D'Agostino v. Lynch ( 2008 )

THIRD DIVISION
April 2, 2008
No. 1-06-3026
MARY CARR D’AGOSTINO and ) Appeal from
MARIO D’AGOSTINO, ) the Circuit Court
) of Cook County.
Plaintiffs and Counterdefendants-Appellees, )
)
v. )
)
MICHAEL W. LYNCH, )
)
Defendant and Counterplaintiff and Third- )
Party Plaintiff and Contemnor-Appellant, )
)
(Michigan Avenue Partners, LLC, and Michigan ) No. 98 CH 11007
Avenue Partners, Inc., )
)
Defendants and Counterplaintiffs and )
Third-Party Plaintiffs, )
)
v. )
)
Dominic Forte, ) Honorable
) Paddy McNamara,
Third-Party Defendant). ) Judge Presiding.
JUSTICE THEIS delivered the opinion of the court:
Defendant, counterplaintiff, third-party plaintiff, and contemnor Michael W. Lynch
(Lynch) appeals on an interlocutory basis pursuant to Supreme Court Rule 304(b)(5) (210 Ill. 2d
R. 304(b)(5)) from the order of the circuit court of Cook County holding him in direct criminal
contempt and sentencing him to 60 days’ imprisonment. The court held Lynch in contempt after
he filed a motion for substitution of judge for cause in which he alleged that Judge Alexander
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White could not be impartial to his case because Judge White had been bribed by plaintiffs and
counterdefendants Mary Carr D’Agostino and Mario D’Agostino, and their counsel, Michael
Braun, all of whom Lynch alleged were members of an Italian mafia family. On appeal, Lynch
contends that: (1) the court improperly convicted him of direct criminal contempt because there
was no evidence that he intentionally embarrassed, obstructed, or hindered the court in the
administration of justice; and (2) the contempt finding violates his first amendment right to
freedom of speech. For the following reasons, we affirm.
The following facts and procedural history are relevant to this appeal. Plaintiffs Mario
and Mary D’Agostino commenced the present action seeking to enforce three promissory notes
against defendants Lynch and his real estate corporations, Michigan Avenue Partners, LLC, and
Michigan Avenue Partners, Inc.1 The notes memorialized three loans for hundreds of thousands
of dollars that the D’Agostinos made to defendants in 1997.
Defendants filed counterclaims against the D’Agostinos and a third-party claim against
Lynch’s former business partner and Mario’s cousin, Dominic Forte.2 In the counterclaims,
defendants alleged that the promissory notes were actually part of a broader oral funding
agreement, under which the D’Agostinos were to lend Lynch substantially more money for use in
several projects. Lynch claimed that the D’Agostinos breached this funding agreement, and
sought damages for the breach. In the third-party claim, defendants sued Forte for breach of
1
Michigan Avenue Partners, LLC, and Michigan Avenue Partners, Inc., are not parties to
this appeal.
2
Forte is not a party to this appeal.
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fiduciary duty.
The D’Agostinos subsequently filed a motion for summary judgment on defendants’
counterclaims, alleging, inter alia, that there was no agreement to lend defendants money other
than what had been memorialized in the promissory notes. The court granted the D’Agostinos’
motion, and we affirmed. D’Agostino v. Lynch, No. 1-03-2786 (2005) (unpublished order under
Supreme Court Rule 23).
Forte filed a motion to dismiss defendants’ third-party complaint alleging, inter alia, that
it failed to satisfy Illinois’s fact-pleading standard because it did not state specifically what Forte
had done to breach his fiduciary duty. The circuit court granted that motion, and, once again, we
affirmed. D’Agostino v. Lynch, No. 1-03-2786 (2005) (unpublished order under Supreme Court
Rule 23).
On August 14, 2003, the circuit court entered judgment in favor of the D’Agostinos for
the amount due under the promissory notes, $1,805,651. The D’Agostinos then began to pursue
enforcement of the judgment in the circuit court. The D’Agostinos initiated citation proceedings
against Lynch in July 2004. This process continued for roughly a year, during the course of
which the D’Agostinos were only able to collect $211,143.65.
