Opposition Brief — Macks v. Wernick

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— 2, —— ~— Rg ne ae ee ETE a

In The \ 308

_ Jun 23

_ Supreme Court of the United Ptates -. seas

__-

IN THE MATTER OF THE ESTATE

E. DAVIS WERNICK, Deceased

MITCHELL C. MACKS, .

Petitioner,

Vv.

SAMUEL WERNICK,

Respondent.

On Petition for a Writ of Certiorari to the

Appellate Court of Illinois,

First Judicial District

BRIEF IN OPPOSITION FOR RESPONDENT

THEODORE M. BECKER

(Counsel of Record)

CLAIRE TOOMEY DURKIN

BECKER & TENENBAUM

200 South Michigan Avenue

Tenth Floor

Chicago, Illinois 60604

(312) 347-0100

Attorneys for Respondent

SAMUEL WERNICK

American Reprographics Management, Inc.™ (312) 332-2764

TABLE OF CONTENTS

Page

I I PE RE I snc caldlc citatsnceascaticspsssesonsvadess ili-v

SFE PTT CPE BRR CAPRI ooncseseseccnsccencsdevssvesssssascsnnsnescaens 2

REASONS FOR DENYING THE WRIT

THE CONTEMPT PROCEEDING WAS PROP-

ERLY CONDUCTED IN ACCORDANCE WITH

ILLINOIS LAW AND MACKS WAS NOT

DEPRIVED OF ANY PROCEDURAL SAFE-

GUARD TO WHICH HE WAS ENTITLED.................. 9

A. The Contempt Proceeding Was Properly

RE cai coisa ca caaarasnincecsnsed encancsvnduedes sashantussiensntst 9

1. The Circuit Court of Cook County

Ex Parte Communications Rule....................... )

2. Illinois Courts Approve of Contempt

“Prosecution” by Counsel For a Litigant....... 10

3. Macks Received A Fair Heating Pdacteednmnuens 11

4. There Is No Due Process Right To,A

Disinterested Prosecutor In State

Court Petty Contempt Proceedings ................ 13

5. The Cases Cited By Macks are

Readily Distinguishable ..........c ec eeeeeeeeeeee 14

B. “Prosecution” By Wernick’s Counsel Did Not

I NN iis Saved aliotiecpubinbiadoinnienptaovends 16

1. The Broad Question Macks Presents

ID iis cat oss uhcciasehcncnnseestnarenvessacdaniauseesisas 16

2. The Tradition Of Private Prosecution In

The State Courts ................. RREEA LIE AAI SO 17

3. The Need For Private Prosecution In State

Court Petty Contempt Proceedings ................ 18

4. Macks Has Failed to Demonstrate Any

PU FI soi ssnccabicindes uindininnsdccxtectiabasasensseds 19

Page

C. Young v. Vuitton Does Not Apply To This

CORO... cnnsnsnsiassiiniianinscepaiainieiaaee ne 23

CONCLUSION 0 .cssisssssacascaaiapnsieaceneiagieenine i een ennne 25

TABLE OF AUTHORITIES

CASES Page

Pee Uh, PERE, SOO US. FB (1GG7) 3.0000... .cccccresscsesscccccsessescess 14

Bloom v. Illinois, 391 U.S. 194 (1968) .0........ceceeeeeeeeee 13, 16-17

Brady v. Maryland, 373 U.S. 83 (1963) ............::sccccessseeeceessees 14

Brotherhood of Locomotive Firemen and Enginemen

v. United States, 411 F.2d 312 (5th Cir. 1969)... 15

Carey &. Pans, 455 US. 247-19 78).........c.cccscsosssescccsscscsesenses 14

Duncan v. Louisiana, 391 U.S. 145 (1968) .......... eee 16

47th & State Currency, etc., v. B. Coleman Corp.,

56 Til. App. 3d 229 (1st Dist. 1977) .............c....scsessssseess 10-11

Frank B. Hall & Co. v. Payseur, 99 Ill. App. 3d 857

Tee sais aacicnsnsncicdnsenieaneensnsnunnettnees 11

Giglio v. United States, 405 U.S. 150 (1972) ....... cee eeeeeeeeee 14

Gilbert v. People, 121 Ill. App. 3d 423 (3d Dist. 1905)............ 22

Gompers v. Bucks Stove & Range Co., 221 U.S. 418

ei Sitindlel LENE 6 SEE oo 19

Hayner v. People, 213 Ill. 142 (1904) ...................ccccesecssssssseees 17

Heckler v. Chaney, 470 U.S. 821 (1985) .cvssssssssssssesssessee 14

In Re Estate of Wernick, 127 Ill. 2d 61 (1989)... eee 4

In Re Estate of Wernick, 176 Ill. App. 3d 153 (1988),

appeal denied, 124 II]. 2d 555 (1989)........... wees 2,9,11-13,21-25

In Re Estate of Wernick, 151 Ill. App. 3d 234 (1986) ............... 4

Joint Anti-Facist Comm. v. McGrath, 341 U.S. 123

Ra ritihd sii suxdaisaseasseurseksnwntnndasnsonshassnesssranansss 14

Marcisz v. Marcisz, 65 Tl. 2d 206 (1976).............ccccccceseeeeeeeeees 10

Marshall v. Jerrico, Inc., 466 U.S. 238 (1980) «0.0.0... 14

Mathews v. Eldridge, 424 U.S. 319 (1976) .........cccceeeeseeeeeeeeeeee 14

CASES Page

Miller v. Pate, TAB US. 1 (1967) ..........0cccsscccecsscssecsecsecensvescscess 14

People v. Goss, 10 Hl. 2d 533 (1957) .0...........cccccececsceceseesseeseeees 10

Sassower v. Sheraff of Westchester County, 824 F.2d 184

CR Ss re atta dicis sanasisceninichAnddahnamemsnbbsactrsieunienamuniuaias 15

Sommer v. Goetze, 102 Ill. App. 3d 117 (3d Dist. 1981)......... 22

United States v. Bukowski, 435 F.2d 1094 (7th Cir. 1970),

OTE; I I Ee WE CO itigteeteerisscienenncncnsetiasvancnneses 13

Young v. Vuitton, 481 U.S. 787 (1987)... 15, 19, 23-24

CONSTITUTIONAL PROVISIONS

United States Constitution,

RELA SOE LIND eT RPO 6, 12, 23

Fourteenth Asmamtimoent ...............:..0c0ccsessesscsessesesceseseses 14, 23

STATUTES AND RULES

Circuit Court of Caok County, Rule 17.00.00... eee 4, 9-10

Circuit Court of Cook County, Rule 17.1....0...0.ccceeeeeeeeeeeeeee 4

Circuit Court of Cook County, Rule 17.2(b) ........ec ee eeeeeeeeee 4-5

es Re SIE: WIN ccxacsnres xycocmbanaiicitsdinccacsdecepnnte danas acai 15

PEs ee Wc Ws 8 Berti skeletal iectrasasdeimcciadinouamumonciseressenaae 4

Se Ce Gr GE Fe PO rons crete reece 4

Iilinois Code of Judicial Conduct Rule 63(A)(4) ........ cece 10

Iinois Code of Puofessional Responsibility Rule 7-105........ 22

Ill. Rev. Stat. ch. 110A, para. 63 (Smith-Hurd 1987) ............. 10

ee a i a 22

OTHER AUTHORITIES Page

Administrative Office of the Illinois Courts,

Annual Report to the Supreme Court (1987) ................. 18-19

Burr, The Law of Contempt in Illinois, 19 Loy.

