Wednesday, August 8, 2012

FYI: Ill App Ct Reverses Contempt Finding Against Cook County Sheriff for Failing to Enforce Eviction Order

The Illinois Appellate Court, First District, recently reversed an order finding the Cook County Sheriff in contempt of court, in connection with the sheriff's failure to timely enforce an eviction order. 
A copy of the opinion is available at:
The Plaintiff-Appellee property owner ("plaintiff") filed a forcible entry and detainer action in circuit court, and obtained an order of possession ("order") effective on August 10, 2009.  The plaintiff provided the order to the Contemnor-Appellant Cook County Sheriff ("Sheriff"), on August 26, 2009. 
When the Sheriff did not enforce the order, plaintiff filed various motions to refresh and extend the order, as well as to find the Sheriff in contempt of court for his failure to evict.  On November 9, 2009, the circuit court continued the plaintiff's "motion for rule to show cause" and directed the Sheriff to appear before the court to show cause as to why he should not be held in civil contempt. 
The parties appeared in court on February 8, 2010.  The Sheriff informed the court that the eviction was scheduled to take place on February 10, 2010.  The lower court ordered the Sheriff to effect the eviction by February 10, and continued the matter to March 15, 2010.  
At the March 15 hearing, the Sheriff advised the court that the eviction had taken place on February 16, 2010.  The plaintiff argued that the Sheriff should nevertheless be held in contempt of court for failing to follow the court's orders.  The Sheriff argued that the plaintiff's motion to hold the Sheriff in civil contempt was moot, as the eviction had already taken place. 
The circuit court entered an order finding the Sheriff in "civil" contempt, imposed a fine of $1,400, and granted the plaintiff attorney's fees.  The Sheriff appealed. 
In Illinois, contempt sanctions that are imposed for a coercive purpose are civil in nature.  If the sanctions are imposed to punish past misconduct, the contempt is criminal in nature.  See In re Marriage of Betts, 200 Ill. App. 3d 26, 43 (1990).  Criminal contempt may be direct (if it occurs in the presence of a judge) or indirect (if it occurs outside the courtroom).  A person charged with indirect civil contempt is entitled to all of the constitutional and procedural rights afforded to criminal defendants.  Id. at 58. 
The Court began its analysis by noting that "there was no action that the contempt finding could have coerced the Sheriff to take," because the eviction had already taken place at the time the Sheriff was found in contempt.  Accordingly, it held that "in spite of the language of the circuit court's order, it is clear that the Sheriff was found in criminal contempt." The Court further held that the criminal contempt was indirect, because the alleged misconduct occurred outside of the court's presence. 
Having made that determination, the Appellate Court reversed the circuit court's ruling.  It noted that the Sheriff was not provided with "many of the constitutional and procedural rights" to which he was entitled.  Specifically, the Appellate Court emphasized that the Sheriff was not given notice that he could be held in indirect criminal contempt, because the motion filed by the plaintiff specifically referenced civil contempt. 
The plaintiff attempted to avoid this result by arguing that the Sheriff could have attempted to assert any of the rights to which he was entitled, but chose not to do so.  The Appellate Court disagreed, finding that "the fact that the Sheriff did not assert his rights is immaterial given that he was never informed he was facing criminal charges."   
Thus, the Appellate Court held that, "given the complete lack of procedural and constitutional rights afforded to the sheriff, we conclude that the circuit court's order finding the Sheriff in contempt and imposing a fine must be reversed." 

Ralph T. Wutscher
McGinnis Wutscher LLP
The Loop Center Building
105 W. Madison Street, 18th Floor
Chicago, Illinois 60602
Direct: (312) 551-9320
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