text:
    IN RE BENNY M. (The People of the State of Illinois, Appellant, v. Benny M., Appellee).
    Docket No. 120133
    Supreme Court of Illinois.
    Opinion filed November 30, 2017
    Lisa Madigan, Attorney General, of Springfield, and Joseph H. McMahon, State's Attorney, of St. Charles (David L. Franklin, Solicitor General, and Richard S. Huszagh, Assistant Attorney General, of Chicago, and Patrick Delfino, Lawrence M. Bauer, and Diane L. Campbell, of State's Attorneys Appellate Prosecutor's Office, of Elgin, of counsel), for the People.
    Veronique Baker, Ann Krasuski, and Laurel Spahn, of the Legal Advocacy Service of the Illinois Guardianship and Advocacy Commission, of Hines, for appellee.
   JUSTICE KILBRIDE delivered the judgment of the court, with opinion.

¶ 1 In this case, the trial court permitted the respondent to remain shackled during a hearing on the State's petition seeking to administer psychotropic medication involuntarily. The trial court granted the State's petition. The appellate court reversed the trial court's judgment, holding that the trial court erred in allowing respondent to be physically restrained during the hearing. For the following reasons, we reverse the appellate court's judgment.

¶ 2 I. BACKGROUND

¶ 3 After being found unfit to stand trial on a charge of domestic battery against his mother, the respondent, Benny M., was admitted involuntarily to the Elgin Mental Health Center. Respondent was medicated involuntarily and later found fit to stand trial. Respondent was transferred to the jail, stopped taking his psychotropic medication, and was again found unfit to stand trial. Respondent was then transferred back to the Elgin Mental Health Center, and the State filed the petition at issue in this case seeking to administer psychotropic medication involuntarily.

¶ 4 A hearing was held in Kane County circuit court on the petition on two separate days. On the first day, respondent was physically restrained while being transported, but the shackles were removed before he entered the courtroom. Dr. Donna Luchetta testified that she was a treating psychiatrist at the Elgin Mental Health Center and diagnosed respondent with schizoaffective disorder. Respondent suffered from several symptoms, including delusions that he did not have a mental illness and a belief that he did not need medication. Respondent also experienced severe mood swings with depressive periods followed by "elevated" periods when he would attempt to grab and kiss female interns.

¶ 5 Dr. Luchetta testified that respondent's condition and ability to function deteriorated when he did not take his medication. She noted that an order to treat respondent involuntarily expired the previous day and respondent was refusing medication. Following Dr. Luchetta's direct examination, the hearing was continued for two weeks.

¶ 6 When the hearing resumed, respondent was physically restrained, and his attorney asked for the shackles to be removed. The trial court inquired whether the shackles were necessary for security. The security officer stated that respondent was "listed as high elopement risk" and submitted a "patient transport checklist" to the court. The checklist was not admitted into evidence and is not included in the record on appeal. In response to the trial court's inquiry, respondent's attorney stated she had not reviewed the document. Respondent then stated,

"I just want to say something. High risk case for elopement, where am I going to go? I'm trapped. * * * I said I wanted to be here, and I was willing to even be present in this crap. This is kind of interesting. I mean I can laugh about it, too. I have a sense of humor."

The trial court then stated, "I will leave him in custody in the shape he is in now. The request is denied."

¶ 7 Respondent's attorney asked if respondent's right hand could be released to take notes and communicate with her during the hearing. Respondent interjected, "Do you think I am going to take the pen or something and try to stab someone with it?" The trial court stated, "There's obviously got to be a balance of whatever security feels is necessary and his ability to participate. Do you feel that he is unable to participate in the court proceedings * * * with his hands restrained?" Respondent's counsel replied that respondent was unable to participate with his right hand restrained. When the trial court asked respondent if he was right-handed, respondent stated he used both hands and asserted,

"I would try to use my left hand as well because I'm not saying most or everyone, but people tend to try different things, have to learn how to write with both. * * * If one hand is hurting or whatever, or for some reason, like if someone loses their hand * * * through amputation, they may be forced to use their left hand."

¶ 8 At that point, the trial court stated, "If there is need to take notes, I will consider your request." Respondent replied, "I'm speaking, which is even better." The trial court asked respondent's attorney to begin her cross-examination of Dr. Luchetta. When respondent continued to speak, the trial court urged him to listen to his attorney and stated, "If there is a need for you to be writing down some notes or things of that nature, I will consider it at that time. I'm trying to do the best to balance both the security information given to me and your ability to participate."

¶ 9 During cross-examination, Dr. Luchetta testified that respondent had refused to take his medication since the last involuntary treatment order expired 15 days prior and his condition was deteriorating. Respondent interrupted occasionally and commented on Dr. Luchetta's testimony. The trial court told respondent that his attorney was there to represent him and admonished respondent several times that he would be removed from the courtroom if he kept interrupting.

¶ 10 During his own testimony, respondent asserted that he had not been taking his medication because he did not have a mental illness. Respondent commented about the shackles, stating they were "very restrictive." When the judge told respondent he could step down from the witness stand, respondent stated, "If I am still able to walk. I just got up."

¶ 11 In its closing argument, the State observed that respondent's condition had deteriorated since the original hearing date two weeks earlier. The State noted that respondent was able to sit still without interrupting at the first hearing date, but he interrupted repeatedly when the hearing resumed following the continuance. When the State referred to respondent kissing an intern on the cheek without her consent, respondent interrupted the State's argument. The trial court advised respondent that he would be removed from the courtroom the next time he interrupted. The following exchange then occurred:

"[RESPONDENT]: It's crazy.
THE COURT: I will ask him to leave now, please.
[RESPONDENT'S ATTORNEY]: Judge, just for the record, he's been complaining about the shackles the whole hearing.
THE COURT: I have not heard that.
[RESPONDENT'S ATTORNEY]: He's been complaining to me.
THE COURT: I have heard him complain about the language that's being used to describe people. I have heard him interrupt and criticize or comment on what Dr. Luchetta has testified to. I have not heard that. I have heard out loud comments unrelated to the shackles."

¶ 12 The trial court added that "none of those items have ever been a problem for me." Respondent's counsel asserted, "But he has had to stand up because he's been in pain." Respondent stated, "I was talking about the peck I gave on the cheek," and the trial court asserted, "See what I mean? That's not shackle related." Respondent then complained that his restraints had been "tightened" and asked if they could be removed. As the security officer led respondent out of the courtroom, he asserted,

"This is why I'm suffering and deteriorating. I mean look at this. I'm walking like a cripple, and I'm not. As soon as I'm out of here, I will probably be back to being an athlete again, but I mean a little bit of pain, for sure, which I'm not going to be able to take medication for."

¶ 13 The State then finished its argument. In her closing argument, respondent's attorney asserted that respondent complained about the restraints, stood up several times during the hearing, and indicated he was having cramps. The trial judge responded, "I'm certain that those comments are not part of the record. I would have possibly addressed them if he had made them or you had made them on his behalf directly to me." Respondent's attorney stated, "I apologize. I should have." The trial court subsequently granted the petition allowing involuntary administration of psychotropic medication for a period not to exceed 90 days.

¶ 14 Respondent appealed the trial court's judgment, contending that he was denied a fair trial because he was shackled during the hearing. The appellate court acknowledged that the appeal was moot but agreed with respondent that it fell within both the public interest exception to mootness and the exception for issues capable of repetition, yet evading review. 2015 IL App (2d) 141075, ¶ 19, 400 Ill.Dec. 709, 48 N.E.3d 1149. The appellate court held that the trial court abused its discretion in shackling respondent because the court did not conduct an independent assessment of the factors bearing on that decision or make explicit findings that shackling was necessary. 2015 IL App (2d) 141075, ¶ 33, 400 Ill.Dec. 709, 48 N.E.3d 1149. The appellate court further concluded that the error could not be considered harmless beyond a reasonable doubt. 2015 IL App (2d) 141075, ¶ 36, 400 Ill.Dec. 709, 48 N.E.3d 1149. Accordingly, the trial court's judgment was reversed. 2015 IL App (2d) 141075, ¶ 38, 400 Ill.Dec. 709, 48 N.E.3d 1149.

¶ 15 We allowed the State's petition for leave to appeal ( Ill. S. Ct. R. 315 (eff. Jan. 1, 2015)).

¶ 16 II. ANALYSIS

¶ 17 Initially, we must consider our own jurisdiction over this appeal as a threshold inquiry. The existence of an actual controversy is essential to appellate jurisdiction. In re Lance H. , 2014 IL 114899, ¶ 12, 388 Ill.Dec. 819, 25 N.E.3d 511. Courts of review generally will not decide abstract, hypothetical, or moot questions. In re James W. , 2014 IL 114483, ¶ 18, 381 Ill.Dec. 621, 10 N.E.3d 1224. An appeal is moot when the issues involved in the trial court no longer exist because intervening events have made it impossible for the reviewing court to grant the complaining party effectual relief. In re Andrea F. , 208 Ill. 2d 148, 156, 280 Ill.Dec. 531, 802 N.E.2d 782 (2003).

