contemnor) carries the key of his prison in his own pocket."[Citations omitted.]
In other words, criminal contempt is retrospective in nature and consists of punishing for doing what has been prohibited, whereas civil contempt is prospective in nature and is invoked for refusing to do what has been ordered. When the proceeding and punishment indicate a punitive rather than coercive purpose, the contempt has been construed as criminal, regardless of the designation by the trial court. Shillitani v. United States, 384 U.S. 364, 16 L.Ed.2d 622, 86 S. Ct. 1531 (1966).
The U.S. Supreme Court reaffirmed its traditional criteria in distinguishing between civil and criminal contempt in Hicks on Behalf of Feiock v. Feiock, 485 U.S. 624, 99 L.Ed.2d 721, 108 S. Ct. 1423, 1429 (1988), in which it stated:
"If it is for civil contempt the punishment is remedial, and for the benefit of the complainant. But if it is for criminal contempt the sentence is punitive, to vindicate the authority of the court." Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 441, 31 S. Ct. 492, 498, 55 L.Ed. 797 (1911). The character of the relief imposed is thus ascertainable by applying a few straightforward rules. If the relief provided is a sentence of imprisonment, it is remedial if "the defendant stands committed unless and until he performs the affirmative act required by the court's order," and it is punitive if "the sentence is limited to imprisonment for a definite period." Id., at 442, 31 S. Ct. at 498.
A reviewing court will not be bound by what the trial court calls contempt but will rather examine the sanctions imposed. A contempt will be considered civil if the sanction is:
1. remedial and for the benefit of the complainant;
2. continuing in nature until the contemnor performs the affirmative act required by the court's order;
3. a continuing jail sentence and/or fine that can be avoided or discontinued by performing the affirmative act required by the court's order; or
4. conditional and can be purged by obeying the order of the court.
A contempt is criminal if the sanction is
1. imposed to vindicate the authority of the court and the sentence is punitive;
2. limited to imprisonment for a definite period;
3. a determinate fine, payable to the court; or
4. unconditional and exclusively punitive in character.
The fact that, under state law, the proceeding and the end result are judged to be criminal is not determinative of the issue. If the punishment is punitive in nature, the punishment may not be imposed unless federal constitutional protections are applied. Hicks, supra.
Indirect criminal contempt may be prosecuted by the state's attorney, counsel for a litigant, or amicus curiae. Prosecutorial discretion allows a state's attorney to decline prosecution. Marcisz v. Marcisz, 65 Ill.2d 206, 357 N.E.2d 477, 2 Ill. Dec. 310 (1976). Civil contempt, on the other hand, is almost always prosecuted by the party for whose benefit the judgment order was entered and who seeks to have the respondent coerced into obeying that order.
It should also be noted that, if procedural steps appropriate for charges of indirect criminal contempt have been taken, a contemnor may be found in both indirect civil and criminal contempt for the same act. In re Marriage of Betts, 200 Ill. App. 3d 26, 558 N.E.2d 404, 146 Ill. Dec. 441 (4th Dist. 1990).
Civil contempt is a continuation of the original cause of action (People v. Marcisz, 32 Ill. App. 3d 467, 334 N.E.2d 737 (3d Dist. 1975), aff'd in part, rev'd in part sub nom. Marcisz v. Marcisz, supra), whereas a proceeding in criminal contempt is an entirely different cause of action requiring different elements of proof, with different parties (the "People" being the petitioner), and should be prosecuted accordingly. Gompers v. Buck's Stove & Range Co., 221 U.S. 418, 55 L.Ed. 797, 31 S. Ct. 492 (1911); Bray v. United States, 423 U.S. 73, 46 L.Ed.2d 215, 96 S. Ct. 307 (1975); Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 110 L.Ed.2d 359, 110 S. Ct. 2447 (1990).
Due process is another distinguishing factor between civil and criminal contempt. In indirect civil contempt, due process consists of a right to be given notice, to be provided with a copy of the petition for contempt and order for rule to show cause, to answer orally or in writing, to be heard, to present evidence, to cross-examine witnesses, and to call witnesses. Barasch, supra. In indirect criminal contempt, on the other hand, due process consists of the right to notice of the charge by verified petition, complaint, rule, or information; the right to file an answer, to be heard, to present evidence, to cross-examine witnesses, and to have witnesses subpoenaed on the defendant's behalf; the right to the privilege against self-incrimination; the right to counsel and appointment of counsel if indigent; and the right to be proven guilty beyond a reasonable doubt. People v. Javaras, 51 Ill.2d 296, 281 N.E.2d 670 (1972); People v. Waldron, 114 Ill.2d 295, 500 N.E.2d 17, 102 Ill. Dec. 395 (1986).
In an indirect criminal contempt, the contemnor is also entitled to a jury trial if the court states that, upon a finding of contempt, the contemnor will be incarcerated over six months, fined an amount over $500, or both. Bloom v. State of Illinois, 391 U.S. 194, 20 L.Ed.2d 522, 88 S. Ct. 1477 (1968); County of McLean v. Kickapoo Creek, Inc., 51 Ill.2d 353, 282 N.E.2d 720 (1972). That determination must not only be made by the court before hearing but also be communicated to the respondent. This limitation does not, however, apply to civil contempt sanctions since they are open-ended and continue until the court's order is obeyed. In re Marriage of Logston, 103 Ill.2d 266, 469 N.E.2d 167, 82 Ill. Dec. 633 (1984).
Due process in both direct civil and criminal contempt (when the act occurs within the ocular presence of the judge) and when the court acts instanter consists of only the right to be advised of the conduct deemed contemptuous, the right to make a statement in allocution before sanctions, and the right to appeal. See Johnson v. State of Mississippi, 403 U.S. 212, 29 L.Ed.2d 423, 91 S. Ct. 1778 (1971); State of Illinois v. Allen, 397 U.S. 337, 25 L.Ed.2d 353, 90 S. Ct. 1057 (1970).
II. CIVIL CONTEMPT
A. Petition for Contempt
1. [2.5] Filing the Appropriate Petition
Upon determination that the petitioner wishes to coerce compliance of the court's order and proceed by way of indirect civil contempt, a verified petition should be filed with the court.
The petition may be entitled "Petition for Rule To Show Cause" or "Petition for Adjudication of Indirect Civil Contempt." The latter leaves no doubt in the respondent's mind the specific nature of the contempt (People v. Waldron, 114 Ill.2d 295, 500 N.E.2d 17, 102 Ill. Dec. 395 (1986)) and informs both the court and the respondent of the type of sanctions sought.
There may be occasions when the petitioner (or the court) is not certain whether to proceed by way of indirect civil or criminal contempt. "A possible solution appears in Kay v. Kay, 22 Ill. App. 3d 530, 318 N.E.2d 9 (1st Dist. 1974), where the trial court conducted a preliminary-type hearing in a situation where the conduct complained of presented some difficulty in classification." People v. Marcisz, 32 Ill. App. 3d 467, 334 N.E.2d 737, 741 (3d Dist. 1975), aff'd in part, rev'd in part, 65 Ill.2d 206 (1976).
In an indirect civil contempt action, the petition must be verified and filed in the original cause out of which the contempt arose and must specify the date and portion of the original order alleged to have been violated, the nature of the violation, the date or dates of violation, and, except when the petition is for violation of an injunctive order, that the violation was wilful and that respondent had the means to comply with the order. The petition should pray that the respondent be ruled to show cause why he should not be held in civil contempt and that sanctions be imposed until he complies with the court's order. The prayer may also request attorneys' fees. Savaglio v. Board of Fire & Police Commissioners, 125 Ill. App. 3d 391, 465 N.E.2d 1065, 80 Ill. Dec. 719 (2d Dist. 1984).
A demand on the respondent to comply with the court's order before the petition is filed is not required. Shaffner v. Shaffner, 212 Ill. 492, 72 N.E. 447 (1904).
2. [2.6] Form of Petition
PETITION FOR ADJUDICATION OF INDIRECT CIVIL CONTEMPT
[or]
PETITION FOR RULE TO SHOW CAUSE
INDIRECT CIVIL CONTEMPT
Now comes the petitioner in the above-entitled cause and respectfully petitions the court that it enter a Rule To Show Cause against the above-named Respondent and, in support thereof, declares and states the following:
1. On [date], an order was entered in the above-entitled cause, directing the Respondent to pay to Petitioner the sum of $____________ commencing on [date], and a like amount on each and every Monday thereafter until judgment and costs were paid in full.
2. The Respondent is able to make the payments but has wilfully and contumaciously failed to do so as already ordered by this court, and he is now $____________ in arrears of these court-ordered payments.
3. Petitioner has retained counsel in this cause, and Respondent has sufficient means for paying Petitioner's attorneys' fees for prosecuting this petition.
WHEREFORE, Petitioner prays that this court [set this petition for hearing] [issue a rule against Respondent to show cause, if any, why he should not be found in indirect civil contempt of court for his wilful and contumacious failure to comply with the court's order herein stated] and that this court impose appropriate sanctions until Respondent shall have complied with the court's order; further, that the court fix a date for a hearing and Respondent be given proper notice; and that, upon a finding of contempt, Petitioner be awarded sufficient and reasonable attorneys' fees and be granted any other relief the court deems just and equitable.
Petitioner
3. [2.7] Setting the Petition or Rule for Hearing
When a verified petition is presented to the court, the court may, if it finds that the petition provides sufficient facts to show prima facie evidence of civil contempt, make such a finding, enter a rule to show cause on the respondent, fix a date and time for a hearing on the rule, and order that notice be given to the respondent. On the other hand, the court is not required to enter a rule based on the petition; it may instead set the petition itself for hearing to determine whether prima facie evidence exists for a finding of civil contempt. The usual practice is for the court to enter a rule based on the verified petition.
4. [2.8] Dismissal of the Petition Before Hearing
The petitioner has no right to an oral argument on his petition. The court may dismiss the petition without hearing if it has read all the pleadings that give the positions of both parties fully and is convinced the petition has no merit. People ex rel. Fahner v. Colorado City Lot Owners & Taxpayers Association, 119 Ill. App. 3d 691, 456 N.E.2d 943, 75 Ill. Dec. 122 (1st Dist. 1983).
5. [2.9] Form of Order To Show Cause
ORDER TO SHOW CAUSE
INDIRECT CIVIL CONTEMPT
This cause having been heard by the court on a verified petition for rule to show cause why the above-named Respondent should not be held in indirect civil contempt of court for wilful failure to obey the court's order as set forth in the petition attached hereto, and the court having found that such a petition provides prima facie evidence of civil contempt;
IT IS HEREBY ORDERED THAT ____________ appear in Courtroom No. ______, ____________ County Courthouse, ____________, Illinois at [time] on [date], to show cause, if any, why he should not be held in indirect civil contempt of court for his wilful failure to comply with the order of the court already entered and be sanctioned according to law. Failure to appear may result in a warrant of arrest.
ENTER:
Judge
B. Service of Notice of the Hearing
1. [2.10] Type of Service Required
Since a proceeding for indirect civil contempt is considered part of the main cause of action, personal service on the respondent is not required. Leman v. Krentler-Arnold Hinge Last Co., 284 U.S. 448, 76 L.Ed. 389, 52 S. Ct. 238 (1932). In Leman, the petitioner instituted a civil contempt action for violation of an injunctive order. Notice of the rule to show cause was sent by regular U.S. mail to the respondent in another state. A motion to dismiss, for lack of jurisdiction because of no personal service, was denied.
As the proceeding for civil contempt for violation of the injunction should be treated as a part of the main cause, it follows that service of process for the purpose of bringing the respondent within the jurisdiction of the [court] was not necessary. The respondent was already subject to the jurisdiction of the court for the purposes of all proceedings that were part of the equity suit. . . .
* * *
In this view, nothing more was required in the present case than appropriate notice of the contempt proceeding, and that notice the respondent received. 52 S. Ct. at 240 - 241.
Notice of hearing on the petition or rule may, therefore, be served by regular U.S. mail, postage prepaid, to the respondent's last-known address or by any other method provided in Illinois Supreme Court Rules 105(b)(1) or 105(b)(2) as the court may direct. Note that Cook County Circuit Court Rule 6.1(a) requires service of a rule or order pursuant to S. Ct. Rule 105(b).
However, "[a]n individual charged with indirect civil contempt may waive service of written notice of the charge by voluntarily appearing in court and defending against the charge. See 17 C.J.S. Contempt § 79, at 201 (1963)." In re Marriage of Betts, 200 Ill. App. 3d 26, 53, 558 N.E.2d 404, 422, 146 Ill. Dec. 441 (4th Dist. 1990).
2. [2.11] Failure To Appear After Notice
If the respondent fails to appear or otherwise fails to answer after due notice has been given, the court may direct that a bench warrant or order of attachment, directed to all peace officers, be issued, returnable forthwith. The court should set bond, and the ten-percent rule, as provided by §110-7(a) of the Code of Criminal Procedure, would apply. 725 ILCS 5/110-7(a).
3. [2.12] Order of Attachment
Although writs, as such, have been abolished pursuant to §2-1501 of the Code of Civil Procedure (735 ILCS 5/2-1501), an order of attachment for contempt has not. See 705 ILCS 305/15. The order of attachment or bench warrant must be directed to all peace officers in the state.
If the verified petition alleges facts to show that the respondent will not respond to a notice, will flee the jurisdiction, or will attempt to conceal himself from service, the court may direct an order of attachment to issue, without notice, directing the sheriff to bring the respondent before the court. An order of attachment for contempt may issue without notice whenever circumstances require. Ex parte Petrie, 38 Ill. 498 (1865); Croucher v. Croucher, 51 Ill. App.2d 17, 20, 200 N.E.2d 854 (1st Dist. 1964). See also Cook County Circuit Court Rule 6.1(b).
4. [2.13] Forms of Motion for Attachment and Order of Attachment
MOTION FOR ATTACHMENT
Now comes Petitioner, by his attorney, ____________, and informs the court:
1. On [date], a petition for civil contempt was filed in this court, and a rule was entered on [date].
[Select one of the two paragraphs below.]
2. A copy of the rule, together with a notice, was served on Respondent by
( ) U.S. mail, postage prepaid, mailed on [date],
( ) Certified mail, return receipt requested, mailed on [date],
( ) Personal service, made on [date],
and Respondent has failed to answer or respond in person.
[or]
2. Respondent has not been given notice, and Petitioner has stated facts in his petition alleging that Respondent [will flee the jurisdiction of the court upon receiving notice] [will not respond to the process of this court] [will attempt to conceal himself from process].
Wherefore, Petitioner prays that this court direct that an order of attachment, returnable immediately, be issued against Respondent directing the Sheriff or any peace officer in this state to bring Respondent before the court.
Attorney for Petitioner
ORDER OF ATTACHMENT
This matter coming on for hearing pursuant to a rule to show cause entered by this court on [date], against Respondent, ____________, directing this Respondent to show cause why he should not be held in contempt of this court for his failure to obey the orders of this court; and that [notice has been properly served on this Respondent and Respondent has failed to answer or appear] [list one of the three reasons as noted in paragraph 2 of the Motion for Attachment].
WHEREFORE, IT IS HEREBY ORDERED:
Any peace officer in the State of Illinois is hereby directed to bring the person of [Respondent] before this court, in Courtroom No. ____________, ____________ County Courthouse, ____________, Illinois, to answer to the rule to show cause already entered against this Respondent.
ENTER:
Judge
BOND IS HEREBY FIXED IN THE AMOUNT OF $ ____________.
ATTACHMENT FOR CONTEMPT
TO THE SHERIFF OF ____________ COUNTY OR ANY PEACE OFFICER IN THE STATE OF ILLINOIS:
You are hereby commanded to take the person of [Respondent] and bring him immediately before the Honorable ____________ or any judge sitting in his stead, in Courtroom No. ____________, at the ____________ County Courthouse, ____________, Illinois, to answer for contempt of court for his failure to [cite the basis for contempt].
SERVICE OF THIS ORDER OF ATTACHMENT IS RETURNABLE IMMEDIATELY.
Dated this ____ day of ___________, ____.
Clerk of the Court
BOND: $____________
C. The Hearing
1. [2.14] Due Process -- Indirect Civil Contempt
In an indirect civil contempt proceeding, the respondent has a right to notice, to be provided with a copy of the petition and rule to show cause, to answer orally or in writing, to be heard and present evidence, to cross-examine witnesses, to call witnesses, and to have an attorney of choice. Cole v. Cole, 85 Ill. App.2d 105, 229 N.E.2d 293 (1st Dist. 1967); Eden v. Eden, 34 Ill. App. 3d 382, 340 N.E.2d 141 (1st Dist. 1975); In re Marriage of Betts, 200 Ill. App. 3d 26, 558 N.E.2d 404, 146 Ill. Dec. 441 (4th Dist. 1990).
In First Midwest Bank/Danville v. Hoagland, 244 Ill. App. 3d 596, 613 N.E.2d 277, 288, 184 Ill. Dec. 250 (4th Dist. 1993), the respondent was ordered to produce his income tax returns within five days and not dispose of his tax refund without leave of court. He did not produce his income tax returns within the five days, spent his tax refund, and was held in indirect civil contempt. The contempt order was reversed for the following reasons:
a. The order directing the respondent to provide his tax returns and refund was not in writing and not noted on the docket sheet (although the respondent received the order orally from the court).
b. The respondent was given no notice of the hearing on contempt before the court's finding, nor was a written petition for contempt filed.
c. There was no written order of contempt.
d. The court's sanction of "30 days' incarceration unless he paid $600" was punitive in nature rather than coercive. 613 N.E.2d at 288.
e. The court failed to make a finding that the respondent was able to comply with the order to pay $600 and that he wilfully failed to do so.
2. [2.15] Due Process -- Direct Civil Contempt
In direct civil contempt, when all elements of the contemptuous act occurred within the direct knowledge of the judge, the only due process rights to which the respondent is entitled are the right to make a statement before sanctions are imposed, the right to be advised of the specific act of contempt, and the right to appeal. There is no need to give notice, file a petition, conduct a hearing, or call witnesses. In re Marriage of Betts, 200 Ill. App. 3d 26, 558 N.E.2d 404, 146 Ill. Dec. 441 (4th Dist. 1990).
Direct civil contempt may arise, for example, when a witness before a grand jury has been given immunity and still refuses to testify. In such a case, the grand jury should reduce the question to writing and afford the witness another opportunity to answer. If the witness still refuses, the foreperson of the grand jury should appear before the court together with the witness and submit the written question to the judge. The court (in closed session) then should ask the witness the question or questions submitted. If the witness persists in refusing, the court may then hold the witness in direct civil contempt, direct criminal contempt, or both. The court must be aware, however, that, if the contemnor is held in direct civil contempt, he must be released from the civil contempt upon discharge of the grand jury since, once the grand jury is released, the witness is no longer able to purge himself. If the contemnor is imprisoned based on direct criminal contempt, he need not be released upon discharge of the grand jury since he is being punished for his act. Shillitani v. United States, 384 U.S. 364, 16 L.Ed.2d 622, 86 S. Ct. 1531 (1966).
3. [2.16] Right to Court-Appointed Counsel
A respondent in a direct or indirect civil contempt proceeding does not have a right to court-appointed counsel even though incarceration is possible. The court In re Marriage of Betts, 200 Ill. App. 3d 26, 558 N.E.2d 404, 424, 146 Ill. Dec. 441 (4th Dist. 1990), stated:
Imprisonment for civil contempt is unique in that the contemnor may secure his immediate release from incarceration by either complying with the court order which he has refused to obey or demonstrating that he is unable to comply with that order. Neither compliance nor establishing the impossibility of compliance is such a difficult task that the assistance of counsel is necessary.
Also, unlike criminal contempt proceedings, civil contempt proceedings often do not pit a respondent against a prosecutor backed by the entire resources of the State.
* * *
For the above reasons, we hold that indigents faced with jail sentences for indirect civil contempt are not entitled to court-appointed counsel.
Compare Sanders v. Shephard, 185 Ill. App. 3d 719, 541 N.E.2d 1150, 133 Ill. Dec. 712 (1st Dist. 1989), which stated in dicta that a respondent is entitled to appointment of counsel in an indirect civil contempt proceeding when imprisonment is possible.
A chief judge, by administrative order, cannot direct the public defender to represent indigent respondents in civil contempt cases. The Counties Code §3-4006 provides:
The Public Defender, as directed by the court, shall act as attorney, without fee, before any court within any county for all persons who are held in custody or who are charged with the commission of any criminal offense, and who the court finds are unable to employ counsel. 55 ILCS 5/3-4006.
The Supreme Court in Maloney v. Bower, 113 Ill.2d 473, 498 N.E.2d 1102, 101 Ill. Dec. 594 (1986), held that a chief judge has no authority to extend the duties of the public defender and cannot appoint the defender in civil contempt cases. "A chief judge, in exercising his authority to issue general orders for the administration of the courts, cannot use that authority to enlarge the duties of the office of public defender beyond what the legislature has provided." 498 N.E.2d at 1104.
4. [2.17] Right to Trial by Jury
A contemnor does not have a right to a trial by jury in a civil contempt proceeding. County of Cook v. Lloyd A. Fry Roofing Co., 59 Ill.2d 131, 319 N.E.2d 472 (1974); Shillitani v. United States, 384 U.S. 364, 16 L.Ed.2d 622, 86 S. Ct. 1531 (1966); Cheff v. Schnackenberg, 384 U.S. 373, 16 L.Ed.2d 629, 86 S. Ct. 1523 (1966).
5. [2.18] Substitution of Judge
There is no right to a substitution of judge in a direct civil contempt action when the judge acts instanter. McAdams v. Smith, 25 Ill. App.2d 237, 166 N.E.2d 446 (1st Dist. 1960).
In an indirect civil contempt action, a respondent is entitled to a substitution of judge if the application for substitution of judge is presented before the hearing and before the judge has ruled on any substantial issue of the case. 735 ILCS 5/2-1001(a) (2) (ii). It should be noted, however, that an indirect civil contempt proceeding is not a new action but rather a continuation of the underlying cause of action out of which the contempt arose. Therefore, if the judge has made a substantial ruling in the underlying action, the respondent's application for substitution of judge should be denied. In re Marriage of Kozloff, 101 Ill.2d 526, 463 N.E.2d 719, 79 Ill. Dec. 165 (1984).
A substitution for cause may be filed at any time, however, the affidavit must set forth the specific cause for substitution. 735 ILCS 5/2-1001 (a) (3) (ii). See People v. King, 54 Ill.2d 291, 297, 296 N.E.2d 731 (1973). The affidavit must show "actual prejudice, animosity, hostility, ill will or distrust directed toward the defendant." People v. Walsh, 273 Ill. App. 3d 453, 652 N.E.2d 1102, 1105, 210 Ill. Dec. 126 (1st Dist. 1995)
Section 2-1001 (a) (4) of the Code of Civil Procedure also provides for a substitution of judge "[w]hen any defendant in a proceeding for contempt arising from an attack upon the character or conduct of a judge occurring otherwise than in open court, and the proceeding is pending before the judge whose character or conduct was impugned, fears that he or she will not receive a fair and impartial trial before the judge. In any such situation the application shall be by petition, verified by the applicant, and shall be filed before the trial of the contempt proceeding."