In February 2005, the D’Agostinos filed a motion to compel Lynch to turn over certain
proceeds from the refinancing of his personal residence. Therein, the D’Agostinos claimed that
Lynch had sent these proceeds to his attorneys for disbursement to various parties, including his
wife, in violation of the citation proceedings. The matter was continued for hearing until August
18, 2005.
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However, on August 17, 2005, Lynch filed a personal bankruptcy petition, which had the
effect of staying all of the D’Agostinos’ efforts to collect their judgment. According to materials
filed by Lynch, he voluntarily dismissed his bankruptcy petition in March 2006.
On August 10, 2006, the circuit court commenced a hearing on the D’Agostinos’ still-
pending request for a turnover order. However, Lynch, who was appearing pro se at that point,
informed Judge Alexander White, who was presiding over the citation proceedings, that he
would be filing a motion for substitution of judge.
Shortly thereafter, Lynch filed a pro se “verified motion for judicial admission or denial
by Judge Alexander P. White regarding knowledge of and/or participation in alleged criminal
acts within and across state lines by judges in the circuit court of Cook County, Illinois, and
request for self-disqualification instanter.” Therein, Lynch alleged that “a criminal enterprise has
infiltrated the judicial system in the United States.” More specifically, Lynch alleged that Mario
D’Agostino and his attorney, Michael Braun, were members of organized crime who bribed
several judges, including Judge White, as well as United States Bankruptcy Court Judge Eugene
R. Wedoff, who presided over a personal bankruptcy proceeding filed by Lynch, and Cook
County Circuit Court Judge Barbara Disko, who had entered judgment in favor of the
D’Agostinos in these proceedings. Lynch claimed that these judges “exploit[ed] litigants for
their own financial gain,” but did not explain specifically how they did so. Accordingly, Lynch
claimed that Judge White could not preside over this case because his doing so would deny
Lynch his rights to “adequate, complete, effective, fair, full, meaningful and timely access to the
court.” Lynch further asserted that “any reasonable person knowing the facts of this case would
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seriously question Judge White’s impartiality (as well as his fitness to be on the bench).” Lynch
added that he had sent “binders of material evidence” supporting these allegations to criminal
and civil authorities, as well as the media.
In support of his motion, Lynch attached his own affidavit averring the truth of his
allegations. He also attached two affidavits from Sidney J. Perceful, who averred that he
overheard attorneys discussing how to include more assets in Lynch’s bankruptcy estate by
including Lynch’s personal residence in the liquidation.
Lynch also attached to his motion an article from a publication called Business Wire.
The article reported that Lynch had recently joined the board of the Illinois Family Court
Accountability Advocates (the IFCAA), a nonprofit agency whose goal is “to eradicate social
dysfunction through education and activism.” Among other things, the IFCAA seeks to combat
“judicial corruption – fraud, extortion, coercion under duress – in the Cook County Circuit Court
Domestic Relations Division.” The article went on to state that Lynch and his family were “also
the apparent victims of alleged judicial retaliation for standing up to the alleged judicial
corruption in bankruptcy court.” The article further stated that “material evidence” of this
corruption had been turned over to the authorities.
Next, Lynch attached a printout from the Arizona Corporation Commission’s Public
Access System. The printout indicated that an Alexander and Esther M. White of Apache
Junction, Arizona, were officers and directors of a limited liability corporation called Five
Whites, LLC.
The last item Lynch attached to his motion was the transcript of the August 10, 2006,
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court proceedings before Judge White. At the outset of the hearing, Braun explained that the day
before the request for turnover was to be ruled on, Lynch filed a personal bankruptcy petition.
