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The power behind the robe: a primer on contempt law: judges have tremendous inherent authority to enforce orders and punish noncompliance. But that power - the power of contempt - is a confusing mix of civil and criminal law concepts overlaid with constitutional implications. And it's not unlimited. Here's a review.


A court's inherent power to punish those who interfere with its administration of justice or to coerce compliance with an order falls within the realm of contempt law. unfortunately, the law of contempt is in many ways confusing and complex.

Nonetheless, litigators should familiarize themselves with the law of contempt. This article looks at the two broad groupings of contempt--1) civil and criminal and 2) direct and indirect--and considers the purposes behind and procedures and sanctions applicable to each.

Civil versus criminal contempt

The purpose of contempt is to compel compliance with court orders (1) and punish conduct that either obstructs or interferes with the administration of justice or brings it into disrepute. (2)

Contempt is typically divided into civil and criminal branches. Criminal contempt seeks to punish past behavior. Civil contempt seeks to compel the contemnor to act. (3) In either case, a contempt finding vindicates a court's authority. But, as is discussed more fully below, criminal contempt triggers important protections for the defendant that civil contempt does not.

The power to hold a person or entity in contempt arises from a court's inherent powers. (4) While the state legislature may enlarge the court's power to issue a contempt ruling for violating a statute, (5) lawmakers may not restrict the state court's inherent ability to issue contempt orders. (6) Federal courts, on the other hand, derive their contempt power through Congress. (7)

While contempt is commonly described as civil or criminal, it is really neither. It can best be defined as sui generis and takes the characteristics of both. (8)

Criminal contempt. Criminal contempt seeks to punish past misconduct. (9) The rationale is much the same as for other criminal punishment, including retribution, deterrence, and vindication of accepted norms. (10)

Punishable conduct includes "disrespectful, disruptive, deceitful, and disobedient acts (or failures to act) which affect judicial proceedings." (11) Examples include outbursts in court, statements made in open court suggesting that trial judges have engaged in criminal conduct, dishonest filings, improper communications with jurors, or disobedience of a court's order. (12)

The purpose of a criminal contempt sanction is to show that the court deserves respect, that its orders must be followed, and that fraud against it will be punished. "One who defies the public authority and willfully refuses his obedience, does so at his peril." (13)

In imposing a fine for criminal con tempt, the trial judge may consider the extent of the willful and deliberate defiance of the court's order, the seriousness of the contumacious behavior, the public interest in ending the defendant's defiance, and the importance of deterring future acts. Hence, "great reliance must be placed upon the discretion of the trial judge." (14)

Civil contempt. The purpose of civil contempt is to compel the contemnor to perform a particular act. It is remedial in nature. (15) Attributes of civil contempt are that (1) the contemnor is able to take the action demanded and (2) no further sanctions are imposed if the contemnor complies. (16) In short, the contemnor possesses the "keys to his cell." (17)

While the contemnor's intent is irrelevant, 18 inability to perform is a defense, so long as the infeasibility is not caused by the contemnor. (19)

distinguishing between the two. Criminal contempt is typically retrospective and civil contempt is prospective. (20) This distinction is critical because of the constitutional due process rights that come into play for criminal, but not civil, contempt. For example, in Feiock v Feiock, (21) the U.S. Supreme Court found that a father's failure to pay child support would be deemed civil contempt if he could purge the contempt sentence by paying the arrearage.

In Feiock, the father had been brought before the California state court on nine counts of contempt and was convicted on five. He was sentenced to jail for five days on each count--the sentence was suspended--and placed on probation for three years.

As a condition of probation, he was required to make monthly payments of $150 in child support and $50 on the accumulated arrearage. (22) Thus, the sanction was criminal in that the court imposed a jail term for the contemnor's repeated failure to pay child support. However, the sanction was civil in that the sentence could be revoked if the contemnor paid the support on time.

According to the Supreme Court, if the state trial court ruled on remand that the contemnor could purge his contempt by paying off his arrearage, the contempt was civil in nature and not subject to the Due Process Clause's requirements for criminal prosecution. (23) If, however, the contemnor was required to serve the suspended sentence regardless of whether he paid the child support, then it was criminal contempt and due process rights would apply.

The same conduct, however, may form the basis of both civil and criminal contempt. (24) For example, if the contemnor violates a court order, the court may impose civil contempt sanctions to coerce future compliance while also imposing criminal contempt sanctions for the past violation.

