APPEAL from the Circuit Court of Cook County; the Hon. E.C.
JOHNSON, Judge, presiding.
MR. JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:
On October 1, 1975, an order was entered in the circuit court of Cook County, Sixth Municipal District, adjudging Assistant State's Attorney Clifford Johnson (Contemnor) to be in direct contempt of court arising out of his refusal to conduct a preliminary hearing after the trial judge had ordered him to so do. Contemnor appeals contending the contempt order cannot be allowed to stand because the position he took was legally correct and that his conduct was one of advocacy only and not calculated to disrupt the court or to call its proceedings in any sort of disrepute.
The pertinent facts are: On July 16, 1975, a complaint for preliminary examination was filed against one Robert Kuelper charging him with possession of burglary tools and theft. The case was set for preliminary examination on July 22, 1975. On that date the defendant sought and was granted a continuance to September 9, 1975. When the case was called on September 9, 1975, contemnor informed the court that in the interim between July 22, 1975, and September 9, 1975, the case had been taken before the grand jury which had returned an indictment charging the defendant with the same offenses as those contained in the complaint before the court. Contemnor argued that a prompt determination of probable cause having been made, the complaint before the court had been superseded by the indictment and that therefore a preliminary examination was neither necessary nor proper.
Counsel for defendant objected. Extended arguments were heard on September 9, 1975, on September 18, 1975, and again on September 25, 1975, during which contemnor moved to dismiss the complaint. The motion was denied. Arguments were again heard on October 1, 1975, at which time an Assistant Attorney General of the State of Illinois also appeared and moved the court for an order of nolle prosequi. The court denied the motion and entered the contempt order from which this appeal is taken.
It is abundantly clear that the sole basis for the contempt order was the alleged refusal of contemnor to proceed with a preliminary examination.
There is nothing in the record before us which suggests that contemnor was in any way disrespectful or abusive in his conduct towards the court. Indeed, the judge expressly acknowledged this in his specific findings.
"The court further finds that the contempt of Clifford Johnson is not a contempt based upon demeanor or lack of respect shown to the court by Clifford Johnson, but is a contempt based upon the attempt of Clifford Johnson to vindicate his position on behalf of the State of Illinois that this court has no authority to grant Robert Kuelper a preliminary hearing."
• 1 We believe the law applicable to the case at bar was clearly and succinctly summarized in People v. Toomin (1974), 18 Ill. App.3d 824, 826, 310 N.E.2d 767, when the court stated:
"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 lessen its authority or dignity, or to bring the administration of law into disrepute. (People v. Miller (1972), 51 Ill.2d 76, 281 N.E.2d 292.) The party seeking to uphold the contempt order bears the burden of showing that the court was warranted in exercising its power. (People v. Tavernier (1943), 384 Ill. 388, 51 N.E.2d 528.) 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. (People v. Loughran (1954), 2 Ill.2d 258, 118 N.E.2d 310.)"
• 2 We agree with contemnor's contention that the position he took was conceptually legally correct. Article I, section 7 of the 1970 Constitution of the State of Illinois states in pertinent part:
"* * * No person shall be held to answer for a crime punishable by death or by imprisonment in the penitentiary unless either the initial charge has been brought by indictment of a grand jury or the person has been given a prompt preliminary hearing to establish probable cause."
Our supreme court has interpreted this provision as guaranteeing a prompt determination of probable cause either by means of a preliminary hearing or by grand jury indictment. (People v. Howell (1975), 60 Ill.2d 117, 324 N.E.2d 403; People v. Hendrix (1973), 54 Ill.2d 165, 295 N.E.2d 724.) In two recent cases this court has specifically held that even where the charge was not initially brought by indictment of a grand jury, when such an indictment was later brought, probable cause had been determined and thus no preliminary hearing was required. Thus in People v. Moore (1975), 28 Ill. App.3d 1085, 329 N.E.2d 893, the defendant was initially charged by an information, but was subsequently indicted by a grand jury for the same charge. At the preliminary hearing the State did not present any evidence of probable cause, maintaining that the indictment fulfilled that requirement. On defendant's motion the trial court dismissed the indictment, and the State appealed. This court reversed and remanded, reasoning that: "Since the sole purpose of a preliminary hearing is to determine probable cause, which has already been determined, a post-indictment preliminary hearing would be an empty formality serving no legitimate purpose." In People v. Arbogast (1976), 41 Ill. App.3d 187, 353 N.E.2d 434, defendant was arraigned pursuant to a criminal complaint, but his preliminary hearing was cancelled when a grand jury indictment for the same charge was returned prior to the hearing date. Defendant was subsequently convicted and appealed, alleging, in part, that the trial court erred in denying him a preliminary hearing. This court found that defendant had waived this argument, but went on to state that "In any event, a defendant is not entitled to a preliminary hearing as a right but to a probable cause determination made either in a preliminary hearing or by a grand jury with reasonable promptness."
It is clear, then, that in the case at bar a preliminary hearing would serve no legitimate purpose since probable cause had already been established by the grand jury. It is difficult to see how a refusal to proceed with a preliminary hearing under these circumstances ...