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You will note at
the beginning of each large section there is not only a headline, but
additionally there is a summary or preface. Often we refer to these summaries
within documents as "overviews". |
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In researching and
citing authority never overlook local rules. Judges and lawyers participate in
establishing local rules, but after the rules are established they are often
disregarded. Read your local rules, and when helpful include them as a source
of authority. In this case, the local rule made our case. Neither the judge,
prosecutor nor local lawyer was aware of the portion of the local rule that
greatly favored our cause. |
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Never hesitate to
fully quote an authority that is favorable. Especially be careful to include
the local rule favorable to you in the record as the appellate court may not
have access to the local rules in some jurisdictions. |
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Note the primacy
and recency concept. The local rule is stated first in this overview legal
issues section. Primacy and recency applies to the entire document, but equally
important, it applies to each small section of the document |
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It is also
important to an efficient disposition of these proceedings that the parties
clarify areas of dispute concerning the legal standards which apply in this
case. The applicable legal standards are set out below, divided into several
subsections so, at the end of each subsection, the prosecution can easily admit
or deny that the correct legal standard has been stated and can specify in what
manner any subsection is incorrect. |
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2.1 Sources
of Applicable Legal Standards in General in Contempt
Adjucications |
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2.1.1
Overview of these General Legal Standards |
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There are
numerous layers of legal standards which establish the standards applicable to
contempt proceedings; the United States Constitution; Illinois constitutional,
statutory, as well as decisional law; and, Rules of Practice of the Circuit
Court -- ______ Judicial Circuit, Rule 13.00. Each of these sources set out
substantive and procedural standards which must be met before an order of
contempt can be entered; the court must comply with the standards of all
these sources before it may enter an order of contempt. Of course, if
the substantive or procedural protections in the state or local law are less
than, or conflict with, the protections afforded by the Constitution, then the
constitutional standards prevail. |
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The United
States Supreme Court has most recently spoken to the constitutional standards
for contempt proceedings in United Mine Workers v. Bagwell, ___ U.S. ___,
114 S.Ct. 2252 (1994); this case is the primary authority that controls
here. |
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2.1.2 The
Local Rule Controlling Contempt Adjudications |
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The Rules of
Practice of the Circuit Court -- _____ Circuit ("Rules of Practice"
or "Local Rules") Rule 13.01, _____ Judicial Circuit, _____ County,
Illinois, which defines contumacious conduct and establishes procedures which
must be followed by this court in contempt proceedings, is as
follows. |
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(a)
Contumacious conduct defined. Contumacious conduct consists of verbal or
nonverbal acts which: |
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(1) embarrass
or obstruct the court in its administration of justice or derogate from its
authority or dignity; |
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(2) bring the
administration of justice into disrepute; or |
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(3)
constitute disobedience of a court order or judgment. |
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(b) Direct
criminal contempt defined. Contumacious conduct constitutes a direct criminal
contempt if it is committed in such a manner that no evidentiary hearing is
necessary to determine the facts establishing such conduct and is committed in
an integral part of the court while the court is performing its judicial
functions. |
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(1) Court's
alternatives. Upon the commission of an act constituting a direct criminal
contempt, the court may: |
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(a)
summarily find the contemnor in contempt and impose sanctions instanter; |
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(b)
summarily find the contemnor in contempt and impose sanctions within a
reasonable time; or, |
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(c) delay
the finding of contempt and the imposition of sanctions until a later time.
When the finding of contempt is delayed, the contempt proceeding shall be
conducted in the same manner as an indirect criminal contempt as provided in
paragraph (c) of this rule. |
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(2) Conduct
specified/statement in mitigation. Prior to an entry of a finding of contempt,
the court shall inform the contemnor of the specific conduct forming the basis
of the finding. Prior to the imposition of sanctions, the court shall permit
the contemnor an opportunity to present a statement in mitigation. |
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(3)
Sanctions. Upon a finding of direct criminal contempt, the court may impose a
fine not to exceed $500.00, incarceration in a penal institution other than the
penitentiary for a term not to exceed six months., or both; unless the contemnor
is afforded the right to trial by jury, in which case, if the jury finds the
respondent guilty of contempt, the court is not limited in the fine or
incarceration it may impose. The court, in the exercise of its discretion, may
impose such other sanctions as it deems appropriate. |
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(4) Written
order required. Upon imposition of sanctions, the court shall enter a written
judgment order setting for the factual basis of the finding and specifying the
sanctions imposed. |
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(5) When
referral to another judge required. Where a controversy between the judge and
the contemnor is integrated with the alleged contumacious conduct and embroils
the judge to the degree that the judge's objectivity can reasonably be
questioned, referral to another judge on both issues of contempt and the issue
of an appropriate sanction is required. In this event, the judge before whom
the alleged contempt transpired shall specify in writing the nature of the
alleged acts of contempt, shall direct that a record of the proceedings
surrounding the said acts be prepared, and shall transfer the matter to the
appropriate assignment judge for reassignment. The judge hearing the
proceedings after the reassignment shall base his findings and adjudication of
the contempt charge solely on the transferred written charge and the
record. |
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(6) Appeal.
