{ "id": 3312460, "name": "GENE ARMENTROUT, Plaintiff-Appellee, v. GERRY L. DONDANVILLE, Kane County State's Attorney, Defendant-Appellant", "name_abbreviation": "Armentrout v. Dondanville", "decision_date": "1979-01-19", "docket_number": "Nos. 77-159, 77-215 cons.", "first_page": "1021", "last_page": "1030", "citations": [ { "type": "official", "cite": "67 Ill. App. 3d 1021" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "321 N.E.2d 531", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "532" } ], "opinion_index": 0 }, { "cite": "24 Ill. App. 3d 833", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5308469 ], "pin_cites": [ { "page": "834" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/24/0833-01" ] }, { "cite": "179 N.E.2d 602", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "24 Ill. 2d 26", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2802319 ], "opinion_index": 0, "case_paths": [ "/ill-2d/24/0026-01" ] }, { "cite": "230 N.E.2d 41", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "48" } ], "opinion_index": 0 }, { "cite": "86 Ill. App. 2d 340", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2551154 ], "weight": 2, "pin_cites": [ { "page": "354" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/86/0340-01" ] }, { "cite": "356 N.E.2d 429", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "42 Ill. App. 3d 604", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2643400 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/ill-app-3d/42/0604-01" ] }, { "cite": "282 N.E.2d 720", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "51 Ill. 2d 353", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5390219 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/ill-2d/51/0353-01" ] }, { "cite": "282 N.E.2d 1", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "51 Ill. 2d 220", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5390667 ], "opinion_index": 0, "case_paths": [ "/ill-2d/51/0220-01" ] }, { "cite": "359 N.E.2d 487", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "45 Ill. App. 3d 752", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2895988 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/45/0752-01" ] } ], "analysis": { "cardinality": 811, "char_count": 22312, "ocr_confidence": 0.875, "pagerank": { "raw": 2.2308371635143399e-07, "percentile": 0.7789718628383354 }, "sha256": "8bfcb47a685eea6f8072fe6a6f3b3bb5ee40ab2f2bb65ed5ad393a763c7e3853", "simhash": "1:098829267b5fddf7", "word_count": 3687 }, "last_updated": "2023-07-14T17:17:27.014484+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "GENE ARMENTROUT, Plaintiff-Appellee, v. GERRY L. DONDANVILLE, Kane County State\u2019s Attorney, Defendant-Appellant." ], "opinions": [ { "text": "Mr. JUSTICE WOODWARD\ndelivered the opinion of the court:\nDefendant, Gerry L. Dondanville, appeals from two trial court orders, one finding him in contempt of court and imposing a fine of *1000, and the second, an order denying his motion for the appointment of a special assistant state\u2019s attorney to represent him in this appeal. To resolve the issues raised in these appeals, a detailed recitation of the facts and history of the proceeding in the trial court is required and is set out below.\nPlaintiff, Gene Armentrout, and defendant were opposing candidates for the Republican nomination for the office of Kane County State\u2019s Attorney; at the time suit was filed, the defendant was the incumbent state\u2019s attorney. On March 9, 1976, plaintiff filed a complaint against defendant alleging that defendant was an \u201cinterested party\u201d within the meaning of section 6 of \u201cAn Act in regard to attorneys general and state\u2019s attorneys\u201d (Ill. Rev. Stat. 1975, ch. 14, par. 6) and therefore he should be replaced as state\u2019s attorney in the investigation of certain matters relating to alleged criminal conduct on the part of plaintiff; the complaint also requested that a special prosecutor be appointed to conduct such investigation. The trial court, finding defendant to be an \u201cinterested party\u201d within the meaning of section 6, issued an injunction enjoining defendant and his assistant state\u2019s attorneys from presenting any evidence to the Kane County grand jury involving allegations of violations of statutes or ordinances by plaintiff. Further, on March 18, the trial court, in an ex parte order, appointed Robert Casey as special prosecutor to investigate the alleged criminal conduct on plaintiff\u2019s part in a matter involving one Richard Montress; the order also required defendant to turn over to the special prosecutor forthwith all information including all documents in his possession regarding the \u201cMontress affair.\u201d On April 7, defendant filed an answer to the complaint; subsequently, on April 14, defendant was personally served with a copy of the ex parte order of March 18. Defendant filed a motion alleging that as he was not in default under the complaint, having filed his answer 29 days after service of summons, the court was without jurisdiction to enter its order of March 18; defendant also petitioned for a change of venue. Following continuances by both sides, plaintiff filed an answer to defendant\u2019s motion to vacate and objections to defendant\u2019s petition for a change of venue.