6. [2.19] Conduct of the Hearing
The conduct of the hearing will depend on whether the court, when it was presented with the verified petition, found prima facie evidence of contempt and ruled the respondent to show cause or whether the court did not make such a finding and, instead, set the petition itself for hearing. In either case, when the respondent first appears, the court should advise him of the nature of the proceeding and of his rights (see §2.14 above) and ask whether he admits or denies the allegations of the petition. If the petition itself was set for hearing and there is a denial, the petitioner should first show prima facie evidence of contempt. He may call witnesses, including the respondent, under Code of Civil Procedure §2-1102. If, on the other hand, the respondent has previously been ruled to show cause, regardless of whether there is a denial, the respondent should be sworn so his attorney may question him concerning any affirmative defenses. If the respondent appears pro se, petitioner's attorney or the court should inquire of the respondent concerning any affirmative defenses and (except in a contempt proceeding involving a violation of an injunction) his ability to comply with the court's order.
Upon the petitioner's showing of prima facie evidence of noncompliance with the court's order, the burden shifts to the respondent, who must show an inability or lack of means to comply with the order. In re Marriage of Logston, 103 Ill.2d 266, 469 N.E.2d 167, 82 Ill. Dec. 633 (1984); United States v. Rylander, 460 U.S. 752, 75 L.Ed.2d 521, 103 S. Ct. 1548 (1983).
If the petition is based on failure to pay child support, noncompliance with the order together with a finding of arrearage of child support constitutes prima facie evidence of contempt (Logston, supra); if the respondent's affirmative defense is the present lack of funds to comply with the order, then he must show by a preponderance of the evidence that, based on the money he has received and after payment of bare living expenses, he has no means to comply with the order for payment of child support. Shaffner v. Shaffner, 212 Ill. 492, 72 N.E. 447 (1904). If the defense is lack of means due to unemployment, the court may continue the proceeding and order the respondent to seek employment. See 750 ILCS 5/505.1.
After the hearing, the court may find the respondent in contempt, discharge the petition or the rule, or continue the cause for further proceedings.
7. [2.20] Burden of Proof
The petitioner must show prima facie evidence of contempt by a preponderance of the evidence, Central Production Credit Association v. Kruse, 156 Ill. App. 3d 526, 509 N.E.2d 136, 108 Ill. Dec. 710 (2d Dist. 1987), and, once shown, the burden of persuasion then shifts to the respondent to prove any affirmative defense he may have.
In Hicks on Behalf of Feiock v. Feiock, 485 U.S. 624, 99 L.Ed.2d 721, 735, 108 S. Ct. 1423 (1988), the U.S. Supreme Court addressed a California statute requiring the respondent to carry the burden of persuasion by showing his inability to comply with the court's order to make child support payments:
If applied in a criminal proceeding, such a statute would violate the due process clause because it would undercut the State's burden to prove guilt beyond a reasonable doubt. See, e.g. Mullaney v. Wilbur, 421 U.S. 684, 44 L.Ed.2d 508, 95 S. Ct. 1881 (1975). If applied in a civil proceeding, however, this particular statute would be constitutionally valid. Maggio v Zeitz, 333 U.S. 56, 92 L.Ed. 476, 68 S. Ct. 401 (1948); Oriel v. Russell, 278 U.S. 358, 73 L.Ed. 419, 49 S. Ct. 173 (1929).
Illinois does not have a statute concerning prima facie evidence in contempt proceedings. Instead, it has achieved the same end by means of a presumption. In re Marriage of Logston, 103 Ill.2d 266, 469 N.E.2d 167, 175, 82 Ill. Dec. 633 (1984), the Illinois Supreme Court stated:
The noncompliance with an order to pay maintenance constitutes prima facie evidence of contempt. Therefore, once the prima facie showing is made, the burden shifts to the defendant, who may then defend by showing that he is unable to pay. . . . To prove this defense, a defendant must show that he neither has money now with which he can pay, nor has disposed wrongfully of money or assets with which he might have paid. [Citations omitted.]
8. [2.21] Wilfulness/Intent Not Required When Contemptuous Act Involves Violation of Injunction
The word "willful " first appeared in Mesirow v. Mesirow, 346 Ill. 219, 178 N.E. 411, 412 (1931), in which the court held that, in civil contempt cases, "the power to enforce the payment of alimony by imprisonment of the defendant for contempt of the court is limited to willful and contumacious refusal to obey the order of the court." In Wick v. Wick, 19 Ill.2d 457, 167 N.E.2d 207 (1960), petitioner took her children to another state, contrary to the court's order. Respondent then discontinued paying child support to petitioner but deposited the funds in a joint account with the children. Petitioner filed a petition for contempt. The Supreme Court directed the trial court to dismiss the petition "for want of equity" since the petitioner herself had violated the court's order; the court went on to hold that the "power to enforce payment of support money by contempt is limited to cases of wilful and contumacious refusal to obey the order of the court." 167 N.E.2d at 210.
In Cole v. Cole, 85 Ill. App.2d 105, 229 N.E.2d 293, 297 (1st Dist. 1967), the court first equated wilfulness with the inability to pay support when it stated: "Mere absence of compliance with the provisions of the decree is not sufficient basis for a judgment of contempt of court unless the evidence shows the failure to comply was a wilful and contumacious refusal to obey the court order." Supporting and continuing this view are Shapiro v. Shapiro, 113 Ill. App.2d 374, 252 N.E.2d 93 (1st Dist. 1969); Taapken v. Taapken, 39 Ill. App. 3d 785, 350 N.E.2d 794 (4th Dist. 1976); and Comiskey v. Comiskey, 48 Ill. App. 3d 17, 366 N.E.2d 87, 8 Ill. Dec. 925 (1st Dist. 1977).
The court moved away from the requirement of wilfulness in County of Cook v. Lloyd A. Fry Roofing Co., 59 Ill.2d 131, 319 N.E.2d 472 (1974), involving violation of an injunctive order. The court held that neither wilfulness nor intent is a required element in the adjudication of civil contempt, citing McComb v. Jacksonville Paper Co., 336 U.S. 187, 93 L.Ed. 599, 69 S. Ct. 497 (1949). In McComb, which also involved violation of an injunction, the Court stated:
The absence of wilfulness does not relieve from civil contempt. . . . Since the purpose is remedial, it matters not with what intent the defendant did the prohibited act. . . . An act does not cease to be a violation of a law and of a decree merely because it may have been done innocently. The force and vitality of judicial decrees derive from more robust sanctions. 69 S. Ct. at. 499.
In Fry and McComb, the finding of civil contempt was decided on whether the order had been complied with and whether the affirmative defense of lack of means or inability to comply (without fault of respondent) had been established -- not whether wilfulness was involved.
In the past, courts have used the term "wilfulness" in cases involving payment of money when the incarceration of the respondent was at issue. However, both the United States and Illinois Supreme Courts have stated that wilfulness or intent is not required in cases involving violation of injunctive orders. As the law now stands, wilfulness is not an element in civil contempt cases involving violations of an injunction but is an element in all other indirect civil contempt actions involving the payment of money.
9. [2.22] Double Jeopardy
Double jeopardy does not apply because civil contempt is not a criminal action. Yates v. United States, 355 U.S. 66, 2 L.Ed.2d 95, 78 S. Ct. 128 (1957). Imposition of sanctions in civil contempt for failure to return children pursuant to a prior custody order and subsequent prosecution under the criminal law do not offend the principles of double jeopardy. People v. Doherty, 165 Ill. App. 3d 630, 518 N.E.2d 1303, 116 Ill. Dec. 323 (2d Dist. 1988).
10. [2.23] Use of Contempt To Enforce Discovery Orders
The court may order discovery in felony cases pursuant to S. Ct. Rule 411 and impose sanctions for violation of a discovery order under S. Ct. Rule 415(g). In civil cases, the court may order discovery pursuant to S. Ct. Rule 201, et seq., and sanctions under Rule 219. Failure to give a defense investigator's notes to the state's attorney pursuant to an order under S. Ct. Rule 413 supported a finding of contempt even though the notes were produced at time of trial. People v. Boclair, 119 Ill.2d 368, 519 N.E.2d 437, 116 Ill. Dec. 545 (1987). The respondent was properly held in contempt for failure to comply with discovery pursuant to §2-1401 of the Code of Civil Procedure in People v. B. R. MacKay & Sons, Inc., 141 Ill. App. 3d 137, 490 N.E.2d 74, 95 Ill. Dec. 601 (1st Dist. 1986).
In testing an order of discovery, if the litigant or attorney is not disrespectful either in attitude or action, a fine is sufficient, and, unless an emergency is involved, the situation does not call for the ultimate coercion of incarceration. Roth v. St. Elizabeth's Hospital, 241 Ill. App. 3d 407, 607 N.E.2d 1356, 180 Ill. Dec. 843 (5th Dist. 1993).
When a contemnor refuses to follow the court's order and does not hold the court in disdain or subject it to scorn, the proper procedure to test the circuit court's order on appeal is for the contemnor to request the trial court to enter a citation for contempt. Dufore v. Mobil Oil Corp., 301 Ill. App. 3d 156, 703 N.E.2d 448, 234 Ill. Dec. 587 (1st Dist. 1998).
See also §2.86 below.
11. Enforcement of Child Support/Maintenance Orders
a. [2.24] In General
The Illinois Supreme Court has long approved of enforcing child support and maintenance orders through civil contempt powers. As stated in In re Marriage of Logston, 103 Ill.2d 266, 469 N.E.2d 167, 175 - 176, 82 Ill. Dec. 633 (1984):
The power to enforce an order to pay money through contempt is limited to cases of wilful refusal to obey the court's order. . . . The noncompliance with an order to pay maintenance constitutes prima facie evidence of contempt. Therefore, once the prima facie showing is made, the burden shifts to the defendant, who may then defend by showing that he is unable to pay. . . . To prove this defense, a defendant must show that he neither has money now with which he can pay, nor has disposed wrongfully of money or assets with which he might have paid. . . .
. . . This court has described the burden of proof that a defendant must meet to rebut the prima facie showing:
"He who seeks to establish the fact that his failure to pay is the result of lack of funds must show with reasonable certainty the amount of money he has received. He must then show that the money has been disbursed in paying obligations and expenses which, under the law, he should pay before he makes any payment on the decree for alimony. It is proper that he first pay his bare living expenses; but whenever he has any money in his possession that belongs to him and which is not absolutely needed by him for the purpose of obtaining the mere necessaries of life, it is his duty to make a payment on this decree." (Shaffner v. Shaffner (1904), 212 Ill. 492, 496, 72 N.E. 447. [Citations omitted.]
A clear defense to contempt exists when the failure of a person to obey an order to pay is due to poverty, insolvency, or other misfortune unless that ability to pay is the result of a wrongful or illegal act. However, the defense of poverty and misfortune as a valid excuse for nonpayment has been found applicable only in the most extreme cases, notably when a defendant had no money and no way of getting money to meet the support obligations. That financial inability to comply with an order must be shown by definite and explicit evidence and is not shown by testimony of a general nature with regard to financial status. In re Marriage of Dall, 212 Ill. App. 3d 85, 569 N.E.2d 1131, 155 Ill. Dec. 520 (5th Dist. 1991). The defense of inability to comply cannot be asserted when the contemnor has voluntarily created that incapacity. County of Cook v. Lloyd A. Fry Roofing Co., 59 Ill.2d 131, 319 N.E.2d 472 (1974).
b. [2.25] The Unemployed Respondent/Payor
In any proceeding to set or enforce the payment of child support or maintenance in which the respondent/payor is unemployed, the court may order the respondent to seek employment, report periodically to the court, submit a job diary, and submit a daily accounting of all income and expenses until further order of court and/or employment is obtained. See 750 ILCS 5/505.1, which preempted In re Marriage of Page, 162 Ill. App. 3d 515, 515 N.E.2d 1061, 113 Ill. Dec. 902 (2d Dist. 1987).
c. [2.26] Illinois Supreme Court Rule 296
Illinois S. Ct. Rule 296(c) provides for the automatic enforcement of child support and maintenance payments "to the clerk of the circuit court in the county in which the Order for Support was entered, or the clerk of the circuit court of any other county to which the payment obligation may be transferred."
12. [2.27] Direct Civil Contempt for Refusal To Answer Court's Questions at Sentencing Hearing
In People v. Iseminger, 202 Ill. App. 3d 581, 560 N.E.2d 445, 148 Ill. Dec. 143 (4th Dist. 1990), a defendant was held in direct civil contempt for refusing to answer the court's question during a sentencing hearing. The court stated that a sentencing judge may conduct a hearing, largely unlimited, of the information it considers appropriate concerning the defendant, including his drug sources, habits, tendencies, moral character, and whether he is cooperative with officials investigating a criminal conspiracy; however, in reversing the direct civil contempt, the court stated that "an order of the court directing a defendant, upon pain of contempt, to answer a court's question at the sentencing hearing . . . is an action which ought to be a last resort, if ever." 560 N.E.2d at 459.
13. Recalcitrant Witness
A recalcitrant witness may be held in direct civil contempt, direct criminal contempt, or both. If held in direct civil contempt only, the witness must be released after the jury has begun deliberation (if a jury case) or upon release of the grand jury (if he or she refused to testify before the grand jury); this does not apply if the witness was found only in criminal contempt or together with direct civil contempt.
a. [2.28] During Trial
A witness may be held in contempt for refusing to be sworn. People v. Clark, 4 IllApp.3d 301, 280 N.E.2d 723 (1st Dist. 1972), or for refusing to answer a relevant and material question. People v. King, 8 Ill.App.3d 2, 288 N.E.2d 672 (1st Dist.1972). A witness may be found in direct criminal contempt, direct civil contempt, or both. United States v. United Mine Workers of America, 330 U.S.258, 91 L.Ed.884, 67 S.Ct.677 (1947). However, if the witness is found in direct civil contempt, the witness must be released when the case has been given to the jury for its consideration since the contemnor can no longer purge himself of contempt.
b. [2.29] Before a Grand Jury
A witness may be held in contempt for refusing to be sworn before a grand jury or refusing to testify or provide documents required. In re Grand Jury Proceedings of August, 1984, 757 F.2d 108 (7th Cir. 1984).
In In re Grand Jury Proceedings, No. 01-3215, 2001 U.S.App LEXIS 21530 (7th Cir.Sept. 19th, 2001) (unpublished opinion), a witness refused to turn over certain records to the grand jury. Nothing was done at the time, but the witness was subsequently served with a petition for rule to show cause. After hearing the court found, contrary to the testimony of the contemnor, that he did have the records required and held the contemnor in criminal contempt. The contempt finding was upheld since the court later changed the order to one of civil contempt and the original order contained a purge provision.
Contemnor was called before a Federal Grand Jury and, after being granted use immunity, refused to answer any questions beyond his name, address and occupation.
Contemnor was held in civil contempt until the Special Grand Jury was discharged but not for a period longer than 180 days (pursuant to Federal Rules), unless sooner purged of contempt by answering the questions propounded by the Attorney General.
One of the several issues on appeal was contemnor's refusal to answer since he alleged that he feared for his own and family's safety. Contempt affirmed. The court stated that
"* * * fear for one's safety and the safety of one's family is not itself 'just cause' for refusing to testify, and thus will not provide a defense to civil contempt in a grand jury proceeding. See Piemonte v. United States, 367 U.S. 556, 559 n.2 (1961). However duress may serve as an equitable defense to incarceration for civil contempt if the witness can demonstrate the presence of a palpable imminent danger. Matter of Grand Jury Proceedings of Dec. 1989, 903 F.2d 1167, 1170 (7th Cir.1990) (hereafter Freligh). In order to claim duress, a recalcitrant witness must show that, due to an overwhelming sense of immediage danger, he is unable to act freely, to testify, and thus to purge himself of his contempt. Freligh, 903 F.2d 1170. Id at ____.
Note that the state may proceed summarily through direct contempt or subsequently by way of indirect contempt. If it proceeds summarily, the state should notify the judge of the recalcitrant witness and provide the judge with a transcript of the questions asked of the witness or documents or records requested. The judge may then proceed to the grand jury room or request that the witness and grand jurors (and staff) be taken to the judge's courtroom. If the judge chooses the latter option, then the court staff should be relieved and replaced by the grand jury staff and court reporter. The judge should then have the witness re-sworn (so that the witness' swearing will be brought within the judge's personal knowledge as required by direct contempt) and advise the witness that he or she may be held in direct criminal contempt, direct civil contempt, or both. If the witness answers the questions or produces the records required, the matter is resolved. If not, the court may hold the witness in direct criminal contempt, direct civil contempt, or both after providing the witness an opportunity to make a statement in allocation. If the contemnor is held in direct civil contempt, the contemnor must be released if he or she subsequently purges himself or herself of contempt or when the grand jury is finally discharged. If summary action is not taken, the state may file a petition for adjudication of indirect criminal contempt, a petition for adjudication of indirect civil contempt, or both, in which case the contemnor is entitled to a full hearing.
14. [2.30] Use of Indirect Civil Contempt To Enforce Orders of Probation During/After Term of Probation
Criminal or civil contempt may be used to enforce the conditions of probation during the term of probation. In re G.B., 88 Ill.2d 36, 430 N.E.2d 1096, 58 Ill. Dec. 845 (1981).
Civil contempt can be used to enforce an order of probation during the term of probation or supervision. Section 5-5-3(b) of the Unified Code of Corrections (730 ILCS 5/5-5-3(b)) lists eight options that are permissible dispositions in all felony or misdemeanor cases: (a) probation; (b) periodic imprisonment; (c) conditional discharge; (d) imprisonment; (e) a repair/cleanup order; (f) a fine; (g) restitution; or (h) participation in a county impact incarceration program. Since these eight punishment options are available as sentencing alternatives, they are "independent dispositions" that can stand alone as sentencing alternatives and, therefore, can be enforced through civil contempt even after the term of probation has expired. Conditions not listed as "independent dispositions" cannot, however, be enforced after the term of probation has expired. People v. Bertalot, 164 Ill. App. 3d 89, 518 N.E.2d 467, 115 Ill. Dec. 942 (3d Dist. 1987); People v. Wilson, 293 Ill. App. 3d 339, 687 N.E.2d 1182, 227 Ill. Dec. 700 (4th Dist. 1997).
D. [2.31] Imposition of Sanctions
Sanctions may not be imposed in a civil contempt proceeding when it is clearly established that the contemnor is unable to comply with the terms of the order. United States v. Rylander, 460 U.S. 752, 75 L.Ed.2d 521, 103 S. Ct. 1548 (1983).
1. [2.32] Nature of Sanctions
Because the power of the court to punish for contempt is inherent, the courts are not strictly bound by the provisions of the Civil Practice Law (Article II of the Code of Civil Procedure, 735 ILCS 5/1-101, et seq.), or by the Code of Criminal Procedure (725 ILCS 5/100-1, et seq.) and may exercise discretion in fashioning appropriate remedies to a party's contumacious behavior. 47th & State Currency Exchange, Inc. v. B. Coleman Corp., 56 Ill. App. 3d 229, 371 N.E.2d 294, 298, 13 Ill. Dec. 577 (1st Dist. 1977). See also In re G. B., 88 Ill.2d 36, 430 N.E.2d 1096, 58 Ill. Dec. 845 (1981).
In order for a civil contempt judgment to stand, sanctions must be coercive, not punitive, and the respondent must be allowed to purge himself of contempt at any time thereafter. People ex rel. Chicago Bar Association v. Barasch, 21 Ill.2d 407, 173 N.E.2d 417 (1961). The reviewing court will look at the entire record to determine whether the intent of the sanction was to punish or coerce. If the reviewing court finds that the sanctions are punitive in nature even though the trial court calls the contempt civil, the court's order of contempt will be reversed if the respondent was not afforded his criminal procedural rights. Shillitani v. United States, 384 U.S. 364, 16 L.Ed.2d 622, 86 S. Ct. 1531 (1966); In re Marriage of Miller, 88 Ill. App. 3d 370, 410 N.E.2d 649, 43 Ill. Dec. 649 (4th Dist. 1980); People v. Rodriguez, 162 Ill. App. 3d 149, 514 N.E.2d 1033, 113 Ill. Dec. 121 (2d Dist. 1987).
The court is not, however, limited to imposing a fine or incarceration. "The measure of the court's power in civil contempt proceedings is determined by the requirements of full remedial relief. They may entail the doing of a variety of acts, such as the production of books [or] the payment of money as in the alimony cases." [Citations omitted.] McComb v. Jacksonville Paper Co., 336 U.S. 187, 93 L.Ed. 599, 69 S. Ct. 497, 500 - 501 (1949). Sauber v. Whetstone, 199 F.2d 520 (7th Cir.1952). The court may also sequester the respondent's funds as sanctions for civil contempt. Geittmann v. Geittmann, 126 Ill. App. 3d 470, 467 N.E.2d 297, 81 Ill. Dec. 597 (5th Dist. 1984).
Civil contempt can further be used to compel testimony before a grand jury (see In re Grand Jury Proceedings of August, 1984, 757 F.2d 108, 115 (7th Cir. 1984), cert. denied, 105 S. Ct. 2025 (1985)) or to compel an individual to produce handwriting exemplars, to furnish fingerprints, or to permit photographs of himself to be taken during grand jury proceedings (see In re Grand Jury Investigation, 565 F.2d 318, 320 - 321 (5th Cir. 1977); In re Grand Jury Proceedings, 507 F.2d 963, 966 - 968 (3d Cir. 1975); In re Marriage of Betts, 200 Ill. App. 3d 26, 558 N.E.2d 404, 146 Ill. Dec. 441 (4th Dist. 1990)).
2. [2.33] Use of Contempt When Fifth Amendment Invoked
The Fifth Amendment guarantee against testimonial compulsion ensures that no witness will be required to give testimony that may tend to incriminate him. People v. Thornton, 120 Ill. App. 3d 983, 458 N.E.2d 1150, 76 Ill. Dec. 496 (1983). However, the Fifth Amendment right against self-incrimination may be exercised only when the witness has reasonable cause to suspect the possibility of subsequent prosecution from a direct answer. People v. Prater, 158 Ill. App. 3d 330, 511 N.E.2d 842, 110 Ill. Dec. 665 (1987). The privilege extends not only to answers that would in themselves support a conviction but also to answers that might furnish a link in a chain of evidence needed to prosecute the witness for a crime. Hoffman v. United States, 341 U.S. 479, 95 L.Ed. 1118, 71 S. Ct. 814, 818 (1951); People v. Burkert, 7 Ill.2d 506, 131 N.E.2d 495 (1955). A witness may be denied the privilege only when it is "perfectly clear, from a careful consideration of all the circumstances in the case," that the answers sought "cannot possibly have [a] tendency" to incriminate. Hoffman v. United States, supra, 71 S. Ct. at 819. The trial court, not the witness, must decide whether that witness has a valid basis for invoking the Fifth Amendment right against self-incrimination. People v. Schultz, 380 Ill. 539, 44 N.E.2d 601 (1942). Additionally, the right must not be extended to cover imaginary dangers and must not, in any event, be permitted to be used solely for the purpose of protecting a third party from prosecution. Id. See also People v. Cooper, 202 Ill. App. 3d 336, 559 N.E.2d 942, 945 - 946, 147 Ill. Dec. 602 (1st Dist. 1990).