An appeal from a judgment of direct criminal contempt may be taken as in
criminal cases. Upon the filing of a notice of appeal, the court may fix bond
and may stay the execution of any sanction imposed pending the disposition of
the appeal. |
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(c) Indirect
criminal contempt defined. A contumacious act constitutes an indirect criminal
contempt when it occurs outside the presence of the court or in an area that is
not an internal or constituent part of the court, or the elements of the offense
are otherwise not within the personal knowledge of the judge. A contumacious
act committed in the presence of the court, but not summarily treated as a
direct criminal contempt as provided in paragraph (b), may be prosecuted as an
indirect criminal contempt. |
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(1) Petition
for adjudication. An indirect criminal contempt proceeding shall be initiated
by the filing of a petition for adjudication of indirect criminal contempt. The
petition shall be verified and set forth with particularly the nature of the
alleged contemptuous conduct. The charge may be prosecuted by the State's
Attorney, or if he declines, by an attorney appointed by the court. |
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(2) Notice of
hearing. If the court finds that the petition sets forth allegations which
support the charge, it shall set the matter for hearing and order notice be
given to respondent. |
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(3)
Explanation of respondent's rights. Upon the first appearance of the
respondent, the court shall inform the respondent of his right to: |
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(a) notice of
the charge and of the time and place of the hearing thereon; |
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(b) an
evidentiary hearing, including the right to subpoena witnesses, confront the
witnesses against him, and make a response to the charge; |
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(c) counsel
and, if indigent, to the appointment thereof; |
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(d) freedom
from self-incrimination; |
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(e) the
presumption of innocence; |
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(f) be proven
guilty only by proof of guilt beyond a reasonable doubt; and |
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(g) a trial
by jury if the court, prior to the commencement of the hearing, declares that a
sentence of incarceration or more than six months, a fine of more that $500.00,
or both, may be imposed as a sanction upon a finding of guilty. |
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(4) When
referral to another judge required. Referral of the petition to another judge
for the hearing on the issues of contempt and the imposition of sanctions is
required where a controversy between the judge and the alleged contemnor is
integrated with the alleged contumacious conduct and embroils the judge to the
degree that the judge's objectivity may be reasonably questioned. |
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(5)
Statement in mitigation. Upon an adjudication of contempt, the judge shall
afford the contemnor the opportunity to make a statement in mitigation prior to
the imposition of any sanction. |
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(6)
Sanctions. The court in the exercise of its discretion, may impose sanctions
as it deems necessary. |
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(7) Written
order required. Upon an adjudication of contempt, the court shall enter a
written judgment order setting forth the factual basis for the finding and
specifying the sanctions imposed. |
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(8) Appeal.
