LAKE COUNTY BAR ASSOCIATION
FAMILY LAW SEMINAR

MEMPHIS, TENNESSEE
APRIL, 2010

GARY L. SCHLESINGER
With help from
MICHAEL STRAUSS

LIBERTYVILLE, IL

WWW.ILLINOIS-FAMILY-LAWYER.COM

WHAT IS AN EMERGENCY?

There is no statutory or court rule definition.

Local rule 2.05 deals with the procedure and notice for an emergency motion.

2.05 EMERGENCY MOTIONS
A. Application for emergency relief. If emergency relief is requested, application shall be made to the assigned judge, or if unavailable, to the judge specifically assigned to sit in his stead. If neither judge is available, application shall be made to the presiding judge of the division to which the case is assigned.

B. Each application for emergency relief shall be accompanied by an affidavit of the movant or movant's attorney stating the reason for emergency relief; and, in cases where the request is without notice, except as permitted by law, said affidavit shall state what attempts have been made to notify opposing counsel or the opposing party. Failure to attach said affidavits to the request for emergency relief may be grounds for denial of the motion.

C. Every complaint or petition requesting an ex parte order for the appointment of a receiver, temporary restraining order, preliminary injunction, or any other emergency relief, shall be filed in the Office of the Circuit Clerk, if during court hours, before application to the court for the order.

D. If a motion is heard without prior notice under this rule and any respondent or other party fails to appear, a copy of the orders entered at the hearing shall be served personally, or by US Mail upon all parties not theretofore found by the Court to be in default for failure to plead, and proof of service thereof shall be filed with the Clerk of the Court within two (2) days of the hearing thereon.

E. Counsel shall use every reasonable effort to notify opposing parties or counsel of entry of each Order, at the earliest opportunity.

11.10 EMERGENCY MOTIONS
An Emergency Motion shall be labeled as such and shall be heard only if the Court first determines that an emergency exists and that reasonable attempts at notice have been made. Any emergency motion shall be verified and state the nature of the emergency as well as when the emergency arose. A party and/or his or her counsel who respond to a motion propounded as, but found not to be an emergency may be entitled to reimbursement by the proponent of actual expenses, fees and costs incurred in responding to the said motion.

A Lexis search for emergency motion reveals 89 reported decisions. One that defines emergency is Opty's Amoco, Inc. v. Village of South Holland. 149 Ill. 2d 265 (1992).

"Emergency" has been defined as:
"A sudden unexpected happening; an unforeseen occurrence or condition; perplexing contingency or complication of circumstances; a sudden unexpected occasion for action; exigency; pressing necessity. Emergency is an unforeseen combination of circumstances that calls for [*278] immediate action." (Black's Law Dictionary 272 (5th ed. 1979).)

There is a first district opinion that says that to determine if something is an emergency, look to what is necessary for a temporary restraining order to issue. Nagel v. Gerald Dennen & Company. 272 Ill. App. 3d 516 (1995)

In the case at bar, plaintiff argues that Rule 2.2 of the circuit court of Cook County, providing for emergency motions, is inapplicable because no emergency existed. The parties have not cited to, nor has our research revealed, cases addressing the issues of what fact situation, under Rule 2.2., constitutes an emergency, whether some notice should have been given and, if notice was given, whether it was adequate in view of the stated facts proffered in support of the emergency motion. [***7] However, we find instructive those cases involving the issuance of a temporary restraining order or injunction.

It is well settled that "a temporary restraining order may be obtained without notice to an adverse party only if it 'clearly appears from specific facts shown by affidavit or *** complaint that immediate and irreparable injury, loss, or damage will result to the applicant before notice can be served and a hearing held thereon.'" Hirschauer v. Chicago Sun-Times (1989), 192 Ill. App. 3d 193, 201, 548 N.E.2d 630, 139 Ill. Dec. 245, appeal dismissed (1990), 131 Ill. 2d 559, 553 N.E.2d 396, 142 Ill. Dec. 882

"Injunctive relief, without notice, is an extraordinary remedy appropriate only under the most extreme and urgent circumstances. *** The critical inquiry in all cases is whether, during the period it takes to give notice, the opponent will take such measures as to destroy the substance of the litigation or otherwise obstruct the court from dealing effectively with the issues, and whether proper notice might have averted litigation by immediately testing the validity of the injunctive relief."