EF, Cok, Tid, GF GO wvnicini bicceaceneeenmans 11

Comment, The Outmoded Concept of Private Prosecution,

95 Am. UL Bee: TO4 GGA h.cieniacwntcsenmenn 22-23

Comment, Private Prosecution: A Remedy for District

Attorneys’ Unwarranted Inaction, 65 Yale L.J.

DOD CTD Giiikiicccclimetiicinetiaapaaninaiens 17-18

Lousin, The New Ex Parte Communications Rule In

Illinois: A Step Forward?, 19 Loy. U. Chi. L.J.,

DEE CRI vinisia sn inkisotsenadasnnienctaridsdcisahialdelidgsaatientincs temiatpeaanans 10

Model Code of Judicial Conduct Canon 3(A)(4) ............eeeeees 10

Model Code of Professional Responsibility DR 7-105........... 22

Note, Private Prosecutors ir Criminal Contempt

Actions Under Rule 42(b) of the Federal Rules of

Criminal Procedure, 54 Fordham L. Rev. 1141 (1986)....... 23

Report of the Circuit Court of Cook County, Illinois

No. 88-1639

Iu The

Supreme Court of the United States

@ctober Germ, 15983

IN THE MATTER OF THE ESTATE

E. DAVIS WERNICK, Deceased -

MITCHELL C. MACKS,

Petitioner,

SAMUEL WERNICK,

Respondent.

On Petition for a Writ of Certiorari to the

Appellate Court of Illinois,

First Judicial District

BRIEF IN OPPOSITION FOR RESPONDENT

Respondent Samuel Wernick respectfully requests that this

Court deny the petition for a writ of certiorari seeking review

of the decision of the Appellate Court of Dlinois, First Judicial

District. That decision affirmed the contempt finding entered

against Mitchell Macks. The appellate court reviewed the record

and concluded that Macks was afforded every safeguard of due

process, including a hearing before an impartial judge properly

————— San

conducted by opposing counsel, and that Macks was found guilty

of contempt by “overwhelming evidence”. In re Estate of

Wernick, 176 Ill. App. 3d 153, 160, 530 N.E.2d. 1127, 1131 (1st

Dist. 1988). Pet. App. at A-5, A-7.1

STATEMENT OF THE CASE

Respondent submits this statement pursuant to Rules 22.1

and 34.2 to correct substantial inaccuracies and omissions in

the statement submitted by the petitioner.

The Underlying Probate Court Proceedings

Garson Wernick, Executor of the Estate of E. Davis Wernick

and the elder of the decedent’s two sons, and Samuel Wernick?

in 1979 brought citation proceedings in the Circuit Court of Cook

County Probate Division against Mitchell C. Macks.

Macks is a licensed attorney. The decedent was a physician.

Macks and the decedent were cousins, neighbors and had a close

personal relationship. Macks acted as the decedent’s attorney

and invested in a number of properties with the decedent.

The citation proceedings were brought to discover informa-

tion concerning Macks’ financial dealings with the decedent and

to recover the decedent’s one-half share in two parcels of real

estate which the decedent co-owned with Macks and which Macks

claimed the decedent assigned to him in 1977 just days before

the decedent’s death from cancer. Macks claimed he gave the

decedent a promissory note in exchange for the assignment, but

the note was never found and Macks produced no copy of the

note. The Estate claimed that no note ever existed, that Macks

gave the decedent no consideration for the assignment, and that

the Estate was entitled to the decedent’s share of the property

or its value.

1 The Petition for Writ of Certiorari and the Appendices to the Petition

are cited herein as “Pet.” and “Pet. App.,” respectively.

2 Garson Wernick, Executor and Samuel Wernick are sometimes

hereinafter collectively referred to as the “Estate”. Samuel Wernick is

hereinafter referred to as “Wernick”.

Macks’ 1982 Ex Parte Communication

The citation proceedings were presided over by Probate Court

Judge Henry A. Budzinski. (R. 126.) On November 16, 1982, while

the citation proceedings were pending, Macks entered the

chambers of Judge Budzinski to speak with him ex parte about

the citation proceedings. (R. 130.) On November 18, 1982, in open

court, while Macks was on the witness stand in the citation

proceedings, Judge Budzinski directly admonished Macks for

engaging in that ex parte communication:

THE COURT: And let me indicate on the record Mr. Macks

was in my office Tuesday, wanted to know

when this was all going to be over and why

he’s being brought in the Court. I told him

he’s got a lawyer; the lawyer will advise him.

It’s improper for you to ask the Judge any

questions in the court or outside of Court,

sir; as a lawyer you should know that.

THE WITNESS: Why -

THE COURT: You put the Court in an embarrassing posi-

tion by doing that.

(R. 510-511.) When Judge Budzinski concluded his admonition,

Macks responded “shali I continue to be harrassed and not

protest?” (R. 511.) Judge Budzinski told Macks it was not to

happen again. (R. 130.)

The Judgment In The Recovery Citation Proceeding

The recovery citation was tried in December 1984. The

probate court ruled in January 1985 that Macks had breached

his fiduciary duty to the decedent and ordered Macks to pay

to the Estate the decedent’s share of the proceeds from the sale

of one of the parcels of real estate which Macks sold after the

decedent’s death, plus prejudgment interest at the statutory rate

of 5% for vexatious delay, and to transfer to the Estate the

decedent’s beneficial interest in the other parcel of real estate

which Macks retained. (C. 68, R. 132, 627-628.) After the judgment

was entered, the probate court approved, over the Estate’s

objection, an unsecured letter of credit issued by a local bank

which Macks controls to stand as Macks’ appeal bond. (R. 133.)

Appeals From The Judgment

Cross-appeals were taken to the Illinois Appellate Court. (C.

69.) In its decision in the cross-appeals from the judgment on

the recovery citation, the appellate court affirmed the probate

court’s ruling that Macks had breached his fiduciary duty to

the decedent, affirmed the relief granted to the Estate, and also

held that the Estate was entitled to further relief in the form

of prejudgment interest at the prime rate, punitive damages and

attorney fees and expenses pursuant to § 2-611 of the Lllinois

Code of Civil Procedure (which, like Fed. R. Civ. P. 11, sanctions

litigants for false pleadings). In Re Estate of Wernick, 151 Il.

