Opposition Brief — Greening v. Miller

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GFFICE OF THE Cid

No. 91-490

IN THE

Supreme Court of the United States

OCTOBER TERM, 1991

ALFRED H. GREENING, JR.,

Petitioner,

VS.

HONORABLE BEN MILLER, Chief Justice,

Illinois Supreme Court, et al.,

Respondents.

Petition For Writ Of Certiorari To

The Supreme Court Of Illinois

RESPONDENTS’ BRIEF IN OPPOSITION

WILLIAM F. MORAN, III

Counsel of Record

One North Old Capitol Plaza

Suite 345

Springfield, Illinois 62701

(217) 522-6838

Attorney for Respondents

Individual Members of the

Attorney Registration and

Disciplinary Commission and

the Commission

October 23, 1991

Midwest Law Printing Co., Chicago 60611, (312) 321-0220

Arey .

oe e

Org

II.

i

QUESTIONS PRESENTED

FOR REVIEW

Whether the Supreme Court of Illinois can summarily

remove the name of an individual from the Master —

Roll of Attorneys authorized to practice law in the

State for failing to comply with an administrative re-

quirement, the payment of an annual attorney regis-

tration fee, established in relation to the Court’s in-

herent authority to regulate the practice of law?

Whether Petitioner was afforded due process guaran-

tees during his prosecution for indirect criminal con-

tempt of the Supreme Court of Illinois for engaging

in the unauthorized practice of law after his name

was removed from the Master Roll of Attorneys au-

thorized to practice law in the State?

ii

PARTIES TO THE PROCEEDING BELOW

The Attorney Registration and Disciplinary Commission

of the Supreme Court of Illinois (Commission) by its Ad-

ministrator, the original complainant and relator through-

out the proceedings below, is the proper party-respondent

in this Court. Petitioner is in error naming the individual

members of the Supreme Court of Illinois and the indi-

vidual members of the Commission as party-respondents.

These proceedings were initiated on the petition of the

Commission’s Administrator that a rule to show cause

issue to Petitioner why he should not be held in contempt

for failing to pay the 1989 annual attorney registration

fee. (In re Greening, M.R. 5916 in the Supreme Court of

Illinois, Report Pursuant to Supreme Court Rule 756, filed

on July 25, 1989). The proceedings concluded when the

Supreme Court of Illinois entered an order sentencing Re-

spondent on a conviction of indirect criminal contempt for

engaging in the unauthorized practice of law after his

name was removed from the Master Roll of Attorneys

authorized to practice law in the State for failing to pay

the 1989 attorney registration fee as required by Illinois

Supreme Court Rule. (Order, M.R. 5916 in the Supreme

Court of Illinois, filed on June 25, 1991).

Since 1973, all attorneys in the State of Illinois pursuant

to Illinois Supreme Court Rule 756(a), have been required

to pay an annual registration fee to the Commission to

fund the State’s attorney registration and disciplinary

system. (107 IIl.2d R. 756(a) (1985)). The collection of these

fees and the registration of attorneys is under the admin-

istrative supervision of the Commission pursuant to IIli-

nois Supreme Court Rule 751(a). (107 Ill.2d R. 751(a) (1985)).

The Administrator is charged with representing the Com-

mission in all proceedings regarding the registration of

ili

attorneys pursuant to Illinois Supreme Court Rule 752(e).

(107 Ill.2d. R. 752(e) (1985)).

Registration proceedings include the prosecution of at-

torneys for contempt pursuant to IIlinois Supreme Court

Rule 756(d) for engaging in the unauthorized practice of

law while removed from the Master Roll of Attorneys for

failing to pay the annual registration fee. (107 Ill.2d R.

756(d) (1985)). Therefore, the Commission by its Adminis-

trator, was the initial complainant in this matter.

Petitioner has presented no argument in support of the

inclusion of the individual members of the Supreme Court

of Illinois, the adjudicative body in this situation, and the

individual members of the Commission as party-respon-

dents to this proceeding. Supreme Court Rule 12.4 pro-

vides that all parties to the proceeding in the court whose

judgment is sought to be reviewed shall be parties in this

Court. The Commission can and should be considered as

the proper party-respondent to this proceeding.

This brief in response is filed on behalf of the Commis-

sion and its individual members as set forth in the peti-

tion for certiorari. The Commission received notice of the

petition on September 23, 1991. Counsel for the individual

members of the Supreme Court of Illinois has informed

the Commission that the Court will file a separate brief

in opposition concerning this issue and in support of the

substantive arguments presented in the body of this brief.

iv

TABLE OF CONTENTS

PAGE

QUESTIONS PRESENTED ..............4-:- i

PARTIES TO THE PROCEFDING BELOW .... il

TABLA GP ALT EeEAE ce eves ccvcccccés vi

STATEMENT OF THE CASE ............... 1

SUMMARY OF ARGUMENT ................ 12

po UI RO ei Ga ate tt poate pga Ar EY ew 13

THE SUPREME COURT OF ILLINOIS CAN SUM-

MARILY REMOVE THE NAME OF AN INDI-

VIDUAL FROM THE MASTER ROLL OF AT-

TORNEYS AUTHORIZED TO PRACTICE LAW

IN THE STATE FOR FAILING TO COMPLY

WITH AN ADMINISTRATIVE REQUIREMENT,

THE PAYMENT OF AN ANNUAL REGISTRA-

TION FEE, ESTARLISHED IN RELATION TO

THE COURT’S INHERENT AUTHORITY TO

REGULATE THE PRACTICE OF LAW...... 13

A. The Supreme Court of Illinois can lawfully

collect an annual registration fee from an in-

dividual admitted to practice law in the

State based upon the Court’s inherent au-

thority to regulate the practice of law .. 14

B. A hearing must be available to a licensee

if a license granted by the State as a right

is revoked or suspended for misconduct ... 15

C. A hearing does not have to be available to

a licensee if a license granted by the State

as a right is revoked or suspended due to

the failure of the licensee to comply with

=

Vv

an administrative requirement imposed as

a prerequisite to obtaining or retaining the

NE ioe SE5n0 0 FaFeicdis se,

Petitioner failed to comply with an adminis-

trative requirement imposed as a prere-

quisite to retaining his license to practice

law, the payment of the 1989 attorney regis-

tration fee, therefore, no hearing had to be

available when his name was removed from

the Master Roll of Attorneys ...........

Il.

PETITIONER WAS AFFORDED DUE PROCESS

GUARANTEES DURING HIS PROSECUTION

FOR INDIRECT CRIMINAL CONTEMPT OF

THE SUPREME COURT OF ILLINOIS FOR

ENGAGING IN THE UNAUTHORIZED PRAC-

TICE OF LAW AFTER HIS NAME WAS RE.

MOVED FROM THE MASTER ROLL OF ATTOR-

NEYS AUTHORIZED TO PRACTICE LAW IN

Be WEIR Wes Vekbe teins doe tedee eee.

A.

B.

Definition of criminal contempt .........

Process which is due in indirect criminal

contempt proceedings ..................

Petitioner was afforded due process guar-

antees during his prosecution for indirect

criminal contempt of the Supreme Court of

WE Cclieee cette

1. Notice of charge ...........0.ccece.

2. Opportunity to defend ..............

ieee WN cay) ee ee

RR NI ye CeVlae ra ce erate ee

APPENDICES

oe eee 2 eS OOS 8 O.E Se 6 6.8 6.4 et ee Owe oO See SS

18

20

23

vi

TABLE OF AUTHORITIES

CASES PAGE

In re Albert, 383 Mich. 722, 179 N.W.2d 20 (1970) . 30

Bell v. Burson, 402 U.S. 535 (1971) ........... 16

Berry v. Barchi, 448 U.S. 55 (1979) ........... 16, 17

Bloom v. Illinois, 391 U.S. 194 (1967) ......... 26

Board of Regents v. Roth, 408 U.S. 564 (1972) ... 18

County of McLean v. Kickapoo Creek, Inc., 51

Ill.2d 353, 888 N.E.2d 720 (1972) ........... 26

Cronson v. Clark, et al., 810 F.2d 662 (7th Cir.),

cert. denied, 484 U.S. 871 (1987) ........... 30

In re Day, 181 Ill. 72, 54 N.E. 646 (1899)..... 14

Easter House v. Felder, 879 F.2d 1458 (7th Cir.

1989), cert. gr. and vac., 110 S. Ct. 1314 affd

on remand, 910 F.2d 1387 (1990), cert. denied,

ge A A | ee rere 19

Goldfarb v. Virginia State Bar, 421 U.S. 773

ae er ee 14

Greening v. Moran, et al., 739 F. Supp. 1244 (C.D.

ee led dee ne ekees deen ee RSENS 21, 22

Keller v. State Bar of California, 110 S. Ct. 2281

Pe GtOe ee pe rekind santos havevess 15

Lathrop v. Donahue, 367 U.S. 820 (1960) ...... 14, 15

Mayberry v. Pennsylvania, 400 U.S. 455 (1971) .. 30

Parratt v. Taylor, 451 U.S. 527 (1981)........ 17

People v. Barasch, 21 I1l.2d 407, 173 N.E.2d 417

| Be 6 ai ore 23, 27

vii

People v. Colorado City Lot Owners and Tax-

payers Association, 119 Ill. App.38d 691, 456

N.E.2d 948 (Ill. App. 1 Dist. 1983), reversed on

other grounds, 106 Ill.2d 1, 476 N.E.2d 409

eee en ere eer ee ats eae gee

CBee eT er eee Te eee eer e ET ere rer

a BR ee ree

People ex rel. Kunce v. Hogan, 67 Il.2d 55, 364

Pie GO CROFT) ov ccc cccccsvevevesecoeses

People v. Javaras, 51 Ill.2d 296, 281 N.E.2d 670

os a

be OTT TTT eT eee ET CET TCT e ET TCTs

Ce ee ee eee

People v. People’s Stock Yards State Bank, 344 Ill.

462, 176 N.E. 901 (1931)..................

People v. Roush, 101 Ill.2d 855, 462 N.E.2d 468

CMD Ko awed ce veecveceteetuanedectecsechus

People v. Schafer, 404 Ill. 45, 87 N.E. 773 (1949) .

People v. Sherwin, 353 Ill. 525, 187 N.E. 441

ROD 5-n 0 6450559 55404-058004 0s nde Ede KOS

SEE Neh b6 45 e eo Kk hes ewes oo4 55k e4uasewerss

People v. Ziporyn, 121 Ill. App.3d 1051, 460 N.E.2d

385 (Ill. App. 1 Dist. 1984), reversed on ovher

grounds, 106 Ill.2d 419, 478 N.E.2d 364 (1985) .

14, 27

27, 29

'

vill

Powell et al. v. Western Illinois Electric Cooper-

ative, et al., 180 Ill. App.3d 581, 586 N.E.2d 231

(Ill. App. 4 Dist.), petition for leave to appeal

denied, 127 Ill.2d 640, 545 N.E.2d 129 (1989),

cert. denied, 110 S. Ct. 1182 (1990)........ 4

Reed v. Village of Shorewood, 704 F.2d 948 (7th |

2 rrrre Tr ete rT rT Te 18 |

Schware v. Board of Bar Examiners, 353 U.S. 232 |

Se ES rE er rrr nnn tr rer re 16

Supreme Court of New Hampshire v. Piper, 470

tt ae. 2 rere rrerrrr err Tree 15

Thornton v. Barnes, 890 F.2d 1380 (7th Cir. 1989) . 19

Vaden v. Village of Maywood, 809 F.2d 361 (7th

Cir.), cert. denied, 482 U.S. 908 (1987)..... 18, 19

CONSTITUTIONAL PROVISIONS

Bo a a Se 15, 22

STATUTES AND REGULATIONS

107 TAG BR. BB1 (IGSB) .. nc ccc ccccccvevecesess 21

107 I11.2d R. 750 et seg. (1985) .......cceceeees 15

107 IN.2d R. 763 (19BB) .. 1... ccc wcccvevrvecens 17

107 WN.2d R. 766 (UDBD) ... 2. ccc cvccvecevcees passim

107 IN.2d R. T74 (19BB) .. 1. ccc vcccvececvvece 17

Ill. Rev. Stat. 1989, Ch. 110%, par. 1-1 et seq. . 12

Ill. Rev. Stat. 1989, Ch. 110%, par. 24-1...... 12

2 Se Peer ere 24

OTHER AUTHORITIES

Annot., 64 A.L.R.2d 600 (1959) ............... 30

No. 91-490

IN THE

Supreme Court of the United States

OCTOBER TERM, 1991

ALFRED H. GREENING, JR.,

Petitioner,

HONORABLE BEN MILLER, Chief Justice,

Illinois Supreme Court, et al.,

Respondents.

