dissenting:
In their zeal to assure the full protection of the constitutional right to the representation of counsel the majority has glossed over and disregarded a case of true, glaring and flagrant contempt of court.
I have no quarrel with the reversal of the contempt finding as to Mr. Coleson on any count or as to attorney Hogan with regard to Count I. However, I disagree with the majority’s reversal of the finding of contempt by attorney Hogan under Counts II and III and I accordingly respectfully dissent.
The majority opinion reverses the conviction of attorney Hogan as to Counts II and III because of their finding that there was no evidence that attorney Hogan filed the civil complaint for damages against Judge Kunce with an “intent to obstruct justice.” The majority premise their discussion of attorney Hogan’s contempt under Counts II and III of the citation with the statement that: “* 6 ° the State must prove beyond a reasonable doubt by extrinsic evidence that the defendant filed the complaint with intent to obstruct justice.” This is not the applicable standard in Illinois and is a misstatement of the law. Although they refused to apply the rule to attorney Hogan under Counts II and III the majority properly stated earlier in their opinion that contempt of court is generally defined as conduct calculated to embarrass or obstruct a court in its administration of justice or to derogate from its authority or dignity, or bring the administration of law into disrepute. (People v. Jashunsky, 51 Ill. 2d 220, 282 N.E.2d 1; In Re Estate of Melody, 42 Ill. 2d 451, 248 N.E.2d 104.) The majority opinion ignores a consideration of the acts of attorney Hogan with regard to this standard and applies instead a rule they presumably have taken from United States v. Seale, 461 F.2d 345 (7th Cir. 1972). In the Seale case the court discussed whether the acts of the respondent there came within the ambit of a Federal statute dealing with contempt. The statute is 18 U.S.C. §401(1) (1970) and it provides that a district judge has power to summarily punish “[mjisbehavior of any person in its presence or so near thereto as to obstruct the administration of justice.” The Federal statute lists four requirements to support a contempt conviction: (1) the conduct must constitute misbehavior; (2) the misbehavior must rise to the level of an obstruction to the administration of justice; (3) the conduct in question must be in the court’s presence or so proximate that it obstructs the administration of justice, and (4) there must be an intent to obstruct.
It thus appears that the majority has lifted their requirement for a finding of contempt from the second and fourth elements of contempt under the Federal statute. Such criteria are without precedent in Illinois and inject an entirely new standard for determining whether contempt of court has been committed.
Developing the improper standard for establishing contempt, the majority state that there are two basic parts to criminal contempt, “a mens rea and an actus reus.” They cite Estate of Melody, Seale, and United States ex rel. Robson v. Oliver, 470 F.2d 10 (7th Cir. 1972), as authority for their description of the “mens rea” and “actus reus” required for a contempt finding. The cases cited neither discuss nor make any reference to a “mens rea” or “actus reus” aspect of contempt.
Even if the criteria of the Federal statute governed here, the majority disregarded the general rule for finding intent. The Illinois rule is that intent is a state of mind, and, if not admitted, can be shown by surrounding circumstances. (People v. Koshiol, 45 Ill. 2d 573, 262 N.E.2d 446.) Intent must ordinarily be proved circumstantially, by inferences drawn from conduct appraised in its factual environment. (People v. Johnson, 28 Ill. 2d 441, 192 N.E.2d 864.) And under the Federal statute the rule for determining whether the requisite intent exists is similar to that in Illinois as shown by the following from the Seale case:
“The minimum requisite intent is better defined as a volitional act done by one who knows or should reasonably be aware that his conduct is wrongful. [Citations.] Of course, an actual design to subvert the administration of justice is a more grievous and perhaps more culpable state of mind, but proof of such an evil motive is unnecessary to establish the required intent. [Citation.] Certainly, the most obvious source from which this intent can be ascertained is the trial transcript. [Citations.] Indeed, some conduct depicted therein will itself carry sufficient indicia of intent to satisfy the Government’s burden of proof on this issue.” 461 F.2d 345, 368-69.
The Rule to Show Cause which Judge Kunce filed asserted that the complaint for civil damages filed by attorney Hogan on behalf of Coleson was not filed in good faith to obtain the relief prayed for, but so as to hinder, delay or impede the administration of criminal justice and to interfere with judicial processes and embarrass the court so as to lessen the court’s dignity and authority.
I believe the assertions of the Rule were well founded in law and established in fact and that attorney Hogan was properly found guilty of contempt and the judgment of the trial court should be affirmed.
The contemptuous act of attorney Hogan was his serving as attorney for Coleson in the fifing of a civil suit for damages against Judge Kunce before whom Coleson was being prosecuted for the crime of perjury, while that criminal case was still pending. Such action is without question a direct attack upon the integrity of the court. The act speaks for itself and was obviously calculated to embarrass, hinder and obstruct the court in its administration of justice and did derogate from its authority and dignity and bring the administration of law into disrepute.
The majority assert in their opinion that the State introduced “no evidence whatsoever” in support of the charges other than the verified contempt citation. But that is not true. The record shows that the civil complaint for damages against Judge Kunce was attached to and incorporated in the Rule to Show Cause that contained the charges of contempt made against attorney Hogan, and that this complaint was admitted into evidence by stipulation of the parties. Moreover, throughout the contempt hearing attorney Hogan, through his attorney, admitted the filing of the complaint against Judge Kunce while the criminal case against Coleson was pending. No further evidence of attorney Hogan’s contempt is required.