The court must hold a hearing to determine whether there is a valid basis for invoking the privilege. The trial court has discretion to determine whether the witness has a valid basis for invoking the privilege. People v. Redd, 135 Ill.2d 252, 553 N.E.2d 316, 142 Ill. Dec. 802 (1990). Note the problem faced by the trial court in conducting such a hearing. On the one hand, the mere "say-so" of a witness "does not of itself establish the hazard of incrimination." Hoffman v. United States, 341 U.S. 479, 95 L.Ed. 1118, 71 S. Ct. 814, 818 (1951). On the other hand, the privilege may be denied only when it is "perfectly clear" that the answers sought "cannot possibly have [a] tendency" to incriminate. 71 S. Ct. at 819, quoting Temple v. Commonwealth of Virginia, 75 Va. 892, 898 (1881).
What type of hearing is required? The kind of hearing to be conducted by the trial court in Fifth Amendment witness cases is not clear. However, it cannot be an off-the-record review by the court to determine to determine the basis of the assertion. People v. Redd, supra, 553 N.E.2d at 406. There is authority for the proposition that a witness may not exercise a "blanket assertion" of privilege because that is insufficient to allow the court to make a reasonable assessment of risk of incrimination. North River Ins. Co. v. Stefanou, 831 F.2d 484, 486-87 (4th Cir. 1987) - cert. den., 486 U.S. 1007 [1998]. The court must review assertions of privilege on a question-by-question basis to allow the judge to determine whether the Fifth Amendment applies and to establish a record for review on appeal. United States v. Argomaniz, 925 F.2d 1349, 1355 (11th Cir. 1991).
In People v. McNeal, 301 Ill. App. 3d 889 (1st Dist. 1998), Brown was charged with the gang-related attempted murder of McNeal. McNeal himself was subsequently indicted in a gang-related murder which occurred within a few blocks of his own attempted murder. The State advised it would call McNeal as a witness in Brown's case and defendant stated he would invoke his fifth amendment privilege since the two shootings were gang-related and, by necessity, his testimony would involve his gang-affiliation and thus incriminate him.
The trial judge held a hearing pursuant to People v. Redd, supra, and found no reasonable basis for the defendant's refusal to testify. The defendant was called as a witness, refused to testify, and was found in direct criminal contempt. The reviewing court reversed the finding of direct criminal contempt, stating:
A witness may be denied the privilege only when it is "perfectly clear, from a careful consideration of all the circumstances in the case," that the answers sought "cannot possibly have [a] tendency" to incriminate. Cooper, 202 Ill. App. 3d at 342, 147 Ill. Dec. 602, 559 N.E.2d 942, quoting Hoffman, 341 U.S. at 488, 71 S. Ct. 814. The trial court has
discretion to determine whether the witness has a valid basis for invoking the fifth amendment right against self-incrimination. People v. Redd, 135 Ill.2d 252, 304, 142 Ill. Dec. 802, 553 N.E.2d 316 (1990). But any uncertainty as to whether a question calls for an incriminating answer is to be resolved in favor of the witness' determination. People v. Spain, 307 Ill. 283, 290, 138 N.E. 614 (1923); Newmark, 312 Ill. at 632, 144 N.E. 338. McNeal, 704 N.E.2d at 795 - 796.
The reviewing court found that defendant, by answering questions in the Brown case, might have yielded incriminating answers in his own trial, that from his answers he had a "reasonable cause to apprehend danger," and that his concern was "real and substantial" -- not merely speculative. 704 N.E.2d at 796.
NOTE: As of the time of this writing, there are no cases in which a person has been held in contempt for failure to testify solely on the grounds that his testimony would place the witness' life in substantial danger if testimony was given.
3. [2.34] Civil Sanctions
The Illinois Supreme Court has made it clear that sanctions for civil contempt are to be continuing, open-ended, and subject to being purged.
Imprisonment imposed for a criminal contempt is purely punitive and must be for a definite term . . . But in cases of civil contempt, the sentence being imposed as a remedial or coercive measure, the appropriate punishment is to commit the contumacious party to imprisonment until he has complied with the mandate of the court, since a fine or imprisonment for a specified term might not secure obedience to the order. [Citations omitted.] People v. Redlich, 402 Ill. 270, 83 N.E.2d 736, 740 (1949).
Again, the Supreme Court reaffirmed its directive for open-ended sanctions when it stated:
When a party is found in civil contempt of court, such as for failure to pay money, the contempt order is coercive in nature. The court seeks only to secure obedience to its prior order. Since the contempt order is coercive rather than punitive, the civil contemnor must be provided with the "keys to his cell." That is, he must be allowed to purge himself of contempt even after he has been imprisoned. . . . Accordingly, imprisonment for a definite period of time is improper in this situation. [Citations omitted.] In re Marriage of Logston, 103 Ill.2d 266, 469 N.E.2d 167, 177, 82 Ill. Dec. 633 (1984).
See also Walsh v. Guth, 50 Ill. App.2d 40, 199 N.E.2d 428 (5th Dist. 1964); Sullivan v. Sullivan, 16 Ill. App. 3d 549, 306 N.E.2d 604 (1st Dist.1973); Anderson v. St. Mary's Hospital, 101 Ill. App. 3d 596, 428 N.E.2d 528, 56 Ill. Dec. 936 (5th Dist. 1981); People v. Smith, 102 Ill. App. 3d 226, 429 N.E.2d 870, 57 Ill. Dec. 753 (3d Dist. 1981).
However, it is improper to levy a daily, open-ended fine payable to the plaintiff. Civil contempt fines must be ordered payable to a government entity. Harper v. Missouri Pacific R.R., 282 Ill. App. 3d 19, 667 N.E.2d 1382, 217 Ill. Dec. 806 (5th Dist. 1996).
The limitation of sanctions in minor criminal contempt cases does not apply to civil contempt since the "conditional nature of the imprisonment -- based entirely upon the contemnor's continued defiance -- justifies holding civil contempt proceedings absent the safeguards of indictment and jury . . . provided that the usual due process requirements are met." [Citation omitted.] Shillitani v. United States, 384 U.S. 364, 16 L.Ed.2d 622, 86 S. Ct. 1531, 1535 (1966). The contemnor must, however, have the means to purge himself by complying with the court's order. Therefore, when a contemnor has been committed for failure to testify before the grand jury, sanctions must cease when the grand jury has been discharged. Id.
Even though there is no fixed term of sanction in civil contempt, due process directs that sanctions must cease when the sanction no longer has a coercive effect. Sanders v. Shephard, 163 Ill.2d 534, 645 N.E.2d 900, 206 Ill. Dec. 648 (1994). Due process requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the person is committed. Jackson v. Indiana, 406 U.S. 715, 32 L.Ed.2d 435, 92 S. Ct. 1845 (1972).
The contemnor bears the burden of demonstrating the sanctions have lost their coercive effect, but there is no requirement that the court accept the contemnor's declaration as dispositive.
The factors the court is to consider in deciding if the sanctions have lost their coercive effect are the credibility of the contemnor's avowed refusal to comply with the order, the age and health of the contemnor, the length of the incarceration, the significance of the ends to the achieved, and evidence of other inmates, community members, and expert witnesses regarding the strength of contemnor's resolve. Sanders, supra.
In Sanders, the contemnor had been incarcerated for a term of six years, at six-month intervals, for failure to return a child to its mother, the court holding that the sanction continued to have a coercive effect.
4. [2.35] Compensatory Contempt
Illinois courts have generally held that a petitioner is not entitled to compensation for damages due to a respondent's contumacious act. Rothschild & Co. v. Steger & Sons Piano Manufacturing Co., 256 Ill. 196, 99 N.E. 920 (1912); Eberle v. Greene, 71 Ill. App.2d 85, 217 N.E.2d 6 (3d Dist. 1966); Round Lake Sanitary District v. Basic Electronics Manufacturing Corp., 60 Ill. App. 3d 40, 376 N.E.2d 436, 17 Ill. Dec. 437 (2d Dist.1978); Harper v. Missouri Pacific R.R., 282 Ill. App. 3d 19, 667 N.E.2d 1382, 217 Ill. Dec. 806 (5th Dist.1996); Keuper v. Beechen, Dill & Sperling Builders, Inc., 301 Ill. App. 3d 667, 704 N.E.2d 915, 235 Ill. Dec. 342 (2d Dist. 1998).
In Rothschild, supra, the trial court imposed a fine (among other sanctions) payable to the plaintiff for violation of an injunctive order after a rule to show case had been entered and the defendant was found in contempt. The defendants appealed and the Supreme Court reversed, stating:
[T]his court has never gone to the extent of holding that a civil contempt was purely a private right of action in the party at whose instance the injunction was awarded. The law is well settled in this state that the fine imposed in such cases is so far regarded as a penalty that is treated as other fines, and paid over, when collected, not to the complainant in the equity proceeding, but to the public. It has always been the practice in this state to impose a fine or a jail sentence for the violation of a civil or remedial injunction. Rothschild, 99 N.E. at 923.
In Keuper, supra, the trial court awarded compensatory damages to the petitioner in a civil contempt proceeding. The parties had entered into a settlement agreement requiring the defendant to complete certain repairs. The court entered an order confirming the agreement, and the defendant failed to comply with the court's order. The court found that the defendant had breached the agreement and held the defendant in indirect civil contempt. The court advised the defendant that if the required repairs were not made, it would award a judgment for damages as sanctions. The defendant failed to purge itself of contempt, and the court entered an order for compensatory damages. The reviewing court reversed, holding that the "trial court did not have authority to award compensatory damages in civil contempt proceedings to plaintiffs." Keuper, 704 N.E.2d at 917.
In Keuper, plaintiffs cited two cases as precedent for the court's authority to award compensatory damages, Falcon, Ltd. v. Corr's Natural Beverages, Inc., 173 Ill. App. 3d 291, 527 N.E.2d 504, 123 Ill. Dec. 41 (1st Dist. 1988), and Connolly v. J.T. Ventures, 851 F.2d 930 (7th Cir. 1988). The court did not agree, however, stating that the authority of the court to enter an award of compensatory damages was not an issue in the cases cited. It should also be noted that the U.S. Supreme Court in McComb v. Jacksonville Paper Co., 336 U.S. 187, 93 L.Ed. 599, 69 S. Ct. 497 (1949), awarded compensatory damages in a civil contempt proceeding. Keuper addressed that issue, stating, "our supreme court determined long ago that Illinois courts were not required to follow the federal courts on this issue and would not do so. Rothschild, 256 Ill. at 204-08, 99 N.E. 920." Keuper, 704 N.E.2d at 918.
5. [2.36] Attorneys' Fees
Reasonable attorneys' fees may be assessed against a respondent as a sanction in a civil contempt proceeding. 47th & State Currency Exchange, Inc., v. B. Coleman Corp., 56 Ill. App. 3d 229, 371 N.E.2d 294, 13 Ill. Dec. 577 (1st Dist. 1977); Village of Lakemoor v. First Bank of Oak Park, 136 Ill. App. 3d 35, 482 N.E.2d 1014, 90 Ill. Dec. 731 (2d Dist. 1985). However, the petitioner must prove the reasonableness of the fees (Fiorito v. Jones, 72 Ill.2d 73, 377 N.E.2d 1019, 18 Ill. Dec. 383 (1978)), which may be accomplished by submitting detailed time records to the court (In re Marriage of Jacobson, 89 Ill. App. 3d 273, 411 N.E.2d 947, 44 Ill. Dec. 581 (1st Dist. 1980); Lakemoor, supra).
E. The Judgment Order of Contempt
1. [2.37] Requirements of a Valid Order
An order of civil contempt, both direct and indirect, must comply with the following:
a. The order must be in writing and signed by the judge. An orally transmitted order of contempt is not sufficient notice to the contemnor regarding grounds of contempt and facts in support thereof. Central Production Credit Association v. Kruse, 156 Ill. App. 3d 526, 509 N.E.2d 136, 108 Ill. Dec. 710 (2d Dist. 1987). If the court's oral pronouncement and the written order conflict, the written order will prevail. People v. Hayslette, 107 Ill. App. 3d 647, 437 N.E.2d 1261, 63 Ill. Dec. 339 (3d Dist. 1982).
b. The order must show jurisdiction over the parties and subject matter. In re Adoption of Schumacher, 120 Ill. App. 3d 50, 458 N.E.2d 94, 75 Ill. Dec. 926 (2d Dist. 1983).
c. The order must set forth the previous order violated, the specific act or acts for which the contemnor is being held in contempt, and the grounds supporting the finding of contempt. People ex rel. Woodward v. Oliver, 25 Ill. App. 3d 66, 322 N.E.2d 240 (2d Dist. 1975). Facts, not merely opinions or conclusions of judge, must support a finding of contempt. People v. Miller, 130 Ill. App.2d 637, 265 N.E.2d 175 (2d Dist. 1970), rev'd on other grounds, 51 Ill.2d 76 (1973); People v. Loughran, 2 Ill.2d 258, 118 N.E.2d 310 (1954); People v. Jashunsky, 51 Ill.2d 220, 282 N.E.2d 1 (1972).
d. When involving the failure to pay child support or a money judgment, the order must contain a finding that the contemnor's failure to comply with the order was wilful and that he has the means to comply but refuses to do so. Mesirow v. Mesirow, 346 Ill. 219, 178 N.E. 411 (1931); Janov v. Janov, 60 Ill. App.2d 11, 207 N.E.2d 691 (3d Dist. 1965). However, in a contempt involving violation of an injunctive order, wilfulness or intent is not an issue, so there is no requirement that the order recite that the contemnor wilfully failed to obey the court's order, merely that the order was disobeyed. County of Cook v. Lloyd A. Fry Roofing Co., 59 Ill.2d 131, 319 N.E.2d 472 (1974).
e. The order must provide for sanctions. Valencia v. Valencia, 71 Ill.2d 220, 375 N.E.2d 98, 16 Ill. Dec. 467 (1978); In re Marriage of Miller, 112 Ill. App. 3d 203, 445 N.E.2d 811, 68 Ill. Dec. 167 (1st Dist. 1983).
f. The order must set forth the means by which the contemnor may purge himself of contempt. Shillitani v. United States, 384 U.S. 364, 16 L.Ed.2d 622, 86 S. Ct. 1531 (1966). For a civil contempt to stand, a purge order must not be limited in nature; e.g., an order that a document be signed by date certain is improperly limiting in nature. In re Marriage of Morse, 240 Ill. App. 3d 296, 607 N.E.2d 632, 180 Ill. Dec. 563 (2d Dist. 1993). "As long as the contempt order, within its four corners, sets forth the terms upon which a contempt may be dissolved and the defendant released from jail, the order is valid." In re Estate of Maslowe, 133 Ill. App. 3d 1043, 479 N.E. 2d 1180, 1184, 89 Ill. Dec. 174 (2d Dist. 1985). Conversely, a written order that fails to provide the contemnor (and the jailer) with the "keys to his cell" is void. Pancotto v. Mayes, 304 Ill. App. 3d 108, 709 N.E.2d 287, 237 Ill. Dec. 301 (2d Dist. 1999).
g. The order must contain, in its decretal portion, an adjudication of civil contempt and sanctions imposed. Green v. Green, 21 Ill. App. 3d 396, 315 N.E.2d 324 (5th Dist. 1974).
h. The order must immediately be transmitted to the contemnor and to the jailer along with the commitment order.
2. [2.38] Requirement To Obey a Lawful Order
Generally, a court order is conclusive and must be obeyed unless it is modified or set aside. While contempt is a proper means for a court to enforce its order, contempt will not lie when the court lacked jurisdiction to enter the underlying order. Jenner v. Wissore, 164 Ill. App. 3d 259, 517 N.E.2d 1220, 115 Ill. Dec. 534 (5th Dist. 1988).
Jurisdiction in a particular case constitutes not only the power of the court to hear and determine the matter before it, but also the power to render a judgment on it; however, any act of a court beyond its jurisdiction is void. Hence, if the court has jurisdiction of the litigation, an order of contempt is valid, but if the court is without jurisdiction, then its action is void ab initio, and the court's contempt order must be voided and vacated.
Unless an underlying order is void, the court has the inherent power to enforce its order by way of contempt. In re G.B., 88 Ill.2d 36, 430 N.E.2d 1096, 58 Ill. Dec. 845 (1981).
A litigant's disagreement with the court's decision does not excuse the litigant from the obligation to obey it. See Welch v. City of Evanston, 181 Ill. App. 3d 49, 536 N.E.2d 866, 129 Ill. Dec.816 (1st Dist. 1989); In re Estate of Steinfeld, 158 Ill.2d 1, 630 N.E.2d 801, 196 Ill. Dec. 636 (1994). However, a finding of contempt was reversed where the contemnor refused to execute an order of the court for possession of a premises in a mortgage foreclosure against "unknown owners' "solely in an attempt to obtain review of those orders which, in good faith, he believed he could not discharge". Northwest Mortgage, Inc. v. Ozuna, 302 Ill. App. 3d 674, 706 N.E.2d 984, 990, 236 Ill. Dec. 110 (1st Dist. 1998).
3. [2.39] Form of Judgment Order of Contempt
ORDER OF ADJUDICATION
INDIRECT CIVIL CONTEMPT
This cause being heard this date pursuant to a Petition for Adjudication of Indirect Civil Contempt and rule to show cause directed to Respondent to show cause, if any, why he should not be found in indirect civil contempt and sanctioned immediately for his failure to comply with the court's order entered on [date], directing Respondent to pay child support as set by the court;
And Petitioner, appearing in person and with counsel, and Respondent likewise appearing in person and with counsel;
And the court having heard the testimony of the parties and witnesses together with all pleadings, exhibits, and arguments of counsel and being fully advised in the premises, hereby finds:
1. The court has jurisdiction of the parties and subject matter.
2. On [date], this court entered an order directing Respondent to pay child support in the sum of $______ on the first day of ___________, ___, and a like amount on the first day of each and every month thereafter until further order of court, the payments to be made through the Clerk of the Court.
3. As of [date], Respondent was $______ in arrears of child support payments.
4. Respondent has not given any legally sufficient reasons for his failure to comply with the order even though he had, and still has, the means to comply with the payment order, and Respondent's failure to comply with the order is wilful and contumacious.
5. The conduct of Respondent has defeated and impaired the rights and interests of Petitioner and, further, has impeded and obstructed the court in its administration of justice.
6. Respondent has been afforded his rights to set forth his defenses and has been given an opportunity to make a full statement in allocution.
IT IS THEREFORE ORDERED AND ADJUDGED that Respondent
1. is hereby found and declared to be in indirect civil contempt of court for his wilful failure to obey the court's order as herein stated;
2. is ordered committed to the County Jail of ____________ County, there to remain until he shall have purged himself of contempt by paying to the Clerk of the Court of the County of __________, on behalf of Petitioner, the sum of $_______, representing the total amount of arrearage owing, or until he is otherwise discharged by due process of law.
The Clerk of the Court is directed to prepare a certified copy of this order and submit it to the Sheriff of ________ County, and to the Respondent Contemnor.
ENTER:
________________________________________
Judge
Upon the imprisonment of respondent for civil contempt, all that is required is that a copy of the order be given to the sheriff. CCP §2-1801 provides that no separate mittimus need be issued if the court signs a written order committing a defendant.
F. [2.40] Right To Appeal
An appeal in a civil contempt proceeding may be taken as in any other civil case. Upon the filing of a notice of appeal, the court may fix bond and stay execution of the sanction pending the disposition of the appeal. The reviewing court will refuse to entertain an appeal unless the court has imposed sanctions. Valencia v. Valencia, 71 Ill.2d 220, 375 N.E.2d 98, 16 Ill. Dec. 467 (1978). An interlocutory appeal will not be considered by the reviewing court. Sanctions must be imposed prior to appeal.
G. [2.41] Defenses in Civil Contempt Cases
The respondent has a right to file a responsive pleading to the rule to show cause, and if the respondent has been served with an order of attachment, a motion to quash should be filed as soon as possible. If the court has not set bond on the attachment and refuses to quash, request should be made for the court to set bond on the order of attachment. The following sections discuss possible defenses to a finding of civil contempt.
1. [2.42] Void Order
The trial court's order, no matter how erroneous, must be obeyed until set aside. City of Chicago v. King, 86 Ill. App.2d 340, 230 N.E.2d 41 (1st Dist. 1967). On appeal, the reviewing court will set aside a finding of contempt after it determines whether the court had power to enter into the inquiry before it. In doing so, it will determine whether the court had (a) jurisdiction over the parties, (b) jurisdiction over the subject matter, and (c) power to decide the particular matters presented. However, it is no defense of contempt to show that the order was merely erroneous. Rather, the order must be void ab initio. People v. Stinger, 22 Ill. App. 3d 371, 317 N.E.2d 340 (2d Dist. 1974); People v. Huntley, 144 Ill. App. 3d 64, 493 N.E.2d 1193, 98 Ill. Dec. 172 (5th Dist. 1986). See also O'Grady v. Cook County Sheriff's Merit Board, 204 Ill. App. 3d 258, 561 N.E.2d 1226, 149 Ill. Dec. 530 (1st Dist. 1990); Tri-State Coach Lines, Inc. v. Illinois Commerce Commission, 202 Ill. App. 3d 206, 559 N.E.2d 869, 147 Ill. Dec. 529 (1st Dist. 1990); Southern Illinois Medical Business Associates v. Camillo, 208 Ill. App.3d 354, 567 N.E.2d 74, 153 Ill. Dec. 359 (5th Dist. 1991); In re Marriage of Tatham, 293 Ill.App.3d 471, 688 N.E. 2d 864, 228 Ill.Dec.66 (5th Dist. 1997); People ex rel. Burris v. Maraviglia, 264 Ill.App.3d 392, 636 N.E.2d 717, 201 Ill.Dec. 285 (1st Dist. 1993) (attorney, but not members of his firm, held in contempt).
2. [2.43] Contempt Order Against Public Officials
In People v. Roush, 101 Ill.2d 355, 462 N.E.2d 468, 472, 78 Ill. Dec. 349 (1984), the court stated that "when public officials are given discretionary administrative powers, courts of equity are reluctant to control or review the exercise of the power absent fraud, corruption, oppression or gross injustice." See also People v. Wilcox, 5 Ill.2d 222, 125 N.E.2d 453 (1955); Lake v. Sklodowski, 97 Ill.2d 311, 454 N.E.2d 322, 73 Ill. Dec. 462 (1983); People v. Minor, 162 Ill. App. 3d 140, 514 N.E.2d 1042, 113 Ill. Dec. 130 (2d Dist. 1987).
3. [2.44] Lack of Knowledge of the Order
One of the requisite elements of contempt is that the contemnor knew or reasonably should have known of the order he is alleged to have violated. If the respondent, as an affirmative defense, can show by a preponderance of the evidence that he had no knowledge of the order nor could have known upon the exercise of due diligence, then a contempt order cannot stand. An orally transmitted order is not sufficient notice to a respondent regarding grounds for contempt. Central Production Credit Association v. Kruse, 156 Ill. App. 3d 526, 509 N.E.2d 136, 108 Ill. Dec. 710 (2d Dist. 1987).