In those situations involving a temporary restraining order or an injunction, the requirement, that the moving party demonstrate that it will suffer irreparable harm before notice can be given and a hearing held on the merits, comports with the ordinary meaning of "emergency." It is also clear that even in emergency situations, "some notice, [***10] however informal, is greatly to be preferred to none at all." Skarpinski v. Veterans of Foreign Wars (1951), 343 Ill. App. 271, 275, 98 N.E.2d 858; see also Hirschauer, 192 Ill. App. 3d at 201, American Warehousing, 169 Ill. App. 3d at 715, and Sangamo Electric, 42 Ill. App. 3d at 565.

If an emergency is something that requires quick court action with less than the usual amount of notice, can there be an emergency petition for rule to show cause? The petition seeks to ask the court to enforce one of its orders by contempt proceedings. Our local court rule 13 is an excellent summary of the law of contempt. It is attached and the end of this article. A more detailed version of the law with many case citations is contained in the case of In re the Marriage of Betts, 200 Ill. App. 3d 26 (4th Dist. 1990). Shepardizing this case shows that it has been cited by 66 later Illinois cases and by various other State and Federal Courts. One must have a thorough knowledge of this case to do any contempt work. If you are not conversant with the case, become so.

There are four types of contempt, civil or criminal, direct or indirect, they are all defined in Betts and the rule. The definitions and differences are not important for this discussion.

Both Betts and Rule 13 detail the necessary procedure. In any of the contempt situations, the matter is started by filing a verified petition. If it shows a prima facie case that there is a valid court order that has allegedly been violated, then the court shall issue a rule to show cause which sets the matter for hearing and directs that notice be given to the respondent. See Rule 13 D 2 a. That is the only relief that can be granted upon the filing of the petition.

Notice is then served on the respondent informing him or her of the matter and of the hearing date. There cannot be an immediate hearing to determine contempt upon the filing of the petition. The only relief the court can grant at that time is to issue the rule to show cause and set a hearing date. Note that rule 13 D 2 c permits the respondent to file a written answer. (Should the respondent not file a response rather than an answer? Discuss among yourselves.)

Therefore, how can there be an emergency petition for rule to show cause if there is not any relief that can be granted other than to set a later hearing date? For instance, if a party was ordered not to withdraw funds from an account and does so, then perhaps the appropriate petition would be for an emergency injunction and not an emergency petition for rule to show cause. I believe that the law is that there cannot be an emergency petition for rule to show cause. Filing one will not give the relief your client needs quickly. Perhaps a petition for injunction or to enforce a prior order will get the relief needed.

Does the fact that the first available court date is 3 to 4 weeks away constitute an emergency? If so, then the case could be put on the call as an emergency and shorter notice than normal given. However, this does not appear to fall within the definition of emergency as defined in the two cases cited above.

Therefore, there cannot be an emergency notice and petition for rule to show cause. Courts should not entertain them as emergencies. The first thing the court is to do is to determine if the pleading and affidavit presents an emergency. If the court determines that there is no emergency, then the matter should be taken off the call and no other relief should be granted, including setting the case on the next available court date, even if 3 or 4 weeks hence.

If the court determines the matter is not an emergency, then pursuant to rule 11.10, " [a] party and/or his or her counsel who respond to a motion propounded as, but found not to be an emergency may be entitled to reimbursement by the proponent of actual expenses, fees and costs incurred in responding to the said motion." This does not occur enough. I have found that either the requirement to determine whether it is an actual emergency is ignored or when the court does find it not to be an emergency, it is simply set on another date with a briefing schedule.

The reality is that there are real emergencies that we as divorce practitioners have to deal with for our clients. Remember, if all people were calm, adult rational human being then we all would be unemployed. However, while real emergencies exist there are also proper ways to secure relief for your clients in those situations and emergency petitions for rule to show cause cannot be used for this purpose.

PART 13.00 CONTEMPT OF COURT
(Effective December 1, 2006)

RULE13.01 PROCEEDINGS IN CONTEMPT
A. Contumacious conduct defined. Contumacious conduct consists of verbal or non-verbal acts which:

1. Embarrass or obstruct the Court in its administration of justice or derogate from its authority or dignity;
2. Bring the administration of justice into disrepute; or
3. Constitute disobedience of a court order or judgment.