Petition For Writ Of Certiorari To

The Supreme Court Of Illinois

RESPONDENTS’ BRIEF IN OPPOSITION

Respondent individual members of the Attorney Regis-

tration and Disciplinary Commission and the Commission,

respectfully pray the this Court enter an order denying

Petitioner’s Petition for Writ of Certiorari to the Supreme

Court of Illinois filed in this cause.

STATEMENT OF THE CASE

On March 1, 1989 Petitioner’s name was removed from

the Master Roll of Attorneys authorized to practice law

in the State of Illinois. Petitioner’s name was removed

because he failed to pay the 1989 attorney registration

~~

fee to the Commission as required by Illinois Supreme

Court Rule. Petitioner subsequent!y notifiei the Commis-

sion that his failure to pay the fee was intentional. The

Administrator of the Commission then filed a petition in

the Supreme Court of Illinois requesting that a rule to

show cause issue to Petitioner why he should not be sus-

pended from the practice of law for intentionally refusing

to pay the registration fee.

The Commission subsequently received information which

indicated that Petitioner was engaging in the unauthorized

practice of law while his name was removed from the

Master Roll of Attorneys. The Administrator of the Com-

mission then filed a petition in the Supreme Court of IIli-

nois requesting that a second rule to show cause issue to

Petitioner why he should not be found in indirect criminal

contempt of the Court for engaging in the unauthorized prac-

tice of law. Petitioner responded to the rule with State

and Federal Constitutional challenges to the authority of

the Court to collect an annual attorney registration fee.

The Supreme Court of Illinois found Petitioner’s consti-

tutional challenges to be without merit. The Court also

found that Petitioner had engaged in the unauthorized

practice of law. The Court then convicted and sentenced

Petitioner on a charge of indirect criminal contempt. Peti-

tioner has now filed his petition for writ of certiorari with

this Court.

The facts concerning Petitioner’s conduct are largely un-

contested. The facts are almost entirely set forth in a stip-

ulation entered into by Petitioner and the Commission.

This stipulation was entered into evidence during an evi-

dentiary hearing held before Illinois Circuit Court Judge

J. David Bore on August 6, 1990. (Stipulation as to Facts

and Admissibility of Documents (Stip.), Bone trans., 8/6/90,

p. 7). This stipulation is reprinted as Appendix A to this

brief, minus the referenced exhibits.

slic

Petitioner’s Removal from the Master Roll of Attorneys

Petitioner was admitted to the practice of law in the

State of Illinois on May 16, 1949. (Stip., par. 3).

On or about December 22, 1988, Petitioner received a

notice from the Commission informing him that he was

required to register and pay the 1989 annual attorney reg-

istration fee in the amount of $140 to the Commission on

or before February 1, 1989.! (Stip., par. 6). Petitioner

neither registered nor paid the 1989 annual attorney regis-

tration fee as required. (Stip., par. 7).

On or about February 20, 1989, Petitioner received a

letter from the Commission notifying him that his regis-

tration and the 1989 annual attorney registration fee were

past-due and that if he did not register and pay the fee

on or before March 1, 1989, his name would be removed

from the Master Roll of Attorneys. (Stip., par. 8). Peti-

tioner failed to register or pay the fee, so on March 1,

1989 his name was removed from the Master Roll of At-

torneys authorized to practice law in the State of Illinois

pursuant to Illinois Supreme Court Rule 756(d).2 (107 Il.2d

R. 756(d) (1985)). (Stip., par. 9).

1 Attorneys in Illinois are required by Illinois Supreme Court

Rule 756(c) to notify the Administrator of the Commission of any

change of address. (107 IIl.2d R. 756(c) (1985)). The registration

form forwarded to attorneys provides them with an opportunity

to correct their address, as well as certify that they are paying

the appropriate amount for their registration fee as required by

Illinois Supreme Court Rule 756(a). (107 Ill.2d R. 756(a) (1985)).

2 Illinois Supreme Court Rule 756(d) provides that on the first

of February of each year, the Administrator shall remove from

the Master Roll of Attorneys the name of any person who has

not registered for that year. (107 Ill.2d R. 756(d) (1985)). In 1989,

the registration forms that the Administrator is required to mail

to each attorney on the Master Roll were late being processed.

(Footnote continued on following page)

a ee

On or about March 22, 1989, Respondent received a let-

ter from the Commission notifying him that his name had

been removed from the Master Roll of Attorneys. (Stip.,

par. 10). On or about May 2, 1989, Petitioner forwarded

a letter to the Commission stating, “A recent Fourth Dis-

trict Appellate Court Case—No. 4-88-0355—informs me

that I do not have to be registered with your office to

practice law in the State of Illinois.’ (Stip., par. 11).

On or about May 11, 1989, the Commission wrote to

the Chief Judge of the Circuit Court situated where Peti-

tioner’s law office had previously been located and in-

formed him that Petitioner’s name had been removed

from the Master Roll of Attorneys on March 1, 1989.

(Stip., par. 12).

On or about June 6, 1989, Petitioner received a letter

from the Commission notifying him that the was not ex-

cused from registering or paying the 1989 annual attor-

ney registration fee and accrued penalties.4 Enclosed with

2 continued

Therefore, attorneys were granted a 30-day extension before their

names were removed from the Master Roll for failure to register

and pay the annual registration fee. This explains why Petitioner’s

name was not removed from the Master Roll until March 1, 1989.

3 Petitioner was referring to the opinion of the Appellate Court

of Illinois, Fourth District, in Powell, et al. v. Western Illinois

Electric Cooperative, et al., 180 Ill. App.3d 581, 5386 N.E.2d 231

(Ill. App. 4 Dist.) (petition for leave to appeal denied, 127 Ill.2d

640, 545 N.E.2d 129 (1989)) (cert. denied, 110 S. Ct. 1132 (1990)).

The Appellate Court’s decision in Powell had nothing to do with

the registration and licensing of attorneys in the State of Illinois.

In Powell, the Appellate Court simply found that the attorney-

client privilege applies between an Illinois corporate client and an

attorney who represents the corporation, but is not licensed to

practice law in the State.

4 In the letter dated June 6, 1989, Jerome Larkin, Deputy Admin-

istrator of the Commission, informed Petitioner:

I have reviewed the opinion of the Illinois Appellate Court

in Powell, et al. v. Western Illinois Electric Cooperative, et al.,

(Footnote continued on following page)

ro

the letter was a 1989 registration application. (Stip., par.

13). On or about June 12, 1989, the Commission received

a letter from Petitioner. The 1989 registration application

was completed and attached to the letter. Petitioner did

not forward the 1989 annual attorney registration fee.5

(Stip., par. 14).

Suspension Proceedings in the Supreme Court of Illinois

On July 31, 1989 the Administrator of the Commission

filed with the Supreme Court of Illinois an amended re-

port pursuant to Illinois Supreme Cow « Rule 756 (107 III.

2d R. 756 (1985)), concerning Petitioner’s failure to pay

4 continued

No. 4-88-0355 (4th District 1989). The opinion does not support

your position that you are not obligated to pay the registra-

tion fee required by Supreme Court Rule 756(a).

The appellate court was not faced with the issue of the obli-

gation of an Illinois attorney to pay the registration fee under

Supreme Court Rule 756 and did not purport to interfere with

the inherent and exclusive jurisdiction of the Supreme Court

to regulate the legal profession. See In re Day, 181 Ill. 73,

54 N.E. 646 (1899).

The appellate court’s decision related to a narrow issue:

whether the communication between an Iowa attorney and a

client located in Illinois would be accorded the protection of

the attorney-client privilege in litigation in an Illinois court.

The court was not presented and did not find it necessary to

consider the charge that the Iowa attorney was engaged in

the unauthorized practice of law in Illinois.

(Stip., par. 13, Exhibit 8). Apparently, Petitioner has abandoned

his argument that the Powell decision is controlling in this case.

Petitioner has not included this argument in his petition for cer-

tiorari.

5 In his letter dated June 12, 1989, Petitioner questions the au-

thority of the Supreme Court of Illinois to “exercise governmental

power to collect money to put in a private fund for any purpose.”

Petitioner maintains that he could only be removed from the

Master Roll of Attorneys for “malconduct”. Therefore, he did not

intend to pay the 1989 annual registration fee as required by Su-

preme Court Rule 756. (Stip., par. 14, Exhibit 9).

~~

the 1989 annual attorney registration fee and accrued

penalties. No specific conduct of Petitioner was reported

to the Court other than Petitioner’s failure to pay the

1989 annual attorney registration fee and penalties with

his registration. The amended report requested that the

Court issue a rule to show cause why Petitioner should

not be suspended from the practice of law for his willful

failure to comply with Rule 756. (Stip., par. 15).

On August 7, 1989 the Supreme Court of Illinois ruled

Petitioner to show cause, in writing, on or before Septem-

ber 11, 1989, why he should not be suspended from the

practice of law until further order of the Court for fail-

ing to comply with the requirements of Supreme Court

Rule 756. (Stip., par. 16). On August 18, 1989 a copy of

the rule to show cause was personally served on Peti-

tioner. (Stip., par. 17).

On September 11, 1989 Petitioner filed an answer to

the rule to show. cause. On September 22, 1989 Peti-

tioner filed an amendment to his answer. In his answers,

Petitioner formally raises his constitutional challenges con-

cerning due process and the Supreme Court of Illinois’

authority to remove his name from the Master Roll of

Attorneys for non-payment of the 1989 annual attorney

registration fee. (Stip., par. 18).

Petitioner also attached to his answer filed on Septem-

ber 11, 1989, a cashier’s check in the amount of $230 made

payable to the “Clerk of (the) Supreme Court of Illinois”.

Petitioner alleged that the proceeds of this check repre-

sented payment of the past-due 1989 annual attorney

registration fee and accrued penalties. (Stip., par. 18).

On September 15, 1989 the Administrator of the Com-

mission filed his response to Petitioner’s answer. The Ad-

ministrator requested that. the Supreme Court enter an

order enforcing its rule to show cause and suspend Peti-

a

tioner from the practice of law until such time as he com-

plied with the provisions of Illinois Supreme Court Rule

756. (Stip., par. 19).

On September 27, 1989 the Supreme Court of Illinois

entered an order directing the Clerk of the Court to re-

turn to Petitioner his cashier’s check for $230. The Court

continued its rule to show cause to and including October

4, 1989, to give Petitioner the opportunity to make pay-

ment of the 1989 annual attorney registration fee and

accrued penalties to the Commission. (Stip., par. 20).

On October 3, 1989 Petitioner unilaterally deposited the

cashier’s check which was returned to him into an escrow

account with a corporation which was not affiliated with

the Commission. (Stip., par. 21). On October 4, 1989 Peti-

tioner filed a copy of the escrow agreement concerning

the cashier’s check with the Supreme Court of Illinois.