\nOn May 3, the trial court denied defendant\u2019s motion to vacate the order of March 18 and defendant\u2019s petition for a change of venue, on the ground that an issue of substance had been previously decided; however, the order further allowed defendant to renew his motion for a change of venue if further litigation regarding this matter arose. On May 10, the defendant filed an affidavit stating that the documents and information requested had been turned over to the special prosecutor pursuant to the order of March 18; the special prosecutor filed his receipt acknowledging delivery of those items. On June 28, the trial court entered a supplemental order changing the designation of special prosecutor to that of special state\u2019s attorney and granted the special state\u2019s attorney the same powers and authorities in regard to the investigation as would be possessed by the Kane County State\u2019s Attorney.\nOn July 16, the special state\u2019s attorney moved to expand his authority to allow him to investigate any and all alleged criminal conduct relating to plaintiff while he was an assistant state\u2019s attorney, as opposed to merely matters concerning the \u201cMontress affair.\u201d Defendant\u2019s first assistant state\u2019s attorney appeared before the court to request a continuance. The trial court denied defendant\u2019s motion for a continuance and in a written order dated July 21, ordered defendant and all his personnel to turn over to the special state\u2019s attorney any and all additional material pertaining or relating to any alleged criminal activity on the part of plaintiff; further, defendant and his staff were ordered to return to the circuit clerk\u2019s office all court files relating to such charges involving plaintiff. Defendant\u2019s first assistant filed an affidavit stating that all pertinent files had been returned to the circuit clerk\u2019s office and that a listing of those files had been given to the special state\u2019s attorney.\nOn July 30, both the special state\u2019s attorney and defendant appeared in court on the special state\u2019s attorney\u2019s motion to require defendant to report under oath his compliance with the July 21 order; defendant at that time requested a hearing regarding the order which expanded the authority given to the special state\u2019s attorney. The trial court denied both defendant\u2019s request for a hearing and the motion of the special state\u2019s attorney, the court being of the opinion that the affidavit of defendant\u2019s first assistant fully complied with the court\u2019s order. At this time defendant disclaimed the affidavit as being without his authority or direction.\nThe special state\u2019s attorney filed a motion asking the court to reconsider its denial of his motion to have defendant state under oath that he had complied with the court order of July 21. In a written order of August 26, the trial court ordered the defendant to report under oath by September 7, as to whether or not he had complied with the July 21 order, and that by September 7, he deliver to the special state\u2019s attorney all additional material relating to this matter not previously delivered. At this point, defendant retained private counsel who petitioned for clarification and rehearing on all prior orders of the court regarding disclosures. On September 10, the special state\u2019s attorney petitioned for a rule to show cause why defendant should not be held in contempt for willful failure to comply with the order of August 26; the special state\u2019s attorney also filed objections to defendant\u2019s petition for a rehearing.\nOn September 15, defendant moved to vacate all disclosure orders previously entered in this case; the court took the matter under advisement and continued the case until September 20 for additional motions and petitions for a rule to show cause. On September 20, the trial court denied defendant\u2019s motion to vacate and for rehearing and a hearing on the petition for a rule to show cause was set for September 29.\nOn September 29, following arguments by counsel, the trial court denied the following motions made by defendant: motion to strike and/or dismiss the petition for rule to show cause; motion for stay of proceedings; motion to seek court\u2019s statement of material fact and presentment for leave to appeal under Supreme Court Rules; and a motion to strike the caption. Further, the court granted the special state\u2019s attorney\u2019s petition for a rule to show cause. Defendant was ordered to appear on October 13 and show cause why he should not be punished for contempt of court for disobeying the orders entered by the court on July 21 and August 26.\nOn October 13, defendant\u2019s attorney filed an affidavit to the effect that defendant was delayed in returning from Florida and requested a continuance. The trial court granted a continuance until October 19 and denied the special state\u2019s attorney\u2019s request for a body attachment. In the meantime, it appears that on October 8, defendant filed a notice of appeal from the trial court\u2019s order denying defendant\u2019s motion to vacate the disclosure orders, alleging that the circuit court lacked jurisdiction of the subject matter to enter the order.