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12/30/87 In Re Grand Jury Subpoena Duces Tecum No. 001144 (the

December 30, 1987

IN RE GRAND JURY SUBPOENA DUCES TECUM NO. 001144 (THE


APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

People of the State of Illinois, Plaintiff-Appellee, v.

John E. Shumaker et al., Defendants-Appellants and

Contemnors)

517 N.E.2d 1157, 164 Ill. App. 3d 344, 115 Ill. Dec. 471 1987.IL.1959

Appeal from the Circuit Court of Du Page County; the Hon. John J. Bowman, Judge, presiding.

APPELLATE Judges:

JUSTICE INGLIS delivered the opinion of the court. LINDBERG, P.J., and UNVERZAGT, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE INGLIS

Defendants, Shumaker & Associates, Inc., and John E. Shumaker, appeal from an order of the circuit court of Du Page County holding defendants in contempt for failing to produce documents sought by a grand jury subpoena duces tecum. Defendants challenge the act of producing the documents sought by the subpoena as testimonial and a violation of Shumaker's fifth amendment protection against self-incrimination. We affirm.

Defendant John E. Shumaker (Shumaker) is the president and sole stockholder of Shumaker & Associates, Inc. Defendant Shumaker & Associates, Inc. (corporation), is an Illinois corporation, the sole business of which is to service water mains by flushing, chlorinating, and collecting samples for water purity tests. Collected water samples are taken to a laboratory, where the water purity is tested and verified. After the laboratory verifies that the sample contains the proper water purity, the results are sent to the Environmental Protection Agency for issuance of water main connection permits. The corporation performs this service for independent contractors and real estate developers.

Sometime prior to January 13, 1987, Shumaker became the target of a grand jury probe investigating his participation in the falsification of laboratory reports used to secure water main connection permits. The Du Page County State's Attorney obtained a subpoena duces tecum summoning "John E. Shumaker, President" to appear before the grand jury and produce corporate records pertaining to the chlorinating and sanitizing activities of the corporation. Shumaker was served with that subpoena on January 13, 1987.

On January 21, 1987, Shumaker appeared before the grand jury on behalf of the corporation, but did not produce the records requested by the subpoena. In response to questions directed to him regarding his connection to the corporation and corporate records, Shumaker invoked his fifth amendment privilege against self-incrimination. That same day, the corporation filed a motion to quash the subpoena on the ground that it was too broad. The State responded by agreeing to limit the production to certain specified records. At the subsequent hearing, defendants stated that they had no objection to producing some of the documents, but objected to producing others on broadness grounds. Defendants also raised the issue of whether requiring production of the documents would violate Shumaker's fifth amendment protection against self-incrimination. Defendants stated that Shumaker was the target of the grand jury investigation and had previously appeared and invoked his fifth amendment privilege. Defendants argued that Shumaker's act of producing the corporate documents which were the subject matter of the offense for which he was under investigation would incriminate him personally, since by doing so he would be admitting their existence, authentication, and his possession of them. The court set a briefing schedule on both the broadness and fifth amendment issues and continued the case for hearing on the motion to quash.

On February 26, 1987, the parties again appeared for hearing. At this hearing, defendants expressly abandoned their attack of the subpoena on broadness grounds and relied instead on their fifth amendment challenge. The court found that Shumaker's act of producing the records would not violate his fifth amendment rights since the records were owned by the corporation. The court then ordered Shumaker to deliver the requested records to the grand jury. Shumaker indicated his refusal to comply, and the court held him in contempt. The State then asked the court to require the corporation to appoint a custodian for the purpose of producing the requested records. The corporation, through Shumaker, refused to appoint a custodian on the basis that to do so would be tantamount to committing the same testimonial act. The court then held the corporation in contempt.

Following the hearing, the court entered its order denying defendants' motion to quash the subpoena duces tecum and finding both defendants in contempt. Shumaker, held in contempt for failing to produce the corporation's records, was fined $100 per day until production. The corporation, held in contempt for refusing to appoint a custodian to produce the ...


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