B. Direct criminal contempt defined. Contumacious conduct constitutes a direct criminal contempt if it is committed in such a manner that no evidentiary hearing is necessary to determine the facts establishing such conduct and is committed in an integral part of the Court while the Court is performing its judicial functions.

1. Court's alternatives. Upon the commission of an act constituting a direct criminal contempt, the Court may:

a. Summarily find the contemnor in contempt and impose sanctions instanter;
b. Summarily find the contemnor in contempt and impose sanctions within a reasonable time; or
c. Delay the finding of contempt and the imposition of sanctions until a later time. When the finding of contempt is delayed, the contempt proceeding shall be conducted in the same manner as an indirect criminal contempt as provided in Paragraph C of this rule.

2. Conduct specified/statement in mitigation. Prior to an entry of a finding of contempt, the Court shall inform the contemnor of the specific conduct forming the basis of the finding. Prior to the imposition of sanctions, the Court shall permit the contemnor an opportunity to present a statement in mitigation.
3. Sanctions. If the matter is heard without a jury and upon a finding of direct criminal contempt, the Court may impose a fine not to exceed five hundred dollars ($500.00), incarceration in a penal institution other than the penitentiary for a term not to exceed six (6) months, or both. If a jury finds the respondent guilty of contempt, the Court is not limited in the fine or incarceration it may impose. The Court, in the exercise of its discretion, may impose such other sanctions as it deems appropriate.
4. Written order required. Upon imposition of sanctions, the Court shall enter a written judgment order setting forth the factual basis of the finding and specifying the sanctions imposed.
5. When referral to another judge required. Where a controversy between the judge and the contemnor is integrated with the alleged contumacious conduct and embroils the judge to the degree that the judge's objectivity can reasonably be questioned, referral to another judge on both issues of contempt and of an appropriate sanction is required. In this event, the judge before whom the alleged contempt transpired shall specify in writing the nature of the alleged acts of contempt, shall direct that a record of the proceedings surrounding the said acts be prepared and shall transfer the matter to the appropriate assignment judge for assignment. The judge hearing the proceedings after the reassignment shall base his findings and adjudication of the contempt charge solely on the transferred written charge and the record.
6. Appeal. An appeal from a judgment of direct criminal contempt may be taken as in criminal cases. Upon the filing of a notice of appeal, the Court may fix bond and stay the execution of any sanction imposed pending the disposition of the appeal.

C. Indirect criminal contempt defined. A contumacious act constitutes an indirect contempt when it occurs outside the presence of the Court or in an area that is not an integral or constituent part of the Court, or the elements of the offense are otherwise not within the personal knowledge of the judge. A contumacious act committed in the presence of the Court, but not summarily treated as direct criminal contempt as provided in Paragraph B, may be prosecuted as an indirect criminal contempt.

1. Petition for adjudication. An indirect criminal contempt proceeding shall be initiated by the filing of a petition for adjudication of indirect criminal contempt. The petition shall be verified and set forth with particularity the nature of the alleged contemptuous conduct. The charge may be prosecuted by the State's Attorney or, if he declines, by an attorney appointed by the Court.
2. Notice of Hearing. If the Court finds that the petition sets forth allegations which support the charge, it shall set the matter for hearing and order notice be given to respondent. Notice of the hearing and a copy of the petition shall be served and returned in the manner as provided in Supreme Court Rule 105(b); or, in child support enforcement cases or if the Court so directs, the Clerk of the Court or petitioner's attorney may give notice by regular U.S. Mail, postage prepaid, to the respondent's last known address. If notice is made by regular U.S. Mail, proof of mailing notice shall be made a part of the record. Notice by personal service shall be served not less than seven (7) days prior to the hearing, and notice by U.S. Mail shall be mailed not less than ten (10) days prior to the hearing. In addition to the time, date and place of hearing, the notice shall include the following words in bold type: "YOUR FAILURE TO APPEAR AT THIS HEARING MAY RESULT IN YOUR ARREST." If the respondent fails to appear after due notice or if the Court has reason to believe the respondent will not appear in response to the notice, the Court may issue a bench warrant directed to the respondent. When a warrant issues, the Court shall set bail as authorized by criminal cases. The amount of bail shall be indicated on the order of attachment.
3. Explanation of respondent's rights. Upon the first appearance of the respondent, the Court shall inform the respondent of his right to:

a. Notice of the charge and of the time and place of the hearing thereon;
b. An evidentiary hearing, including the right to subpoena witnesses, confront the witnesses against him, and make a response to the charge;
c. Counsel and, if indigent, to the appointment thereof;
d. Freedom from self-incrimination;
e. The presumption of innocence;
f. Be proven guilty only by proof of guilt beyond a reasonable doubt; and
g. A trial by jury if the Court, prior to the commencement of the hearing, declares that a sentence of incarceration of more than six (6) months, a fine of more than $500.00, or both, may be imposed as a sanction upon a finding of guilty.

4. When referral to another judge required. Referral of the petition to another judge for the hearing on the issues of contempt and the imposition of sanctions is required where a controversy between the judge and the alleged contemnor is integrated with the alleged contumacious conduct and embroils the judge to the degree that the judge's objectivity may be reasonably questioned.
5. Statement in mitigation. Upon an adjudication of contempt, the judge shall afford the contemnor the opportunity to make a statement in mitigation prior to the imposition of any sanction.
6. Sanctions. The Court, in the exercise of its discretion, may impose sanctions as it deems necessary.
7. Written order required. Upon an adjudication of contempt, the Court shall enter a written judgment order setting forth the factual basis for the finding and specifying the sanctions imposed.
8. Appeal. An appeal from a judgment of indirect criminal contempt may be taken as in the case of direct contempt as specified in Paragraph B.6 of this rule.

D. Civil contempt defined. A contumacious act constitutes a civil contempt if:

1. The act consists of the failure to obey a court order or judgment; and
2. Coercive rather than punitive sanctions are sought to compel compliance with the order or judgment.

a. Petition for adjudication. A civil contempt proceeding shall be initiated by the filing of a petition for adjudication of civil contempt unless the act is committed in the presence of the Court. The petition shall be verified and set forth with particularity that portion of the court order that is alleged to have been violated and the nature of the violation. If the Court finds that the petition sets forth allegations which support the charge, it shall set the matter for hearing and order that notice be given to the respondent.
b. Notice. Notice of the hearing and a copy of the petition shall be served on the respondent and made of record in the manner specified in Paragraph C.2 of this rule. The provision of Part 15.01 of these rules shall apply to this notice. If, after notice, the respondent fails to appear, the Court may order a body attachment to issue and set bail.
c. Response/burden of proof. No later three (3) days prior to the hearing, the respondent may file a written answer denying, with specificity, any of the allegations, together with any affirmative defenses. Subsequent written or oral denials and affirmative defenses may be made only with leave of Court. Those allegations of the petition not specifically denied may be deemed admitted, and the remaining allegations in issue shall be proven by a preponderance of the evidence. If the basis of the charge of civil contempt is the failure of the respondent to make court ordered payments to the Clerk of the Court, the records of the Clerk shall be prima facie evidence of the amount paid and disbursed by the Clerk.
d. Method of hearing. Civil contempt proceedings shall be tried before the Court without a jury.
e. Sanctions. If the Court finds the respondent in civil contempt, it may continue the matter for a reasonable time before the imposition of sanctions or; it may impose sanctions forthwith. Prior to the imposition of sanctions, the contemnor shall have the right to make a statement in mitigation. Sanctions may include a continuing fine and/or incarceration in a penal institution other than a penitentiary. The sanctions imposed shall remain in full force and effect until the respondent purges himself of contempt or is otherwise discharged by due process of law. The Court may assess reasonable costs and attorney's fees against the contemnor.
f. Written order required. Upon an adjudication of civil contempt, a written judgment order shall be entered specifying the contumacious conduct, the sanction imposed, and the means by which the respondent may purge himself. A copy of the judgment shall be provided to the contemnor.
g. Appeal. An appeal from a judgment a civil contempt may be taken as in civil cases. Upon filing a notice of appeal, the Court may fix bond and may stay the execution of any sanction imposed pending the disposition of the appeal.