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Armentrout v. Dondanville

OPINION FILED JANUARY 19, 1979.

GENE ARMENTROUT, PLAINTIFF-APPELLEE,

v.

GERRY L. DONDANVILLE, KANE COUNTY STATE'S ATTORNEY, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Kane County; the Hon. ERNEST W. AKEMANN, Judge, presiding.

MR. JUSTICE WOODWARD DELIVERED THE OPINION OF THE COURT:

Defendant, Gerry L. Dondanville, appeals from two trial court orders, one finding him in contempt of court and imposing a fine of $1000, and the second, an order denying his motion for the appointment of a special assistant state's attorney to represent him in this appeal. To resolve the issues raised in these appeals, a detailed recitation of the facts and history of the proceeding in the trial court is required and is set out below.

Plaintiff, Gene Armentrout, and defendant were opposing candidates for the Republican nomination for the office of Kane County State's Attorney; at the time suit was filed, the defendant was the incumbent state's attorney. On March 9, 1976, plaintiff filed a complaint against defendant alleging that defendant was an "interested party" within the meaning of section 6 of "An Act in regard to attorneys general and state's attorneys" (Ill. Rev. Stat. 1975, ch. 14, par. 6) *fn1 and therefore he should be replaced as state's attorney in the investigation of certain matters relating to alleged criminal conduct on the part of plaintiff; the complaint also requested that a special prosecutor be appointed to conduct such investigation. The trial court, finding defendant to be an "interested party" within the meaning of section 6, issued an injunction enjoining defendant and his assistant state's attorneys from presenting any evidence to the Kane County grand jury involving allegations of violations of statutes or ordinances by plaintiff. Further, on March 18, the trial court, in an ex parte order, appointed Robert Casey as special prosecutor to investigate the alleged criminal conduct on plaintiff's part in a matter involving one Richard Montress; the order also required defendant to turn over to the special prosecutor forthwith all information including all documents in his possession regarding the "Montress affair." On April 7, defendant filed an answer to the complaint; subsequently, on April 14, defendant was personally served with a copy of the ex parte order of March 18. Defendant filed a motion alleging that as he was not in default under the complaint, having filed his answer 29 days after service of summons, the court was without jurisdiction to enter its order of March 18; defendant also petitioned for a change of venue. Following continuances by both sides, plaintiff filed an answer to defendant's motion to vacate and objections to defendant's petition for a change of venue.

On May 3, the trial court denied defendant's motion to vacate the order of March 18 and defendant's petition for a change of venue, on the ground that an issue of substance had been previously decided; however, the order further allowed defendant to renew his motion for a change of venue if further litigation regarding this matter arose. On May 10, the defendant filed an affidavit stating that the documents and information requested had been turned over to the special prosecutor pursuant to the order of March 18; the special prosecutor filed his receipt acknowledging delivery of those items. On June 28, the trial court entered a supplemental order changing the designation of special prosecutor to that of special state's attorney and granted the special state's attorney the same powers and authorities in regard to the investigation as would be possessed by the Kane County State's Attorney.

On July 16, the special state's attorney moved to expand his authority to allow him to investigate any and all alleged criminal conduct relating to plaintiff while he was an assistant state's attorney, as opposed to merely matters concerning the "Montress affair." Defendant's first assistant state's attorney appeared before the court to request a continuance. The trial court denied defendant's motion for a continuance and in a written order dated July 21, ordered defendant and all his personnel to turn over to the special state's attorney any and all additional material pertaining or relating to any alleged criminal activity on the part of plaintiff; further, defendant and his staff were ordered to return to the circuit clerk's office all court files relating to such charges involving plaintiff. Defendant's first assistant filed an affidavit stating that all pertinent files had been returned to the circuit clerk's office and that a listing of those files had been given to the special state's attorney.

On July 30, both the special state's attorney and defendant appeared in court on the special state's attorney's motion to require defendant to report under oath his compliance with the July 21 order; defendant at that time requested a hearing regarding the order which expanded the authority given to the special state's attorney. The trial court denied both defendant's request for a hearing and the motion of the special state's attorney, the court being of the opinion that the affidavit of defendant's first assistant fully complied with the court's order. At this time defendant disclaimed the affidavit as being without his authority or direction.