(Stip., par. 22).

Facts Concerning the Unauthorized Practice of Law

On February 19, 1988 Respondent filed in the Circuit

Court for the Seventh Judicial Circuit, Sangamon County,

Illinois, a Petition for Letters of Administration on behalf

of Helen B. Halbert, the spouse and sole surviving heir

of William A. Halbert. Mr. Halbert passed away on Feb-

ruary 10, 1988. The Clerk of the Circuit Court docketed

the matter as Case No. 88-P-97. (Stip., par. 4). The estate

was assigned to Circuit Judge Simon L. Friedman.®

On February 19, 1988 an order was entered by Judge

Friedman appointing Ms. Halbert the independent admin-

istrator of her late husband’s estate. (Stip., par. 5). Peti-

6 Petitioner was a high school classmate of Judge Friedman’s and

the two have known each other for 55 years. (Bone trans., 8/6/90,

p. 13).

—

tioner remained the attorney of record for the administra-

tor from the date the estate was opened, until October

27, 1989, the date the estate was closed. (Bone trans.,

8/6/90, p. 7, Exhibit 2; Report of Hearings Conducted Pur-

suant to Order Entered May 30, 1989 (Report), M.R. 5916

in the Supreme Court of Illinois, filed by Judge Bone on

October 4, 1990, par. 7; Pet.’s Appendix F, p. F3).

On March 1, 1989 Petitioner’s name was removed from

the Master Ro!l of Attorneys authorized to practice law

in the State of Illinois as set forth above. (Stip., par. 9).

Petitioner received notice that his name had been re-

moved from the Master Roll on or about March 22, 1989.

(Stip., par. 10).

On or about August 9, 1989, Petitioner inquired of Judge

C. Joseph Cavanagh, the Chief Judge of the Seventh Judi-

cial Circuit, the Circuit in which Case No. 88-P-97 was

pending, whether Petitioner would be permitted to prac-

tice law in Judge Cavanagh’s courtroom. Judge Cavanagh

replied that Petitioner would not be allowed to appear

in his courtroom because Petitioner’s name had been re-

moved from the Master Roll of Attorneys. (Bone trans.,

8/6/90, pp. 9-11; Report, par. 7; Pet.’s Appendix F, p. F'3).

Soon thereafter, Ms. Halbert requested that the pro-

ceedings in Case No. 88-P-97 be closed. Petitioner in-

formed Ms. Halbert that he might not be able to close

the estate because of the problems with the 1989 annual

attorney registration fee as set forth above, but he would

find out. (Bone trans., 9/7/90, pp. 24-25; Report, par. 7;

Pet.’s Appendix F, p. F3). Petitioner then advised Ms.

Halbert on the procedure for closing the estate, completed

tne final report for Ms. Halbert’s approval and signature,

and received Ms. Halbert’s check in the amount of $39

for closing costs. (Bone trans., 9/7/90, pp. 32-35; Report,

par. 7; Pet.’s Appendix F, p. F3).

= oe

On or about October 19, 1989, Petitioner appeared in

Judge Friedman’s chambers with a file related to Peti-

tioner’s dispute with the Commission. Judge Friedman re-

fused to review the file because he was already aware

of the facts of the situation. Judge Friedman had been

following the dispute through articles which had appeared

in a daily legal newspaper, the Chicago Daily Law Bulle-

tin, printed in Chicago, Illinois. (Bone trans., 8/6/90, pp.

17-18; Report, par. 7; Pet.’s Appendix F, p. F4).

On October 20, 1989 Petitioner appeared at the office of

the Clerk of the Circuit Court of Sangamon County, Pro-

bate Division, and delivered for filing in Case No. 88-P-97,

the final report signed by Ms. Halbert, tendered Ms. Hal-

bert’s check in the amount of $39 for closing costs, and

additionally filed an estate closing letter from the Internal

Revenue Service and a certificate of discharge and deter-

mination of tax issued by the (Illinois) Attorney General.

(Stip., par. 23; Report, par. 7; Pet.’s Appendix F, p. F'4).

On the same day (October 20), Petitioner reappeared be-

fore Judge Friedman. Judge Friedman’s docket entry in

Case No. 88-P-97 states in relation to Petitioner’s appear-

ance, “On October 20, 1989, Alfred H. Greening (Peti-

tioner) appeared to obtain an approval of final accounting

in this estate. The Court informed him he was not allowed

to practice before it until such time as he got his matter

with the Attorney Registration and Disciplinary Commis-

sion straightened out.”’? (Bone trans., 8/6/90, p. 17; Stip.,

par. 24; Report, par. 7; Pet.’s Appendix F, p. F4).

7 At the evidentiary hearing before Judge Bone on August 6,

1990, Judge Friedman testified that when Petitioner first appeared

before him on October 20, 1989, Petitioner related that “he had

paid and registered” with the Commission. Judge Friedman then

told Petitioner that he had paid the attorney registration fee “to

the wrong people,” that he had paid the Supreme Court of Illinois,

when he should have paid it to the Commission. (Bone trans.,

8/6/90, pp. 19-20; Report, par. 7).

=

Petitioner then reported to Ms. Halbert that he was

unable to close the estate. On Petitioner’s recommenda-

tion and with Ms. Halbert’s approval, Petitioner retained

the services of another attorney who entered her appear-

ance in the estate, obtained the Court’s approval of the

final report and received a discharge of the administrator.

(Bone trans., 9/7/90, pp. 24-26; Report, par. 7; Pet.’s Ap-

pendix F, pp. F4-F5).

Indirect Criminal Contempt Proceedings

in the Supreme Court of Illinois

On February 7, 1990 the Administrator of the Commis-

sion filed his Supplemental Report in In re Greening,

M.R. 5916 in the Supreme Court of Illinois. The report

alleged that Petitioner had engaged in the unauthorized

practice of law after his name was removed from the

Master Roll of Attorneys on March 1, 1989. The Admin-

istrator requested that Petitioner be ruled to show cause

why he should not be neld in indirect criminal contempt

pursuant to Illinois Supreme Court Rule 756(d). (107 Ill.2d

R.756(d) (1985)). (Stip., par. 31). ;

On March 26, 1990 the Supreme Court of Illinois en-

tered an order ruling Petitioner to show cause, in writing,

on or before April 30, 1990, why he should not be held

in indirect criminal contempt of the Court for engaging

in the unauthorized practice of law. (Stip., par. 33). On

April 11, 1990 a copy of the Court’s rule to show cause

was personally served on Petitioner. (Stip., par. 34).

On April 30, 1990 Respondent filed his answer to the

Supreme Court of Illinois’ rule to show cause. Petitioner

again raised objections of denial of due process under the

United States Constitution and a number of state consti-

tutional and legal issues. (Stip., par. 36).

On May 30, 1990 the Supreme Court of Illinois entered

an order continuing its rule to show cause issued to Peti-

|

tioner. The Court directed Petitioner and a representative

of the Commission to appear before Judge Bone for the

purpose of an evidentiary hearing. Judge Bone was di-

rected to make findings of fact concerning the issues

formed by the Commission’s supplemental report and Peti-

tioner’s answers thereto. (Stip., par. 36).

The facts concerning the hearings held before Judge

Bone and the Supreme Court of Illinois are accurately

set forth in the petition for writ of certiorari. (Petition

for Writ of Certiorari (Petition), pp. 6-12). The only addi-

tion the Commission would provide is that on July 5, 1990,

prior to any evidence being taken by Judge Bone, the Ad-

ministrator filed on behalf of the Commission, a specifica-

tion of factual allegations which the Administrator intended

to prove beyond a reasonable doubt during the evidentiary

hearings. (Administrator’s Specification of Factual Allega-

tions, M.R. 5916 in the Supreme Court of Illinois, filed

on July 5, 1990).

The Administrator agreed to limit his evidence of Peti-

tioner’s conduct to the matters set forth in the specifica-

tion. (Bone trans., 6/21/90, pp. 30-31). A true and correct

copy of the specification is reprinted as Appendix B to

this brief.

Judge Bone filed his report with the Supreme Court of

Illinois after the conclusion of the hearings before him.

(Report, Pet.’s Appendix F). The Court reviewed the

report and found that the Administrator on behalf of the

Commission had proven beyond a reasonable doubt that

Petitioner had engaged in the unauthorized practice of law

after his name had been removed from the Master Roll

of Attorneys on March 1, 1989. The Court then enforced

its rule to show cause issued on March 26, 1989 as set

forth above, and held Petitioner in indirect criminal con-

tempt of the Court for engaging in the unauthorized prac-

=

tice of law. (Order, M.R. 5916 in the Supreme Court of

Illinois, filed on May 29, 1991; Pet.’s Appendix A, p. Al).

In its order sentencing Petitioner, the Supreme Court

of Illinois reaffirmed its finding that Petitioner had en-

gaged in the unauthorized practice of law. Further, the

Court found that Petitioner had performed the following

acts in Case No. 88-P-97 after March 1, 1989, which consti-

tuted the practice of law:

1. Advised the estate administrator of the proper

procedures for closing an estate under the Probate

Act of 1975 (Ill. Rev. Stat. 1989, Ch. 110%, par. 1-1

et seq.);

2. Prepared a final accounting presumably as re-

quired by Section 24-1 of the Probate Act of 1975

(Ill. Rev. Stat. 1989, Ch. 110%, par. 24-1); and

3. After obtaining the signature of the estate admin-

istrator on the final accounting, presented it to Judge

Friedman.

(Order, M.R. 5916 in the Supreme Court of Illinois, filed

on June 25, 1991; Pet.’s Appendix B, pp. B1-B2).

SUMMARY OF ARGUMENT

Petitioner’s argument that he was denied due process

of law when his name was removed from the Master Roll

of Attorneys is without merit. The decisions of this Court

do not require that a hearing be held when a license

granted by the State as a right is suspended or rescinded

because of the failure of the licensee to comply with an

administrative requirement imposed as a prerequisite to

retaining the license. A hearing is only required when a

license is suspended or revoked for misconduct.

The Supreme Court of Illinois can lawfully collect an

annual registration fee from attorneys admitted to the

practice of law in the State. Petitioner did not fulfill his

= =

obligation to pay the fee. The fee was an administrative

requirement imposed as a prerequisite to retaining his li-

cense. Therefore, a hearing was not required when Peti-

tioner’s name was removed from the Master Roll.

Petitioner’s arguments that he was denied due process

of law during his prosecution for indirect criminal con-

tempt of court are also without merit. Due process re-

quires that a defendant in an indirect criminal contempt

proceeding be provided with notice of the charge against

him, an opportunity to defend, and a fair hearing. Peti-

tioner was afforded each of the elements. Therefore, his

right to due process was not violated.

ARGUMENT

I.

THE SUPREME COURT OF ILLINOIS CAN SUMMARI-

LY REMOVE THE NAME OF AN INDIVIDUAL FROM

THE MASTER ROLL OF ATTORNEYS AUTHORIZED TO

PRACTICE LAW IN THE STATE FOR FAILING TO COM-

PLY WITH AN ADMINISTRATIVE REQUIREMENT, THE

PAYMENT OF AN ANNUAL REGISTRATION FEE, ES-

TABLISHED IN RELATION TO THE COURT’S IN-

HERENT AUTHORITY TO REGULATE THE PRACTICE

OF LAW.

Petitioner’s argument that he was denied due process

of law when his name was removed from the Master Roll

of Attorneys is without merit. The decisions of this Court

do not require that a hearing be held when a license

granted by the State as a right is suspended or rescinded

because of the failure of the licensee to comply with an

administrative requirement imposed as a prerequisite to

retaining the license. A hearing is only required when a

license is suspended or revoked for misconduct.

