An Overview of Illinois Contempt Law: A Court's Inherent Power and the Appropriate Procedures and Sanctions, 26 J. Marshall L. Rev.

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The John Marshall Law Review Volume 26 Issue 2 Article 2 Winter 1993 An Overview of Illinois Contempt Law: A Court's Inherent Power and the Appropriate Procedures and Sanctions, 26 J. Marshall L. Rev.
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The John Marshall Law Review Volume 26 Issue 2 Article 2 Winter 1993 An Overview of Illinois Contempt Law: A Court's Inherent Power and the Appropriate Procedures and Sanctions, 26 J. Marshall L. Rev. 223 (1993) Robert G. Johnston Kevin E. Bry Follow this and additional works at: Part of the Civil Law Commons, Courts Commons, Criminal Law Commons, Legal Ethics and Professional Responsibility Commons, and the State and Local Government Law Commons Recommended Citation Robert G. Johnston & Kevin E. Bry, An Overview of Illinois Contempt Law: A Court's Inherent Power and the Appropriate Procedures and Sanctions, 26 J. Marshall L. Rev. 223 (1993) This Article is brought to you for free and open access by The John Marshall Institutional Repository. It has been accepted for inclusion in The John Marshall Law Review by an authorized administrator of The John Marshall Institutional Repository. AN OVERVIEW OF ILLINOIS CONTEMPT LAW: A COURT'S INHERENT POWER AND THE APPROPRIATE PROCEDURES AND SANCTIONS ROBERT G. JOHNSTON* & KEVIN E. BRY** INTRODUCTION This article examines the law of contempt of court in Illinois, drawing upon both Illinois and federal authority. Preliminarily, it is important to note that the word contempt connotes two different meanings. In one sense, contempt is a means of controlling courtroom conduct, either by coercing compliance with court orders or by punishing those who embarrass or obstruct the court in its administration of justice. 1 When speaking of contempt in this sense, we refer to an inherent power of the court. 2 In order for the court to have the power to hold an individual in contempt of court, the court must have jurisdiction to enter such an order. Where jurisdiction is lacking, an order of contempt is void. 3 Moreover, the Illinois Supreme Court has recently observed that the exercise of the power of contempt is a delicate one and care is needed to avoid arbitrary and oppressive conclusions. '4 Thus, in order for the exercise of the contempt power to be appropriate, the contemnor must demonstrate willful conduct to the court, 5 and as * Robert G. Johnston recieved a J.D. from the University of Chicago in Mr. Johnston is currently a Professor and the Associate Dean of The John Marshall Law School. ** Kevin E. Bry received a B.A. from Loyola University of Chicago, and a J.D. from The John Marshall Law School. Mr. Bry is a former Law Clerk to Illinois Appellate Court Justices Thomas R. Rakowski and Thomas E. Hoffman. Mr. Bry is currently in private practice in Chicago. 1. People v. Ernest, 141 Ill. 2d 412, 421, 566 N.E.2d 231, 235 (1990); County of Cook v. Lloyd A. Fry Roofing Co., 59 Ill. 2d 131, 135, 319 N.E.2d 472, 475 (1974). 2. Michaelson v. United States, 266 U.S. 42, 65 (1924) (stating that courts have the inherent power to punish for contempt of court); In re G.B., 88 Ill. 2d 36, 41, 430 N.E.2d 1096, 1098 (1981). 3. Guertin v. Guertin, 204 Ill. App. 3d 527, 529, 561 N.E.2d 1339, 1340 (3d Dist. 1990). 4. Ernest, 141 Ill. 2d at 421, 566 N.E.2d at Id. at 424, 566 N.E.2d at 236; See also Bank of Aspen v. Fox Cartage, Inc., 126 Ill. 2d 307, 321, 533 N.E.2d 1080, 1086 (1989) (holding that to constitute criminal contempt, one must willfully or contumaciously violate the order of the court ). The John Marshall Law Review [Vol. 26:223 contempt is a drastic means of controlling courtroom conduct, 6 the court should consider alternative means. 7 In the second sense, contempt refers to the conduct which justifies the court's action. Contempt in this consequential sense has been described somewhat generically as conduct calculated to embarrass, hinder or obstruct a court in its administration of justice or to derogate from its authority or dignity or bring the administration of law into disrepute. 8 Contemptuous conduct may consist of an act or omission. 9 This may include behavior during a trial, such as the disruption of court proceedings 10 or the disobedience of judicial orders. ' This article first describes the different kinds of contemptuous conduct which include civil and criminal contempt, and direct and indirect contempt. Civil contempt and criminal contempt are exclusive terms, as are direct contempt and indirect contempt. It is of paramount importance that contemptuous conduct be correctly identified and labelled since different punishments and proceedings apply to each kind of contemptuous conduct. 12 Accordingly, a trial court's misidentification of contemptuous conduct can make for a confusing or flawed record which may be the basis for a reversal of a contempt conviction on appeal.' 