 PART
8. CONTEMPT OF COURT |
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8.1
PROCEEDINGS IN CONTEMPT | TOP |
(a)
Contemptuous conduct defined. Contemptuous
conduct consists of verbal or non-verbal
acts which:
(1) Embarrass or obstruct
the court in its administration of justice
or derogate from its authority or dignity;
(2) Bring the administration
of justice into disrepute; or
(3) Constitute disobedience
of court order or judgment.
(b)
Direct contempt defined. Contemptuous
conduct constitutes direct contempt if it
is committed in such a manner that no evidentiary
hearing is necessary for the court to determine
that facts surrounding such conduct and is
committed in an integral part of the court
when the court is performing its judicial
functions.
(1) Summary hearing. A summary
hearing with a finding and adjudication of
direct contempt may be made by the court if
immediate punishment of the contemnor is essential
to prevent demoralization of the court's authority
before the public. In such an event, the contemnor
is not entitled to notice, a written charge,
plea, to cross-examine or subpoena witnesses,
present evidence or to counsel. There is no
right to trial by jury, unless the court states,
prior to hearing, that it will impose a sentence
of more than six (6) months, a fine of more
that $500.00, or both, upon adjudication of
contempt.
(2) Contemptuous conduct specified/statement
in mitigation. Prior to an adjudication of
direct contempt, the court shall inform the
contemnor of the specific conduct forming the
basis of contempt and, prior to imposition
of sanctions, the court shall permit the contemnor
an opportunity to present a statement in mitigation.
(3) Finding of contempt/imposition
of sanctions. Upon the commission of an act
constituting direct contempt, the court may
find the contemnor in direct civil contempt,
direct criminal contempt, or both, and may:
(i) impose sanctions instanter,
or
(ii) impose sanctions within
a reasonable time thereafter.Upon a finding
of direct criminal contempt, the court may
impose a fine not to exceed $500.00, incarceration
for a term not to exceed six (6) months, or
both, unless the contemnor is afforded a right
to trial by jury, in which case, if the jury
finds the contemnor guilty of contempt, the
court is not limited in fine or incarceration
and may impose reasonable sanctions. In addition
to, or in lieu of fine and incarceration, the
court may impose such other sanctions it deems
reasonable and appropriate.
(4) Written order required.
Upon the imposition of sanctions, the court
shall enter a written judgment order setting
forth the factual basis of the finding and
sanctions imposed.
(5) When referral to another
judge required. Where a controversy between
the judge and contemnor is integrated with
the contemptuous conduct and embroils the judge
to the degree that his objectivity can reasonably
be questioned, the judge shall recuse himself
on the issue of contempt and refer the matter
to the Chief Judge for reassignment. In this
event, the judge before whom the alleged contempt
transpired shall specify in writing the nature
of the alleged acts of contempt, shall direct
that a record of the proceedings surrounding
the said acts be prepared, and shall transmit
such record to the judge hearing the matter.
The judge hearing the contempt matter shall
base his findings and adjudication of direct
contempt solely on the charge and record of
proceedings.
(6) Appeal. An appeal from
an adjudication of direct contempt may be taken
as in any criminal case if the finding is one
of direct criminal contempt, and as in any
civil case, if the finding was one of direct
civil contempt. Upon filing of a notice of
appeal, the court may fix bond and stay sanctions
pending disposition of the appeal.
(c)
Indirect criminal contempt defined. A
contemptuous act constitutes indirect criminal
contempt when it occurs outside the presence
of the court or in an area that is not an
integral or constitute part of the court,
or the elements of the contemptuous act are
not otherwise within the personal knowledge
of the court. An action for indirect criminal
contempt is a separate action and not a part
of the underlying cause out of which the
contempt arose. A contemptuous act committed
in the presence of the court, but not summarily
treated as a direct criminal contempt as
provided in 8.1(b) of this rule, shall be
prosecuted as an indirect criminal contempt.
(1) Petition for Adjudication
of Indirect Criminal Contempt. A proceeding
in indirect criminal contempt shall be commenced
by the filing of a Petition for Adjudication
of Indirect Criminal Contempt. The petition
shall be verified and set forth with specificity
the nature of the alleged contemptuous conduct.
(2) Prosecution of indirect
criminal contempt. Indirect criminal contempt
may be prosecuted by the State's Attorney,
counsel for a litigant, or by an amicus curiae
appointed by the court.
(3) Notice of hearing. If
the court finds that the verified petition
sets forth allegations which support the charge,
R shall set the matter for hearing and order
notice be given to respondent. Service of notice,
together with a copy of the petition, shall
be made in a manner as provided by Supreme
Court Rule 105(b)(1) or (2) as the court may
direct. The notice shall provide therein that
should the respondent fail to appear, a body
attachment may issue. If the respondent fails
to appear after service of notice, or the court
has good reason to believe the respondent will
not appear in response to notice, the court
may direct that an immediate body attachment
issue against the respondent. When a body attachment
issues, the court shall set bond thereon.
(4) Respondent's due process
rights. Upon respondent's first appearance
before the court, it shall determine if respondent
has received a copy of the petition and advise
respondent of his right to:
(i) a public hearing, including
the right to cross-examine and subpoena witnesses,
present evidence, and make a written or oral
response to the charge:
(ii) counsel, and the appointment
thereof if indigent;
(iii) freedom from self-incrimination;
(iv) the presumption of innocence;
(v) to be proven guilty only
by proof of guilty beyond a reasonable doubt;
and(vi) a trial by jury if the court, prior
to hearing, declares that a sentence of more
than 6 months incarceration, a fine of more
than $500.00, or both, will be imposed upon
an adjudication of guilt.