¶ 18 Here, the involuntary treatment order entered on October 3, 2014, was effective for a period not to exceed 90 days. The order expired long ago, and it is impossible for this court to grant effective relief from that order. Accordingly, this appeal is moot.

¶ 19 We must, therefore, determine whether a mootness exception applies. In re Linda B. , 2017 IL 119392, ¶ 17, 418 Ill.Dec 853, 91 N.E.3d 813 ; In re Lance H. , 2014 IL 114899, ¶ 13, 388 Ill.Dec. 819, 25 N.E.3d 511. The State contends the appellate court correctly held that both the public interest exception and the exception for issues capable of repetition yet evading review apply to this case. We first consider the mootness exception for issues capable of repetition yet evading review. That exception has two elements. First, the challenged action must be too short in duration to be litigated fully prior to its cessation. In re Alfred H.H. , 233 Ill. 2d 345, 358, 331 Ill.Dec. 1, 910 N.E.2d 74 (2009) (citing In re Barbara H. , 183 Ill. 2d 482, 491, 234 Ill.Dec. 215, 702 N.E.2d 555 (1998) ). The first element has been met in this case because the 90-day duration of the order was too brief to allow appellate review. See In re Alfred H.H. , 233 Ill. 2d at 358, 331 Ill.Dec. 1, 910 N.E.2d 74.

¶ 20 The second element of the exception requires a reasonable expectation that the same complaining party will be subject to the same action again. In re Alfred H.H. , 233 Ill. 2d at 358, 331 Ill.Dec. 1, 910 N.E.2d 74 (citing In re Barbara H. , 183 Ill. 2d at 491, 234 Ill.Dec. 215, 702 N.E.2d 555 ). Respondent contends that although he was the complaining party in the appellate court, the State is now the complaining party for purposes of establishing this mootness exception because the State is the appellant before this court. According to respondent, he "has his resolution" of the issue, and the State is not entitled to further review because there is no reasonable expectation that it will be subject to the same action again.

¶ 21 Viewing the State as the complaining party would be nonsensical, however, because it is obviously never subject to shackling and would have no reason to complain of that action. In Barbara H. , this court applied the capable of repetition yet evading review exception in a similar procedural context. There, as in this case, the respondent was the appellant in the appellate court, and the State was the appellant before this court. This court, nonetheless, viewed the respondent as the complaining party for purposes of applying the mootness exception, holding there was a reasonable expectation that she would be subject to the same action again because she had a history of mental illness and hospitalization, including involuntary hospitalization. In re Barbara H. , 183 Ill. 2d at 492, 234 Ill.Dec. 215, 702 N.E.2d 555. Consistent with Barbara H. , we view respondent as the complaining party in applying this mootness exception.

¶ 22 This court has explained that the capable of repetition yet evading review exception applies when resolution of the issue "would be likely to affect a future case involving respondent." In re Alfred H.H. , 233 Ill. 2d at 359, 331 Ill.Dec. 1, 910 N.E.2d 74. There must be a substantial likelihood that resolution of the issue presented would have some bearing on a similar issue raised in a subsequent case. In re Alfred H.H. , 233 Ill. 2d at 360, 331 Ill.Dec. 1, 910 N.E.2d 74. This court held the capable of repetition yet evading review exception did not apply in Alfred H.H. because the respondent claimed on appeal that there was insufficient evidence to order his involuntary commitment and there was no clear indication of how resolution of that fact-specific issue could be used by the respondent in future litigation. In re Alfred H.H. , 233 Ill. 2d at 360, 331 Ill.Dec. 1, 910 N.E.2d 74.

¶ 23 In contrast, this case involves the standards and procedure for allowing a respondent to remain shackled in an involuntary treatment proceeding. The State and respondent disagree on whether the trial court must state on the record its reasons for imposing restraints. Respondent also contends the appellate court failed to recognize that his attorney should be given an opportunity to present reasons for removing the restraints. Thus, there is a dispute on the procedure used in the trial court for ordering restraints in these cases.

¶ 24 There is also a reasonable expectation that respondent will be subjected to restraints again in an involuntary commitment or treatment proceeding. Dr. Luchetta testified that respondent believes he does not have a mental illness and that he does not need medication. Respondent confirmed those statements when he testified that he had refused medication because he did not have a mental illness. The record establishes a pattern of respondent refusing to take medication followed by the deterioration of his condition, eventually ending in involuntary commitment and treatment proceedings. The record further shows respondent was transported in restraints to both hearing dates on this petition, even though they were removed without objection before the first hearing date. Thus, it appears that restraints were used as a matter of course in transporting respondent. We believe there is a reasonable expectation that respondent will be subjected to restraints again, given his history of mental illness and involuntary admission and treatment. See In re Barbara H. , 183 Ill. 2d at 492, 234 Ill.Dec. 215, 702 N.E.2d 555. A resolution of the issues presented in this appeal will likely have some bearing on future litigation involving respondent. See In re Alfred H.H. , 233 Ill. 2d at 360, 331 Ill.Dec. 1, 910 N.E.2d 74. Accordingly, we conclude this appeal satisfies both requirements of the mootness exception for issues capable of repetition yet evading review.

¶ 25 On the merits, the State contends the appellate court erred in holding that the trial court must state explicitly its reasons for shackling a respondent. According to the State, the trial court's reasons for imposing restraints should be clear from the record, but there is no requirement for the court to state those reasons explicitly. The State maintains that the trial court's basis for imposing restraints is clear from the record and the court did not err in permitting respondent to remain shackled.

¶ 26 Respondent contends the trial court erred because it failed to make an independent determination of whether shackles were necessary, failed to allow counsel an opportunity to provide reasons for removing the shackles, and did not state on the record any reason for imposing restraints during the hearing. Respondent asserts that the trial court simply deferred to the security officer and the patient transport checklist. Respondent, therefore, maintains that the appellate court did not err in reversing the trial court's judgment.

¶ 27 We have not previously considered the standards or procedure for imposing restraints in involuntary admission or treatment proceedings. We have considered the issue of physical restraints in criminal proceedings, however, and have long held that they may be used only upon a showing of manifest necessity. People v. Allen , 222 Ill. 2d 340, 347, 305 Ill.Dec. 544, 856 N.E.2d 349 (2006) (citing People v. Boose , 66 Ill. 2d 261, 265-66, 5 Ill.Dec. 832, 362 N.E.2d 303 (1977) ). In criminal cases, this court has determined it is impermissible to impose unnecessary restraints even when there is no jury because they hinder the defendant's ability to assist counsel, run afoul of the presumption of innocence, and demean both the defendant and the proceedings. Allen , 222 Ill. 2d at 346, 305 Ill.Dec. 544, 856 N.E.2d 349. This court has stated,

" 'In the absence of exceptional circumstances, an accused has the right to stand trial "with the appearance, dignity, and self-respect of a free and innocent man." [Citation.] It jeopardizes the presumption's value and protection and demeans our justice for an accused without clear cause to be required to stand in a courtroom in manacles or other restraints while he is being judged.' " Allen , 222 Ill. 2d at 346, 305 Ill.Dec. 544, 856 N.E.2d 349 (quoting In re Staley , 67 Ill. 2d 33, 37, 7 Ill.Dec. 85, 364 N.E.2d 72 (1977) ).

¶ 28 The Supreme Court has further explained that judges must seek to maintain a dignified judicial process, including the respectful treatment of defendants. Deck v. Missouri , 544 U.S. 622, 631, 125 S.Ct. 2007, 161 L.Ed.2d 953 (2005). The courtroom's formal dignity reflects the importance of the matter at issue and a seriousness of purpose that helps to inspire confidence in the judicial system. Deck , 544 U.S. at 631, 125 S.Ct. 2007. "[T]he use of shackles at trial 'affront[s]' the 'dignity and decorum of judicial proceedings that the judge is seeking to uphold.' " Deck , 544 U.S. at 631, 125 S.Ct. 2007 (quoting Illinois v. Allen , 397 U.S. 337, 344, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970) ). Accordingly, physical restraints should be avoided whenever possible, and a criminal defendant may be shackled only when there is reason to believe he or she may try to escape or may pose a threat to the safety of people in the courtroom, or when necessary to maintain order during the trial. In re Staley , 67 Ill. 2d at 38, 7 Ill.Dec. 85, 364 N.E.2d 72 (citing Boose , 66 Ill. 2d at 266, 5 Ill.Dec. 832, 362 N.E.2d 303 ).

