# Opposition Brief — Macks v. Wernick

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1989
- **Citation:** 493 U.S. 809

## Text

— 2, —— ~— Rg ne ae ee ETE a

In The \ 308
_ Jun 23
_ Supreme Court of the United Ptates -. seas

9
__-

IN THE MATTER OF THE ESTATE
OF
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

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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

iv

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
OF
E. DAVIS WERNICK, Deceased -

MITCHELL C. MACKS,

Petitioner,
v.

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

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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”.

3
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.)

4

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

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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

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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

7

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.)

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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

10

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).

11

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).

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12

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.

13

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

14

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.

15

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

16

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

17

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.

yn

18

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],

19

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”

20

(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.

21

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]

22
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.

24

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

25

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,

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

June 23, 1989

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_1168%3A2. Public record. Not legal advice.