App. 3d 234, 502 N.E.2d 1146 (1st Dist. 1986).

Macks petitioned the Illinois Supreme Court for leave to

appeal, which was granted. 114 Ill. 2d 546, 508 N.E.2d 737. In

the Illinois Supreme Court, Macks conceded that he had breached

his fiduciary duty to the decedent. Macks appealed only from

the appellate court’s enhancement of the relief granted to the

Estate. The Illinois Supreme Court affirmed the appellate court’s

award of prime rate interest, holding that it was in lieu of statutory

interest, and reversed the appellate court’s awards of punitive

damages, attorney fees and expenses. In re Estate of Wernick,

127 Ill. 2d 61, 535 N.E.2d 876 (1989).

The Circuit Court Of Cook County Rule Prohibiting Ex

Parte Communications

On February 1, 1985, shortly after Judge Budzinski entered

judgment against Macks in the recovery citation proceeding,

Circuit Court of Cook County Rule 17 went into effect, prohibiting

any attorney from engaging in ex parte communications with

any judge in connection with any matter pending before that

judge. (R. 174.) Circuit Court Rule 17.1 provides:

No judge shall permit and no lawyer shall engage in

ex parte communications, unless allowed by law, in

connection with any matter pending before said judge.

Circuit Court Rule 17.2(b) provides that in the event an ex parte

communication occurs:

If a hearing is not scheduled within two full court days

of said communication, the lawyer who has initiated

said communication shall promptly serve a written

summary of the contents of said communication on

all parties of record and the judge.

Macks’ 1986 Ex Parte Communication

After the entry of the judgment on the recovery citation and

approval of the objectionable letter of credit as Macks’ appeal

bond, the probate court continued to retain jurisdiction over

aspects of the citation proceedings and the parties while the cross-

appeals were pending. (R. 75-76, 139, 145-147, 151.) In May 1986,

Macks again entered Judge Budzinski’s chambers and engaged

him in another ex parte communication relating to the renewal

of the letter of credit. (C. 70, R. 126, 134-136.) As mentioned above,

the Estate had objected to the letter of credit when it had been

tendered initially as the appeal bond, thus Macks could anticipate

an. objection to its renewal. Nevertheless, Macks did not notify

the other parties or their counsel that he was going to speak

to Judge Budzinski about the renewal of the letter of credit. After

the ex parte communication, Macks did not serve upon the parties

or their counsel a written summary of the ex parte communication

as required by Circuit Court Rule 17.2(b). (R.3.) Judge Budzinski’s

office notified the attorney for the Executor that the ex parte

communication had occurred. (R. 2, 630.)

Initiation Of The Contempt Proceeding

On June 2, 1986, Wernick filed a Motion for Rule to Show

Cause why Macks-should not be held in contempt. (C. 7-9.)

Because Judge Budzinski was a witness to Macks’ successive

ex parte communications, Wernick simultaneously filed a Motion

for Change of Venue. (C. 10-12.) The Motion for Rule to Show

Cause thereupon was transferred to Judge Benjamin E. Novo-

selsky, the Presiding Judge of the Probate Division. (C. 18.)

Pre-Trial Proceedings

Macks filed a Motion to Strike and Dismiss the Motion for

Rule to Show Cause. (C. 24-27.) Macks filed authorities in support

of his motion. (C. 33-34.) After a hearing, Judge Novoselsky denied

Macks’ Motion to Strike and Dismiss. (C. 29.)

On August 8, 1986, a Rule to Show Cause issued against

Macks. (C. 35.) On October 6, 1986, Macks filed a Motion to Strike

—

the Rule to Show Cause. (R. 40-42.) On October 10, 1986, leave

was granted to file an Amended Rule to Show Cause. (C. 44.)

An Amended Rule to Show Cause was filed on November 13,

1986. (C. 45-53.) Macks then filed a Motion to Strike certain

portions of the Amended Rule to Show Cause. (C. 56-58.) The

Amended Rule to Show Cause was further amended on December

22, 1986. (C. 59.) On December 23, 1986, Macks filed an Answer

to Amended Rule to Show Cause in which he denied the charges.

(C. 60.)

The Contempt Hearing

An evidentiary hearing under the standards for indirect

criminal contempt was held on February 18, 1987, at which time

Judge Novoselsky took evidence, admitted exhibits and heard

argument of counsel. (C. 66.) Judge Budzinski testified as a

witness at the contempt hearing. (R. 125.) Judge Budzinski

testified that Macks is a lawyer admitted to practice in the state

of Illinois and a party to proceedings pending before him. (R.

136.) Judge Budzinski testified that Macks’ engaged him in the

November, 1982 ex parte communication and that he admonished

Macks. (R. 131.) Judge Budzinski testified that notwithstanding

the prior admonition, Macks entered Judge Budzinski’s chambers

in May, 1986 and engaged Judge Budzinski in another ex parte

cominunication concerning the renewal of the letter of credit that

stood as Macks’ appeal bond. (R. 134-137.)

Although Macks, in his Answer to Amended Rule to Show

Cause, had denied the charges rather than standing strictly on

his Fifth Amendment right, Macks elected not to testify at the

contempt hearing. On February 23, 1987, Judge Novoselsky found

Macks in contempt of court. (C. 71.)

The Aggravation And Mitigation Hearing

Before sanctioning Macks on the contempt finding, Judge

Novoselsky held an aggravation and mitigation hearing on June

10 and 12, 1987. (R. 194, 286.) Macks testified as a witness at

that hearing. Macks admitted that he entered Judge Budzinski’s

chambers in May, 1986 and engaged Judge Budzinski in an

ex parte communication concerning renewal of the letter of cred-

it that stood as Macks’ appeal bond. (R. 249, 257, 259.) (Macks

had previously denied that charge.) (C. 60, R. 251-252.) Macks

admitted that he entered Judge Budzinski’s chambers in

November, 1982 and engaged Judge Budzinski in a prior ex parte

communication concerning the citation proceedings. (R. 265.)

Macks admitted being admonished by Judge Budzinski after the

November, 1982 ex parte communication. (R. 261-262).

Macks’ Demeanor Before The Court

During the aggravation and mitigation hearing, Macks

displayed a demeanor disrespectful to the Court and counsel.

(R. 239, 264-265, 268, 271, 278-279, 282, 400A, 401.) Judge

Novoselsky repeatedly admonished Macks for the nature of his

responses to questions of counsel. (R. 264-265, 268, 271, 278-179,

282, 400A.) Even in response to a question from his own counsel

regarding where Macks had grown up, Macks testified that he

had still not grown up. (R. 239.)