An appeal from a judgment of indirect criminal contempt may be taken as in the
case of direct contempt as specified in paragraph (b) (6) of this
rule. |
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You will note a
pattern in each of these smaller sections that follow and identify issues
particular to this case. First the local rule is included, then the state law,
followed by the relevant references to the State and U. S. constitutions. Then
a jab at the prosecutor to admit very obvious facts. These facts are requested
to be admitted because both the judge and the prosecutor know them to be true
and this is a way to emphasize the factual strength of our case. |
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Establishing
patterns of writing about issues in a document is an easy method of
organization. |
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In writing a
comprehensive motion such as this one, it works well to establish at least a
mental outline of the motion before you start. |
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In this case,
because of our extensive experience with contempt issues, we were able to assign
tasks for work within hours after beginning the case. Even with our familiarity
with contempt, we spent over 40 hours preparing this motion. Form book motions
get form book justice. |
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A number of
lawyers, paralegals and law students over a wide geographic area participated in
researching and writing this motion. Their time is included in the estimated 40
hours of time spent preparing this motion. With an outline, it was easy to
assign tasks, such as the task of factual investigation and consolidation of
information, the task of local rule research, the task of state law research and
the task of federal constitutional research. It was only after the research and
writing on each of these segments was complete that the present form of the
motion was devised. |
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A nearly final
draft was circulated to each of the lawyers, paralegals and law students after
the various segments were written. |
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There are numerous
ways to electronically exchange information with other people working with you
on a case. |
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Fax This is a
very easy way to exchange information, but most people do not have the equipment
to convert the fax into a document without retyping it. There are numerous
Optical Character Reader (OCR) programs that can perform this task, however,
this is often a troublesome process. |
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Expedited Delivery
of Disk Again this is easy and while somewhat expensive is a method of
sending information to someone. You just put the information on a floppy disk
and the recipient can take the disk, convert it to an usable format and proceed.
The disadvantage of this method is the time delay. |
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Electronic
transmission. Using the computer's modem there are many ways you can send the
information. The document can be posted to an Internet site and the recipient
can get the document this way. One of the cheapest and simplest ways for small
offices to accomplish this is to establish an account at
http://www.mydocsonline.com
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Then, without any
other program other than an Internet Browser, you can post the file on the
Internet for pickup by someone using your password. |
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Essentially, this
same task may be accomplished if you have a web site and have established a
method to exchange documents from an extranet. |
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The file can be
attached to an e-mail, but this is dangerous because it is an easy way to
transmit a virus. |
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It is important
that you develop a way to reduce document input time. We waste valuable
resources retyping document after document. Lawyers must learn to be efficient
with documents, and persons who have historically performed this task must be
freed from the keyboards to perform more of the “people” functions that lawyers
often neglect. |
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With some motions
we even provide the judge and prosecutor a draft of the motion before we file
it. See the letter to the judge and prosecutor in State of Texas v. Douglas
Palmer, “Misconduct Motion.” |
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2.1.1
The Indirect, Direct and Summary Contempt Issue |
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2.2.1.1 Rule of Practice 13.01 |
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Under Rule of
Practice 13.01(b), contempt can be "direct" only if, "no
evidentiary hearing is necessary to determine the facts . . ." Further,
under subsection (b)(1)(c), if upon the commission of the purportedly
contumacious act, the court "delay(s) the finding of contempt and the
imposition of sanctions until a later time," then, "the contempt
proceeding shall be conducted in the same manner as an indirect contempt. .
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2.2.1.2 Illinois Law |
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Direct
criminal contempt occurs, "in the very presence of the judge" and
"no matter resting upon opinions, conclusions, presumptions or inferences
should be considered." On the other hand, "[W]here the judge does not
have full personal knowledge of every element of the contempt and its
demonstration depends on the proof of facts, of which the court would have no
judicial notice, the contempt is held to be indirect." People v.
L.A.S., 111 Ill. 2d 539, 490 N.E.2d 1271, 1273 (1986) (emphasis in the
original) (cite omitted). See also, Pryweller v. Pryweller, 218
Ill.App.3d 619, 579 N.E.2d 432, 439 (1st Dist. 1991); People v. City of East
St. Louis, 206 Ill.App. 3d 626, 564 N.E.2d 1372, 1379-80 (5th Dist. 1990).
Indirect contempt cannot be found and punished summarily. L.A.S., 490
N.E.2d at 1273. Where "[t]he requisite element of [the contemnor's]
willfulness must be established by facts beyond the court's knowledge" the
contempt is indirect, and cannot be found and punished summarily.
Id. at 1274. |
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It is
"evident" that contempt is indirect where "facts had to be
determined by the taking of testimony." In re Marriage of Wilde,
141 Ill.App.3d 464, 490 N.E.2d 95, 100 (2d Dist. 1986). Thus, for example, even
where the court personally believed a witness' testimony to be false, direct
contempt could be found only if "[f]alsity of the testimony [appeared] from
the [contemnor's] admissions in open court and from no other source. A
court may not summarily punish a witness for contempt solely on the basis of the
court's opinion that the witness is committing perjury." People v.