For example, Susan McDougal faced both criminal and civil contempt charges during Kenneth Starr's investigation into the Whitewater land dealings with Bill and Hillary Clinton. (25) The civil contempt charge stemmed from McDougal's refusal to testify before a grand jury on September 4, 1996, and answer questions from Starr, the independent counsel investigating President Clinton's role in the Whitewater land deal. (26)

Pursuant to 28 USC section 1826(a), the court held McDougal in civil contempt until she testified, her testimony was no longer necessary, or the grand jury's term expired. The court further held that the contempt violation would last no longer than 18 months pursuant to the civil contempt statute. (27)

In April 1998, Susan McDougal was called before the grand jury again. She was indicted for obstruction of justice and two criminal contempt charges for failing to testify before the grand jury in September 1996 and April 1998. (28) A jury acquitted McDougal on the obstruction of justice charge and deadlocked on the two contempt charges. As a result, the judge declared a mistrial on the criminal contempt charges. (29)

McDougal's case is a good example of civil and criminal contempt charges applying to the same conduct. The civil contempt compelled obedience to a court's order, the criminal contempt punished violation of a court order.

Direct versus indirect contempt

The other critical distinction is between "direct" contempt, which occurs in the court's presence, and "indirect" contempt, which does not. The distinction is important in determining the type and character of proof required to establish contempt, with defendants in indirect-contempt cases usually enjoying greater procedural protections (see below).

"Direct" and "indirect" contempt defined. Direct contempt occurs in the presence of the court and is limited to actions seen and known by the judge. (30) Put another way, in direct contempt cases, the judge has personal knowledge of all of the acts constituting the contempt. (31) However, an act outside the presence of the judge might be contempt if it occurs in a constituent part of the court, i.e., in the constructive "presence of the court." (32)

For example, submitting a document that shows disrespect for the court is considered direct contempt even though the act technically took place outside the presence of a court. In one recent case a defendant who admitted violating her probation and had her suspended sentence revoked signed the revocation order "Kiss My Ass." She then told her probation agent to give the order to the judge.

Seeing the comment, the judge scheduled a contempt hearing, found the defendant in contempt, and sentenced her to 90 additional days in jail. The court ruled that for purposes of direct contempt, the "presence of the court" comprised all elements of the system, not simply a personal appearance before a judge. (33)

Indirect contempt covers acts that are not admitted and do not occur in the physical or constructive presence of the court. Proof must be presented to support a finding of indirect contempt. (34)

There are different procedural and evidentiary requirements of proof for direct and indirect contempt. Because direct contempt usually occurs in the presence of the judge, defendants enjoy fewer constitutionally protected rights than those charged with indirect contempt. (35)

Direct criminal contempt. Since direct criminal contempt occurs in the presence of the court and holds the court in disrepute, no formal charges are required and no evidentiary hearing or record is necessary. (36) However, contemnors normally have a right to notice of the act for which they are being punished and may make a statement of allocution prior to sanctions being imposed. (37) Because the power to issue direct criminal contempt is essential to the efficient administration of the court system and to maintain order during judicial proceedings, it is within the court's power to issue an order of direct criminal contempt. (38)

In People v Smith, the defendant was found guilty of four counts of aggravated battery and sentenced to a 15-year prison term. (39) At the sentencing hearing, the court began by reviewing the pre-sentence report. The defendant interrupted and the following exchange took place:

THE DEFENDANT: your honor, could you just sentence me so I could get the f*** up out your face.

THE COURT: What did you say?

THE DEFENDANT: Could you just sentence me?

THE COURT: Did you hear what he said? Did you get it down? read it back for me.

THE DEFENDANT: Do you want me to repeat it?


THE DEFENDANT: Could you just sentence me so I could get the f*** up out of your face. (40)

The court found the defendant in contempt of court and sentenced him to six additional months to be run consecutively with his 15-year term. The appellate court upheld the sentence, noting that criminal contempt is conduct designed to "embarrass, hinder, or obstruct a court in its administration of justice or derogate from its authority or dignity." (41)

Despite the defendant's argument that his comment acknowledged the court's judicial authority to impose punishment and his use of profanity was out of exasperation rather than a personal attack on the judge, the court ruled that a rational trier of fact could find the defendant in contempt. The interruption of the judge hindered the court in its administration of justice and the use of profanity derogated from the dignity of the court. (42)

However, not every interruption that is "offensive to the sensibilities of the judge" or embarrassing to the court and in derogation of its dignity is direct criminal contempt. (43) In People v Hanna, the defendant stated, "The way things are going now my side ain't ever going to be heard--uh--but I'm going to get it--I'm going to get it on the record. I'm going to make a record, because I know what happened. This Court has messed up so much already it's pathetic."

