                                  Illinois Official Reports

                                          Appellate Court



                              People v. Perez, 2014 IL App (3d) 120978



Appellate Court              THE PEOPLE OF THE STATE OF ILLINOIS, Petitioner-Appellee,
Caption                      v. VALERIE PEREZ, Respondent-Appellant.



District & No.               Third District
                             Docket No. 3-12-0978



Filed                        October 1, 2014



Held                         The appellate court reversed respondent’s conviction for indirect
(Note: This syllabus         criminal contempt based on a profane remark she made in the hallway
constitutes no part of the   outside a courtroom where she had been waiting to appear on a
opinion of the court but     speeding ticket and the remark expressed her feelings about the
has been prepared by the     judge’s decision to take a recess, since the State did not establish
Reporter of Decisions        respondent’s guilt beyond a reasonable doubt, especially when there
for the convenience of       was no evidence respondent intended to embarrass the judge, she did
the reader.)                 not use the judge’s name or communicate directly to her, and courts
                             have held that concern for the dignity and reputation of the courts does
                             not justify the punishment as criminal contempt of criticism of a judge
                             or a judicial decision.



Decision Under               Appeal from the Circuit Court of Will County, No. 12-CC-22; the
Review                       Hon. Carmen Goodman, Judge, presiding.



Judgment                     Reversed.
     Counsel on               Mario Kladis, of State Appellate Defender’s Office, of Ottawa, for
     Appeal                   appellant.

                              James Glasgow, State’s Attorney, of Joliet (Judith Z. Kelly, of State’s
                              Attorneys Appellate Prosecutor’s Office, of counsel), for the People.



     Panel                    JUSTICE WRIGHT delivered the judgment of the court, with opinion.
                              Presiding Justice Lytton concurred in the judgment and opinion.
                              Justice Holdridge specially concurred, with opinion.

                                               OPINION

¶1         Respondent, Valerie Perez, was in traffic court waiting to appear on a speeding ticket.
       When the court took a recess, respondent exited the courtroom and was overheard by a bailiff
       saying, “I waited all fucking morning and now she takes a break.” After the bailiff relayed the
       comment to the court, the trial judge returned to the bench and instructed the State to prepare
       and file a petition for contempt. The court denied the defense request for a short continuance to
       prepare for trial and presided over a hearing on the same date as the alleged misconduct. After
       finding respondent guilty of indirect criminal contempt, the court sentenced respondent to
       serve eight days in custody. Respondent appeals. We reverse.

¶2                                                 FACTS
¶3         On September 28, 2012, respondent was in the Will County courthouse waiting to appear
       on a speeding ticket in courtroom 304. Once the court announced it would be taking a recess,
       respondent left the courtroom. Thereafter, Bev Richardson, a bailiff assigned to another
       courtroom, courtroom 302, contacted the judge and told the court that respondent purportedly
       used profane language in the courthouse hallway while commenting on the court’s decision to
       take a break.
¶4         Based on the information communicated to the court by bailiff Richardson, the court
       returned to the bench and instructed the State to prepare a petition putting respondent on notice
       that she was being charged with indirect criminal contempt based on respondent’s conduct.
       The prosecutor responded, “Judge, normally I can’t give this to the Court. I don’t know what
       the person said. I’m sorry.” The court further advised the prosecutor that he was not required to
       have personal knowledge of the statement in order to draft the contempt petition.
¶5         The record contains an unsigned, handwritten document written on a blank form entitled
       “COURT ORDER.” The entire handwritten petition is set forth below:
                   “State files a petition for adjudication for indirect criminal contempt, and order[s]
               her to show good cause as to why she should not be held in indirect criminal contempt
               of court. *** Conduct alleged is the Defendant swore outside the courtroom after the
               Court had taken a recess, per Bailiff Bev Richardson. The witness indicated that the
               defendant said ‘now she takes a break after I’ve been waiting all fucking morning.’ ”



