*1 еmotional distress had been held not to a defense provide of against charges conversion of clients’ funds. The panel found that the respondent conversion, guilty forgery, failure to remit settlement funds and promptly misrepresen- tation and deceit. stated that panel respondent’s entire defense to misconduct on hinged the emotional and distress caused his physical wife’s and the di- by family vorce. It observed that despite distress, the respondent was able to write numerous checks to himself payable to other which indicated payees, he was not panel disаbled from transacting business and his conducting prac- tice.
We consider violations charged were shown by clear and evidence. The convincing sanction recommended hearing Review is panel Board not inappro- priate, and we adopt recommendation. The respondent from law for a suspended practice period two years.
Respondent suspended. JUSTICE CALVO took no the consideration or part decision of this case.
(No. 65051.
(No. 65168. ILLINOIS, THE THE STATE Appel- PEOPLE OF OF PEO- lee, SHUKOVSKY, v. Appellant.-THE DAVID ILLINOIS, PLE THE STATE DAVID OF OF (Matthew Chancey, Appellant). SHUKOVSKY 21, 1988. Opinion December Modified filed May rehеaring denial of *5 Josette Skelnik, of Skelnik, Robinson & of Elgin, and Stone, Jed of Waukegan, appellant Shukovsky.
Kenneth R. L. Boyle Browers, William State’s Attorneys Appellate Prosecutor, of Elgin (Fred L. Foreman, State’s of of Attorney, Waukegan, counsel), for appellant Chancey.
Neil F. Hartigan, General, of Springfield, and Fred L. Foreman, State’s of Attorney, Waukegan (Kenneth R. Boyle and William L. Browers, of the State’s Attorneys Appellate Prosecutor, of Elgin, of counsel), for the People.
JUSTICE WARD delivered the opinion the court: 5, On June 1985, the defendant, David Shukovsky, was charged information in the circuit court of Lake with County (111. 1985, Rev. Stаt. battery 38, ch. par. Prior he 3(aX2)). trial, had a subpoena duces 12— tecum served on Notson, Laura a social worker with the Lake State’s County office, Attorney’s her directing produce all materials to certain relating conversations she had with the complainant, the defendant’s former of the Lake
wife, Shukovsky, Andrea or with members office or Attorney’s police agency. State’s County any circuit court Assistant State’s Attorney ordered Notson’s with Chancey, supervisor, comply Matthew refusal, and, his found him con- upon from While an tempt appeal court. the defendаnt’s mo- granted the circuit court
pending, tion for on the that his to a discharge ground right of Crim-' 5(b) trial under section the Code speedy 103— (111. par. inal of 1963 Rev. Stat. ch. Procedure violated. The State 5(b)) appealed, had been *6 103— court, after consolidating appeals, the the af- firmed the but the judg- reversed and for ment the defendant remanded fur- discharging ther 111. We allowed proceedings. (151 App. 966.) to the for leave Chancey’s petitions and ap- 111.2d R. 315(a). 315(a). under our Rule peal The duces Notson to tecum directed Laura subpoena produce: notes, your
“All file memorands materials [sic] relative to the Shukovsky conversations with Andrea matter, notes, any as well as memoranda above-captioned file materials taken in connection with discussions with Attorney’s any County of the Lake State’s Of- member involving above-captioned fice or any police agency complaints against matter Andrea David Shukovsky’s relative thereto.” Shukovsky State’s Matthew moved Chancey Assistant to that it was over- quash subpoena grounds broad, that material or was not was not discoverable work-product subject subpoena because a or that thе defendant could not obtain sub- privilege obtain the first attempting duces tecum without poena hearing, a through Following materials discovery. the materials court the motion and ordered that denied in camera 3 for an in- be for produced by July spection. date,
On that a on the mo- hearing was held State’s tion to reconsider the denial of its motion to quash. he stated that was Notson’s and that Chancey supervisor he had the materials in his He also said that possession. because the court indicated that it would permit defendant access to materials called for the sub- discoverable, if the court found that not poena though admissible, he not the materi- were would they produce als. The court then held and fined Chancey 2, 1985, him a August On filed notice of $10. and the State’s Prosecutor’s appeal, Attorneys Appellate a on his office filed brief behalf.