Previously, Macks had been warned by Judge Budzinski

numerous times for his improper remarks during the citation

proceedings. (R. 299, 301, 306, 492, 504, 522, 523.) Judge Budzinski

repeatedly asked counsel for Macks to admonish his client. (R.

299, 504, 522.) At one point Macks, while on the witness stand,

called one of the attorneys for Wernick a “schmuck.” (R. 305-

306.) When Judge Budzinski admonished him, Macks responded

“You mean I can’t use lip movement.” (R. 306) At another point,

the following occurred:

THE WITNESS: Judge —

THE COURT: You have to answer.

MR: HERZOG: Just answer the question.

(Attorney for Macks)

THE COURT: You have to answer.

THE WITNESS: Would I be in contempt if I did something

physical?

MR. HERZOG: Just answer the question.

THE COURT: You would be in contempt talking that way.

Answer the question.

THE WITNESS: No.

(R. 622.)

The Contempt Sanctions

Judge Novoselsky observed that Macks is an individual who

has no regard or respect for rules of court or attorney conduct.

(R. 401.) Judge Novoselsky stated:

In deciding what sanctions should be levied ... the

Court would have to evaluate the conduct of Mitchell

Macks before this court during the hearings on aggra-

vation and mitigation as well as the evidence admitted

in [the] hearing on the rule to show cause.

For this Court to believe that Mr. Macks feels remorse

for his actions in violating the specific admonitions

and rules previously stated, his conduct on the witness

stand is of importance to this trier of facts.

On numerous occasions in Mr. Macks’ testimony as

a witness before this court, the court had to admonish

him for his behavior in his response to questions, and

questioning by Counsel. This court observed his

demeanor and his conduct before this court, and

weighing it against the testimony of Rabbi Novick,

and Rabbi Kroll [Macks’ son-in-law and Judge Novo-

selsky’s rabbi], and Mr. Harry Abrams, it seems as

if the witnesses testifying in mitigation were discussing

another individual, not the individual on trial.

He may be a charitable, loving father, a pillar of his

synagogue, but [he is] also an individual who has no

regard or respect for rules of the court or attorneys’

conduct. [He] may not have been an active... prac-

titioner of the law but he is not a novice to ccurt

appearances or procedures.

(R. 400-401.)

On June 19, 1987, Judge Novoselsky ordered Macks to pay

$500 into the Court’s registry; to serve 50 hours of community

service to a charitable organization; and to pay reasonable

attorney fees related to the contempt proceeding. (C. 108-109, R.

401, Pet. App. D.)

ote

Post-Trial And Appellate Proceedings

On July 15, 1987, Macks filed a post-trial motion asking the

court to vacate the contempt finding and dismiss the charge,

or in the alternative grant a new trial. (C. 111-113.) After a full

hearing on Macks’ post-trial motion (R. 406-444), the motion was

denied on August 11, 1987. (C. 116, R. 446-460, Pet. App. E.) Macks

appealed, and the Illinois Appellate Court affirmed the contempt

finding and sanction. In Re Estate of Wernick, 176 Ill. App. 3d

153, 530 N.E.2d 1127 (1st Dist. 1988). Macks’ petition to the Illinois

Supreme Court for leave to appeal was denied. 124 Ill. 2d 555,

535 N.E.2d 922 (1989).

REASONS FOR DENYING THE WRIT

THE CONTEMPT PROCEEDING WAS PROP-

ERLY CONDUCTED IN ACCORDANCE WITH

ILLINOIS LAW AND MACKS WAS NOT

DEPRIVED OF ANY PROCEDURAL SAFE-

GUARD TO WHICH HE WAS ENTITLED

A. The Contempt Proceeding Was Properly Conducted

1. The Circuit Court of Cook County Ex

Parte Communications Rule

Macks was found in contempt for repeatedly engaging Judge

Budzinski in ex parte communications, despite having been

admonished by the judge not to do so, and in violation of the

Court’s ex parte communications rule.

Circuit Court of Cook County Rule 17 prohibiting ex parte

communications was adopted by that Court under the cloud of

“Operation Greylord”, a federal investigation into corruption in

that County’s judicial system that led to the indictment and

conviction of a number of judges and lawyers. Rule 17 is an

attempt to protect the judiciary from lawyers and parties who

would engage in ex parte communications, and to restore both

integrity and the appearance of integrity to the Cook County

judicial system.

Professor Lousin, who served at the appointment of the

Administrative Office of the Illinois Courts as Reporter for the

Judicial Ethics Committee of the 1987 Associate Judges Seminar,

has written:

The recent Greylord investigation has uncovered not

only bribery, but also what most citizens of Dlinois

already knew: there are lawyers and litigants who

virtually try to camp in a judge’s chambers. The

problem of ex parte communications, especially those

clearly designed to influence the judge’s rulings in a

case he is currently hearing, is most acute in Chicago,

but it is known in other parts of Illinois, too.

Lousin, The New Ex Parte Communications Rule in Illinois: A

Step Forward? 19 Ley. U. Chi. L.J. 1031 (1988).

2. Illinois Courts Approve of Contempt

“Prosecution” By Counsel For A Litigant

Counsel for Wernick followed a long tradition of established

Illinois precedent in “prosecuting” Macks for contempt. In

Illinois, an indirect criminal contempt may be “prosecuted” by

counsel for a litigant or by an amicus curiae appointed by the

court as well as by the state’s attorney. Marcisz v. Marcisz, 65

Ill. 2d 206, 210, 357 N.E.2d 477, 479 (1976), following People v.

Goss, 10 Ill. 2d 533, 14 N.E.2d 385 (1957); 47th & State Currency,

Etc. v. B. Coleman Corp., 56 Ill. App. 3d 229, 235, 371 N.E.2d

3 Effective January 1, 1987, the Illinois Supreme Court adopted a similar

rule, Rule 63(A) (4) of the 1987 Illinois Code of Judicia] Conduit, which

provides as follows:

A judge should accord to every person who is legally

interested in a proceeding, or his lawyer, a full mght to be

heard according to law, and, except as authorized by law,

shall not permit ex parte or other communications concerning

a pending or impending proceeding.

The Committee Commentary makes it clear that the drafters used

ABA Model Canon 3A) (4) as their starting point. Il. S. Ct. R. 63,

Ill. Ann. Stat. ch. 110A, para. 63 (Smith-Hurd Surp. 1987) (Committee

Commentary to Rule 63).

294, 299 n.3 (1st Dist. 1977). See also Burr, The Law of Contempt

in Illinois, 19 Loy. U. Chi. L.J. 827, 832 (1988).

