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In re Marriage of Weddigen

Court of Appeals of Illinois, Fourth District

October 28, 2015

In re: MARRIAGE OF BRENDA WEDDIGEN, Petitioner-Appellee, and JAMES WEDDIGEN, Respondent-Appellant

Page 489

Appeal from Circuit Court of Sangamon County. No. 06D501. Honorable Steven H. Nardulli, Judge Presiding.

JUSTICE APPLETON delivered the judgment of the court, with opinion. Justice Knecht concurred and Justice Steigmann specially concurred in the judgment and opinion.

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OPINION

APPLETON, JUSTICE

[¶1] Respondent, James Weddigen, was found in indirect civil contempt of court for

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comments he posted on the online social networking site, Facebook. The trial court's purge order required respondent to post further comments on Facebook apologizing, recanting, and correcting his previous comments. Respondent appeals the order of contempt, the purge order, and the order requiring respondent to pay petitioner's attorney fees associated with the contempt proceedings. We affirm in part, reverse in part, and remand.

[¶2] I. BACKGROUND

[¶3] On August 15, 2014, during the pendency of various issues arising in the parties' postdissolution of marriage proceedings, petitioner, Brenda Weddigen, filed a petition for the trial court to hold respondent in direct civil contempt and a restraining order. Petitioner alleged respondent, while using his cellular telephone, intentionally and secretly recorded a hearing conducted three days earlier in violation of Illinois Supreme Court Rule 63(A)(8) (eff. July 1, 2013). Petitioner discovered this information after respondent posted a comment on the Facebook page of the Illinois Fathers Non-Profit Organization, admitting he recorded the hearing without permission and encouraging others to do the same. The comment at issue stated:

" On March 20, 2014, the Illinois Supreme Court declared the Illinois Eavesdropping Act of 1961 to be UNCONSTITUTIONAL. ( People v. Melongo, 2014 IL 114852, 379 Ill.Dec. 43, 6 N.E.3d 120). I recorded my hearing today and I encourage all of you to do so as well.....This is going to raise a lot of issues with the court, but they should have thought of that before they turned the court system into a revenue center for the county."

Petitioner alleged respondent's conduct also violated the Federal Interception and Disclosure of Wire or Electronic Communications Act (18 U.S.C. § 2511 (2006)). He also posted instructions on how to effectively get a cellular telephone through court security in order to record the hearing. He posted the following:

" I'd recommend you dress like an attorney and say it's your calendar. I've been denied before. A guard in Champaign asked if I was an attorney. I said no. He told me to take my phone back to my vehicle. The next time I said yes. And I walked right through."

[¶4] In his written response, entitled " Notice to the Court to Take Judicial Notice" and " Motion to Dismiss," respondent, proceeding pro se, said he " made a false claim on Facebook." Although respondent had " boasted" he had made a recording of a court hearing, in his response he insisted, in fact, he had not done so. He wrote: " there is nothing illegal about making a false claim whether in public or private as long as that claim is not made while testifying under oath." He reportedly posted the comment " to encourage others to invoke their [first] and [fourteenth] amendment rights pursuant to recent constitutional decisions by the Illinois Supreme Court." Soon after respondent's filed response, Sara M. Mayo entered her appearance as respondent's counsel.

[¶5] On October 16, 2014, petitioner filed a petition for indirect civil contempt, alleging respondent failed to make the court-ordered payments toward his child-support arrearage. In her prayer for relief, petitioner requested respondent pay her attorney fees and costs associated with filing the petition.

[¶6] On October 20, 2014, the trial court conducted a hearing and first allowed the parties to argue whether respondent had violated any rule by secretly recording the hearing as alleged. After considering the arguments, the court stated it was " going

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to reduce the scope of" the argument and accept respondent's statement " that he did not actually record these proceedings." However, the court found respondent in indirect civil contempt of court for posting the comments on the Facebook page, encouraging others to record proceedings and giving instructions on how to accomplish it. The court asked respondent to explain, on the witness stand, " why it is that he got on a website and told people that it was okay to conduct recordings in [the] courtroom ***. That's the contempt as far as I'm concerned."

