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11/07/88 In Re Estate of E. Davis Wernick (Samuel Wernick

November 7, 1988

IN RE ESTATE OF E. DAVIS WERNICK (SAMUEL WERNICK,


APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

Petitioner-Appellee, v.

Mitchell C. Macks, Respondent-Appellant)

530 N.E.2d 1127, 176 Ill. App. 3d 153, 125 Ill. Dec. 718 1988.IL.1616

Appeal from the Circuit Court of Cook County; the Hon. Benjamin E. Novoselsky, Judge, presiding.

APPELLATE Judges:

JUSTICE O'CONNOR delivered the opinion of the court. MANNING and QUINLAN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE O'CONNOR

Mitchell Macks appeals from a finding of contempt, issued on a motion for rule to show cause brought by the estate of E. Davis Wernick and the decedent's son, Samuel Wernick (Petitioners). For the reasons below, we affirm.

Mitchell Macks is an attorney, licensed to practice in Illinois. Macks' primary source of income for most of his career has come not from the practice of law, but from real estate investment and banking. In 1979, the petitioners brought citation proceedings in probate court against Macks to discover information concerning Macks' financial dealings with the decedent and to recover the decedent's interest in real estate allegedly converted by Macks. The probate case and citation proceedings were assigned to Cook County Circuit Court Judge Henry A. Budzinski.

On November 16, 1982, while the citation proceedings were pending, Macks engaged in an ex parte communication with Judge Budzinski in the Judge's chambers. On November 18, 1982, during a court proceeding with Macks on the witness stand, Judge Budzinski noted the incident and admonished Macks to not attempt ex parte communications again.

In May 1986 (the exact date is not specified), Macks again entered Judge Budzinski's chambers and engaged in an ex parte communication, concerning the renewal of a letter of credit that stood as Macks' appeal bond in the underlying case. Macks did not inform the petitioners or their attorneys of the contents of the ex parte communication, as required by Cook County Circuit Court Rule 17.2(b). Judge Budzinski informed the attorney for the executor of the Wernick estate that the communication had occurred. At the time, Judge Budzinski retained jurisdiction over certain matters in the underlying case.

On June 2, 1986, the petitioners moved for a rule to show cause why Macks should not be held in contempt. They also moved for a change of venue for the contempt hearing because Judge Budzinski would be called as a witness. A rule to Show Cause was issued against Macks on August 8, 1986, and the hearing on the motion was transferred to Judge Novoselsky. A hearing on an amended motion to show cause was held on February 18, 1987.

Judge Budzinski testified that although the communication had occurred, it had been in no way contumacious. Other evidence established the first ex parte communication and Judge Budzinski's admonishment. Macks did not testify on his own behalf. The trial court ruled that Macks had violated Cook County Circuit Court Rule 17 and found Macks guilty of indirect criminal contempt. After an aggravation and mitigation hearing, Macks was fined $500 and sentenced to 50 hours of community service. Macks appeals.

Courts have inherent power to punish for contempt to maintain their authority and to administer and execute judicial power. (Central Production Credit Association v. Kruse (1987), 156 Ill. App. 3d 526, 531, 509 N.E.2d 136.) The power to punish for contempt rests within the sound discretion of the trial court, and a determination of contempt will not be overturned absent a clear abuse of discretion. (Central Production Credit Association, 156 Ill. App. 3d at 531.) An examination of the record ...


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