The defendant made these comments while appearing pro se and arguing a motion. This comment was ruled not contemptuous because the statement was not spoken in a loud or boisterous manner and was an isolated, albeit disparaging, statement. (44)

As noted above, contemptuous acts not personally seen by the judge but occurring in an integral or constituent part of the court may be direct criminal contempt. (45) What constitutes contempt committed "in the presence of the court" depends upon both the physical location and nature of the act. (46)

Hence, filing documents in the clerk's office is an act "within the presence of the court," while assaults in a court anteroom, a courtyard outside the courtroom, or a nearby corridor are not. (47) In these "constructive" direct criminal contempt cases, however, facts outside the judge's personal knowledge must be proven.

Accordingly, "the same procedural requirements apply to constructive direct criminal contempt proceedings as apply to indirect criminal contempt proceedings." 48 Thus, constructive direct criminal contempt requires proof beyond a reasonable doubt (49) and respondents are afforded constitutional rights like defendants in indirect criminal proceedings. (50) They have a right to a jury trial unless the matter is treated as a petty offense. (51)

Violations of an order are punishable as criminal contempt even though the order is set aside on appeal or the basic action has become moot. (52) In determining any sanction for criminal contempt, either direct or indirect, the court must consider the defendant's financial resources and the seriousness of the burden to that particular defendant. (53)

An order of direct criminal contempt must be drafted carefully, as the Illinois Supreme Court held in People v Loughran:
 The power to adjudge guilt and impose
 punishment without proof or examination,
 and without plea, trial or issue exists
 in no other situation or proceeding. It is
 an exception to our constitutional guarantees
 which we would regard as intolerable
 in any other proceeding or for any other
 purpose. It is readily susceptible of abuse
 and fraught with danger not only to personal
 liberties but to the respect and confidence
 which our courts must maintain.
 Although such a power is universally recognized
 as essential to an orderly and effective
 administration and execution of
 justice, it should be exercised with utmost
 caution and strictly restricted to acts and
 facts seen and known by the court, and
 no matter resting upon opinions, conclusions,
 presumptions, or inferences should
 be considered. (54)

Accordingly, the court must enter a written order setting forth fully and clearly the facts out of which the contempt arose so the reviewing court may determine if the committing court had jurisdiction to enter the order. All of the essential facts must be fully set forth. No part can be based on presumptions or inferences and no facts that did not occur in the presence of the court should be considered in adjudging guilt or affixing punishment. (55) (The exception would be constructive direct criminal contempt, where the facts that occurred outside the presence of the court would be proved beyond a reasonable doubt.)

These rules regarding a carefully written order are wisely applied to any contempt proceeding.

Indirect criminal contempt. Indirect criminal contempt proceedings afford the alleged contemnor all of the constitutional and procedural rights a criminal defendant receives. (56) The court must advise the respondent of the nature of the charge against him, set it forth specifically by citation, and give him the opportunity to answer. (57) He has the constitutional protections of the privilege against self-incrimination, a presumption of innocence, and the right to be proved guilty beyond a reasonable doubt. (58)

In addition, he has a right to counsel (and to appointed counsel if he is indigent), to a public trial, to confront witnesses, to compulsory process, to present witnesses, to be personally present at trial, and to testify or not in his own defense. (59) He also has a right to a jury trial, unless the punishment is no more than six months imprisonment or a $500 fine, and thus a petty offense. (60)

Private counsel may institute indirect criminal contempt proceedings, (61) as may the state's attorney, counsel for a litigant, or amicus curiae appointed by the court. (62)

Direct civil contempt. Like direct criminal contempt, direct civil contempt occurs in the actual or constructive presence of the court. However, unlike criminal contempt, which seeks to punish the respondent, civil contempt seeks to force him or her to do something.