3 Such a reversal, of course, 6. Lane v. Sklodoeski, 97 Ill. 2d 311, 320, 454 N.E.2d 322, 326 (1983). 7. For an extended discussion of whether the trial court must consider alternative methods than contempt for controlling courtroom conduct see infra notes and accompanying text. For a discussion of ensuring civility and decorum in judicial proceedings see Geoffrey C. Hazard, Securing Courtroom Decorum, 80 YALE L.J. 433 (1970). 8. In re Estate of Melody, 42 Ill. 2d 451, 452, 248 N.E.2d 104, 105 (1969). 9. Dan B. Dobbs, Contempt of Court: A Survey, 56 CORNELL L. REV. 183, (1971). 10. See People v. Wright, 51 Ill. App. 3d 990, 992, 367 N.E.2d 492, 493 (3d Dist. 1977) (holding the defendant in contempt for interrupting court proceedings with belligerent and insulting comments); People v. Wilson, 35 Ill. App. 3d 86, 341 N.E.2d 34 (1st Dist. 1975) (finding a spectator to be in contempt of court for arguing loudly with the bailiffs and thereby interrupting court proceedings). 11. See Comet Cas. Co. v. Schneider, 98 Ill. App. 3d 786, 789, 424 N.E.2d 911, 914 (1st Dist. 1981) (finding the attorney in contempt for his willful and flagrant violation of court orders ). 12. In re Marriage of Betts, 200 Ill. App. 3d 26, 43, 558 N.E.2d 404, 415 (4th Dist. 1990) (emphasizing the importance of properly classifying the type of contemptuous conduct, stating that because the procedures which must be followed in contempt cases vary according to the type of contempt involved, proper classification of contempt charges is not a mere academic exercise ). 13. The distinction between civil and criminal contempt is important because of the consequences that attach to the characterization of the conduct. In People v. Otten, the trial court held the defendant in contempt for failing to cooperate with his probation officer. 228 Ill. App. 3d 305, 308, 591 N.E.2d 907, 909 (4th Dist. 1992). Judge Steigmann of the appellate court reversed: [T]he contempt procedures utilized at the trial level were flawed... The most striking feature about the contempt proceedings in the present case is the apparent confusion by all trial level participants regarding the nature 1993] An Overview of Illinois Contempt Law thwarts the court's intent for finding an individual in contempt in the first instance, and occassions the use of valuable judicial resources for naught. 14 Next, this article examines the proceedings which pertain to the different kinds of contempt. Then, the appropriate sanctions for contemptuous conduct will be set forth, followed by a section on appealability and reviewability of contempt orders. Finally, this article considers a number of miscellaneous issues involving contempt of court, including a discussion of the need for courts to carefully examine the appropriateness of the use of 'the contempt power, and alternative means of controlling courtroom conduct. 15 I. KINDS OF CONTEMPTUOUS CONDUCT As indicated, there are generally four kinds of contemptuous conduct: civil contempt and criminal contempt, direct contempt and indirect contempt.' 6 It is important to identify the different types of contempt because the purpose, procedures and consequences of each vary. Civil contempt is coercive and conducted as a civil proceeding. Criminal contempt is punitive and conducted as a criminal proceeding. Direct contempt is a summary proceeding, while indirect contempt involves an evidentiary proceeding. of the contempt charge at issue... The record in the present case does not make clear whether the trial court incarcerated defendant for contempt until such time as he complied with the court's requirement to cooperate with the probation office (civil contempt), or, instead, to simply punish defendant for his failure to cooperate (criminal contempt). Our difficulty with viewing the contempt order as civil in nature is that the trial court never specified what defendant must do in order to be released from jail... On the other hand, our difficulty with viewing the trial court's contempt order as criminal in nature is that defendant was afforded none of the criminal due process rights to which he is entitled when a person is charged with indirect criminal contempt. Id. at , 591 N.E.2d at 911 (citations omitted). See also People v. Doherty, 165 Ill. App. 3d 630, 634, 518 N.E.2d 1303, 1305 (2d Dist. 1988) (holding that principals of double jeopardy do not apply where the prior adjudication was one of civil contempt... thus a proper characterization is of the utmost importance). 14. Id. See also Hoga v. Clark, 113 Ill. App. 3d 1050, 1058, 448 N.E.2d 196, 201 (5th Dist. 1983) (stating, The distinction between civil and criminal contempt, though exceedingly difficult to apply, is nevertheless important due to the procedural and substantive requirements which attach to each. ). Courts and practitioners must always bear in mind that while the generic definition of contempt encompasses all of the kinds of contempt, once contemptuous conduct is labelled, important and different consequences result. 