Update: April 20, 2006 - This appeal was filed with the Appellate Court of Illinois, First District. The appellees in this matter, Judge James Riley, Judge Kathleen McGury, Attorneys Margaret Benson, Michael Bergmann, and Theresa Ceko did not file a reply brief in this matter. It would seem if they did not file a reply brief my issues should be construed as true and accurate. I will post an update when this appellate court makes a decision in this matter. Sometimes this appellate court acts as if it is the appellee when they make a ruling against the one who submits a brief and there is no other brief to examine opposing what is in front of them.
This is how the Judges at the Daley Center in Chicago Illinois conduct daily business. This is the second appeal filed in this matter. The appellees reply brief was due on April 10, 2006. This appellate court ruled against me in the first appeal even though the appellees did not file a reply brief. It appears this appellate court acts as the appellee. I will update the results.
The following is the brief without the table of contents, nature of the action, and points and authorities. The letters and numbers you see in brackets point to parts of the court record, such as an affidavit, transcripts, court orders, various motions filed, etc. These documents can be viewed through the freedom of information act. They are public documents.
Issues Presented for Review
1. Whether the trial court violated Nance’s 1st Amendment right to free expression and speech, and 14th Amendment Due Process Rights.
2. Whether Judges Kathleen M. McGury and James G. Riley abused their discretion violating the 1st Amendment free expression and speech clause and 14th Amendment Procedural Due Process clause, the Codes of Judicial Misconduct and their Judicial Adjudicative Responsibilities.
3. Whether Attorneys Theresa Ceko (Guardian ad litem for the minor child and Loyola University Community Law Center), Michael Bergmann and Margaret Benson (Attorneys for Johnson, the guardian of the minor child and Chicago Volunteer Legal Services Foundation) violated Supreme Court Rule 137 and the Rules of Professional Conduct.
4. Whether the Attorney Registration and Disciplinary Commission (ARDC) violated Nance’s 1st and 14th Amendment rights by not acting on his allegations and restricting communication between Nance and the ARDC .
5. Whether the Judicial Inquiry Board violated Nance’s 1st and 14th Amendment rights and discriminated against Nance for its non-action to his complaints.
Jurisdiction
Jurisdiction is conferred upon this Court in accordance with Supreme Court Rule 301. Nance filed a civil complaint in the First Judicial District of Illinois. All parties to the complaint reside or practice their professions in the First Judicial District of Illinois. This civil action was taken in the Circuit Court of Cook County, Illinois, County Department, Probate Division. This is an appeal on all claims and on all parties, that is, Attorneys Theresa Ceko, Margaret Benson, Michael Bergmann, and Judges Kathleen McGury and James Riley in this matter. The Court orders appealed are from April 20, 2005 (R. C443), May 20, 2005 (R. C467, 2 pgs.), June 10, 2005 (R. C505), June 24, 2005 (R. C541), July 1, 2005 (R. C814), July 15, 2005 (R. C857-859), July 25, 2005 (R. C876), August 25, 2005 (R. C883-885), September 29, 2005 (R. C886), October 14, 2005 (R. C890), November 2, 2005 (R. C891), and January 25, 2006 (R. A 49). An appeal to this Court was timely, in that, a final judgment was made on November 2, 2005 and the appeal was filed with the Circuit Court, Probate Division, on November 28, 2005.
Statement of Facts
1. The trial court granted Nance visitation with the minor child, Romeo Ashford, every other weekend on June 27, 2000. (R. C56)
2. Nance has continuously requested this trial court find the respondent, Julia Johnson, in violation of the visitation order of June 27, 2000. (R. C 60-75, 67-72, 136-140, 146-148, 157-161, 167-171)