4. [2.45] Lack of Wilfulness
"Mere absence of compliance with the provisions of the decree is not sufficient basis for a judgment of contempt of court unless the evidence shows the failure to comply was a wilful and contumacious refusal to obey the court order." Cole v. Cole, 85 Ill. App.2d 105, 229 N.E.2d 293, 297 (1st Dist. 1967). See also Mesirow v. Mesirow, 346 Ill. 219, 178 N.E. 411 (1931). However, the court in County of Cook v. Lloyd A. Fry Roofing Co., 59 Ill.2d 131, 319 N.E.2d 472 (1974), held that intent of the respondent was not a relevant factor in a determination of civil contempt. In a civil contempt proceeding involving violation of an injunction, lack of wilfulness is not a defense, whereas in other civil contempt proceedings, lack of wilfulness is a defense. See §2.21 above.
5. [2.46] Lack of Present Means or Ability To Comply with the Order
A respondent's lack of means to comply with the court's order precludes a finding of contempt since he would not have the ability to purge himself of contempt. County of Cook v. Lloyd A. Fry Roofing Co., 59 Ill.2d 131, 319 N.E.2d 472 (1974); In re Marriage of Logston, 103 Ill.2d 266, 469 N.E.2d 167, 82 Ill. Dec. 633 (1984). "The corollary to this rule, however, prevents assertion of the defense of inability where the contemnor has voluntarily created the incapacity." Fry Roofing, 319 N.E.2d at 476; People v. Rezek, 410 Ill. 618, 103 N.E.2d 127 (1951). See also Estate of Shlensky, 49 Ill.App.3d 885, 364 N.E.2d 430, 7 Ill.Dec. 269 (4th Dist.1977); In re Marriage of Tatham, 293 Ill.App.3d 471, 688 N.E.2d 864, 228 Ill.Dec.166 (5th Dist. 1997); In re Marriage of Peterson, 319 Ill.App.3d 325, 744 N.E.2d 877, 253 Ill.Dec.144 (1st Dist. 2001). While a voluntarily created incapacity has not been allowed as an affirmative defense, if the respondent has completely dissipated his property or, for example, has destroyed a one-of-a-kind piece of art that he was directed to transfer to another person, the court must be convinced that the contemnor is reasonably able, if he so wishes, to comply with the court's order.
After a civil contempt hearing has been commenced and it develops that a finding of indirect criminal contempt would be a more appropriate route, but the court did not advise the respondent of his procedural due process rights before the hearing and he has testified pursuant to CCP §2-1102, the court is precluded from making a finding of indirect criminal contempt.
Contemnor cannot assert an inability to comply where she has voluntarily created that incapacity. In re Marriage of Kneitz, 341 Ill.App.3d 299, 793 N.E.2d 988, 276 Ill.Dec.299 (2d Dist.2003).
6. [2.47] Equitable Estoppel
"Equitable estoppel" has been described as follows:
[W]here a party by his statements or conduct leads another to do something he would not have done but for the statements or conduct of the other, the one guilty of the expressions or conduct will not be allowed to deny his utterances or acts to the loss or damage of the other party. The party claiming the estoppel must have relied upon the acts or representations of the other and have had no knowledge or convenient means of knowing the true facts. Dill v. Widman, 413 Ill. 448, 109 N.E.2d 765, 769 (1952).
An example of an equitable estoppel defense is the making of a valid and equitable agreement to discontinue child support payments on the basis that respondent will no longer exercise his right to visitation. Bartlett v. Bartlett, 70 Ill. App. 3d 661, 389 N.E.2d 15, 27 Ill. Dec. 329 (3d Dist. 1979). But this defense was not allowed in Blisset v. Blisset, 144 Ill. App. 3d 1088, 495 N.E.2d 608, 99 Ill. Dec. 161 (4th Dist. 1986), aff'd in part, rev'd in part, 123 Ill.2d 161 (1988), in which the court held that such an agreement was against public policy and not in the best interest of the child.
There are six elements of equitable estoppel: (1) there must be words or conduct by the party against whom the estoppel is alleged amounting to a misrepresentation or concealment of material facts; (2) the party against whom the estoppel is alleged must have had knowledge at the time the representations were made that the representations were untrue; (3) the truth respecting the representations must be unknown to the party claiming the benefit of the estoppel at the time that the representations were made and acted on by him or her; (4) the party estopped must intend or reasonably expect that his or her conduct or representations will be acted upon by the party asserting the estoppel; (5) the party claiming the benefit of the estoppel must have in good faith relied upon the misrepresentation to his or her detriment; and (6) the party claiming the benefit of the estoppel must have so acted because of the representations that he or she would be prejudiced were the first party permitted to deny the truth thereof. Vaughn v. Speaker, 126 Ill.2d 150, 533 N.E.2d, 885, 127 Ill.Dec. 803 (1988). The purpose of the equitable estoppel doctrine is to prevent a party from taking advantage of his or her own wrongdoing. M.J Oldenstedt Plumbing Co. v. K mart Corp., 257 Ill. App. 3d 759, 692 N.E.2d 214, 195 Ill.Dec 906 (3d Dist.1994). City of Rockford v. Suski, 307 Ill. App. 3d 233, 718 N.E.2d 269, 240 Ill. Dec. 788 (2nd Dist. 1999), (defense of Equitable Estoppel not allowed).
7. [2.48] Laches/Limitations
Laches is a doctrine that bars relief to a plaintiff where, because of the plaintiff's delay in asserting a right, the defendant has been misled or prejudiced. Pettey v. First National Bank of Geneva, 225 Ill. App. 3d 539, 588 N.E.2d 412, 167 Ill.Dec.771 (2nd Dist. 1992). However, where the circumstances indicate that the party knowingly violated a restriction or a right and pressed ahead, suggesting a purpose to proceed regardless of the consequences, laches may not be used as an affirmative defense. Id. In general, the application of the doctrine of laches to bar a suit due to a delay in asserting a right is a matter within the trial court's discretion. Id. Whether a party is guilty of laches is a question directed to the sound discretion of the trial court, whose decision will not be disturbed on appeal absent an abuse of discretion. In re Estate of Bowman, 140 Ill. App. 3d 976, 489 N.E. 2d 489, 95 Ill.Dec. 268 (2d Dist. 1986).
In applying the doctrine of laches in a contempt proceeding, the circumstances in each case should be carefully examined to determine when the lapse of time in bringing the contempt charges would make it unjust or unfair to compel a respondent to answer the charges. People exrel.v.Barasch, 21 Ill.2d 407, 173 N.E.2d 417, 420 (1961). Contempt charges may be brought for a series of contemptuous conduct incidents over an extended period of time. Id. at 412. See also City of Rockford v. Suski, 307 Ill. App. 3d 233, 718 N.E.2d 269, 240 Ill. Dec. 788 (2d Dist. 1999) (defense was not allowed); Finley v. Finley, 81 Ill.2d 317, 410 N.E.2d 12, 43 Ill. Dec. 12 (1980) (defense not allowed); Blisset v. Blisset, 144 Ill. App. 3d 1088, 495 N.E.2d 608, 99 Ill. Dec. 161 (4th Dist. 1986), aff'd in part, rev'd in part, 123 Ill.2d 161 (1988).
Limitations: The legislature cannot limit the inherent power of the court by imposing a statute of limitations on contempt. People v. Martin-Trigona, 94 Ill.App.519, 418 N.E.2d 763, 49 Ill.Dec.743 (4th Dist.1981).
8. [2.49] Discharge in Bankruptcy
Although property settlement agreements and attorneys' fees are dischargeable in bankruptcy, maintenance and child support are not. That the judgment of dissolution calls for the payment of money as child support or as maintenance payments does not, however, mean that it is always non-dischargeable . The court will look to the totality of the circumstances surrounding the judgment order, e.g., whether the amount of child support or maintenance is over and above what is required to support the child or spouse, the relative earning power of the parties, and whether the spouse receiving maintenance is able to work or is now working. In re Marriage of Lytle, 105 Ill. App. 3d 1095, 435 N.E.2d 522, 61 Ill. Dec. 825 (2d Dist. 1982); See also In re Marriage of Alltop, 203 Ill.App.3d 606, 561 N.E.2d 394, 149 Ill.Dec.116 (4th Dist.1990).
9. [2.50] Automatic Stays
When contempt is invoked for failure to pay a judgment or compel expenditure of money from the bankrupt's estate, contempt proceedings must be stayed. But when invoked solely to uphold the dignity of the court, the proceedings need not be stayed. In re Marriage of Lueck, 140 Ill. App. 3d 836, 489 N.E.2d 443, 95 Ill. Dec. 222 (2d Dist. 1986).
In Lueck, the respondent was adjudicated in civil contempt on May 8, with the service of sanctions stayed until June 12. On May 29, he filed a petition for bankruptcy under Chapter 13, but the trial court refused to stay service of sanctions further. The court held that contempt proceedings should have been stayed, the contempt order was coercive in nature, the bankruptcy estate included earnings from services performed after filing of the petition, and the respondent had no other assets that were not included in the bankruptcy estate.
10. [2.51] Lack of Certainty or Clarity in the Order
The court must make certain that a respondent knows of the order on which a contempt may be based, and that order must be specific as to its terms. "It takes but a few moments of a trial judge's time to directly elicit from a party a response indicating that he understands the proceedings or the court's oral orders and incorporate such into the record." Abbott v. Abbott, 129 Ill. App.2d 96, 262 N.E.2d 502, 504 (4th Dist. 1970). "[A]n injunction order cannot support a finding of contempt unless it sets forth with certainty, clarity and conciseness precisely what actions are enjoined." O'Leary v. Allphin, 64 Ill.2d 500, 356 N.E.2d 551, 558, 1 Ill. Dec. 363 (1976). An orally transmitted order is not sufficient notice to a respondent regarding grounds for contempt. Central Production Credit Association v. Kruse, 156 Ill. App. 3d 526, 509 N.E.2d 136, 108 Ill. Dec. 710 (2d Dist. 1987).
11. [2.52] When Performance Would Be in Violation of the Law
A respondent cannot be held in civil contempt and sanctioned in order to coerce him into performing an act that would be in violation of the criminal law. Halverson v. Halverson, 42 Ill. App.2d 284, 192 N.E.2d 258 (1st Dist. 1963).
III. [2.53] CRIMINAL CONTEMPT
The principal societal norms vindicated in criminal contempt proceedings are (a) judges and other court officials are entitled to respect when performing their judicial duties; (b) judicial proceedings should be conducted in an orderly manner; (c) court orders should be obeyed; and (d) individuals should not commit fraud on the courts.
The interests of orderly government demand that respect and compliance be given to orders issued by courts possessed of jurisdiction of persons and subject matter. One who defies the public authority and willfully refuses his obedience, does so at his peril. In imposing a fine for criminal contempt, the trial judge may properly take into consideration the extent of the willful and deliberate defiance of the court's order, the seriousness of the consequences of the contumacious behavior, the necessity of effectively terminating the defendant's defiance as required by the public interest, and the importance of deterring such acts in the future. United States v. United Mine Workers of America, 330 U.S. 258, 91 L.Ed 884, 67 S. Ct. 677, 701 (1947).
The conduct that may be punished by means of criminal contempt proceedings covers the entire gamut of disrespectful, disruptive, deceitful, and disobedient acts (or failures to act) that affect judicial proceedings. Perhaps the most readily recognizable example is an outburst on the part of spectators or litigants that disrupts judicial proceedings. E.g., In re Dellinger, 502 F.2d 813, 816 - 817 (7th Cir. 1974), cert. denied, 95 S. Ct. 1425 (1975); People v. Jashunsky, 51 Ill.2d 220, 282 N.E.2d 1, 5 (1972). See also In re Marriage of Betts, 200 Ill. App. 3d 26, 558 N.E.2d 404, 146 Ill. Dec. 441 (4th Dist. 1990).
A. [2.54] Constructive Direct Criminal Contempt
Acts occurring "within the presence" of the court may include constructive presence.
Previous decisions of the court have recognized two types of direct criminal contempts -- those which are personally observed by the judge and those which are not personally seen by the judge but take place in an integral or constituent part of the court and are thereby deemed to have occurred in the constructive 'presence of the court.' . . . A direct criminal contempt which occurs in the constructive 'presence of the court' may call for the hearing of extrinsic evidence . . . although, again, the proceeding may be essentially summary in nature. If, however, such evidence is necessary to establish the contempt, notice and hearing are required. [Citations omitted.] People v. Javaras, 51 Ill.2d 296, 281 N.E.2d 670 (1972).
Examples of constructive presence are found in People v. Andalman, 346 Ill. 149, 178 N.E. 412 (1931), (filing documents with the clerk contrary to court order); In re Estate of Kelly, 365 Ill. 174, 6 N.E.2d 113 (1936), (filing a spurious will with the clerk); People v. Parker, 374 Ill. 524, 30 N.E.2d 11 (1940), (sending correspondence to the grand jury in an attempt to influence its decision); People v. Cochrane, 307 Ill. 126, 138 N.E. 291 (1923) (refusal to answer questions before the grand jury); and People v. Minor, 281 Ill. App. 3d 568, 667 N.E.2d 538, 217 Ill. Dec. 449 (1st Dist. 1996) (filing pro se documents containing false statements about judge that are disrespectful, malign personal character of judge, and are clearly calculated to derogate from court's dignity, embarrass court, and bring administration of justice into disrepute are treated as direct criminal contempt and are subject to summary sanction). See also Kaeding v. Collins, 281 Ill. App. 3d 919, 668 N.E.2d 572, 218 Ill. Dec. 88 (3d Dist. 1996), in which contemptuous documents were handed by a pro se party to the judge.
The determination of what constitutes a contempt committed in "the presence of the court" necessarily depends not only on the physical location but also on the nature of the act. Javaras, supra.
Attorney submitted an order to the court misrepresenting the facts. Opposing counsel filed a petition to vacate the order which was allowed. He then filed a petition for sanctions under Supreme Court Rule 137 which was allowed. Respondent attorney appealed the sanctions and the reviewing court reversed, holding the respondent's actions did not come within the purview of Rule 137. The court suggested the proper remedy was to file a petition for criminal contempt against respondent for committing a fraud against the court. In re Marriage of Oleksy, 337 Ill.App.3d 946, 787 N.E.2d 312, 272 Ill.Dec.497
(1st Dist.2003).
B. [2.55] Direct Criminal Contempt
Contumacious conduct constitutes direct criminal contempt if it is committed in such a manner that no evidentiary hearing is necessary to determine the facts surrounding the conduct and if it is committed in an integral part of the court while the court is performing its judicial function, i.e., if it is an act that takes place in the very presence of the judge with all the elements of the contempt being within the personal knowledge of the judge. United States v. Wilson, 421 U.S. 309, 44 L.Ed.2d 186, 95 S. Ct. 1802 (1975); People v. Jashunsky, 51 Ill.2d 220, 282 N.E.2d 1 (1972); People v. L.A.S., 111 Ill.2d 539, 490 N.E.2d 1271, 96 Ill. Dec. 66 (1986).
1. [2.56] Verbal and Non-verbal Acts of Contempt
Both verbal and non-verbal acts of contempt (or a combination of both) constitute direct criminal contempt. If the acts are verbal, the court reporter can transcribe them for the record; however, if the acts are non-verbal, it is the court's responsibility to read into the record the non-verbal acts committed before it. Otherwise, if the non-verbal acts are not fully and definitively set forth in the record the reviewing court will be unable to consider them.
Chief Justice Burger and Justice Rehnquist, in their separate opinion in In re Little, 404 U.S. 553, 30 L.Ed.2d 708, 92 S. Ct. 659, 711 (1972), gave some words of wisdom to trial judges faced with direct criminal contempt:
A contempt holding depends in a very special way on the setting, and such elusive factors as the tone of voice, the facial expressions, and the physical gestures of the contemnor; these cannot be dealt with except on full ventilation of the facts. Those present often have a totally different impression of the events from what would appear even in a faithful transcript of the record.
Therefore, the trial judge must insure that a "verbal picture" of the non-verbal acts of contempt taking place before the court is read into the record at the time of the occurrence.
2. [2.57] Formal Charge Not Required
Since all the facts necessary for a finding of direct criminal contempt have occurred before the court, no formal charge need be filed. People v. Loughran, 2 Ill.2d 258, 118 N.E.2d 310 (1954).
3. [2.58] Due Process Rights of Contemnor in Direct Criminal Contempt
Due to the summary nature of a direct criminal contempt proceeding, a contemnor is not entitled to the usual due process rights of one charged with a criminal offense. In a "minor" direct criminal contempt, he has no right to counsel, to a written charge, to an evidentiary hearing, to cross-examination of witnesses, to present witnesses, or to trial by jury -- only the right to be advised of the specific act or acts constituting the contempt and the right to make a statement in allocution before sanctions are imposed. People v. Siegal, 400 Ill. 208, 79 N.E.2d 616 (1948). Nor does there need to be a specific finding of contemptuous intent, since that intent may be inferred from the nature of the act and surrounding circumstances. People ex rel. Kunce v. Hogan, 67 Ill.2d 55, 364 N.E.2d 50, 7 Ill. Dec. 63 (1977).
A contemnor is, however, entitled to full due process rights if charged with a "serious" direct criminal contempt. The reviewing courts will look to the sanctions actually imposed to determine whether the contempt is "minor" or "serious." Bloom v. State of Illinois, 391 U.S. 194, 20 L.Ed.2d 522, 88 S. Ct. 1477 (1968); In re Marriage of Betts, 200 Ill. App. 3d 26, 558 N.E.2d 404, 146 Ill. Dec. 441 (4th Dist. 1990). A "minor" contempt is defined by the sanctions actually imposed. If sanctions are a fine of not more than $500 or incarceration of not more than six months or both, the contempt is "minor"; if sanctions exceed those of a "minor" contempt, then the contempt is considered "serious," and due process rights attach. However, imposition of a $10,000 fine on a 13,000-member labor union did not entitle the contemnor to a jury trial upon adjudication of criminal contempt. Muniz v. Hoffmann, 422 U.S. 454, 45 L.Ed.2d 319, 95 S. Ct. 2178 (1975). See also Duncan v. Louisiana, 391 U.S. 145, 20 L.Ed.2d 491, 88 S. Ct. 1444 (1968).
4. [2.59] Substitution/Recusal of Judge
In a direct criminal contempt, the contemnor is not entitled to a substitution of judge. McAdams v. Smith, 25 Ill. App.2d 237, 166 N.E.2d 446 (1st Dist. 1960).
Although the judge before whom the direct criminal contempt is committed may sanction the contemnor if he acts immediately, he should refer the matter to another judge if his conduct was so integrated with the contempt that he actually contributed to it or if his objectivity can reasonably be questioned. Offutt v. United States, 348 U.S. 11, 99 L.Ed. 11, 75 S. Ct. 11 (1954); People v. Winchell, 45 Ill. App. 3d 752, 359 N.E.2d 487, 3 Ill. Dec. 848 (3d Dist. 1977).
If the judge is the target of a stinging personal attack and takes no immediate action of finding the contemnor in direct criminal contempt, due process requires that the hearing be conducted before another judge (Mayberry v. Pennsylvania, 400 U.S. 455, 27 L.Ed.2d 532, 91 S. Ct. 499 (1971)), although not every attack on a judge disqualifies him from sitting on the contempts proceeding (Ungar v. Sarafite, 376 U.S. 575, 11 L.Ed.2d 921, 84 S. Ct. 841 (1964)), or, "where acts of contempt are palpably aggravated by a personal attack upon the judge in order to drive the judge out of the case for ulterior reasons, the scheme should not be permitted to succeed" (Mayberry, 91 S. Ct. at 504, quoting Cooke v. United States, 267 U.S. 517, 69 L.Ed. 767, 45 S. Ct. 390, 395 (1924)).
If the judge recuses himself due to a "stinging attack" by the contemnor or has become so embroiled in the contempt that he actually contributed to it and his objectivity can reasonably be questioned, the transcript and records should be given to the judge hearing the contempt proceedings. "The records and transcripts of the underlying action, of which the trial court [is] authorized to take judicial notice (see City of East St. Louis v. Touchette (1958), 14 Ill.2d 243, 249, 150 N.E.2d 178), provided the necessary proof of defendant's guilt; there was no need to submit further evidence to establish the charge." People v. Ernest, 141 Ill.2d 412, 566 N.E.2d 231, 238, 152 Ill. Dec. 544 (1990).
Both the United States and Illinois Supreme Courts have discouraged the use of direct criminal contempt except when necessary to maintain order during court proceedings.
The United States Supreme Court in In re Oliver, 333 U.S. 257, 92 L.Ed. 682, 68 S.Ct 499, 508 (1948), quoting Cooke v. United States, supra, 45 S. Ct. at 395 (1925), stated
that for a court to exercise the extraordinary but narrowly limited power to punish for contempt without adequate notice and opportunity to be heard, the court-disturbing misconduct must not only occur in the court's immediate presence, but . . . the judge must have personal knowledge of it acquired by his own observation of the contemptuous conduct. . . . [Further, direct criminal contempt should be used only when there occurs] "an open threat to the orderly procedure of the court and such a flagrant defiance of the person and presence of the judge before the public" that, if "not instantly suppressed and punished, demoralization of the courts authority will follow."
The Illinois Supreme Court in People v. Ernest, supra, held that:
[a] contemnor's due process rights may be severely restricted if the contumacious act takes place in open court and within the presence of the judge, and if immediate punishment of the contemnor is essential to prevent the demoralization of the court's authority before the public. . . . The delay in conviction and punishment of the contemnor demonstrates that the court was not required to act summarily so that it could maintain order and proceed with its business. [Citation omitted.] 566 N.E.2d at 237 - 238.
In a unique case involving Federal Rule of Criminal Procedure 42(a), the United States Supreme Court held a contrary view. Sacher v. United States, 343 U.S. 1, 96 L.Ed. 717, 72 S. Ct. 451 (1952), involved a tumultuous nine-month trial in which 11 leaders of the Communist Party were convicted of violating the Smith Act of 1940 (Alien Registration Act), 18 U.S.C. §2385. During the course of the trial, defense counsel engaged in numerous contemptuous acts. At the conclusion of the trial, the trial judge filed a certificate under Rule 42(a) holding defense counsel summarily in direct criminal contempt. Rule 42(a) provides that "[a] criminal contempt may be punished summarily if the judge certifies that he saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the court."
The Supreme Court upheld the trial court's finding even though the contempt was not acted on at the time of the contemptuous acts, stating:
We hold that Rule 42 allows the trial judge, upon the occurrence in his presence of a contempt, immediately and summarily to punish it, if, in his opinion, delay will prejudice the trial. We hold, on the other hand, that if he believes the exigencies of trial require that he defer judgment until its completion he may do so without extinguishing his power. 72 S. Ct. at 456.
In re Oliver, supra, and Sacher v. United States, supra, differ in their holdings, and the facts surrounding the respondents' conduct are patently dissimilar. In Oliver, a one-man grand jury conducting a secret investigation believed a witness had been evasive and had given contradictory answers. The one-man grand jury immediately charged the witness with criminal contempt, convicted him, and immediately sentenced him to jail. In Sacher, the stated purpose of the respondent/attorneys was to continue to disrupt the proceedings. It appears that in Sacher, both the trial judge and Supreme Court did not believe holding respondents in criminal contempt at the time of their contemptuous acts would have had the desired effect. The fact still remains, however, that the trial judge in Sacher did not act immediately to maintain order, and the necessity of a summary action, and restriction of respondent's due process rights, no longer existed.