\nOn October 19, defendant, in open court, represented that the court\u2019s orders had been complied with and that there was nothing further to turn over; thereupon defendant\u2019s counsel moved to dismiss the rule to show cause as there had now been compliance with the court\u2019s orders. The special state\u2019s attorney stated that on the basis of defendant\u2019s representation, he was satisfied that the court\u2019s orders had now been complied with. However, the trial court took the position that the rule to show cause proceeding was separate and apart from the actual compliance with those orders. The trial court, while noting that defendant\u2019s position was that the court did not have the power to enter the order, cited the numerous delays occasioned by defendant and noted that defendant\u2019s compliance was not in writing nor under oath as requested. The trial court then several times inquired whether the only reason defendant had not previously complied with the orders was because he regarded them to be without jurisdiction. Defendant\u2019s attorney ultimately responded,\n\u201cMR. MARINACCIO [defense counsel]: I have had a brief conference with him, Your Honor, and he has indicated that it has been his opinion all along that the Court is incorrect in the manner in which it has handled this case. That the orders the Court entered did lack jurisdiction, the Court did not have the authority to do the things it did and that\u2019s the reason he resisted in complying with the orders of Court.\u201d\nThe' trial court then stated, \u201cAll right. Now, we have a hearing, is that right, we have had a hearing?\u201d Defense counsel questioned whether the proceedings constituted a hearing. The trial court offered each side the opportunity to present any evidence; the special state\u2019s attorney stated that he had no evidence to offer under the circumstances, and defense counsel responded that defendant was pursuing his legal rights by the filing of the motions and objections. Neither side wished to present anything further, nor did either side request a continuance for the purpose of gathering further evidence to present. The matter was then continued for the submission of memorandums of law by both sides.\nOn November 24, the trial court issued a written order holding defendant in contempt of court and imposing a fine of *1000. The order gave a well-detailed history of this litigation in chronological order and set out with great care the reasons for defendant being held in contempt. Defense counsel then requested that a special state\u2019s attorney be appointed to represent defendant on appeal. The trial court was of the opinion that the appointment of such a special state\u2019s attorney to represent defendant on appeal would place the county in the unusual position of both paying to sustain the trial court\u2019s decision and then paying someone else to overturn the judge\u2019s decision, and so denied the motion for the appointment of a special state\u2019s attorney on appeal. Defendant now appeals from both the finding of contempt and the denial of his motion for the appointment of counsel on appeal.\nDefendant\u2019s first contention on appeal is that he was found guilty of indirect criminal contempt and as such was denied his constitutional rights to notice of the charges, hearing before an impartial court, trial by jury and the right to be proved guilty beyond a reasonable doubt.\nWe agree with defendant that he was found guilty of indirect criminal contempt. In cases of indirect criminal contempt, a defendant is entitled to a formal hearing on the contempt charges and to all appropriate constitutional rights. (People v. Winchell (1977), 45 Ill. App. 3d 752, 359 N.E.2d 487.) Nevertheless, we do not believe that defendant was denied his right to a hearing before an impartial court, notice of the charges and proof beyond a reasonable doubt. The record reveals that the petition for a rule to show cause why defendant should not be held in contempt was filed on September 15 and set for hearing on September 29. While defendant did not appear on September 29, he was represented by counsel who appeared and argued several motions. The court entered the rule to show cause and set it for hearing on October 13 at the request of the defense counsel; a continuance of the rule was allowed to October 19, again at the request of defense counsel; on October 20 the rule was finally heard. While it is true that originally the rule to show cause was brought by the special state\u2019s attorney and it was the trial court who directed the contempt proceeding against defendant, the activities which formed the basis of the contempt in both the rule sought by the special state\u2019s attorney and the finding of contempt by the trial court were the same in both instances.