# Petition for Writ of Certiorari — Brosten v. Park City > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_1192%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1975 - **Citation:** 423 U.S. 838 ## Text LIBRARY SUPREME COURT, U. & —~s « 91 ~ No. 64" LQIV In the Supreme Court of the United States: Ocroser Term, 1975 HY BROSTEN, vB. CITY OF PARK CITY, PETITION FOR WRIT OF CERTIORARI TO THE APPELLATE COURT OF ILLINOIS, SECOND JUDICIAL DISTRICT Respondent. BELLOWS & BELLOWS Chicago, Illinois Of Counsel CAROLE KAMIN BELLOWS and JASON ERNEST BELLOWS One IBM Plaza, Suite 1414 Chieago, Illinois 60611 Attorneys for Petitioner UNITED STATES LAW PRINTING CO., CHICAGO, ILLINOIS 60618 (312) 525-6581 INDEX PAGE Reference to Reports of Opinions ........2................----- 1 Statement of Jurisdiction 2.2.0.0... cesses Rrra de 1 The Questions Presented for Review ........................ 2 Constitutional Provision Involved ~........0.................. eas a SUPINE. IE IN PNUD, Sido cces aomniacicnsrsinsuieandlaieieiaicions 2 a Te TS WEN atin 10 SPUN ~* 11 answer to the rule to show cause. At which time the fol- lowing colloquy took place between counsel for the plain- tiff and the court: Mr. Snarski: I have examined the answer, your honor, and I’d like to just make this as a preliminary statement. I think rather than calling it an answer, it should be entitled to ‘‘Plan’’ because we’re past the stage of a rule to show cause now. The Court: That is right. He has been held in contempt and all I need is for the sheriff to take him to jail now. (Tr. 3) The proceedings of April 24, 1973, resulted in the court granting petitioner time to comply with the original in- junction order which required the removal of junk auto- mobles from his automobiles salvage lot. (Tr. 17) The next reported proceedings were on May 30, 1973, at which time petitioner appeared without counsel and brought along a man by the name of Coleman who gave some testimony as to the results of his attempts to remove the junk automobiles. (Tr. 19-35) On June 12, petitioner appeared with another attorney and attempted to introduce the testimony of Bernard George Murphy (Tr. 39, et seq.) who testified that he was the mayor of Park City, the plaintiff. Petitioner attempted to prove by the witness that he tried to obtain the license that was the cause of the litigation in the first place and that the City Council of Park City refused to issue the license as long as the case was in litigation. Here we see petitioner being faced with the ‘*Cateh 22” situation. He was under an injunction forcing him out of business until he could comply with the licensing laws of the City of Park City. The court was insisting upon put- ting him out of business regardless of whether he was at- ~~ 12 tempting to obtain the license required. Ultimately, under this situation, if he completely went out of business and cleaned the junk automobiles off of his lot, the City Coun- cil of the City of Park City would have entertained his application for a license, which by time would have been rendered useless by the Court’s unreasoning efforts to vindieate its authority. The proceedings here show that the trial court was not trying to do justice. It was trying to enforce a decree without giving any consideration to any of the underlying causes for the issuance of the decree and at this point the plaintiff was taking a position that was also ill suited to the purposes of the original litigation. After refusing to hear Mayor Murphy the Court then ordered the appellant to make further efforts to clean up the automobiles on his lot and continued the case again. The next time the case was in Court was June 13, 1973. On June 13, the appellant presented a plan whereby a scrap company in Waukegan would cause the removal of the scrap metal from his yard aad after having reviewed the plan the Court stated (Tr. 71): Let the record show that the agreement which was one of the methods the court had said was a means of purging himself from contempt at this time has been submitted to the court by the defendant Hy Brosten. That the commitment for the contempt is vacated and certified at this time; however, the order finding him in contempt is still in full force and effect and is con- tinued and at the end of 120 days from this date, as the court stated, it will make an examination of both counsel. * * * And the court will then be satisfied whether or not a fair and honest effort has been made to abide by the terms of the order and with the as- surances that Mr. Rubinson has made. I’m quite sure 13 there will be a very, very obvious reduction in the amount of junk or junked automobiles or whatever in the area. 120 days from today. On August 2, 1973, a petition was presented to the court by the plaintiff alleging that the appellant had refused to comply with the agreement to have the Diamond Scrap Yard, Ine. remove the junk automobiles from his premises. Petitioner filed an answer to the petition and certain pro- ceedings were had at which time it was explained to the court that there was a disagreement between the appellant and