5. [2.60] Course of Action Available to the Court
A number of options are available to the court after an inappropriate act from a litigant, counsel, or spectator. If the court observes that tempers are about to flare in "the heat of battle," a recess should be called to let matters cool. If at all possible, a warning should be issued by the court that certain conduct will not be tolerated. These warnings should be out of the hearing of the jury. If warnings are of no avail or the conduct is outrageous, the court may take the following actions:
a. The court may order the respondent removed from the courtroom. If the respondent is a party to the action being tried, he may lose his Sixth Amendment right to be present at his own trial. However, a defendant should not be removed unless he has first been warned to cease his disruptive conduct, and the right to be present a trial, even though lost, can be regained "as soon as the defendant is willing to conduct himself consistently with the decorum and respect inherent in the concept of courts and judicial proceedings." Illinois v. Allen, 397 U.S. 337, 25 L.Ed.2d 353, 90 S. Ct. 1057, 1061 (1970). Also, in such an event, the court should make every reasonable effort to enable the contemnor to communicate with his attorney and, if possible, keep him apprized of the progress of the trial through a speaker system.
b. The court may initiate a charge of direct criminal contempt and assign the matter to another judge for hearing. People v. Ernest, 141 Ill.2d 412, 566 N.E.2d 231, 152 Ill. Dec. 544 (1990). In this event, the records and transcript of the underlying action would be placed before the judge hearing the contempt action; from that record and transcript, he would determine whether the respondent was guilty of contempt.
c. The court may punish the contemnor instantly for the contemptuous act. In re Terry, 128 U.S. 289, 32 L.Ed. 405, 9 S. Ct. 77 (1888); People v. Siegal, 400 Ill. 208, 79 N.E.2d 616 (1948). Usually this is the practice followed if the purpose is to restore order in the courtroom. If a jury trial is in progress, the jury should be removed before the adjudication of contempt and impositions of sanctions.
d. The court may hold the contemnor in direct criminal contempt at the time of the act but delay imposition of sanctions until after the trial. Sacher v. United States, 343 U.S. 1, 96 L.Ed. 717, 72 S. Ct. 451 (1952). Instead of imposing sanctions, however, the court may vacate the finding of contempt following an apology and other mitigating circumstances (e.g., no further contemptuous acts following the original adjudication of criminal contempt).
6. [2.61] Imposition of Sanctions
Sanctions can be imposed in a summary manner only if the contempt is "minor" (a fine of not more than $500 or incarceration not to exceed six months or both). If a contemnor is adjudicated in direct criminal contempt that is later forgiven (see §2.58), the adjudication should be vacated. If the court determines that the contempt is "serious," the contemnor is entitled to his due process rights. For further discussion on sanctions, see §2.73.
Note that separate acts of direct criminal contempt can be sanctioned separately, however, the collective sanctions cannot exceed six months without granting the contemnor a jury trial. In Godispoti v. Pennsylvania 418 U.S. 506, 41 L.Ed.2d 912, 94 S.Ct. 2687 (1974) the contemnor was sanctioned for a number of separate direct criminal contempts during a trial. Each sanction was less than six months, but the court ordered the sanctions served consecutively with all sanctions totaling three years. The Supreme Court reversed holding the sentences in the aggregate totaled more than six months, entitling the contemnor to a trial by jury.
When a contemnor engages in two distinct physical actions within the ocular view of the court, the court can make two distinct findings of contempt; however, when the acts constitute a single course of conduct with no change in the contemptuous criminal conduct, the sentences for criminal contempt must be concurrent. People v. Brown, 235 Ill. App. 3d 945, 601 N.E.2d 1380, 176 Ill. Dec. 682 (4th Dist. 1992).
7. [2.62] Order of Direct Criminal Contempt
A written order of adjudication of direct criminal contempt is required, setting forth with specificity the nature of the contemptuous acts and sanctions imposed. Any non-verbal contemptuous act must be read into the record and made part of the findings and order. For further discussion as to the order of criminal contempt, see §2.75.
An order of direct criminal contempt must set forth the specific facts forming the basis for the order. People v. Coulter, 228 Ill. App. 3d 1014, 594 N.E.2d 1157, 171 Ill. Dec. 637 (1st Dist. 1992).
A written order of contempt is required, and it must clearly and specifically delineate the contumacious conduct involved. People v. Griffith, 247 Ill. App. 3d 21, 620 N.E.2d 1138, 189 Ill. Dec. 821 (1st Dist. 1993).
In Twardowski v. Holiday Hospitality Franchising, 321 Ill. App. 3d 509, 748 N.E. 2d 222, 254 Ill. Dec. 776 (1st Dist. 2001), the court sua sponte found a pro se plaintiff in contempt of court for filing duplicate motions. The court's order stated "[t]he plaintiff is sanctioned an additional $1000 for contempt of court." 748 N.E.2d at 228. The reviewing court reversed the finding of contempt holding that the "contempt order was so legally insufficient as to render it void". Id. The appellate court further stated, "The requisite contemptuous intent is established if the contemnor knew or reasonably should have known that his act was wrongful.... Under the facts of this case, it is unlikely that a barely literate pro se litigant understood his conduct to be offensive to the court". [citation omitted] 748 N.E.2d at 299.
C. [2.63] Indirect Criminal Contempt
A contumacious act constitutes indirect criminal contempt when it occurs outside the presence of the court, when it occurs in an area that is not an integral part of the court, or when the elements of the offense are not otherwise within the personal knowledge of the court.
An indirect contempt occurs out of the presence of the court, its proof being dependent on evidence of some kind or on facts of which the court has no judicial notice. People v. Jashunsky, 51 Ill.2d 220, 282 N.E.2d 1 (1972). Whether a contempt is considered direct or indirect, if the court is required to determine whether the conduct alleged was wilful, and in order to do so must consider extrinsic evidence as to matters not within its knowledge, the respondent must be given an opportunity to defend. People ex rel. Melendez v. Melendez, 47 Ill.2d 383, 387, 266 N.E.2d 327 (1971). See also People v. Waldron, 114 Ill.2d 295, 500 N.E.2d 17, 20, 102 Ill. Dec. 395 (1986).
1. [2.64] Prosecution of Indirect Criminal Contempt
Indirect criminal contempt may be prosecuted by the state's attorney, by counsel for a litigant, or by an amicus curiae appointed by the court. However, if the state's attorney is appointed, he may exercise his prosecutorial discretion and decline to prosecute the action. Marcisz v. Marcisz, 65 Ill.2d 206, 357 N.E.2d 477, 2 Ill. Dec. 310 (1976).
Courts have held that indirect criminal contempt proceedings may be instituted by private counsel since the petitioner has no proprietary interest in the outcome of the contempt proceeding brought to penalize the contemnor for noncompliance with the court's order. 47th & State Currency Exchange, Inc. v. B. Coleman Corp., 56 Ill. App. 3d 229, 371 N.E.2d 294, 13 Ill. Dec. 577 (1st Dist.1977); In re Estate of Wernick, 176 Ill. App. 3d 153, 530 N.E.2d 1127, 125 Ill. Dec. 718 (1st Dist. 1988); In re Marriage of Betts, 200 Ill. App. 3d 26, 558 N.E.2d 404, 146 Ill. Dec. 441 (4th Dist. 1990). Petitioner's attorney is entitled to fees from the contemnor for prosecution of the action. 47th & State Currency, supra.
If private counsel expects to prosecute an indirect contempt proceeding, he should first contact the state's attorney to determine whether the State wishes to proceed with the contempt. If not, the court should be so advised and may wish to enter an order appointing private counsel to prosecute the action. There is no statute of limitations restricting the filing of a criminal contempt action. See §2.3; Del Dotto v. Olsen, 257 Ill. App. 3d 463, 628 N.E.2d 1156, 195 Ill. Dec. 692 (1st Dist. 1993), upholding provision that private counsel may prosecute an indirect criminal contempt.
2. [2.65] Petition for Adjudication of Indirect Criminal Contempt
The charge of indirect criminal contempt need not have all the formalities of a criminal complaint. People ex rel. Chicago Bar Association v. Barasch, 21 Ill.2d 407, 173 N.E.2d 417 (1961). However, the contemnor has a "constitutional right to know the nature of the charge against him, to have it definitely and specifically set forth," and to be advised adequately that he might be subject to punishment for contempt. People v. Waldron, 114 Ill.2d 295, 500 N.E.2d 17, 21, 102 Ill. Dec. 395 (1986).
Because a respondent in an indirect criminal contempt proceeding enjoys the privilege against self-incrimination, he may not be called by the petitioner the title, "Petition for Rule to Show Cause," the designation commonly (and appropriately) used for a petition initiating an indirect civil contempt proceeding; instead, a petition initiating an indirect criminal contempt proceeding ought to have the title, "Petition for Adjudication of Criminal Contempt." By definition, if a respondent has a right not to testify, he cannot be required to "show cause" why he should not be held in indirect criminal contempt. Instead, the burden is on the petitioner to prove the charges in the petition beyond a reasonable doubt. An ancillary benefit of using such a title would be to force court and counsel into a recognition that such petitions differ from routine petitions for rules to show cause and require different procedural steps. [Emphasis in original.] In re Marriage of Betts, 200 Ill. App. 3d 26, 558 N.E.2d 404, 425, 146 Ill. Dec. 441 (4th Dist. 1990).
See also In re Marriage of Cummings, 222 Ill. App. 3d 943, 584 N.E.2d 900, 165 Ill. Dec. 466 (2d Dist. 1991).
State filed a petition in the original criminal case for adjudication of indirect criminal contempt alleging a probation violation after the term of probation had expired. State did not personally serve respondent in the contempt proceeding. Respondent found in indirect criminal contempt and sanctions were imposed. Respondent appealed the contempt and the reviewing court reversed, stating that "... indirect criminal contempt is a separate and distinct proceeding in and of itself and is not part of the original case being tried when the contemptuous act occurred (citation omitted). Since the offense of indirect criminal contempt is an original criminal proceeding, a summons or an arrest warrant should have been served on defendant to obtain jurisdiction. * * * The contempt proceedings here were fatally flawed because the State did not file its petition as a new criminal case and did not personally serve defendant to obtain jurisdiction. People v. Budzynski, 337 Ill.App.3d 433, 438-439, 777 N.E.2d 275, 266 Ill.Dec. 713 (4th Dist. 2002).
Cf. City of Urbana v. Andrew N.B., 335 Ill.App.3d 180, 780 N.E.2d 765, 269 Ill.Dec. 293 (4th Dist. 2002). Juvenile respondent was held in indirect criminal contempt for violation of an order of supervision during the term of supervision. A separate case was not opened on the criminal contempt, the petition for contempt was filed in the original juvenile case and respondent minor was not personally served on the criminal contempt matter. Finding of contempt affirmed. Budzynski was distinguished since the term of supervision had not expired (wherein probation had expired under Budzynski). 335 Ill.App.3d at 188.
The petition should be signed and verified by the petitioner who has direct knowledge of the facts surrounding the contemptuous act.
3. [2.66] Type of Action
Although indirect civil contempt is a continuation of the original cause of action (People v. Marcisz, 32 Ill. App. 3d 467, 334 N.E.2d 737 (3d Dist. 1975), aff'd in part, rev'd in part, 65 Ill.2d 206 (1976)), indirect criminal contempt is a separate and distinct proceeding in and of itself, involves different parties (the "People" being the petitioner), and is not a part of the original case being tried when the contumacious act occurred. Gompers v. Buck's Stove & Range Co., 221 U.S. 418, 55 L.Ed. 797, 31 S. Ct. 492 (1911); Bray v. United States, 423 U.S. 73, 46 L.Ed.2d 215, 96 S. Ct. 307 (1975); Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 110 L.Ed.2d 359, 375, 110 S. Ct. 2447 (1990). It requires proof of an additional fact not required to be proved in the prior cause, i.e., proof of violation of a prior order. People v. Totten, 118 Ill.2d 124, 514 N.E.2d 959, 113 Ill. Dec. 47 (1987). It is customary to style a criminal contempt cause of action in the name of the "People," but a charge or an order finding a contemnor in criminal contempt is not void merely because the order is designated under the original cause of action instead. Since it is a separate criminal action, it should be given a criminal case number rather than the number of the case out of which the act arose. Depending on the circumstances, a single act may support both criminal and civil contempt; however, in such an event, the respondent is entitled to the procedural safeguards of criminal contempt. People v. Gholson, 412 Ill. 294, 106 N.E.2d 333 (1952); In re Marriage of Betts, 200 Ill. App. 3d 26, 558 N.E.2d 404, 146 Ill. Dec. 441 (4th Dist. 1990); In re Marriage of Cummings, 222 Ill. App. 3d 943, 584 N.E.2d 900, 165 Ill. Dec. 466 (2d Dist. 1991).
4. [2.67] Form of the Petition
People of the State of Illinois )
ex rel. _____________ )
Petitioner, )
v. )
No. )
)
____________________ )
Respondent )
PETITION FOR ADJUDICATION OF
INDIRECT CRIMINAL CONTEMPT
Now comes the Petitioner in the above-entitled cause and respectfully petitions the court that it enter a finding and adjudication of indirect criminal contempt against the above-named Respondent and, in support thereof, declares and states:
1. On [date], Petitioner, __________, filed a Petition for Dissolution of Marriage in the Circuit Court of Illinois, __________ Judicial Circuit, __________ County (Cause No. __________), and, together with it, a Petition for Order of Protection.
2. On [date], an Emergency Order of Protection was allowed by this court and entered of record, a copy of this Emergency Order of Protection being duly served on Respondent on [date].
3. The Emergency Order of Protection directed that Respondent be prohibited from coming on the property of Petitioner, located at __________, __________, Illinois, and, further, that he be prohibited from harassing, intimidating, or physically abusing Petitioner.
4. On or around [time] on [date], in violation of the Emergency Order of Protection already entered by this court, Respondent came on Petitioner's property and, while Petitioner was on the front porch of this property, struck Petitioner in the face with his fist, thus physically abusing and injuring her, and in addition, continued to harass and intimidate her for a period of ten minutes by using obscene language, shouting at Petitioner, and attempting to induce Petitioner to dismiss the Petition for Dissolution of Marriage.
5. Respondent had actual knowledge and notice of the Emergency Order of Protection and has knowingly and contumaciously violated that Order.
WHEREFORE, Petitioner prays that this court set this Petition for hearing and cause a criminal summons to be served on Respondent, and, upon hearing, find Respondent in indirect criminal contempt of court and impose sanctions as the court deems just.
Petitioner
Petitioner hereby certifies that she has read this Petition for Adjudication of Indirect Criminal Contempt and that the facts contained in it are true and correct to the best of her knowledge.
Petitioner
5. [2.68] Service of Notice
After the petition has been filed, the judge or clerk of the court, as the case may be, should set a time, date, and place of hearing and order summons to issue. Since the offense of indirect criminal contempt is an original criminal proceeding, summons should be served on the respondent to obtain jurisdiction in the criminal cause. The respondent may, of course, otherwise appear by regular notice, waive service of summons, enter his appearance, and admit or defend the action. In re Marriage of Betts, 200 Ill. App. 3d 26, 558 N.E.2d 404, 146 Ill. Dec. 441 (4th Dist. 1990).
If the respondent fails to appear after service of summons, the court may direct that an order of attachment or an arrest warrant be issued against the respondent, or the court may order a warrant of arrest in the first instance in lieu of summons. In that case, the court should examine the petitioner or witness pursuant to §107-9 of the Code of Criminal Procedure, 725 ILCS 5/107-9.
If the verified petition alleges facts showing that the respondent will not respond to a summons, will flee the jurisdiction, or will attempt to conceal himself from service, the court may direct that an order of attachment or warrant of arrest issue immediately, directing any peace officer to bring the respondent before the court. Ex parte Petrie, 38 Ill. 498 (1865); Croucher v. Croucher, 51 Ill. App.2d 17, 200 N.E.2d 854 (1st Dist. 1964). See also Cook County Circuit Court Rule 6.1(b). Any order of attachment or warrant of arrest must be directed to all peace officers of the state.
If a warrant of arrest or order of attachment is issued, bond should be set by the court, and the ten-percent rule, as provided by CCP §110-7(a), applies.
6. [2.69] Form of Summons -- Indirect Criminal Contempt
The People of the State of Illinois ex rel.
______________________________
Defendant
______________________________
Street Address
______________________________ Criminal Docket
City No. ___________
CRIMINAL SUMMONS
You have been charged with the criminal offense of Indirect Criminal Contempt in violation of an Emergency Order of Protection issued [date].
You are hereby commanded to appear before the Circuit Court of the __________ Judicial Circuit, Courtroom __________, __________ County Courthouse, __________, Illinois, at [time] on [date].
IF YOU FAIL TO APPEAR, A WARRANT WILL BE ISSUED FOR YOUR IMMEDIATE ARREST.
Issued this ____ day of ___________, ____
__________________________________
Judge
TO THE OFFICER
This summons must be returned immediately by the officer effecting service to the Circuit Court of __________ County, with proper endorsement of service and fees. Service must be made at least three (3) days before the appearance date noted above. If service cannot be made, this summons must be returned to the Circuit Court so endorsed.
NOTICE TO DEFENDANT
A copy of the charge is attached to this summons. When you appear in court at the time and date noted above, you will be advised of your legal rights, including your right to trial by jury, to an attorney, and to bond. You will be asked to enter a plea of "Guilty" or "Not Guilty" to the charge. If you are represented by an attorney, he may appear with you. If you plead "Not Guilty," your trial will be set for a later time.
7. [2.70] Form of Motion for Attachment and Order of Attachment
MOTION FOR ATTACHMENT
Now comes the Petitioner, __________, by his attorney, __________, and informs the court:
1. On [date], a Petition for Indirect Criminal Contempt was filed in this court and [summons was ordered to issue, returnable on (date)] [Respondent was in open court when the petition was filed and was ordered to appear on (date), for (arraignment) (hearing)].
2. Summons was duly served on Respondent, and he has failed to appear.
[or]
2. Respondent has not been given notice, but Petitioner has stated facts in his verified petition alleging that Respondent [will flee the jurisdiction of the court upon receiving notice] [will not respond to the process of this court] [will attempt to conceal himself from process].
WHEREFORE, PETITIONER PRAYS that this court direct that an Order of Attachment, returnable immediately, be issued against Respondent, directing any peace officer of this State to bring Respondent before the court.
_________________________
Attorney for Petitioner
ORDER OF ATTACHMENT
This matter coming on for hearing on a Petition for Adjudication of Indirect Criminal Contempt and:
( ) Respondent has received due notice by service of summons and having failed to appear pursuant to said summons.
( ) the court having found that Respondent will flee the jurisdiction of the court upon receiving notice.
( ) the court having found that Respondent will not respond to the process of this court.
( ) the court having found that Respondent will attempt to conceal himself from process.
WHEREFORE, IT IS HEREBY ORDERED THAT any peace officer in the State of Illinois is hereby directed to bring the person of Respondent, __________, before this court, in Courtroom No. __________, __________ County Courthouse, __________, Illinois.
BOND is set in the amount of $__________.
Enter:
Judge
ATTACHMENT OF CONTEMPT
TO THE SHERIFF OF __________ COUNTY OR ANY PEACE OFFICER IN THE STATE OF ILLINOIS:
You are hereby commanded to take the person of __________, and bring him immediately before the Honorable __________, or any judge sitting in his stead, in Courtroom No. ____, __________ County Courthouse, __________, Illinois, to answer to a Petition of Indirect Criminal Contempt.
Dated this ___ day of ________, 19__.
______________________________
Clerk of the Court
BOND: $__________
8. [2.71] Respondent's First Appearance and Arraignment
Upon the respondent's first appearance, the court should first determine if he has received, has read, and understands the petition for adjudication of indirect criminal contempt. The court should then advise him of his due process rights. See §2.69. Also at this time the court must determine whether it will consider the contempt as a "minor" (i.e., a fine of not more than $500, incarceration of not more than six months, or both) or "serious" contempt. The court may make this determination from reading the petition and from any comments the petitioner may make at the arraignment. If the court determines it should proceed on the basis of a "serious" contempt, then the respondent has a right to trial by jury together with other due process rights and should be so advised. If bond has not been set by the court, the court should do so at the time of arraignment. If the respondent pleads not guilty to the petition, the matter should be set for trial. Also, if the respondent is indigent and unable to afford counsel, the public defender should be appointed pursuant to 55 ILCS 5/3-4006. The court must advise the respondent of the maximum penalty it can impose: for a minor contempt, a fine of not more than $500, incarceration not to exceed six months, or both; for a "serious" contempt, no maximum fine or period of incarceration -- only that the penalty be reasonable. People v. Stollar, 31 Ill.2d 154, 201 N.E.2d 97 (1964).
9. [2.72] Due Process Rights -- Indirect Criminal Contempt
The respondent in an indirect criminal contempt action has a right to be charged by written complaint, petition, or information; a right to personal service; a right to file an answer; a right to be heard; a right to present evidence; a right to cross-examine witnesses; a right to subpoena witnesses; a right to a public hearing; a right to the privilege against self-incrimination; a right to counsel and the appointment of counsel if indigent; and a right to be proven guilty beyond a reasonable doubt. People v. Javaras, 51 Ill.2d 296, 281 N.E.2d 670 (1972); People v. Waldron, 114 Ill.2d 295, 500 N.E.2d 17, 102 Ill. Dec. 395 (1986). The contemnor is entitled to a right to trial by jury, but only if the court states that the contemnor, upon a finding of guilt, will be sentenced to more than six months incarceration, fined more than $500, or both. Bloom v. State of Illinois, 391 U.S. 194, 20 L.Ed.2d 522, 88 S. Ct. 1477 (1968); County of McLean v. Kickapoo Creek, Inc., 51 Ill.2d 353, 282 N.E.2d 720 (1972). That determination must not only be made by the court before hearing but must also be communicated to the respondent.
10. [2.73] Substitution/Recusal of Judge
In a direct criminal contempt, the contemnor is not entitled to a substitution of judge. McAdams v. Smith, 25 Ill. App.2d 237, 166 N.E.2d 446 (1st Dist. 1960).
A motion for substitution of judge made under 725 ILCS 5/114-5(a) and 5/114-5(c) is an "automatic" motion if made in writing within ten days after the cause has been placed on the judge's court call. Upon filing of the motion within the ten-day period, the judge named in the motion cannot proceed further and must assign the case to a judge not named in the motion. However, the motion must be made before the judge has ruled on a substantive issue in the cause (Hoga v. Clark, 113 Ill. App. 3d 1050, 448 N.E.2d 196, 69 Ill. Dec. 736 (5th Dist. 1983) and cannot be made to avoid or delay trial (People v. Williams, 124 Ill.2d 300, 529 N.E.2d 558, 124 Ill. Dec. 577 (1988)).