In this case written specifications of the acts constituting the contempt were filed (the Rule to Show Cause), respondent Hogan was notified, and a hearing was held at which Hogan was present and represented by counsel. After fifing the Rule to Show Cause Judge Kunce properly recused himself from the case and it was assigned to another judge who conducted the hearing. Thus, attorney Hogan was accorded due process of law in this proceeding. People v. Skar, 30 Ill. 2d 491, 198 N.E.2d 101; Mayberry v. Pennsylvania, 400 U.S. 455, 27 L. Ed. 2d 532, 91 S. Ct. 499; United States v. Seale.
Admittedly the language used in the complaint for civil damages was not per se contemptuous — but that is not the nexus of the contemptuous act. We are not concerned here with the rule which holds that the mere fifing with the clerk of the court any document containing contemptuous matter is sufficient to constitute direct contempt as in In re Estate of Kelly, 365 Ill. 174, 6 N.E.2d 113.
The civil suit for damages which attorney Hogan filed on behalf of Coleson arose out of alleged grievances over the fixing of bail bond in the case of Coleson’s prosecution. But Judge Kunce did not fix any bond and had no part in fixing any bond; neither did he consider any motion nor make any ruling regarding Coleson’s bond. This is reflected in the civil suit for damages filed against Judge Kunce by attorney Hogan on behalf of Coleson. That suit named the State’s Attorney of Alexander County, two other judges in addition to Judge Kunce (who was named “individually, as tort feasor, and, as judge of the First Judicial Circuit Court of Illinois”) and the circuit clerk of Alexander County. Paragraphs 6, 7 and 8 of that complaint contained the only reference to Judge Kunce and they were as follows:
“6. That on June 28, 1973, at arraignment, the Hon. Peyton Kunce, acting without sufficient legal authority with knowledge of the state of the record in 73—CF—11 and 73—CF—22, and, in excess of his authority as Judge purported to exercise the administrative authority of the Illinois Supreme Court to effect an administrative flowing together of cases 73—CF—11 and 73—CF—22, cases he knew to be substantially different as to subject matter and parties.
7. That at the time the Honorable Peyton Kunce purported, on June 28, 1973, to exercise the administrative authority aforesaid, the Honorable Roy O. Gulley, Administrator of the courts of the State of Illinois, either had not authorized the Honorable Peyton Kunce to so act, or, if authorization was given to the Honorable Peyton Kunce it was invalid and without delegation or other basis in law.
8. That the purported exercise of administrative authority by the Hon. Peyton Kunce was also, at the instigation of the Hon. W. C. Spomer and was an aggravation of and a knowing continuation of the wrongful attachment and false imprisonment of the substantial portion of Plaintiff*s person alleged in paragraph 2 above.”
It is readily apparent from these allegations that attorney Hogan and Mr. Coleson could have litigated their bond issue without Judge Kunce as a party defendant since Kunce never took any part in the bond fixing process. The sole allegation against Judge Kunce was that he “purported to exercise the administrative authority of the Illinois Supreme Cotut to effect an administrative flowing together of cases 73—CF—11 and 73—CF—22 ° ° ° .” In short, Judge Kunce granted the State’s motion to consolidate. For this, he was sued for damages in a civil case, while consolidated cases 73—CF—11 and 73—CF—22 were yet pending before him, for *100,000. The action of attorney Hogan in filing the civil complaint was a patent absurdity and he should be held accountable for his attack against the court. If Coleson was innocent of the perjury charge, if the court before whom he appeared erred, even grievously so, if a miscarriage of justice had occurred, then plainly Coleson had his remedy in his right to appeal and attorney Hogan, representing Coleson, well knew this. Bringing a civil suit for damages against a judge because of his ruling in a pending case is not an available mode of relief for a litigant. While the judiciary may be subject to just criticism for their rulings and behavior, they enjoy immunity from civil suits based upon their judicial actions. Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 20 L. Ed. 646; In re Mason, 33 Ill. 2d 53, 210 N.E.2d 203; People ex rel. Chicago Bar Association v. Standidge, 333 Ill. 361, 164 N.E. 844.
We need not be concerned with whether attorney Hogan filed a complaint with intent to hinder, impede or embarrass the court, or to derrogate from its authority or dignity, or bring the administration of law into disrepute. It is well settled that whether a direct contempt has been established depends upon the action and not the alleged intention of the offending party. (People v. Denson, 59 Ill. 2d 546, 322 N.E.2d 464; Anderson v. Macek, 350 Ill. 135, 182 N.E. 745; Kneisel v. Ursus Motor Co., 316 Ill. 336, 147 N.E. 243.) The Anderson and Kneisel cases are particularly apt since they involved acts constituting a direct contempt occurring outside the presence of the court.
Courts should require that practicing attorneys have a higher regard for administration of justice than that which is required of laymen. (In re Estate of Kelly.) Attorney Hogan’s conduct in the filing of this civil suit for damages is so flagrant and outrageous that no precise precedent can be found. Clearly the filing was not in good faith as to Judge Kunce since he had nothing to do with the bond in Coleson’s case. The only conclusion which can be drawn from the flagrant misbehavior of attorney Hogan is that it was deliberately calculated to impede the orderly administration of justice. His conduct assailed the dignity and authority of the court, and it possessed the inherent power to punish him for contempt. I would affirm the finding of contempt against attorney Hogan under Counts II and III of the Rule to Show Cause.