On the defendant moved for a trial con- July tinuance on the that without the materials re- ground in the he would not be quested present able an defense. The also for the effective defendant moved of a in the appointment special prosecutor contempt pro- оn the that the ceeding ground had contempt judgment entered an against been assistant State’s Attorney. court denied the defendant’s motion special prose- cutor but continued cause August Although the State its trial, announced readiness for the court *7 the for charged delay State of the purposes speedy-trial statute because of to turn Chancey’s failure Thereafter, over the materials. the subpoenaed cause was continued several times and on each the occasion court stated it would the to the State charge delay be- cause of refusal to turn Chancey’s subpoenaed over the materials. 18, 1985,
On the December defendant moved for dis- under the in charge guarantees section speedy-trial of the 5(b) (111. Code Criminal Procedure Rev. 103— ch. 1985, 38, Stat. That section par. 5(b)). provides: 103— shall be tried recognizance person on bail
“Every days from the within having jurisdiction the court by occasioned delay trial unless demands date defendant 38, par. ch. (111.Rev. Stat. the defendant ***.” 5(b).) 103— than 160 had days that more
The defendant alleged on for a trial speedy he filed his demand since passed to trial the cause bringing June 21 and that thе delay mo- The court the granted to the State. was attributable tion, appealed. and the State the with the appeal
The court consolidated appellate and, the upon contempt from the appeal State the of the motion, People designated in the contempt proceedings. of Illinois as appellee General Attorney represent court appointed affirmance filed a seeking and that officer brief People, At- The State’s contempt. court’s order of of the circuit As- office, on behalf of Prosеcutor’s Appellate torneys moved to strike Attorney Chancey, sistant State’s and to vacate appellate General’s brief Attorney State of Illi- People court’s order designating that, as The motion stated nois as appellee. of his faith conduct good because contempt
convicted had a conflict of interest been People,” on of “the behalf ap- “the as designation People” the court’s created by pellee. At the State’s stated, court denied
As appellate motion, affirmed Prosecutor’s office’s torneys Appellate trial court’s or reversed the but judgment, grounds defendant speedy-trial der discharging 151 Ill. App. proceedings. and remanded further State’s Assistant In No. appeal conviction his to his challenge Chancey begins erred des- the with contention in appointing as appellee “the ignating People” *8 219 on judgment the contempt to sustain General Attorney himself that he subjected appeal. Chancey says Peo- on of “the in faith behalf good conviction contempt of the circuit court’s in to test the validity order ple” defend- him to with the comply order pretrial directing in is held attorney ant’s He that when an subpoena. says client, an on behalf a taking position an by is in reality appeal from that appeal it therefore improper client. Chancey argues “the as People” ap- for the court to appellate designate General, the Attorney particularly and to pellee appoint General has taken an op- considering Attorney on the of the sub- validity to his position posing position of the Attor- court’s appointment poena. counsel, his the State’s General, he rendered says, ney office, “powerless” Prosecutor’s Attorneys Appellate because, him This is as the appeal. Appellate defend “the is to represent only Prosecutor’s office authorized in a State’s his it cannot People,” represent 14, Stat. ch. her individual Rev. capacity. (See state does not who par. 204.01.) Parenthetically, Chancey he as the designated appellee considers should have been on this appeal.