In People ex rel Baricevic v. Wharton, 136 Ill.2d 423, 556 N.E.2d 253, 144 Ill. Dec. 786 (1990), the court stated:
[W]e still adhere to the general rule that judges cannot inquire into the truth of allegations of prejudice in section 114-5 motions. Likewise judges should not assess the truthfulness of allegations of prejudice in section 114-5(c) motions filed by the State. 556 N.E.2d at 256.
* * *
[However,] where there is prima facie evidence that a substitution-of-judge motion has been filed merely to delay or avoid trial, the trial judge can inquire into the basis of the allegation of prejudice. 556 N.E.2d at 259.
* * *
If a prima facie case is found to exist, a hearing shall be conducted as soon as possible before a judge other than the judge named in the motion. 556 N.E.2d at 260.
A substitution of judge for cause may be made at any time and must be heard by a judge not named in the motion. 725 ILCS 5/114-5(d). However, "(t)o prevail on a motion for substitution of judge for cause, defendant has to show actual prejudice, animosity, hostility, ill will or distrust directed toward the defendant." People v. Walsh, 273 Ill. App. 3d 453, 652 N.E.2d 1102, 1105, 210 Ill. Dec. 126 (1st Dist. 1995). Under certain circumstances, the contemnor is also entitled to a substitution of judge if the contemnor makes a personal attack on the judge and the judge does not take immediate action. Mayberry v. Pennsylvania, 400 U.S. 455, 27 L.Ed.2d 532, 91 S. Ct. 499 (1971).
11. [2.74] The Hearing -- Burden of Proof
With the exception of the right to trial by jury in a minor contempt, a hearing on indirect criminal contempt is conducted in the same manner as any other criminal case. However, if the contempt originated as a direct criminal contempt in which all events occurred within the ocular presence of the judge but, due to recusal or substitution of judge, the matter was transferred to another judge for hearing as an indirect criminal contempt, the record and transcripts are what the judge hearing the contempt action considers in determining whether the respondent is guilty of contempt. The trial judge in the underlying action would not testify at the contempt hearing:
The records and transcripts of the underlying action, of which the trial court was authorized to take judicial notice (see City of East St. Louis v. Touchette, 14 Ill.2d 243, 249, 150 N.E.2d 178 (1958)), provided the necessary proof of defendant's guilt; there was no need to submit further evidence to establish the charge. People v. Ernest, 141 Ill.2d 412, 566 N.E.2d 231, 238, 152 Ill. Dec. 544 (1990).
The burden of proof in an indirect criminal contempt proceeding is beyond a reasonable doubt. People ex rel. Chicago Bar Association v. Barasch, 21 Ill.2d 407, 137 N.E.2d 417 (1961). "When an individual is found guilty of indirect criminal contempt, the court must recite at either the contempt hearing or in its sentencing order that the defendant was found guilty beyond a reasonable doubt." In re Marriage of Betts, 200 Ill. App. 3d 26, 558 N.E.2d 404, 427, 146 Ill. Dec. 441 (4th Dist. 1990). However, "such a requirement [is] unnecessary, at least when it is apparent from the proceedings . . . that defendant's found guilt was established by that standard of proof." People v. Ernest, supra, 566 N.E.2d at 239.
It should be noted that in a trial for child abduction, indirect criminal contempt is not a lesser included offense and defendant is not entitled to a jury instruction to that effect. People v. Logsdon, 271 Ill. App. 3d 276, 647 N.E.2d 1117, 207 Ill. Dec. 624 (5th Dist. 1995).
D. [2.75] Imposition of Sanctions in Minor and Serious Contempt -- Right To Make Statement in Allocution
The power to punish for contempt rests within the sound discretion of the trial court, and a determination of contempt will not be overturned absent a clear abuse of discretion. Central Production Credit Association v. Kruse, 156 Ill. App. 3d 526, 509 N.E.2d 136, 108 Ill. Dec. 710 (2d Dist. 1987).
Sanctions in criminal contempt are solely punitive in nature and not coercive as in civil contempt. Schillitani v. United States, 384 U.S. 364, 16 L.Ed.2d 622, 86 S. Ct. 1531 (1966).
Any sanctions imposed should comport to the nature and degree of the contemptuous act. The imposition of a period of probation on a psychiatrist for a contemptuous remark to a state's attorney, when the conduct was not flagrantly contemptuous, was excessive, and a fine would have been more appropriate. People v. Ziporyn, 106 Ill.2d 419, 422, 478 N.E.2d 364, 88 Ill. Dec. 49 (1985).
Both civil and criminal sanctions can be imposed if the contemnor is afforded his procedural safeguards under criminal contempt. United States v. United Mine Workers of America, 330 U.S. 258, 91 L.Ed. 884, 67 S. Ct. 677 (1947).
The courts look to the sanctions actually imposed to determine whether an offense is so serious that a jury trial is required. Bloom v. State of Illinois, 391 U.S. 194, 20 L.Ed.2d 522, 88 S. Ct. 1477 (1968). "Where no maximum penalty is authorized, the seriousness of the charge is to be determined by the severity of the actual sentence." County of McLean v. Kickapoo Creek, Inc., 51 Ill.2d 353, 282 N.E.2d 720, 722 (1972). If the aggregate punishments for a particular course of criminally contemptuous conduct exceed a fine of more than $500, imprisonment of more than six months, or both, then the contemnor is entitled to a trial by jury, and, if the sanctions exceed that maximum punishment and the contemnor was not allowed a trial by jury, then the contempt order will be vacated. See Duncan v. State of Louisiana, 391 U.S. 145, 20 L.Ed.2d 491, 88 S. Ct. 1444 (1968).
In a minor contempt, the court may sentence the contemnor to a term in the county jail not to exceed six months, impose a fine of not more than $500, or both. In a serious contempt, when the contemnor has been given the right to trial by jury as well as his other due process rights, there is no statutory maximum prescribed. People v. Stollar, 31 Ill.2d 154, 201 N.E.2d 97 (1964).
Nor is a court limited to a sanction of fine or incarceration; other sanctions may be imposed, including probation. The Supreme Court, in affirming a sanction of probation for a minor's violation of an order under the Juvenile Court Act, in In re G. B., 88 Ill.2d 36, 430 N.E.2d 1096, 1099, 58 Ill. Dec. 845 (1981), stated:
We see no reason why [probation] should not also be an authorized penalty imposed upon one found guilty of criminal contempt. Our constitution provides: "All penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship." (Ill. Const. 1970, art. I, sec. 11.) This constitutional direction is not limited to penalties for violations of criminal law, but applies to all penalties, which would include those imposed for criminal contempt. We do not agree that the only punishment authorized for criminal contempt is a fine or incarceration. 88 Ill. 2d 36, 43-44
However, see Winning Moves, Inc. v. Hi! Baby, Inc., 238 Ill.App.3d 834, 605 N.E.2d 1026, 179 Ill.Dec.12 (2d Dist.1992), in which a private process server was alleged to have falsely filed an affidavit relating to service of process. The court directed a rule "to show cause why [the process server ]claims service of various documents upon [the person alleged to have been served]." 605 N.E.2d at 1028. The process server appeared in court and the court found she had "lied on her affidavits relating to service of process", held her in contempt and, as sanctions, barred the process server from serving process in all future cases in which the judge was involved. 605 N.E.2d at 1029.
The reviewing court held the contemptuous act to be constructive direct criminal contempt. The court then addressed both the sanctions and due process rights of the contemnor. As to the sanction, the court stated "(I)n the instant case, the punishment substantially deprives (contemnor) of her means of livelihood as a process server. We, therefore, find that her punishment was greater than that normally imposed for a (minor contempt) and raised an entitlement to constitutional protection required in other criminal proceedings". 605 N.E. 2d at 1030, 238 Ill.App.3d at 840. The court, reversing the finding of contempt, went on to state that the contemnor's notice only consisted of a rule to show cause why she claimed "service of various documents * *"; further that she was called to testify in violation of her right against self-incrimination and given no opportunity to answer the charge. 238 Ill.App.3d at 840-41.
Note: When a contemnor is served with a "rule to show cause" when a finding of criminal contempt is possible, the trial court is opening the door to reversal if it makes a finding of criminal contempt and the contemnor was not provided with the full panoply of rights of one charged with a criminal offense.
Before sanctions are imposed, the court should ask the contemnor if he has any statement in allocution. All contemnors have a right to make such a statement to the sentencing court.
An interlocutory appeal cannot be taken prior to imposition of sanctions; sanctions must be imposed prior to appeal. The reviewing court will refuse to entertain an appeal unless the trial court has imposed sanctions. Valencia v. Valencia, 71 Ill.2d 220, 375 N.E.2d 98, 16 Ill. Dec. 467 (1978).
Is a contemnor who has been sentenced to jail for criminal contempt entitled to "good time" under the County Jail Good Behavior Allowance Act, 730 ILCS 130/1, et seq. Section 3 of the Act provides in part:
The good behavior of any person who commences a sentence of confinement in a county jail for a fixed term of imprisonment after January 1, 1987 shall entitle such person to a good behavior allowance, except that: (1) a person who inflicted physical harm upon another person in committing the offense for which he is confined shall receive no good behavior allowance; and (2) a person sentenced for an offense for which the law provides a mandatory minimum sentence shall not receive any portion of a good behavior allowance that would reduce the sentence below the mandatory minimum. . . . The good behavior allowance provided for in this Section shall not apply to individuals sentenced for a felony to probation or conditional discharge where a condition of such probation or conditional discharge is that the individual serve a sentence of periodic imprisonment or to individuals sentenced under an order of court for civil contempt.
A criminal (not civil) contemnor is entitled to "good time" under the Act unless the contemptuous act involved physical harm to another. See People v. Brown, 196 Ill. App. 3d 1, 553 N.E.2d 110, 142 Ill. Dec. 760 (2d Dist. 1990); People v. Wenkus, 171 Ill. App. 3d 1064, 526 N.E.2d 534, 122 Ill. Dec. 275 (2d Dist. 1988); People v. Russell, 237 Ill. App. 3d 310, 604 N.E.2d 420, 423, 178 Ill. Dec. 164 (4th Dist. 1992).
However, a defendant who is held in contempt for failure to report to the probation office so that a Presentence report can be prepared is not entitled to credit for the time served in a sanction for criminal contempt in a subsequent sentence to the Department of Corrections. People v. Otten, 228 Ill. App. 3d 305, 591 N.E.2d 907, 169 Ill. Dec. 403 (4th Dist. 1992).
In People v. Jackson, 326 Ill.App.3d 1087, 762 N.E.2d 720, 261 Ill.Dec. 151 (4th Dist.2002), the defendant was held in direct criminal contempt during his arraignment on an unlawful possession charge. He was sentenced to six months in jail "to be served consecutively to any sentence imposed on the possession charge." 762 N.E.2d at 721. The contemnor appealed, alleging the court erred by ordering the contempt sentence to be served consecutively to the possession charge. The appellate court affirmed. The court stated that this was not a consecutive sentence issues, but rather a sentence-credit issue. "The trial judge had discretion... to determine whether the incarceration for contempt should be credited toward the five-year sentence. He concluded that it should not. We affirm." 762 N.E.2d at 722.
E. [2.76] Assessment of Attorney Fees
A court may properly assess attorney fees as a sanction in a contempt proceeding provided that the fees have been shown to be reasonable through detailed time records submitted to the court. Village of Lakemoor v. First Bank of Oak Park, 136 Ill.App.3d 35, 482 N.E.2d 1014, 90 Ill.Dec.731 (2d Dist.1985); 47th & State Currency Exchange, Inc. v. B. Coleman Corp., 56 Ill.App.3d 229, 371 N.E.2d 294, 13 Ill.Dec. 577 (1st Dist.1977). Welch v. City of Evanston, 181 Ill. App. 3d 49, 536 N.E.2d 866, 129 Ill.Dec. 816 (1st Dist. 1989); City of Rockford v. Suski, 307 Ill. App. 3d 233, 248, 718 N.E.2d 269, 240 Ill. Dec. 788 (2nd Dist. 1999).
However, a court cannot assess attorney fees as sanctions against counsel for purposely causing a mistrial absent a finding of contempt. Juarez v. Commonwealth Medical Associates, 318 Ill.App.3d 380, 742 N.E.2d 386, 252 Ill.Dec. 136 (1st Dist.2000).
F. [2.77] Judgment Order of Criminal Contempt
Generally, a court order is conclusive and must be obeyed unless it is modified or set aside. While contempt is a proper means for a court to enforce its order, contempt will not lie when the court lacked jurisdiction to enter the underlying order. Jenner v. Wissore, 164 Ill. App. 3d 259, 517 N.E.2d 1220, 115 Ill. Dec. 534 (5th Dist. 1988).
Jurisdiction in a particular case includes not only the power of the court to hear and determine the matter before it, but also the power to render a judgment on it; however, any act of a court beyond its jurisdiction is void. Hence, if the court has jurisdiction over the litigation, an order of contempt is valid, but if the court is without jurisdiction, then its action is void ab initio and the court's contempt order must be voided and vacated.
Unless an underlying order is void, the court has the inherent power to enforce its order by way of contempt. In re G.B., 88 Ill.2d 36, 430 N.E.2d 1096, 58 Ill. Dec. 845 (1981).
A litigant's disagreement with the court's decision does not excuse the litigant from the obligation to obey it. See Welch v. City of Evanston, 181 Ill. App. 3d 49, 54, 536 N.E.2d 866, 129 Ill. Dec. 816 (1st Dist. 1989); In re Estate of Steinfeld, 158 Ill.2d 1, 630 N.E.2d 801, 196 Ill. Dec. 636 (1994).
The judgment order of criminal contempt must meet the following requirements:
1. The order must be in writing and signed by the judge. An orally transmitted order of contempt is not sufficient notice to the contemnor regarding the grounds of contempt and facts in support thereof. Central Production Credit Association v. Kruse, 156 Ill. App. 3d 526, 509 N.E.2d 136, 108 Ill. Dec. 710 (2d Dist. 1987). If the court's oral pronouncements and the written order conflict, the written order will prevail. People v Hayslette, 107 Ill. App. 3d 647, 437 N.E.2d 1261, 63 Ill. Dec. 339 (3d Dist. 1982).
2. The order must recite jurisdiction over the parties and subject matter. In re Adoption of Schumacher, 120 Ill. App. 3d 50, 458 N.E.2d 94, 75 Ill. Dec. 926 (2d Dist. 1983).
3. The order must set forth facts on which the contempt is based and not merely opinions or conclusions of the trial judge. People v. Miller, 130 Ill. App.2d 637, 265 N.E.2d 175 (2d Dist. 1970), rev'd on other grounds, 51 Ill.2d 76 (1972); People v. Jashunsky, 51 Ill.2d 220, 282 N.E.2d 1 (1972).
Direct contempt is predicated upon specific misconduct which interferes with the orderly administration of justice, and therefore an order imposing punishment for direct contempt must state, or the record must show, the specific acts upon which it is based. Such an order must be sustained upon the ground on which it was imposed, or not at all, for otherwise a contempt judgment might be affirmed in a reviewing court upon the basis of conduct which the trial court had found inoffensive. People v. Miller, 51 Ill. 2d 76, 78.
4. The order must be clear and unambiguous. People v. Heitland, 253 Ill. App. 3d 836, 623 N.E.2d 1160, 193 Ill. Dec. 39 (5th Dist. 1993).
5. The order must contain in the decretal portion an adjudication of criminal contempt and the sanctions imposed.
In Twardowski v. Holiday Hospitality Franchising, Inc., 321 Ill.App.3d 509, 748 N.E.2d 222, 254 Ill.Dec. 776 (1st Dist. 2001), the court found the contemnor in direct criminal contempt for filing duplicate motions. The court's order merely stated that "the motion for sanctions is granted." 748 N.E.2d at 228. The reviewing court reversed, stating that "[a]lthough the trial court's order is devoid of any reasoning or findings, the record on appeal and the parties' briefs suggest that plaintiff was summarily found in direct contempt." Id.
"[I]t is only the decretal portion of a judgment that is operative as a judgment and the rights of the parties are adjudicated by that portion alone and not by recitals." Green v. Green, 21 Ill. App. 3d 396, 315 N.E.2d 324, 329 (5th Dist. 1974).
A certified copy of the order should be given to the contemnor and to the jailer along with the commitment order.
It is important to note that, if the contempt consists of non-verbal acts, the trial court must read into the record and place in the order the nature of the particular acts, e.g., that the contemnor "was shouting and waving his fists at the court and threw a book at and struck the State's Attorney." Also, the order should include a recital that the contemnor was found guilty of indirect criminal contempt by evidence showing guilt beyond a reasonable doubt.
G. Forms of Orders -- Criminal Contempt
1. [2.78] Form of Order for Adjudication of Direct Criminal Contempt
ORDER
ADJUDICATION OF DIRECT CRIMINAL CONTEMPT
This matter coming on for hearing on the charge of direct criminal contempt against __________, Contemnor, and said Contemnor appearing in open court, and the court being fully advised in the premises, finds:
1. This court has jurisdiction over the subject matter and these parties.
2. On [date], the case of __________, Cause No. __________, was being heard in the regular course of this court's business.
3. A jury had been duly impaneled and sworn to try the issues before this court in this case, and the Defendant was in open court with his counsel, __________.
4. Throughout the trial, which commenced on [date], the court repeatedly requested the Contemnor to obey the court's rulings and admonished him on five separate occasions that, if he continued his improper courtroom behavior, consisting among other things of shouting, using profanity, and voicing threats and aspersions towards witnesses, he would be found in contempt of court and sanctioned.
5. On [date], during the direct examination of a witness, __________, by the State's Attorney, the following took place in this court's presence:
STATE'S ATTORNEY: What, if anything, did you see the defendant do after he signed his name to the paper?
DEFENDANT: Objection. The witness is about to tell a lie.
THE COURT: Overruled. It's your lawyer's responsibility to make any objection -- and please keep your voice down. You don't need to shout.
DEFENDANT: That damned lawyer never objects when he should, and if she answers that question, she'll have to answer to me -- she's dead -- and I'm sick of that damned State's Attorney too. Take that . . .
BAILIFF: Look out!
THE COURT: Bailiff, remove the jury. [The jury is removed from the courtroom.] Let the record show that, during the last comments from the defendant, he was shaking his fist at the witness, that he continued to shout and scream, and that he threw a book at the State's Attorney, striking him on the shoulder. Mr. Defendant, your remarks have been contemptuous, as have many of your acts during the course of this trial. You have totally disregarded the court's orders and instructions. You have been warned repeatedly, but to no avail. I am, therefore, citing you for direct criminal contempt for your disruptive acts and behavior just witnessed by this court, for threatening the witness, and for throwing a book at, and striking, the State's Attorney. Do you have anything to say before sanctions are imposed?
DEFENDANT: Go to hell. I don't want to talk to you anymore.
THE COURT: Then please get down off the table and keep quiet.
DEFENDANT'S COUNSEL: He was just a little excited, Your Honor. He's really a good fellow at heart . . .
6. The conduct of the Contemnor, which occurred in the presence of this court while the court was in open session, impeded and interrupted the proceedings, lessened the dignity of the court, and tended to bring the administration of justice into disrepute.
7. The Contemnor was given an opportunity to make a statement in allocution but refused.
8. A full and complete transcript of the relevant proceedings is attached to and made an integral part of this order.
IT IS THEREFORE ORDERED AND ADJUDGED that the Contemnor, __________, is, by reason of his conduct, thus adjudicated to be in direct criminal contempt of court. Judgment entered on the findings.
It is further ordered and adjudged that, as a sanction for the contempt, __________ is hereby sentenced to a period of five months in the County Jail of __________ County, commencing this date, or until otherwise discharged by due process of law.
WARRANT OF COMMITMENT ordered to issue, instanter, directed to the Sheriff to execute.
Enter:
Judge
2. [2.79] Form of Order for Adjudication of Indirect Criminal Contempt
ORDER
ADJUDICATION OF INDIRECT CRIMINAL CONTEMPT
This cause being heard this date on a Petition of Indirect Criminal Contempt for violation of an order of this court entered on [date].
And the attorney, __________, having been appointed by this court as special prosecutor to present evidence on the Petition for Adjudication of Indirect Criminal Contempt, the State's Attorney of __________ County having declined prosecution;
And the Respondent, having appeared in person and by his attorney, __________, and the court having heard the testimony of the parties and witnesses and the arguments of counsel, and being fully advised in the premises, finds:
1. This court has jurisdiction over the parties and subject matter and has advised the Respondent that this proceeding was being conducted as a minor indirect criminal contempt action.
2. On [date], the court entered an Emergency Order of Protection prohibiting the Respondent from striking, beating, harassing, or intimidating the Petitioner, __________, and from coming on her property, located at __________, __________, Illinois.
3. On [date], the Respondent, all without cause or provocation in violation of the Emergency Order of Protection, did come on the Petitioner's property and strike the Petitioner in the face with his fist while the Petitioner was on the front porch of her property, thereby injuring her, and continued to harass and intimidate her by using obscene language, shouting, and intimidating her in an attempt to induce her to dismiss the Petition for Dissolution of Marriage previously filed.
4. The Respondent, having personal knowledge of the Emergency Order of Protection, knowingly and contumaciously violated the order without good cause or reason.
5. The conduct of the Respondent has impeded, embarrassed, and obstructed the court in its administration of justice and has brought the administration of justice into disrepute.
6. The Respondent has been afforded his right to present his defense and to make a statement in allocution.
7. This court has considered all of the evidence presented and is fully informed in the premises.
IT IS THEREFORE ORDERED that the Respondent, __________, be and hereby is found by evidence of guilt beyond a reasonable doubt, to be in indirect criminal contempt of court for his violation of this court's order of [date], and is sentenced to the County Jail of __________ County for a term of thirty (30) days, commencing immediately, there to remain until this sentence is served or until otherwise discharged by due process of law.
Order of Commitment ordered to issue instanter, directed to the Sheriff to execute.
Enter: ___________________________
Judge
H. [2.80] Appeal
An adjudication of indirect criminal contempt may be appealed as any other criminal case; however, a reviewing court will not entertain an appeal unless sanctions have been imposed. Valencia v. Valencia, 71 Ill.2d 220, 375 N.E.2d 98, 16 Ill. Dec. 467 (1978). An appeal bond should be set by the court, and sanctions may be stayed pending appeal.
I. [2.81] Double Jeopardy
The Fifth Amendment to the United States Constitution and art. I, §10, of the Illinois Constitution protect persons from being placed in jeopardy twice for the same offense.
Civil contempt. Double jeopardy does not apply since civil contempt is not a criminal action. Yates v. United States,355 U.S. 66, 2 L.Ed.2d 95, 78 S.Ct.128 (1957). Imposition of sanctions in civil contempt for failure to return children pursuant to a prior custody order and subsequent prosecution under the criminal law do not offend the principles of double jeopardy. People v. Doherty, 165 Ill.App.3d 630, 518 N.E.2d 1303, 116 Ill.Dec.323 (2nd Dist. 1988).
Criminal contempt (direct). "[P]rosecution for aggravated battery following and arising out of an adjudication of direct criminal contempt does not offend the double jeopardy clause of either the United States Constitution or of the Illinois Constitution." People v. Totten, 118 Ill.2d 124, 134, 514 N.E.2d 959, 962 - 63, 113 Ill. Dec. 47 (1987).
