APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT
544 N.E.2d 1275, 188 Ill. App. 3d 987, 136 Ill. Dec. 500 1989.IL.1583
Appeal from the Circuit Court of Wabash County; the Hon. Robert S. Hill, Judge, presiding.
JUSTICE HOWERTON delivered the opinion of the court. GOLDENHERSH, J., concurs. JUSTICE HARRISON, Dissenting.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HOWERTON, Defendant, a lawyer, was found guilty of direct criminal contempt for subpoenaing a Judge. We affirm.
Defendant, retained by beneficiaries who had not received notice of final accounting in an estate, concluded that he needed the testimony of the Judge who was presiding over the case, Robert Keenan, to determine if there had been fraud in the final accounting. Defendant filed a motion for substitution of Judges, intending to subpoena and depose the Judge to discover what had happened at the hearing on the final accounting. The substitution motion was denied, the court noting that it did not believe that a Judge could be subpoenaed under those circumstances.
Defendant had a subpoena issued for the Judge, who, in response, had defendant appear before him later that day. Defendant was asked if he understood that the basis of the denial of the motion to substitute was that there was no authority for a Judge to give testimony in a case in which he was presiding. Defendant said he did. The Judge asked if he had issued the subpoena and defendant admitted that he had. The Judge then extended an opportunity to withdraw the subpoena and told defendant that if he did not, he would be cited for contempt. Defendant said, "I won't withdraw it, so you might as well do that."
Judge Keenan drafted a formal order, calling it a "rule to show cause," which set forth the facts surrounding the incident, and the matter was referred to Judge Hill for Disposition.
Judge Hill held a hearing, found defendant in direct criminal contempt and fined him $50.
All agree, the contempt was criminal, not civil; its effect was punishment, not coercion.
Defendant claims that: (1) having the subpoena issued was not contumacious; and (2) the hearing he was given by Judge Hill violated both the United States Constitution and the Illinois Constitution, because: (a) no prosecutor appeared for the State; (b) no evidence was presented against him in the hearing; (c) he was deprived of his right to confront and cross-examine his accusers because no witnesses testified against him in the hearing; and (d) Judge Hill improperly undertook a prosecutorial role at the hearing.
The threshold question is whether defendant's conduct was contumacious.
Contumacious conduct consists of verbal or nonverbal acts which:
(1) embarrass or obstruct the court in its administration of Justice or derogate from ...