the Diamond Scrap Yards as to which automobiles were to be removed first. The reason for the disagreement was, simply put, that Diamond desired to remove some of the more accessible automobiles which were extremely valuable to the appel- lant not as scrap but as salvage. The appellant desired Diamond to start removing scrap from an area that con- tained parts of wrecked automobiles from which all of the salvagable items had been removed. During the colloquy it was stated that the appellant had indeed caused to be moved over 129,000 pounds of serap material. Apparently this did not satisfy the court even though no evidence was produced as to what would have been a reasonable amount. Finally, on October 10, 1973, the Court without having heard any evidence, but having made personal inspection of the appellant’s yard, sentenced him to 90 days in the county jail of Lake County ‘‘for your contemptuous acts and attitude.” The following colloguy was then had between the court and the appellant: The Court: * * * you are remanded to the custody of the sheriff of Lake County to be held until such time as your sentence has been served or if you can 14 purge yourself of the contempt prior to the expira- tion of the three months you will be released on the date that you purge yourself. Mr. Brosten: May I ask you how I can purge my- self, sir? The Court: By removing the materials in compli- ance with the order. Mr. Brosten: Sir, we moved over 430 tons. I think we’ve done real well. Sir, its easy to say remove that. I can say that in three words. But it takes a lot of work. The Court: Mr. Brosten— Mr. Brosten: Sir, I have not done anything illegal. May I say something here, sir? It is apparent that the court refused to take into con- sideration any of the efforts made by the petitioner to try to comply with the injunction. It is further apparent that the appellant was operating in a sort of judicial never never land where le was not told what he would have to do to comply with the order, inasmuch as the only person who seemed to know what the court thought proper was the court itself. Thus we return to the basie propositions that we started with at the beginning of this point. The petitioner has been imprisoned for contempt without knowing the nature of the charges. He was never adequately informed what the court desired in the way of action to comply with the injunction, there was never any opportunity afforded him to confront the witnesses against him for indeed there were none, and the court did not have any evidence be- fore it upon which it could make a ruling. In short the proceedings in which the appellant was convicted take on the aspect of Alice in Wonderland and a Franz Kafka novel. 15 Conclusion For the above and foregoing reasons a writ of certiorari ought to issue to review the judgment below. Respectfully submitted, Jason E. BeLLows CaroLte K. BELLows Attorneys for Petitioner psy ae A 4 Peer He: ELIE AEE, i LOE Hs SE LOGE IS PLEO TIME LOA “SRG ABO I eb ARH wT AS» my pe eee APPENDIX APPENDIX Mr. Presipinc Justice Tuomas J. Moran delivered the opinion of the court: Defendant was jield in contempt of court and sentenced to a term of 3 months ‘‘or such lesser period when said defendant * * * might purge himself by complying with the Writ (mandatory injunction) heretofore issued.’’ On appeal, defendant claims: (1) that he was found guilty of criminal contempt; (2) that he was denied due process ; and (3) that the trial court was without jurisdiction to enter the injunction upon which the contempt order is founded. On May 27, 1969, the plaintiff filed its complaint alleg- ing that the defendant was violating its junk yard ordi- nance. During trial, on May 13, 1971, a decree was entered in which the court found it had jurisdiction both of the parties and the subject matter and that the parties had entered into an agreed order. The court entered a perma- nent injunction against the defendant ordering him to cease operating a junk yard and to ‘‘clean up the prem- ises’’ before November 1, 1972. A few days later, the de- fendant petitioned the court to rescind its decree. The court denied the petition. This Court stayed the injune- tion pending appeal and later affirmed the decree (6 TI. App. 3d 474, app. den. 52 Ill. 2d 597). Upon remand, the trial court entered an order on January 30, 1973, directing the issuance of the writ of injunction pursuant to the May, 1971 order. A review of the record reveals that on April 2, 1973, after a hearing on plaintiff's rule to show cause, defen- dant was found in contempt of court. He was sentenced App. 2 to jail until he purged himself of said contempt but the order was stayed to allow defendant time to submit to the court a plan by which he could comply with the injunction. On April 24, defendant submitted a plan which amounted to a continuation of his operation under a different ar- rangement. The proposed plan did not comply with the court's order for removal of junk. At this hearing there was entered an agreed order continuing the cause until May 30, at which time defendant was to submit a report showing