\nDefendant\u2019s contention that the trial court should have recused itself is without merit. First, defendant at no time subsequent to the filing of the petition for a rule to show cause requested a change of judges, despite the fact that the previous April the trial court in denying defendant\u2019s motion for a change of venue specifically reserved to defendant that right if the litigation continued. Secondly, despite defendant\u2019s allegation, the record does not suggest or reveal bias or prejudice against defendant on the part of the trial court. Nor does it appear that the trial court here had become so personally embroiled in the contemptuous events that it should have recused itself. See People v. Jashunsky (1972), 51 Ill. 2d 220, 282 N.E.2d 1.\nWe are also of the opinion that based on the record defendant did receive a hearing and the opportunity to present witnesses and evidence, nor was he denied the right to be proved guilty beyond a reasonable doubt. Defense counsel, as well as the special state\u2019s attorney, declined to present any evidence when asked to do so by the trial court; nor did the defense counsel request a continuance for such purpose. In criminal contempt prosecution, the fundamental fairness standard of due process, rather than the due process components of the Fifth and Sixth Amendments, is to be applied. (People v. Winchell.) In view of the above circumstances, we cannot agree that the hearing was so fundamentally unfair as to deny defendant due process of law.\nIt is clear, however, that defendant\u2019s fine must be reduced from *1000 to *500. In a contempt proceeding, where the sentence actually imposed exceeds six months imprisonment or a fine in excess of *500, the record must reflect that the defendant was afforded a jury trial or knowingly and understanding^ waived his right in open court. (County of McLean v. Kickapoo Creek, Inc. (1972), 51 Ill. 2d 353, 282 N.E.2d 720.) The record here does not reflect that such a waiver was obtained or was given by defendant. Accordingly, we therefore reduce defendant\u2019s fine from *1000 to *500. See People v. Roberts (1976), 42 Ill. App. 3d 604, 356 N.E.2d 429; City of Chicago v. King (1967), 86 Ill. App. 2d 340, 230 N.E.2d 41.\nWe turn next to defendant\u2019s contention that the trial court was without authority to enter mandatory orders compelling defendant to turn over information to the special state\u2019s attorney; further, defendant argues that the alleged delays in this litigation, occasioned by the good faith filing of motions by him, do not constitute a basis for a finding of indirect criminal contempt. According to defendant, he had maintained throughout the proceedings that the trial court was without jurisdiction to enter the turnover orders, and that the motions and objections filed on his behalf were good faith efforts to challenge that jurisdiction.\nIn testing the validity of a finding of contempt a court may review and should review the validity of the underlying production orders. (Stimpert v. Abdnour (1962), 24 Ill. 2d 26, 179 N.E.2d 602.) Contempt will not lie for disobeying an order which is void for want of jurisdiction of the parties or subject matter or because the court has no power to decide the particular matter. (City of Chicago v. King.) Illinois decisions have been in accord with the Federal cases in holding that if the issuing court has the necessary jurisdiction, its order, no matter how erroneous, must be obeyed under pain of contempt, until set aside. City of Chicago v. King (1967), 86 Ill. App. 2d 340, 354, 230 N.E.2d 41, 48.\nDefendant further argues that the trial court prematurely and without any authority, invaded the province of the executive branch, to wit, the office of the special state\u2019s attorney, before the special state\u2019s attorney had tried to obtain the material by means available to him, namely, the impanelling of a special grand jury. However, defendant does not question the authority of the trial court to order the appointment of the special state\u2019s attorney to investigate these matters; the special state\u2019s attorney stands in the position of the state\u2019s attorney and is entitled to the material related to the matters he is investigating. Given the power to make such appointment, it is unreasonable to hold that the trial court does not then have the power to assure that the materials of the office are available to the special state\u2019s attorney. Defendant\u2019s argument actually boils down to a choice between two methods of compelling the turnover of the material; by court order or by impanelling a special grand jury before which defendant could be summoned and could testify as to the material in his possession relating to the matters under investigation. Defendant has suggested no compelling reason for taking the grand jury approach over the trial court\u2019s issuing a turnover order. Therefore defendant\u2019s contention that the trial court was without jurisdiction to issue the turnover orders is without merit.