Now that the bankruptcy was over, Braun requested that the court rule on the request for
turnover. It was while the parties were arguing the D’Agostinos’ requests for turnover that
Lynch informed Judge White he would be filing a motion for substitution of judge. Lynch
explained that he had evidence that contradicted Judge White’s economic interest disclosure and
established that Judge White was accepting bribes and funneling the money through Five Whites,
LLC. Lynch added that he had given this information to the FBI.
Sometime after Lynch filed his motion, at a hearing on October 4, 2006, Lynch brought
his motion to the attention of the court. Judge White then told Lynch that the allegations in his
motion were “very, very disturbing,” and “libelous.” Lynch asserted that he had material
evidence and witnesses to substantiate his allegations. Judge White categorically denied any
wrongdoing and asserted that Lynch’s allegations were false. Attorney Braun added that Lynch
has “abused the court system from here to Kansas,” and reminded the court that it had the
inherent power to hold Lynch in direct criminal contempt for filing such documents and for
making frivolous allegations. The court concluded that it would continue the matter.
Thereafter, Lynch filed a second motion captioned a “motion for self-disqualification” of
Judge White. This motion also referenced section 2-1001 of the Code of Civil Procedure (735
ILCS 5/2-1001 (West 2006)) and requested a substitution of judge for cause as an alternative to
“self-disqualification.” In the motion, Lynch made substantially the same allegations against
Judge White and attached much of the same supporting material. However, this time, Lynch also
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appended documents evidencing the creation of three trusts in Arizona. The first was the
“Anchor Trust,” which was created by Cynthia L. Capps. The second was the “Omega Trust,”
into which Kenneth L. Felder and Debra S. Felder conveyed certain real property located in
Phoenix, Arizona, to be held in trust for the benefit of a lender. The third was the “ERW Trust,”
into which Ellen A. Williams and Richard E. Williams conveyed certain real property located in
Maricopa County, Arizona. Lynch also attached the transcript of the October 4, 2006, hearing.
The D’Agostinos filed a response to Lynch’s motions which included a request for
sanctions and contempt. Therein, they explained that they were trying to enforce the $1,805,651
judgment against Lynch and had various turnover requests and a petition for contempt pertaining
to the turnover pending against Lynch. The D’Agostinos further explained that Lynch had filed
numerous frivolous complaints and motions in the courts, in which he accused numerous state
and federal judges in Chicago of being involved in a massive criminal conspiracy. These
lawsuits were generally dismissed as frivolous. The D’Agostinos attached documents pertaining
to one of these suits to their response. The D’Agostinos also referenced another case in which
the United States District Court found Lynch to have committed forgery and perjury after
someone sued him to enforce a guaranty. REP MCR Realty, L.L.C. v. Lynch, 200 F. App’x 592
(7th Cir. 2006).
Regarding Lynch’s motion for the substitution of Judge White, the D’Agostinos urged the
court to find that Lynch’s “defamatory and unsubstantiated” allegations constituted a direct
attack on the dignity and authority of the court. Thus, the D’Agostinos maintained that Lynch’s
actions constituted direct criminal contempt of court, which the court should punish with a fine
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and/or incarceration. They also requested sanctions.
The matter was then transferred to Judge McNamara, who conducted the hearing on
Lynch’s motion on October 13, 2006. Prior to the commencement of the hearing, Lynch again
requested that the proceedings be conducted in camera. Lynch asserted that if the “very
disturbing and troubling” facts of the organized crime scheme adherent in the courts were fully
disclosed, Lynch and others may be harmed by the D’Agostinos, whom Lynch maintained were
members of “La Cosa Nostra.” Lynch further stated that if the hearing were continued, and
protection granted to his witnesses, he would show who the members of the “crime family” were
and explain how they operated. The court denied these requests, finding that to hold an in
camera hearing would only hurt innocent people by denying them knowledge of the proceedings.
The court also added that Lynch’s motion should be dealt with expeditiously so that the
proceedings could be concluded.