15. For an excellent discussion of the law of contempt of court see Dobbs, supra note 9. See also Edward R. Burr, The Law of Contempt in illinois, 19 LOY. U. CHI. L.J. 827, 853 (1988) (reviewing contempt of court in Illinois). 16. Dobbs, supra note 9, at 186. The John Marshall Law Review [V/ol. 26:223 A. Civil and Criminal Contempt In the 1953 case of People ex rel. Chicago Bar Ass'n v. Barasch,1 7 the Illinois Supreme Court explained: 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... A further guide may be found in the purpose of the punishment. Imprisonment for criminal contempt is inflicted as a punishment for that which has been done, whereas imprisonment for civil contempt is usually coercive Generally, criminal contempt arises out of acts that tend to lessen the dignity of the court or acts that impede the process of the court. 19 Criminal contempt proceedings serve a punitive function. 20 Civil contempt ordinarily occurs when the contemnor fails to comply with a civil court order for the opposing litigant's benefit. 2 1 Civil contempt proceedings are not punitive in nature, but rather are instituted to compel or coerce certain conduct. 22 B. Direct and Indirect Contempt Contemptuous conduct may be further characterized as direct or indirect. Indirect contempt occurs outside the presence of the court. 23 Therefore, extrinsic evidence must be utilized to prove indirect contempt. 2 4 Where the court does not personally observe an element of the offense, testimony of third parties must be used Ill. 2d 407, 173 N.E.2d 417 (1961). 18. Id. at 409, 173 N.E.2d at 418 (citations omitted). 19. Clark, 113 Ill. App. 3d at 1058, 448 N.E.2d at Barasch, 21 Ill. 2d at , 173 N.E.2d at People v. Shukovsky, 128 Ill. 2d 210, 220, 538 N.E.2d 444, 447 (1989). 22. Hoga, 113 Ill. App. 3d at 1058, 448 N.E.2d at 201; Matter of Crededio, 759 F.2d 589, 590 (7th Cir. 1985). In Hicks v. Feiock, 485 U.S. 624 (1988), the United States Supreme Court engaged in a lengthy analysis of how to distinguish between whether a contempt is civil or criminal: [T]he critical features are the substance of the proceeding and the character of the relief that the proceeding will afford...[i]f 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 is punitive if the sentence is limited to imprisonment for a definite period. Id. at According to the Seventh Circuit, Hicks teaches that the purpose of the contempt order is to be determined by the nature of the sentence, not by the contents of the judge's head. United States v. Jones, 880 F.2d 987, 989 (7th Cir. 1989) (refering to the U.S. Supreme Court's holding in Hicks). 23. Weglarz v. Bruck, 128 Ill. App. 3d 1, 8, 470 N.E.2d 21, 26 (1st Dist. 1984). 24. Id. 1993] An Oveview of Illinois Contempt Law to establish the offense. 25 Consequently, the accused contemnor must be given notice, a fair hearing and an opportunity to be heard. '26 Unlike indirect contempt, direct contempt occurs in the very presence of the judge, making all elements of the offense matters within the personal knowledge of the judge and tending directly to obstruct and prevent the administration of justice It follows that extrinsic evidence is not necessary to prove direct contempt and such contempt may be determined and punished summarily in the absence of the formalities of pleadings and a trial. '28 Additionally, some courts refer to what must be considered constructive direct contempt. 29 Such conduct, for example, includes the filing of contemptuous documents which, although not personally observed by the trial judge, takes place within an integral part of the court. 30 In Illinois, the raison d'etre for this subcategory is not apparent since this type of contempt does not invoke any procedural requirements different than indirect contempt. Thus, constructive direct contempt in Illinois is something of a contradiction in terms, and may have its genesis in the perceived need to ascribe a greater dignity to court proceedings, even if not occurring in the courtroom, than out-of-court proceedings which relate to an action. 31 C. Illustrative Cases Contempt may arise at any stage of the judicial proceedings, in limitless factual situations, either in or out of the presence of the judge. A compilation of all the situations involving actual or possible contemptuous conduct is impossible. However, this section will present some of the illustrative cases involving contempt to further an understanding of the law of contempt & 26. Id 27. Weglarz, 128 Ill. App. 3d at 8, 470 N.E.2d at Id 29. Betts, 200 Ill. App. 3d at 47-48, 558 N.E.2d at People ex rel. Kunce v. Hogan, 67 Ill. 2d 55, 60, 364 N.E.2d 50, (1977). 