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12/21/88 the People of the State of v. David Shukovsky

December 21, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE

v.

DAVID SHUKOVSKY, APPELLANT. -- THE PEOPLE OF THE STATE OF ILLINOIS,

v.

DAVID SHUKOVSKY (MATTHEW CHANCEY, APPELLANT)

ON DECEMBER 18, 1985, THE DEFENDANT MOVED FOR DISCHARGE UNDER THE SPEEDY-TRIAL GUARANTEES IN SECTION 103-5(B) OF THE CODE OF CRIMINAL PROCEDURE (ILL. RE

v.

STAT. 1985, CH. 38, PAR. 103-5(B)). THAT SECTION PROVIDES:



SUPREME COURT OF ILLINOIS

538 N.E.2d 444, 128 Ill. 2d 210, 131 Ill. Dec. 69

December 21, 1988; Modified on denial of rehearing May 26, 1989.

Appeal from the Appellate Court for the Second District; heard in that court on appeal from the Circuit Court of Lake County, the Hon. John Goshgarian, Judge, presiding.

Rehearing denied May 26, 1989 1988.IL.1836

APPELLATE Judges:

JUSTICE WARD delivered the opinion of the court. JUSTICE STAMOS took no part in the consideration or decision of this case. JUSTICE RYAN, Concurring in part and Dissenting in part. JUSTICE MILLER joins in this partial concurrence and partial Dissent.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WARD

On June 5, 1985, the defendant, David Shukovky, was charged by information in the circuit court of Lake County with battery (Ill. Rev. Stat. 1985, ch. 38, par. 12-3(a)(2)). Prior to trial, he had a subpoena duces tecum served on Laura Notson, a social worker with the Lake County State's Attorney's office, directing her to produce all materials relating to certain conversations she had with the complainant, the defendant's former wife, Andrea Shukovky, or with members of the Lake County State's Attorney's office or any police agency. The circuit court ordered Assistant State's Attorney Matthew Chancey, Notson's supervisor, to comply with the subpoena and, upon his refusal, found him in contempt of court. While an appeal from that judgment was pending, the circuit court granted the defendant's motion for discharge on the ground that his right to a speedy trial under section 103-5(b) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1985, ch. 38, par. 103-5(b)) had been violated. The State appealed, and the appellate court, after consolidating the appeals, affirmed the contempt judgment but reversed the judgment discharging the defendant and remanded for further proceedings. (151 Ill. App. 3d 966.) We allowed Chancey's and the defendant's petitions for leave to appeal under our Rule 315(a). 107 Ill. 2d R. 315(a).

The subpoena duces tecum directed Laura Notson to produce:

"All notes, memorands [ sic ] and file materials of your conversations with Andrea Shukovky relative to the above-captioned matter, as well as any notes, memoranda or file materials taken in connection with Discussions with any member of the Lake County State's Attorney's Office or any police agency involving the above-captioned matter and Andrea Shukovky's complaints against David Shukovky relative thereto."

Assistant State's Attorney Matthew Chancey moved to quash the subpoena on the grounds that it was overbroad, that the material was not discoverable or was not subject to the subpoena because of the work-product privilege or that the defendant could not obtain a subpoena duces tecum without first attempting to obtain the materials through discovery. Following a hearing, the court denied the motion and ordered that the materials be produced for the court by July 3 for an in camera inspection.

On that date, a hearing was held on the State's motion to reconsider the denial of its motion to quash. Chancey stated that he was Notson's supervisor and that he had the materials in his possession. He also said that because the court indicated that it would permit the defendant access to the materials called for by the subpoena if the court found that though not discoverable, they were admissible, he would not produce the materials. The court then held Chancey in contempt and fined him $10. On August 2, 1985, Chancey filed a notice of appeal, and the State's Attorneys Appellate Prosecutor's office filed a brief on his behalf.

On July 8, 1985, the defendant moved for a trial continuance on the ground that without the materials requested in the subpoena he would not be able to present an effective defense. The defendant also moved for the appointment of a special prosecutor in the contempt proceeding on the ground that the contempt judgment had been entered against an assistant State's Attorney. The court denied the defendant's motion for a special prosecutor but continued the cause to August 20. Although the State announced its readiness for trial, the court charged the delay to the State for purposes of the speedy-trial statute because of Chancey's failure to turn over the subpoenaed materials. Thereafter, the cause was continued several times and on each occasion the court stated it would charge the delay to the State because of Chancey's refusal to turn over the subpoenaed materials.

"Every person on bail or recognizance shall be tried by the court having jurisdiction within 160 days from the date defendant demands trial unless delay is occasioned by the defendant . . .." (Ill. Rev. Stat. 1985, ch. 38, par. 103-5(b).)

The defendant alleged that more than 160 days had passed since he filed his demand for a speedy trial on June 21 and that the delay in bringing the cause to trial was attributable to the State. The court granted the motion, and the State appealed.

The appellate court consolidated the appeal with the appeal from the contempt judgment and, upon the defendant's motion, designated the People of the State of Illinois as appellee in the contempt proceedings. The court appointed the Attorney General to represent the People, and that officer filed a brief seeking affirmance of the circuit court's order of contempt. The State's Attorneys Appellate Prosecutor's office, on behalf of Assistant State's Attorney Chancey, moved to strike the Attorney General's brief and to vacate the appellate court's order designating the People of the State of Illinois as appellee. The motion stated that, as Chancey was convicted of contempt because of his good faith conduct on behalf of "the People," a conflict of interest had been created by the court's designation of "the People" as appellee.

As stated, the appellate court denied the State's Attorneys Appellate Prosecutor's office's motion, affirmed the contempt judgment, but reversed the trial court's order discharging the defendant on speedy-trial grounds and remanded for further proceedings. 151 Ill. App. 3d 966.

In appeal No. 65168, Assistant State's Attorney Chancey begins his challenge to his contempt conviction with the contention that the appellate court erred in designating "the People" as appellee and in appointing the Attorney General to sustain the contempt judgment on appeal. Chancey says that he subjected himself to the contempt conviction in good faith on behalf of "the People" in order to test the validity of the circuit court's pretrial order directing him to comply with the defendant's subpoena. He says that when an attorney is held in contempt for taking a position on behalf of a client, an appeal from that judgment is in reality an appeal by the client. Chancey argues that it was therefore improper for the appellate court to designate "the People" as appellee and to appoint the Attorney General, particularly considering that the Attorney General has taken an opposing position to his position on the validity of the subpoena. The appellate court's appointment of the Attorney General, he says, rendered his counsel, the State's Attorneys Appellate Prosecutor's office, "powerless" to defend him on appeal. This is because, as the Appellate Prosecutor's office is authorized to represent only "the People," it cannot represent a State's Attorney in his or her individual capacity. (See Ill. Rev. Stat. 1985, ch. 14, par. 204.01.) Parenthetically, Chancey does not state who he considers should have been designated as the appellee on this appeal.

It of course has been long recognized that exposing one's self to contempt proceedings is an appropriate method of testing the validity of a court order. (See People ex rel. General Motors Corp. v. Bua (1967), 37 Ill. 2d 180, 189; Monier v. Chamberlain (1966), 35 Ill. 2d 351.) When an attorney is held in contempt, it does not follow that an appeal from the contempt judgment is ...


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