CBA Record

Few areas of the law create more confusion and misunderstanding than contempt of court. Here’s a discussion of the six types of contempt, and some of the applicable rules for each.

T HERE ARE SIX KINDS OF COMMON LAWCONTEMPT of court: direct criminal contempt, indirect criminal con- tempt, indirect civil contempt, direct civil contempt, a com- bination of two or more of the foregoing, and friendly contempt. An excellent description of the first five is found in the case of In re Marriage of Betts , 200 Ill.App.3d 26, 43-60 (4th Dist. 1990). The First District of the Appellate Court has described the Fourth District’s opinion in Betts as reading “more like a treatise than an opinion,” and has urged confused attorneys to review Betts . People ex rel City of Chicago v. Le Mirage, Inc. , 2011 IL App (1st) 093547, ¶ 48. The author urges likewise. Direct criminal contempt In direct criminal contempt, a wrongful act is committed directly in the presence of the judge (e.g., in the courtroom while court is in session), or in the constructive presence of the judge (e.g., in the courtroom while the judge is temporarily off the bench). The purpose of the criminal contempt order is punishment, retribu- tion, or deterrence of socially unacceptable behavior. Example: During a trial, a litigant engages in a disrespectful outburst. This is the kind of contempt that television courtroom dramas love. Fortunately, it occurs far less frequently than dramatists would have the public believe. In a direct criminal contempt proceeding, the contemnor is punished retrospectively for a past act that he cannot now undo. The accused in a serious criminal contempt proceeding has most of the same constitutional rights as does a defendant in a criminal case: confrontation, no self-incrimination, appointed counsel if necessary, presumption of innocence, proof beyond a reasonable doubt, etc. People v. Covington , 395 Ill.App.3d 996, 1007 (4th Dist. 2009). But in accordance with U.S. Supreme Court precedent, there is no right to trial by jury for direct criminal contempt if the punishment does not exceed six months incarceration. Bloom v. Illinois , 391 U.S. 194, 209-10 (1968). A criminal contempt proceeding is prosecuted by the State’s Attorney and is commenced by filing a petition for adjudication of criminal contempt. City of Quincy v. Weinberg , 363 Ill.App.3d 654, 663 (4th Dist. 2006). If found guilty, the contemnor cannot purge himself of the contempt and avoid the jail sentence or fine by compliance, as there is nothing with which he can comply other than go to jail and pay the fine. If the sentence is jail time and not just a fine, it should be a determinate sentence, i.e., for a

specific length of time. Payment by the contemnor of a monetary fine is made to the local governmental entity, not to the opposing litigant. Betts , 200 Ill.App.3d at 44-46, 47-48, 49-52, 58-61. Indirect criminal contempt In an indirect criminal contempt proceeding, the wrongful act is committed outside the presence or constructive presence of a judge. Example: A person knowingly files a false document in the clerk’s office or steals a court file from the clerk’s office. Other than the place where the act is done, most of the concepts are the same as in a direct criminal contempt. Betts , 200 Ill.App.3d at 48, 58-61. Indirect civil contempt In an indirect civil contempt proceeding, the alleged contemnor was previously ordered by the court to do something, but she has not obeyed the order, although she has the capability of obeying. To coerce her into doing what she has been ordered to do, she is jailed or fined until she complies with the order. Thus, the con- temnor has the opportunity to purge herself of the contempt order by complying. The contemnor in any civil contempt proceeding is often said to have the keys to her own jail cell: If she complies with the court order, the penalties cease and she goes free; but if not, she remains incarcerated. Covington , 395 Ill.App.3d at 1006. The accused in a civil contempt proceeding has none of the rights of a defendant in a criminal case, and only two minimal due process rights: notice and an opportunity to be heard. Covington , 395 Ill.App.3d at 1006. Although the name is civil contempt, the ordinary rules of civil procedure are not fully applicable. To commence the civil contempt proceeding, a rule to show cause must be entered or other form of notice of the contempt proceeding must be generated. The rule or notice must then be personally served on the alleged contemnor. People v. Sherwin, 353 Ill. 525, 528 (1933); Bender v. Frost, 317 Ill.App. 441, 447 (1st Dist. 1943); Bonner v. People , 40 Ill.App 628, 631 (1st Dist. 1890); Whelan v. Whelan , 161 Ill.App. 293, 294 (1st Dist. 1911). The instrument served on the alleged contemnor must state the time and the place of the hearing, and must adequately describe the facts on which the alleged contempt is based. In re Parentage of Melton , 321 Ill.App.3d 823, 829 (1st Dist. 2001); Cleeland v. Gilbert , 334 Ill.App.3d 297, 302 (3d Dist. 2002); Covington , 395 Ill.App.2d at 1007; Betts , 200 Ill.App.3d at 52. As to the place of the hearing, the notice must state the specific

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