¶ 29 The determination of whether and how to restrain a criminal defendant is left to the trial court's discretion. Allen , 222 Ill. 2d at 348, 305 Ill.Dec. 544, 856 N.E.2d 349. The defendant's attorney should be given an opportunity to present reasons for removing the restraints, and the trial court should state on the record its reasons for permitting the defendant to remain shackled. Boose , 66 Ill. 2d at 266, 5 Ill.Dec. 832, 362 N.E.2d 303. A trial court's failure to follow the procedure set forth in Boose before ordering restraints results in a due process violation. Allen , 222 Ill. 2d at 349, 305 Ill.Dec. 544, 856 N.E.2d 349 ; see also Deck , 544 U.S. at 632, 125 S.Ct. 2007 ("given their prejudicial effect, due process does not permit the use of visible restraints if the trial court has not taken account of the circumstances of the particular case").

¶ 30 This court subsequently codified its holdings in Boose and Allen in Illinois Supreme Court Rule 430 (eff. July 1, 2010). Rule 430 requires the trial court in a criminal proceeding to conduct a separate hearing after becoming aware of restraints to determine whether they are necessary. The trial court must consider the following enumerated factors taken from our decision in Boose :

"(1) the seriousness of the present charge against the defendant;
(2) defendant's temperament and character known to the trial court either by observation or by the testimony of witnesses;
(3) defendant's age and physical attributes;
(4) defendant's past criminal record and, more particularly, whether such record contains crimes of violence;
(5) defendant's past escapes, attempted escapes, or evidence of any present plan to escape;
(6) evidence of any threats made by defendant to harm others, cause a disturbance, or to be self-destructive;
(7) evidence of any risk of mob violence or of attempted revenge by others;
(8) evidence of any possibility of any attempt to rescue the defendant by others;
(9) size and mood of the audience;
(10) physical security of the courtroom, including the number of entrances and exits, the number of guards necessary to provide security, and the adequacy and availability of alternative security arrangements." Ill. S. Ct. R. 430 (eff. July 1, 2010).

Rule 430 provides that, "[a]fter allowing the defendant to be heard and after making specific findings, the trial judge shall balance these findings and impose the use of a restraint only where the need for restraint outweighs the defendant's right to be free from restraint." Ill. S. Ct. R. 430 (eff. July 1, 2010).

¶ 31 This court recently adopted a separate rule for the use of restraints in juvenile delinquency proceedings. In determining whether restraints are necessary, Rule 943 requires the court to consider enumerated factors bearing upon the risk of escape and threats to the safety of people in the courtroom. Ill. S. Ct. R. 943(a) (eff. Nov. 1, 2016). Trial courts must also consider whether there are any less restrictive alternatives to restraints, and if restraints are imposed, they must be the least restrictive ones available to restrain the minor. Ill. S. Ct. R. 943(a), (c) (eff. Nov. 1, 2016). Rule 943 sets forth the same basic procedure for making a decision on restraints as Illinois Supreme Court Rule 430 and our criminal cases. The rule states, "The court must provide the minor's attorney an opportunity to be heard before the court orders the use of restraints. If restraints are ordered, the court shall enter an order setting forth its findings of fact." Ill. S. Ct. R. 943(b) (eff. Nov. 1, 2016).

¶ 32 In In re Mark P. , our appellate court considered the issue of restraints in involuntary admission proceedings. The precise issue presented in that appeal was whether a person appearing for trial before a judge should be shackled without good cause shown on the record. In re Mark P. , 402 Ill. App. 3d 173, 176, 342 Ill.Dec. 354, 932 N.E.2d 481 (2010). On that point, the appellate court held that "[a]t minimum, a respondent appearing before a judge for trial or hearing should not be shackled without good cause shown on the record." In re Mark P. , 402 Ill. App. 3d at 178, 342 Ill.Dec. 354, 932 N.E.2d 481. The appellate court concluded that the trial court erred by failing to exercise its discretion and determine whether the respondent should be restrained. In re Mark P. , 402 Ill. App. 3d at 177-78, 342 Ill.Dec. 354, 932 N.E.2d 481. Instead, the trial court simply deferred to the deputy's preference for the respondent to remain shackled. In re Mark P. , 402 Ill. App. 3d at 177, 342 Ill.Dec. 354, 932 N.E.2d 481. In the course of its decision, the appellate court observed that some aspects of Rule 430 and our decisions in Boose and Allen are "classically criminal" and cannot be applied to involuntary admission cases. In re Mark P. , 402 Ill. App. 3d at 175, 342 Ill.Dec. 354, 932 N.E.2d 481. The court stated there was no precedent on whether a Boose hearing was required in an involuntary commitment proceeding and that question was not raised or preserved for review. In re Mark P. , 402 Ill. App. 3d at 176-78, 342 Ill.Dec. 354, 932 N.E.2d 481.

¶ 33 A review of the case law, therefore, establishes that routine imposition of restraints is prohibited because it diminishes a defendant's or respondent's ability to assist counsel, undermines the presumption of innocence, and demeans both the defendant or respondent and the judicial process. Deck , 544 U.S. at 630-31, 125 S.Ct. 2007 ; Allen , 222 Ill. 2d at 346, 305 Ill.Dec. 544, 856 N.E.2d 349 ; Boose , 66 Ill. 2d at 265, 5 Ill.Dec. 832, 362 N.E.2d 303. While involuntary treatment proceedings do not involve a presumption of innocence, the other concerns weighing against unnecessary use of restraints in criminal and juvenile delinquency proceedings also apply here. A respondent's ability to assist counsel and the dignity of the court proceedings are important concerns in involuntary treatment proceedings, and those interests may be impacted by unnecessary restraints the same as in criminal and juvenile delinquency proceedings.

¶ 34 Accordingly, we hold that, as in criminal and juvenile delinquency cases, trial courts may order physical restraints in involuntary treatment proceedings only upon a finding of manifest necessity. Trial courts must exercise their discretion and make an independent determination on whether to impose physical restraints. A finding of manifest necessity for restraints must be based on the risk of flight, threats to the safety of people in the courtroom, or maintaining order during the hearing. See In re Staley , 67 Ill. 2d at 38, 7 Ill.Dec. 85, 364 N.E.2d 72 (citing Boose , 66 Ill. 2d at 266, 5 Ill.Dec. 832, 362 N.E.2d 303 ).

¶ 35 The parties disagree on the procedural requirements for imposing restraints in involuntary treatment proceedings. Respondent contends the trial court must allow the respondent's attorney an opportunity to be heard on restraints and make explicit findings on whether restraints should be imposed.

¶ 36 As explained above, our case law and Illinois Supreme Court Rules 430 and 943 consistently provide that the defendant's or respondent's attorney must be given an opportunity to be heard on reasons for removing the restraints and the trial court must state on the record its reasons for allowing the defendant to remain shackled. Those requirements promote a considered decision by the trial court on the use of physical restraints. They also facilitate appellate review of the trial court's decision by ensuring that the reasons for imposing restraints are clear from the record. The fact that those requirements are included in this court's case law and Rules 430 and 943 shows that they are important to any decision on the use of restraints. Given the benefits of those requirements and the consistency of their use in other types of proceedings, we see no reason to exclude them from involuntary treatment cases. Accordingly, we hold that before ordering restraints in involuntary treatment proceedings, the trial court must give the respondent's attorney an opportunity to be heard and must state on the record the reasons for allowing the respondent to remain shackled.

¶ 37 We do not attempt to list the factors to be considered in making this decision. We agree with the appellate court's decision in Mark P. that not all aspects of our criminal case law and Rule 430 naturally apply to involuntary admission and treatment cases. In re Mark P. , 402 Ill. App. 3d at 175, 342 Ill.Dec. 354, 932 N.E.2d 481. Thus, some of the factors from Boose that were subsequently incorporated into Rule 430 may not be relevant to involuntary treatment proceedings.

¶ 38 While respondent urges this court to adopt Rule 943 for involuntary treatment cases, that rule governs the physical restraint of minors in juvenile delinquency proceedings, and the factors considered in those cases may not necessarily be relevant here. The medical and therapeutic considerations involved in mental health cases may not be present in adult criminal or juvenile delinquency proceedings. We, nonetheless, reiterate that any factors considered in determining whether physical restraints are necessary should bear on the risk of flight, threats to people in the courtroom, or maintaining order during the hearing.

¶ 39 In this case, respondent contends the trial court failed to make an independent determination on whether the restraints were necessary and its decision amounted to "blind deference" to the security officer. We disagree with respondent's characterization of the trial court's decision.

¶ 40 The record shows that the trial court questioned the security officer after respondent's attorney asked for removal of the restraints. The security officer stated respondent was "listed as a high elopement risk" and provided the court with a "patient transport checklist." The trial court made several statements in the course of discussing the matter with respondent and his attorney, including a statement about balancing "whatever security feels is necessary and [respondent's] ability to participate." Ultimately, however, the trial court concluded, "If there is a need for you to be writing down some notes or things of that nature, I will consider it at that time. I'm trying to do the best to balance both the security information given to me and your ability to participate."