The special state's attorney filed a motion asking the court to reconsider its denial of his motion to have defendant state under oath that he had complied with the court order of July 21. In a written order of August 26, the trial court ordered the defendant to report under oath by September 7, as to whether or not he had complied with the July 21 order, and that by September 7, he deliver to the special state's attorney all additional material relating to this matter not previously delivered. At this point, defendant retained private counsel who petitioned for clarification and rehearing on all prior orders of the court regarding disclosures. On September 10, the special state's attorney petitioned for a rule to show cause why defendant should not be held in contempt for willful failure to comply with the order of August 26; the special state's attorney also filed objections to defendant's petition for a rehearing.

On September 15, defendant moved to vacate all disclosure orders previously entered in this case; the court took the matter under advisement and continued the case until September 20 for additional motions and petitions for a rule to show cause. On September 20, the trial court denied defendant's motion to vacate and for rehearing and a hearing on the petition for a rule to show cause was set for September 29.

On September 29, following arguments by counsel, the trial court denied the following motions made by defendant: motion to strike and/or dismiss the petition for rule to show cause; motion for stay of proceedings; motion to seek court's statement of material fact and presentment for leave to appeal under Supreme Court Rules; and a motion to strike the caption. Further, the court granted the special state's attorney's petition for a rule to show cause. Defendant was ordered to appear on October 13 and show cause why he should not be punished for contempt of court for disobeying the orders entered by the court on July 21 and August 26.

On October 13, defendant's attorney filed an affidavit to the effect that defendant was delayed in returning from Florida and requested a continuance. The trial court granted a continuance until October 19 and denied the special state's attorney's request for a body attachment. In the meantime, it appears that on October 8, defendant filed a notice of appeal from the trial court's order denying defendant's motion to vacate the disclosure orders, alleging that the circuit court lacked jurisdiction of the subject matter to enter the order.

On October 19, defendant, in open court, represented that the court's orders had been complied with and that there was nothing further to turn over; thereupon defendant's counsel moved to dismiss the rule to show cause as there had now been compliance with the court's orders. The special state's attorney stated that on the basis of defendant's representation, he was satisfied that the court's orders had now been complied with. However, the trial court took the position that the rule to show cause proceeding was separate and apart from the actual compliance with those orders. The trial court, while noting that defendant's position was that the court did not have the power to enter the order, cited the numerous delays occasioned by defendant and noted that defendant's compliance was not in writing nor under oath as requested. The trial court then several times inquired whether the only reason defendant had not previously complied with the orders was because he regarded them to be without jurisdiction. Defendant's attorney ultimately responded,

"MR. MARINACCIO [defense counsel]: I have had a brief conference with him, Your Honor, and he has indicated that it has been his opinion all along that the Court is incorrect in the manner in which it has handled this case. That the orders the Court entered did lack jurisdiction, the Court did not have the authority to do the things it did and that's the reason he resisted in complying with the orders of Court."

The trial court then stated, "All right. Now, we have a hearing, is that right, we have had a hearing?" Defense counsel questioned whether the proceedings constituted a hearing. The trial court offered each side the opportunity to present any evidence; the special state's attorney stated that he had no evidence to offer under the circumstances, and defense counsel responded that defendant was pursuing his legal rights by the filing of the motions and objections. Neither side wished to present anything further, nor did either side request a continuance for the purpose of gathering further evidence to present. The matter was then continued for the submission of memorandums of law by both sides.

On November 24, the trial court issued a written order holding defendant in contempt of court and imposing a fine of $1000. The order gave a well-detailed history of this litigation in chronological order and set out with great care the reasons for defendant being held in contempt. Defense counsel then requested that a special state's attorney be appointed to represent defendant on appeal. The trial court was of the opinion that the appointment of such a special state's attorney to represent defendant on appeal would place the county in the unusual position of both paying to sustain the trial court's decision and then paying someone else to overturn the judge's decision, and so denied the motion for the ...


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