3. On April 8, 2005 Nance filed a motion to re-appoint and compel. (R. C438-442).
4. On April 20, 2005 the court did not compel Johnson to adhere to the visitation order of June 27, 2000. (R.C443)
5. On May 3, 2005 Nance filed a rule to show cause. (R. C447-451)
6. Nance’s rule to show cause on May 3, 2005 reports, in part, Michael Bergmann (Bergmann) attorney for Johnson stated Nance did not have standing to pursue his motion to re-appoint and compel. (R. C447, ¶1)
7. On May 20, 2005 attorney Theresa Ceko (Ceko), Guardian ad litem (GAL) for the minor child Romeo Ashford, filed a “Report of the Guardian ad litem.” (R. C452-462)
8. On May 20, 2005 Judge Kathleen McGury entered an order, based in part on the GAL’s report, stating in part, Nance’s rule to show cause was stricken, GAL’s oral motion for supervised visitation is entered and continued, and the matter continued until July 25, 2005. Judge McGury did not compel respondent to release minor child for visitation pursuant to the trial court order of June 27, 2000. (R. C467)
9. On May 23, 2005 Nance filed a motion to respond to the GAL’s report. (R. C469-471 et seq.)
10. On May 23, 2005 Nance filed a complaint against Illinois Cook County Sheriffs’ in Judge McGury’s courtroom for harassment and intimidation. (R. C596-599, 502)
11. On June 3, 2005 Nance filed a motion to find Johnson in contempt of court for denying Nance visitation. (R. C474-475)
12. On June 10, 2005 Judge McGury continued Nance’s motions again. (R. C505)
13. On June 12, 2005 Nance filed a complaint against Bergmann and Ceko with the Attorney Registration and Disciplinary Commission of the Supreme Court of Illinois. (R. C604-643)
14. On June 13, 2005 Nance filed a complaint against Judge McGury with the State of Illinois Judicial Inquiry Board. (R. C600-603)
15. On June 14, 2005 Nance received a response letter from the Judicial Inquiry Board. (R. C595)
16. On June 16, 2005 Nance received a response letter from the ARDC. (R. C593-594)
17. On June 20, 2005 Nance filed a motion to find Johnson in contempt of court for denying Nance visitation. (R. C480-488)
18. On June 24, 2005 Nance filed a motion to amend/supplement establishing visitation and standing rights of a grandparent…. (R. C534-540)
19. On June 24, 2005 Ceko filed a motion to terminate visitation and for sanctions against Nance, which has filed stamped date of July 1, 2005. (R. C798-806)
20. On June 24, 2005 Judge McGury entered an order suspending Nance’s visitation and giving Nance 7 days to respond to Ceko’s motion to terminate visitation and for sanctions against Nance. (R. C541)
21. On June 24, 2005 Nance filed a motion to recuse Judge McGury. (R. C588-591)
22. On June 24, 2005 Judge McGury granted a change of venue. (R. C532)
23. On June 24, 2005 Presiding Judge Henry A. Budzinski reassigned the case through a lottery system to Probate Calendar Number 13, which is Judge James Riley. (R. C532)
24. On June 28, 2005 Nance filed a complaint with Administrator Mary Robinson of the Attorney Registration and Disciplinary Commission of the Illinois Supreme Court, and with the Clerk of the Circuit Court on June 29, 2005. (R. C644)
25. On June 28, 2005 Genesis Nance, minor child Romeo Ashford’s mother, created an affidavit refuting Ceko’s accusations against Nance. (R. C 583-584)
26. On June 29, 2005 Nance filed his response to Ceko’s motion to terminate visitation and sanctions, and his request for sanctions against Ceko (Loyola University Community Law Center) and Bergmann (Chicago Volunteer Legal Services Foundation) with supporting documentation. (R. C549-582, 583-584, 585, 586, 608-643)
27. On July 1, 2005 Nance presented his motion to Judge James Riley filed as “Recuse Judge McGury and reinstate visitation. (R. C810-813)
28. On July 1, 2005 Nance presented 3 witnesses, his 74-year-old mother, his stepdaughter, and the minor child’s brother for testimony. (R. TR 3, p. 2, L 2-5)
29. Nance stated, “I am here on a motion to reinstate my visitation rights. (R. TR 3, p. 2, L 7-8)
