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10/12/89 In Re Linda Peasley

October 12, 1989

IN RE LINDA PEASLEY, COURT REPORTER


Before we address the merits of the case we deem it appropriate to discuss, in some detail, the motions filed by respondent during the course of these proceedings and the reasons, where appropriate, for the filings made thereon.

APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

545 N.E.2d 792, 189 Ill. App. 3d 865, 137 Ill. Dec. 139 1989.IL.1621

No appearance for petitioner.

APPELLATE Judges:

PRESIDING JUSTICE McCULLOUGH delivered the opinion of the court. KNECHT and SPITZ, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCCULLOUGH

On July 6, 1989, the rule to show cause for criminal contempt entered against the respondent informed the respondent of 15 cases on appeal to this court from approximately October of 1988 through May of 1989, the names of the cases, the appellate court case numbers, the dates reports were due, any extensions granted, and the date the records (if any) were filed. According to the respondent, this is a correct listing of all of the transcripts which were due by the respondent during this period of time. The clerk of this court has indicated there is one other case in which the respondent was responsible for the transcript, in addition to these 15 cases, and that case is County of Tazewell v. Industrial Comm'n, 4th Dist. Gen. Nos. 4--89--0170, 4--89--0201. The court takes judicial notice of this additional case which was not listed on the rule to show cause. In none of the cases in the rule to show cause did the respondent meet the date the transcript of proceedings was due per the docketing order of this court. In the Industrial Commission case, although no docketing order was entered, the record reflects that the respondent did not prepare a timely transcript after formal request.

A preliminary hearing was held July 25, 1989, the respondent and her attorney being present before Presiding Justice, John T. McCullough. At the appellate court's request, Robert Biderman, Deputy Director, State's Attorney Appellate Prosecutor , was present as was Kenneth Crenshaw, the Court Reporting Manager of the Administrative Office of the Illinois Courts. A court reporter was present to report the proceedings.

At the preliminary hearing, the respondent was admonished of her rights and the possible penalties that may be imposed. The respondent entered a denial of the rule, was granted leave to file motions, and a hearing on the rule was set for August 21, 1989.

On August 21, 1989, a hearing was held on the rule to show cause. The respondent, her attorney, the Deputy Director of SAAP, and Kenneth Crenshaw were present. A court reporter was present to report the proceedings.

With leave of court, respondent was allowed to file written motions on or before August 4, 1989. In addition, during the course of the August 21, 1989, hearing, a number of oral motions were presented. At that time, counsel for respondent argued the merits of all motions.

Initially, respondent filed a petition for change of venue from Presiding Justice McCullough on the theory he was "interested" within the meaning of the civil venue statute (Ill. Rev. Stat. 1987, ch. 110, par. 2-101). In support, respondent argued Judge McCullough's contacts with Judge Caisley prior to the issuance of the rule, the issuance of the rule itself, and the fact Judge McCullough presided at the preliminary hearing on July 25, 1989, constituted evidence that Justice McCullough had preJudged the case against respondent. During the course of the hearing on August 21, 1989, counsel modified his original theory with an oral motion for change of venue under section 114-5 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 114-5) on the basis the criminal venue statute was more properly applicable because the nature of the charge was criminal contempt. Under either statute, respondent argued, the change should be automatic.

While it may be true, as a general proposition, that civil procedure rules are generally applied to cases of civil contempt and criminal procedure rules to cases of criminal contempt (Daniel Boone Woolen Mills & Rock Island Garment Co. v. Laedeke (1925), 238 Ill. App. 92), contempt proceedings are neither civil nor criminal but rather sui generis. (47th & State Currency Exchange, Inc. v. B. Coleman Corp. (1977), 56 Ill. App. 3d 229, 371 N.E.2d 294; People v. Doss (1943), 382 Ill. 307, 46 N.E.2d 984.) Because the power of a court to punish for contempt is inherent as essential and proper to the effective functioning of the courts and to the administration of Justice (People v. Javaras (1972), 51 Ill. 2d 296, 281 N.E.2d 670), courts are not strictly bound by the provisions of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 1-101 et seq.) or the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, pars. 100-1 through 126-1). (47th & State Currency Exchange, Inc., 56 Ill. App. 3d at 234, 371 N.E.2d at 298.) More specifically, it has been stated the venue statute does not apply to proceedings to punish contempts unless such proceedings are expressly included in the statute. (Doss, 382 Ill. at 311, 46 N.E.2d at 987.) Since the court is not bound by either the code of civil or criminal procedure and the relevant venue statutes do not expressly apply to contempt proceedings, neither venue statute is applicable and a request for substitution of Judge is not automatic.

Whether a change of venue should nevertheless be granted must still be considered. The general rule is that a Judge is not disqualified from conducting contempt proceedings merely because the contempt was committed against himself or a court of which he was a member. (See Annot., 64 A.L.R.2d 600 (1959).) The standard to be applied is to look to the nature of the contemptible conduct to determine whether it would so inflame a Judge that he could not remain impartial. If the conduct does not rise to the level of viciousness, there is no absolute prohibition forbidding the same Judge against whom the contempt was directed from hearing the case. (Mayberry v. Pennsylvania (1971), 400 U.S. 455, 27 L. Ed. 2d 532, 91 S. Ct. 499; People v. Jashunsky (1972), 51 Ill. 2d 220, 282 N.E.2d 1; In re Albert (1970), 383 Mich. 722, 179 N.W.2d 20.) In this case, we conclude respondent has not established the conduct giving rise to the rule to show cause is of such a nature that the members of this court, individually or collectively, could not remain impartial in considering the merits. Accordingly, respondent's motions for change of venue are denied. For the very same reasons, respondent's additional oral motion for substitution of all Fourth District Judges who have any knowledge of this case is also denied.

Respondent's second written motion was to dismiss the rule to show cause on the theory the appellate court is not a proper party to initiate the rule because respondent files transcripts in the circuit court, not the appellate court. Respondent also maintains there is an alternative administrative statutory procedure which may be employed to consider this matter and, therefore, the power of contempt should not be used when other adequate remedies are available. Defendant also contends the allegation in the rule that the conduct is wilful is a Conclusion unsupported by facts. Finally, respondent argues the issue is ...


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