There are usually no disputed factual questions whether the failure to perform the act is contempt. (63) Put another way, the failure to perform is normally within the personal knowledge of the judge, and there is no question that it is contempt. (64)

Therefore, direct civil contempt is usually a finding made by the court without the necessity of instituting an action. On appeal, either the state's attorney or an amicus curiae may act as appellee. (65)

As in the case of direct criminal contempt, the respondent has the right to be advised of the act for which he is being punished and to make a statement in allocution before sanctions are imposed. (66) However, unlike criminal contempt, which is retrospective, civil contempt is prospective and the respondent may bring himself out of contempt by complying with the court's order. (67)

Direct civil contempt typically occurs when a witness refuses to testify. In a recent and well-known case, Judith Miller, a reporter for the New York Times was called to testify to details of her once-confidential interviews with I. Lewis ("Scooter") Libby. (68) The court ordered her to identify who told her that Ambassador Joseph Wilson's wife was a CIA agent. She refused and was jailed for 85 days in an attempt to force her to testify. (69)

The Miller case is classic direct civil contempt. All of the circumstances were within the personal knowledge of the judge, and Miller's failure to reveal her source directly contravened a court order. Thus, it was within the court's inherent power to find her in contempt.

Another common example of direct civil contempt is an attorney refusing a court order to allow an appeal on the issue--for example, refusing to turn over documents in a disputed claim of privilege in a discovery proceeding. (70)

Again, sanctions in civil contempt cases are designed to coerce the respondent to perform some act. (71) The corollary is that where the contemnor cannot be coerced to obey the order, or the purpose for the order no longer exists, the sanction fails of purpose and the contemnor must be released.

In Shillitani v United States, (72) for example, the petitioners refused to testify before a grand jury after being granted immunity. Both were sentenced to two years imprisonment with the proviso that if either testified before his sentence ended he would be released.

The United States Supreme Court held that these contempt orders improperly imposed sentences that extended beyond the cessation of the grand jury's inquiry into petitioners' activities. Once the grand jury ceased to function, the rationale for the civil contempt vanished and the contemnors were to be released. (73)

A contemnor's assertion that he will never testify need not be accepted at face value. Even if the district court concludes that the contemnor is being truthful when he testifies that he will never testify, he need not be released. The issue is not whether the contemnor believes he will not testify but whether the judge believes he will not testify, based on all the surrounding circumstances. (74) Thus, a contemnor need be released only if the judge determines that continued confinement will not cause the contemnor to testify, with the burden of proof on the contemnor. (75)

Factors to consider in determining whether to lift the contempt order include the age and health of the contemnor, the length of the incarceration, and the purpose of the underlying order. (76) A contemnor may also offer evidence from other inmates, community members, or expert witnesses regarding the strength of his resolve not to comply with a court order. (77)

Sanders v Shephard (78) demonstrates several of these principles. O.D. Shephard was accused of abducting his child after he had a fight with his former girlfriend, Norell Sanders. He served three years in jail for the abduction.

Shortly before his release, Sanders obtained an order of protection, one requirement of which was that Shephard produce the child. Over several hearings, Shephard did not produce the child, claimed he had returned her to her mother, and denied knowing her where-abouts.

Counter-evidence was presented. Shephard was held in contempt and imprisoned. hearings were held at six-month intervals. After three years of imprisonment, Shephard appealed, asserting that the order no longer had a coercive effect.

The Illinois Supreme Court acknowledged that a contempt order can lose its coercive effect. (79) "'[D]ue process requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed.'" (80) However, the burden is on the contemnor to show that the sanction has lost its effect. (81) The court need not accept the contemnor's declaration as dispositive.

In Sanders, the Illinois Supreme Court looked at the relevant three-and-one-half year period of the contemnor's incarceration (the period of incarceration that was appealed) and determined that jail was having a coercive effect. The contemnor himself conceded that "slowly this institution is draining me." (82) The circuit judge also believed that the contemnor's continued imprisonment was coercive and could help the court find the child. (83)

However, after Sanders died in 1998, 10 years and three months from the date Shephard was originally found in contempt, it was determined that jail could no longer coerce Shephard to comply and he was released. (84)

In a civil contempt proceeding like the one in Sanders, the reviewing court is highly deferential to the trial judge. The trial judge's responsibility is to gauge whether imprisonment will have the intended effect on the contemnor and whether continuing the punishment will produce compliance with the court's order. (85) The court is not required to predict what will happen, "but the prospect that something will happen." (86) It is incumbent upon the appealing contemnor to show that the sanction imposed is not or is no longer coercive, but punitive. (87)