After being placed under oath, Lynch testified that the bribery scheme in place in the
courts today is “smarter” and more difficult to trace than in the past times of “Greylord.” Now,
judges use trusts as “vehicles” to hide their bribery funds.
Lynch believed that certain individuals in control of a company that competed with a
company owned by Lynch were trying to force him into bankruptcy. He explained that these
individuals were from a family of Italian ancestry and were members of a crime family that
operated out of Arizona. The crime family had “infiltrated” the Illinois court system by bribing
certain state and federal judges.
Dr. Sheila Mannix of the IFCAA assisted Lynch in bringing charges and filing complaints
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against the corrupt judges. Although Mannix did not provide Lynch with any information
regarding Judge White, she produced direct evidence regarding several other judges’
involvement in the bribery scheme.
Regarding Judge White, Lynch asserted that documentation filed with his motion
established that Judge White was an owner and director of Five Whites, LLC. When Lynch
confronted Judge White about Five Whites, LLC, Judge White was “visibly shaken,” and
responded in a retaliatory manner. Nevertheless, Judge White did not deny involvement in Five
Whites, LLC. Lynch thus maintained that the D’Agostinos and the mob were using Judge White
to obtain a “corrupt judgment” against him.
On cross-examination, Lynch explained that an informant whose identity could not be
revealed because he was a member of the Arizona crime family, whom Lynch would only
identify as “Informant X,” told Lynch that Braun and Mario D’Agostino had bribed Judge White.
Informant X also confirmed that the Alexander White who was listed an owner and director of
Five Whites, LLC, is the same person as Judge Alexander White. However, Lynch refused to
disclose specifically what materials he was shown to support these allegations.
On questioning by the court, Lynch admitted that the only evidence of wrongdoing by
Judge White he had presented was that Judge White owned a trust in Arizona that was not
revealed on his financial disclosure form. The court then inquired whether there was any
evidence that Judge White was the Alexander White who owned this trust, other than the hearsay
from Informant X. Lynch responded that he did have other evidence, but he could not disclose it
because it would place certain people’s lives in jeopardy. Lynch stated that he did have direct
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evidence of Judge Wedoff’s ownership of the ERW Trust because Judge Wedoff had signed that
trust’s documentation in the name “Robert Williams.” Lynch also stated he had witnesses who
would testify to how the bribe transfers were made and where the bank accounts were located,
but those witnesses would only testify in camera. Before concluding the questioning, the court
warned Lynch that he bore the burden to establish why Judge White was biased, adding that
Lynch had not adduced any such evidence thus far.
Next, Lynch presented the testimony of Dr. Sheila Mannix of the IFCAA. Mannix
testified that she has a Ph.D. in clinical psychology and neuroscience. Several years ago, while
Mannix was going through divorce proceedings, she discovered the racketeering practice which
has taken hold of the court system in Chicago. She explained that in those proceedings, she was
falsely accused of being severely mentally ill. As a result, Mannix was deprived of over a
million dollars and custody of her children.
Then, Mannix resolved to expose the corruption in the court system. Lynch met Mannix
through Informant X and another man. Informant X helped them to understand that the
corruption in the court system was actually the work of organized crime. Mannix explained that
judges succumb to the mob because of the money that they make in bribes. Judges also seek to
drain the assets of litigants for their own personal gain. Informant X also informed Mannix and
Lynch how the crime scheme operated using a system of codes and identity theft. However,
Mannix was unable to explain the code because she did not fully understand it yet.
When asked whether she had any evidence that Judge White was engaging in illegal
activity, Mannix responded that she was “not at liberty to say” because she did not want to
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threaten the lives of certain individuals. At this point, the court observed that Mannix had
offered no evidence regarding the allegations against Judge White and asked her to step down.
The court again warned Lynch that he bore the burden to substantiate his allegations and asked
him if he had any further evidence to present. Lynch responded that he did not.