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¶6         With respondent present in the courtroom, defense counsel requested a continuance for
       counsel to research the law, answer the charge, prepare potential evidence, and investigate
       potential witnesses. Defense counsel stated respondent was entitled to be advised of the charge
       and the range of penalties, to benefit from compulsory process to present witnesses, and to
       answer the charges. Defense counsel concluded her response by stating, “It’s a criminal matter
       like any other.”
¶7         The court denied the request to schedule the hearing for another date. In so doing, the court
       said, “This is basically indirect criminal contempt. This is not criminal in nature. This is
       basically civil in nature. So we are going to hearing today. Call your first witness.”
¶8         The State called bailiff Richardson, who testified she was working as a bailiff in another
       courtroom in the Will County courthouse that morning. According to Richardson, at around
       11:30 a.m., she was standing in the hallway outside of the courtrooms when respondent exited
       a courtroom, entered the hallway, and loudly announced, “I waited all fucking morning and
       now she takes a break and I’m tired of waiting.” Richardson continued, “But then all the way
       down the hall she was using the word F, all the way down. People at the other end were looking
       at her. And I told her she could not do that in this building.” Richardson testified that after she
       told respondent not to use this type of language, “[respondent] said a few more words and she
       simmered down because I went to tell the Judge.” On cross-examination, Richardson testified
       that respondent did not direct her language toward court personnel or any person in particular.
       The defense called no witnesses.
¶9         Without allowing either attorney an opportunity for closing arguments, the court found
       respondent guilty of indirect criminal contempt. When the court asked the prosecutor for a
       sentencing recommendation, defense counsel interjected by asking if she could “make a record
       for argument, Judge.” The court indicated it first would entertain the State’s recommendation
       for sentencing.
¶ 10       Following the State’s recitation of respondent’s lack of criminal history, defense counsel
       argued the evidence was insufficient to support a finding of guilt beyond a reasonable doubt.
       Counsel emphasized that her client did not direct her language toward anyone in particular and
       did not disrupt any court proceedings. When defense counsel began to conclude her closing
       argument, the following exchange took place between the court and defense counsel:
                   “[Defense counsel]: *** And so I would ask the Court–I don’t believe it’s been
               proven beyond a reasonable doubt that she has committed indirect criminal contempt.
                   THE COURT: The Court’s understanding is preponderance of the evidence.
                   [Defense Counsel]: I believe it is beyond a reasonable doubt, Judge.
                   THE COURT: Okay. Well, that’s because you are looking at it from a criminal
               [perspective]. This is a quasi criminal case. It’s civil in nature, and the standard here is
               the preponderance of the evidence. In other words, she doesn’t do something that she
               was told to do. This was an outburst, and that’s the way I see it.”
¶ 11       The court made the following observations before sentencing respondent to serve eight
       days in jail, with day-for-day credit:
                   “It was disruptive to my court and the administration of justice because I had to go
               and stop whatever that I was doing in order to–and I had to get back in here and I had
               two hearings in order to hear about the fact that [respondent] felt like she was
               inconvenienced once I took a break. I had 115 cases on my call. ***

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                   And the words that were used were very disrespectful to what I try to do here each
               and every day. *** I find you in indirect–well, it’s criminal contempt. If you want to
               say beyond a reasonable doubt, beyond a reasonable doubt if that’s the standard, we
               will find that beyond a reasonable doubt.”
¶ 12       Respondent filed a timely motion for a new trial alleging several errors, including: (1) the
       denial of her rights to a fair trial, due process, and equal protection; (2) insufficient notice of
       the contempt hearing; (3) the improper shifting of the burden of proof to her to show cause; (4)
       the denial of an opportunity to answer the charge by conducting discovery, seeking witnesses,
       and conducting research prior to the hearing; (5) the failure of the evidence to show she was
       guilty beyond a reasonable doubt; and (6) violation of her first amendment rights by the court’s
       finding of contempt. The court denied the motion for new trial.
¶ 13       Respondent appeals.