30. Judge Riley responded, “Is there an Order terminating the visitation? (R. TR 3, p. 2, L 21-22); How long ago was this order? (R. TR 4, p. 3, L 3)
31. Nance replied, “…because it was bogus.” (R. TR 4, p. 3, L 7-9)
32. Judge Riley responded, “What other issues are pending?” (R. TR 5, p. 4, L 14)
33. Nance replied, “My motions were in front of the Court, and the Judge [McGury][emphasis added] refused to hear it.” (R. TR 6, p. 5, L 11-12)
34. Nance stated, “…I have an affidavit from my daughter about these false allegations to suspend my visitation.” (R. TR 6, p. 5, L 13-15)
35. Judge Riley responded, “Is your daughter here today?” (R. TR 6, p. 5, L 16)
36. Nance replied, “She is at work. (R. TR 6, p. 5, L 17)
37. Judge Riley responded, “Your affidavit is no good.” (R. TR 6, p. 5, L 19)
38. Nance replied, “I am presenting an affidavit. I would like testimony from my witnesses about my visitation with Romeo, your honor.” (R. TR 7, p. 6, L 1-3)
39. Judge Riley responded, “If you just filed it last Friday, it’s not being heard today.” (R. TR 7, p. 6, L 10-11)
40. Ceko stated, “May I respond. I am the GAL. After extensive interviewing of my client, nine-year-old Romeo, I put together this motion to eliminate visitation….” (R. TR 7, p. 6, L 17-20)
41. Nance replied, “I object.” (R. TR 8, p. 7, L 1)
42. Judge Riley responded, “Quiet.” (R. TR 8, p. 7, L 2)
43. Ceko stated, “…The Department of Supportive Services, which I believe will be crucial in this matter….” (R. TR 8, p. 7, L 6-7)
44. Nance stated to Judge Riley, “You are saying that this affidavit from my daughter is no good about this suspension?” (R. TR 8, p. 7, L 14-15)
45. Judge Riley responded, “That’s correct.” Affidavits don’t testify.” (R. TR 8, p. 7, L 16-17)
46. Nance replied, “What do they support? I am supporting my motion that I brought, today, in front of you. That’s what’s in front of this court today is the motion to reinstate my visitation.” (R. TR 8, p. 7, L 18-22)
47. Judge Riley responded, “No. Your time is for July 25th.” (R. TR 9, p. 8, L 1)
48. Judge James G. Riley entered an order setting a hearing for Nance’s petition for reinstatement of his visitation and other pending motions to July 25, 2005. (R. C814)
49. Nance wrote a letter to the Attorney Registration and Disciplinary Commission (ARDC) of the Supreme Court of Illinois. (R. C819-821)
50. On July 1, Nance wrote a letter to Chief Judge Timothy Evans and Presiding Judge Henry Budzinski with supporting documentation. (R. C822-829)
51. On July 1, 2005 Nance wrote a letter to Ms. Mary Robinson, Administrator of the Illinois ARDC of the Supreme Court. (R. C819-821)
52. On or about July 1, 2005 Nance received a response letter from the ARDC. (R. C830)
53. On July 5, 2005 Nance filed a motion to recuse Judge Riley from this matter. (R. C815-818)
54. On July 15, 2005 Nance filed a motion to recuse Judge Riley. (R. C836-839)
55. On July 15, 2005 Nance stated, “Before you this morning, your honor, I have a motion to recuse the judge. (R. TR 13, p. 2, L 5-6)
56. Judge Riley responded, “Hold on. We can proceed on your motion for recusal. I’m not recusing myself. Are you asking for an SOJ…?” (R. TR 13, p. 2, L 10-12)
57. Nance replied, “I’m pro se. I think I’m asking to not be in front of you litigating this case.” (R. TR 13, p. 2, L 13-15)
58. Judge Riley responded, “Well, I would read that then as a motion for Substitution of Judge. Now, you have other motions pending, motion for visitation, and there are other issues pending which are set for trial on July 25th.” (R. TR 13, p. 2, L 16-20)
59. Nance replied, “I have a question about that.” (R. TR 13, p. 2, L 21)
60. Judge Riley stated, “You can only have so many questions.” (R. TR 13, p. 2, L 22-24)
61. Judge Riley stated, “If you want to persist in that motion, everything else is stopped until that motion is heard. It maybe a month or two before that motion gets heard.” (R. TR 14, p. 3, L 13-16)