The Supreme Court of Illinois can lawfully collect an

annual registration fee from attorneys admitted to the

practice of law in the State. Petitioner did not fulfill his

obligation to pay the fee. The fee was an administrative

requirement imposed as a prerequisite to retaining his

license. Therefore, a hearing was not required when Peti-

tioner’s name was removed from the Master Roll.

A. The Supreme Court of Illinois can lawfully collect an

annual attorney registration fee from an individual ad-

mitted to practice law in the State based upon the

Court’s inherent authority to regulate the practice of law.

The Supreme Court of Illinois has the inherent authority

to regulate the practice of law within the boundaries of

the State. Inherent in this authority, though it is not

directly conferred in the State’s Constitution, is the power

to prescribe the qualifications which will entitle an indi-

vidual to be admitted and to remain a member of the bar.

(In re Day, 181 Ill. 72, 54 N.E. 646 (1899); People v. Peo-

ple’s Stock Yards State Bank, 344 Ill. 462, 176 N.E. 901

(1931)). In regard to this authority, this Court has held,

We recognize that the states have a compelling inter-

est in the practice of professions within their bounda-

ries, and as part of their power to protect the public

. . . they have broad power to establish standards

for licensing practitioners and regulating the practice

of professions * * * The interest of the states in regu-

lating lawyers is especially great since lawyers are

essential to the primary governmental function of ad-

ministering justice, and have historically been “‘offi-

cers of the courts.’’ (Citations omitted.)

(Goldfarb v. Virginia State Bar, 421 U.S. 773, 793 (1975)).

In Lathrop v. Donahue, 367 U.S. 820 (1960), this Court

held that a State could constitutionally require that alli

attorneys admitted to practice be members of the State’s

private integrated bar association and be required to pay

its annual dues. The Court found that each state has a

legitimate interest in raising the quality of the services

of the attorneys who practice within their boundaries.

(Lathrop, at 843).

In Lathrop, one of the purposes of the bar association

at issue was to enforce disciplinary obligations and prose-

cute the misconduct of attorneys. The Court held that the

costs of improving the profession in this fashion should

be shared or borne by the subjects and beneficiaries of

the regulatory program, the attorneys, even though the

association also engaged in other legislative and political

activity.’ (Lathrop, at 843).

Illinois does not have an integrated bar association. The

registration of attorneys and the prosecution of attorney

misconduct has been delegated to the Commission by the

Supreme Court of Illincis through its rules. (107 IIl.2d R.

750 et seq., (1985)). The fund created by the Commission’s

collection of the annual attorney registration fee is en-

tirely earmarked for the registration and discipline of at-

torneys. Clearly, pursuant to this Court’s decision in

Lathrop, the Supreme Court of Illinois has the authority

to require that each attorney pay an annual registration

fee and that fee be paid to the Commission.

B. A hearing must be available to a licensee if a license

granted by the State as a right is revoked or suspended

for cause.

The Court has held that the practice of law is a funda-

mental right. (Supreme Court of New Hampshire v. Piper,

470 U.S. 272 (1985)). A State cannot exclude a person from

the practice of law or from any other occupation in a man-

ner or for reasons that contravene the Due Process or

8 The Court recently reaffirmed in a unanimous opinion the rule

in Lathrop that a state can require the members of its bar to pay

an annual registration fee or bar dues for the purpose of support-

ing an attorney registration and disciplinary system. (Keller v.

State Bar of California, 110 S. Ct. 2281 (1999)).

wits

Equal Protection Clauses of the Fourteenth Amendment.

(Schware v. Board of Bar Examiners, 353 U.S. 232 (1956)).

Petitioner relies on these principles and this Court’s deci-

sions in Bell v. Burson, 402 U.S. 535 (1971) and Berry

v. Barchi, 443 U.S. 55 (1979) to support his argument that

he was denied his right to due process when his name

was removed from the Master Roll of Attorneys without

an opportunity for a hearing. Petitioner is correct in main-

taining that a hearing is required when a license held as

a right is suspended or revoked for misconduct, as was

the case in both Bell and Berry.

In Bell, the Georgia Motor Vehicle Safety Act was re-

viewed. The Act provided that the motor vehicle registra-

tion and driver’s license of an uninsured motorist involved

in an accident was to be suspended, unless the motorist

posted security to cover the amount of damages claimed

by the aggrieved parties in reports of the accident. An

administrative hearing was provided prior to the suspen-

sion, but by statute, the hearing excluded all considera-

tion of the motorist’s fault or liability for the accident.

(Bell, at 537-538).

The Court held that a hearing on liability would be re-

quired, and held that ‘‘procedural due process will be satis-

fied by an inquiry limited to the determination whether

there is a reasonable possibility of judgments in the amounts

claimed (the amount of the security posted) against the

licensee.”’ (Bell, at 540).

In Berry, the Court reviewed the suspension by the

New York Racing and Wagering Board of a licensed horse

trainer who had violated standards of conduct promul-

gated by the State. The standards provided that a trainer

was forbidden to permit a horse in his custody to start

a race if he knew or should have known or had cause to

believe that a horse trained by him had been drugged.

_A horse trained by the licensee was found to have been

om

drugged. The trainer’s license was then summarily sus-

pended pursuant to the standards of conduct and a stat-

utory presumption that the person responsible for the

horse (the trainer) had administered the drugs. The li-

censee was afforded a post-suspension hearing on culpabil-

ity, but no requirements for timeliness were present and

the license was to remain suspended, pending the disposi-

tion of the hearing. (Berry, at 57-61).

The Court rejected the licensee’s argument that he was

denied due process guarantees when he was summarily

suspended. The Court found, though, that the licensee was

entitled to a prompt post-suspension hearing and resolu-

tion on the issue of the trainer’s culpability. (Berry, at

63-64). (See also, Parratt v. Taylor, 451 U.S. 527 (1981)).

The decisions above both concern a licensee whose

license had been revoked for cause or misconduct. It is

clear pursuant to these decisions that a pre-suspension

hearing or a prompt post-suspension hearing would be re-

quired if an attorney’s license was suspended or he was

disbarred for attorney misconduct.® Petitioner’s removal

from the Master Roll of Attorneys was not related to at-

torney misconduct. Therefore, no hearing was required

as set forth below.

® An attorney charged with misconduct in Illinois is afforded a

full hearing and review procedure pursuant to the requirements

of Illinois Supreme Court Rule 753, prior to being suspended or

disbarred for engaging in attorney misconduct. (107 Ill.2d R. 753

(1985)). An attorney may be suspended on an interim basis while

charges of serious misconduct are pending against him, but the

attorney is still afforded an opportunity to respond to the charges

pursuant to Illinois Supreme Court Rule 774(a), prior to an order

of suspension being entered. (107 IIl.2d R. 774(a) (1985)).

~_ =

C. A hearing does not have to be available to a licensee

if a license granted by the State as a right is revoked

or suspended due to the failure of the licensee to comply

with an administrative requirement imposed as a pre-

requisite to obtaining or retaining the license.

It is clear that an attorney has a property interest in

his law license, “a legitimate claim of entitlement.” (Board

of Regents v. Roth, 408 U.S. 564, 577 (1972)). An attorney

may retain that property interest if he complies with all

administrative requirements reasonably established by the

State. (See, Reed v. Village of Shorewood, 704 F.2d 943,

948-949 (7th Cir. 1983)).

In Reed, an Illinois liquor license holder argued that his

right to due process was denied when the Village of

Shorewood informed him that his license would not be

renewed, not for cause, but simply because the village

voted to issue three licenses instead of four. The Court

held that if undemanding criteria for renewal are set, a

licensee is entitled to the renewal of his license if he

meets those criteria. (Reed, at 948-949).

An attorney may abandon his property interest in his

license if he does not comply with reasonable criteria. A

hearing is not required for license suspension or non-

renewal, if these criteria are not met. (See, Vaden v.

Village of Maywood, 809 F.2d 361, 366 (7th Cir.), cert.

denied, 482 U.S. 908 (1987)).

In Vaden, the operator of a mobile food vending busi-

ness was not issued a vending license, a recognizable prop-

erty right, by the Village of Maywood, Illinois, because

she had not obtained a certificate of registration from a

State taxing authority. The issuance of a certificate was

an administrative requirement for obtaining the village

license. The Court held the woman’s rights were not un-

constitutionally denied and a hearing was not required

concerning the village’s failure to issue a license because

= =

the certificate was a prerequisite required by the State

before the woman could even lawfully open her business.

Therefore, her failure to obtain the certificate operated

as an abandonment of her property interest in the license.

(Vaden, at 366).

A hearing is also not required if a licensee is afforded

meaningful post-deprivation remedies. If the damage al-

leged by the licensee concerning the loss of his license

may be adequately addressed in some lawful forum which

will provide the requisite due process protection, a hear-

ing is not required. (See, Easter House v. Felder, 879 F.2d

1458, 1475-1476 (7th Cir. 1989) (cert. gr. and vac., 110 S.

Ct. 1314) (affd on remand, 910 F.2d 1387 (1990)) (cert.

denied, 111 S. Ct. 783 (1991)).

In Easter House, an adoption agency alleged it was

denied due process of law based upon the State of Illinois’

refusal to grant the agency an extension of its license.

The Court found that because the agency could seek ade-

quate state court remedies concerning the damages it al-

leged, no hearing was required prior to its license being

revoked. (Easter House, supra). (See also, Thornton v.

Barnes, 890 F.2d 1380 (7th Cir. 1989)).

The preceding decisions demonstrate that a hearing does

not have to be available to a licensee if a license granted

by the State as a right is revoked or suspended due to

the failure of the licensee to comply with an administra-

tive requirement imposed as prerequisite to obtaining or

retaining the license. This rule is especially persuasive

when the licensee is provided an adequate and meaningful

opportunity to comply with the administrative requirement

and have his license reinstated as a matter of course.

D. Petitioner failed to comply with an administrative re-

quest imposed as a prerequisite to retaining his license

to practice law, the payment of the 1989 attorney regis-

tration fee, therefore, no hearing had to be available

when his name was removed from the Master Roll of

Attorneys.

The facts concerning Petitioner’s removal from the

Master Roll of Attorneys are clear. Petitioner intentionally

failed to pay the 1989 attorney registration fee and was

removed from the Master Roll because of his failure to

pay. As argued above, there is no question that the Su-

preme Court of Illinois could require Petitioner to pay

an annual fee to support the State’s attorney registra-

tion and disciplinary system. It is clear that this fee and

the required registration are administrative prerequisites

which Petitioner had to satisfy in order to have his license

reinstated.

Illinois Supreme Court Rule 756(e) provides that:

An attorney whose name has been removed from the

master roll solely for failure to register and pay the

registration fee may be reinstated as a matter of

course upon registering and paying the registration

fee prescribed for the period of his suspension, plus

the sum of $10 per month for each month that such

registration fee is delinquent.

(107 Ill.2d R. 756(e) (1985) (as amended, effective December

1, 1988)). The rule on its face is probative of the fact that

the payment of the fee is a mere administrative require-

ment. This rule provided Petitioner with a painless remedy

to reinstate his license. The facts indicate that Petitioner

simply abandoned his interest in his license by not pay-

ing the fee.!°

10 Petitioner filed an action in Federal District Court seeking to

enjoin his contempt prosecution and raising many of the same

arguments he is pursuing in his petition for certiorari. Judge Mills,

(Footnote continued on following page)

Respondent was not entitled to a hearing before his re-

moval from the Master Roll of Attorneys or a post-removal

hearing concerning his failure to pay.!! As argued above,

no hearing is required when a license is suspended merely

for failure to comply with an administrative requirement.

