People v. I.W.I., Inc.

• Decision Date: 30 November 1988
• Docket Number: No. 86-0770,86-0770
• Citation: 531 N.E.2d 1001,126 Ill.Dec. 374,176 Ill.App.3d 951
• Parties: , 126 Ill.Dec. 374 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. I.W.I., INC., Wellco Chemical, Inc., Itasco of Illinois, Inc., and Glenn Wellman, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 1001

531 N.E.2d 1001

176 Ill.App.3d 951, 126 Ill.Dec. 374

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. I.W.I., INC., Wellco Chemical, Inc., Itasco of Illinois Inc., and Glenn Wellman, Defendants-Appellants.

No. 86-0770.

Appellate Court of Illinois First District, Third Division.

Nov. 30, 1988.

George P. Lynch, Holland C. Capper, Chicago (M. Jacqueline Walther, of counsel), for defendants-appellants.

Richard M. Daley, Chicago (Thomas V. Gainer, Jr., James E. Fitzgerald, Kevin J. Moore, of counsel), for plaintiff-appellee.

Justice RIZZI delivered the opinion of the court:

Defendants, I.W.I. Inc., Wellco Chemical, Inc., Itasco of Illinois, Inc., and Glenn Wellman (IWI), appeal from an order of the circuit court of Cook County holding all defendants in contempt of court. On appeal, IWI argues that (1) it was deprived of due process by the summary procedure used by the court in finding it in contempt of court; (2) the court's order that it produce various documents in response to certain subpoenas duces tecum was void as to preclude a finding of contempt and (3) the court lacked jurisdiction to modify the penalty imposed in the contempt order after IWI had filed a notice of appeal. We affirm in part, vacate and remand in part.

IWI defendants are corporations which as their business, clean, repair and test tote bins. Tote bins are large stainless steel and other material storage or transportation tanks used to transport paint, ink, grease and other material. IWI was served with various subpoenas duces tecum issued by the grand jury of the circuit court of Cook County. These subpoenas sought production of IWI's corporate records detailing IWI's operation from "January 1, 1983 until the present." IWI filed a motion to quash the grand jury subpoenas arguing that the subpoenas were overly broad and oppressive. On October 9, 1985, Judge Richard J. Fitzgerald denied IWI's motion and ordered IWI to comply with the subpoenas on November 4, 1985.

Without complying with the order to produce documents, IWI filed another motion to quash the subpoenas. In this motion, IWI argued that any proceeding on the subpoenas before Judge Fitzgerald was collaterally estopped by an order entered on November 21, 1985, in a civil proceeding by Judge David J. Shields. IWI asserted that because Judge Shields had determined that the government's complaint for injunctive relief under Title V of the Illinois Environmental Protection Act was insufficient, the State was collaterally estopped from criminally prosecuting IWI in relation to the storage, accumulation or disposal of hazardous waste. In denying this second motion to quash, the court, on December 16, 1985, ordered compliance by December 26, 1985, and cautioned that any materials received under the subpoenas were to be used only in the grand jury investigation.

On January 13, 1986, the State informed Judge Fitzgerald that IWI did not intend to comply with the order to produce documents. The State filed a verified petition for a rule to show cause why IWI should not be held in contempt and a hearing was set for January 17. On January 17, IWI appeared and filed a motion to quash the State's petition. At a later hearing on the State's petition, IWI argued that it had not complied with the order directing it to furnish documents to the grand jury that were commanded by the subpoenas because (1) the petition was vague and indefinite; (2) the proceeding on the State's petition had denied them due process of law; (3) the petition had defective verification and (4) compliance with the subpoenas would have an oppressive effect on their business.

On March 25, 1986, the court denied IWI's motion to quash the State's rule to show cause and found that IWI was not justified in its reasons for refusing to comply with the subpoenas. IWI was held in contempt of court and the court imposed a fine of $500 for each additional day of noncompliance. IWI informed the court that it would file a notice of appeal and a motion to stay the fine pending appeal. IWI filed its notice of appeal on March 25, 1986. On April 7, 1986, the court issued an order that the $500 fine would run "from March 25, the date that we entered the order, until final disposition."

IWI first argues that it was denied due process of law in the summary procedure used by the court in finding it in contempt of court. To support its position, IWI contends that it was held in indirect criminal contempt of court and therefore it was entitled to all of the safeguards afforded to criminal proceedings. We find IWI's position without merit.

We initially note that the court did not specify whether it was finding IWI in direct or indirect contempt of court. Nor did the court specify whether it was finding IWI in criminal or civil contempt of court. Based upon our reading of the record and the circumstances therein, we conclude that IWI was found in direct civil contempt of court.