62. Nance replied, “It maybe a month or two? That means my visitation is going to be stopped that long?” (R. TR 14, p. 3, L 17-18)
63. Judge Riley stated, “Absolutely…So either you can stay in this court and maintain your case or you can go to another court.” (R. TR 14, p. 3, L 19-22)
64. Nance stated, “Can I make this part of the record. Judge Riley responded, “What?” Nance replied, “A letter, January 2001, to Judge Budzinski on the SOJ.” Judge Riley responded, “No.” Nance replied, “It’s why I’m asking to not be in front of you.” (R. TR 15, p. 4, L 8-15)
65. Nance stated, “You’re using my motion to litigate my daughter’s case that she filed separately from me? (R. TR 18, p. 7, L 17-19)
66. Judge Riley stated, referring to my daughter’s petition to regain custody of the minor child, “Right. Because if your daughter is successful, then I don’t have to worry about your motion for visitation.” (R. TR 18, p. 7, L 20-22)
67. Nance stated, in regards to the June 27, 2000 visitation order, “…I have motions for the respondent being in violation of the court order.” (R. TR 19, p. 8, L 3-4)
68. Judge Riley responded, “Those would become moot and disappear if the child is returned to the mother.” (R. TR 19, p. 8, L 5-6)
69. Judge Riley stated, talking to Ceko, “In your absence, Mr. Nance indicated that he wanted an SOJ. He called it a recusal. I’m not recusing myself, but I treated it as an SOJ. (R. TR 19, p. 8, L 16-19)
70. Nance responded, “About that order, I’m not acknowledging anything as she has that written. Because you’re keeping these cases combined when Genesis case is separate from mine. I’m not acknowledging that.” (R. TR 20, p. 9, L 1-5)
71. Judge Riley replied, “Can you give me a second to read this.” (R. TR 20, p. 9, L 6-7)
72. Judge Riley stated, “This is exactly what we described on the record.” (R. TR 20, p. 9, L 9-10)
73. Nance responded, “I did not acknowledge…she uses the words “Nance acknowledges.” She’s saying that I’m going along with that. That’s what that phrase means, and I’m not.” (R. TR 20, p. 9, L 11-14)
74. Judge Riley replied, “It’s signed.” (R. TR 20, p. 9, L 22)
75. Nance replied, “I don’t have a problem as long as it’s on the record.” (R. TR 20, p. 9, L 23-24)
76. The motion for recusal of Judge Riley was transferred to Presiding Judge Budzinski. (R. C857)
77. Judge Riley entered an order written by Attorney Margaret Benson, which Nance objected to, stating Nance acknowledged the trial dates before Judge Riley would be stricken and the hearings currently scheduled for July 25, 2005 are stricken. (R. C858)
78. On July 19, 2005 Nance filed a motion to find the respondent in contempt of court. (R. C861-865)
79. On July 25, 2005 Nance filed a motion to find respondent in contempt of court. (R. C868-872)
80. On July 25, 2005 Judge Miriam Harrison entered an order setting Nance’s petition to SOJ Judge Riley to August 25, 2005. (R. C876)
81. On July 26, 2005 Nance filed a notice of issuance of subpoena for deposition requesting documents only to the Markham Police Department and Cook County Sheriff’s Department regarding respondent Johnson. (R. C Pl. Ex. pp. 877-878, 881)
82. On August 25, 2005 Judge Harrison denied Nance’s motion for SOJ. (R. C883-84)
83. On September 19, 2005 the Illinois Cook County Department of Supportive Services filed its report. (R. C783-797)
84. On September 29, 2005 Nance presented to Judge Riley his motion filed on June 29, 2005 (paragraph 26 above) responding to Ceko’s motion to terminate visitation and for Sanctions and Request for Sanctions against Loyola University Community Law Center (Ceko) and Chicago Volunteer Legal Services Foundation (Bergmann and Benson). (R. C645-782)
85. On September 29, 2005 Judge Riley entered an order stating the guardianship of Julia Johnson was terminated instanter, that the minor child Romeo Ashford is returned to his mother Genesis Nance instanter, and that all pending orders are moot. (R. C886) Judge Riley refused to hear or entertain the motion for sanctions.