LaRosa, 198 Ill.App.3d 862, 556 N.E.2d 611, 613 (1st Dist. 1990) (emphasis
added). |
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2.2.1.3 The U. S. Constitution |
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Summary
adjudications of contempt are used to maintain order in the courtroom "in
the face of an actual obstruction of justice," where summary
disposition is needed to ". . . preserve order and enable the court to
proceed with its business." United Mine Workers, 114 S.Ct. at 2560
(emphasis added). "If a court delays punishing a direct contempt until the
completion of trial, for example, due process requires that the contemnor's
rights to notice and a hearing be respected." Id. "Summary
adjudication of indirect contempts is prohibited . . ."
Id. |
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2.2.1.4
The Prosecution Should Admit or Deny the Following |
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2.2.1.4.1
Judge [Circuit Judge] delayed finding [CLIENT'S COUNSEL] in contempt from June
2, 1994, when the alleged act occurred, until June 9, 1994. Thus, the summary
finding of contempt was improper. |
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2.2.1.4.2
Judge [Circuit Judge] conducted an inquisition into this matter, and, ex
parte, and without notice to [CLIENT'S COUNSEL], received the testimony
of the court reporter, ___________, on June 3, 1994. [The court reporter]'s
testimony was used as a basis for and incorporated into Judge [Circuit Judge]'s
finding of contempt. As the taking of testimony was used in the court's finding
of contempt, the summary finding of contempt was improper. |
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2.2.1.4.3.
Judge [Circuit Judge]'s opinion of the truth or falsity of [CLIENT'S COUNSEL]'s
statements was employed in his finding of contempt. Thus, the summary finding
of contempt was improper. |
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2.2.2 The
Absence of Notice Issue |
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2.2.2.1
Rule of Practice 13.00 |
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Where the
alleged contempt is indirect, or where the court "delays the finding of
contempt and the imposition of sanctions," Rule 13.01(b)(1)(c), notice is
required. Under Rule 13.01(c), the prosecution must file a sworn
petition for adjudication which "set[s] forth with particularity the nature
of the alleged contemptuous conduct." 13.01(c)(1). The court must
"order notice be given to the respondent." 13.01(c)(2). At the first
court appearance, the court must inform the alleged contemnor of all the rights
to which he is entitled. 13.01(c)(3). No matter what type of criminal contempt
is involved, the alleged contemnor is entitled to notice of the specific conduct
involved and an opportunity to be heard in mitigation. 13.01(b)(2). |
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2.2.2.2
Illinois Law
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In indirect
contempt, "the alleged contemnor is entitled to due process safeguards,
including notice, opportunity to answer, and a hearing. People v.
L.A.S., 490 N.E.2d at 1273 (emphasis added). "[T]he alleged contemnor
must be informed of the charges against him in writing . . ."
LaRosa, 556 N.E.2d at 613 (emphasis added) |
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2.2.2.3
The U. S. Constitution
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In indirect
contempt, and where the court delays punishing a direct contempt, notice is
required. United Mine Workers, 114 S.Ct. at 2560. |
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Of course,
there is no interpretation of local, state or constitutional law that would
allow for the court to actually conduct an evidentiary hearing to receive
evidence on which to base a finding of contempt (such as the hearing where the
testimony of Court Reporter ________ was received) without any notice to the
alleged contemnor. |
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2.2.2.4
The Prosecution Should Admit or Deny |
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2.2.2.4.1 At no time prior to June 9, 1994, at the instant Judge [Circuit
Judge] began dictating his order finding [CLIENT'S COUNSEL] in contempt, did the
court or the prosecution or anyone acting for them give [CLIENT'S COUNSEL]
notice that there was any problem with his acts or performance at the June 2,
1994 hearing on the motion to withdraw [CLIENT]'s guilty plea or that his
conduct was in any manner considered to be in contempt of the court. |
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2.2.2.4.2
Neither the court nor the prosecution nor anyone acting for them gave [CLIENT'S
COUNSEL] notice of the ex parte evidentiary hearing held on June
3, 1994, where Judge [Circuit Judge] received the testimony of Court Reporter
__________. |
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2.2.2.4.3
Neither the court nor the prosecution nor anyone acting for them gave [CLIENT'S
COUNSEL] or [CLIENT] notice that [CLIENT'S COUNSEL]'s representation of [CLIENT]
would be terminated as punishment for [CLIENT'S COUNSEL]'s alleged contempt.