At the conclusion of the hearing, the court found Lynch in direct criminal contempt and
sentenced him to 60 days’ imprisonment. In so holding, the court explained that Lynch’s
motions and presentation disrupted and disrespected the court. The court further observed that
Lynch had presented no evidence whatsoever to support the allegations Lynch made against
Judge White and characterized Lynch’s allegations as “wild fabrication.” The court also
explained that Lynch could not make serious public allegations against individuals and then say
that he would only present evidence to support them in secret.
The court also filed a written order memorializing its findings. Therein, the court added
that Lynch’s allegations held the state and federal courts in Illinois up to ridicule and served to
lessen respect for the system. Lynch was then taken into custody immediately, with no bond
issuing.
On October 17, 2006, through newly retained counsel, Lynch filed a motion to reconsider
the contempt finding. The court denied the motion, explaining that it found Lynch’s actions to
have been far more disruptive than those of someone who simply shouts an expletive at a judge
because his accusations were defamatory and scurrilous.
On October 24, 2006, different counsel for Lynch requested a stay of the contempt order
pending Lynch’s appeal. Lynch argued that he had a reasonable chance of success on appeal
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because the trial court had based its contempt finding on matters outside the record, namely
Lynch’s history of filing such motions. The court denied the motion and pointed out that Lynch
and the D’Agostinos had made these matters a part of the record.
The same day, Lynch filed a notice of appeal pursuant to Supreme Court Rule 304(b)(5)
(210 Ill. 2d R. 304(b)(5)). Lynch also requested that this court stay the contempt order. On
October 26, 2006, we granted Lynch’s request, stayed the contempt until further order of this
court, and ordered that Lynch be immediately released from custody.
On appeal, Lynch first contends that the circuit court improperly found him to be in direct
criminal contempt because there was no evidence that he intentionally embarrassed, obstructed,
or hindered the court in the administration of justice. Rather, Lynch maintains that he was found
to be in contempt simply because he made inflammatory assertions in his pro se motion for
substitution of judge.
All courts have the inherent power to punish contempt in order to maintain their
authority. People v. Simac, 161 Ill. 2d 297, 305, 641 N.E.2d 416, 420 (1994). Criminal
contempt is
“ “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.” ” Simac, 161 Ill. 2d at 305, 641 N.E.2d at 420, quoting People v. L.A.S., 111 Ill. 2d
539, 543, 490 N.E.2d 1271, 1273 (1986), quoting People v. Javaras, 51 Ill. 2d 276, 299, 281
N.E.2d 670, 671 (1972). The contemnor’s conduct must be willful; however, contemptuous
intent may be inferred from the surrounding circumstances and the character of the conduct.
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Simac, 161 Ill. 2d at 307, 641 N.E.2d at 421. A finding of criminal contempt is intended to
punish the wrongdoer and vindicate the dignity and authority of the court. Simac, 161 Ill. 2d at
305-06, 641 N.E.2d at 420.
Criminal contempt is said to be “direct” when it occurs in the presence of the judge,
making all of the elements of the offense matters within the judge’s own personal observation.
Simac, 161 Ill. 2d at 306, 641 N.E.2d at 420. Opinions, conclusions, presumptions, and
inferences cannot be considered. Simac, 161 Ill. 2d at 306, 641 N.E.2d at 420. However,
conduct occurring outside the immediate presence of the judge but within an integral part of the
court, such as the filing of documents with the clerk of the court, can also form the basis of a
direct criminal contempt finding. People v. Minor, 281 Ill. App. 3d 568, 573, 667 N.E.2d 538,
541 (1996). Because all of the elements of direct criminal contempt occur before the court,
direct criminal contempt may be summarily found and punished. Simac, 161 Ill. 2d at 306, 641
N.E.2d at 420. When reviewing a finding of direct criminal contempt, this court considers
whether there was sufficient evidence to support the finding and whether the trial court
considered any facts outside of the court’s personal knowledge. Simac, 161 Ill. 2d at 306, 641
N.E.2d at 420.