Direct civil contempt may be summarily adjudicated immediately upon the occurrence of contemptuous acts in the same manner as direct criminal contempt. (88) The constitutional right to a jury trial does not apply to direct civil contempt. (89)

In federal court, authority exists for providing a judicial sanction of civil contempt proceedings to compensate the complainant for losses sustained. (90) Where compensation is intended, the court imposes a fine payable to the complainant, depending on the outcome of the underlying controversy. (91) However, courts in Illinois allow payment of a fine only to the court and not to a litigant. (92)

Indirect civil contempt. In indirect civil contempt, typically initiated through a petition for rule to show cause, an individual must be afforded due process, which at a minimum requires notice and an opportunity to be heard. (93) The notice must contain an adequate description of facts on which the contempt charge is based and inform the alleged contemnor in advance of the time and place of an evidentiary hearing. (94)

An individual charged with indirect civil contempt may waive service of written notice of the charge by voluntarily appearing in court and defending against the charge. (95) A party to the original action may bring an indirect civil contempt charge to enforce compliance with the court's previous order. (96)

The cases conflict about whether an indigent respondent in indirect civil contempt proceedings is entitled to counsel, even though the contempt proceeding may result in imprisonment. (97)

No trial by jury is afforded the defendant in an indirect civil contempt proceeding because the contemnor holds the keys to his own jail cell and need only comply with a court order. (98) Here, the defendant's due process right is not akin to a criminal case but is more like a civil proceeding affecting property. (99)

The burden of proof is on the petitioner to prove by the preponderance of the evidence that the respondent violated a court order. (100) If there are affirmative defenses, the respondent must prove those by a preponderance of the evidence. The most common of affirmative defenses is the inability to comply with the court order. (101)

If a contempt proceeding is brought in an Illinois court, a fine is payable only to a court. (102) This is because civil contempt is an affront to the authority of the court and not a private remedy. It is not coercive and not compensatory. Thus, a plaintiff may not recover compensatory damages in a civil contempt proceeding. (103)


Contempt is a strong weapon a court can wield to compel compliance with its orders. It vindicates the power to perform its judicial functions. It can also be a powerful tool in the hands of knowledgeable lawyers.

For example, a lawyer may force an opposing party to comply with the court's order by threatening a petition for a rule to show cause (indirect civil contempt). This is by far the most common way a civil litigator may use the court's inherent power of contempt to his or her advantage. However, an attorney may also force a witness to testify (direct civil contempt).

In some cases, an opposing party's behavior cannot be corrected with an order compelling compliance. The damage may already be done. For instance, a building may already be demolished in violation of a court's injunction. In that case, an attorney may wish to bring a case of indirect criminal contempt to punish an opposing party. Finally, when dealing with particularly obstreperous pro se parties, a lawyer may request a ruling of criminal contempt to keep order in the proceedings.

What rights and procedures apply, and what types of remedies or punishments can be imposed, depend upon where the contemptuous acts occur (direct v. indirect contempt) and what is intended by the sanction (civil v. criminal contempt). All practitioners should be familiar with these distinctions and know how to apply them.

(1.) Cook County v Lloyd A. Fry Roofing Co, 59 Ill 2d 131, 135, 319 NE2d 472, 475 (1974).

(2.) People v Seymour, 191 Ill App 381, 388 (1st D 1915).

(3.) In re Marriage of Betts, 200 Ill App 3d 26, 4344, 558 NE2d 404, 415 (4th D 1990).

(4.) Rusch v White, 334 Ill 465, 484-85, 166 NE100 (1929).

(5.) Id.

(6.) In re G. B., 88 Ill 2d 36, 41, 430 NE2d 1096, 1098 (1981).

(7.) See 18 USC [section] 401 (2006).

(8.) Chicago Bar Assn v Barasch, 21 Ill 2d 407, 409, 173 NE2d 417, 418 (1961).

(9.) Betts at 43-44, 558 NE2d at 415-16 (4th D 1990).

(10.) Id at 44-45, 558 NE2d at 416.

(11.) Id at 45, 558 NE2d at 416.

(12.) Id.

(13.) United States v United Mine Workers of America, 330 US 258, 303 (1947).

