The opinion of the court was delivered by: Richard Mills, District Judge:
A matter of contempt by an attorney.
This long and protracted process began in this Court two
years ago to collect sanctions that were imposed by the United
States District Courts for the Southern and Eastern Districts
of New York. Attorney James Walker had been held in contempt in
those courts relative to his participation in an asbestos
trial. (That case is reported in a 270 page opinion as In re
Joint Eastern and Southern District Asbestos Litigation,
129 B.R. 710 (E. & S.D.N.Y. 1991)).
Apparently, Mr. Walker, who represented certain Illinois
claimants in the asbestos litigation, attempted to interfere
with the management of the trust fund which had been set up to
pay the claimants, and a civil contempt sanction against him in
the amount of $81,655 was awarded in favor of the Manville
Trust. Shortly after the conclusion of the asbestos case in the
fall of 1991, the trustee of the Johns-Manville Trust
registered the sanction judgment of $81,655 in this Court,
pursuant to 28 U.S.C. § 1963.
The Manville Trust immediately applied for and received a
citation to discover the assets of Mr. Walker in order to
collect the $81,655 sanction which had been imposed in its
favor. Mr. Walker attempted to stall the collection of the
sanctions by filing a motion to quash all proceedings in this
Court on the basis that the judgment rendered against him in
New York was void. On August 26, 1992, this Court issued an
opinion denying Mr. Walker's motion to dismiss the sanction
proceedings and ordered that the sanction judgment be enforced
together with interest thereon as expeditiously as possible.
In re Joint Eastern & Southern Districts Asbestos Litigation,
800 F. Supp. 643, 647 (C.D.Ill. 1992).
Unfortunately, Mr. Walker again attempted to stall the
proceedings by filing a motion for reconsideration and an
interlocutory appeal. Mr. Walker also filed a motion for
setoff, to have the sanctions paid out of client funds in
another case which had allegedly been assigned to him. The
motion for reconsideration and the motion for setoff were
denied by this Court, and the interlocutory appeal, although
unripe, is still pending before the Court of Appeals. It
appears that Mr. Walker is attempting to perfect that appeal by
procuring a contempt decree in this Court.
Nonetheless, having exhausted all means of delay, Mr. Walker
subsequently filed an appeal of the setoff order and petitioned
this Court for a stay of all proceedings pending outcome of the
appeal. This Court denied the motion to stay, and Mr. Walker
moved for a dismissal of his appeal of the setoff order. This
Court then ordered Mr. Walker to appear at a citation to
discover assets hearing and to answer garnishment
which had been served upon him by the Manville Trust.
Mr. Walker answered the garnishment interrogatories, and he
appeared with counsel at the citation to discover assets
hearing held before U.S. Magistrate Judge Charles H. Evans on
August 3, 1993. However, at the hearing Mr. Walker refused to
answer under oath the questions propounded to him by the
attorney for the Manville Trust regarding his assets and
income. He stated that he would prefer to be held in contempt
and that he intended to appeal any contempt order issued by
this Court. As a result of Mr. Walker's conduct at the hearing,
the Manville Trust applied for an order requiring Mr. Walker to
show cause why he should not be held in contempt for his
failure to answer the questions asked at the hearing. Pursuant
to 28 U.S.C. § 636(e), Magistrate Judge Evans issued an order
directing Mr. Walker to appear before District Judge Richard
Mills to show cause why he should not be held in contempt for
his failure to cooperate at the citation to discover assets
Mr. Walker has already been the subject of numerous contempt
proceedings. This Court in an en banc order issued in November
of 1992 suspended Mr. Walker from practice in federal court in
the Central District of Illinois for one year for his conduct
in the case of Castillo v. St. Paul Fire & Marine Insurance
Co., 1992 WL 319419 (C.D.Ill. 1992). Mr. Walker had already
been sanctioned in the same case in 1991 by District Judge
Harold A. Baker for "deliberate frustration of the defendants'
attempt to secure discovery," and that sanction was affirmed by
the Court of Appeals. See Castillo, 938 F.2d 776 (7th Cir.
1991). Additionally, Mr. Walker has been brought before the
Fourth District Appellate Court on at least three occasions for
contemptuous conduct in the state circuit courts relating to
disobeyance of court rulings and deliberate professional
misconduct during the course of trial. See Rowley v. Rousseau,
81 Ill.App.3d 193, 196, 36 Ill.Dec. 465, 400 N.E.2d 1045
(1980); Mau v. North American Asbestos Corp., 156 Ill. App.3d 926,
927, 109 Ill.Dec. 273, 509 N.E.2d 1112 (1987); Kilpatrick
v. First Church of the Nazarene, 182 Ill.App.3d 461, 463, 130
Ill.Dec. 925, 538 N.E.2d 136 (1989).
To date, all of Mr. Walker's sanctions for contempt have been
in the form of fines, and they seem to have had no effect on
his behavior. There are two types of contempt: civil and
criminal. Civil contempt exists where the punishment is
remedial and for the benefit of the complainant, whereas
criminal contempt is punitive and serves to vindicate a court's
authority. Securities and Exchange Commission v. Simpson,
885 F.2d 390, 395 (7th Cir. 1989). Either imprisonment or fines can
be used as sanctions for findings of criminal and civil
contempt, and imprisonment may be imposed as a civil contempt
sanction if the contemnor can avoid the sentence by complying
with the directives of the Court. Id. On the other hand, a
criminal contempt sanction exists where there is an
unconditional and determinate sentence that cannot be purged by
any future conduct of the contemnor. Id.
In this case, Mr. Walker should be sanctioned for civil
contempt for his refusal to answer the questions asked by the
attorney for the Manville Trust at the citation to discover
assets hearing held on August 3, 1993. Such relief would be for
the benefit of the complainant, the Manville Trust, and Mr.
Walker has only to comply with the discovery requests of the
Manville Trust to avoid imposition of the civil contempt
sanction. Given Mr. Walker's past conduct, an appropriate
sanction would be imprisonment conditioned on cooperation with
the Manville Trust in the discovery process. If Mr. Walker
files an immediate appeal of the contempt order, he should be
required to post a bond of $100,000 in order to escape
confinement, as that is approximately the amount of the New
York sanction plus interest.
Ergo, following the hearing on this matter, the Court finds
Mr. Walker to be in contempt of the citation to discover assets
issued by this Court, and the Court hereby directs that Mr.
Walker be remanded to the custody of the United States Marshal
until such time as he shall cooperate with the Manville Trust
concerning the citation to discover his assets. In the event
Mr. Walker wishes to appeal the present decision of this Court,
confinement will be stayed pending appeal pursuant to
Fed.R.Civ.P. 62(d) upon the posting ...