Cesena v. Du Page County

582 N.E.2d 177, 145 Ill. 2d 32, 163 Ill. Dec. 911, 1991 Ill. LEXIS 90
CourtIllinois Supreme Court
DecidedOctober 17, 1991
Docket70915
StatusPublished
Cited by40 cases

This text of 582 N.E.2d 177 (Cesena v. Du Page County) is published on Counsel Stack Legal Research, covering Illinois Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cesena v. Du Page County, 582 N.E.2d 177, 145 Ill. 2d 32, 163 Ill. Dec. 911, 1991 Ill. LEXIS 90 (Ill. 1991).

Opinion

JUSTICE BILANDIC

delivered the opinion of the court:

Jeffrey B. Fawell, an attorney licensed to practice law in Illinois, appeals from an order of the circuit court of Du Page County finding him in direct civil contempt of court for refusing to comply with a discovery order. The circuit court imposed a $1,000 fine for each day that Fawell continues in his refusal to comply with the discovery order. The circuit court directed Fawell to answer certain deposition questions. These questions pertained to the contents of an accident report which Fawell unsuccessfully attempted to file with the Du Page County sheriff’s department on behalf of one of his clients, John Doe (the identity of this client remains unknown). The questions were asked during Fawell’s discovery deposition conducted by counsel for plaintiff, Marisu Cesena, administrator of the estate of Timothy J. Golden, deceased (the estate). Fawell asserted that the questions sought confidential information protected by the attorney-client privilege. The circuit court disagreed and found Fawell in contempt of court. The appellate court, with one justice specially concurring, affirmed the trial court’s contempt finding and reduced the fine to $100 per day. The appellate court held that the attorney-client privilege was waived (201 Ill. App. 3d 96). This court granted Fawell’s petition for leave to appeal (134 Ill. 2d R. 315). Amicus curiae briefs were filed by the Illinois State Bar Association and the National Association of Criminal Defense Lawyers.

The facts which give rise to Fawell’s contempt citation are unusual. At approximately 10:30 p.m., on September 28, 1987, John Doe was driving a vehicle which struck and killed a pedestrian, Timothy Golden. The accident occurred on Interstate 88, in Naperville, DuPage County, Illinois. John Doe failed to stop his vehicle, identify himself or render aid to Golden.

Shortly thereafter, John Doe contacted and met with Fawell regarding this accident. The consultation took place in Fawell’s law office at 12:15 a.m., September 29, 1987, which was approximately 1 hour and 45 minutes after the accident had occurred. Fawell advised John Doe that his failure to stop at the scene of the accident was a misdemeanor (hit-and-run statute). (Ill. Rev. Stat. 1987, ch. gS1^, pars. 11 — 401(a), (c).) Fawell further advised John Doe that, pursuant to another statute (the reporting statute), he had less than 1 hour and 15 minutes to file an accident report at the office of the sheriff of Du Page County (Ill. Rev. Stat. 1987, ch. 95V2, par. 11—401(b)) or else he would also be subject to felony charges for failure to timely file an accident report (Ill. Rev. Stat. 1987, ch. 951k, par. 11 — 401(d)). Fawell explained that, if John Doe filed a timely accident report, John Doe would not be subject to felony criminal charges, pursuant to the reporting statute, and the accident report could not be used against John Doe in any misdemeanor prosecution for violating the hit-and-run statute (Ill. Rev. Stat. 1987, ch. 95V2, par. 11—401(b)).

Pursuant to this advice, John Doe related the information required by the reporting statute to Fawell, who composed a written accident report containing this infermation. Fawell and John Doe then proceeded directly across the street from Fawell’s law office to the sheriff’s office, with the intention of filing the accident report and thereby complying with the reporting statute.

Fawell and John Doe arrived at the sheriff’s office at approximately 12:50 a.m. Fawell approached the service window, which was similar to a walk-up bank facility window with thick glass and a U-shaped opening under the window. John Doe was standing in the general vicinity of this service window. Fawell attempted to read the contents of the report to Deputy Sheriff Mitchell Paine. However, upon hearing that the accident occurred on the interstate, Deputy Paine motioned for Fawell to stop reading the accident report and told Fawell that the sheriff’s department was not the proper place to file the report. Paine erroneously informed Fawell that he must file the report with the State police and that Fawell had up to 48 hours after the accident to do so. Fawell informed Deputy Paine that the reporting statute permitted him to file the accident report at the sheriff’s department and that the report must be made within three hours of the accident.

Again, Fawell attempted to read the contents of the report to Deputy Paine, who interrupted Fawell and refused to permit him to orally make the report. Fawell then twice attempted to submit the written document by thrusting it through the U-shaped opening of the window. Each time, Fawell’s attempt was thwarted by Paine, who stopped the document by placing his hand in front of it. Frustrated in their attempts to comply with the reporting statute, Fawell and his client left the sheriff’s department, taking the written accident report with them.

Upon returning to his law office, Fawell called the State police and informed them, “for humanitarian reasons,” of the location and time of the accident, without conveying the name of his client. Thereafter, Fawell received three telephone calls, one from an Illinois State police officer, and two from Du Page County assistant State’s Attorneys, requesting the identity of his client. On each occasion, Fawell refused to identify his client, maintaining that he had made a timely accident report as required by the reporting statute.

The State’s Attorney of Du Page County then commenced a grand jury investigation relating to the accident. A grand jury subpoena duces tecum was issued and served upon Fawell, commanding him to give testimony as to the accident and the identity of his client. The subpoena further requested Fawell to submit the written accident report prepared by him on September 29, 1987, for examination by the grand jury. Fawell filed a motion to quash the subpoena, asserting that the communications were protected by the attorney-client privilege. On October 28, 1987, after holding an evidentiary hearing, the circuit court of Du Page County granted Fawell’s motion to quash the subpoena duces tecum.

On September 28, 1988, plaintiff, as administrator of the estate of Timothy Golden, filed the instant civil action against defendants, Du Page County, the sheriff of Du Page County and Deputy Mitchell Paine. Plaintiff’s complaint essentially alleges that defendants’ refusal to accept John Doe’s accident report constituted wilful and wanton conduct. The estate alleged that defendants’ conduct rendered the estate unable to exercise its legal rights against John Doe because the estate was unable to determine John Doe’s identity.

In connection with this civil litigation, on March 10, 1989, plaintiff’s counsel conducted the discovery deposition of Fawell. At his deposition, Fawell stated that he still possessed the accident report which he prepared on September 29, 1987. Fawell refused to answer certain deposition questions pertaining to the contents of the accident report, asserting the attorney-client privilege.

Plaintiff filed a motion to compel Fawell to answer the deposition questions directed to the contents of the accident report. On August 28, 1989, the circuit court granted plaintiff’s motion and ordered Fawell to answer the deposition questions. Fawell refused and, on August 29, 1989, the trial judge issued the contempt citation and fine at issue in the instant action.

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Cite This Page — Counsel Stack

Bluebook (online)
582 N.E.2d 177, 145 Ill. 2d 32, 163 Ill. Dec. 911, 1991 Ill. LEXIS 90, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cesena-v-du-page-county-ill-1991.