This court has previously found that false documents filed by a pro se litigant accusing
judges of serious misconduct can be grounds for a finding of direct criminal contempt. Minor,
281 Ill. App. 3d at 574-75, 667 N.E.2d at 542-43. In Minor, the defendant filed a litany of pro se
pleadings and motions accusing his trial court judge of, among other things, being a racist and a
member of the Klu Klux Klan, and of having been paid off to sentence the defendant to three
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years’ imprisonment. Minor, 281 Ill. App. 3d at 569-71, 667 N.E.2d at 539-40. This court found
that the defendant’s accusations that the trial judge was racist and a member of the Klu Klux
Klan, alone, were enough to support a finding of direct criminal contempt because they were
“clearly calculated to derogate from the court’s dignity, to embarrass the court, and to bring the
administration of law into disrepute.” Minor, 281 Ill. App. 3d at 575, 667 N.E.2d at 543. See
also People v. Baxter, 50 Ill. 2d 286, 278 N.E.2d 777 (1972) (holding that summary finding of
direct criminal contempt and one-year sentence were proper where the defendant filed a pro se
petition for substitution of judge alleging that the trial judge was part of a criminal conspiracy to
find him guilty).
Here, Lynch sought substitution of Judge White for cause, claiming that Judge White
could not be impartial because he had accepted bribes from the crime family. Lynch was given
the opportunity to substantiate his allegations at the hearing on his motion for substitution of
judge and was repeatedly warned that he bore the burden to substantiate his allegations. Lynch
should have also been aware that the D’Agostinos had repeatedly urged the court to hold him in
direct criminal contempt for making false accusations.
Nevertheless, Lynch refused to present any direct evidence of wrongdoing by Judge
White publicly, claiming that to do so would place people at risk of being murdered by the crime
family. The only evidence Lynch did present consisted of his own testimony and the testimony
of Dr. Sheila Mannix. However, Mannix did not give any testimony regarding Judge White, and
when asked whether she could, she responded that she could not. The only testimony that Lynch
gave to substantiate his accusations against Judge White consisted of hearsay. Specifically,
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Lynch testified that an individual to whom he would only refer as “Informant X” had told him
that Judge White was receiving bribes through an Arizona limited liability corporation called
Five Whites, LLC. Lynch also presented a printout from the Web site of the Arizona
Corporation Commission’s Public Access System, which indicated that an Alexander and Esther
M. White of Apache Junction, Arizona, were officers and directors of Five Whites, LLC.
Judge McNamara repeatedly reminded Lynch, during his testimony and during Mannix’s
testimony, that he needed to support his allegations and warned him that the evidence he was
presenting did not support his allegations. Ultimately, Judge McNamara found that Lynch had
failed to adduce any evidence to support his allegations and characterized Lynch’s motion as
“wild fabrication” designed to hold the court up to ridicule.
We find that all of the above conduct, including Lynch’s filings and what occurred before
Judge McNamara at the hearing on Lynch’s motions, was calculated to disrupt court proceedings
and bring the administration of law into disrepute. See, e.g., Minor, 281 Ill. App. 3d at 575, 667
N.E.2d at 543. First, Lynch’s actions had the effect of harassing the court and the litigants
appearing before it, and of obstructing the D’Agostinos in their effort to collect their judgment
against Lynch. As the transcript of the August 10, 2006, hearing, which Lynch attached to his
motion for substitution of judge, discloses, the D’Agostinos had repeatedly sought turnover from
Lynch. Their first request for turnover was postponed when Lynch filed a bankruptcy petition
the day before the court was to conduct a hearing on their request. When the proceedings
reconvened, and the D’Agostinos were once again arguing their request for turnover, Lynch
announced that he would be filing a motion for substitution of judge. Lynch’s conduct in
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requesting a substitution of judge for cause based on such far-flung allegations at this point in the
proceedings may only be viewed as gamesmanship calculated to further delay payment of the
$1.8 million judgment against him. Thus, Lynch’s conduct has obstructed the court’s
administration of justice.