¶ 41 Throughout the hearing, the trial court made statements indicating it was considering the information and making an independent determination. The trial court expressly stated it was balancing the available information. Notably, there was no authority requiring the trial court to consider the Boose factors in this type of proceeding. In Mark P. , the appellate court did not adopt those factors for application in involuntary commitment proceedings or determine that a Boose hearing was required. We conclude that the record, read in its entirety, shows the trial court did not simply defer to the security officer but weighed the information provided and made an independent determination that the restraints were necessary.

¶ 42 Respondent also contends that the trial court erred by failing to allow his attorney an opportunity to be heard on reasons for removing the shackles and by not making explicit findings on the record. In this case, we have held that those Boose hearing requirements apply to involuntary treatment proceedings. After becoming aware of the shackles, the trial court should have given respondent's attorney an opportunity to present reasons for removing them and stated on the record its reasons for allowing respondent to remain shackled.

¶ 43 The State, however, contends that respondent forfeited his arguments on the procedure used by the trial court by failing to object during the hearing. The failure to object to an alleged error at trial ordinarily results in forfeiture of the issue on appeal. Allen , 222 Ill. 2d at 350, 305 Ill.Dec. 544, 856 N.E.2d 349.

¶ 44 In Mark P. , the respondent's attorney pointed out that the respondent was in handcuffs and asked the trial court to remove them. When the trial court denied that request, the respondent's attorney stated, " 'Can I make an objection on the record? I do object. He is not charged with a crime. It's a civil matter. It seems prejudicial to continue to have him in restraints essentially given the nature of this case.' " In re Mark P. , 402 Ill. App. 3d at 174, 342 Ill.Dec. 354, 932 N.E.2d 481. The appellate court held that the respondent forfeited the issue of whether a Boose hearing or a hearing under Rule 430 was required because he did not request a hearing or a factual basis for the trial court's refusal to remove the restraints. In re Mark P. , 402 Ill. App. 3d at 177, 342 Ill.Dec. 354, 932 N.E.2d 481.

¶ 45 Here, respondent's attorney asked for the shackles to be removed. When the trial court denied that request, respondent's attorney asked if respondent's right hand could be released. Respondent's attorney did not, however, object to the procedure used by the trial court in making its decision, ask for any additional opportunity to be heard, or request findings of fact or an explicit statement of the trial court's reasons for permitting respondent to remain shackled. Rather, respondent deferred to the procedure used by the trial court. We conclude that a more specific objection was required to preserve respondent's procedural arguments for review given that the procedure for allowing restraints in involuntary treatment proceedings was not established at the time of the hearing in this case. As in Mark P. , respondent's arguments on the procedure used by the trial court were not preserved for review.

¶ 46 Respondent has not made any argument to excuse the forfeiture. Accordingly, we find respondent forfeited his challenge to the specific procedure used by the trial court in this case by failing to object during the hearing.

¶ 47 Finally, we note that respondent does not make a separate argument that the trial court abused its discretion in deciding not to order removal of the restraints. Even if it were raised, the record in this case would not permit review of that argument because there is no statement of the trial court's reasons for allowing respondent to remain shackled.

¶ 48 III. CONCLUSION

¶ 49 For the foregoing reasons, the judgment of the appellate court is reversed, and the circuit court's judgment is affirmed.

¶ 50 Appellate court judgment reversed.

¶ 51 Circuit court judgment affirmed.

Chief Justice Karmeier and Justices Freeman, Thomas, Garman, Burke, and Theis concurred in the judgment and opinion.


source: Caselaw Access Project

license: Public Domain

text:
    PEOPLE of the State of Illinois, Appellee, v. Salimah COLE (Amy P. Campanelli, Appellant).
    Docket No. 120997
    Supreme Court of Illinois.
    Opinion filed November 30, 2017
    Michael A. Scodro and Samuel D. Block, of Mayer Brown LLP, and Charles B. Sklarsky, Clifford W. Berlow, Ramon Villalpando, Briana T. Sprick Schuster, and Nathaniel K.S. Wackman, of Jenner & Block LLP, both of Chicago, for contemnor-appellant.
    Lisa Madigan, Attorney General, of Springfield, and Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg, Assistant State's Attorney, of counsel), for the People.
    Thomas F. Geselbracht, of DLA Piper LLP (US), of Chicago, for amicus curiae National Association for Public Defense.
    Kimberly A. Jansen and Leigh C. Bonsall, of Hinshaw & Culbertson LLP, of Chicago, for amici curiae Vivien Gross, of Chicago Kent College of Law, and Steven Lubet and Robert Burns, of Northwestern Pritzker School of Law.
    Carol A. Brook, Martin V. Sinclair, Jr., Sarah L. Rosenbluth, and Natalie Feigenbaum, all of Chicago, for amicus curiae National Association of Criminal Defense Lawyers.
   JUSTICE THOMAS delivered the judgment of the court, with opinion.

¶ 1 On June 15, 2016, the circuit court of Cook County entered an order of adjudication of direct civil contempt against contemnor, Amy P. Campanelli, the Cook County public defender, and sanctioned Campanelli $250 per day until she purged herself of direct civil contempt or was otherwise discharged by due process of law. Campanelli filed a notice of appeal to the Appellate Court, First District. Campanelli also filed an emergency motion to stay the fines imposed by the trial court. The appellate court granted Campanelli's motion to stay the fines.

¶ 2 The State then filed a motion for direct appeal to this court pursuant to Illinois Supreme Court Rule 302(b) (eff. Oct. 4, 2011). On July 29, 2016, this court allowed the State's motion for direct appeal and transferred the appeal of the case from the appellate court to this court. This court also allowed the National Association of Criminal Defense Lawyers, the National Association for Public Defense, and Professors Vivian Gross, Steven Lubet, and Robert Burns to file amicus curiae briefs in support of contemnor Campanelli. Ill. S. Ct. R. 345 (eff. Sept. 20, 2010).

¶ 3 BACKGROUND

¶ 4 Defendant Salimah Cole was charged in a 16-count indictment with 6 counts of first degree murder, 2 counts of armed robbery with a firearm, 5 counts of aggravated kidnapping, 1 count of aggravated arson, and 2 counts of possession of a stolen motor vehicle. The charges stemmed from the September 30, 2015, shooting, robbery, and kidnapping of La Prentis Cudjo and the robbery and kidnapping of Charles Morgan. Ashley Washington, Allen Whitehead, Zacchaeus Reed, Jr., Julian Morgan, and Brianna Sago were also charged in connection with those crimes.

¶ 5 Cole appeared in court on April 12, 2016. A Cook County assistant public defender appeared as a friend of the court, as well as to defendant Cole, and informed the court that Cole's mother had retained private counsel, who would need a continuance of a week or two. Accordingly, the trial court set the next court date for May 10, 2016.

¶ 6 At the May 10, 2016, court date, Cole informed the trial court that she was not able to afford private counsel. The trial court stated that it would appoint the public defender to represent Cole. Contemnor Amy P. Campanelli, the public defender of Cook County, then asked the court not to appoint the office of the public defender to represent Cole. Campanelli asked for leave of court to file a notice of intent to refuse appointment and to ask for appointment of counsel other than the public defender. When asked to explain her motion, Campanelli stated that she actually was refusing the appointment. Campanelli informed the court that the public defender could not represent Cole because there was a conflict of interest due to the codefendants in the case. Campanelli explained that four of Cole's five codefendants were charged with the exact same offenses as Cole. In addition, codefendants Reed and Whitehouse were also charged with intimidation of codefendant Washington, for threatening to harm Washington and her family if she worked with the police on the murder case.

¶ 7 The trial court then asked Campanelli to explain the direct conflict to the court. Campanelli clarified that there was a potential for conflict. Campanelli asserted that she did not have to wait until a conflict developed, nor could she divulge attorney-client privileged information in order to inform the court of those conflicts. After considering the matter, the trial court appointed the public defender of Cook County to represent Cole, over Campanelli's objection. Campanelli asked the court to hold her in friendly contempt and to impose a nominal sanction so that she could seek appellate review of the court's decision. The trial court took the request under advisement and asked Campanelli to put the basis for her refusal to represent Cole in writing.

¶ 8 Campanelli then filed a notice of intent to refuse appointment and to request appointment of counsel other than the public defender of Cook County. In her notice, Campanelli argued that every client has a right to be represented by conflict-free counsel and that concurrent conflicts of interest are prohibited by Rule 1.7 of the Illinois Rules of Professional Conduct of 2010 (eff. Jan. 1, 2010). Campanelli noted that Rule 1.7 provided that conflicts arise whenever the interests of one client are directly adverse to the interests of another client or whenever the representation of a client is materially limited. Based upon Rule 1.7, Campanelli stated that she could not accept appointment to represent Cole when she was already representing five other codefendants. Campanelli indicated that she also had moved to withdraw from representing codefendants Whitehead, Reed Jr., Morgan, and Sago, due to concurrent conflicts with one another and with codefendant Washington. Because she was bringing the conflict of interest to the court's attention at an early stage, Campanelli claimed that it was incumbent on the court to take action and alleviate the conflict by appointing private counsel.

