{
  "id": 5436473,
  "name": "PATRICIA A. MARCISZ, v. MATTHEW J. MARCISZ, Appellee.-(The People of the State of Illinois, Appellant.)",
  "name_abbreviation": "Marcisz v. Marcisz",
  "decision_date": "1976-11-15",
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  "last_updated": "2023-07-14T19:48:37.889160+00:00",
  "provenance": {
    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [],
    "parties": [
      "PATRICIA A. MARCISZ, v. MATTHEW J. MARCISZ, Appellee.\u2014(The People of the State of Illinois, Appellant.)"
    ],
    "opinions": [
      {
        "text": "MR. JUSTICE GOLDENHERSH\ndelivered the opinion of the court:\nDefendant, Matthew J. Marcisz, was found guilty of contempt in the circuit court of Will County and sentenced to six months imprisonment to be served at the Illinois State Penal Farm. The appellate court reversed and remanded (32 Ill. App. 3d 467), and we allowed the People\u2019s petition for leave to appeal.\nThe facts are stated in the appellate court\u2019s opinion and need not be repeated here. Defendant was held in contempt for repeated violation of that portion of a divorce decree which enjoined him from interfering with his former wife\u2019s occupancy of the marital residence and from otherwise molesting her. The appellate court held that the contempt was criminal rather than civil, that \u201cdefendant was deprived of his constitutional right to the assistance of counsel and his right not to incriminate himself,\u201d reversed the judgment, and remanded for a new hearing. (32 Ill. App. 3d 467, 473, 474.) The People contend that because the contempt stems from defendant\u2019s violation of the injunction contained in the divorce decree, \u201cThe entire contempt action is in effect a continuation of the divorce proceedings and is therefore civil in nature.\u201d\nThe appellate court, on its own motion, ordered that the People be \u201csubstituted as appellee\u201d and appointed the State Appellate Defender to represent defendant. The State\u2019s Attorney of Will County moved that an order be entered \u201callowing The People *** to withdraw from the *** cause *** inasmuch as this matter is a civil action over which the state\u2019s attorney *** and the People *** have no jurisdiction to appeal.\u201d The appellate court held that \u201cthis is an appropriate case for the appointment of the People as substitute appellee ***\u201d and denied the motion. The People contend that \u201cThe State was erroneously substituted as appellee in this civil contempt action\u201d and that \u201csuch an appointment does not come within the statutory duties of the State\u2019s Attorney. Ill. Rev. Stat., ch. 14, sec. 5 (1973).\u201d\nIn People ex rel. Chicago Bar Association v. Barasch, 21 Ill. 2d 407, in considering the respondent\u2019s contention that the contempt there involved was criminal rather than civil, the court said:\n\u201cAt the outset we are confronted with respondent\u2019s contention that this is a criminal proceeding or in the nature of a criminal proceeding, and that the rules of criminal procedure must be foHowed, including proof of the charges beyond a reasonable doubt, application of limitations similar to the Statute of Limitations, and formality of information.\nContempt proceedings, while usually called civil or criminal, are, strictly speaking, neither. They may best be characterized as sui generis, and may partake of the characteristics of both. [Citations.] Proceedings in the nature of criminal contempt have been defined as those directed to preservation of the dignity and authority of the court, while it has been said that civil contempts are those prosecuted to enforce the rights of private parties and to compel obedience to orders or decrees for the benefit of opposing parties. [Citations.] These principles, while seemingly plain and adequate, are most difficult to apply. The line of demarcation in many instances is indistinct and even imperceptible. [Citation.] A further guide may be found in the purpose of punishment. Imprisonment for criminal contempt is inflicted as a punishment for that which has been done, whereas imprisonment for civil contempt is usually coercive and, as was said in the case of In re Nevitt, (8th cir.) 117 Fed. 448, \u2018he [the contemnor] carries the key of his prison in his own pocket.\u2019 \u201d 21 Ill. 2d 407, 409-10.\nIn addition to the charges of repeated violation of the injunction, the petition for an order to show cause alleged that defendant had willfully failed to pay child support.