¶ 14                                            ANALYSIS
¶ 15       On appeal, respondent raises two issues. First, she argues the finding of guilt must be
       reversed because the evidence was insufficient to prove her guilty of indirect criminal
       contempt beyond a reasonable doubt. Alternatively, if this court concludes the evidence was
       sufficient, respondent argues the judgment should be vacated and the matter remanded for a
       new trial because the trial court violated her constitutional right to procedural due process on
       several grounds.
¶ 16       The State agrees the proceedings may have been procedurally flawed, but submits the
       evidence was sufficient to support the allegation of indirect criminal contempt. Consequently,
       the State contends the matter should be remanded for a new trial.
¶ 17       For purposes of this appeal, the parties agree respondent was convicted of, and sentenced
       for, criminal, rather than civil, contempt. Criminal contempt arises from “conduct that is
       calculated to impede, embarrass, or obstruct the court in its administration of justice or
       derogate from the court’s authority or dignity, or to bring the administration of the law into
       disrepute.” People v. Ernest, 141 Ill. 2d 412, 421 (1990).
¶ 18       Direct criminal contempt involves a defiant or disrespectful verbal or nonverbal act which
       takes place in the courtroom and is witnessed by the judge. People v. Jashunsky, 51 Ill. 2d 220,
       223 (1972). Neither a formal charge nor an evidentiary hearing must precede a hearing on
       direct criminal contempt because the misconduct was actually observed by the court and the
       relevant facts lie within the court’s personal knowledge. See People v. L.A.S., 111 Ill. 2d 539,
       543 (1986) (“Direct criminal contempt may be found and punished summarily because all
       elements are before the court and, therefore, come within its own immediate knowledge.”).
¶ 19       Unlike direct criminal contempt, indirect criminal contempt is based on conduct the court
       has not personally witnessed. Therefore, indirect criminal contempt should not be adjudicated
       in a summary proceeding initiated by the judge. Instead, indirect criminal contempt
       proceedings are initiated by a petitioner’s written request for an adjudication of indirect
       criminal contempt.
¶ 20       A charge of indirect criminal contempt gives rise to similar procedural safeguards as those
       required in criminal proceedings. People v. Lindsey, 199 Ill. 2d 460, 471 (2002). For example,
       a respondent in an indirect criminal contempt proceeding has the right to be advised of the
       nature of the charge, to be presumed innocent, to require proof beyond a reasonable doubt, and

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       to invoke the privilege against self-incrimination. People v. Covington, 395 Ill. App. 3d 996,
       1007 (2009).
¶ 21       Typically, a routine petition requesting the adjudication of indirect criminal contempt is
       based on an assertion that the accused was aware of a valid court order and willfully ignored
       the mandates of the court order. See, e.g., People ex rel. City of Chicago v. Le Mirage, Inc.,
       2013 IL 113482. In unusual situations, an allegation of indirect criminal contempt may be
       levied against the accused for a verbal or nonverbal act that was allegedly disrespectful to the
       court’s authority, but not witnessed by the judge, rather than a violation of an existing court
       order. See, e.g., In re Marriage of Madary, 166 Ill. App. 3d 103 (1988) (respondent guilty of
       indirect criminal contempt for spitting on the petitioner while exiting the courtroom).
¶ 22       In this case, the trial court seemed to recognize that respondent’s verbal outburst during a
       court recess could not be summarily adjudicated as direct criminal contempt because the court
       did not observe the alleged contemptuous conduct at issue. See Jashunsky, 51 Ill. 2d at 223.
       Consequently, after learning about respondent’s conduct from bailiff Richardson, the court
       returned to the bench and instructed the prosecutor to prepare a charging instrument for
       indirect criminal contempt. The court then directed the prosecutor to provide respondent with
       notice by delivering a copy of the petition to respondent’s counsel. In spite of this notice by
       written petition, the State concedes multiple other due process difficulties may be present in
       this record warranting, at the very least, a new hearing. We agree.
¶ 23       First, the case law provides that “a petition initiating indirect criminal contempt
       proceedings ought not have the title ‘Petition for Rule To Show Cause,’ ” since this language
       applies only in proceedings for indirect civil contempt and impermissibly shifts the burden of
       proof to respondent. In re Marriage of Betts, 200 Ill. App. 3d 26, 58-59 (1990). In fact, the
       inartfully drafted petition prepared by the prosecutor directed respondent to “show cause” and
       created a great deal of confusion for the court concerning the proper burden of proof.
¶ 24       Second, the court’s decision to deny defense counsel’s request for a continuance creates
       serious due process concerns. After denying the request for a continuance, without inquiring
       whether the State objected to the request, the court held a hearing on the merits on the same day
       as the alleged contemptuous act. This decision by the court may have deprived respondent of
       her due process right to have notice of the indirect criminal contempt hearing “within a
       reasonable time in advance of the hearing.” Betts, 200 Ill. App. 3d at 53.
¶ 25       In addition, the record reveals the State’s only witness spoke directly to the court about the
       incident prior to the hearing. We respectfully suggest a judge in this situation may consider
       voluntary recusal after discussing the incident with an eyewitness. See Ill. S. Ct. R. 61 (eff.
       Oct. 15, 1993); see also Mayberry v. Pennsylvania, 400 U.S. 455, 465 (1971) (Due process
       requires another judge to determine the issue of contempt if the judicial target of the verbal
       commentary becomes “personally embroiled” in the conflict. (Internal quotation marks
       omitted.)).
¶ 26       Yet, in spite of the procedural due process irregularities identified above, the sufficiency of
       the evidence dictates the appropriate remedy on appeal. As the State argues, if the evidence
       was sufficient to support the court’s finding of indirect criminal contempt, the proper remedy
       requires this court to vacate respondent’s conviction and remand for further proceedings,
       allowing for procedural due process. See People v. Lopez, 229 Ill. 2d 322, 367 (2008).
       However, if the evidence was not sufficient to establish indirect criminal contempt, then we
       must reverse respondent’s conviction outright, based on the principles of double jeopardy. Id.