¶ 9 In addition to citing Rule 1.7, Campanelli contended that the office of the Cook County public defender had a conflict of interest in representing Cole because the office of the Cook County public defender is a law firm as set forth in Rule 1.10 of the Illinois Rules of Professional Conduct of 2010 (eff. Jan. 1, 2010). Consequently, Campanelli refused to accept appointment to represent Cole.

¶ 10 At a hearing on May 19, 2016, the trial court found that Cole was indigent and should be represented by the office of the Cook County public defender. Campanelli again told the court that she could not represent Cole because she was in conflict due to her representation of five other codefendants in the case. Campanelli stated that, pursuant to the Illinois Rules of Professional Conduct adopted in 2010, she could not represent more than one client on a case because of the potential conflict. Campanelli also noted that the Counties Code ( 55 ILCS 5/3-4006 (West 2016) ) allows a court to appoint counsel other than the public defender if the appointment of the public defender would prejudice the defendant. The trial court pointed out that it had not made a finding that appointment of the public defender would prejudice the defendant. Campanelli conceded that the trial court had not made a finding of prejudice but stated she had given the trial court enough testimony that she would be in conflict of interest if forced to represent Cole.

¶ 11 In response to further questioning from the trial court, Campanelli stated that there were approximately 518 attorneys in the office of the Cook County public defender and that those 518 attorneys did not all share the same supervisors. With regard to the four other motions to withdraw that Campanelli had filed concerning Cole's codefendants, Campanelli acknowledged that she had four separate attorneys from different divisions in her office representing those defendants. In addition, those assistant public defenders each had a different supervisor, but those supervisors might report to the same deputy director. Campanelli conceded that she has a multiple defender division for multiple offender cases but contended that she was in conflict even in those cases.

¶ 12 The trial court then reiterated that defendant Cole was in custody without legal representation, that Cole was indigent and had a right to counsel, and that, as public defender of Cook County, Campanelli was sworn to represent an indigent defendant unless the court finds that the defendant's rights would be prejudiced. The trial court observed that it had not found Cole's rights to be prejudiced, so that Campanelli's refusal to represent Cole was contemptuous. Campanelli continued to refuse to follow the order of the court to represent Cole, repeating that she could not represent Cole due to a conflict. Campanelli denied that she was violating the Counties Code in refusing to represent Cole, arguing that in fact she would be violating the Illinois Rules of Professional Conduct of 2010 in representing Cole.

¶ 13 The trial court again stated that Campanelli was sworn to represent an indigent defendant unless the court finds that the defendant's rights would be prejudiced. The trial court did not find Cole's rights to be prejudiced and asked Campanelli to carefully consider her refusal to represent Cole. The trial court then continued the case for ruling on Campanelli's request for contempt. The trial court also appointed private counsel to represent Cole in light of Campanelli's refusal.

¶ 14 Campanelli next appeared before the court on June 15, 2016. The trial court noted that it had appointed private counsel for Cole because she was an indigent defendant without representation of counsel. The trial court repeated that it had found there was no conflict in Campanelli representing Cole and again ordered Campanelli to represent Cole, indicating that it would vacate the appointment of private counsel upon Campanelli's acceptance of the appointment.

¶ 15 Campanelli again stated that she was in conflict in representing Cole, the sixth defendant in a six-defendant murder case, when she already represented five of those defendants. Campanelli indicated that she had filed motions to withdraw with regard to four of the five other defendants, as she was in conflict of interest with those defendants also. Campanelli conceded that she had separate attorneys assigned to those defendants but contended that, under the Counties Code ( 55 ILCS 5/3-4006 (West 2016) ), she was the attorney for every client assigned to her office. Campanelli also asserted that her office was a law firm and wanted to be treated like any other law firm in the state of Illinois for purposes of conflict of interest. Campanelli stated that she represents every client in the public defender's office and had a right to know every fact, every strategy, and every defense of every case. If not allowed to know the confidences between lawyers, she would not be acting as the public defender of Cook County.

¶ 16 The trial court again ordered Campanelli to represent Cole and warned that her refusal to represent Cole would be in direct contempt of court. Campanelli responded that she continued to refuse to represent Cole. The trial court therefore found that Campanelli had willfully and contemptuously refused to accept the trial court's appointment to represent Cole after being ordered to do so. The trial court found Campanelli's refusal to be without basis, as there was no prejudice to Cole if Campanelli accepted the appointment. The trial court therefore ordered that Campanelli was in direct civil contempt for her willful failure to obey a direct order of the court. The trial court imposed a sanction consisting of a fine of $250 per day until such time as Campanelli purged herself of direct civil contempt by accepting appointment as counsel for defendant Cole or until she was otherwise discharged by due process of law.

¶ 17 ANALYSIS

¶ 18 This case comes before this court on appeal of the trial court's order finding Campanelli to be in direct civil contempt and imposing sanctions. A court is vested with the inherent power to enforce its orders and to preserve the dignity of the court by the use of contempt proceedings. In re Baker , 71 Ill. 2d 480, 484, 17 Ill.Dec. 676, 376 N.E.2d 1005 (1978). An order cast in terms of a contempt proceeding imposing sanctions is a final and appealable order. People ex rel. Scott v. Silverstein , 87 Ill. 2d 167, 171-72, 57 Ill.Dec. 585, 429 N.E.2d 483 (1981). This is because the imposition of a sanction for contempt, while occurring within the context of another proceeding, "is an original special proceeding, collateral to and independent of, the case in which the contempt arises." Id. at 172, 57 Ill.Dec. 585, 429 N.E.2d 483. In reviewing the contempt order, we must examine the propriety of the trial court's order directing Campanelli to accept appointment as counsel for Cole. If the order was invalid, the contempt order must be reversed. People v. Shukovsky , 128 Ill. 2d 210, 222, 131 Ill.Dec. 69, 538 N.E.2d 444 (1988).

¶ 19 Whether a party is guilty of contempt is a question of fact for the trial court. In re Marriage of Logston , 103 Ill. 2d 266, 286-87, 82 Ill.Dec. 633, 469 N.E.2d 167 (1984). Logston held that a reviewing court will not disturb the trial court's finding unless it is against the manifest weight of the evidence or the record reflects an abuse of discretion.

Id. at 287, 82 Ill.Dec. 633, 469 N.E.2d 167. In Norskog v. Pfiel , 197 Ill. 2d 60, 70-71, 257 Ill.Dec. 899, 755 N.E.2d 1 (2001), the court clarified that the proper standard of review depends on the question that was answered in the trial court. Thus, if the facts are uncontroverted and the issue is the trial court's application of the law to the facts, a reviewing court may apply de novo review. Id.

¶ 20 In this case, to the extent our review concerns application of this court's rules, we find that de novo review is appropriate. When interpreting supreme court rules, this court is guided by the same principles applicable to construction of statutes. People v. Salem , 2016 IL 118693, ¶ 11, 400 Ill.Dec. 32, 47 N.E.3d 997. The construction of a statute is a question of law that is reviewed de novo . People v. Smith , 236 Ill. 2d 162, 167, 337 Ill.Dec. 700, 923 N.E.2d 259 (2010). To the extent our review concerns the trial court's adjudication of contempt, we find it is appropriate to apply an abuse of discretion standard.

¶ 21 In this court, as in the trial court, Campanelli argues that she is barred from representing Cole due to a conflict of interest between Cole and her codefendants. Campanelli asserts that any representation of more than one defendant in a multiple defendant case presents a conflict of interest for the office of the public defender. Campanelli claims a conflict based upon the sixth amendment to the United States Constitution ( U.S. Const., amend. VI ), article I, section 8, of the Illinois Constitution ( Ill. Const. 1970, art. I, § 8 ), and Rules 1.10 and 1.7 of the Illinois Rules of Professional Conduct of 2010 (eff. Jan. 1, 2010).

¶ 22 Those accused of crime have a sixth amendment right to the effective assistance of counsel. People v. Spreitzer , 123 Ill. 2d 1, 13, 121 Ill.Dec. 224, 525 N.E.2d 30 (1988) (citing Cuyler v. Sullivan , 446 U.S. 335, 343, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), and Glasser v. United States , 315 U.S. 60, 70, 62 S.Ct. 457, 86 L.Ed. 680 (1942) ). Effective assistance of counsel means assistance by an attorney whose allegiance to his client is not diluted by conflicting interests or inconsistent obligations. Spreitzer , 123 Ill. 2d at 13-14, 121 Ill.Dec. 224, 525 N.E.2d 30. The United States Supreme Court has held that requiring or permitting a single attorney to represent codefendants is not per se violative of the constitutional guarantee of the effective assistance of counsel. Holloway v. Arkansas , 435 U.S. 475, 482, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978). The court in Spreitzer also recognized that treating multiple representation of codefendants as creating a per se conflict would put an end to multiple representation altogether, "since a 'possible conflict inheres in almost every instance of multiple representation,' and a per se rule would 'preclude multiple representation even in cases where "[a] common defense * * * gives strength against a common attack." ' " Spreitzer , 123 Ill. 2d at 17, 121 Ill.Dec. 224, 525 N.E.2d 30 (quoting Cuyler , 446 U.S. at 348, 100 S.Ct. 1708, quoting Glasser , 315 U.S. at 92, 62 S.Ct. 457 ). Cuyler recognized, however, that since a possible conflict of interest inheres in almost every instance of multiple representation, a defendant who objects to multiple representation must have the opportunity to show that potential conflicts imperil his right to a fair trial. Cuyler , 446 U.S. at 348, 100 S.Ct. 1708.