(See, Section I(C), supra).

Respondent was also not entitled to a hearing concern-

ing his arguments that the Supreme Court of Illinois can-

not, pursuant to the Constitution of the State of Illinois

and other state laws, collect a mandatory registration fee

from attorneys to support an attorney registration and

disciplinary system. (See, Petition, Sec. I(b), pp. 16-18).

Several state court remedies are available to Petitioner

to contest the validity of his claims.!? Petitioner will be

free to seek the due process protection he alleges he

10 continued

speaking in relation to Petitioner’s opportunity to reinstate his

license, found: “The fact that this avenue of relief is open to (Peti-

tioner) takes this case out of the category of those arbitrary depri-

vations lacking due process of law—the redemption provision of

S. Ct. R. 756fe) pnt have been Greening’s salvation, but for his

own obstinence.” (Greening v. Moran, et al., 739 F. Supp. 1244,

1252-1253 (C.D. Ill. 1990)).

11 Petitioner contends that he was foreclosed from addressing the

issue of payment before the Supreme Court of Illinois. Petitioner

argues that he did make payment when he tendered his check to

the Court. Petitioner alleges that the Court ignored his payment

and invoked criminal contempt proceedings-to punish him. (See,

Petition, p. 18). Petitioner’s arguments are without merit. Peti-

tioner has admitted that the Court returned his check to him with

the express direction to make his payment to the Commission as

required by Illinois Supreme Court Rule 756(a). (Stip., par. 20) In

response to this directive, Petitioner unilaterally deposited his

check into an escrow account. Petitioner did not pay the Commis-

sion as ordered by the Court. (Stip., par. 21). Petitioner cannot

in the face of this evidence argue that he made proper payment.

12 While not a complete list of the state remedies available to

Petitioner to address his claims, Petitioner could invoke the author-

ity of the Supreme Court of Illinois and file an original action in

mandamus or prohibition pursuant to Illinois Supreme Court Rule

381. (107 Ill.2d R. 381 (1985)).

29

has not been afforded. Petitioner will be able to litigate

his claims no matter how dubious they are based upon

the current status of the law.

Petitioner’s claims are dubious because the decisions of

this Court in Lathrop and Keller are controlling. There

is no question that the Supreme Court of Illinois in exer-

cising its inherent authority to regulate the practice of

law can require and collect an annual attorney registration

fee to support its attorney registration and disciplinary

system. (See, Section I(A), supra). Therefore, Petitioner’s

claims will be unsuccessful no matter which forum he

chooses. !%

Petitioner’s right to procedural due process pursuant to

the Fourteenth Amendment has not been violated because

a hearing was not afforded him when his name was re-

moved from the Master Roll of Attorneys. The fee Peti-

tioner was required to pay was an administrative require-

ment. Therefore, no hearing was required.

Il.

PETITIONER WAS AFFORDED DUE PROCESS GUAR-

ANTEES DURING HIS PROSECUTION FOR INDIRECT

CRIMINAL CONTEMPT OF THE SUPREME COURT OF

ILLINOIS FOR ENGAGING IN THE UNAUTHORIZED

PRACTICE OF LAW AFTER HIS NAME WAS REMOVED

FROM THE MASTER ROLL OF ATTORNEYS AUTHOR-

IZED TO PRACTICE LAW IN THE STATE.

Petitioner’s arguments that he was denied due process

of law during his prosecution for indirect criminal con-

13 As noted in footnote 10, supra, Petitioner did file an action

pursuant to 42 U.S.C. Sec. 1983 in the Federal District Court

praying for damages and injunctive relief concerning his contempt

prosecution. Petitioner raised many of the same State and Federal

Constitutional arguments presented here. Petitioner’s claims were

all denied and his case was dismissed. (Greening v. Moran, et al.,

supra). Petitioner has appealed the District Court’s decision to the

Seventh Circuit Court of Appeals, No. 90-3784.

=x =

tempt of court are without merit. Due process requires

that a defendant in an indirect criminal contempt pro-

ceeding be provided with notice of the charge against him,

an opportunity to defend, and a fair hearing. Petitioner

was afforded each of the elements. Therefore, his right

to due process was not violated.14

A. Definition of criminal contempt.

The Supreme Court of Illinois has defined criminal con-

tempt of court as “conduct which is calculated to em-

barrass, hinder or obstruct . court in its administration

of justice or derogate from its authority or dignity, there-

by bringing the administration of law into disrepute.”

(People v. Javaras, 51 IIll.2d 296, 299, 281 N.E.2d 670, 671

(1972)).

Direct criminal contempt is contemptuous conduct oc-

curring “‘in the very presence of the judge, making all

of the elements of the offense matters within his own per-

sonal knowledge.” (People v. Harrison, 403 Ill. 320, 323-

324, 86 N.E.2d 208, 210 (1949)). Direct contempt is re-

stricted to acts and facts seen and known by the court.

No matter based upon opinion, conclusion, presumption

or inference should be considered. (People v. Loughran,

2 Ill.2d 258, 263, 118 N.E.2d 310, 313 (1954)).

Indirect criminal contempt is contemptuous conduct

which in whole or in an essential part occurred out of the

presence of the court. Therefore, it is dependent for its

proof upon evidence of some kind. (People v. Sherwin, 353

Ill. 525, 528, 187 N.E. 441, 442 (1938)). “Where the judge

does not have full personal knowledge of every element

of the contempt and its demonstration depends on the

'4 It is important to note at the outset that a defendant in a crim- -

inal contempt proceeding is not afforded all of the safeguards sur-

rounding one accused of a crime. (People v. Barasch, 21 Ill.2d 407,

410, 173 N.E.2d 417, 419 (1961)).

—24—

proof of facts, of which the court would have no judicial

notice, the conternpt is held to be indirect.” (People v.

L.A.S., 111 Ill.2d 539, 543, 490 N.E.2d 1271, 1273 (1986)

(citing, People v. Harrison, supra).

Petitioner was prosecuted on a charge of indirect crim-

inal contempt. The procedural due process to be provided

in such a proceeding is set forth below.

B. Process which is due in indirect criminal contempt pro-

ceeding.

Direct criminal contempt may be found and punished

summarily because all of the elements are before the court

and come within its immediate knowledge. Therefore, the

usual safeguards of procedural due process are not re-

quired. (People v. Javaras, 51 IIl.2d at 299, 281 N.E.2d

at 672).

Indirect criminal contempt requires proof of matters out-

side the immediate knowledge of the court. Therefore, the

contemnor is entitled to procedural due process safeguards.

These safeguards include notice, opportunity to answer,

and a hearing.!5 (People v. L.A.S., 111 Ill.2d at 544, 490

N.E.2d at 1273).

15 The required procedural due process for criminal contempt pro-

_ceedings in the Federal District Coumte has been codified. In direct

criminal contempt proceedings, Fed. R. Crim. P. 42(a) provides

that a contemnor may be punished summarily if the judge saw

or heard the conduct and it was committed in the actual presence

of the court. In indirect criminal proceedings Fed. R. Crim. P. 42(b)

provides:

A criminal contempt except as provided in subdivision (a) of

this rule shal! be prosecuted on notice. The notice shall state

the time and place of hearing, allowing a reasonable time for

the preparation of the defense, and shall state the essential

facts constituting criminal contempt charged and describe it

as such. The notice shall be given orally by the judge in open

court in the presence of the defendant or, on application of

the U.S. attorney appointed by the court for that purpose, by

(Footnote continued on following page)

C. Petitioner was afforded due process guarantees during

his prosecution for indirect criminal contempt of the

Supreme Court of Illinois.

Petitioner has argued that his right to due process of

the law pursuant to the Fourteenth Amendment was vio-

lated because he was not given an adequate opportunity

to defend himself. Petitioner argues that procedural due

process was denied because no hearing was provided and

Judge Bone did not rule on his constitutional arguments,

the Supreme Court of Illinois did not allow him to brief

his constitutional arguments and he was afforded no right

to an appeal. (See, Petition, pp. 19-21, 26-27).

Petitioner also argues that he was denied due process

because he did not receive a fair hearing. Petitioner argues

that his hearing was unfair because Judge Bone did not

rule on the issues of intent and whether the evidence pre-

sented by the Administrator was sufficient, Petitioner was

denied the right to confront his accusers and Petitioner

was convicted by a biased decision maker. (See, Petition,

pp. 21-25, 27-29).

Petitioner does not argue that he was denied adequate

notice of the charges against him. Petitioner’s other argu-

ments are without merit as discussed below. Petitioner was

afforded all required procedural due process guarantees.

15 continued

an order to show cause or an order of arrest. The defendant

is entitled to a trial by jury in any case in which an act of

Congress so provides. The defendant is entitled to admission

to bail as provided in these rules. If the contempt charged

involves disrespect to or criticism of a judge, that judge is

disqualified from presiding at the trial or hearing except with

the defendant’s consent. Upon a verdict or finding of guilt the

court shall enter an order fixing the punishment.

(Amended March 9, 1987, eff. August 1, 1987). The procedure

followed in Petitioner’s prosecution mirrored the requirements set

forth in this rule.

= =

1. Notice of charge.

Petitioner does not dispute that he was given adequate

notice of the charges pending against him. The record

reveals that from the initiation of these proceedings, Peti-

tioner has been given adequate notice.

The Commission’s initial petition seeking contempt and

the Supreme Court of Illinois’ rule to show cause both

notified Petitioner that he was being charged with indirect

criminal contempt of court. (Stip., pars. 31, 33). Prior to

hearing, the Commission provided Petitioner with a de-

tailed specification of the factual allegations pending

against him. (Appendix B). The Administrator agreed on

behalf of the Commission to limit his evidence to that

outlined in the specification. (Bone trans., 6/21/90, pp.

30-31). Finally, the Administrator notified Petitioner that

the Commission was not going to request a sanction of

incarceration for more than six months and a fine not ex-

ceeding $500 if Petitioner was convicted.!® (Bone trans.,

6/21/90, p. 21).

2. Opportunity to defend.

Petitioner argues that he was denied due process be-

cause Judge Bone did not rule on his constitutional argu-

ments. In addition, Petitioner argues that the Supreme

Court of Illinois did not provide him an opportunity to

brief these issues. Petitioner’s arguments are without

merit. Petitioner was afforded an opportunity and did pre-

sent his State and Federal Constitutional claims to the

Supreme Court of Illinois. The Court expressly ruled on

these claims. No hearing was required.

16 The significance of this notification was that Petitioner was not

entitled to a trial by jury if the Commission sought a sanction

limited to six months incarceration and a $500 fine. (County of

McLean v. Kickapoo Creek, Inc., 51 Ill.2d 353, 8388 N.E.2d 720

(1972)). (See also, Bloom v. Illinois, 391 U.S. 194 (1967)).

x 2

The Supreme Court of Illinois in its rule to show cause

directed to Petitioner, ordered him to set forth, in writ-

ing, why he should not be held in indirect criminal con-

tempt of the Court. (Stip., par. 16). In response, Peti-

tioner filed both an original and amended answer wherein

he set forth all of his State and Federal Constitutional

claims, as well as state law arguments. (Stip., par. 18).

The Court in its order sentencing Petitioner considered

the arguments made and found them to be without merit.

(Pet.’s Appendix B, p. B2). The Court did not abuse its

discretion in not affording Petitioner an opportunity to

orally argue or further brief these issues. Petitioner’s posi-

tion was adequately set forth in his answers. Therefore,

no oral argument or further briefing was required.!7 (See,

People v. Colorado City Lot Owners and Taxpayers Asso-

ciation, 119 Ill. App.3d 691, 700, 456 N.E.2d 948, 950 (III.