In a leading Illinois case in which the defendants were found

in contempt, fined $5,000 and assessed $45,555 in attorney fees

for violating an injunction against violation of a covenant not

to compete, the same law firm (Winston & Strawn) now repres-

enting Macks on his petition for certiorari “prosecuted” the

criminal contempt and was awarded the attorney fees. Frank

B. Hall & Co., Inc. v Payseur, 99 Il. App. 3d 857, 425 N.E.2d

1002 (1st Dist. 1981). In that case, the reviewing cours applauded

counsel who “prosecuted” the contempt, stating that “‘t]he private

litigant who brings the fact of an indirect contempt, civil or

criminal in nature, before the court, performs a valuable service

to the court.” 99 Ill. App. 3d at 862, 425 N.E.2d at 1006. It was

in accordance with this line of Illinois precedent that Wernick’s

counsel moved for a rule to show cause and, once that motion

was granted, acted as the proponent in the contempt hearing.

3. Macks Received A Fair Hearing

The Illinois Appellate Court reviewed Macks’ contention that

he was deprived of due process because opposing counsel in the

underlying probate proceeding “prosecuted” the contempt

proceeding, and stated:

In Illinois, indirect criminal contempt proceedings may

be instigated by private counsel. (citation omitted). By

labelling opposing counsel “prosecutors”, Macks

raised issues both inapplicable in the instant case and

altogether absent: the appearance of unfairness,

possible misrepresentation of facts, and the difficulty

of having a “prosecutor” with a proprietary interest

in the outcome of the contempt hearing.

* * *

[t]he hearing, being on a motion by the opposing [party]

in the underlying case, was properly conducted by [the

opposing party’s] counsel. Further, Macks enjoyed

every due process safeguard.

In Re Estate of Wernick, 176 Ill. App. 3d at 158-160, Pet. App.

at A-5 - A-7 (emphasis added).

The record of the contempt proceeding demonstrates that

Macks was afforded every procedural right available to him and

more. An impartial judge presided over the contempt proceeding.

(On Wernick’s, not Macks’, motion, Judge Budzinski, whom

Macks had engaged in the ex parte communications, recused

himself and the chief judge of the Probate Division presided over

the contempt proceeding.) Macks was vigorously represented by

counsel at all stages of the contempt proceeding.

An entire year was devoted to the contempt proceeding. Even

prior to the issuance of the Rule to Show Cause, Macks was

allowed to challenge the Motion for Rule to Show Cause, via

a Motion to Strike and Dismiss which was heard and ruled upon.

Macks next challenged the Rule to Show Cause upon its issuance,

which was amended. Thereafter, in response to Macks’ further

challenges, the court ordered further changes to the Amended

Rule to Show Cause. Macks next had an opportunity to file an

answer, which he did, and a full hearing was conducted at which

Macks availed himself of his Fifth Amendment right.‘ Before

a sanction was imposed on the contempt finding, an aggravation

and mitigation hearing was conducted at which Macks chose

to testify and call witnesses.

Due process was clearly afforded to Macks. The [linois

Appellate Court, after reviewing the record, observed that Macks

“was afforded every safeguard of due process” and concluded

that “Macks can make no tenable argument that he was deprived

of due process.” 176 Ill. App. 3d at 158, Pet. App. at A-5. The

appellate court catalogued some of those due process safeg uards:

Macks had timely and sufficient notice of the proceed-

ing. He was afforded a hearing on the merits of the

4 At no time prior to the entry of the contempt finding did Macks

raise any challenge to Wernick’s counsel as the “prosecutor” of the

contempt charge. Macks first raised the issue of the “interested

prosecutor” a month after the contempt hearing and the entry of the

contempt finding, in a post-trial motion filed during the aggravation

and mitigation hearing concerning the sanction to be imposed. In

Illinois, when an issue is first raised in a post-trial motion, the reviewing

court need only determine whether the trial court abused its discretion

in denying the motion. The Illinois Appellate Court held that there was

no abuse of discretion. 176 Ill. App. 3d at 158, Pet. App. at A-5.

issue before an impartial judge. He was given a second

hearing on aggravation and mitigation. He enjoyed

adequate and able representation at both hearings. He

enjoyed the privilege against self-incrimination. All

these safeguards were provided before any deprivation

of liberty or property.

176 Ii. App. 3d at 158, Pet. App. at A-5.

4. There Is No Due Process Right To A

Disinterested Prosecutor In State Court

Petty Contempt Proceedings

There was never any suggestion that Macks should be

imprisoned for his conduct. In deference to Macks’ age, “prose-

cuting” counsel specifically requested that the court not consider

imprisonment. (R. 371.) This is not the “overzealous prosecutor”

Macks now attempts to portray to this Court. The purpose of

bringing the Motion for Rule To Show Cause was stated by

Wernick’s counsel in his closing remarks:

... we have to go on litigating this case against Mr.

Macks . . .we want to know that he will not violate

court rules, that he will follow the orders of court, that

he will conduct himself as a professional, a member

of our profession.

(R. 371-372.)

As set forth above, Macks cannot in good faith contend that

he did not receive a fair hearing. Nor can Macks point to any

actual prejudice arising from the conduct of Wernick’s counsel.

Macks therefore contends that the “prosecution” of « state court

petty contempt by counsel for the contemnor’s opponent in

underlying civil litigation is a per se due process violation.

Criminal contempt proceedings have a quasi-criminal nature

to which the due process guarantee of fundamental fairness,

rather than the provisions of the Bill of Rights apply. United

States v. Bukowski, 485 F.2d 1094, 1101 (7th Cir. 1970), cert.

denied, 401 U.S. 911 (1971). This Court has recognized that

“criminal contempt is a petty offense unless the punishment

makes it a serious one.” Bloom uv. Illinois, 391 U.S. 194, 198 (1968).

Because Macks was not sentenced to imprisonment in this case

and imprisonment was not requested, this is not a serious criminal

contempt as was the case in Bloom uv. Illinois. While this Court

has mandated that certain procedural protections are available

to criminal contemnors, this Court has never recognized a due

process right to a disinterested prosecutor in state court petty

contempt proceedings. The Due Process Clause of the Fourteenth

Amendment does not require that states discontinue the long-

established practice of permitting petty contempts to be “prose-

cuted” by opposing counsel in civil litigation.

5. The Cases Cited By Macks Are Readily

Distinguishable

Macks’ reliance on Marshall v. Jerrico, 446 U.S. 238 (1980)

is to no avail. The “neutrality in adjudicative proceedings”

discussed in that case relates to the need for an impartial

judiciary. Indeed, the Court in Marshall observed that the strict

requirements of neutrality are not the same for a prosecutor as

they are for a judge. 446 U.S. at 248-250. Here, Wernick, Macks’

opponent, moved for the recusal of Judge Budzinski and the

contempt proceeding was heard by Judge Novoselsky to insure

that the requirement of a neutral and impartial judiciary was

met.