Second, Lynch made unsubstantiated allegations of criminal misconduct against Judge
White, the D’Agostinos, and their counsel. Lynch was given an opportunity to substantiate his
allegations against Judge White at the hearing on his motion for substitution of judge, but he
refused to do so. Lynch also failed to present any evidence to show how the D’Agostinos and
Braun bribed Judge White or how they were connected to the mob. The court ultimately found
Lynch’s allegations to be false. As the circuit court found, Lynch’s unsubstantiated accusations
may only be viewed as an attempt to embarrass the court and derogate from its dignity.
Further, we do not believe that this is merely a case of “judicial thin skin,” in which a
judge is reacting to derogatory remarks directed at her. Cf. Minor, 281 Ill. App. 3d at 575-76,
667 N.E.2d at 543 (Wolfson, J., dissenting). Lynch’s allegations were directed at Judge White
and not Judge McNamara, who heard Lynch’s motion for substitution of judge. We therefore
find that the circuit court’s finding of direct criminal contempt was supported by sufficient
evidence.
Lynch also contends that the circuit court’s finding of contempt violates his first
amendment right to freedom of speech. We disagree.
The public interest in the integrity and competence of the judicial process requires that
courts and judges not be shielded from “wholesome exposure.” People v. Goss, 10 Ill. 2d 533,
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544, 141 N.E.2d 385, 390 (1957). To that end, the United States Supreme Court has declared
that freedom of speech and freedom of the press should not be impaired through the exercise of a
court’s contempt power unless there is “ ‘no doubt that the utterances in question are a serious
and imminent threat to the administration of justice.’ ” People v. Hathaway, 27 Ill. 2d 615, 618,
190 N.E.2d 332, 334 (1963), quoting Craig v. Harney, 331 U.S. 367, 373, 91 L. Ed. 1546, 1551,
67 S. Ct. 1249, 1253 (1947). Thus, “the first amendment forbids the punishment by contempt for
comment on pending cases in the absence of a showing that the utterances created a ‘clear and
present danger’ to the administration of justice.” Hathaway, 27 Ill. 2d at 618, 190 N.E.2d at 334.
We further note that although the so-called “clear and present danger” test was developed in
cases dealing with out-of-court conduct by the press, it applies equally to cases dealing with in-
court conduct by individuals. See, e.g., Eaton v. City of Tulsa, 415 U.S. 697, 698, 39 L. Ed. 2d
693, 695, 94 S. Ct. 1228, 1229 (1974) (considering whether a finding of direct criminal contempt
against a individual who referred to his alleged assailant as “chicken-shit” in his testimony
violated the first amendment).
Comments that are systematically designed to thwart the judicial process constitute a
“clear and present danger” to the administration of justice. See Goss, 10 Ill. 2d at 544, 141
N.E.2d at 390. Accordingly, the Illinois Supreme Court has found repeated comments made on a
television talk show accusing a party to a court proceeding of being a member of the mob and of
being from a “family ‘with court-admitted hoodlum connections,’ ” which were intended to
interfere with the court proceeding, were not protected exercises of free speech and were
amenable to contempt. Goss, 10 Ill. 2d at 537, 141 N.E.2d at 391.