It of course has been long recognized exposing one’s self to is an contempt proceedings appropriate of a order. Peo testing (See method of validity (1967), ex rel. General Motors v. Bua 37 Ill. 2d ple Corp. 180, 189; 35 Ill. (1966), 351.) Monier Chamberlain 2d an it does not follow attorney contempt, When held that an from the is the appeal contempt judgment appeal for whose acted con attorney benefit party of the order of court. tempt are “original special proceed
Contempt proceedings of the case in which collateral to and ing^], independent ex rel. v. Silver stein (People arises.” Scott 292 167, 172; (1920), Ill. Hill v. Co. Jeffery Ill. There are civil and criminal 493.) proceеdings. this court: have been defined They simply *9 in of criminal have “Proceedings the nature dig of the preservation as those directed to been defined *** court, contempts of the while civil nity authority and rights private par to enforce the prosecuted are those for the to orders or decrees compel ties and to obedience People ex rel. opposing parties. benefit of [Citations].” 407, 21 (1961), v. Barasch Ill. 2d Chicago Bar Association The a fine on circuit court’s order imposing Chancey circumstances, and the the including understanding to the of the an wоuld be taken test appeal validity the was to criminal court’s show that order be position, in for the conduct of refusal. nature and was punish stated, The of criminal as purpose contempt proceedings, court,” authority is to “the preserve dignity “The is, judicial system. to maintain for respect *** satisfied by need to vindicate a court’s is authority contemnor will have to account alleged that an ensuring legal proceeding, regardless for his or her behavior or acquit- of whether convicted party ultimately Fils ex rel. Vuitton et S.A. v. United States Young ted.” n.8, 740, n.8, 95 Ed. 2d 752 481 U.S. L. 107 S. Ct. 2132 n.8. to con- an himself hersеlf subjects
When attorney of a court in order to test tempt proceedings validity contemnor order, alleged who is the it is the attorney conduct; it is for the and is the one who must account Indeed, it acts. was attorney not for whom party and it held in contempt, the circuit court whom said what we have Illustrating he the fine. paid was who trial court’s announce- this colloquy following in contempt: ment that it was finding Chancey Attor- hold the State’s guess I we will “THE COURT: $10, fine and we him—how about ney n willsee what luck, gentlemen. Good happens. Attorney,” “State’s say, you MR. CHANCEY: When one, I the supervi- I am the am myself do mean since you taking po- that is I am the one sor over Miss Notson? the record is clear. sition. I take it that is so standing before THE COURT: The individual Court, suppose, contempt.” I is in direct “the did not err in designating contempt pro- purposes as People” appellee ceeding. of “the that was involved People”
It was the interest the At it for the court to appoint and was appropriate A inherent author General in the court’s appeal. torney in understandably to initiate ity contempt proceedings an appoint attorney represent cludes authority *10 of the court’s authority. interest vindication public v. ex rel. Vuitton et Fils S.A. (See Young United States 787, 793, 740, 749-50, 95 L. Ed. 2d 107 (1987), 481 U.S. In Marcisz v. Marcisz 65 Ill. 2124, (1976), S. Ct. 2130.) 2d court held proceedings may this that be counsel for a the State’s prosecuted “by litigant, by an amicus curiae appointed Attorney by by v. People Goss (65 court” Ill. 2d at also 210). (See (1957), 10 Ill. 2d As the an assistant State’s 533.) appellant was it would have been to Attorney, surely inappropriate ap an from that office under the circum point attorney Too, there inconsistent in the nothing stances here. was General’s a different from that taking Attorney position the State’s issue оf propriety See Peo the court’s order the motion to denying quash. ple v. Walker 119 (1988), Ill. 2d 465. contention of is that the con-
The second it should be overturned because was tempt conviction motion to People’s based on an denial improper 222 duces tecum. In review subpoena
quash the propri we must examine ing judgment to of the court’s order directing Chancey comply ety which, said, it is was vio improperly with the subpoena invalid, If the contempt lated. the order were v. Verdone People Ill. 107 2d (1985), must be reversed. ex rel. Scott v. Silverstein People 87 Ill. 25, 30; (1981), 167, 174. 2d order him directing the court’s
Chancey argues
ground
to
is invalid on the
subpoena
with
comply
did not make a sufficient
to
showing
the defendant
entitle him to the use of the
contends
subpoena. Chancey
defendant
here
(the
in misdemeanor
prosecutions
misdemeanor
a defendant
charged
battery),
with
must first seek
of materials
of discov-
production
by way
duces tecum. He as-
for a
calling
subpoena
before
ery
discover-
serts,
too,
that even if the material were not
to make an
able,
adequate
showing
the defendant
failed
v. Nixon
under United States
683, 41
418 U.S.
L.