¶ 23 Campanelli maintains that she did show that potential conflicts imperiled Cole's right to a fair trial, so that the trial court erred in finding her in direct contempt of court. In making this argument, Campanelli contends that representation by the office of the Cook County public defender is tantamount to representation by a single attorney for purposes of conflict of interest analysis. Consequently, before we address whether Campanelli established that potential conflicts imperiled Cole's right to a fair trial, we first must address Campanelli's claim that representation by the public defender constitutes representation by a single attorney.

¶ 24 In support of this argument, Campanelli points to Rule 1.10 of the Illinois Rules of Professional Conduct of 2010. Rule 1.10(a) provides:

"While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9, unless the prohibition is based on a personal interest of the prohibited lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm." Ill. R. Prof'l Conduct (2010) R. 1.10(a) (eff. Jan. 1, 2010).

Comment 1 to Rule 1.10 explains:

"For purposes of the Rules of Professional Conduct, the term 'firm' denotes lawyers in a law partnership, professional corporation, sole proprietorship or other association authorized to practice law; or lawyers employed in a legal services organization or the legal department of a corporation or other organization. See Rule 1.0(c). Whether two or more lawyers constitute a firm within this definition can depend on the specific facts." Ill. R. Prof'l Conduct (2010) R. 1.10 cmt. 1 (eff. Jan. 1, 2010).

¶ 25 Campanelli argues that the office of the public defender is a "firm," which means that its associated members-the assistant public defenders-may not represent clients with conflicting interests. In making this argument, Campanelli acknowledges that People v. Robinson , 79 Ill. 2d 147, 37 Ill.Dec. 267, 402 N.E.2d 157 (1979), held that a public defender's office is not a firm. However, Campanelli maintains that Robinson did not resolve the question of whether the office of the public defender is a firm within the definition of Rule 1.10 because the Robinson decision predated the drafting of the written rules of professional conduct in Illinois.

¶ 26 The Robinson decision was filed in 1979. Campanelli points out that the Illinois Code of Professional Responsibility was adopted on June 3, 1980, and was replaced by the Illinois Rules of Professional Conduct in 1990, which then were substantially amended in 2010. Therefore, Robinson could not have resolved whether, under the current rules, the office of the public defender is an "association authorized to practice law" or "a legal services organization" because Robinson did not construe the language of Rule 1.10. Campanelli contends that, under the plain language of Rule 1.10, the office of the public defender fits either description, so that it is a "firm" within the plain meaning of Rule 1.10.

¶ 27 As Campanelli concedes, Robinson considered "whether the individual attorneys employed in the office of a public defender are members of an entity subject to the generally recognized rule that if an attorney is disqualified by reason of a conflict of interest that no other partner or associate of his firm may continue with the representation." Id. at 154, 37 Ill.Dec. 267, 402 N.E.2d 157. Robinson held that "the avoidance of conflicts of interest which result in failure to provide effective assistance of counsel does not require us to hold that the individual attorneys who comprise the staff of a public defender are members of an entity which should be subject to the rule that if one attorney is disqualified by reason of a conflict of interest then no other member of the entity may continue with the representation." Id. at 158-59, 37 Ill.Dec. 267, 402 N.E.2d 157.

¶ 28 Following Robinson , in People v. Miller , 79 Ill. 2d 454, 38 Ill.Dec. 775, 404 N.E.2d 199 (1980), the court reiterated that it had rejected the claim that a public defender's office is to be treated as a law firm or an "entity" in considering a conflict of interest claim. Miller explained that where one assistant public defender might not effectively represent two competing interests, "two assistants might be able to do so, and in determining whether separate assistants can properly represent competing interests, we are to apply the general guidelines enunciated in our prior cases and those of the United States Supreme Court on the subject of conflicts of interest." Id. at 461, 38 Ill.Dec. 775, 404 N.E.2d 199.

¶ 29 As noted, Campanelli claims that Robinson does not control on the issue of whether the office of the Cook County public defender is a firm for purposes of Rule 1.10 because Robinson was decided before the rules were adopted. Campanelli argues that the Robinson decision cannot be used to construe the plain language in Rule 1.10 defining "firm" because the Robinson court never addressed the language in the rule. In making this argument, however, Campanelli misunderstands this court's case law concerning the interpretation of statutes and court rules.

¶ 30 It is well settled that when statutes are enacted after judicial opinions are published, it must be presumed that the legislature acted with knowledge of the prevailing case law. People v. Hickman , 163 Ill. 2d 250, 262, 206 Ill.Dec. 94, 644 N.E.2d 1147 (1994). As set forth supra , this court is guided by the same principles applicable to the construction of statutes when interpreting supreme court rules. Salem , 2016 IL 118693, ¶ 11, 400 Ill.Dec. 32, 47 N.E.3d 997. Consequently, in enacting the Illinois Code of Professional Responsibility, and later the Illinois Rules of Professional Conduct and the 2010 amendments to those rules, we presume that the court was well aware of its own case law holding that the office of the public defender is not a law firm for purposes of conflict of interest. This court has never departed from its precedent to expressly include the office of the public defender within the definition of a law firm, "association authorized to practice law," or "a legal services organization" in its Code of Professional Responsibility or Rules of Professional Conduct. Absent an express repudiation of the Robinson holding in this court's Rules of Professional Conduct, we find no basis to declare that Robinson is no longer good law or that Rule 1.10 now includes the office of public defender within its definition of law firms for purposes of a conflict of interest.

¶ 31 Campanelli then urges this court to overrule Robinson . Campanelli contends that Robinson failed to provide a reasoned analysis for its holding, relying as its sole explanation on "an unsupported statement" that treating the office of the public defender as a firm "would lead to the appointment of inadequate and inexperienced private counsel." Campanelli asserts that such speculation alone does not justify distortion of the plain meaning of Rule 1.10.

¶ 32 We again point out that the plain meaning of "firm" in Rule 1.10 necessarily excludes public defender offices from its definition. Moreover, the risk of appointing inadequate and inexperienced private counsel was not the basis for the Robinson decision. Robinson did consider case law from other jurisdictions, as well as the American Bar Association Standards Relating to the Administration of Criminal Justice, which found that a public defender's office is a firm for purposes of conflict of interest analysis. Robinson also considered the size and organization of the state's public defender offices. Robinson then concluded that, "[u]pon review of the authorities and consideration of the diversity of organization of the offices of public defenders," the avoidance of conflicts of interest did not require the court to hold that the public defender's office was analogous to a law firm. Robinson , 79 Ill. 2d at 158-59, 37 Ill.Dec. 267, 402 N.E.2d 157.

¶ 33 In reaching that conclusion, the court did note that, "[i]n many instances the application of such a per se rule would require the appointment of counsel with virtually no experience in the trial of criminal matters, thus raising, with justification, the question of competency of counsel." Id. at 159, 37 Ill.Dec. 267, 402 N.E.2d 157. Although the court noted that application of a per se rule might have such consequences, this was not the basis for the court's decision. Rather, Robinson balanced that possibility against the remote possibility that an experienced member of the public defender's staff might labor under a conflict of interest because another member of the staff was so burdened and found that the decisions of the United States Supreme Court, as well as its own decisions, furnished adequate guidance to avoid conflicts of interest which would impede the furnishing of effective assistance of counsel. Id. at 159-60, 37 Ill.Dec. 267, 402 N.E.2d 157.

¶ 34 The court later explained, in People v. Lewis , 88 Ill. 2d 429, 438, 58 Ill.Dec. 743, 430 N.E.2d 994 (1981), that the Robinson court "did not deem a personal allegiance or loyalty to the public defender's office sufficient to justify a rule that if one attorney employed by such an office were disqualified by reason of a conflict of interest, no other attorney employed by that office could undertake the representation." The basis for the Robinson rule again was repeated in People v. Banks , 121 Ill. 2d 36, 42, 117 Ill.Dec. 266, 520 N.E.2d 617 (1987), where the court stated that " Robinson rejected a per se conflicts rule precisely because it finds that an assistant public defender's loyalty towards his office is not great enough to impute to him the conflicts of other assistants."

¶ 35 Robinson , then, based its holding on the fact that the adversary tendency of lawyers within the public defender's office was sufficient protection against a conflict of interest between assistant public defenders. This court and our appellate court have consistently applied Robinson for nearly 40 years. Consequently, we find no merit to Campanelli's claim that the decision was poorly reasoned and unworkable.