a weekly removal of 100 tons of scrap and, addi- tionally, show that no new scrap was being allowed into the yard. On May 30 it was determined that 120 tons, not 000 tons, of scrap had been removed. Defendant claimed that he was unable to remove the required amount because his property was under water; he invited the trial judge to inspect the premises. Court and counsel visited the premises on the following day. At the next hearing, June 12, the court reported on its visit, finding that while the south end of the property was under water, the north end, which contained several hundred dismantled cars, was not and that those cars could have been removed. Thereupon the court committed defendant to jail until he purged him- self of contempt. The next day, defendant appeared be- fore the court and stated that he had entered a contract with Diamond Scrap Yards for removal of the scrap. After hearing Diamond’s representative testify that removal would take 120 days, the court vacated the commitment order and continued the case for 120 days. On August 2, defendant appeared and advised the court that because of a disagreement, Diamond was no longer removing the scrap. At this hearing, Diamond’s representative testified that defendant was hauling in new junk. The court then ordered weekly reports and continued the matter until September 4. At the next hearing, September 10, the court, unsatisfied with defendant’s progress, ordered re- App. 3 moval of all junk (as required under the injunction of May 13, 1971) by October 10, 1973, and further ordered that it would meet defendant and the attorneys at the premises on that morning. On October 10, after the judge and the attorneys visited the premises, the judge found that the north end of the property looked ‘‘just as loaded with automobiles’’ as it was four months previous. At this hearing, defendant called the attorney for the Lake County Forest Preserve who testified that a condemnation suit was filed against a portion of defendant’s property located in the City of Waukegan and adjacent to the premises in question and that the District might work out an arrange- ment by which defendant could temporarily store the junk from the Park City property on the Waukegan parcel. He further testified, however, that defendant ‘‘has not ceased bringing in new junked cars to the yard, and until such time as he does that we don’t see how he’s ever going to get to the point where he can remove the ones he’s got.’’ It was at the conclusion of this hearing that the order appealed was entered. Defendant contends that he was held in criminal con- tempt of court in violation of due process requirements accorded a criminal proceeding. Specifically, he maintains that he was denied the right to know the nature of the charge against him, the right to a hearing, the right to confront witnesses, the right to present evidence in his own behalf, and possibly the right to have his case heard by a jury. Clearly, defendant was held in civil, not criminal con- tempt of court. The Illinois Supreme Court distinguished the two as follows: ‘*Criminal contempt is conduct which is directed against the dignity and authority of the court or a ee App. 4 judge acting judicially, while civil contempt ordinarily consists of failing to do something ordered to be done by a court in a civil action for the benefit of the op- posing litigant therein.’’ People ex rel. Kazubowski v. Ray, 48 Ill. 2d 413, 416 (1971). In Board of Jr. College v. Cook County T. Union, 126 Tl. App. 2d 418, 427-28 (1970), the court stated: sees * (A) useful test by which a civil contempt can be distinguished from a criminal one is the punish- ment imposed. When punishment is purely punitive: imprisonment for a definite term, * * * the contempt is said to be criminal. When punishment is a remedial or coercive measure: commitment of a contumacious party until he complies with the mandate of the court, * * * the contempt is said to be civil.’’ Here, the court found defendant in contempt, not to punish him but to make him comply with the order of the court. The court's intent to coerce, rather than punish, the defendant is manifested by the many opportunities al- lowed defendant to comply with the order and also by the fact that on a prior occasion defendant was released from jail upon presenting before the court a contract for re- moval of junk frem his property in compliance with the court’s order. Throughout these proceedings the trial court displayed remarkable patience and extended con- siderable effort on behalf of defendant. The trial court imposed a term of three months or such lesser period of time as it may take the defendant to purge himself of contempt. Once again, defendant can avoid a jail term by merely complying with the order. The sen- tence imposed is, therefore, clearly coercive, not punitive. Defendant claims that he was denied the right to know the nature of the charge against him, that he was not af- forded a hearing, that he was not allowed to confront wit- nesses or to present evidence in his own behalf. This App. 5 argument in its entirety appears