People v. Smeathers

July 9, 1998

No. 2--96--1501

__________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
___________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Jo Daviess County.
)
Petitioner-Appellee, )
)
v. ) No. 96--CC--1
)
NORMAN W. SMEATHERS, )
) Honorable
Respondent and ) John W. Rapp, Jr.,
Contemnor-Appellant. ) Judge, Presiding.
___________________________________________________________________

PRESIDING JUSTICE GEIGER delivered the opinion of the court:

Following a hearing, the respondent, Norman Smeathers, was
found guilty of indirect criminal contempt and sentenced to 60
days imprisonment. The State initiated the contempt proceedings
against the respondent after he attempted to place a lien on the
property of Judge William Kelly, who had presided over two traffic
cases involving the respondent. For the sake of clarity, we will
refer to the individual trial judges involved in the instant case
by name. On appeal, the respondent argues that (1) Judge John Rapp
erred by not recusing himself from the contempt hearing; (2) the
respondent was not proved guilty of contempt beyond a reasonable
doubt; and (3) the respondent was entitled to a jury trial. We
affirm.
The facts relevant to the disposition of this appeal are as
follows. On May 24, 1996, the respondent was charged with driving
an uninsured vehicle. On August 11, 1996, the respondent was again
charged with operating an uninsured vehicle. At the time of the
second offense, the respondent posted his Illinois driver s license
as bond. On August 15, 1996, the respondent appeared before Judge
William Kelly. The respondent requested that his driver s license
be returned to him. Judge Kelly denied this request.
On August 16, 1996, the respondent sent a document entitled
"Original Notice" to Judge Kelly and his wife, Anna Kelly. The
notice indicated that Judge Kelly and his wife were "withholding"
the respondent s property in violation of "Uniform Commercial Code
at book 1, Section 207." The notice indicated that if Judge Kelly
and his wife did not respond in 20 days, a default judgment would
be entered against them and a "common law" lien would be perfected
against their real estate.
On August 19, 1996, Judge Victor Sprengelmeyer ordered the
respondent to appear before the trial court to show cause why he
should not be held in contempt of court for filing a lien on Judge
Kelly s property. On August 23, 1996, the respondent appeared
before Judge John Rapp on the rule to show cause. Judge Rapp asked
the respondent if he had sent a notice of a lien to Judge Kelly.
The respondent refused to answer Judge Rapp s inquiries and
questioned the trial court s jurisdiction over him. Judge Rapp
found the respondent in direct criminal contempt and ordered him to
be imprisoned for an hour. However, Judge Rapp rescinded this
order when the respondent informed him that he had a minor child
with him. Judge Rapp then ordered the respondent not to file any
further documents attempting to create a lien on Judge Kelly s
property. The respondent informed the trial court that he would
not file any such documents.
On or about September 16, 1996, the respondent sent Judge
Kelly a "Notice of Default," indicating that a judgment of default
had been entered against Judge Kelly and his wife in the sum of
$100,000. On October 14 and 15, 1996, the respondent also filed
complaints with the Judicial Inquiry Board against Judges Kelly,
Sprengelmeyer, and Rapp.
On October 17, 1996, the State filed a petition for
adjudication of indirect criminal contempt against the respondent.
The State alleged that the respondent had purposely acted in a
manner so as to disrupt the court from conducting its business in
an orderly fashion. The State also alleged that the respondent had
embarrassed the court, obstructed the court in its administration
of justice, and derogated the court s dignity and authority.
Also on October 17, 1996, the respondent filed a pro se
"Motion for Change of Venue." The respondent argued that he could
not receive a fair trial before Judge Rapp because Judge Rapp was
a "debtor to a financial transaction to which the [respondent was]
the complaintant [sic]/secured party, and of which a demand for
collection has been made and a default exists." The respondent
also argued that an "extreme conflict of interest" existed between
him and Judge Rapp because he had filed a complaint against Judge
Rapp with the Judicial Inquiry Board. The respondent therefore
requested that his case be transferred to an alternate judge.
That same day, Judge Rapp considered and denied the
respondent s "Motion for Change of Venue." Judge Rapp found that
the respondent s motion was untimely because he had not requested
a change until after the trial court had already made a substantive
ruling. Furthermore, Judge Rapp found that any conflict that
existed was one that the respondent had created.
Following this ruling, Judge Rapp conducted a hearing on the
State s petition. Judge Kelly testified that he presided over a
traffic matter in which the respondent had been charged with
driving an uninsured vehicle. Judge Kelly explained that, after he
denied the respondent s request to return his driver s license, he
began receiving a series of notices from the respondent. Each of
