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  Contempt -- Contact with Third Parties

Chicago Daily Law Bulletin
October 11, 1993

The Illinois Appellate Court, 1st District, 2d Division, has affirmed a ruling by Judge Jerome Lerner.

Plaintiffs "John and Jane Doe" filed an action in 1989 alleging that their son, Richard, while enrolled at a school run by the Catholic Bishop of Chicago, was sexually abused by a church pastor and the school principal.

The plaintiffs hired Richard O'Brien, a private investigator, to gather evidence to support their allegations. O'Brien interviewed David Nolan, who gave a sworn statement saying that he had been sexually abused by the principal and a priest when he was enrolled at another school run by the Catholic Bishop.

Nolan later made a second sworn statement in which he recanted the earlier statement. He said that O'Brien, the investigator, had offered him $ 10,000 to make false allegations and coached him in making the allegations.

In November 1990, Nolan contacted the Catholic Bishop's counsel and said that the investigator had been trying to contact him. He said he felt threatened by the investigator's efforts to harass and "track him down."

The defendants then filed a motion in the trial court seeking an order requiring the plaintiffs to stop harassing third-party witnesses. They also sought a prohibition on the plaintiffs and their agents from interviewing the bishop's personnel unless they were approved.

The trial court ordered that the plaintiffs and their agents were prohibited from contacting Nolan until after the disposition of the motion. The plaintiffs responded by moving for sanctions against the defendants for bringing Nolan's allegations to the court's attention.

The trial court delayed a ruling on the bishop's motion pending an investigation by the state's attorney's office. The state's attorney in July 1991 announced that it was declining any criminal prosecution.

In September 1991, Nolan called Doe, an attorney, at his office and left a message that it was important that Doe return the call. When Doe received the call, he believed that the court's December 1990 order barred him from returning the call. But he testified that as an attorney and officer of the court, he believed that he had a duty to determine the nature of the call because it might have involved the commission of a felony. He then instructed his secretary to return the call in order to find out what Nolan wanted.

The secretary was unable to reach Nolan. Doe later asked a friend, who also was a private investigator, to return Nolan's call to find out what he wanted. The investigator returned the call while in Doe's law office and on a speaker phone that allowed Doe to hear the call. Doe also admitted that he also talked to Nolan, who said he had new information about the priest he had earlier complained about.

The defendants learned of the contact, and on Nov. 20, 1991, they alleged that Doe had violated the court's order prohibiting contact with Nolan. They filed a petition for a rule to show cause for civil contempt, a petition for adjudication of criminal contempt and a motion for sanctions.

The trial judge issued the rule to show cause and on Feb. 20, 1992, found Doe in civil contempt of court for violating the December 1990 order. The court ordered Doe to pay $ 500 in costs to the court.

Doe appealed, claiming that the court's order barring the contact with Nolan was not in effect when the contact took place; the order was not sufficiently clear to support a contempt finding; the court erred in holding that the order prohibited contact between him and Nolan regardless of who initiated the contact and his due process rights were violated by the indefinite life-span of the order.

The appeals court affirmed. The court said that the order was in effect at the time the contact occurred. The court also said that the order must not have been clear enough because Doe knew the order remained in effect but chose to ignore it. In addition, the court found that because a person protected by a court order cannot waive that protection, the person who initiated the contact was irrelevant to whether Doe violated the order. The court concluded that Doe waived his due process argument by failing to raise it in the trial court.

Richard Doe v. Robert J. Lutz, et al., No. 1-92-2003. Justice Gino L. DiVito wrote the court's opinion with Justices Allen Hartman and Anthony Scariano concurring. Released Sept. 7, 1993. (11 pages)

 
 

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