In Carey v. Piphus, 435 U.S. 247 (1978), the plaintiff students

were suspended from school without a hearing. Macks was

afforded a full hearing. In Joint-Anti Fascist Comm. v. McGrath,

341 U.S. 123 (1951), certain organizations were labeled as

communist by the United States Attorney General without notice

or hearing, and in Mathews v. Eldrige, 424 U.S. 319 (1976), this

Court held that an evidentiary hearing was not required prior

to the denial of disability benefits. These cases cited by Macks

have no application here.

Equally inapplicable are the cases cited by Macks regarding

prosecutorial misconduct. Brady v. Maryland, 373 U.S. 83 (1963)

and Alcotra v. Texas, 355 U.S. 28 (1957) involved suppression

of exculpatory evidence. In Giglio v. United States, 405 U.S. 150

(1972) and Miller v. Pate, 386 U.S. 1 (1967), the “prosecution”

allowed its entire case to stand on false evidence. Heckler v.

Chaney, 470 U.S. 821 (1985), dealt with the issue of judicial review

of administrative agency discretionary actions, not prosecutorial

misconduct, and is simply not on point.

Nor was Wernick’s counsel an “interested prosecutor” in the

sense of Brotherhood of Locomotive Firemen and Enginemen

v. United States, 411 F.2d 312 (5th Cir. 1969), cited by Macks.

The due process violations found in Brotherhood primarily related

to inadequate notice and the manner in which the hearings were

conducted. In holding the notice inadequate, the court in

Brotherhood emphasized the uncertainty as to what was charged

and the difficulty and delay in obtaining counsel, factors not

present here. Moreover, in vacating the contempt finding in

Brotherhood of Locomotive Firemen, the court took note of the

fact that the original injunction was later invalidated as having

been erroneously entered. Id. at 320.

Macks’ reliance on Young v. Vuitton, 481 U.S. 787 (1987)

is also to no avail. Young v. Vuitton concerned the federal district

court’s authority to appoint a private attorney to prosecute a

criminal contempt under Fed. R. Crim. P. 42 (b). This is unlike

the contempt proceeding against Macks, which involved neither

the judicial appointment of a special prosecutor nor the court’s

inherent power to make such an appointment. The case at issue

here “simply concerns the routine [state] practice of bringing

contempts to the attention of the court by motion.” Sassower

v. Sheriff of Westchester County, 824 F.2d 184, 191 (2d Cir. 1987),

distinguishing Young v. Vuitton.5

Young v. Vuitton does not recognize a due process right to

a disinterested prosecutor in state court contempt proceedings.®

This Court’s plurality decision in Young v. Vuitton was not meant

to apply to state court petty contempt proceedings for violations

of state court procedural rules. The acts of Wernick’s counsel

in “initiating” the contempt proceeding by filing a Motion for

Rule To Show Cause and in serving as proponent at the contempt

hearing after the impartial judge determined to issue the Rule

5 Sassower involved a contemnor who, like Macks, was an attorney,

and who persistently presented meritless claims, and after being

convicted of criminal contempt appealed on due process grounds.

6 Only Justice Blackmun thought that a constitutional question was

raised. Young v. Vuitton, 481 U.S. at 814-815 (Blackmun, J. concurring).

beeper

to Show Cause are simply not analogous to the acts of the court-

appointed special prosecutor in Young v. Vuitton. (Young v.

Vuitton is discussed in more detail infra.)

B. “Prosecution” By Wernick’s Counsel Did Not

Prejudice Macks

1. The Broad Question Macks Presents for

Review

Macks would have this Court hold that it is a per se due

process violation for the states to permit prosecution of petty

criminal contempts by private counsel who represent a party

interested in the outcome. Such a holding would be tantamount

to a prohibition of private prosecution of most petty criminal

offenses in the state courts, for it is doubtful that anybody but

an interested party would take the trouble to prosecute most petty

offenses.

In Bloom v. Illinois, the Court reasoned that “serious

contempts are so nearly like other serious crimes that they are

subject to the jury trial provisions of the Constitution, now

binding on the States, and that the traditional rule [not affording

jury trials in contempt proceedings] is constitutionally infirm

insofar as it permits other than petty contempts to be tried without

honoring a demand for a jury trial.” 391 U.S. at 198 (emphasis

added). The Court in Bloom uv. Illinois deliberately declined to

extend the right to jury trial to petty contempts, just as the Court

in Duncan v. Louisiana, 391 U.S. 145, 159-162 (1968) on the same

day retained the rule that petty crimes need not be tried to a

jury. See Bloom uv. Illinois, 391 U.S. at 210.

Macks would have this Court not only recognize a due process

right to a disinterested prosecutor, but extend it to the states

for serious as well as petty criminal offenses. “To take this course

... would be not only unnecessary but mischievous because it

would inflict a serious blow upon the principle of federalism.”

Bloom uv. Illinois, 391 U.S. at 213-214. The course Macks espouses

would wreak havoc upon established state court practice and

render the state courts incapable of upholding their dignity,

enforcing their rules or even their ministerial orders.

2. The Tradition of Private Prosecution In

The State Courts

The Due Process Clause commands us to apply its

great standard to state court proceedings to assure

basic fairness. It does not command us rigidly and

arbitrarily to impose the exact pattern of federal

proceedings upon the 50 States. . . [ijn our insistence

upon State observance of due process, we should, so

far as possible, allow the greatest latitude for state

differences. [The Constitution] requires, within the

limits of the lofty basic standards that it prescribes

for the States as well as the Federal Government,

maximum opportunity for diversity and minimal

imposition of uniformity of method and detail upon

the States. Our Constitution sets up a federal union,

not a monolith.

Bloom uv. Illinois, 391 U.S. at 213-214.

As discussed supra, it is well-established in Illinois that

counsei for an opposing party may prosecute a contempt. This

is but one aspect of an extensive role in criminal law enforcement

played by private prosecutors in the states. A study conducted

by Yale Law Journal disclosed that in 30 jurisdictions appellate

courts have decided that privately employed attorneys may assist

the public prosecutor, while only 3 have said they may not.

Comment, Private Prosecution: A Remedy for District Attorneys’

Unwarranted Inaction, 65 Yale L.J. 209, 218-219 (1955) (herei-

nafter cited as “Private Prosecution” or “Yale Law Journal’).

Illinois is one of the states that approve of such a role for private

prosecutors. Hayner v. People, 213 Ill. 142, 72 N.E. 792 (1904).

Most states find authority for permitting private prosecution

in the inherent power of the court to administer justice, while

a few states have enacted statutes that give private parties the

right to hire assistant prosecutors. Private Prosecution at 219.

Many states permit privately hired counsel to conduct criminal

prosecutions alone with the permission of the public prosecutor

and the trial court. Id. at 220.