(1974),
him
1039,
Contrary obtaining before by way discovery required proceed duces tecum. A is a subpoena judicial compul sixth amendment assured sory process States, and is applicable Constitution of the United Texas (Washington (1967), “all criminal prosecutions.” 1019, 1025, 87 S. Ct. 14, 23-24, 18 L. Ed. 2d U.S. ex rel. People Const., VI; 1920, 1925; amend. U.S. Fisher, Fisher v. Carey In Ill. 265.) *11 not, may rules discovery this court stated that “[our] *** limit a criminal party’s reason without substantial at Ill. 2d (77 compulsory process.” access to a court’s seek a pre The held that a defendant 268.) may court material without to discoverable gаther trial subpoena through materials to the obtain having attempted first in the defendant Although 268.) Ill. 2d at (77 discovery. this defendant a and felony, with charged Fisher was no misdemeanor, given persuading State has the awith grades. the criminal between for distinguishing reason defendant, that, event, in any further observe We to discovery. had no misdemeanor, right charged with 56 Ill. 411; (1974), v. R. Schmidt People See 107 Ill. 2d 2d 572. court there was no that, stated as
The to quash State’s motion on the hearing at reporter of the pro- no transcript subpoena the defendant’s the order of not the correctness it could review сeeding, of a com- of the absence It held that because to comply. is the record, obligation appellant which plete defendant furnish, presume it was required issuance justify and witnesses evidence presented subpoena. however, of contempt, of a judgment affirmance the defendant only presumptions rest cannot issuance of showing justifying made an adequate second, the order to which and, comply a proper refused to obey the contemnor (Chancey) of the to have the decision right order. An accused has a reviewed, justifi him in finding triаl judge itself or in the order for that order must be found cation v. (People in with the conjunction report proceedings. “All essen 564.) 48 Ill. 2d Tomashevsky (1971), no thereof can forth and fully part tial facts must be set inferences.” (People presumptions be supplied by this court it 263.) put 2 Ill. 2d As (1954), Loughran 388, 393: in Tavernier 384 Ill. People v. record to recognize power of courts of
“The cases all committed contemptuous acts proceedings conduct punishment court and to administer presence sentence, fine or jail include a may cases. This proper instantly without punishes thus a court or both. When *12 proof examination, further without plea, issue, trial or it exercising is a power which is not recognized in other proceedings and one which may arbitrarily be used. To safeguard against had, abuse a may review be and since the case is submitted to reviewing court on the order of commitment, imposes the law upon those who defend the entry of the order the burden having it contain facts sufficient to show that the court was warranted enter- ing the order.”
See also People Tomashevsky 48 Ill.
The common law 3, 1985, entry July the date of on the motion hearing to reconsider the denial of the State’s motion tо quash, indicates simply counsel was present and that the court found in con- “for not tempt complying with the Court’s order filed 1, 1985.” July While the hearing on the State’s motion quash was not transcribed, hearing on State’s motion to reconsider the de- nial of the motion to quash and the hearing on the mo- tion to reconsider the judgment of taken contempt were down and transcribed.
At the on hearing motion Chancey’s to reconsider denial of the motion to quash, defendant stated that the allegations set out his motion to dismiss the infor- mation, which the trial court had denied, previously “sets forth the history motion, case.” In the defendant alleged that an identical charge had been brought him also in against Lake County January 1985, which been had dismissed on the State’s own mo- tion. The defendant further that the alleged complainant, Andrea had filed Shukovsky, numerous false complaints him against that were determined to be unfounded by the authorities and from his file he divorce had learned that III,” suffers from complainant “DSM which defendant, according is a diagnosed mental this he after disclosed stated that illness. The defendant office, charges Attorney’s the State’s information to arrest and his evidence” for “insufficient were dismissed nor Chancey State Neither record was expunged. out in the defend- set allegations denied the factual has motion. ant’s us to record before a sufficient consider
We the ma entitled to the defendant was determine whether *13 we are with Though the subpoena. terials called for in the on the hearing out the of a transcript benefit the the later two motion to quash subpoena, State’s transcribed and the defendant hearings adequately were materi his for to obtain the set out reasons attempting Any objection Chancey als callеd for in the subpoena. he the of the record insufficiency have as to might had in raise the circuit has to the by failing question waived v. Logan Landfill, court. Auton the court or Inc. 537, 543. 105 Ill. 2d (1984), the the defendant made record, judge