App. 1 Dist. 1983) (reversed on other grounds, 106 IIl.2d

1, 476 N.E.2d 409 (1985)).

Petitioner’s argument that he was denied due process

because he was not afforded an appeal is also without

merit. The Supreme Court of Illinois has the inherent au-

thority to prosecute as contempt the unauthorized prac-

tice of law. This authority is judicial and is not suscepti-

ble to modification by the legislature. (See, People’s Stock

Yards State Bank, 344 Ill. at 470-473, 176 N.E. at 905-

906). Therefore, the right to an appeal is not required.'®

‘7 The Supreme Court of Illinois also did not abuse its authority

by remanding the matter to Judge Bone for an evidentiary hear-

ing limited to issues of fact. In the prosecution of contempt for

the unauthorized practice of law, the Court has historically re-

ferred these matters to a trial court or other lawful forum for find-

ings of fact. (See, People v. People’s Stock Yards State Bank, 344

Ill. 462, 176 N.E. 901 (1981), People v. Schafer, 404 Ill. 45, 87 N.E.

773 (1949), and People v. Barasch, 21 Ill.2d 407, 173 N.E.2d 417

(1961)).

‘8 Regardless, Petitioner does have a right to appeal the Illinois

Supreme Court’s decision to this Court pursuant to 28 U.S.C. Sec-

(Footnote continued on following page)

eEeEeaeEauQQVQGQYGKSQQa ae

= =

3. Fair hearing.

Petitioner alleges that his right to due process was vio-

lated because he was denied a fair hearing on the issue

of intent, he was not allowed to challenge the sufficiency

of the evidence presented against him at hearing by way

of a motion for directed finding, he was denied his right

to confront his accusers and he was convicted by a biased

tribunal. Each of these arguments is without merit as ar-

gued below.

Petitioner’s position is correct in that intent is an ele-

ment of indirect criminal contempt which must be proven.!®

(People v. Roush, 101 Ill.2d 355, 364, 462 N.E.2d 468, 472

(1984)). Intent does not have to be proven by direct evi-

dence. ‘The intent may be inferred from proof of the sur-

rounding circumstances and from the character of the

defendant.” (People ex rel. Kunce v. Hogan, 67 IIl.2d 55,

61, 364 N.E.2d 50, 52 (1977)).

The circumstances in this situation clearly show that

Petitioner intentionally practiced law after he was notified

that his name was removed from the Master Roll of At-

torneys. Petitioner has nct challenged the fact that he was

practicing law when he attempted to close the estate.?°

18 continued

tion 1257(a). This Court may review the facts and law concerning

Petitioner’s conviction through its process of review on writ of

certiorari. (See, U.S.S.C.R. 10 et seq.).

19 The standard of proof in a prosecution for indirect criminal con-

tempt is beyond a reasonable doubt. People v. Ziporyn, 121 Ill.

App.3d 1051, 1055, 460 N.E.2d 385, 388 (Ill. App. 1 Dist. (1984))

(reversed on other grounds, 106 IIl.2d 419, 478 N.E.2d 364 (1985)).

Judge Bone and the Supreme Court of Illinois used a reasonable

doubt standard during the course of these proceedings. (Pet.’s

Appendix A, p. Al; Pet.’s Appendix F, p. F3).

20 Concerning the definition of the practice of law:

The courts are in accord on the proposition that where one

appears in a court representing one of the parties to the litiga-

(Footnote continued on following page)

29

Therefore, Petitioner was in willful contempt of the au-

thority of the Supreme Court of Illinois.

Petitioner’s argument that he was denied due process

because Judge Bone did not allow him to challenge the

sufficiency of the evidence is without merit. The Supreme

Court of Illinois was well within its authority limiting

Judge Bone to making findings of fact. (See, footnote 17,

supra).

Petitioner’s argument that he was denied due process

because he was not allowed to confront his true accusers

is again without merit. Petitioner was granted the oppor-

tunity through counsel to cross-examine every witness

presented by the Commission. (See, Bone trans., 8/6/90

and 9/21/90). Petitioner’s argument that the Commission

was his true accuser is illusory.?!

Finally, Petitioner’s argument that he was denied due

process because he was convicted by a biased decision

maker is without merit. The Supreme Court of Illinois

did not abuse its discretion in hearing this case. Petitioner

was not entitled to a change of venue.

The general rule is that a judge or court is not disquali-

fied from conducting contempt proceedings merely because

20 continued

tion, counsels and advises with such a party in reference to

his rights in the suit, selects the kind of pleading and drafts

it, and assumes general control of the action in the court, he

is engaged in the practice of law.

(People v. Tinkoff, 399 Ill. 282, 288, 77 N.E.2d 693, 696 (1948)).

There is no question that Petitioner’s efforts on behalf of Ms. Hal-

bert constituted the practice of law.

21 The Supreme Court of Illinois can properly appoint an agent

as its prosecutor in a proceeding on a charge of contempt for the

unauthorized practice of law. (People v. Schafer, 404 Ill. 45, 46,

87 N.E.2d 773, 774 (1949)). Petitioner cites no precedent which

holds that he should be able to call his prosecutor as a witness

during his trial for contempt. (See, Petition, pp. 24-25). Not one

scintilla of evidence has been produced which indicates that any

agent of the Commission would have knowledge of any fact in dis-

pute in this proceeding.

—30—

the contempt was committed against the judge or a court

of which he was a member. (See, Annot., 64 A.L.R.2d 600

(1959)). The standard to be applied is to look at the nature

of the conduct and determine whether it would so inflame

a judge that he could not remain impartial. If the con-

duct does not rise to an inflammatory level, there is no

absolute prohibition against that judge or court from hear-

ing the case. (Mayberry v. Pennsylvania, 400 U.S. 455

(1971), People v. Jashunsky, 51 Ill.2d 220, 282 N.E.2d 1

(1972), and In re Albert, 383 Mich. 722, 179 N.W.2d 20

(1970)). In this case, there is no evidence which would in-

dicate that the Supreme Court of Illinois was so inflamed

as to prohibit it from hearing this case. In fact, the sanc-

tion imposed, a $200 fine, seems to indicate the contrary.

Petitioner’s final argument that the Supreme Court of

Illinois was merely protecting its own interests and act-

ing as a judge in its own cause is also without merit. No

evidence in the record suggests that the Court was doing

anything but upholding its authority to regulate the prac-

tice of law in the State of Illinois. (See, Cronson v. Clark,

et al., 810 F.2d 662, 664 (7th Cir.) (cert. denied, 484 U.S.

871 (1987)).

CONCLUSION

For the foregoing reasons, respondent individual members

of the Attorney Registration and Disciplinary Commission

and the Commission, pray that the Court enter an order

denying Petitioner’s Petition for Writ of Certiorari filed

in this cause.

Respectfully submitted,

WILLIAM F. MORAN, III

Counsel of Record

Attorney for Respondents

Individual Members of the

Attorney Registration and

Isciplinary Commission and

the Commission

APPENDICES

INDEX TO APPENDICES

A—Stipulation as to Facts and Admissibility of

Documents, entered August 6, 1990 ........

B—Administrator’s Specification of Factual Alle-

gations, M.R. 5916 in the Supreme Court of Illi-

a

App. 1

APPENDIX A

IN THE

SUPREME COURT OF ILLINOIS

In the Matter of:

Supreme Court

Alfred H. Greening, Jr., No. M.R. 5916

Administrator’s

No. 89-CH-425

Attorney-Respondent,

— ee ee

No. 1051830.

STIPULATION AS TO FACTS

AND ADMISSIBILITY OF DOCUMENTS

John C. O’Malley, Administrator of the Attorney Regis-

tration and Disciplinary Commission, by his attorney,

William F. Moran, III, and Respondent, by his attorney,

LeGrand L. Malany, stipulate to the following facts and

agree that the exhibits attached to this stipulation are

true and correct copies of the documents they purport to

be and are admissible without further foundation in this

proceeding. Both the Administrator and Respondent re-

serve the right to argue the relevancy each of these facts

and documents has to the issues presented in this proceed-

ing. The Administrator agrees to limit his evidence of

Respondent’s conduct to the transactions set forth in the

Administrator’s Specification of Factual Allegations filed

in this cause.

1. Attached as Exhibit 1 is a certified copy of the Su-

preme Court of Illinois’ entire file in Jn re Greening, M.R.

5916, Administrator’s No. 89-CH-425.

App. 2

2. Attached as Exhibit 2 is a certified copy of the Cir-

cuit Court’s entire file in the Estate of William A. Hal-

bert, Case No. 88-P-97 in the Circuit Court for the Seventh

Judicial Circuit, Sangamon County, Illinois.

3. Respondent was admitted to the practice of law in

the State of Illinois on May 16, 1949.

4. On February 19, 1988 Respondent filed in the Cir-

cuit Court for the Seventh Judicial Circuit, Sangamon

County, a Petition for Letters of Administration on behalf

of Helen B. Halbert, the spouse and sole surviving heir

of William A. Halbert. Mr. Halbert passed away on Feb-

ruary 10, 1988. The Clerk of the Circuit Court docketed

the matter as Case No. 88-P-97.

5. On February 19, 1988 the Court in Case No. 88-P-97

entered an order appointing Mrs. Halbert the indepen-

dent administrator of her late husband’s estate.

6. On or about December 22, 1988 Respondent received

a notice from the Commission informing him that he was

required to register and pay the 1989 annual registration

fee in the amount of $140 to the Commission on or before

February 1, 1989. Attached as Exhibit 3 is a copy of the

notice.

7. Respondent neither registered nor paid the 1989 an-

nual registration fee as required on or before February

1, 1989.

8. On or about February 20, 1989 Respondent received

a notice from the Commission notifying him that his regis-

tration and the 1989 annual registration fee were past-

due and that if he did not register and pay the fee on

or before March 1, 1989, his name would be removed from

the Master Roll of Attorneys. Attached as Exhibit 4 is

a copy of the notice.

App. 3

9. On March 1, 1989 Respondent’s name was removed

from the Master Roll of Attorneys for failure to register

and pay the 1989 annual registration fee.

10. Respondent was not aware that his name had been

removed from the Master Roll until on or about March

22, 1989 when he received a notice from the Commission

informing him that his name had been removed. Attached

as Exhibit 5 is a copy of the notice.

11. On or about May 2, 1989 the Commission received

a letter from Respondent stating, “‘A recent Fourth dis-

trict Appellate Court Case—No. 4-88-0355—informs me

that I do not have to be registered with your office to

practice law in the State of IIlinois.’’ Attached as Exhibit

6 is a copy of Respondent’s letter.

12. On or about May 11, 1989 the Deputy Administra-

tor of the Commission, Jerome Larkin, forwarded a let-

ter to Judge John W. Russell, former Chief Judge of the

Circuit Court for the Seventh Judicial Circuit of Illinois,

informing Judge Russell that Respondent had been re-

moved from the Master Roll of Attorneys as set forth

in paragraph 9 above. A copy of this letter was forwarded

to Judge Joseph C. Cavanaugh, who began serving as

Chief Judge of the Seventh Judicial Circuit on December

5, 1988. Attached as Exhibit 7 is a copy of Mr. Larkin’s

letter.

13. On or about June 6, 1989 Respondent received a

letter from Mr. Larkin informing him that he was not ex-

cused from registering or paying the 1989 annual regis-

tration fee and accrued penalties. Enclosed with the letter

was a 1989 registration application. Attached as Exhibit

8 is a copy of Mr. Larkin’s letter and the attachment de-

scribed.

App. 4

14. On or about June 12, 1989 the Commission received

a letter from Respondent addressed to Mr. Larkin. The

1989 registration application as set forth in paragraph 13

above had been completed and was attached to the letter.