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Although no Illinois cases have considered whether motions or comments made in court
accusing judges of being corrupt would constitute a “clear and present danger” to the
administration of justice, the Indiana Court of Appeals has considered this specific issue in
Skolnick v. State, 180 Ind. App. 253, 388 N.E.2d 1156 (1979). Therein, Skolnick, an attorney,
was called to testify as a witness and during his testimony, he accused the trial judge of being
corrupt and to have breached judicial ethics. Skolnick, 180 Ind. App. At 259-60, 288 N.E.2d
at1161-62. Skolnick further stated that he was the head of a citizens group that had been
investigating corrupt judges for years and accused the judge of questioning him in order to
discredit him in his efforts to “clean up the court.” Skolnick, 180 Ind. App. At 259-60, 288
N.E.2d at1161-62. In discussing the “clear and present danger” test, the Indiana Court of
Appeals observed that “ ‘[s]o long as critics [of court] confine their criticism to facts and base
them upon the decisions of the court, they commit no contempt no matter how severe the
criticism may be; but when they pass beyond that line and charge that judicial conduct was
influenced by improper, corrupt, or selfish motives, or that such conduct was affected by political
prejudice or interest, the tendency is to poison the foundation of justice and create distrust, and
destroy the confidence of the people in their courts.’ ” Skolnick, 180 Ind. App. at 267, 388
N.E.2d at 1166, quoting Ray v. State, 186 Ind. 396, 404, 114 N.E. 866, 869 (1917). The court
went on to hold that the first amendment cannot be invoked to shield those who make
accusations of judicial corruption from contempt charges because such conduct crosses the
boundary between protected judicial criticism and conduct posing a serious and imminent threat
to the administration of justice. Skolnick, 180 Ind. App. at 267-68, 388 N.E.2d at 1166.
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We find this rationale to be particularly true where, as here, the accusations against the
judiciary are unsubstantiated and have been found to be false. As we explained above, Lynch’s
allegations of judicial misconduct were wholly unsupported by evidence and were calculated to
interfere with the judicial proceedings. See, e.g., Goss, 10 Ill. 2d at 546, 141 N.E.2d at 391.
Significantly, Lynch’s actions served to obstruct the administration of justice by hindering the
D’Agostinos in their efforts to collect their judgment against Lynch. As such, Lynch’s conduct
was far more egregious than the conduct at issue in Skolnick. We also observe that Lynch has
not claimed that his conduct was political expression or opinion. We therefore find that Lynch’s
unsubstantiated accusations against Judge White constituted a “clear and present danger” to the
court’s administration of justice. Therefore, his motions and his presentations in support thereof
were most certainly not constitutionally protected exercises of free speech.
For these reasons, we affirm the order of the circuit court of Cook County finding Lynch
to be in direct criminal contempt and sentencing him to 60 days’ imprisonment. The stay of the
circuit court’s contempt order, which was entered by this court on October 26, 2006, shall
continue pending the filing of a petition for rehearing. If no petition for rehearing is filed, the
stay will be automatically dissolved upon the expiration of 21 days from the date of the filing of
this opinion. If a rehearing petition is filed, the stay will continue pending the disposition of the
petition for rehearing.
Affirmed.
QUINN, P.J., and GREIMAN, J., concur.
19
REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
_________________________________________________________________
MARY CARR D’AGOSTINO and
MARIO D’AGOSTINO,
Plaintiffs and Counterdefendants-Appellees,
v.
MICHAEL W. LYNCH,
Defendant and Counterplaintiff and
Third-Party Plaintiff and Contemnor-Appellant,
(Michigan Avenue Partners, LLC, and Michigan
Avenue Partners, Inc.,
Defendants and Counterplaintiffs and
Third-Party Plaintiffs,
v.
Dominic Forte,
Third-Party Defendant).
________________________________________________________________
No. 1-06-3026
Appellate Court of Illinois
First District, Third Division
Filed: April 2, 2008
_________________________________________________________________
PRESIDING JUSTICE THEIS delivered the opinion of the court.
Quinn, P.J., and Greiman, J., concur.
_________________________________________________________________
Appeal from the Circuit Court of Cook County
Honorable Paddy McNamara, Judge Presiding
_________________________________________________________________
For CONTEMNOR- Thomas Anthony Durkin
APPELLANT Durkin & Roberts
53 West Jackson Blvd.
Suite 615
Chicago, IL 60604
For COUNTER- Michael A. Braun
DEFENDANTS- Lee M. Weisz
APPELLEES 33 North Dearborn St.
Suite 500
Chicago, IL 60602