On this we that issuance of sub- showing required justify pretrial to the In United v. Nixon 683, States (1974), 418 U.S. poena. 699-700, 1039, 3103, 41 Ct. 1059, 3090, L. Ed. 2d 94 S. the Court set out the for the of a requirements issuance subpoena prior to trial:
“(1) relevant; evidentiary (2) that documents are and they that in procurable reasonably are not otherwise ad- diligence; (3) vance trial exercise that of due trial party properly prepare pro- cannot for without such duction in of trial that inspection and advance and to inspection failure such tend may unreasonably obtain trial; delay (4) to made in application that the faith good general ‘fishing expe- and is not intended as a ” dition.’ People Carey ex rel. Fisher v. Ill. See also 77 (1979), 259,
226 states that the defendant’s sole for purpose
obtaining the materials called for in the was to of the challenge He credibility complainant. says under Nixon, the need for evidence is impeachment gen insufficient to its in erally require production advance of (Nixon, trial. 41 1060, 418 U.S. at L. Ed. 2d at United States Carter S. Ct. at 3104. Seе also 371.) ER.D. We disagree. It from the in the appears language defendant’s mo- tion to dismiss in purpose seeking however, the material in the described was subpoena, not to obtain information the testi- simply impeach He mony complainant. also sought establish the State’s discretion Attorney abusing bringing above, him. As charges against stated State’s identical nol-prossed charges brought the defendant against evidence,” “insufficient then later refiled the The defendant rea- charges. may seek to determine sonably what caused State’s At- to refile torney charges did not consider prosecutor and such information appropriate, might important be the defendant for trial. properly preparing We judge *14 that the has made showing defendant a sufficient enti- him tling to the materials called for in the subpoena and that the court’s denial of the motion to was quash the of is af- proper. Accordingly, contempt firmed.
In 65051, the that the appeal argues No. defendant court trial appellate reversed the court’s or- erroneously der which him on the that his discharged ground right a trial of 5(b) under section the Code of speedy 103 — 1985, 38, Criminal (111. Procedurе Rev. Stat. ch. par. 21, 1985, had 5(b)) been violated. On June 103 — defendant, bond, who was on filed a de- speedy-trial 3, mand. On on the mo- hearing at the State’s July tion to Assistant the defendant’s quash subpoena,
227 con- held in was Matthew State’s of a notice 2, 1985, timely he filed on August tempt, on continuances, the trial court several appeal. Following motion for the defendant’s 20, 1985, granted December failed to State had discharge ground on section required by him 160 as days to trial within bring 5(b). 103— had ex- the State although
The circuit court held trial, failure to its willingness proceed its pressed of cause of the delay was thе the subpoena with comply on the ground court reversed trial. The appellate assistant State’s of the notice of filing appeal the cir- and, therefore, the prosecution Attorney stayed dis- to enter order was jurisdiction cuit court without the defendant. charging a notice of filing appeal, the proper
Generally, upon of instanter, attaches “the court’s jurisdiction of the trial the jurisdiction and the cause beyond 33, 37; Ill. City 106 2d (1985), court.” v. Laurie (Daley 470, 472.) Ill. 37 2d Chicago Myers (1967), v. matter however, ap court where jurisdiction, retains to, the case of, and collaterаl from is pealed independent re Petramale (In Marriage before the trial court 1053; Horzely Horzely 3d 102 Ill. (1981), App. an order of con 542, 545), Ill. (1979), e.g., App. rel. v. Silverstein ex Scott (see People tempt 167,172). Ill. 2d however, that while held,
Here,
the appellate
to the criminal
was collateral
the contempt proceeding
the reso-
dependent
prosecution
prosecution,
The court
issues.
lution
was a sit-
order
entering
stated that the
order
pretrial
sup-
to that where there is
uation similar
the State
with
appeals,
from which
evidence
pressing
the speedy-triаl
under
discharge
the time for
result that
*15
statute does not run while the
See 107 Ill.
appeal pends.
2d R. 604(a)(4); People v.
Young (1980),
The situation is There distinguishable. was not an on behalf of the rather an appeal People but the assistant State’s as the contem appeal by nor. Rule Consequently, Supreme 604(aX4), Court which provides the time for not discharge will run while an the State is appeal by pending, is not applicable. Also, in event, in those instances any which the State to under Rule permitted appeal 604(aXl), order the court from is one which has appealed terminated at least impeded the State’s with the ability proceed e.g., (See People prosecution, of evidence. suppression Flatt 82 Ill. The 264-65.) order here obvi did not affect ously State’s with ability proceed If prosecution. order, there was an effect of the it was upon a defense. ability present The trial court retained jurisdiction despite appeal by Assistant State’s from Attorney Chancey of contempt.