86. In the order of September 29, 2005 Benson wrote, in part, “…The GAL advised the court that she recommends that the guardianship be discharged based on her investigation and the Department of Supportive Services (DSS) report.” (R. C886)
87. On September 30, 2005 Nance filed an additional motion for sanctions against Loyola University Community Law Center (Ceko) and Chicago Volunteer Legal Services Foundation (Benson and Bergmann) stating this motion was filed on June 29, 2005 and not heard by the trial court requesting it be heard on October 14, 2005. (R. C887-889)
88. On October 14, 2005 the trial court entered an order continuing the matter to November 2, 2005 because Judge Riley was not available. (R. C890)
89. On November 2, 2005 Nance stated, “I have a petition here to find the GAL, and attorney, Michael Bergmann, a motion for sanctions, Your Honor, that I filed back in June.” (R. TR 24, L 11-13)
90. Judge Riley stated, “All right. What’s your argument?” (R. TR 24, L 14)
91. Nance replied, “My argument is my petition and I stand on my petition. I would submit this as my exhibit in this case.” (R. TR 24, L 15-17)
92. Judge Riley responded, “You want to submit something other than what you have submitted? (R. TR 24, L 18-19)
93. Nance replied, “Yes, an exhibit to this matter to support my argument that I have for my petition.” (R. TR 24, L 20-21)
94. Nance stated, “These are police reports on the respondent.” (R. TR 24, L 24; 25, L 1)
95. Judge Riley responded, “Police reports on what respondent?” (R. TR 25, L 2)
96. Nance replied, “On the respondent in this case, Julia Johnson.” (R. TR 25, L 3-4)
97. Judge Riley responded, “Well, let’s start with your complaint against Ms. Ceko first. What did you want me to do with Ms. Ceko?” (R. TR 25, L 6-8)
98. Nance replied, “I have it in my relief….” (R. TR 25, L 9-10)
99. Judge Riley responded, “So, you want to stand solely on …” (R. TR 25, L 11)
100. Nance replied, “Solely on my written petition.” (R. TR 25, L 12)
101. Nance stated, “…Can I put this in as an exhibit, Your Honor?” (R. TR 26, L 15-16)
102. Judge Riley replied, “What’s the relevance of that?” (R. TR 26, L 17)
103. Nance responded, “The relevance of this is the information that Ceko gathered on me supposedly was from that….” (R. TR 26, L 18-21)
104. Judge Riley replied, “Her client is not Julia Johnson. It was the minor child.” (R. TR 26, L 22-23)
105. Nance responded, “Right. But she got information from the guardian that she filed her motion against me. So, in this court you used that motion to terminate my visitation.” (R. TR 26, L 24; R. TR 27, L 1-3)
106. Judge Riley replied, “What Judge did that?” (R. TR 27, L 4)
107. Nance responded “You did.” (R. TR 27, L 5)
108. Judge Riley replied, “No, I never entered an order for that.” (R. TR 27, L 6-7)
109. Nance responded, “Well, I asked Your Honor to reinstate it and you refused to reinstate it on the grounds of the same argument.” (R. TR 27, L 9-11)
110. Judge Riley replied, “Well, I never heard argument at all on that issue.” (R. TR 27, L 12-13)
111. Nance responded, “Well, can you tell me why you terminated it?” (R. TR 27, L 14-15)
112. Judge Riley replied, “We never had a hearing on your motion, because prior to that motion being heard we terminated the guardianship.” (R. TR 27, L 16-18)
113. Nance responded, “Before the termination of the guardianship, you agreed…because I tried to address the fact that my visitation was stopped.” (R. TR 27, L 20-22)
114. Judge Riley replied, “I understand that. I remember those arguments.” (R. TR 27, L 23-24)