these notices alleged that Judge Kelly and his wife owed the
respondent $100,000. Judge Kelly testified that he had never had
any financial dealings with the respondent.
The respondent also testified at the hearing. The respondent
admitted to having sent the notices of lien and default to Judge
Kelly and his wife. The respondent explained that he believed his
actions were proper under the law and that he was just attempting
to have his driver s license returned.
At the close of the hearing, Judge Rapp found the respondent
guilty of indirect criminal contempt. After the hearing, the
respondent filed a federal lawsuit against Judge Rapp. The
respondent also sent Judge Rapp a 1099 IRS form, indicating that
Judge Rapp had received $100,000 in income from him.
On December 16, 1996, following a sentencing hearing, Judge
Rapp sentenced the respondent to 60 days imprisonment. The
respondent filed a timely notice of appeal.
The respondent s first contention on appeal is that Judge Rapp
abused his discretion in not recusing himself from the contempt
hearing. The respondent argues that, because of his federal
lawsuit and complaint with the Judicial Inquiry Board against Judge
Rapp, Judge Rapp should have recused himself from the case. The
respondent also notes that he served Judge Rapp with a 1099 IRS
form. The respondent contends that Judge Rapp s recusal was
necessary to avoid the appearance of impropriety, bias, and
prejudice towards him. The respondent also argues that Judge Rapp
improperly attempted to have the respondent testify "in violation
of his constitutional rights."
The State argues that the respondent has waived this issue
because he did not raise it during the contempt proceedings or in
a posttrial motion. As the State correctly notes, the right to
request a substitution of judges is waived where a party fails to
assert it prior to trial or by posttrial motion. People v. Wade,
116 Ill. 2d 1, 9 (1987).
A review of the record reveals that the respondent never filed
a motion to substitute judge or raised this issue in a posttrial
motion. Although the respondent did file a pro se "Motion for
Change of Venue" in which he requested that his case be sent to a
different judge, this motion did not conform with the statutory
requirements for a motion for substitution of judge under section
114--5 of the Code of Criminal Procedure of 1963 (725 ILCS 5/114--5
(West 1996)), as the respondent failed to include an affidavit.
See People v. Winchell, 45 Ill. App. 3d 752, 756 (1977). However,
in the interest of safeguarding the respondent s right to a fair
hearing, we will consider his "Motion for Change of Venue" as a
motion to substitute judge and consider the merits of his argument.
See People v. Morrison, 260 Ill. App. 3d at 775, 787 (1994).
The respondent in an indirect criminal contempt proceeding may
move for a substitution of judge. In re Marriage of Madary, 166
Ill. App. 3d 103, 106 (1988). However, the right to substitution
is not absolute, and the movant has the burden of showing prejudice
on the part of the judge. Madary, 166 Ill. App. 3d at 106. The
lack of impartiality of a trial judge even under extreme
provocation cannot be presumed. People v. Mercado, 244 Ill. App.
3d 1040, 1048 (1993). Reviewing courts should be reluctant in
mandating a substitution of judge where the movant s actions
brought about the alleged prejudice, lest it invite future
misconduct contrived for that very purpose. Mercado, 244 Ill. App.
3d at 1049.
In the instant case, we do not believe the record indicates
any bias or prejudice by Judge Rapp against the respondent. We
believe that the respondent himself, in filing a complaint with the
Judicial Inquiry Board against Judge Rapp, was directly responsible
for creating any alleged prejudice. See Mercado, 244 Ill. App. 3d
at 1049. We therefore do not believe that the respondent has met
his burden of proving that Judge Rapp was prejudiced against him.
See In re Marriage of Hartian, 222 Ill. App. 3d 566, 569 (1991)
(respondent failed to demonstrate that trial judge was prejudiced
against him where respondent had filed complaint against trial
judge with Judicial Inquiry Board). To hold otherwise would thwart
the administration of justice, as it would allow one to escape
prosecution by filing frivolous complaints against his trial judges
in order to force an endless stream of recusals. Hartian, 222 Ill.
App. 3d at 569. Moreover, since the respondent did not file the
federal lawsuit or serve the 1099 IRS form against Judge Rapp until
after the contempt hearing, we fail to see how these two documents
could have prejudiced Judge Rapp against the respondent during the
contempt hearing.
We also find meritless the respondent s argument that the
trial court committed an act of prejudice by violating the
respondent s right against self-incrimination. In proceedings to
punish indirect criminal contempt, due process requires that the
accused be accorded notice and a fair hearing. People v. Waldron,
114 Ill. 2d 295, 302-03 (1986). The alleged contemnor must be
informed of the charges against him and must be given an
opportunity to answer those charges as well as receive a full
hearing. Madary, 166 Ill. App. 3d at 105. After carefully