Criminal contempt (indirect). In prosecution of a criminal offense and prosecution of a petition for indirect criminal contempt for the same act, "the test to be applied to determine whether there are two offenses or only one [for double jeopardy purposes] is whether each provision requires proof of a fact which the other does not." Blockburger v. United States, 284 U.S. 299, 76 L.Ed.2d 306, 52 S. Ct. 180, 182 (1932).
To sustain a finding of indirect criminal contempt for the violation of a court order outside the presence of the court, two elements must be proved: (I) the existence of a court order, and (ii) a willful violation of that order. . . . To sustain the charge of aggravated battery . . . as alleged in this case, requires proof of great bodily harm [and] indirect criminal contempt does not. And indirect criminal contempt, unlike aggravated battery, requires proof of the existence of a court order. Finally, each offense requires proof of a different state of mind. Since each requires proof of a fact which the other does not, they do not constitute the same offense under the Blockburger test. [Citations omitted.] Totten, supra, 118 Ill.2d at 138, 514 N.E.2d at 965. [The court thereby overruled People v. Gray, 69 Ill.2d (1977)].
NOTE: The U.S. Supreme Court extended the Blockburger test in Grady v. Corbin, 495 U.S. 508, 109 L.Ed.2d 548, 110 S. Ct. 2084 (1990); however, in United States v. Dixon, 509 U.S. 688, 125 L.Ed.2d 556, 113 S. Ct. 2849, 2863 (1993), the Court overruled Grady, holding that Grady was inconsistent with the Court's precedents and "a continuing source of confusion." See also People v. Benson, 256 Ill. App. 3d 560, 627 N.E.2d 1207, 194 Ill. Dec. 565 (2d Dist. 1994).
In considering a motion to dismiss on double jeopardy grounds, the court must first determine whether the criminal contempt is direct or indirect:
If the defendant was found in indirect criminal contempt of court, then a traditional examination under People v. Mueller (1985), 109 Ill.2d 378, 94 Ill. Dec. 524, 488 N.E.2d 523, should be employed to determine whether the indirect criminal contempt and the new charge filed against the defendant constitute the same or separate offenses for double jeopardy purposes. However, if the court determines that defendant was found in direct criminal contempt of court, application of the Mueller test is inappropriate.
We hold that Totten stands for the proposition that any criminal charge "following and arising out of an adjudication of direct criminal contempt does not offend the double jeopardy clause of either the United States Constitution or of the Illinois Constitution." People v. Heard, 208 Ill. App. 3d 278, 566 N.E.2d 896, 898, 153 Ill. Dec. 46 (4th Dist. 1991), quoting Totten, 514 N.E.2d at 962 - 963.
Child abduction. "The statute [charging] child abduction (720 ILCS 5/10-5 (b)(1)) and indirect criminal contempt for failure to comply with a custody order are virtually the same offense and each offense requires proof that defendant intentionally violated a custody order"; therefore, double jeopardy attaches upon conviction of the offense of child abduction or indirect criminal contempt charging the same act. People v. Rodriguez, 162 Ill. App. 3d 149, 514 N.E.2d 1033, 1037, 113 Ill. Dec. 121 (2d Dist. 1987).
J. Use of Criminal Contempt
1. [2.82] Overstepping the Bounds of Attorney Advocacy
Decorum: "propriety of behavior, speech, dress, etc." THE RANDOM HOUSE COLLEGE DICTIONARY, REVISED EDITION (1984).
Supreme Court Rule 63(A), part of the Code of Judicial Conduct, provides that a judge should
(2) . . . maintain order and decorum in proceedings before the judge.
(3) . . . be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and others with whom the judge deals in an official capacity, and should require similar conduct of lawyers, and of staff, court officials, and others subject to the judge's direction and control.
Our criminal processes are adversary in nature and rely on the self-interest of the litigants and counsel for full and adequate development of their respective cases. The nature of the proceedings presupposes, or at least stimulates, zeal in the opposing lawyers. But their strife can pervert as well as aid the judicial process unless it is supervised and controlled by a neutral judge representing the overriding social interest in impartial justice and with power to curb both adversaries. The rights and immunities of accused persons would be exposed to serious and obvious abuse if the trial bench did not possess and frequently exert power to curb prejudicial and excessive zeal of prosecutors. The interests of society in the preservation of courtroom control by the judges are not to be frustrated through unchecked improprieties by defenders.
NOTE: The Illinois Rules of Professional Conduct do not deal with an attorney's decorum and civility in the courtroom.
Of course, it is the right of counsel for every litigant to press his claim, even if it appears far-fetched and untenable, to obtain the court's considered ruling. Full employment of that right, with due allowance for the heat of controversy, will be protected by appellate courts when infringed by trial courts. But if the ruling is adverse, it is not counsel's right to resist it or to insult the judge -- his right is only respectfully to preserve his point for appeal. During a trial, lawyers must speak, each in his own time and within his allowed time, and with relevance and moderation. Sacher v. United States, 343 U.S. 1, 96 L.Ed. 717, 72 S. Ct. 451, 455, 457 (1952).
But that there may be no misunderstanding, we make clear that this Court, if its aid be needed, will unhesitatingly protect counsel in fearless, vigorous and effective performance of every duty pertaining to the office of the advocate on behalf of any person whatsoever. But it will not equate contempt with courage or insults with independence. It will also protect the processes of orderly trial, which is the supreme object of the lawyer's calling. Id.
Generally, counsel are protected in their use of words; however, courts usually hold that there is a distinction between making a statement and doing so in a loud or boisterous manner. For example, counsel did not overstep the bounds of trial advocacy in the following circumstances:
a. The courts are mindful of the necessity of giving allowances to attorneys in the heat of controversy. Sarcastic or overzealous statements of counsel unaccompanied by other improper acts are insufficient to constitute contempt. People v. Miller, 51 Ill.2d 76, 281 N.E.2d 292, 294 (1972).
In Miller, the trial court declared a mistrial and found the defense attorney guilty of direct criminal contempt. In the court's written order, it found that the contemnor "grimaced" in the presence of the jury and made "(g)ratuitous comments which had a tendency to reflect upon the entire proceedings of this court". 281 N.E.2d at 293. The Supreme Court reversed the appellate court, who had affirmed the contempt finding, and stated "(w)hile counsel may have been overzealous or improperly sarcastic at times, we are of the opinion that his conduct in the courtroom constituted a good faith attempt to represent his clients without hindering the court's functions or dignity, and, therefore, that they did not constitute a direct contempt of court". 281 N.E.2d at 294.
In In re Little, 404 U.S. 553, 30 L.Ed.2d 708, 92 S. Ct. 659 (1972), defendant/contemnor filed a written motion to continue the case for trial alleging his counsel was in court in another city. The trial court denied the motion and petitioner attempted to defend himself. In closing arguments the petitioner made statements that the court was biased and, had prejudged the case and that he was a political prisoner. The trial court then held him in criminal contempt and sentenced him to 30 days in jail. The Supreme Court set aside the contempt order and, quoting Craig v. Harney, 331 U.S. 367, 91 L.Ed 1546, 67 S. Ct. 1249, 1255 (1947) stated:
The vehemence of the language used is not alone the measure of the power to punish for contempt. The fires which it kindles must constitute an imminent, not merely a likely threat to the administration of justice. The danger must not be remote or even probable; it must immediately imperil *** [T]he law of contempt is not made for the protection of judges who may be sensitive to the winds of public opinion. Judges are supposed to be men of fortitude, able to thrive in a hardy climate. 67 S.Ct. at 660.
b. An attorney and "legal advisor" to the defendant, a member of the F.A.L.N. (Armed Forces for National Liberation of Puerto Rico), continued to address the court concerning a defendant (who was bound and gagged) after being directed by the court not to do so until the attorney filed her entry of appearance. The attorney kept insisting that the court did not have jurisdiction over the defendant since she was a "prisoner of war." The court then held the attorney in contempt. The reviewing court reversed, stating that being brought before the court bound and gagged "in itself is an affront to the dignity and decorum of judicial proceedings." The attorney did not disrupt the proceedings and spoke to the court "without disrespect or any personal attack upon the court." People v. Siegal, 102 Ill. App. 3d 529, 430 N.E.2d 142, 144 - 145, 58 Ill. Dec. 200 (1st Dist. 1981). However, Siegal was reversed at 94 Ill.2d 167 (1983).
In People v. Myers, 185 Ill. App. 3d 118, 540 N.E.2d 1050, 133 Ill. Dec. 184 (4th Dist. 1989), the court found that shackles were not inherently an affront to the dignity and decorum of the courtroom. Also, in Illinois v. Allen, 397 U.S. 337, 25 L.Ed.2d 353, 90 S. Ct. 1057 (1970), the court held that a trial judge has wide discretion in maintaining the security of the courtroom.
c. In a post-trial motion filed by defendant's attorney, a statement that the trial court engaged "in conduct to lead one to believe that the court was a functionary of the State or a third prosecutor" was not sufficient to uphold a finding of direct criminal contempt. People v. Griffith, 247 Ill. App. 3d 21, 620 N.E. 2d 1138, 1140, 189 Ill. Dec. 821 (1st Dist. 1993). Likewise, a comment by defense counsel after the court set a case for trial at 11:00 a.m. that "I will be here at 11. I hope the jury will be," is not sufficient to hold counsel in direct criminal contempt. Sarcasm, without more, will not sustain a finding of contempt. People v. Powell, 248 Ill. App. 3d 164, 618 N.E.2d 365, 366, 187 Ill. Dec. 774 (1st Dist. 1993).
d. A judge cannot ban an attorney from coming before him. The reviewing court has held that the portion of §6 of the Attorney Act (705 ILCS 205/0.01, et seq.) that empowers a judge "to suspend any attorney or counselor at law from practice in the court over which he presides" for "malconduct" is an unconstitutional encroachment on the Supreme Court's exclusive authority to discipline attorneys. In re General Order of March 15, 1993, 258 Ill. App.3d 13, 629 N.E.2d 673, 196 Ill. Dec. 128 (1st Dist. 1994) (NOTE: Contempt was not an issue in this case.).
e. In holding an attorney in direct criminal contempt when the attorney persists in a line of questioning after being specifically ordered to desist, the finding of contempt and order must be clear and specific; when the order is ambiguous, the contempt will be reversed. People v. Heitland, 253 Ill. App. 3d 836, 625 N.E.2d 1160, 193 Ill. Dec. 39 (5th Dist. 1993).
f. In People v. Kuelper, 46 Ill.App.3d 420, 423, 361 N.E.2d 29, 5 Ill.Dec 29 (1st Dist. 1977), defendant was initially charged by information but subsequently indicted by the grand jury for the same charge. The court ordered the prosecutor to conduct a preliminary hearing, which he refused to do, stating (correctly) that none was necessary. The court held the prosecutor in direct criminal contempt. The reviewing court reversed, stating:
It is equally difficult to perceive how an attorney who in good faith is representing his client's interests, and while so doing comports himself in a proper and respectful, albeit forceful, manner toward the court can be deemed to be in contempt. A stand taken by counsel in good faith and in the interests of his client should not ordinarily serve as a basis for a charge of contempt. (In re McConnell (1962), 370 U.S. 230, 8 L.Ed2d 434, 82 S.Ct. 1288; Holt v. Virginia (1965), 381 U.S. 131, 14 L.Ed.2d 290, 85 S.Ct. 1375; People v. Miller (1972), 51 Ill.2d 76, 281 N.E.2d 292.) As Mr. Justice Black so aptly stated in McConnell:
"...it is also essential to a fair administration of justice that lawyers be able to make honest good-faith efforts to present their clients' cases. An independent judiciary and a vigorous, independent bar are both indispensable parts of our system of justice." 46 Ill.App.3d at 423, 361 N.E.2d at 31.
When counsel go beyond the mere use of words and speak in a loud manner or engage in conduct that is more than speech and a finding of criminal contempt is made, then the "process of an orderly trial" prevails and the order of contempt is usually affirmed. For instance, in the following cases, counsel were found to have overstepped the bounds of trial advocacy:
a. In. People v. Roberts, 42 Ill.App3d 604, 356 N.E.2d 429, 431, 1 Ill.Dec. 303 (4th Dist. 1976), the attorney/contemnor was held in direct criminal contempt for (1) expelling air in a "loud"manner while the prosecutor was arguing an objection to the court; (2) slapping the table and shouting "How come everything he (the prosecutor) does is all right and everything I do is wrong?" after the court overruled the contemnor's objection; and (3) whirling toward the jury and loudly stating, "Oh, Iwill withdraw it" after the prosecutor approached the bench and to object to a certificate the contemnor was seeking to introduce. 356 N.E.2d at 430.
The court upheld the finding of contempt on (1) and (2) but reversed the finding on (3), stating:
The foregoing cases set forth a policy that, in order to enable counsel to fully represent clients, protects counsel in their use of words even though the language may be insulting to the court or opposing counsel. In sanctioning the use of words, the court must act with great forbearance. In re Little draws a distinction between merely uttering a statement and doing so in a loud and boisterous manner. The cases do not indicate that the court must use such great restraint in punishing counsel for conduct other than speech or for conduct that is more than speech. [Emphasis in original.]
b. In In re Marriage of Lichtenstein, 263 Ill. App. 3d 266, 637 N.E.2d 1258, 1262, 202 Ill. Dec. 522 (2d Dist. 1994), counsel, without any forewarning to the court, performed a demonstration on an adverse witness (yanking and tearing the hood of the witness' ski jacket from behind) causing heated exchanges and a "great deal of almost hysteria." The trial court found counsel in direct criminal contempt and was affirmed on appeal.
c. In People v. Nightengale, 168 Ill. App. 3d 968, 523 N.E.2d 136, 119 Ill. Dec. 668 (1st Dist. 1988), the state's attorney made racial slurs concerning defendant, coughed and smirked while defense counsel made arguments to the court, and, in closing arguments, stated that defendant's fingerprints were found at the scene when no fingerprints existed. Defendant was found guilty by the jury. The decision was reversed. (Although this case involved overstepping the bounds of trial advocacy, contempt was not an issue.)
d. Direct criminal contempt was upheld against an attorney who had someone other than defendant sitting at counsel table who was of the same build as defendant. The court, in People v. Simac, 161 Ill.2d 297, 641 N.E.2d 416, 204 Ill. Dec. 192 (1994), held this was conduct by counsel intended to deceive the court and cause a misidentification and, quoting People ex rel. Fahey v. Burr, 316 Ill. 166, 147 N.E. 47, 52 (1925), stated:
An attorney's zeal to serve his client should never be carried to the extent of causing him to seek to accomplish his purpose by a disregard of the authority of the court or by seeking to secure from a court an order or judgment without a full and frank disclosure of all matters and facts which the court ought to know. 641 N.E.2d at 421.
e. In People v. Ernest, 141 Ill.2d 412, 566 N.E.2d 231, 152 Ill. Dec. 544 (1990), causing a subpoena for a discovery deposition to be served on the judge presiding in a case in which the contemnor was acting as counsel overstepped the bounds of strenuous and persistent advocacy.
f. The court also has authority to limit arguments:
"[T]he necessity for orderly administration of justice compels the view that the judge must have the power to set limits on argument." (Magnes, 8 Ill. App. 3d at 254, 290 N.E.2d at 382, quoting Dellinger, 461 F.2d at 399.) In re Contempt of Ellis, 206 Ill. App. 3d 388, 564 N.E.2d 186, 191, 151 Ill. Dec. 209 (4th Dist. 1990).
[F]ailure to heed the directive of the court to desist from arguing, to sit down, or to remain quiet may indeed constitute an actual material obstruction to the administration of justice. . . . As governor of the trial, the trial judge must have the authority necessary to ensure the orderly and expeditious progress of the proceedings. His directives in exercise of this authority must be obeyed; otherwise the clear result would be courtroom chaos. [United States v. Seale (7th Cir. 1972), 461 F.2d 345, 371.] Ellis, supra, 564 N.E.2d at 191, quoting In re Magnes, 8 Ill. App. 3d 249, 290 N.E.2d 378, 382 (1972).
[I]t is the right of counsel for every litigant to press his claim. . . . But if the ruling is adverse, it is not counsel's right to resist it or to insult the judge -- his right is only respectfully to preserve his point for appeal. Sacher v. United States, 343 U.S. 1, 96 L.Ed. 717, 72 S. Ct. 451, 455 (1952).
However, compare with In re Marriage of Bartlet, 305 Ill. App. 3d 28, 711 N.E.2d 460, 238 Ill. Dec. 357 (2d Dist. 1999), in which, after the trial court heard and denied a contested motion the contemnor attempted to obtain a ruling on the remaining requests for relief. When the court ordered him to step aside and he did not immediately comply, the court found him in direct criminal contempt. The reviewing court reversed, stating the contemnor was not disrespectful of the court and did not speak in a loud or boisterous manner, but rather, "was acting in good faith in an attempt to act as an advocate for his client". 711 N.E.2d at 463.
g. In People ex rel. Burris v. Maraviglia, 264 Ill. App. 3d 392, 636 N.E.2d 717, 201 Ill. Dec. 285 (1st Dist. 1993), counsel and his firm were held in direct civil contempt for refusing to comply with an order by the court requiring submission of proposed findings of fact and conclusions of law. Sanctions of $100 per day were upheld against the attorney who appeared and refused to comply with the order, but reversed as to the firm since the respondent was the only member of the firm who appeared before the court. The court held that this was not an action in which the respondent was merely trying to obtain appellate review of a decision he believed in good faith to be of a questionable nature -- it was direct disobedience to the directives of the court made in the presence of the court.
h. In Juarez v. Commonwealth Medical Associates, 318 Ill.App.3d 380, 742 N.E.2d 386, 252 Ill.Dec. 136 (1st Dist.2000) plaintiff's counsel repeatedly violated evidentiary and procedural rules together with the court's order in limine. During the course of the trial, the judge sua sponte declared a mistrial and ordered counsel to pay costs of litigation. Defendant's attorney did not move for a finding of contempt, and the trial court made no such finding. Plaintiff's counsel appealed her sanction to the trial court, and the judge upheld the sanction and stated that he knew he "had power to hold [counsel] in contempt" but didn't want to send a lawyer to jail. He also stated "that although the ARDC may have felt it reached the point of a hearing for a possible censure, suspension and disbarment, I did not. I felt that the penalty that I was going to issue would be sufficient as a wake-up call." 742 N.E.2d at 391, 318 Ill.App.3d 380, Id at 386.
The reviewing court reversed, holding there was no rule or statute allowing the assessment of litigation costs for purposely causing a mistrial. The court went on to state, "We understand our conclusion in this case leaves a trial court little room, short of a contempt finding, to deal with a lawyer who purposely creates conditions for a mistrial." Id at 387.
i. Criminal Contempt v. Rule 137 Sanctions. Attorney submitted an order to the court misrepresenting the facts. Opposing counsel filed a petition to vacate the order which was allowed. He then filed a petition for sanctions under Supreme Court Rule 137 which the trial court also allowed. Respondent attorney appealed the sanctions and the reviewing court reversed, holding the respondent's actions did not come within the purview of Rule 137. The court suggested the proper remedy was to file a petition of criminal contempt against respondent for committing a fraud against the court. In re Marriage of Oleksy, 337 Ill.App.3d 946, 787 N.E.2d 312, 272 Ill.Dec.497 (1st Dist.2003).
2. [2.83] Violating an Order of Probation
a. During the Term of Probation: Criminal or civil contempt may be used to enforce the conditions of probation during the term of probation. In re G. B., 88 Ill.2d 36, 430 N.E.2d 1096, 58 Ill.Dec. 845 (1981).
The State may bring a contempt action against a defendant who violated the terms of his or her probation but it must be specifically charged. In People v. Goleash, 311 Ill.App.3d 949, 726 N.E.2d 194, 244 Ill.Dec. 598 (4th Dist.2000), the State filed a petition to revoke probation and sought contempt as alternative relief. When the defendant appeared before the court he was not admonished pursuant to Supreme Court Rule 402 (a) and admitted to the violation. The court subsequently discharged defendant's probation but found him in indirect criminal contempt and sentenced him to 120 days in jail.
The reviewing court reversed on the grounds defendant was not properly charged with indirect criminal contempt and was not properly advised of his rights under a charge of indirect criminal contempt. The court stated:
A person charged with indirect criminal contempt is entitled to the full panoply of constitutional protections that are afforded any other criminal defendant....
The alleged contemnor cannot assert these rights unless he receives proper notice of the nature of the charges against him. Accordingly, any party wishing to initiate indirect criminal contempt proceedings must not only notify the alleged contemnor that sanctions are being sought, but that the proceedings will be criminal in nature...Thus, indirect criminal contempt proceedings cannot be initiated by a pleading captioned so as to imply that the proceedings will not be criminal. Instead, a party seeking a finding of indirect criminal contempt must say so explicitly by filing a pleading captioned "petition for adjudication of criminal contempt."
[Citations omitted.] 726 N.E.2d at 199.
b. After the Term of Probation Expires: In People v. Bertalot, 164 Ill.App.3d 89, 518 N.E.2d 467, 115 Ill.Dec. 942 (3d Dist.1987) the court held the court can enforce conditions of probation after expiration of the term of probation if the conditions violated can stand alone as independent dispositions found under section 5-5-3 of the Unified Code of Corrections. That section provides that specific despositions in any felony or misdemeanor are: (1) a period of probation, (2) a term of periodic imprisonment, (3) a term of conditional discharge, (4) a term of imprisonment, (5) an order directing clean up and repair, (6) a fine, (7) an order directing payment of restitution and (8) a sentence of participation in a county impact incarceration program. [730 ILCS 5/5-5-3 (b) (1) through (8).] The court went on to state however, that violations of probation (other than those found in section 5-5-3) could not be prosecuted under civil or criminal contempt. 164 Ill.App.3d at 94.
In People v. Wilson, 293 Ill.App.3d 339, 687 N.E.2d 1182, 227 Ill.Dec. 700 (4th Dist.1997), the State filed a petition for rule to show cause why the defendant should not be held in indirect civil contempt for failure to comply with an order of probation for not attending AA meetings and failure to complete drug treatment. At the time the petition was filed, defendant's term of probation had expired. The defendant was found in indirect civil contempt and the reviewing court reversed holding the conditions violated were not "independent conditions" found in section 5-5-3 of the Unified Code of Corrections.
However, in People v. Budzynski, 333 Ill.App.3d 433, 775 N.E.2d 275, 266 Ill.Dec. 713,
(4th Dist.2002) the court held that indirect criminal contempt proceedings do survive expiration of the term of probation even though not found in section 5-5-3 of the Unified Code of Corrections. In Budzynski, defendant informally agreed with the probation officer to extend his term of probation to complete a domestic violence program but failed to sign and return the agreement to extend until after the expiration of his term of probation. The State filed a petition for rule to show cause based upon defendant's failure to complete the program after the term had expired and subsequently withdrew the petition for rule and filed a Petition for Adjudication for Indirect Criminal Contempt. At contemnor's first appearance, the court advised contemnor of his rights under criminal contempt and appointed counsel. After hearing, the court found the agreement to extend the term had no legal effect but found contemnor in indirect criminal contempt for failure to complete the program and for leaving the state.