Contempt of court is defined as contumacious "verbal or nonverbal conduct calculated to embarrass, hinder, or obstruct a court in its administration of justice or to derogate from its authority or dignity, or bring the administration of justice into disrepute." Sunset Travel, Inc. v. Lovecchio (1983), 113 Ill.App.3d 669, 674, 69 Ill.Dec. 456, 460, 447 N.E.2d 891, 895. Contempt of court may also result from failure to abide by the terms of a court order of judgment. Furthermore, such conduct may be tried as direct or indirect contempt depending upon the circumstances. Sunset Travel, Inc., 113 Ill.App.3d 669, 674, 69 Ill.Dec. 456, 460, 447 N.E.2d 891, 895.

A judge may find a party in direct contempt of court where that party's contumacious conduct occurs in the physical presence of the judge or while the court is performing its judicial functions. In re Marriage of Wilde (1986), 141 Ill.App.3d 464, 469, 95 Ill.Dec. 622, 626, 490 N.E.2d 95, 99. The trial judge must be personally aware of this conduct, and no evidentiary hearing is necessary to ascertain the facts supporting a finding that the conduct is of a contemptuous character. Thus, because the contumacious conduct is committed in the presence of the court, the party performing such may be adjudged and sanctioned in a summary manner. City of Chicago v. Chicago Fire Fighters Union (1981), 99 Ill.App.3d 583, 590, 54 Ill.Dec. 854, 859, 425 N.E.2d 1071, 1076.

On the other hand, contumacious conduct that occurs out of the presence of the judge is characterized as indirect contempt. With indirect contempt, its establishment is dependent upon extrinsic evidence as proof of facts of which the court has no personal knowledge. People v. L.A.S. (1986), 111 Ill.2d 539, 543, 96 Ill.Dec. 66, 68, 490 N.E.2d 1271, 1273. In this instance, it is required that the party accused of committing indirect contempt of court be granted all procedural due process rights so that he is given a reasonable opportunity to defend against the charge. People v. Skar (1964), 30 Ill.2d 491, 494-95, 198 N.E.2d 101, 102-03.

Civil contempt is distinguished from criminal contempt not by conduct, but in the purpose of the citation proceeding. A criminal contempt proceeding is punitive in nature punishing a party for a past contumacious act, while a civil contempt proceeding is coercive in nature. The intent of a civil contempt proceeding is to obtain compliance with a court's order or judgment. Sunset Travel, Inc. v. Lovecchio (1983), 113 Ill.App.3d 669, 676, 69 Ill.Dec. 456, 461, 447 N.E.2d 891, 896.

In the instant case, it is clear that the contempt citation was a direct civil one. IWI appeared before the court on at least four occasions. IWI appeared before the court on October 9, 1985, and was ordered to comply with the grand jury subpoenas on November 4, 1985. IWI appeared before the court on December 16, 1985, and was again ordered to comply with the grand jury subpoenas on December 26, 1985. On January 13, 1986, the State filed a motion for a rule to show cause why IWI should not be held in contempt of court. A hearing was held on January 17, 1986 in which IWI appeared, was represented by counsel and filed a motion to dismiss the State's petition. On March 25, 1986, IWI appeared before the court and argued its motion to quash the State's petition. The court denied IWI's motion and ordered IWI to pay $500 for each day of noncompliance.

In light of these facts, IWI cannot be heard to argue that its contempt was an indirect criminal citation. The court's citation was designed to compel IWI's compliance with its repeated orders to produce the subject documents of the subpoenas. Moreover, after several hearings and motions made by IWI with respect to these subpoenas, the trial judge was personally aware of the circumstances of this case. There was no need for extrinsic evidence to establish facts and proofs outside of the court's knowledge upon which the court's citation was based. Therefore, IWI's argument that the court erred in conducting a summary proceeding is without merit.

IWI next argues that the court's order that it produce documents in response to the grand jury subpoena duces tecum is void. To support this contention, IWI argues that (1) the court's order that IWI produce books and records in connection with a pending criminal investigation is essentially an order for discovery and the court has no authority to order discovery when no charges are pending; (2) the requests in the subpoenas are overbroad and unreasonable and thus by its terms constitute an unreasonable search and seizure and (3) the order is an infringement on possible Fifth Amendment rights of Wellman. We disagree.

IWI characterizes the court's order to comply with the grand jury's subpoena as an order for discovery. This characterization is unfounded in light of the fact that courts are empowered to take actions necessary to enforce subpoenas of the grand jury. Universal Credit Co. v. Antonsen (1940), 374 Ill. 194, 199, 29 N.E.2d 96,...