Thus [CLIENT'S COUNSEL]'s contract rights and his right to practice his
profession and [CLIENT]'s right to counsel of his choice were all terminated
without notice or due process of law. |
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2.2.3
The Hearing Issue |
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2.2.3.1 Rule of Practice 13.01 |
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In indirect
contempt or where the court delays the finding of contempt, the alleged
contemnor is entitled to an evidentiary hearing which includes the rights: to
subpoena witnesses; to confront the witnesses against him; to respond to the
charge; to be represented by counsel; to the presumption of innocence; to be
proven guilty only by proof of guilt beyond a reasonable doubt. Rule
13.01(c)(3). |
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2.2.3.1 Illinois Law |
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Where the
alleged contempt is indirect, the alleged contemnor is "entitled to a
formal hearing on the contempt charges and to all appropriate constitutional
rights, including notice, reasonable opportunity to defend, assistance of
counsel, a reasonable doubt standard of proof, and the privilege against
self-incrimination." Wilde, 490 N.E.2d at 100. "[T]he law
requires that the alleged contemnor be granted all due process rights so that he
is given a reasonable opportunity to defend against the charge." City
of East St. Louis, 564 N.E.2d at 1379; People v. L.A.S., 490 N.E.2d
at 1273 (same). |
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2.2.3.3 The U. S. Constitution |
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"Criminal contempt is a crime in the ordinary sense [cite omitted] and
criminal penalties may not be imposed on someone who has not been afforded the
protections that the Constitution requires of such criminal proceedings."
United Mine Workers, 114 S.Ct. at 2556. These protections include the
rights to notice of charges, summary process, to present a defense, and to the
proof of guilt beyond a reasonable doubt standard. Id. at
2557. |
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2.2.4
The Issue of a Jury Trial |
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2.2.4.1 Rule of Practice |
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Rule of
Practice 13.01(c)(3)(g) provides for a jury trial where a fine of more than
$500.00 may be imposed. As punishment for his alleged contempt, [CLIENT'S
COUNSEL] was prohibited from representing his retained client, [CLIENT]. This
punishment exceeds the monetary value of $500.00. |
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2.2.4.2 The U. S. Constitution |
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It is a
misnomer to designate a criminal contempt proceeding a "hearing."
Except in the rarely authorized summary proceedings, criminal contempt cannot
be found absent the protections that the Constitution requires in criminal
proceedings. Thus, a criminal contempt proceeding is a criminal trial. When
the alleged contempt can be punished by "serious criminal sanctions,"
a jury trial is required. United Mine Workers, 114 S.Ct. at 2563. As
contempt "often strikes at the most vulnerable and human qualities of a
judge's temperament . . ." and "its fusion of legislative, executive
and judicial powers summons forth the prospect of the most tyrannical
licentiousness," "[a]ccordingly, in criminal contempt cases an even
more compelling argument can be made than in ordinary criminal cases for
providing a right to jury trial as a protection against the arbitrary exercise
of official power." United Mine Workers, 114 S.Ct. at 2559
(internal citations, quotation marks, ellipses, and brackets
omitted). |
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The Supreme
Court has not defined a "serious criminal sanction" which triggers the
constitutional right to a jury trial when it involves a punishment for contempt
other than incarceration. United Mine Workers, 114 S.Ct. at 2562, n.5.