¶ 36 Having found that the office of the public defender is not a "firm" for purposes of Rule 1.10, we next address Campanelli's claim that Rule 1.7 bars the public defender from representing multiple defendants in a single prosecution. Rule 1.7 provides:

"(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:
(1) the representation of one client will be directly adverse to another client; or
(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer." Ill. R. Prof'l Conduct (2010) R. 1.7 (eff. Jan. 1, 2010).

Campanelli also points to comment 23 to Rule 1.7, which explains that:

"[S]imultaneous representation of parties whose interests in litigation may conflict, such as coplaintiffs or codefendants, is governed by paragraph (a)(2).
A conflict may exist by reason of substantial discrepancy in the parties' testimony, incompatibility in positions in relation to an opposing party or the fact that there are substantially different possibilities of settlement of the claims or liabilities in question. Such conflicts can arise in criminal cases as well as civil. The potential for conflict of interest in representing multiple defendants in a criminal case is so grave that ordinarily a lawyer should decline to represent more than one codefendant." Ill. R. Prof'l Conduct (2010) R. 1.7 cmt. 23 (eff. Jan. 1, 2010).

Campanelli argues that Rule 1.7 and comment 23 establish that conflicts are inevitable in cases of joint representation of codefendants.

¶ 37 While Rule 1.7 and comment 23 warn of the risk of joint representation of codefendants, the rule and comment address the representation of multiple defendants by one attorney. The issue here, in contrast, is whether representation of codefendants by different assistant public defenders presents a conflict of interest. Spreitzer explained that "[t]he asserted danger in the Banks - Robinson -Spicer line of cases was not so much that a single lawyer would attempt to represent the conflicting interests of two defendants as that a lawyer's loyalty to his client would be diluted by a conflicting allegiance to a fellow lawyer." Spreitzer , 123 Ill. 2d at 21, 121 Ill.Dec. 224, 525 N.E.2d 30.

¶ 38 As discussed, with regard to the public defender's office, this court has declined to adopt a per se rule finding a conflict of interest where different assistant public defenders represent codefendants in a case. Consequently, with regard to the public defender's office, a case-by-case inquiry "is contemplated whereby it is determined whether any facts peculiar to the case preclude the representation of competing interests by separate members of the public defender's office." Miller , 79 Ill. 2d at 462, 38 Ill.Dec. 775, 404 N.E.2d 199. The mere fact that codefendants in a case are represented by separate members of the public defender's office does not violate Rule 1.7.

¶ 39 Campanelli then argues that appointing the office of the public defender to represent codefendants always presents a conflict of interest under Rule 1.7 because Campanelli, as the Cook County public defender, is counsel to all the defendants her office represents. Campanelli cites the Counties Code, as well as Burnette v. Terrell , 232 Ill. 2d 522, 328 Ill.Dec. 927, 905 N.E.2d 816 (2009), in support of her argument.

¶ 40 Campanelli points out that the Counties Code provides:

"The Public Defender, as directed by the court, shall act as attorney, without fee * * * for all persons who are held in custody or who are charged with the commission of any criminal offense * * *." 55 ILCS 5/3-4006 (West 2016).

In addition, Burnette held that the circuit court under the Counties Code "appoints the office of the public defender to act as the attorney for an indigent defendant" and "does not appoint an individual assistant public defender." Burnette , 232 Ill. 2d at 538, 328 Ill.Dec. 927, 905 N.E.2d 816. Campanelli seizes upon the preceding language from Burnette to support her claim that she is the attorney for all defendants represented by her office.

¶ 41 We find Campanelli's reliance on Burnette to be misplaced. At issue in Burnette was whether a circuit court judge had the authority to refuse to allow an assistant public defender to represent clients in his courtroom, to remove an assistant public defender from representation of a defendant, or to assign a specific assistant public defender to represent a defendant in an individual case. The court held that the public defender has the sole authority to make work assignments for the assistant public defenders. Id. at 538-39, 328 Ill.Dec. 927, 905 N.E.2d 816. In so holding, the court noted that, under the Counties Code, the circuit court has the authority to direct the public defender to represent an indigent defendant but the circuit court does not appoint the individual assistant public defender. Id. at 538, 328 Ill.Dec. 927, 905 N.E.2d 816.

¶ 42 The fact that the trial court appoints the office of public defender to represent an indigent defendant, rather than appointing specific assistant public defenders, does not thereby transform the office of the public defender into a single entity for purposes of conflict of interest analysis. Similarly, the fact that the appointed public defender has supervisory authority over his or her assistant public defenders does not override an assistant public defender's undivided loyalty to his client.

¶ 43 In Banks , the court declined to find a per se conflict of interest where one assistant public defender argued the ineffective assistance of another assistant public defender. Banks , 121 Ill. 2d 36, 117 Ill.Dec. 266, 520 N.E.2d 617. Banks held that it would be erroneous to assume that public defenders have such an allegiance to their office that they would be unable to subordinate that allegiance to the interests of their clients. Id. at 43, 117 Ill.Dec. 266, 520 N.E.2d 617. Pursuant to Campanelli's argument, an assistant public defender would never be able to argue the ineffective assistance of another assistant public defender where they were both were under the supervision of the public defender, as the public defender then would be arguing her own ineffectiveness. Banks implicitly rejected such an analysis in finding that an assistant public defender's loyalty to his client supersedes his allegiance to the office of the public defender.

¶ 44 The same analysis applies when different assistant public defenders are appointed to represent codefendants in a case. While Campanelli has oversight of the approximately 518 assistant public defenders in her office, it is the assistant public defender appointed to represent a defendant who provides the legal services to that defendant. The assistant public defender's loyalty to his office has not been deemed great enough to impute to him the conflicts of other assistant public defenders. Id. at 42, 117 Ill.Dec. 266, 520 N.E.2d 617. As in Banks , the fact that Campanelli has supervisory authority over all the assistant public defenders in the office of the Cook County public defender is not sufficient grounds, in and of itself, to disqualify the entire office from representing codefendants.

¶ 45 Campanelli next argues that, in any event, the trial court abused its discretion in appointing her to represent Cole because she twice informed the court that a direct conflict of interest prevented her from zealously representing Cole. Campanelli points to her written submission to the court stating that there was a conflict in representing Cole with respect to her codefendants, but that "more detail cannot be given without violating the attorney-client privilege, which is the very thing the Public Defender is seeking to avoid via the appointment of counsel." When she appeared in court on the issue, Campanelli again told the court she was in conflict and could not "divulge attorney-client privilege information that I have learned about the other five codefendants in this case in order to tell you what the conflicts in this case are." Citing Holloway , Campanelli contends that it was enough to prove a conflict when she, as an officer of the court, represented that Cole would be prejudiced by her appointment.

¶ 46 Holloway held that if a potential conflict is brought to the attention of the trial court by counsel at an early stage, a duty devolves upon the trial court to either appoint separate counsel or take adequate steps to ascertain whether the risk of conflict was too remote to warrant separate counsel. Holloway , 435 U.S. at 484, 98 S.Ct. 1173 ; accord Spreitzer , 123 Ill. 2d at 18, 121 Ill.Dec. 224, 525 N.E.2d 30. Holloway found persuasive decisions holding that an attorney's request for the appointment of separate counsel, based upon his representations as an officer of the court regarding a conflict of interest, generally should be granted. Holloway , 435 U.S. at 485, 98 S.Ct. 1173. Holloway observed that those courts had considered that an attorney representing two defendants in a criminal matter is in the best position professionally and ethically to determine when a conflict of interest exists or will develop during the course of a trial, that defense attorneys have an obligation upon discovering a conflict of interest to advise the court of the problem, and that attorneys, as officers of the court, address the judge virtually under oath in making their declarations. Id. at 485-86, 98 S.Ct. 1173.

¶ 47 Campanelli argues that the trial court abused its discretion in ordering her to represent Cole in light of Campanelli's assertion that a conflict of interest prevented her from doing so. Campanelli contends that she cannot be ordered to divulge attorney-client privileged information in order to establish a conflict.

¶ 48 Campanelli is correct that counsel cannot be ordered to divulge attorney-client privileged information. However, Holloway explained that its holding did not preclude a trial court from exploring the adequacy of the basis of defense counsel's representations regarding a conflict of interest without improperly requiring disclosure of the confidential communications of the client. Id. at 487, 98 S.Ct. 1173. The trial court in this case never ordered Campanelli to divulge confidential communications in attempting to ascertain the basis for Campanelli's refusal to accept the appointment to represent Cole.

¶ 49 Campanelli then argues that the trial court erred in asking her to explain the direct conflict regarding the representation of Cole to the court. At oral argument, counsel for Campanelli argued that Campanelli need only allege a conflict of interest, without more, in order to withdraw from representation. Campanelli cites People v. Jones , 121 Ill. 2d 21, 28, 117 Ill.Dec. 164, 520 N.E.2d 325 (1988), in arguing she need only allege a potential or possible conflict in order to withdraw from representation.