Respondent did not forward to the Commission with his

letter the 1989 annual registration fee and accrued penal-

ties. Attached as Exhibit 9 is a copy of Respondent’s let-

ter and the attachment described.

15. On July 31, 1989 the Administrator of the Commis-

sion filed with the Supreme Court of Illinois an amended

report pursuant to Supreme Court Rule 756 concerning

Respondent’s failure to pay the 1989 annual registration

fee and accrued penalties. No specific conduct of Respon-

dent was reported to the Court other than Respondent’s

failure to pay the 1989 annual registration fee and penal-

ties with his registration. The amended report requested

that the Court issue a rule to show cause why Respon-

dent should not be suspended from the practice of law

for his wilful failure to comply with Rule 756. Attached

as Exhibit 10 is a copy of the amended report.

16. On August 7, 1989 the Supreme Court ruled Re-

spondent to show cause in writing, on or before Septem-

ber 11, 1989, why he should not be suspended from the

practice of law until further order of Court for failing to

comply with the requirements of Supreme Court Rule 756.

Attached as Exhibit 11 is a copy of the Court’s order.

17. On August 18, 1989 a copy of the Rule to Show

Cause as set forth in paragraph 16 above was personally

served on Respondent at his office at 117 West Main

Street, Williamsville, Illinois.

18. On September 11, 1989 Respondent filed with the

Supreme Court an answer to the Rule to Show Cause

as set forth in paragraph 16 above. The answer raised

App. 5

ten conflicting provisions between Supreme Court Rule

756 and the Illinois Constitution of 1970, two statutory

violations, violations of the Fifth and Fourteenth Amend-

ments to the U.S. Constitution and that Rule 756 does

not establish any procedure for reporting to the Court

nor does it authorize the Commission to charge or seek

suspension for the practice of law for the non-payment

of a fee. An amendment to the Answer was filed with

the Supreme Court on September 22, 1989 raising viola-

tions of Art. 1, Par. 2 of the Constitution of the State

of Illinois and the Fourteenth Amendment to the United

States Constitution. Respondent attached to his answer

Cashier’s Check No. 61463 drawn on the Williamsville

State Bank dated September 11, 1989 in the amount of

$230 made payable to the ‘Clerk of (the) Supreme Court

of Illinois” for payment of the past-due 1989 annual

registration fee and accrued penalties. Attached as Group

Exhibit 12 are copies of Respondent’s answer and amended

answer.

19. On September 15, 1989 the Administrator filed his

response to Respondent’s answer as set forth in para-

graph 18 above. The Administrator requested that the Su-

preme Court enter an order enforcing the Rule to Show

Cause and suspend Respondent from the practice of law

until such time as he complies with the provisions of Su-

preme Court Rule 756. Attached as Exhibit 13 is a copy

of the Administrator’s response.

20. On September 27, 1989 the Supreme Court entered

an order directing the Clerk of the Court to return to

Respondent the check for $230 as set in paragraph 18

above. The Court continued its Rule to Show Cause as

set forth in paragraph 16 above, to and including October

4, 1989 to give Respondent the opportunity to make pay-

ment of the 1989 annual registration fee and accrued

App. 6

penalties to the Commission. Attached as Exhibit 14 is

a copy of the Court’s order.

21. On October 3, 1989 Respondent placed the check

as set forth in paragraph 18 above into an escrow account

pursuant to a written agreement with the Lincoln Land

Service Corporation subject only to the written direction

of the Chief Justice of the Supreme Court of Illinois as

the Constitutional Administrator of the Court.

22. On October 4, 1989 Respondent filed with the Su-

preme Court a copy of the Escrow Agreement concerning

the arrangement as set forth in paragraph 21 above. At-

tached as Exhibit 15 is a copy of the escrow agreement.

23. On October 20, 1989 Respondent appeared at the

office of the Clerk of the Circuit Court of Sangamon Coun-

ty, Probate Division, and gave to the Deputy Clerk, Rose-

mary M. Skadden, for inclusion in the court file in Case

No. 88-P-97, a check payable to the Clerk of the Circuit

Court in the amount of $39 drawn on the account of Helen

B. Halbert, number 071100269 at the Marine Bank of Spring-

field, a final accounting, an Estate Closing Letter from

the Internal Revenue Service and a “Certificate of Dis-

charge and Determination of Tax’’ issued by the Illinois

Attorney General. Attached as Exhibit 16 is a copy of

Ms. Halbert’s check. Attached as Exhibit 17 is a copy of

the receipt issued by the Circuit Clerk’s office evidenc-

ing the receipt of the $39 check from Respondent as set

forth above. Attached as Exhibit 18 is a copy of the final

accounting. Attached as Exhibit 19 is a copy of the estate

closing letter as set forth above. Attached as Exhibit 20

is a copy of the “Certificate of Discharge and Determina-

tion of Tax” as set forth above.

24. On October 23, 1989 Judge Friedman entered a

docket entry in Case No. 88 P 97 which stated:

App. 7

On October 20, 1989 Alfred H. Greening appeared

to obtain an approval of a final accounting in this es-

tate. The court informed him he was not allowed to

practice before it until such time as he got his matter

with the Attorney Registration and Disciplinary Com-

mission straightened out.

25. On or about November 1, 1989 Respondent received

a notice from the Commission informing him that he was

required to register and pay to the Commission the 1990

annual registration fee on or before January 1, 1990 pur-

suant to the requ.rements of Supreme Court Rule 756(a).

Attached as Exhibit 21 is a copy of the notice.

26. On or about December 27, 1989 the Commission

received from Respondent his completed 1990 registration

application and Cashier’s Check No. 62356 drawn on the

Williamsville State Bank dated December 27, 1989 in the

amount of $140 made payable to the “Clerk of the Su-

preme Court of Illinois” for payment of the 1990 annual

registration fee. Respondent indicated on the registration

application that he had paid to the Supreme Court on Sep-

tember 11, 1989 the past-due 1989 annual registration fee

and accrued penalties. Attached as Exhibit 22 is a copy

of the registration application. Attached as Exhibit 23 is

a copy of Respondent’s check.

27. In prior years Respondent had remitted to the

Commission with his annual registration statement, checks

made payable to the “Supreme Court of Illinois” or the

“THlinois Supreme Court”, which checks were negotiated

by the Commission.

28. On January 30, 1990 Deborah M. Kennedy, Senior

Counsel for the Administrator, informed Respondent by

letter that the Administrator had initiated his Investiga-

tion No. 89-CI-5186 concerning the same actions of Re-

spondent with respect to the Estate of William A. Hal-

bert which are the subject of this hearing before Judge

OE eww

App. 8

J. David Bone. Respondent answered Ms. Kennedy’s ini-

tial inquiry by letters dated February 9, 1990, March 3,

1990 and March 17, 1990. Attached as Exhibit 24 is a true

and correct copy of Administrator’s Investigation No. 89-

SI1-5186.

29. On or about January 11, 1990 Respondent received

a letter from Ms. Kennedy returning to him his check for

$140 as set forth in paragraph 26 above. Ms. Kennedy

informed Respondent that his check did not comply with

the provisions of Supreme Court Rule 756(a) as the check

was not payable to the Commission. Kennedy requested

that Respondent remit a check in accordance with the

Rule. Attached as Exhibit 25 is a copy of Ms. Kennedy’s

letter.

30. On February 7, 1990 Respondent placed the check

as set forth in paragraph 26 above into an escrow account

pursuant to a written agreement with the Land of Lincoln

Service Corporation subject only to the direction of the

Chief Justice of the Supreme Court of Illinois as the Con-

stitutional Administrator for the Court.

31. On February 7, 1990 the Administrator filed with

the Supreme Court his Supplemental Report alleging that

Respondent had engaged in the unauthorized practice of

law and requesting that Respondent be ruled to show

cause why he should not be held in indirect criminal con-

tempt of Court for failing to pay the annual registration

fees for 1989 and 1990 and engaging in the unauthorized

practice of law after his name was removed from the

Master Roll of Attorneys. Attached as Exhibit 26 is a

copy of the supplemental report.

32. On February 8, 1990 Respondent filed with the Su-

preme Court a copy of the Escrow Agreement concerning

the arrangement as set forth in paragraph 30 above. At-

tached as Exhibit 27 is a copy of the escrow agreement.

App. 9

33. On March 26, 1990 the Supreme Court entered an

order ruling Respondent to show cause in writing, on or

before April 30, 1990, why he should not be held in in-

direct criminal contempt of Court for engaging in the un-

authorized practice of law. Attached as Exhibit 28 is a

copy of the Court’s order.

34. On April 11, 1990 a copy of the Supreme Court’s

Rule to Show Cause as set forth in paragraph 33 above

was personally served on Respondent at his office at 101

West Main Street, Williamsville, Illinois.

35. On April 30, 1990 Respondent filed his written an-

swer to the Court’s Rule to Show Cause as set forth in

paragraph 33 above. Respondent’s answer raised his argu-

ments concerning the Court’s lack of original jurisdiction,

that the Respondent was both registered and paid, that

Respondent had asked Judge Friedman on October 19,

1989 to review the file in this cause so that he could

answer on October 20, 1989 whether Respondent could

practice in his court on the basis of Respondent’s claim

that he was registered and paid, that Respondent’s con-

duct did not constitute the practice of law, that not con-

forming to the payment procedures of a Supreme Court

Rule is not a criminal offense, that neither the Administra-

tor or the Commission are criminal prosecutors, that the

normal disciplinary channels cannot be bypassed and re-

iterated Respondent’s constitutional objections. No hear-

ing has been held on Respondent’s objections. Attached

as Exhibit 29 is a copy of Respondent’s answer.

36. On May 30, 1990 the Supreme Court entered an

order continuing the Rule to Show Cause as set forth in

paragraph 33 above and directing Respondent and a repre-

sentative of the Commission to appear before Circuit

Judge J. David Bone for the purpose of an evidentiary

hearing in which only findings of fact should be made on

App. 10

the issues formed by the supplemental report as set forth

in paragraph 31 above and Respondent’s answer as set

forth in paragraph 35 above. Attached as Exhibit 30 is

a copy of the Court’s order.

37. Between March 1, 1989 and August 6, 1990 Respon-

dent’s name has not appeared on the Master Roll of At-

torneys registered to practice law in the State of Illinois

pursuant to Supreme Court Rule 756.

John C. O’Malley, Administrator

Attorney Registration and

Disciplinary Commission

By: WILLIAM F. MORAN/slb

Counsel for the Administrator

Alfred H. Greening, Jr., Respondent

By: LEGRAND MALANY

Counsel for Respondent

William F. Moran, III

Senior Counsel

Attorney Registration and

Disciplinary Commission

One North Old Capitol Plaza, #345

Springfield, Illinois 62701

Telephone: (217) 522-6838

LeGrand Malany

Attorney at Law

600 Rosehill

Springfield, Illinois 62704

Telephone: (217) 525-1132

App. 11

APPENDIX B

IN THE

SUPREME COURT OF ILLINOIS

In the Matter of:

Supreme Court

Alfred H. Greening, Jr., No. M.R. 5916

Administrator’s

No. 89-CH-425

Attorney-Respondent,

ee eee ee ee eee ee ee”

No. 1051830.

ADMINISTRATOR’S SPECIFICATIONS

OF FACTUAL ALLEGATIONS

John C. O’Malley, Administrator of the Attorney Regis-

tration and Disciplinary Commission, by his attorney,

William F. Moran, III, specifies the allegations he intends

to prove beyond a reasonable doubt during the eviden-

tiary hearing to be held in relation to this cause:

1. Respondent was admitted to the practice of law in

the State of Illinois on May 16, 1949.