Further, we the trial court judge held properly the defendant’s assurance of a statutory speedy trial was The violated. circumstances here out of were the ordinary. motion, the defendant’s Judging by State after materi- apparently, considering investigative als defendant, assembled including a claim evi- by dence of condition, mental in effect complainant’s thereafter, dropped criminal without charge. They notice or crimi- explanation defendant, filed a new nal information based on the identical incident alleged. duces tecum directed to conversations worker, the social not with the defendant’s only wife, former but with of the State’s members Attorney’s staff or The trial any court’s police agency. request in camera an rejected of the materials was inspection the State. *16 to the to consent refusal the State’s
In of light sought, materials in camera examining court’s in the defend at the purpose only speculate court could defendant The duces tecum. ant’s seeking of the social conversations concerning sought materials wife, but former with only worker not Attorney’s the State’s of a police agency, with members relate might well staff and materials any the circum of a defense. Under defendant’s preparation to a right speedy the defendant’s stances we consider 61 Ill. Terry (1975), v. People enforced. trial should be 54 Ill. 2d 593, 596; Nunnery (1973), People 2d 376. of the appellate given,
For the reasons and re- of contempt the order court is affirmed as to defendant, and order discharging as to the versed as to this order. the trial court is affirmed — reversed; court Appellate No. 65051
trial court affirmed. — court Appellate No. affirmed. took no in the consideration part JUSTICE STA.MOS case. decision of this RYAN, dissenting concurring part JUSTICE in part: of this court
I from that of the opinion dissent part to a trial holds that the defendant’s right speedy which I court in this would affirm the appellate was violated. court had no case, jurisdiction held that the trial which once an discharge ap- or enter an order consider had filed. 151 order been contempt from peal 972-73. App. the circuit of this court finds
The opinion case, the criminal with retained jurisdiction proceed because order had been although contempt appealed, the order from was appealed and collat- independent eral to the case before trial court. The assessment the contempt order as of and collat- being independent eral to However, the criminal case is correct. as noted by court, the criminal case was not indepen- dent of the proceeding. State had an- swered trial, but the defendant could not ready his present defense without the information the court or- dered the State to produce, and the propriety court’s order on the State to produce had to be deter- mined in the from the appeal order.
Thus, the criminal case dependent on the out- come of the contempt proceeding, and the trial court should not have in the proceeded сriminal case before *17 the determination of the If, review, issue. it should be determined that the court in trial was correct the State to ordering produce, the defendant would then be entitled to receive the information and could sought If, then fashion however, court, his defense. on re- view, would determine the trial court in was wrong its order, production then the case would to have pro- ceed without the information ordered as the produced, State was to do before the ready had speedy-trial period run. The court should not have entertained order any оf disposing the criminal case until the contempt ques- tion had been resolved. this court to hold Suppose were the trial court was in its order wrong entering produce? Under of this we would holding opinion, be faced with the of the dis- anomaly being as a result of charged having produced the State’s not information, cor- although State would have been rect in not with the order. complying production stated,
For I the order of reasons would affirm court, I of portion and dissent from that appellate this issue. opinion resolving speedy-trial court’s MILLER this joins partial JUSTICE in concurrenсe and dissent. partial
MODIFICATION ON OF REHEARING DENIAL that this judge judgment We court’s should be and is hereby vacated insofar as it affirms the court’s appellate the order of trial holding court Assist- ant State’s Attorney Matthew
court. The record the trial shows that judge understood Assistant State’s Chancey’s contempt was a formal one purely and that the motivation for his re- fusal comply with the subpoena duces tucem was an solely permit, through appeal, examination the answer to question, which was not free from doubt. Accordingly, concerned order the order trial court holding Mr. Chancey contempt are vacated.
(No. 55370. THE PEOPLE OF THE ILLINOIS, STATE OF Appel-
lee, MACK, v. LARRY Appellant. *18 Opinion April 20, 1989. Rehearing filed 26, 1989. May denied