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¶ 27        On appeal, the test for determining the sufficiency of the evidence is whether any rational
       trier of fact could have found the essential elements of the charge beyond a reasonable doubt,
       viewing the evidence in the light most favorable to the State. People v. Wheeler, 226 Ill. 2d 92,
       114 (2007). We first consider the court’s findings of fact.
¶ 28        In this case, the trial judge found “the words that were used were very disrespectful to what
       I try to do here each and every day.” As previously stated, a verbal or nonverbal act may
       qualify as an act of indirect criminal contempt in certain situations. Based on the judge’s
       remark, it appears the court found respondent intended to embarrass the judge or bring her
       method of the administration of the law into disrepute.
¶ 29        Viewing respondent’s words in the light most favorable to the State, we are unable to
       conclude the evidence proved respondent intended to embarrass the judge, since respondent
       did not communicate this statement directly to the judge or identify the judge by name while in
       the hallway. In addition, the bailiff’s testimony established respondent did not use profanity
       when referring to the judge as “she.” Instead, respondent complained the respondent was tired
       of waiting all “f*** morning.” Since the bailiff testified respondent entered the hallway after
       the court recessed, at 11:30 a.m., there seems to be an element of truthfulness to respondent’s
       declaration and verbalized frustration. These remarks about the additional delay resulting from
       the recess may constitute protected speech under the first amendment. See New York Times Co.
       v. Sullivan, 376 U.S. 254, 272-73 (1964) (“[T]his Court has held that concern for the dignity
       and reputation of the courts does not justify the punishment as criminal contempt of criticism
       of the judge or his decision.”).
¶ 30        After the State rested its case, the court seemed to make another finding when it
       announced, “In other words, she [did not] do something that she was told to do. This was an
       outburst, and that’s the way I see it.” The record on appeal does not support the court’s finding
       the outburst took place after respondent did not “do something that she was told to do.”
¶ 31        In this case, the petitioner did not allege respondent disobeyed a court order on the date in
       question. Further, the State did not present any evidence of the existence of a court order
       requiring respondent to behave in a certain fashion in the hallway. Finally, the bailiff testified
       that once she told respondent not to use profanity, respondent “simmered” down. Hence, the
       evidence did not establish respondent disobeyed the directive of the court or an officer of the
       court on the day in question.
¶ 32        Consequently, viewing the evidence in the light most favorable to the State after
       considering the multiple ways a respondent may commit indirect criminal contempt, we
       conclude the State’s evidence did not establish respondent was guilty of indirect criminal
       contempt beyond a reasonable doubt. Accordingly, we reverse respondent’s conviction.

¶ 33                                       CONCLUSION
¶ 34      The judgment of the circuit court of Will County is reversed.

¶ 35      Reversed.

¶ 36       JUSTICE HOLDRIDGE, specially concurring.
¶ 37       This is a straightforward case. The only thing we need to decide is whether, taken in the
       light most favorable to the State, the evidence was sufficient to sustain a conviction for indirect

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criminal contempt. Like the majority, I believe that it was not. I would reverse the defendant’s
conviction on that basis alone. I find it unnecessary to address any facts or issues relating to
procedural due process.




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