115. Nance replied, “Right. And you stood on the previous order saying it was substantiated. (R. TR 28, L 1-2)
116. Judge Riley responded, “No. I didn’t. I said the previous order stood until we can have a hearing whether we will terminate the guardianship. Is there anything particular in these reports you want me to look at?” (R. TR 28, L 3-6)
117. Nance replied, “No. I want to put that in as an exhibit, and I want to present that to the appellate court.” (R. TR 28, L 7-8)
118. Judge Riley responded, “Well, these are nothing but police reports. (R. TR 28, L 9-10)
119. Judge Riley continued, “Police reports are not evidence.” (R. TR 28, L 13)
120. Nance replied, “As long as I got it on the record that I asked that that be my exhibit. So, you are refusing my exhibit?” (R. TR 28, L 14-16)
121. Judge Riley responded, “Yeah. You can have it all back. Anything else you want to say against Ms. Ceko that you haven’t said yet?” (R. TR 28, L 17-19)
122. Nance replied, “It’s in my motion.” (R. TR 28, L 20)
123. Judge Riley responded, “The motion for sanctions against Ms. Ceko is denied. Now, let’s turn to your other petition.” (R. TR 28, L 21-23)
124. Nance responded, “I stand on my petition….” (R. TR 28, L 24)
125. Judge Riley spoke to Benson stating, “What do you want to say in response?” (R. TR 29, L 2-3)
126. Benson replied, “We represented Julia Johnson pursuant to the Code of Ethics and I stand by our representation.” (R. TR 29, L 4-6)
127. Judge Riley stated, “Is there anything else you want to add to that, Mr. Nance?” (R. TR 29, L 7-8)
128. Nance replied, “I stand on my petition….” (R. TR 29, L 9-10)
129. Judge Riley stated, “The motions for sanctions are denied….” (R. TR 29, L 23-24)
130. On November 2, 2005 Judge Riley entered an order denying sanctions against Ceko, Benson, and Bergmann. (R. C891)
131. On November 28, 2005 Nance filed an appeal with the Clerk of the Circuit Court of Cook County in this matter. (R. C892)
132. On November 29, 2005 Nance certified he mailed hard copies of the Notice of Appeal filed with the Clerk of the Circuit Court of Cook County. (R. C892)
133. On December 6, 2005 Nance filed a proposed Bystanders Report. (A-53-63)
134. On or about December 30, 2005 Benson and Ceko filed a motion to reschedule the hearing on Nance’s proposed Bystanders Report. (A-73-75)
135. On or about January 10, 2006 Benson and Ceko filed motions to reschedule the hearing, objections to Nance’s proposed Bystanders Report and their proposed Bystanders Report. (R. Vol. 5, pp. 40-48)
136. On January 18, 2006 Nance filed a motion objecting to Benson and Ceko’s proposed Bystanders Report. (R. Vol. 5, pp. 32-38)
137. On January 18, 2006 Nance filed a motion for extension of time to file the record on appeal with this Appellate Court. (A 19-27)
138. On January 24, 2006 Nance received an order from this Appellate Court granting an extension to file the record on appeal to March 1, 2006. (A 18)
139. On January 30, 2006 Nance filed an Emergency Motion for Bystander’s Report of Proceedings with this Appellate Court. (A 40-47)
140. On January 30, 2006 Nance filed the record on appeal. (A-48)
141. On February 14, 2006 this Appellate Court denied Nance’s Emergency Motion for Bystanders Report of Proceedings filed on January 30, 2006. (A-64)
142. On February 15, 2006 Benson filed her proposed bystanders report for April 20 and May 20, 2005. (A 65-70)
143. After filing this appeal with the Appellate Court, Nance will post and publish his appeal on http://clickforjusticeandequality.blogspot.com/.