However, termination of an attorney's right to represent a client and
termination of the client's right to retained counsel of choice should certainly
qualify as a "serious criminal sanction.” |
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2.2.4.3 The Prosecution Should Admit or
Deny. |
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2.2.4.3.1 [CLIENT'S COUNSEL] was not afforded any of the
constitutional due process protections before Judge [Circuit Judge] found him in
contempt. |
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2.2.4.3.2 [CLIENT'S COUNSEL] was not afforded any of the rights
set out in Rule of Practice 13.01(c)(3) before Judge [Circuit Judge] found him
in contempt. |
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2.2.4.3.3 [CLIENT'S COUNSEL] was not afforded any of the rights
set out in Rule of Practice 13.01(b)(2) before Judge [Circuit Judge] found him
in contempt. |
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2.2.4.3.4 [CLIENT'S COUNSEL] was not afforded the opportunity to
confront or cross examine Court Reporter _______ at the ex parte
evidentiary hearing on June 3, 1994, where Judge [Circuit Judge] received her
testimony nor was [CLIENT'S COUNSEL] provided the opportunity to present any
evidence on his behalf before Judge [Circuit Judge] found him in
contempt. |
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2.2.4.3.5
Terminating [CLIENT'S COUNSEL]'s representation of [CLIENT] as punishment for
contempt exceeded a monetary value of $500.00 and thus, entitled [CLIENT'S
COUNSEL] to a jury trial on the contempt charge. |
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2.2.4.3.6
Terminating [CLIENT'S COUNSEL]'s representation of [CLIENT] as punishment for
contempt constituted a serious criminal sanction, and thus, entitled [CLIENT'S
COUNSEL] to a jury trial on the contempt charge. |
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2.2.6
The Selective Prosecution, Yick Wo v. Hopkins, Issue |
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A careful
examination of the facts of [CLIENT'S COUNSEL]'s contempt proceedings could
suggest that there was selective use of the court's power of contempt. A
constitutional basis for this type of analysis has been known since Yick Wo
v. Hopkins, 118 U.S. 356 (1886). |
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2.2.7 A
Constitutional, Statutory and Commonsensical Analysis of the Alleged
Contemptuous Act. |
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Before we
toil needlessly on already developed and established constitutional procedural
concepts, the ultimate and initial barrier must be established. The State must
explain under what theory the conviction of [CLIENT'S COUNSEL] will stand. The
test is intent to commit the act. The standard of proof required is beyond a
reasonable doubt. Rule of Practice 13.01(3)(f). |
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If the State
can overcome this initial barrier, it must then address all of the above
issues. |
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2.2.8 The
Independent Adjudicator and Judicial Misconduct Issue |
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The
possibility of judicial misconduct requires a careful examination by both the
prosecution and the counsel for [CLIENT'S COUNSEL] of Judge [Circuit Judge]'s
actions. If the prosecution feels that judicial misconduct occurred, it should
so state in a detailed analysis. Then the prosecution should also state its
position as to whether the misconduct annuls the contempt conviction, prevents
further participation by Judge [Circuit Judge] as an adjudicator, or some other
consequence. If the prosecution feels that no judicial misconduct occurred, it
should state this position in detail. If so, the prosecution must clearly
indicate whether it feels Judge [Circuit Judge] should remain the judge in this
matter. |
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2.2.8.1
The Ex Parte Hearing Reason for Another Judge |
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The ABA Model
Code of Judicial Conduct, as codified in the Illinois Supreme Court Rules, will
be at issue in this case. S.Ct. Rule 63(A)(4) states as follows. |
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A judge shall
accord to every person who has a legal interest in a proceeding, or that
person's lawyer, the right to be heard according to law. A judge shall not
initiate, permit, or consider ex parte communications made to the
judge outside the presence of the parties concerning a pending or impending
proceeding except [in enumerated exceptions which do not apply
here]. |
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The Committee
Commentary to Rule 63 makes clear that, "[a] judge must not
independently investigate facts in a case and must consider only the evidence
presented." (emphasis added). |
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On June 3,
1994, Judge [Circuit Judge] held an ex parte hearing without
giving any notice to [CLIENT'S COUNSEL]. If the People's position is that no
ex parte hearing occurred, or that notice was given to [CLIENT'S
COUNSEL], or that an ex parte hearing does not violate any
statute, law, or code of judicial conduct, then it should so state in
detail. |
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Further the
prosecution should disclose: whether [Assistant State's Attorney], or any other
representative of the State Attorney's office was given notice, formally or
informally, of the June 3, 1994 hearing; whether [Assistant State's Attorney],
or any other representative of the State Attorney's office was present at the
June 3, 1994 hearing; whether [Assistant State's Attorney], or any other
representative of the State Attorney's office was given advance notice, formally
or informally, that [CLIENT'S COUNSEL] would be found in contempt; whether there
were any ex parte communications, formal or informal, between
Judge [Circuit Judge] and [Assistant State's Attorney], or any other
representative of the State Attorney's office concerning [CLIENT]'s case or
[CLIENT'S COUNSEL]'s contempt. |
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2.2.8.2 The
Bias or Prejudice Reason for Another Judge |
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A judge
should disqualify himself in a proceeding where his impartiality can reasonably
be questioned. S.Ct. R 63C(1). Doubt as to the impartiality of a judge can
arise where the judge has personal bias or prejudice concerning a party or his
lawyer, or if the judge has personal knowledge of disputed evidentiary facts
concerning the proceeding, like an ex parte hearing. S.Ct. R.