3. The Need For Private Prosecution In

State Court Petty Contempt Proceedings

Rather than dwelling on theoretical conflicts of interest in

the private prosecutorial role, the Yale Law Journal was

concerned with the actual failings and excesses of public

prosecutors, pointing out that “(t]he decision not to prosecute

can be implemented by mere inaction, acceptance of a comprom-

ise plea, or entry of a nolle prosequi.” Private Prosecution at

209-210. The Yale Law Journal observed that “corruption,

political ambition, or insufficiency of funds and personnel often

motivate district attorneys to use these techniques to excess” and

that “{s]uch abuse of the district attorney’s discretion has created

a substantial deficiency in criminal law enforcement.” Jd. at 210.

Over 25% of 151 public prosecutors from 45 states who

responded to the Yale Law Journal questionnaire on prosecution

procedures stated that they did not have enough time or help

to conduct necessary prosecutions. Private Prosecution at 210

n.8. As of 1984, roughly 20,000 felony charges were being brought

against individuals in Cook County every year. The Cook County

State’s Attorney’s Office is responsible for review and prosecution

of these felonies, and is also responsible for some 500,000

misdemeanors annually in the City of Chicago as well as

misdemeanors committed in suburban Cook County (the Chicago

Metropolitan Area). The State’s Attorney’s Office also acts as

attorney for the Cook County Board and for all the various

branches of county government. 1984 Report of the Circuit Court

of Cook County, Illinois at 47.

During 1987, in the Municipal Department of the Circuit

Court of Cook County, a total of 363,479 misdemeanors, ordinance

and other petty violations were charged. Of these, 302,946 (83%)

were disposed of without convictions (73% being dismissed for

want of prosecution, nol-prossed, non-suited, stricken-off with

leave to reinstate [similar to nolle prosequi in Cook County],

or discharged under the speedy trial statute), while only 60,533

(17%) resulted in conviction. Administrative Office of the Ilinois

Courts, 1987 Annual Report to the Supreme Court of Illinois at

242. is

Faced with these numbing statistics concerning the dispo-

sition of petty offenses, it is unrealistic to assume that the Cook

County State’s Attorney would be able to meaningfully aide the

Circuit Court of Cook County in enforcing its ex parte commun-

ications rule, not to mention its other rules and ministerial orders

(such as those relating to court procedures, discovery in the

conduct of litigation, etc.). Unless private counsel can “prosecute”

contempts in the Cook County court system, the court will be

unable to enforce its rules or orders. “The ability to appoint a

private attorney to prosecute a contempt action satisfies the need

for an independent means of self-protection, without which courts

would be ‘mere boards of arbitration whose judgments and

decrees would be only advisory’. ” Young v. Vuitton, 481 U.S.

at 796, quoting Gompers v. Bucks Stove & Range Co., 221 U.S.

418, 450 (1911).

4. Macks Has Failed to Demonstrate Any

Actual Prejudice

Macks recognizes that he can show no actual prejudice by

virtue of the “prosecution” of the contempt charge by Wernick’s

counsel:

Even in the absence of any objective evidence of an

attempt to use the criminal proceedings to gain an

advantage in the civil proceedings or an impairment

of judgment based on conflicting duties, the situation

is so inherently coercive that, at a minimum, it creates

an appearance of unfairness and impropriety.

Pet. at 10 (emphasis added). In other words, there was no attempt

by Wernick to gain any advantage in the civil proceeding by

reason of the contempt proceeding, nor is there any indication

that Wernick’s counsel acted improperly in the contempt

proceeding.

In reviewing Macks’ contention that a conflict of interest

arose in “prosecution” of Macks by an “interested prosecutor”

(which Macks raised for the first time in his post-trial motion),

the trial court ruled that the conflicts which “were inherent in

the fact structure” of Young v. Vuitton “do not exist in the instant

case.” The trial court analyzed each of those in the context of

this case, as follows:

Young v. Vuitton

In Young, the beneficiary of the

court order prohibiting the trade

mark infringement was the party

whose attorneys were appointed

special prosecutor in the con-

tempt action. Therefore, that

party stood to gain significant

financial and legal rewards by

possibly bringing a tenuously

supported prosecution. Indeed,

the action would prevent further

infringement resulting § in

increased profits to the party.

In Young, the court was also

concerned that the special! prosec-

utor might abandon his quest to

vindicate the court’s authority if

a fruitful settlement were pro-

posed by the opposite party. The

court argued that the prosecutor

might decide to recommend that

no charges be brought against

the alleged contemnors if they

would agree to a special pros-

ecutor’s settlement demands. In

essence, the covrt was concerned

that the special prosecutor would

use the contempt proceeding as

a bargaining chip.

This Case

The result is not the same in the

instant case. Here, the benefi-

ciary of any contempt action is

the court arid not the private

party. There are no injunctive

orders beneficial to [Wernick]

that are alleged to have been

violated. Thus, [Wernick] does

not stand to gain any financial

or legal reward by prosecuting

the contempt action.

There is simply no proof that the

attorney for [Wernick] here will

not vigorously attempt to vindi-

cate the court’s. author-

ity ... This is of no concern to

thé court in the present case.

In Young, the alleged contuma-

cious conduct was still under

investigation giving the special

prosecutor the bargaining chips

he needed to demand the certain

rewarding fruits.

Finally, the court in Young was

concerned that the special prosec-

utor might use the contempt

action in order to gain material

information in that case as well

as information about a defama-

tion action filed by petitioner

against special prosecutor.

Pet. App. at E-5 - E.

In this case the investigation was

complete and a Rule to Show

Cause was granted. Since the

Judge could have summarily

punished [Macks] in his discre-

tion, [Wernick] could not use the

contempt action to his advan-

tage. Any attempt to abandon the

prosecution by [Wernick] would

have resulted in the court

attempting to vindicate its own

authority. Therefore, [Wernick]

does not stand in the same [posi-

tion] to gain rewarding fruits by

abandoning the prosecution of

[Macks].

While there may have been infor-

mation to be gleaned from the

prosecution of the contempt

action in Young, such is not the

case here. The substance of

[Macks’] ex parte communica-

tions with the Judge in the

instant case was revealed in open

court and while it related to the

underlying probate proceeding,

the information was not material.

Therefore, [Wernick’s counsel]

were in no position to gain infor-

mation beneficial to their client’s

interest.