¶ 50 Although Jones referenced a potential or possible conflict that might deprive a defendant of the effective assistance of counsel, Jones discussed a potential or possible conflict in the context of the proper procedure when a conflict is brought to the attention of the trial court. Jones noted that in Holloway , when a potential conflict is brought to the attention of the trial court by counsel before trial or at an early stage of trial, the trial court must take "adequate steps" to deal with it. Id. Jones then stated that if "adequate steps" are not taken, the fact of a potential or possible conflict might deprive the defendant of the guaranteed assistance of counsel. Id. Spreitzer explained that adequate steps require a court to "ascertain whether the risk of conflict was too remote to warrant separate counsel." Spreitzer , 123 Ill. 2d at 18, 121 Ill.Dec. 224, 525 N.E.2d 30. The question in this case, then, is whether the trial court properly found that the risk of conflict in the representation of Cole was too remote to warrant separate counsel.

¶ 51 A defendant raising a potential conflict between two public defenders need only present the gist of such a conflict. People v. Hardin , 217 Ill. 2d 289, 303, 298 Ill.Dec. 770, 840 N.E.2d 1205 (2005). "The defendant must sketch, in limited detail, a picture of how the working relationship between the public defenders created an appearance of impropriety." Id. However, bare allegations of a conflict are not enough, and in the absence of an evidentiary record of conflict, a conflict should not be created based on mere speculation. Id. at 302, 298 Ill.Dec. 770, 840 N.E.2d 1205. Relevant factors to consider include whether the two public defenders were trial partners in the defendant's case; whether the public defenders where in hierarchical positions where one supervised or was supervised by the other; or whether the size, structure, and organization of the office in which they worked affected the closeness of any supervision. Id. at 303, 298 Ill.Dec. 770, 840 N.E.2d 1205.

¶ 52 Here, the trial court found that Campanelli failed to provide any substantive basis that a conflict of interest prohibited her from providing legal representation to Cole. Upon review, we find no abuse of discretion in the trial court's finding. None of the factors deemed relevant in Hardin are set forth in the record in this case with regard to the representation of Cole. Campanelli conceded that Cole's codefendants were represented by attorneys from the public defender's multiple defendant division. The office of the Cook County public defender describes the multiple defendant division as follows:

"Attorneys assigned to the Multiple Defendant Division (MDD) of the Law Office of the Cook County Public Defender represent clients in felony and first degree murder cases where more than one person is accused. These attorneys are very experienced and represent indigent accused throughout the county. They act independently of other divisions in the office to prevent any effects from a conflict between Public Defender clients." Divisions of the Public Defender's Office , Cook County Gov't, http://cookcountyil.gov/service/divisions-public-defenders-office (last visited Nov. 8, 2017).

Although Campanelli contends that the multiple defendant division itself is always in conflict, that assertion is based upon her argument that the office of the Cook County public defender is a law firm, as well as her argument that she is the appointed counsel to all the defendants her office represents. As discussed supra , we have rejected these arguments.

¶ 53 Campanelli also acknowledged that there were approximately 518 attorneys employed by the office of the Cook County public defender and those 518 attorneys did not all share the same supervisors. Further, the attorneys assigned to represent Cole's codefendants were from different divisions of the public defender's office, and each had a different supervisor. These facts mitigate against a finding of conflict of interest in Campanelli's representation of Cole.

¶ 54 Although a defendant need only present the gist of a conflict, we find that Campanelli proffered only the bare allegations of a conflict, based on mere speculation. In the court hearing on May 10, 2016, when asked to explain the direct conflict to the court, Campanelli clarified that there was a potential for conflict and asserted that she did not have to wait until a conflict developed. In her written submission to the court, Campanelli claimed that there was a conflict of interest whenever she was appointed to represent multiple defendants. Again, at the May 19, 2016, hearing, Campanelli stated that she could not represent more than one defendant because of the potential conflict, although she acknowledged that each codefendant was represented by separate attorneys from different divisions of her office, with different supervisors. At the June 15, 2016, hearing, Campanelli repeated that she was in conflict representing Cole because she already represented five other defendants.

¶ 55 Despite Campanelli's attempt to assert a conflict in the public defender's representation of Cole, it is clear that basis for Campanelli's conflict or potential conflict in representing of Cole arises solely from the fact that the office of public defender was appointed to represent more than one defendant in this multiple defendant case. Robinson and its progeny have consistently rejected that claim.

¶ 56 We note that even in her brief on appeal, Campanelli's argument concerning her conflict centers on a remote potential for conflict. She argues that it is all but inevitable in a joint representation that a conflict of interest will arise and that conflicts are difficult to discern at the outset of criminal litigation. Campanelli also argues that waiting to appoint conflict-free counsel until a conflict reveals itself is wasteful and often prejudicial. In addition, Campanelli asserts that conflicts that do not exist at the outset of a representation may arise later in the case.

¶ 57 These "potential conflicts," however, are the type that may exist in every case involving multiple representation of codefendants. Cuyler recognized that "a possible conflict inheres in almost every instance of multiple representation." Cuyler , 446 U.S. at 348, 100 S.Ct. 1708. Nonetheless, the United States Supreme Court and this court have declined to find a per se conflict of interest simply because multiple representation may involve a conflict of interest.

¶ 58 At best, Campanelli's claims of conflict are based upon mere speculation that joint representation of codefendants by assistant public defenders will, at some point, result in conflict. These claims fail to provide an evidentiary record of conflict, and a conflict cannot be created on mere speculation.

¶ 59 As noted, under Holloway and Spreitzer , when a potential conflict is brought to the attention of the trial court at an early stage, a duty devolves upon the trial court to either appoint separate counsel or to take adequate steps to ascertain whether the risk of conflict was too remote to warrant separate counsel. Here, the trial court took adequate steps to ascertain that the risk of conflict was too remote to warrant separate counsel. Under the circumstances, then, the trial court did not abuse its discretion in finding that there would be no prejudice to Cole in appointing the office of the Cook County public defender to represent her.

¶ 60 Having found that the trial court did not abuse its discretion in ordering Campanelli to represent Cole, it follows that the trial court did not err in adjudicating Campanelli to be in direct civil contempt of court. Section 3-4006 of the Counties Code provides that "[t]he Public Defender, as directed by the court, shall act as attorney, without fee, before any court within any county for all persons who are held in custody or who are charged with the commission of any criminal offense, and who the court finds are unable to employ counsel." (Emphasis added.) 55 ILCS 5/3-4006 (West 2016). Here, the trial court directed Campanelli, the public defender, to act as attorney for Cole. Campanelli refused the trial court's direction. The trial court therefore properly invoked its inherent power to enforce its order and preserve the dignity of the court by use of contempt proceedings.

¶ 61 Accordingly, we affirm the trial court's judgment finding Campanelli to be in direct civil contempt and imposing sanctions for that contempt. We note, however, that the record is clear that the trial court understood Campanelli's contempt was purely a formal one and that the motivation for the contempt was solely to permit an appeal of the issue of multiple representation of defendants in light of the 2010 revisions to the Illinois Rules of Professional Conduct. Given these circumstances, we vacate the order of the trial court holding Campanelli in contempt and vacate the award of sanctions, despite our finding that the contempt order and award of sanctions were valid. See Shukovsky , 128 Ill. 2d at 231, 131 Ill.Dec. 69, 538 N.E.2d 444 (vacating contempt order where contempt was purely formal and motivation was to permit examination of a question through appeal); Jiotis v. Burr Ridge Park District , 2014 IL App (2d) 121293, ¶ 57, 378 Ill.Dec. 631, 4 N.E.3d 514 (where contemnor refuses to comply with court order in good-faith effort to secure an interpretation of an issue without direct precedent, it is appropriate to vacate the contempt on appeal).

¶ 62 Moreover, because the underlying case against Cole has continued to proceed with appointed counsel since May 19, 2016, we find, for purposes of judicial economy, that appointed counsel shall continue to represent Cole in the underlying case. We decline to order Campanelli to now accept representation of Cole.

¶ 63 For all the preceding reasons, we affirm the judgment of the circuit court of Cook County finding contemnor Amy Campanelli to be in direct civil contempt and imposing sanctions for that contempt. Nonetheless, we vacate the trial court's order adjudicating Campanelli in contempt and imposing sanctions.

¶ 64 Circuit court judgment affirmed.

¶ 65 Adjudication of direct civil contempt vacated.

Chief Justice Karmeier and Justices Freeman, Kilbride, Garman, Burke, and Theis concurred in the judgment and opinion.

      At a hearing on July 18, 2016, the trial court granted Campanelli's motion to withdraw from the representation of codefendants Whitehead and Reed, finding a conflict of interest existed where Whitehead and Reed had been charged with intimidating codefendant Washington.