31. It could be argued, of course, that constructive direct contempts, as in the case of the filing of false or unauthorized documents, have a way of reaching the court personally. See, e.g., Kunik v. Racine County, Wis., 946 F.2d 1574 (7th Cir. 1991) (finding that the trial court correctly held a party in contempt for submitting a pleading which contained vituperative language and refused to amend the pleading). An excellent discussion of constructive direct contempt is found in the case of People ex rel. Finck v. Locher, 172 Ill. App. 3d 706, , 526 N.E.2d 935, (5th Dist. 1988). In the Seventh Circuit, unlike Illinois, contempts occurring constructively in the judge's presence may be punished summarily. FED. R. CRIM. P. 42(a); Kunik, 946 F.2d at See generally Matter of Jafree, 741 F.2d 133 (7th Cir. 1984). The John Marshall Law Review [Vol. 26: In-Court Conduct - Disrupting the Judicial Proceedings Criminal contempt is found where an attorney, litigant or other engages in conduct disruptive to the court's proceedings. Such contempts will generally be direct, occurring in the presence of the judge. One example of direct criminal contempt arising out of the disruption of court proceedings is found in the 1971 United States Supreme Court case of Mayberry v. Pennsylvania. 32 There, a criminal defendant was held in contempt based upon conduct which was directed at the judge himself. Many of the words leveled at the judge.., were highly personal aspersions, even 'fighting words' - 'dirty sonofabitch,' 'dirty tyrannical old dog,' 'stumbling dog,' and 'fool.'... [The trial judge] was charged with running a Spanish Inquisition and told to 'go to hell' and 'keep your mouth shut.',,33 Although the Mayberry Court remanded the proceeding on procedural grounds, 34 it left little doubt that it considered the conduct contemptuous. 35 The next year, the Seventh Circuit Court of Appeals handed down two well-publicized opinions involving direct criminal contempts, namely United States v. Seale 36 and In re Dellinger. 37 In these cases, the Honorable Julius J. Hoffman presided over the controversial conspiracy trial of the Chicago Seven. 3 8 The court examined the sufficiency of numerous obstructive instances of conduct, ruling that some of the trial court's specifications of contempt, although provocative, did not as a matter of law rise to the level of contemptuous conduct under the applicable federal rule. 39 These provocative acts included disrespectful comments to the trial judge, failure to sufficiently adhere to the trial court's directives and evidentiary rulings, and failure to cease argument and sit when the trial judge so instructed the contemnors. 40 The Seventh Circuit remanded the Seale and Dellinger cases concluding that the conduct so personally involved the trial judge that the contempt hearing should be presented before another judge. Thus, the issues of whether the allegedly contemptuous conduct was in fact contemptuous were not decided. 41 Nevertheless, Seale and Dellinger pro U.S. 455 (1971). 33. Id. at Id. (finding that due process required the contempt proceeding to be before a judge other than the one reviled by the contemnor. ). 35. Id. at F.2d 345 (7th Cir. 1972). 37. Id. at Id.; Seale, 461 F.2d Seale, 461 F.2d at ; Dellinger, 461 F.2d at Dellinger, 461 F.2d at Both Seale and Dellinger were remanded under the authority of Mayberry, 400 U.S. 455, as the trial judge was personally reviled, and thus the contempt hearings were required to be held before a different judge. 1993] An Overview of Illinois Contempt Law vide the unusual element of analyzing the propriety of the trial judge's conduct during trial. 42 A further example of direct contempt is found in the 1979 case of People v. Graves. 4 3 There, during a trial for armed robbery, defense counsel was in the process of cross-examining an accomplice witness who was testifying on behalf of the State. 44 Defense counsel sought to impeach the witness by disclosing the agreement that the state made with the witness for his testimony. 45 During a sidebar, counsel expressed his desire to explore the witness' knowledge of the possible penalties for armed robbery. 46 The trial judge allowed defense counsel to ask the witness what the police told the witness he could receive by way of penalties, but the trial court expressly ruled that counsel could not ask the witness if he knew he could receive a greater penalty than that of which he was informed. 47 Defense counsel indicated that he understood the order. 48 When cross-examination resumed, however, defense counsel proceeded to ask, in leading form, if the witness could receive probation for the offense, and after an immediate objection was sustained, counsel asked the witness, again in a leading manner, if he could receive a sentence of life imprisonment. 49 Counsel was then found in contempt of court. 50 On appeal, the Illinois Supreme Court affirmed the finding of contempt, observing that the contemnor clearly failed to comply with the ruling of the cour
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