(5) Motion for substitution
of judge. A motion for substitution of judge
made pursuant to Section 114-5(a) of the Code
of Criminal Procedure shall be granted if made
within ten (1 0) days of the matter being placed
on the trial call of the judge, or at any time
pursuant to Section 114-5(d) of the Code of
Criminal Procedure when for cause and supported
by affidavit; however, such motion must be
made before the judge has ruled on a substantive
issue of the action and cannot be made to avoid
or delay hearing on the issue of criminal contempt.
(6) The hearing. In a proceeding
for indirect criminal contempt, the hearing
shall be held as in any other criminal case
pursuant to the respondent's due process rights
as enumerated in Section 8.1(c)(4) of this
rule.
(7) Statement in mitigation.
Upon an adjudication of indirect criminal contempt,
the judge shall afford the contemnor an opportunity
to make a statement in mitigation prior to
imposition of sanctions.
(8) Sanctions. If the contemnor
has not been afforded the right of trial by
jury, the court may sentence the contemnor
to jail for a term of not to exceed 6 months,
impose a fine of not to exceed $500.00, or
both; if the contemnor has been afforded the
right of trial by jury, the court may impose
a reasonable fine or sentence of incarceration.
In addition to, or lieu of, fine or incarceration,
the court may impose such other reasonable
sanctions it deems appropriate, including attorney
fees and costs.
(9) Written order required.
Upon an adjudication of indirect criminal contempt,
the court shall enter a written order setting
forth the factual basis for the finding of
contempt and sanctions imposed.
(10) Appeal. An appeal may
be taken from an adjudication of criminal contempt
as in any other criminal matter. Upon the filing
of a notice of appeal, the court may fix bond
and stay sanctions pending disposition of the
case on appeal.
(d)
Indirect civil contempt defined. Indirect
civil contempt is a continuation of the underlying
cause of action out of which the contempt
arose, where the elements of the contempt
are not within the personal knowledge of
the judge; and
(i) the act consists of the
failure to obey a court order or judgment;
and
(ii) coercive, rather than
punitive, sanctions are sought to compel compliance
with the order or judgment.
(1) Petition for Adjudication
of Indirect Civil Contempt. An indirect civil
contempt proceeding shall be commenced by the
filing of a Petition for Adjudication of Indirect
Civil Contempt. The petition shall be verified
and shall set forth with specificity the portion
of the court order or judgment alleged to have
been violated, together with the date or dates,
and nature of the violation. If the court finds
that the petition provides sufficient facts
to show prima facie evidence of civil contempt
it may, at its discretion, enter a rule to
show cause on the respondent or, instead, not
enter a rule and set the petition itself for
hearing. In any event, the court shall set
the matter for hearing and order that respondent
be given notice of the time, date and place
of hearing.
(2) Notice. Notice of the
hearing and copy of the petition shall be served
by regular U.S. Mail, postage prepaid, to respondent's
last known address or in any manner as provided
in Supreme Court Rule 105(b)(1) or (2) as the
court may direct. Notice by personal service
shall be served not less than seven (7) days
prior to hearing, and notice by U.S. Mail shall
be mailed not less than fourteen (14) days
prior to hearing. The notice shall contain
therein that should respondent fail to appear,
a body attachment may issue. If the respondent
fails to appear after due notice or if the
court has reason to believe the respondent
will not appear in response to notice, the
court may direct that a body attachment or
warrant of arrest be issued against respondent
and in such event, the court shall set bond
which shall be noted on the body attachment
or warrant of arrest.
(3) Response to the petition.
The respondent may submit an oral or a written
response denying with specificity any of the
allegations of the petition together with affirmative
defenses. Those allegations of the petition
not specifically denied are deemed admitted.
If the basis of the petition is the failure
of the respondent to make court ordered payments
to the clerk of the court, the records of the
clerk shall be prima facie evidence of the
amount received by the clerk.
(4) Substitution of judge.
A respondent may file a petition for substitution
of judge pursuant to Section 2-1001 of the
Code of Civil Procedure if such petition is
filed prior to the judge making a substantive
ruling in the underlying action or on the petition
for adjudication of indirect civil contempt,
and is not filed to avoid or delay hearing
on the petition.
(5) Respondent's due process
rights. The respondent has a right to notice,
to be provided with a copy of the petition,
to answer orally or in writing, to be heard
and to present evidence, to cross-examine witnesses,
to call witnesses, and to have an attorney
of choice.
(6) Conduct of the hearing.
Civil contempt proceedings shall be heard before
the court without jury. The petitioner may
call the respondent as an adverse witness pursuant
to Section 2-1102 of the Code of Civil Procedure.
Upon petitioner's showing prima facie evidence
of the respondent's failure to comply with
a court order, the burden of production shifts
to the respondent who must prove any affirmative
defenses, including lack of means to comply
with the court's order, by a preponderance
of the evidence.
(7) Finding of contempt/sanctions.
If the court finds the respondent in civil
contempt, it shall impose sanctions instanter
or at a later date. Prior to imposition of
sanctions, the contemnor shall have a right
to make a statement in mitigation. Sanctions
may include a continuing fine and/or incarceration
or other reasonable sanction the court deems
appropriate and such sanctions shall remain
in full force and effect until the contemnor
purges himself of contempt or is otherwise
discharged by due process of law. The court
may assess reasonable attorney's fees against
the contemnor.
(8) Written order required.
Upon an adjudication of civil contempt, a written
order shall be signed by the judge specifying
the contemptuous conduct, the sanctions imposed
and the means by which the contemnor may purge
himself of contempt. A copy of the order shall
be given to the contemnor.
(9) Appeal. An appeal from
a judgment of civil contempt may be taken as
in any civil case. Upon the filing of a notice
of appeal, the court may fix bond and stay
the sanctions pending the disposition of the
appeal.
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