The Dlinois Appellate Court also reviewed the record in light

of Young v. Vuitton and Macks’ contention that a conflict of

interest arose in the “prosecution” of Macks by an “interested

prosecutor”, and held that “no conflict of interest arose” and

that the contempt hearing “was properly conducted by [opposing]

counsel.” 176 Ill. App. 3d at 159-160, Pet. App. at A-6, A-7.7

Even those commentators who have warned against poten-

tial conflicts of interest where a private attorney serves as

prosecutor (and vice versa) have acknowledged that there is less

possibility of unfairness to the defendant arising from the

attorney’s in-court activity than from his participation in the

stages of a prosecution in which the prosecutor has greater

discretionary power (i.e. investigation, determination whether to

charge, grand jury, plea bargaining, etc.). This is because the

7 Macks’ insinuation that Wernick’s counsel violated ABA Model Code

and Illinois Code of Professional Responsibility Rule 7-105 is without

merit. Pet. at 10. Rule 7-105, which prohibits an attorney from threatening

unwarranted criminal charges to obtain an advantage in a civil matter,

do not apply to a situation where one party petitions the court to enforce

a procedural rule by means of appropriate sanctions. 176 Ill. App. 3d

at 159, Pet. App. at A-6. Asking the court to exercise its contempt power

is not a threat of criminal prosecution to obtain advantage in a civil

matter and clearly does not violate Rule 7-105.

Macks’ assertion that his prosecution was in contravention of III. Rev.

Stat. ch. 14, §6 (1987) is similarly without merit. Pet. at 9 n. That statute

provides:

Whenever the attorney general or state’s attorney is sick

or absent, or unable to #tend, or is interested in any cause

or proceeding, civil or cmmuinal, 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,

and the attorney so appointed shall have the same power

and authority in relation to such cause or proceeding as the

attorney general or state’s attorney would have had if present

and attending to the same...

The statute clearly is inapplicable. Unlike Sommer v. Goetze, 102 IIl.

App. 3d 117, 429 N.E.2d 901 (8rd. Dist. 1981) and Gilbert v. People,

121 Il. App. 423 (3rd Dist. 1905), cited by Macks, this contempt proceeding

did not involve or require the involvement of the attorney general or

state’s attorney. Moreover, Wernick’s counsel was not appointed by the

court as special prosecutor, but was proceeding under established

precedent as counsel for a private litigant.

: a 23

attorney’s in-court actions are subject to closer judicial

and public scrutiny.®

In the contempt proceeding against Macks, counsel for

Wernick brought a Motion for Rule To Show Cause, but the

impartial judge decided to issue the Rule to Show Cause. Thus,

the impartial judge made the determination whether to prosecute

the contempt and supervised the contempt proceeding. No

prosecutorial discretion was vested in Wernick’s counsel, who

merely acted as the proponent at the contempt hearing.

C. Young v. Vuitton Does Not Apply To

This Case

As discussed above, Young v. Vuitton was carefully con-

sidered by the trial court and the appellate court below, and they

correctly concluded that it did not apply to this case. In Young

v. Vuitton, the Court exercised its supervisory power over

contempt prosecutions in federal courts in holding that counsel

for a party who is the beneficiary of a court order cannot be

appointed to prosecute a contempt action alleging a violation

of that order. 481 U.S. 808-809. Macks relies upon Young v.

Vuitton in petitioning this Court for certiorari based on a

purported violation of his Fifth and Fourteenth Amendment

rights, but Young v. Vuitton was not decided on constitutional

grounds, and does not apply to the state.

Numerous other distinctions between this case and Young

v. Vuitton have already been discussed. Fundamentally, as the

Illinois Appellate Court observed, in Young v. Vuitton “winning

the contempt order meant enforcement of the injunction, through

extraordinary means, to the direct benefit of the party seeking

8 See Comment, The Outmoded Concept of Private Prosecution, 25 Am.

U.L. Rev. 754, 773-774 (1976). (“If the private prosecutor’s participation

in the case is limited to in-court activity, there is little chance of prejudice

resulting to the defendant, because the former’s conduct is visible and

governed by the same standards as is that of the regular prosecutor.’

Id. at 791. See also Note, Private Prosecutors in Criminal Contempt

Actions Under Rule 42(b) of the Federal Rules of-Criminal Procedure,

54 Fordham L. Rev. 1141 (1986) (“The actual trial, because it is conducted

before a judge, may be subject to less prosecutorial abuse.’’) fd. at 1159

n. 68.

the contempt.” 176 Ill. App. 3d at 159, Pet. App. at A-6. Macks

was found in contempt for violating a court rule and admonition,

not a prior court order that benefited his opponent. The conduct

for which Macks was found in contempt did not arise from a

violation of a court order in which Wernick or his counsel had

a proprietary interest. Wernick stood to benefit, if at all, only

indirectly, as all honorable litigants benefit when the dignity

of the courtis upheld. As the trial court concluded, “the beneficiary

of [this] contempt action is the court and not the private party.”

Pet. App. E-3.

In Young v. Vuitton, the Court was clearly troubled by the

undercover “sting” operation carried out by the special prosecutor,

in which more than 100 audio and video tapes were made of

meetings and telephone conversations totally outside the

supervision of the United States Attorney’s office. Young v.

Vuitton, 481 U.S. at 792. Also troubling was the fact that the

consent decree in Young v. Vuitton contained a liquidated

damages provision of $750,000 for violation of the injunction.

As the Court observed, “(T]he prospect of such a damage award

had the potential to influence whether Young was selected as

a target of the investigation, whether he might be offered a plea

bargain, or whether he might be offered immunity in return for

his testimony.” Young v. Vuitton, 481 U.S. at 805-806. The Court

in Young v. Vuitton was further troubled by the fact that one

of the special prosecutors was himself a defendant in a defa-

mation action filed by one of the defendants in the underlying

civil case whom he prosecuted for contempt. Thus, not only the

party represented by the special prosecutor, but the special

prosecutor himself had a direct interest. As the Court observed,

“{t]his created the possibility that the investigation ... might

be shaped in part by a desire to obtain information useful in

the defense of the defamation suit.” Young v. Vuitton, 481 U.S.

at 806.

In this case, the Illinois Appellate Court reviewed the record

and concluded that “(t]he record categorically shows that Macks

engaged in an ex parte communication .. . ,” that “(t]he evidence

amply supports the finding of contempt... ,” that the evidence

in the contempt hearing “clearly met” the reasonable doubt

standard, that the contempt ruling “was based on substantial

a ye as na

evidence, ...” that “Macks’ behavior demonstrated, if not

“evitomized, the extreme circumstances in which a contempt

finding is warranted... ,” that Macks “was found guilty of

contempt by overwhelming evidence... ,” and that the contempt

hearing “was properly conducted” by opposing counsel. 176 IIl.

App. 3d at 157-160, Pet. App. at A-4 - A-7.

The conflicts of interest present in Young v. Vuitton are not

present in this case. The contempt finding in this case is clearly

supported by the evidence. Macks not only has failed to dem-

onstrate actual prejudice, he has essentially conceded there was

none.

CONCLUSION

For the foregoing reasons, the petition for writ of certiorari

should be denied.

Respectfully submitted,