[¶7] Mayo explained to the court she was not prepared to put respondent on the witness stand to address that particular concern, because it was, in her opinion, " beyond what [they were] arguing." According to Mayo, the scope of petitioner's contempt petition was the act of recording, not the act of posting a comment on Facebook. The court responded:

" Barring--well, even with a, almost regardless of what his explanation is, I don't see, and I'm willing to listen to him, but I don't see how his comments on Facebook were anything other than intended to bring disorder and disruption to my and every courtroom in the state. It was my intention, unless he has a spectacular explanation, Ms. Mayo, to find him in contempt of court and to permit him to purge himself of his contempt of court by placing on Facebook and every other social media to which he has access an apology to everyone, an explanation that he was wrong and encouraging people that they should not record those kinds, any court proceedings because there are supreme court rules that prohibit it. Is that something your client is willing to accept?"

Mayo answered in the affirmative.

[¶8] The trial court proceeded to consider issues relating to child support and visitation. After the presentation of evidence and arguments of counsel, the court ruled in open court on these issues, stating as follows:

" By [October 31, 2014,] I also want a copy filed with the clerk and directed to me with regards to the apology and public statement that [respondent] has put on the Facebook page. I said his Facebook page before. In looking at the pleadings, it looks as though it's on a Facebook page that relates to another organization, I'm not exactly sure what it is.
***
By October 31st he is to post his apology, his correction with regard to family court cases and Supreme Court rules relating to recording in court proceedings. And I'll take a look at that after that point in time. All right. I'll get you all a written order to that effect."

[¶9] On October 24, 2014, the trial court entered a written order. The portion of the order relevant to this appeal provided, as follows:

" [Respondent] has filed a response [to petitioner's contempt petition] which admits that he posted the statement in question and states that he is not in contempt as he did not actually record any court proceedings.
The court accepts [respondent]'s representation that he did not actually record court proceedings. Nonetheless, the court finds that his statements on Facebook stating that he had recorded in-court family proceedings and encouraging others to record family court proceedings constitute contempt of court as the statements tend to encourage disruption in this court and other courts. [Respondent] has shown himself to be a sophisticated person with regard to family court proceedings.

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[Respondent] has been given an opportunity in open court to explain his posting and to address the court's belief that it was the posting of the admonition to electronically record family court proceedings that constitutes a contempt, regardless of whether he actually recorded family court proceedings.
The court finds [respondent] in indirect civil contempt of court for his Facebook posting admonishing others to electronically record family court proceedings. [Respondent] may purge himself of his contempt by making a public statement on the Facebook page on which he made his statement to the effect that he was in error as to the law regarding the electronic recording of family court proceedings, apologizing to anyone who may have read his posting, and advising others to refrain from electronically recording family court proceedings."

[¶10] The trial court did not find respondent in contempt of court for nonpayment of the child-support arrearage, but it found " it was reasonably necessary for [petitioner] to file enforcement proceedings in order to obtain compliance with the prior orders of the court with regard to child support." Accordingly, the court ordered respondent to pay petitioner's attorney fees incurred due to the filing of her contempt proceedings related to both the Facebook posting and child support.

[¶11] On November 21, 2014, respondent filed a motion to reconsider, alleging he was given no notice he would be subject to contempt proceedings for posting the comment on Facebook. Instead, he believed petitioner was seeking a finding of contempt related to his alleged secret recording of the hearing. As a result, he alleged a violation of his due-process rights for a lack of notice of his potential contemptuous conduct. He further argued the trial court had violated his first amendment right to freedom of speech by holding him in contempt for his Facebook posting and by ordering him to post a response as a purge condition. He also claimed the court erred in awarding petitioner attorney fees when the court had not found him to be in contempt on the grounds alleged in either of her petitions for contempt--for the Facebook posting and the nonpayment of child support.

[¶12] On December 3, 2014, the trial court entered a written order vacating the order which had found respondent in contempt related to the Facebook posting. The court found respondent had received proper notice of his potential contemptuous conduct " related to his act of placing a statement on a Facebook page[--]a statement that he had audio-recorded his own court proceedings and which encouraged others to do the same," but the court gave respondent " an opportunity to explain why his social media encouragement of others to audio-record court proceedings should not support a finding of contempt." The court set the matter for a hearing on January 6, 2015.

[¶13] On January 6, 2015, the trial court conducted a rule-to-show-cause hearing. Respondent testified his intent in posting the comment was to follow People v. Clark, 2014 IL 115776, 379 Ill.Dec. 77, 6 N.E.3d 154, which, according to respondent, made it unconstitutional to punish people for recording public hearings. He said he did not intend to " incite lawlessness" and he does not believe lawlessness ensued. He posted his comment, believing the law had been changed regarding the legality of recording public hearings. He adamantly denied recording the earlier hearing.

[¶14] After considering the arguments of counsel, the court stated as follows:

" He was held in contempt, and I'm now holding him, again, in ...

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