(14.) Id at 302-3.

(15.) Betts at 43-44, 558 NE2d at 416.

(16.) Id at 44, 558 NE2d at 416.

(17.) Id.

(18.) Cook County at 137, 319 NE2d at 476.

(19.) Id.

(20.) Betts at 46, 558 NE2d at 417.

(21.) 485 US 624 (1988).

(22.) Id.

(23.) Id at 640-41.

(24.) Betts at 46, 558 NE2d at 417.

(25.) See US v McDougal, 97 F3d 1090 (8th Cir 1996) (upholding district court's finding of civil contempt for Susan McDougal's refusal to testify before a grand jury); Neil A. Lewis, Federal Jury Acquits McDougal on One Charge and Is Split on 2, Ny Times A1 (Apr 13, 1999) (jury deadlocked on two criminal contempt charges resulting in judge declaring mistrial).

(26.) Stephen Labaton, Clinton Ex-Partner Is Held in Contempt In Whitewater Case, NY Times A1 (Sept 5, 1996).

(27.) McDougal, 97 F3d at 1092.

(28.) Stephen Labaton, Testing of a President: The Grand Jury; On Last Day, No Indictment of First Lady, NY Times A20 (May 6, 1998).

(29.) Lewis, Federal Jury Acquits McDougal at A1 (cited in note 25).

(30.) People v LAS, 111 Ill 2d 539, 543, 490 NE2d 1271, 1273 (1986).

(31.) Id.

(32.) People v Javaras, 51 Ill 2d 296, 299, 281 NE2d 670, 672 (1972).

(33.) State v Law, No 2007-UP-557, slip op (SC Ct App 2007).

(34.) LAS at 543, 490 NE2d at 1273.

(35.) Those of middle age or older will remember the direct contempt proceedings of Abbie Hoffman and the Chicago Seven. See, e.g., Wilborn Hampton, BOOKS OF THE TIMES; Abbie Hoffman and Hey, His Turbulent Times, NY Times E7 (Sept 3, 1998).

(36.) People v Loughran, 2 Ill 2d 258, 263, 118 NE2d 310 (1954).

(37.) Taylor v Hayes, 418 US 488, 498-99 (1974).

(38.) See Loughran at 262-63, 118 NE2d at 313.

(39.) 377 Ill App 3d 458, 878 NE2d 1222 (1st D 2007).

(40.) Id at 458, 878 NE2d at 1224.

(41.) Id at 462, 878 NE2d at 1225.

(42.) Id.

(43.) People v Hanna, 37 Ill App 3d 98, 345 NE2d 179 (4th D 1976).

(44.) Id at 99, 345 NE2d at 180.

(45.) Javaras at 299-301, 281 NE2d at 672. Also see In re Kelly's Estate, 365 Ill 174, 179, 6 NE2d 113 (1937).

(46.) Javaras at 301, 281 NE2d at 673.

(47.) Id.

(48.) Betts at 59-60, 558 NE2d at 426.

(49.) Javaras at 299-300, 281 NE2d at 672.

(50.) Betts at 59, 558 NE2d at 426.

(51.) Id at 51, 558 NE2d at 420.

(52.) United Mine Workers, 330 US 258, 294 (citing cases).

(53.) Id at 304.

(54.) Loughran at 263, 118 NE2d at 313.

(55.) Id.

(56.) Betts at 58, 558 NE2d at 425.

(57.) Id.

(58.) Marcisz v Marcisz, 65 Ill 2d 206, 209-210, 357 NE2d 477, 479 (1976).

(59.) Id; Betts at 58, 558 NE2d at 425.

(60.) McLean County v Kickapoo Creek, Inc, 51 Ill 2d 353, 356, 282 NE2d 720, 723 (1972); Taylor, 418 US at 495-96.

(61.) 47th & State Currency Exchange, Inc v B. Coleman Corp, 56 Ill App 3d 229, 235, 371 NE2d 294, 299 (1st D 1977).

(62.) Betts at 59, 558 NE2d at 425 (but see the contrary rule for federal courts).

(63.) Id at 52, 558 NE2d at 421.

(64.) United States v Wilson, 421 US 309, 314-15 (1975).

(65.) Marcisz at 210, 357 NE2d at 479.