The reviewing court stated that a court's jurisdiction generally ends with the expiration of probation, however, this rule applies only to revocation or modification of probation citing People v. Wilson, supra. The court went on to state:
We distinguish Wilson from this case and reject the holding in Bertalot. In Bertalot, the court specifically held that contempt proceedings, whether civil or criminal, do not survive the probationary term. Bertalot, 164 Ill.App.3d at 94, 518 N.E.2d at 471. We agree that civil contempt, either direct or indirect, and direct criminal contempt proceedings do not survive the probationary term. However, we disagree that indirect criminal contempt proceedings do not survive.
* * * Defendant had no legal obligation to report to his probation officer or to complete the domestic violence program after [his term of probation ended]. The trial court lost subject-matter jurisdiction over defendant's case when the term of probation ended. (citation). However, this does not mean that defendant cannot be punished for disobeying the court order even after the expiration of the term of probation. Budzynski, at 437-38.
The reviewing court went on to reverse, however, since it held that indirect criminal contempt is a "separate and distinct proceeding in and of itself and is not part of the original case being tried when the contemptuous act occurred (citation). Since the offense of indirect crime contempt is an original criminal proceeding, a summons or an arrest warrant should have been served on defendant to obtain jurisdiction. * * * The contempt proceedings here were fatally flawed because the State did not file its petition as a new criminal case and did not personally serve defendant to obtain jurisdiction. * * * Here, the trial court lost subject-matter jurisdiction over the defendant when the probationary term expired. If jurisdiction is lacking, any judgment of the court is rendered void (citation). Budzynski at 439.
Cf. City of Urbana v. Andrew N.B., 335 Ill.App.3d 180, 780 N.E.2d 765, 269 Ill.Dec. 293 (4th Dist. 2002). Juvenile respondent was held in indirect criminal contempt for violation of an order of supervision during the term of supervision. A separate case was not opened on the criminal contempt, the petition for contempt was filed in the original juvenile case and respondent minor was not personally served on the criminal contempt matter. Finding of contempt affirmed. Budzynski was distinguished since the term of supervision had not expired (wherein probation had expired under Budzynski). 335 Ill.App.3d at 188.
c. Procedure: If the State determines to punish a defendant for violation of an order of probation by means of indirect criminal contempt, a new criminal case must be filed and the defendant served with a summons or warrant of arrest for the court to obtain jurisdiction over defendant in this action. At defendant's first appearance before the court, the court must advise the defendant of his rights as in any criminal case, however, if the court states for the record that the contempt will be treated as a "minor contempt" the court is limited to a sentence of not to exceed 6 months, a fine of not to exceed $500 or both and should, at that time advise defendant he is not entitled to a trial by jury. People v. Boucher, 179 Ill.App.3d 832, 535 N.E.2d 56, 128 Ill.Dec.842 (2d Dist.1989); People v. Waldron, 114 Ill.2d. 295, 500 N.E.2d 17, 102 Ill.Dec.395 (1986); People v. Goleash, 311 Ill.App.3d 949, 726 N.E.2d 194, 244 Ill.Dec. 598 (4th Dist. 2000). The court's finding of indirect criminal contempt must be based upon proof beyond a reasonable doubt. If the record does not specify the burden of proof or support such a finding, the order of contempt cannot stand. People v. Bonney, 251 Ill.App.3d 921, 623 N.E.2d 1387, 191 Ill.Dec. 501 (2d Dist.1993).
However, a petition for adjudication of civil contempt filed during the term of probation or in a petition to revoke or modify probation, the burden is by a preponderance of the evidence. Central Production Credit Association v. Kruse, 156 Ill.App.3d 526, 509 N.E.2d 136, 108 Ill.Dec.710 (2d Dist. 1987).
In a probation violation hearing the defendant's due process rights are not violated by compelling him to testify as an adverse witness for the State. People v. Lindsey, 199 Ill.2d 460, 476, 771 N.E.2d 399, 264 Ill.Dec. 695 (2002). However, if defendant is charged with indirect criminal contempt for the probation violation, and is called as an adverse witness for the State, he cannot be punished for criminal contempt. Id. (specially concurring opinion) at 480.
d. Sentence, Time Served. If, at the original sentencing, the defendant was sentenced to probation with a condition of jail time and the defendant is subsequently found in contempt for violating a condition of probation, the original sentence is not considered as time served as it relates to the sentence given for contempt; however, if a defendant is sentenced as a condition of probation in the original action, he is later sentenced for contempt, and subsequently his probation is revoked and he is sentenced to the Department of Corrections, then all time served, including the time given for criminal contempt, will be credited as time served. People v. Hutchcraft, 215 Ill.App.3d 533, 574 N.E.2d 1337, 158 Ill.Dec. 944 (4th Dist. 1991).
3. [2.84] Discipline of Attorneys for Violation of the Illinois Rules of Professional Conduct
Illinois S. Ct. Rule 63(B)(3) of the Code of Judicial Conduct provides:
A judge having knowledge of a violation of these canons on the part of a judge or a violation of Rule 8.4 of the Rules of Professional Conduct on the part of a lawyer shall take or initiate appropriate disciplinary measures.
Disciplinary proceedings and sanctions for unprofessional conduct are exclusively within the province of the Supreme Court, with the ARDC acting as its agent in administering disciplinary proceedings. Therefore, the trial court cannot sanction an attorney pursuant to S. Ct. Rule 63(B)(3) for a violation of the Rules of Professional Conduct. People v. Camden, 210 Ill. App. 3d 921, 569 N.E.2d 312, 155 Ill. Dec. 312 (5th Dist. 1991). However, the court may fashion appropriate relief based on contempt (Freeman v. Myers, 191 Ill. App. 3d 223, 547 N.E.2d 586, 138 Ill. Dec. 419 (4th Dist. 1989)) if there is a finding of contempt and no reference is made to Rule 63(B)(3) or to the Rules of Professional Conduct. See also In re Harris, 93 Ill.2d 285, 443 N.E.2d 557, 66 Ill. Dec. 631 (1982); Schnack v. Crumley, 103 Ill. App. 3d 1000, 431 N.E.2d 1364, 59 Ill. Dec. 607 (4th Dist. 1982); In re Mitan, 75 Ill.2d 118, 387 N.E.2d 278, 25 Ill. Dec. 622 (1979); Reed Yates Farms, Inc. v. Yates, 172 Ill. App. 3d 519, 526 N.E.2d 1115, 122 Ill. Dec. 576 (4th Dist. 1988); In re Marriage of Dall, 212 Ill. App. 3d 85, 569 N.E.2d 1131, 155 Ill. Dec. 520 (5th Dist. 1991).
In In re General Order of March 15, 1993, 258 Ill. App. 3d 13, 629 N.E.2d 673, 196 Ill. Dec. 128 (1st Dist. 1994), the court held that the portion of the Attorney Act (705 ILCS 205/6) that provides that a judge may bar an attorney from the courtroom for "malconduct" is an unconstitutional encroachment on the Supreme Court's exclusive authority to discipline attorneys.
4. [2.85] Forcing a Defendant To Answer Court's Questions at Sentencing Hearing
[B]efore making [a sentencing] determination, a judge may appropriately conduct an inquiry broad in scope, largely unlimited either as to the kind of information he may consider, or the source from which it may come. United States v. Tucker, 404 U.S. 443, 30 L.Ed.2d 592, 92 S. Ct. 589, 591 (1972).
However, the reviewing court does not encourage enforced answering of a trial court's question during a sentencing hearing:
[W]e wish to add that we believe an order of the court directing a defendant, upon pain of contempt, to answer a court's question at the sentencing hearing, such as occurred here, is an action which ought to be a last resort, if ever. People v. Iseminger, 202 Ill. App.2d 581, 560 N.E.2d 445, 459, 148 Ill. Dec. 143 (4th Dist. 1990).
5. [2.86] Failure To Pay Child Support/Maintenance
Normally, civil contempt is used to coerce compliance with the court's order to pay child support and/or maintenance when the respondent has the means to comply with the court's order. Criminal contempt is employed not to coerce compliance, but to punish the contemnor for failure to pay past due support.
Criminal sanctions are retrospective in nature; they seek to punish a contemnor for past acts which he cannot now undo. Civil sanctions are prospective in nature; they seek to coerce compliance at some point in the future. [Emphasis in original.] In re Marriage of Betts, 200 Ill. App. 3d 26, 558 N.E.2d 404, 417, 146 Ill. Dec. 441 (4th Dist. 1990).
The noncompliance with an order to pay child support and/or maintenance constitutes prima facie evidence of contempt. Normally, a showing by affirmative defense of inability to comply with the court's order precludes a finding of contempt. "The corollary to this rule, however, prevents assertion of the defense of inability where the contemnor has voluntarily created the incapacity." County of Cook v. Fry Roofing Co., 59 Ill.2d 131, 319 N.E.2d 472, 476 (1974). Therefore, if a contemnor has dissipated his funds or destroyed property that he was ordered to turn over to another, consideration should be given to proceeding by way of indirect criminal contempt in order to punish rather than to coerce as in civil contempt. However, it should also be noted that, if procedural steps appropriate for charges of indirect criminal contempt have been taken, a contemnor may be found in both civil and criminal indirect contempt for the same act. Betts, supra. See also People v. Gholson, 412 Ill. 294, 106 N.E.2d 333 (1952).
6. [2.87] Enforcement of Discovery
A respondent may be held in contempt for failure to comply with the court's discovery order. Failure to give a defense investigator's notes to the state's attorney pursuant to an order under S. Ct. Rule 413 supported a finding of contempt even though the notes were later produced at the time of trial. People v. Boclair, 119 Ill.2d 368, 519 N.E.2d 437, 116 Ill. Dec. 545 (1987).
Although the Supreme Court Rules on discovery in criminal proceedings are limited to felony cases (People v. Schmidt, 56 Ill.2d 572, 309 N.E.2d 557 (1974); People v. Williams, 87 Ill.2d 161, 429 N.E.2d 487, 57 Ill. Dec. 589 (1981)), an attorney was properly held in indirect criminal contempt for refusal to give the court a list of witnesses for voir dire examination to aid in the selection of a jury (People v. Perry, 210 Ill. App. 3d 773, 569 N.E.2d 287, 155 Ill. Dec. 287 (4th Dist. 1991)).
A contempt proceeding is the appropriate method of testing the correctness of a discovery order. Eskandani v. Phillips, 61 Ill.2d 183, 334 N.E.2d 146 (1975). An order of contempt based on a failure to comply with a discovery order will be reversed, even though the reviewing court finds that the discovery order should have been obeyed, if the respondent did not act in bad faith or with disdain for the court. First United Bank v. Hofmann, 227 Ill. App. 3d 1036, 591 N.E.2d 915, 169 Ill. Dec. 411 (3d Dist. 1992). When an attorney's refusal to disclose information is in good faith, the trial court should consider staying a contempt order pending appellate review. In re Marriage of Decker, 153 Ill.2d 298, 606 N.E.2d 1094, 180 Ill. Dec. 17 (1992). See also Roth v. St. Elizabeth's Hospital, 241 Ill. App. 3d 407, 607 N.E.2d 1356, 180 Ill. Dec. 843 (5th Dist. 1993). See also Norskog v. Pfeil, 197 Ill.2d 60, 755 N.E.2d 1, 257 Ill.Dec.899 (2001).
In People v. Toomin, 18 Ill. App. 3d 824, 310 N.E.2d 767 (1st Dist. 1974) defense attorney successfully impeached a State witness with a police report not provided to the defense. The court then conducted its own inquiry concerning State's failure to comply with its discovery order and asked contemnor where he obtained the report. Contemnor respectfully refused to comply, based in part, on the immateriality of the inquiry, and was held in criminal contempt. The reviewing court reversed on the immateriality of the inquiry stating:
To sustain on appeal a finding of direct contempt of court, it must be shown that the particular conduct was calculated to embarrass, hinder, or obstruct the court in the administration of justice, or to bring the administration of justice into disrepute.... The party seeking to uphold the contempt order bears the burden of showing that the court was warranted in exercising its power.... It should also be borne in mind that a court must exercise its power in direct contempt proceedings prudently and judiciously because normal constitutional safeguards are not applicable [citation omitted]. 310 N.E.2d at 769.
See also § 2.23, above.
7. [2.88] Enforcement of Orders of Protection
The use of indirect criminal contempt to enforce orders of protection is usually more appropriate than indirect civil contempt since the purpose is to punish for disobedience of an order rather than coerce obedience of it, although the contemnor may be sanctioned for both criminal and civil contempt.
Prosecution of a violation of an order of protection does not offend the principles of double jeopardy when the same act is prosecuted under the criminal law if the Blockburger test is met. See §2.81 above.
8. [2.89] Enforcing Child Visitation
A minor child may be found in direct civil contempt for stating in open court that he will not comply with the court's order of visitation. Sanctions may include confinement of the minor at home or a youth detention center until the minor complies with the order. However, the court must hold a hearing to consider less restrictive alternatives and what sanction would be more appropriate and efficacious. One possible alternative would be to direct the custodial parent to deliver the child to the visitation site and, if there is a refusal, to hold the parent in civil or criminal contempt. In re Marriage of Marshall, 278 Ill. App. 3d 1071, 663 N.E.2d 1113, 215 Ill. Dec. 599 (3d Dist. 1996), appeal denied sub nom. Marshall v. Nussbaum, 168 Ill.2d 596 (1996).
9. Recalcitrant Witnesses
A recalcitrant witness may be held in direct criminal contempt, direct civil contempt, or both. If held in direct civil contempt only, the witness must be released when the jury commences deliberation (in a petit jury case), and when a grand jury is discharged (when the witness has been brought before a grand jury). The witness is not released, however, if found in both direct civil contempt and criminal contempt, or only direct criminal contempt.
a. [2.90] During Trial. A witness may be held in contempt for refusing to be sworn. People v. Clark, 4 Ill.App.3d 301, 280 N.E.2d 723 (1st Dist. 1972), or for refusing to answer a relevant and material question. People v. King, 8 Ill.App.3d 2, 288 N.E. 2d 672 (1st Dist.1972). A witness may be found in direct criminal contempt, direct civil contempt, or both. United States v. United Mine Workers of America, 330 U.S.258, 91 L.Ed.884, 67 S.Ct.677 (1947). However, if the witness is found in direct civil contempt, the witness must be released when the case has been given to the jury for its consideration since the contemnor can no longer purge himself of contempt.
b. [2.91] Before a Grand Jury. A witness may be held in contempt for refusing to be sworn before a grand jury or refusing to testify or provide documents required. In re Grand Jury Proceedings of August, 1984, 757 F.2d 108 (7th Cir. 1984).
In In re Grand Jury Proceedings, No. 01-3215, 2001 U.S.App. LEXIS 21530 (7th Cir.Sept. 19th, 2001) (unpublished opinion), a witness refused to turn over certain records to the grand jury. Nothing was done at the time, but the witness was subsequently served with a petition for rule to show cause. After hearing, the court found, contrary to the testimony of the contemnor, that he did have the records required and held the contemnor in criminal contempt. The contempt finding was upheld since the court later changed the order to one of civil contempt and the original order contained a purge provision.
Note that the state may proceed summarily through direct contempt or subsequently by way of indirect contempt. If it proceeds summarily, the state should notify the judge of the recalcitrant witness and provide the judge with a transcript of the questions asked of the witness or documents or records requested. The judge may then proceed to the grand jury room or request that the witness and grand jurors (and staff) be taken to the judge's courtroom. If the judge chooses the latter option, then the court staff should be relieved and replaced by the grand jury staff and court reporter. The judge should then have the witness re-sworn (so that the witness' swearing will be brought within the judge's personal knowledge as required by direct contempt) and advise the witness that he or she may be held in direct criminal contempt, direct civil contempt, or both. If the witness answers the questions or produces the records required, the matter is resolved. If not, the court may hold the witness in direct criminal contempt, direct civil contempt, or both after providing the witness an opportunity to make a statement in allocation. If the contemnor is held in direct civil contempt, the contemnor must be released if he or she subsequently purges himself or herself of contempt or when the grand jury is finally discharged. If summary action is not taken, the state may file a petition for adjudication of indirect criminal contempt, a petition for adjudication of indirect civil contempt, or both, in which case the contemnor is entitled to a full hearing.
K. Defenses to Criminal Contempt
a. [2.92] In General. The act itself may not be a contemptuous act. In re Little, 404 U.S. 553, 30 L.Ed.2d 708, 92 S. Ct. 659 (1972); People v. Roberts, 42 Ill. App. 3d 604, 356 N.E. 2d 429, 1 Ill. Dec. 303 (4th Dist.1976). The judge's conduct may have been so integrated with the contempt that he actually contributed to it or his objectivity can reasonably be questioned. Offutt v. United States, 348 U.S. 11, 99 L.Ed. 11, 75 S. Ct. 11 (1954).
b. [2.93] Mental Competency. When there was a bona fide question of the defendant's mental fitness at the time of his conduct resulting in a finding of contempt, "the court could not have summarily determined that he was capable of forming the requisite intent to commit direct criminal contempt. Here...there were sufficient facts to put the trial judge on notice that the defendant might be mentally ill, making it incumbent on the court to afford the defendant an opportunity to fashion a defense based upon an affirmative defense of insanity." People v. Wilson, 302 Ill.App.3d 1004, 706 N.E.2d 1075, 1077, 236 Ill.Dec. 201(1st Dist.1998). See also People v. Sheahan, 150 Ill.App.3d 572, 502 N.E.2d 48, 103 Ill.Dec. 901 (2d Dist. 1986).
2. Indirect criminal contempt.
a. [2.94] Void Order. The trial court's order, no matter how erroneous, must be obeyed until set aside. City of Chicago v. King, 86 Ill. App. 2d 340, 230 N.E.2d 1 (1st Dist. 1967). On appeal, the reviewing court will set aside a finding of contempt after it determines whether the court had power to enter into the inquiry before it. In doing so, it will determine whether the court had (1) jurisdiction over the parties, (2) jurisdiction over the subject matter, and (3) power to decide the particular matters presented. However, it is no defense of contempt to show that the order was merely erroneous. Rather, the order must be void ab initio. People v. Stinger, 22 Ill. App. 3d 371, 317 N.E.2d 340 (2nd Dist. 1974); People v. Huntley, 144 Ill. App. 3d 64, 493 N.E.2d 1193, 98 Ill. Dec.172 (5th Dist. 1986). See also, O'Grady v. Cook County Sheriff's Merit Board, 204 Ill. App. 3d 258, 561 N.E.2d 1226, 149 Ill. Dec. 530 (1st Dist. 1990); Tri-State Coach Lines, Inc. v. Illinois Commerce Commission, 202 Ill. App. 3d 206, 559 N.E.2d 869, 147 Ill. Dec. 529 (1st Dist. 1990); Southern Illinois Medical Business Associates v. Camillo, 208 Ill. App. 3d 354, 567 N.E.2d 74, 153 Ill. Dec. 359 (5th Dist. 1991). People v. Williams 87 Ill.2d 161, 429 N.E.2d 487, 57 Ill.Dec.589 (1981); Lutrell v. Panozzo, 252 Ill.App.3d 597, 625 N.E.2d 695, 192 Ill.Dec.540 (1st Dist.1993).
b. [2.95] Lack of Knowledge of the Order. One of the requisite elements of contempt is that the contemnor knew or reasonably should have known of the order he is alleged to have violated. If the respondent, as an affirmative defense, can show by a preponderance of the evidence that he had no knowledge of the order nor could have known upon the exercise of due diligence, than a contempt order cannot stand. An orally transmitted order is not sufficient notice to respondent regarding grounds for contempt. Central Production Credit Association v. Kruse, 156 Ill. App. 3d 526, 509 N.E.2d 136, 108 Ill. Dec.710 (2nd Dist. 1987).
c. [2.96] Lack of Certainty or Clarity of the Order. The court must make certain that a respondent knows of the order on which a contempt may be based, and that order must be specific as to its terms. "It takes but a few moments of a trial judge's time to directly elicit from a party a response indicating that he understands the proceedings or the court's oral orders and incorporate such into the record." Abbott v. Abbott, 129 Ill. App. 2d 96, 262 N.E.2d 502, 504 (4th Dist. 1970). "[A]n injunction order cannot support a finding of contempt unless it sets forth with certainty, clarity and conciseness precisely what actions are enjoined". O'Leary v. Allhin, 64 Ill.2d 500, 356 N.E.2d 551, 558, 1 Ill. Dec. 363 (1976). An orally transmitted order is not sufficient notice to respondent regarding grounds for contempt. Central Production Credit Association v. Kruse, 156 Ill. App. 3d 526, 509 N.E.2d 136, 108 Ill. Dec. 710 (2nd Dist. 1987). People v. Coulter, 228 Ill.App.3d 1014, 594 N.E.2s 1157, 171 Ill.Dec.637 (1st Dist.1992).
d. [2.97] Statute of Limitations. There is no statute of limitations addressing the law of contempt, nor could the legislature constitutionally enact one. See § 2.3.
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CIVIL |
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CRIMINAL |
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Direct |
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Indirect |
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Direct |
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Indirect |
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None |
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Verified |
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PETITION |
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None |
Verified Petition |
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required |
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Petition |
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required |
or Complaint |
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Same as |
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Same as |
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Separate |
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Separate |
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original |
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original |
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CAUSE OF ACTION |
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cause |
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cause |
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cause |
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cause |
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None |
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Reg. Mail or as |
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NOTICE |
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None |
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Personal |
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required |
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court directs |
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required |
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No, if Judge did |
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No, if Judge has |
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SUBSTITUTION |
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No, if Judge did |
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not contribute to |
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made a substantial |
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OF JUDGE |
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not contribute to |
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Yes |
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the contempt |
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ruling in the case |
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the contempt |
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1. To be advised of |
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1. Notice |
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1. To be advised of |
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1. Personal notice |
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contemptuous conduct |
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2. Copy of Petition |
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DUE PROCESS |
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contemptuous conduct |
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2. Copy of charge |
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2. To make a statement |
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3. Answer orally or in writing |
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RIGHTS |
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2. To make a statement |
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3. Subpoena witnesses |
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prior to sanctions |
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4. To be heard |
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prior to sanctions |
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4. Cross-examine |
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5. Subpoena Witnesses |
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5. Presumption of innocence |
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6. Cross-Examine |
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6. Right against self |
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7. Atty. of choice |
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incrimination |
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7. To appointed attorney. |
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Not |
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Preponderance |
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BURDEN OF PROOF |
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Not |
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Beyond a |
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applicable |
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of the evidence |
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applicable |
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reasonable doubt |
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No |
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No |
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TRIAL BY JURY |
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No |
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No, if sanctions not more |
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than six months and/or $500 |
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RESPONDENT CALLED |
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Not |
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Yes |
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AS WITNESS |
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Not |
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No |
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applicable |
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applicable |
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WRITTEN ORDER |
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Yes |
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Yes |
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REQUIRED |
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Yes |
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Yes |
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Indefinite and continuing fine and/or |
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SANCTIONS |
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If jury not allowed, limited to fine not to exceed $500 |
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jail sentence until purged by compliance |
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and/or jail not to exceed six months. If jury permitted, |
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unlimited fine/jail. Must be reasonable |
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Yes |
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Yes |
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RIGHT TO APPEAL |
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Yes |
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Yes |