to be based on the defen- dant’s dissatisfaction with the trial court for not allow- ing him to re-litigate the issues underlying the order of May 13, 1971, which enjoined him from operating a junk yard on the subject premises. Those issues were decided against the defendant, affirmed by this court and are res judicata. The issue at bar is whether the defendant was in con- tempt of court for failing to comply with the order entered on May 13, 1971. That defendant did not know the nature of the charge against him is beyond comprehension; he was in court, told to clear his property and informed that the consequence for failing to comply with this order would be a jail term. Defendant presented proposals to the court as to how he intended to comply with the order. The charge was clear. Defendant had the option of complying or being held in contempt. He chose the latter. Similarly, there is no merit to defendant’s contention that he was not afforded a hearing. He was given at least six hearings. Defendant was allowed to confront witnesses and pre- sent evidence in his own behalf. In point of fact, however, several of his own witnesses testified that defendant was not complying with the court order in that he was con- tinuing to bring additional scrap into the yard. Defen- dant objects, on appeal, to the trial judge’s personal in- spections of the junk yard but because such inspection was initially made at defendant’s request, this issue, too, is without merit. Defendant further argues that the court was without jurisdiction to enter the original injunction against him. This contention is nothing more than a circuitous and futile attempt to relitigate the original case. As we have App. 6 indicated, that issue was resolved by this court on a prior appeal. Shortly after entry of the order appealed, defendant ob- tained a stay order from this court, which order, in part, set forth the following conditions; “IT IS HEREBY ORDERED: * * * 2. That pending the appeal of said Order, the De- fendant be and he is hereby released on bail upon his own recognizance in the sum of $1,000.00. Q 3. That pending appeal the said Defendant is en- joined from moving wrecked or dismantled [sic | automobiles, batteries, tires, rubber debris or parts of automobiles or vehicles onto the property owned by the Defendant in Park City, Illinois, the subject matter of this litigation. 4. That said Defendant continue removal of the wrecked, dismantled {sie} automobiles and all other debris on said property on the same seale or better than he has done in the past three (3) months and furnish weekly reports of the tonnage removed to Attorney Eugene Snarski, 83 North County Street, Waukegan, Illinois, 60085, Attorney for Park City, Dine, * * *** During the pendency of the appeal, plaintiff filed a petition containing allegations to the effect that, subsequent to the entry of the above order, defendant has received additional junk onto his property and has failed to furnish weekly re- ports of removal of serap ‘‘since February 1973 [sic]’’. The petition requests this Court or, in the alternative, the trial court to conduct a hearing to determine the appropri- ate relief and to vacate the stay order. In response, defen- dant filed a motion to dismiss the petition on the grounds App. 7 that laches has attached and, additionally, that this court lacks jurisdiction to direct the trial court to hold hearings on the petition. We have considered defendant’s motion to dismiss and find it to be without merit. Our stay of proceedings was granted ‘until further order of this Court.’? This opinion finds against the defendant on the issues, therefore, plaintiff’s motion to vacate the stay order, entered October 17, 1973, is allowed. The remainder of plaintiff’s petition presents a novel issue from a procedural aspect. The substantive law is clear. ‘All courts are vested with an inherent power to punish for contempt as an essential incident to the mainte- nance of their authority and the proper administration and execution of their judicial powers.’’ (People v. Javaras, 51 Tll.2d 296, 299 (1972). Also see this court’s opinion in Stevens vy. County of Lake, Gen, No, 74-232, — Tll. App. 3d —— (1974).) Unclear is the method to be used to ob- tain evidence from which a determination of the issue may he made. This court, like most reviewing courts, is not physically equipped to receive and record evidence on the matters here presented. While this may create a certain frustration, it does not mean that we are necessarily es- topped from invoking our power to punish for contempt. Contrary to defendant’s claim, we are of the opinion that Supreme Court Rule 366(a)(5) (Ill. Rev. Stat. 1973, ch. 110.4, $866(a)(5),) empowers this court to remand plain- tiff’s petition to the trial court for an evidentiary hearing. See also Tn re Koome, 82 Wash.2d 816, 514 P.2d 520 (1973). It is therefore ordered that: 1. The motion to dismiss plaintiff’s petition is denied; 2. The notion to vacate defendant’s stay order is al- lowed ; App. 8 3. The order appealed is affirmed and that portion of the decision is final. 4.