reviewing the record, we do not believe that Judge Rapp violated
the respondent s rights against self-incrimination. The respondent
was not forced to testify at the hearing but was merely afforded
the opportunity to answer the charges against him. See Madary, 166
Ill. App. 3d at 105. Moreover, the record reveals that the
respondent willingly testified during the hearing.
The respondent next argues that he was not proved guilty
beyond a reasonable doubt. The respondent argues that the State
failed to prove that he had the requisite intent to commit indirect
criminal contempt. The respondent contends that it was not his
intent to embarrass the court but only to have his driver s license
returned. The respondent maintains that he reasonably believed
that sending notices of lien and default to Judge Kelly and his
wife were a proper means to have his driver s license returned.
It is not the province of this court to retry the defendant.
People v. Collins, 106 Ill. 2d 237, 261 (1985). The relevant
question is " 'whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable
doubt.' " (Emphasis in original.) Collins, 106 Ill. 2d at 261,
quoting Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560,
573, 99 S. Ct. 2781, 2789 (1979). The sufficiency of the evidence
and the relative weight and credibility to be given the testimony
of the witnesses are considerations within the exclusive
jurisdiction of the fact finder. People v. Williams, 93 Ill. 2d 309, 315 (1982). A trial court s finding of willful contempt will
not be disturbed on appeal unless there is a clear abuse of
discretion. Madary, 166 Ill. App. 3d at 106.
Criminal contempt of court is defined " 'as conduct which is
calculated to embarrass, hinder or obstruct a court in its
administration of justice or derogate from its authority or
dignity, thereby bringing the administration of law into
disrepute.' " People v. Simac, 161 Ill. 2d 297, 305 (1994),
quoting People v. L.A.S., 111 Ill. 2d 539, 543 (1986). Before
citing one with contempt, a court must find that the alleged
contemnor s conduct was willful. People v. Ernest, 141 Ill. 2d 412, 424 (1990). The alleged contemnor s state of mind, however,
does not have to be affirmatively proven; the contemptuous state of
mind may be inferred from the allegedly contemptuous conduct
itself. Simac, 161 Ill. 2d at 307. The intent may be inferred
from the surrounding circumstances and the character of the party s
conduct. Simac, 161 Ill. 2d at 307.
After reviewing the record, we believe that there was
sufficient evidence to prove the respondent guilty of contempt
beyond a reasonable doubt. The respondent sent Judge Kelly a
notice of lien while Judge Kelly was presiding over two traffic
cases involving the respondent. There was no legal or factual
justification for such a lien. The respondent was later ordered by
Judge Rapp to refrain from sending any additional notices or
creating any other liens on Judge Kelly s property. Despite this
order, the respondent sent a notice of default to Judge Kelly,
indicating that Judge Kelly was indebted to the respondent for the
sum of $100,000.
From such evidence, we believe the trial court could find that
the respondent s actions were contemptuous. The respondent s
actions hindered the administration of justice by attempting to
intimidate Judge Kelly into returning his driver s license. See
Simac, 161 Ill. 2d at 305. From such contemptuous conduct, the
trial court could infer that the respondent was acting with
contemptuous intent. Simac, 161 Ill. 2d at 307. Despite the
respondent s contention that he believed his actions were legally
proper, ignorance of the law is not justification for contemptuous
acts. See People v. Powers, 122 Ill. App. 3d 629, 630 (1984).
Under the circumstances, therefore, we cannot hold that the trial
court abused its discretion in finding that the respondent
willfully committed a contemptuous act. See Madary, 166 Ill. App.
3d at 106.
The respondent s final contention on appeal is that he should
have been afforded the right to a jury trial. The respondent
argues that this right attached because he was subject to six
months imprisonment and a $500 fine. However, as the respondent
acknowledges, one is entitled to a jury trial in a criminal
contempt proceeding only if the penalty exceeds six months
incarceration or if the fine exceeds $500. County of McLean v.
Kickapoo Creek, 51 Ill. 2d 353, 356 (1972); see also Madary, 166
Ill. App. 3d at 105. Illinois courts have consistently held that
the denial of a jury trial in a criminal contempt case in the
circumstances here presented does not violate equal protection of
the law under either the Illinois or United States Constitutions.
See People v. Collins, 57 Ill. App. 3d 934, 938 (1978) (denial of
jury trial in criminal contempt proceeding did not violate equal
protection clause of state constitution); People v. Martin-Trigona,
94 Ill. App. 3d 519, 524 (1980) (denial of jury trial in criminal
contempt proceeding did not violate equal protection clause of
United States Constitution). Despite the respondent s invitation
to reconsider these authorities, we find no compelling reason to do
so.
For the foregoing reasons, the judgment of the circuit court
of Jo Daviess County is affirmed.
Affirmed.
THOMAS and RATHJE, JJ., concur.