(66.) Taylor, 418 US at 498, citing Groppi v Leslie, 404 US 496, 502 (1972) ("Even where summary punishment for contempt is imposed during trial, 'the contemnor has normally been given an opportunity to speak in his own behalf in the nature of a right of allocution.'"). See also, In re Farr, 36 Cal App 3d 577, 581-82, 111 Cal Rptr 649 (2d D 1974) (court imposed a gag order during trial of Charles Manson, which reporter violated, was found in direct civil contempt, but allowed to raise a defense and make a statement in allocution).

(67.) Sanders v Shephard, 163 Ill 2d 534, 540, 645 NE2d 900, 902-3 (1994).

(68.) See, e.g., Neil A. Lewis and Scott Shane, Reporter Who Was Jailed Testifies in Libby Case," NY Times A1 (Jan 31, 2007).

(69.) Id.

(70.) See, e.g., Emery v Northeast Ill Regional Transp Co, 374 Ill App 3d 974, 872 NE2d 485 (1st D 2007) (specifying that even an "agreed" contempt order for violating court's order regarding disputed claim of privilege must specify whether it is civil or criminal and how contemnor can comply with court order if contempt is civil).

(71.) Helm v Thomas, 362 Ill App 3d 331, 334, 839 NE2d 1142, 1144 (4th D 2005).

(72.) 384 US 364 (1966).

(73.) Id at 371-72.

(74.) Matter of Parrish, 782 F2d 325, 327-28 (2d Cir 1986).

(75.) Simkin v United States, 715 F2d 34, 37 (2d Cir 1983).

(76.) Sanders at 542, 645 NE2d at 904.

(77.) Id.

(78.) Id.

(79.) Id at 541, 645 NE2d at 904.

(80.) Id, quoting Jackson v Indiana, 406 US 715, 738 (1972).

(81.) Sanders at 541, 645 NE2d at 904.

(82.) Id at 543, 645 NE2d at 905.

(83.) Id at 543-44, 645 NE2d at 905.

(84.) Laura Gatland, Man is Free After 10 Years in Jail for Contempt, 84 ABA J, April 1998 at 38.

(85.) Sanders at 542, 645 NE2d at 904.

(86.) Id, quoting In re Parrish, 782 F2d 325, 327 (2d Cir 1986).

(87.) Sanders at 542-43, 645 NE2d at 904.

(88.) Betts at 52, 558 NE2d at 421.

(89.) Id.

(90.) United Mineworkers, 330 US at 303-04.

(91.) Id.

(92.) Rothschild & Co v Steger & Sons Piano Mfg Co, 256 Ill 196, 205, 99 NE 920 (1912).

(93.) See Shillitani, 384 US at 371; Betts at 52-53, 558 NE2d at 471.

(94.) Betts at 53, 558 NE2d at 422.

(95.) Id.

(96.) B. Coleman at 235, 371 NE2d at 299.

(97.) Compare Betts at 53, 558 NE2d at 422 (no right to counsel) with Sanders v Shephard, 185 Ill App 3d 719, 728-30, 541 NE2d 1150, 1155-57 (recognizing the right to appointed counsel).

(98.) Betts at 57, 558 NE2d at 424; Shillitani, 384 US at 365.

(99.) Betts at 52, 558 NE2d at 421.

(100.) Central Production Credit Assn v Kruse, 156 Ill App 3d 526, 531, 509 NE2d 136, 139 (2d D 1987).

(101.) In re Marriage of Logston, 103 Ill 2d 266, 285, 469 NE2d 167, 175 (1984) (the burden shifts to the defendant to prove that he is unable to pay maintenance in a matrimony case if he willfully violates the court order requiring maintenance).

(102.) Rothschild, 256 Ill at 205.

(103.) Keuper v Beechen, Dill and Sperling Builders, Inc, 301 Ill App 3d 667, 669-70, 704 NE2d 915, 917 (2d D 1998).

Timothy L. Bertschy <> is a Peoria-based partner in Heyl, Royster, Voelker & Allen and heads the firm's commercial litigation practice. He is a former president of the Illinois State Bar Association. Nathaniel E. Strickler <> is an associate in the Peoria office of Heyl, Royster, Voelker & Allen, where he concentrates in insurance defense.
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Title Annotation:Illinois
Author:Bertschy, Timothy L.; Strickler, Nathaniel E.
Publication:Illinois Bar Journal
Date:May 1, 2009
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