\nIn its order the circuit court said:\n\u201cDefendant found to be in willful contempt of this Court for failure to obey the order contained in Paragraph 4, Page 3 of the Decree heretofore entered in that he willfully and intentionally violated the injunction order therein ordered and did the acts the Court has found and the proofs have shown. Defendant is found to be in willful contempt of this Court and is sentenced to the Illinois State Penal Farm at Vandalia for a period of 6 months. Insofar as non-payment of child support and any other matters, Court finds proof insufficient to prove contemptible [sic] in regard to same.\u201d\nThe transcript of the proceedings and the circuit court\u2019s findings leave no doubt that the order was intended not to \u201ccompel obedience\u201d to the provisions of the decree but to preserve the \u201cdignity and authority of the court\u201d and to punish defendant for past transgressions. We agree with the appellate court that the contempt was criminal and that defendant was entitled \u201cto notice, a reasonable opportunity to defend, the assistance of counsel [citations], and the right to be proven guilty beyond a reasonable doubt and not be compelled to testify against himself. [Citations.] \u201d 32 Ill. App. 3d 467, 473.\nWe consider next whether the appellate court erred in substituting the People as appellee in the contempt proceedings and in denying the State\u2019s Attorney\u2019s motion to withdraw. Contempts are not crimes defined by statute and in the circuit court may be prosecuted, as in this case, by counsel for a litigant, by the State\u2019s Attorney or by an amicus curiae appointed by the court. (People v. Goss, 10 Ill. 2d 533.) It would appear that the same rule should apply to the prosecution or defense of the appeal from the order of the circuit court entered in the contempt proceeding. Section 5 of \u201cAn Act in regard to attorneys general and state\u2019s attorneys\u201d provides that it is the duty of the State\u2019s Attorney \u201cTo commence and prosecute all actions, suits, indictments and prosecutions, civil and criminal, in the circuit court for his county, in which the people of the State or county may be concerned.\u201d (Ill. Rev. Stat. 1975, ch. 14, par. 5.) We are of the opinion that this contempt proceeding, designed to preserve the dignity and authority of the court, and in which the sentence imposed was clearly intended to punish defendant rather than compel obedience for the benefit of his children and former wife, was an action \u201cin which the people of the State or county may be concerned.\u201d The State\u2019s Attorney, however, is not merely a ministerial officer but is vested with a large measure of discretion. (People ex rel. Hoyne v. Newcomer, 284 Ill. 315.) In the exercise of that discretion he has the responsibility of determining what offense should be charged (People v. Rhodes, 38 Ill. 2d 389) and may exercise discretion concerning the prosecution and defense of appeals. Here, in the exercise of his discretion, the State\u2019s Attorney sought to be relieved of the appointment to defend the appeal and the appellate court erred in denying the motion.\nConcerning the question whether the appellate court erred in substituting the People as appellee, the People were appropriately substituted whether the appeal was to be defended by the State\u2019s Attorney or by an amicus curiae appointed by the court.\nFor the reasons stated the judgment of the appellate court insofar as it denied the motion of the State\u2019s Attorney for leave to withdraw is reversed and in all other respects the judgment is affirmed.\nAffirmed in part and reversed in part.",
        "type": "majority",
        "author": "MR. JUSTICE GOLDENHERSH"
      }
    ],
    "attorneys": [
      "William J. Scott, Attorney General, of Springfield, and Martin Rudman, State\u2019s Attorney, of Ottawa (James B. Zagel, Jayne A. Carr, and Anne Taylor, Assistant Attorneys General, and Rodney B. Lechwar,- Assistant State\u2019s Attorney, of counsel), for the People.",
      "Rogert Agostinelli, Deputy Defender, and Mark W. Burkhalter, Assistant Defender, of the Office of the State Appellate Defender, of Ottawa, for appellee."
    ],
    "corrections": "",
    "head_matter": "(No. 48029.\nPATRICIA A. MARCISZ, v. MATTHEW J. MARCISZ, Appellee.\u2014(The People of the State of Illinois, Appellant.)\nOpinion filed November 15, 1976.\nWilliam J. Scott, Attorney General, of Springfield, and Martin Rudman, State\u2019s Attorney, of Ottawa (James B. Zagel, Jayne A. Carr, and Anne Taylor, Assistant Attorneys General, and Rodney B. Lechwar,- Assistant State\u2019s Attorney, of counsel), for the People.\nRogert Agostinelli, Deputy Defender, and Mark W. Burkhalter, Assistant Defender, of the Office of the State Appellate Defender, of Ottawa, for appellee."
  },
  "file_name": "0206-01",
  "first_page_order": 278,
  "last_page_order": 283
}