63C(1)(a). By partaking in an activity, where the judge himself may be called as
a witness, the judge is required to remove himself from the case. A judge who
violates these rules may be subject to discipline by the Illinois Courts
Commission. S.Ct. R. 71. |
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2.2.8.3 The Rule of Practice 13.01(c)(4) Reason for Another
Judge |
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(4) When
referral to another judge required. Referral of the petition to another judge
for the hearing on the issues of contempt and the imposition of sanctions is
required where a controversy between the judge and the alleged contemnor is
integrated with the alleged contumacious conduct and embroils the judge to the
degree that the judge's objectivity may be reasonably questioned. |
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In his July
15, 1994 order, Judge [Circuit Judge] said concerning his contempt finding
against [CLIENT'S COUNSEL]: |
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The message
should be clear that Rambo style representation, including misrepresentations,
and a confrontational disparaging attitude is counterproductive. It harms not
only the system but the client. It strains judicial tolerance past its limits.
No human being should be forced to listen to disparagements based on lies.
Practitioners must know that there are consequences when they choose this
deplorable style of representation. The contempt order stands . . If the
prosecution feels that Judge [Circuit Judge] should not remain as judge for the
contempt proceedings, they should detail their ideas and take action by moving
for the disqualification of Judge [Circuit Judge]. |
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In previously
seeking to resolve this matter informally, [CLIENT'S COUNSEL], through friends
who are attorneys, informally, in camera proffered a statement to
the court. This statement was not filed and was never presented at any formal
proceeding. This statement was mentioned in Judge [Circuit Judge]'s July 15,
1994 order. Neither [CLIENT'S COUNSEL] nor anyone acting on his behalf publicly
released this statement or gave it to the press. Nonetheless, portions of this
statement were quoted verbatim in an article in the [Local
Newspaper]. |
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The State
should reveal all knowledge of any type concerning the release of this statement
to the press. |
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2.2.9 The
Prosecutorial Misconduct Issue A prosecutor
represents not an ordinary party, but a sovereign whose obligations to govern
impartially are as compelling as its obligation to govern at all; therefore, the
prosecutor's interest in a criminal prosecution is not to win a case, but to do
justice. Berger v. United States, 295 U.S. 78, 88 (1935). The
prosecutor cannot divagate from his or her duty to do justice simply because the
prosecutor has ideological hostility toward the accused, hostility toward the
advocate for the accused, has simple vindictiveness or even has the natural
tendency to cover up mistakes or to protect another person from being exposed
for their mistakes.
In any case, every
prosecutor has a duty to uphold the words and values of our Constitution and
state laws and Rules of Practice. The prosecutor can be responsible for the
unconstitutional acts of another if the prosecution knew of the acts and voiced
no opinion, nor attempted to correct the unconstitutional acts. An ex
parte hearing clearly violates Illinois Supreme Court Rule 63A(4),
the Rules of Practice in this Court and numerous constitutional rights. It is
professional misconduct for a prosecutor to have known, be present at, or
willfully leave uncorrected, an ex parte
hearing.
Additionally, the
prosecutor must seek to enforce all Constitutional, State, and Rules of Practice
regarding sentencing, either of [CLIENT'S COUNSEL] or [CLIENT].
The prosecutor should not
make the severity of sentences the index of his or her effectiveness. To the
extent that the prosecutor becomes involved in the sentencing process, he or she
should seek to assure that a fair and informed judgment is made on the sentence
and avoid unfair sentence disparities.
ABA Standards Relating to
the Administration of Criminal Justice, The Prosecution Function, ("Standard")
3-6.1(a).
Specifically, the
prosecutor should have assisted and should continue to assist the court in
sentencing by providing complete and accurate information for use in the presentence report. Standard 3-6.2(a). If any inaccurateness or incompleteness
comes to the prosecutor's attention, the prosecutor should attempt to provide
the court and the defense with the complete and correct information. Standard
3-6.2(a). Prior to the sentencing of both [CLIENT] and [CLIENT'S COUNSEL], the
prosecutor should have disclosed to the court and the defense "all
unprivileged mitigating information known to the prosecutor." Standard
3-6.2(b) |
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