\nDefendant also argues that he should not be held in contempt for the delays caused by his filing of motions and objections to the proceedings. Careful review of the record reveals that having resisted compliance with the court orders of July 21 and August 26 with the filing of motions and objections, even seeking an interlocutory appeal, defendant, threatened by a petition for a rule to show cause, finally \u201ccomplied\u201d on October 20 by merely representing orally to the trial court and the special state\u2019s attorney that there was nothing further to turn over to the special state\u2019s attorney. It is clear from the record that such \u201ccompliance\u201d could have been made at the time either of the court orders was entered. Had defendant seriously wished to challenge the jurisdiction of the trial court to enter the turnover orders, he could have refused to comply at the time the orders were entered, be held in contempt, and have taken the matter up on appeal then and there. While recognizing the rights of litigants to file motions and objections, we cannot say that the activities of defendant here were done in \u201cgood faith\u201d but were instead delaying tactics which ultimately resulted in compliance with the trial court\u2019s orders long after they should have been complied with.\nViewing the entire proceedings in the light of the above facts and the carefully detailed contempt order in this case, we hold that the actions of defendant in this case clearly support the trial court\u2019s finding that he was in contempt of court.\nDefendant has also appealed from the denial of his motion for the appointment of a special state\u2019s attorney to represent him on appeal. In denying defendant\u2019s motion, the trial court was concerned that such an appointment would create the unusual situation in which the county would be paying both for the sustaining of the trial court\u2019s decision and for the attack on that decision. On appeal, it is argued by the special state\u2019s attorney that as the motion was presented on December 2 when defendant had become a private citizen, his term of office having expired on November 30, he no longer had standing to pursue a motion in his former capacity as state\u2019s attorney.\nThe appointment of a special state\u2019s attorney involves the exercise of judicial discretion in the determination of whether a contingency authorizing the exercise of such power has arisen. (People ex rel. Baughman v. Eaton (1974), 24 Ill. App. 3d 833, 834, 321 N.E.2d 531, 532.) We do not agree with the reasoning of the trial court that such an appointment be denied for the sole reason that the county has to pay the cost for both sides of the appeal. Nor do we agree with the latter argument advanced by the special state\u2019s attorney; clearly, where the events which form the basis of the action against the state\u2019s attorney occurred during his tenure of office, the fact that the request for counsel is made after he has left office does not control whether or not he is entitled to the appointment of special counsel to represent him.\nHowever, despite the lack of merit in the above arguments, the record here clearly supports the trial judge\u2019s denial of defendant\u2019s motion. Defendant argues that his actions in this litigation were done to protect the office of state\u2019s attorney. However, the record reflects that during this litigation defendant was not performing necessary functions of his office but was essentially on a \u201cprivate frolic\u201d of his own. The delays in this case were most often occasioned by defendant\u2019s private demands on his time, namely, vacations, job interviews and preparing for an out-of-State bar examination. Therefore, we hold that no abuse of discretion was committed by the trial court in denying defendant\u2019s motion for the appointment of a special state\u2019s attorney to represent him on this appeal.\nTherefore, we affirm the finding of contempt and the denial of defendant\u2019s motion for an appointment of a special state\u2019s attorney on appeal. We remand the cause to the circuit court of Kane County with directions that an amended mittimus issue reducing the fine imposed against defendant to the sum of *500.\nAffirmed and remanded with directions.\nSEIDENFELD, P. J., and GUILD, J., concur.\n\u201cWhenever the attorney general or state\u2019s attorney is sick or absent, or unable to attend, or is interested in any cause or proceeding, civil or criminal, which it is or may be his duty to prosecute or defend, the court in which said cause or proceeding is pending may appoint some competent attorney to prosecute or defend such cause or proceeding, \u00b0 \u00b0", "type": "majority", "author": "Mr. JUSTICE WOODWARD" } ], "attorneys": [ "Douglas Drenk and Lee A. Marinaccio, both of A. E. Botti Law Offices, of Wheaton, for appellant.", "Robert F. Casey, Special State\u2019s Attorney, of Geneva (Gerald M. Sheridan, Jr., Special Assistant State\u2019s Attorney, of counsel), for appellee." ], "corrections": "", "head_matter": "GENE ARMENTROUT, Plaintiff-Appellee, v. GERRY L. DONDANVILLE, Kane County State\u2019s Attorney, Defendant-Appellant.\nSecond District\nNos. 77-159, 77-215 cons.\nOpinion filed January 19, 1979.\nDouglas Drenk and Lee A. Marinaccio, both of A. E. Botti Law Offices, of Wheaton, for appellant.\nRobert F. Casey, Special State\u2019s Attorney, of Geneva (Gerald M. Sheridan, Jr., Special Assistant State\u2019s Attorney, of counsel), for appellee." }, "file_name": "1021-01", "first_page_order": 1043, "last_page_order": 1052 }