2. On February 19, 1988 Respondent filed in the Cir-

cuit Court for the Seventh Judicial Circuit, Sangamon

County, a Petition for Letters of Administration on behalf

of Helen B. Halbert, the spouse and sole surviving heir

of William A. Halbert. Mr. Halbert passed away on Feb-

ruary 10, 1988. The Clerk of the Circuit Court docketed

the matter as Case No. 88 P 97.

3. On February 19, 1988 the Court in Case No. 88 P 97

entered an order appointing Mrs. Halbert the legal repre-

sentative of her late husband’s estate. At all times rele-

App. 12

vant to this proceeding, Respondent remained attorney

of record for Mrs. Halbert.

4. On December 22, 1988 the Commission Registrar

caused to be forwarded to Respondent a notice inform-

ing him that he was required to register and pay the 1989

annual registration fee in the amount of $140 to the Com-

mission on or before February 1, 1989.

5. Respondent neither registered nor paid the 1989 an-

nual registration fee as required on or before February

1, 1989.

6. On February 20, 1989 the Commission Registrar

caused to be forwarded to Respondent a final notice noti-

fying him that his registration and the 1989 annual regis-

tration fee were past-due and that if he did not register

and pay the fee on or before March 1, 1989, his name

would be removed from the Master Roll of Attorneys.

7. Qn March 1, 1989 Respondent’s name was removed

from the Master Roll of Attorneys for failure to register

and pay the 1989 annual registration fee.

8. On March 22, 1989 the Commission Registrar caused

to be forwarded to Respondent a notice informing him

that he had been removed from the Master Roll of Attor-

neys as set forth in paragraph 7 above.

9. On or about May 2, 1989 Respondent forwarded a

letter to the Commission stating in its entirety, ‘‘A recent

Fourth District Appellate Court Case—No. 4-88-0355—

informs me that I do not have to be registered with your

office to practice law in the State of Illinois.”

10. On or about May 11, 1989 the Deputy Administra-

tor of the Commission, Jerome Larkin, forwarded a let-

ter to Judge John W. Russell, former Chief Judge of the

Circuit Court for the Seventh Judicial Circuit of Illinois,

App. 13

informing Judge Russell that Respondent had been re-

moved from the Master Roll of Attorneys as set forth

in paragraph 7 above. A copy of this letter was forwarded

to Judge Joseph C. Cavanaugh, who began serving as

Chief Judge of the Seventh Judicial Circuit on December

5, 1988.

11. On or about June 6, 1989 Mr. Larkin forwarded a

letter to Respondent informing him that he was not ex-

cused from registering or paying the 1989 annual registra-

tion fee and accrued penalties. Enclosed with the letter

was a 1989 registration application.

12. On or about June 12, 1989 Respondent forwarded

a letter to Mr. Larkin. The 1989 registration application

as set forth in paragraph 11 above had been completed

and was attached to the letter. Respondent did not forward

the 1989 annual registration fee and accrued penalties.

13. On July 31, 1989 the Administrator of the Commis-

sion filed with the Supreme court of Illinois an amended

report pursuant to Supreme Court Rule 756 concerning

Respondent’s failure to pay the 1989 annual registration

fee and accrued panalties. The amended report requested

that the Court issue a rule to show cause why Respondent

should not be suspended from the practice of law for his

wilful failure to comply with Rule 756.

14. On August 7, 1989 the Supreme Court ruled Re-

spondent to show cause in writing, on or before Septem-

ber 11, 1989, why he should not be suspended from the

practice of law until further order of Court for failing to

comply with the requirements of Supreme Court Rule 756.

15. On or about August 9, 1989 Respondent telephoned

Chief Judge Cavanaugh concerning his status as an attor-

ney registered to practice law in Illinois. Judge Cavanaugh

App. 14

advised Respondent that he would not be allowed to prac-

tice law in the Circuit Court of the Seventh Judicial Cir-

cuit of Illinois until he had paid the 1989 annual registra-

tion fee and accrued penalties to the Commission as re-

quired by Supreme Court Rule 756.

16. On August 18, 1989 a copy of the Rule to Show

Cause as set forth in paragraph 14 above was personally

served on Respondent at his office at 117 West Main

Street, Williamsville, Illinois.

17. On September 11, 1989 Respondent filed with the

Supreme Court an answer to the Rule to Show Cause

as set forth in paragraph 14 above. Respondent attached

to his answer Cashier’s check No. 61463 drawn on the

Williamsville State Bank dated September 11, 1989 in the

amount of $230 made payable to the “Clerk of (the) Su-

preme Court of Illinois” in purported payment of the past-

due 1989 annual registration fee and accrued penalties.

18. On September 15, 1989 the Administrator filed his

response to Respondent’s answer as set forth in para-

graph 17 above. The Administrator requested that the Su-

preme Court enter an order enforcing the Rule to Show

Cause and suspend Respondent from the practice of law

until such time as he complies with the provisions of Su-

preme Court Rule 756.

19. On September 27, 1989 the Supreme Court entered

an order directing the Clerk of the Court to return to

Respondent the check for $230 as set in paragraph 17

above. The Court continued its Rule to Show Cause to

and including October 4, 1989 to give Respondent the op-

portunity to make payment of the 1989 annual registra-

tion fee and accrued penalties to the Commission.

20. On October 3, 1989 Respondent unilaterally placed

the check as set forth in paragraph 17 above into an es-

App. 15

crow account with the Lincoin Land Service Corporation

subject to a written escrow agreement which provided

that the funds would only be distributed at the direction

of the Chief Justice of the Supreme Court of Illinois.

21. On October 4, 1989 Respondent filed with the Su-

preme Court a copy of the Escrow Agreement concern-

ing the arrangement as set forth in paragraph 20 above.

22. On October 20, 1989 Respondent appeared at the

office of the Clerk of the Circuit Court of Sangamon Coun-

ty, Probate Division, and paid a court fee in the amount

of $39 to Rosemary M. Skadden, an employee of the

Clerk’s office, in relation to Case No. 88 P 97. Respon-

dent also filed in Case No. 88 P 97 a final accounting, an

Estate Closing Letter from the Internal Revenue Service

and a Certificate of Discharge and Determination of Tax

issued by the Illinois Attorney General.

23. On October 20, 1989 Respondent appeared before

Sangamon County Circuit Judge Simon L. Friedman in

relation to Case No. 88 P 97. Respondent appeared to ob-

tain approval of the final accounting as set forth in para-

graph 22 above. Judge Friedman would not approve the

accounting.

24. On October 23, 1989 Judge Friedman entered a

docket entry in Case No. 88 P 97 which stated:

On October 20, 1989 Alfred H. Greening appeared

to obtain an approval of a final accounting in this es-

tate. The court informed him he was not allowed to

practice before it until such time as he got his mat-

ter with the Attorney Registration and Disciplinary

Commission straightened out.

25. On or about October 20, 1989, after his appearance

before Judge Friedman, Respondent met with Beth A.

Wilke, an attorney licensed to practice law in Illinois.

App. 16

Respondent told Ms. Wilke that Judge Friedman had not

allowed him to appear to obtain approval of the final ac-

counting he had filed in Case No. 88 P 97. Respondent

told Wilke that the Executor of the Estate, Mrs. Halbert,

was out of town.

26. During the meeting as set forth in paragraph 25

above, Respondent gave Ms. Wilke copies of the final ac-

counting, Estate Tax Closing Letter and Certificate of

Discharge and Determination of Tax he had filed in Case

No. 88 P97. Respondent requested that Wilke review

these documents and do whatever was required to close

this estate.

27. On October 27, 1989 Ms. Wilke appeared before

Judge Friedman in Case No. 88 P 97. Judge Friedman ap-

proved the final accounting set forth above. At that time

Wilke presented an Order of Discharge which she had

drafted. Judge Friedman signed the order and Mrs. Hal-

bert. was discharged as Executor of the Estate.

28. On November 11, 1989 the Commission Registrar

caused to be forwarded to Respondent a notice inform-

ing him that he was required to register and pay to the

Commission the 1990 annual registration fee on or before

January 1, 1990 pursuant to the requirements of Supreme

Court Rule 756(a). In addition, Respondent was notified

that the 1989 annual registration fee and accrued penal-

ties were still outstanding.

29. On or about December 27, 1989 Respondent for-

warded to the Commission his completed 1990 registra-

tion application and Cashier’s Check No. 62356 drawn on

the Williamsville State Bank dated December 27, 1989 in

the amount of $140 made payable to the “Clerk of the

Supreme Court of Illinois” in purported payment of the

1990 annual registration fee. Respondent indicated on the

App. 17

registration application that he had paid to the Supreme

Court on September 11, 1989 the past-due 1989 annual

registration fee and accrued penalties.

30. On January 22, 1990 the Commission Registrar

caused to be forwarded to Respondent a final notice noti-

fying him that the 1990 annual registration fee was past-

due, as well as the 1989 annual registration fee and ac-

crued penalties. The notice informed Respondent that his

name was still removed from the Master Roll of Attorneys

as set forth in paragraph 7 above.

31. On January 31, 1990 Deborah M. Kennedy, Senior

Counsel for the Administrator, caused a letter to be sent

to Respondent returning to him his check for $140 as set

forth in paragraph 29 above. Ms. Kennedy informed Re-

spondent that his check did not comply with the provi-

sions of Supreme Court Rule 756(a) as the check was not

payable to the Commission. Kennedy requested that Re-

spondent remit a check in accordance with the Rule.

32. On February 7, 1990 Respondent unilaterally placed

the check as set forth in paragraph 29 above into an es-

crow account with the Land of Lincoln Service Corpora-

tion subject to a written escrow agreement which pro-

vided that the funds would only be distributed at the

direction of the Chief Justice of the Supreme Court of

Illinois.

33. On February 7, 1990 the Administrator filed his

Supplemental Report with the Supreme Court alleging

that Respondent had engaged in the unauthorized prac-

tice of law and requesting that Respondent be ruled to

show cause why he should not be held in indirect criminal

contempt of Court for failing to pay the annual registra-

tion fees for 1989 and 1990 and engaging in the unauthor-

App. 18

ized practice of law after his name was removed from the

Master Roll of Attorneys.

34. On February 8, 1990 Respondent filed with the Su-

preme Court a copy of the Escrow Agreement concerning

the arrangement as set forth in paragraph 32 above.

35. On March 26, 1990 the Supreme Court entered an

order ruling Respondent to show cause in writing, on or

before July 30, 1990, why he should not be held in in-

direct criminal contempt of Court for engaging in the un-

authorized practice of law.

36. On April 11, 1990 a copy of the Supreme Court’s

Rule to Show Cause as set forth in paragraph 35 above

was personally served on Respondent at his office at 101

West Main Street, Williamsville, Illinois.

37. On April 30, 1990 Respondent filed his written

answer to the Court’s Rule to Show Cause as set forth

in paragraph 35 above.

38. On May 30, 1990 the Supreme Court entered an

order continuing the Rule to Show Cause as set forth in

paragraph 35 above and directing Respondent and a repre-

sentative of the Commission to appear before Circuit

Judge J. David Bone for the purpose of an evidentiary

hearing in which only findings of fact should be made on

the issues formed by the supplemental report as set forth

in paragraph 34 above and Respondent’s answer as set

forth in paragraph 37 above.

39. As of the date of this pleading, Respondent’s name

does not appear on the Master Roll of Attorneys due to

his failure to pay the 1989 and 1990 annual registration

fees and accrued penalties to the Commission.

App. 19

John C. O’Malley, Administrator

Attorney Registration and

Disciplinary Commission

By: WILLIAM F. Moran, III

Counsel for the Administrator

William F. Moran, III

Senior Counsel]

Attorney Registration

and Disciplinary Commission

One North Old Capitol Plaza

Springfield, Illinois 62701

Telephone: (217) 522-6838

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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