144. The decision of this Appellate Court will be published and posted also.
Argument
Pro Se Litigant-Standard of Review
Nance is a “pro se” litigant requesting this Honorable Appellate Court should liberally construe his appeal for the redress of sanctions against on Margaret Benson, Michael Bergmann and Theresa Ceko. In addition finding Judges Kathleen McGury and James Riley guilty of abuse of discretion, violating the Code of Conduct and violating Nance’s 1st and 14th Amendment rights. Castro v. United States, 290 F.3d 1270 (2003) reports courts sometimes will ignore the legal label that a pro se litigant attaches to a motion and recharacterize the motion in order to place it within a different legal category. See, e.g., Raineri v. United States, 233 F.3d 96, 100 (CA1 2000); United States v. Detrich, 940 F.2d 37, 38 (CA2 1991); United States v. Miller, 197 F.3d 644, 648 (CA3 1999); Raines v. United States, 423 F.2d 526, 528, n. 1 (CA4 1970); United States v. Santora, 711 F.2d 41, 42 (CA5 1983); United States v. McDowell, 305 F.2d 12, 14 (CA6 1962); Henderson v. United States, 264 F.3d 709, 711 (CA7 2001); McIntyre v. United States, 508 F.2d 403, n. 1 (CA8 1975) (per curiam); United States v. Eatinger, 902 F.2d 1383, 1385 (CA9 1990) (per curiam); United States v. Kelly, 235 F.3d 1238, 1242 (CA10 2000); United States v. Jordan, 915 F.2d 622, 625 (CA11 1990); United States v. Tindle, 522 F.2d 689, 693 (CADC 1975) (per curiam).This Court may do so in order to avoid an unnecessary dismissal, e.g., id., at 692—693, to avoid inappropriately stringent application of formal labeling requirements, see Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam), or to create a better correspondence between the substance of a pro se motion’s claim and its underlying legal basis. See Hughes v. Rowe, 449 U.S. 5, 10 (1980) (per curiam); Andrews v. United States, 373 U.S. 334 (1963).
Nance’s Bystanders Report of Proceedings-Standard of Review
Illinois Supreme Court Rule 323(c), “If no verbatim transcript of the evidence of proceedings is obtainable the appellant may prepare a proposed report of proceedings from the best available sources, including recollection….The proposed report shall be served on all parties within 28 days after the notice of appeal is filed. Within 14 days after service of the proposed report of proceedings, any other party may serve proposed amendments or an alternative proposed report of proceedings.”
The Supreme Court Rules are not merely suggestions to be complied with if convenient but rather obligations which the parties and the courts are required to follow. Clymore v. Hayden, 278 Ill.App.3d 862, 869, 215 Ill.Dec. 512, 663 N.E.2d 755 (1996).
Discussion
Nance previously filed an appeal in this matter on or about December 1, 2000. This appellate court issued an order on or about August 2, 2002 stating, in part, “…the record shows that on June 27, 2000, the trial court entered an order giving Nance generous unsupervised visitation with Romeo every other weekend from 6 p.m. on Friday until 6 p.m. on Sunday.” (R. C 516) Nance has filed two motions, one on January 18, 2006 and the other on January 30, 2006 to this Appellate Court, regarding the trial court’s abuse of discretion and violation of due process in his efforts to produce to this appellate court a certified copy of a bystander’s report of proceedings. On January 24, 2006 this appellate court granted Nance an extension to file the record on March 1, 2006. Nance filed the record on appeal, minus the bystanders report, on January 30, 2006.
The motion filed with this appellate court on January 18, 2006 is supported by affidavit resting on Illinois Supreme Court Rules 323(c) and 137 with a copy of a motion filed in the trial court on January 18, 2006. (A 19-27) The motion filed on January 30, 2006 is supported by affidavit resting on Illinois Supreme Court Rule 323(c) and 361(g) with a copy of the trial court’s order entered on January 25, 2006. (A 40-49) Nance basically informed the trial court he filed his notice of appeal on November 28, 2005 and certified he mailed a copy to Benson, Bergmann and Ceko on November 29, 2005. Nance reported pursuant to Supreme Court Rule 323(c), …Within 14 days after service of the proposed bystanders report of proceedings , any other party may serve proposed amendments or an alternative proposed report of proceedings…within 28 days after the notice of appeal is filed a party can file its proposed bystanders report of proceedings. Benson, Bergmann and Ceko filed their objection to Nance’s bystanders report of proceedings and proposed bystanders report of proceedings on January 10, 2006. Benson, Bergmann and Ceko are clearly outside of Rule 323(c). On January 25, 2006 Judge McGury issued an order granting Benson, Bergmann and Ceko to file their objections to Nance’s bystanders report of proceedings and to file their proposed bystanders report of proceedings. (A 49) This Appellate Court denied Nance’s motion of January 30, 2006, which addressed Benson, Bergmann and Ceko’s late objections and proposed bystanders report. (A 64)
It appears Nance cannot get any substantial relief toward the Rule of Law. It appears this Appellate Court aligns itself with Benson, Bergmann and Ceko in circumventing Supreme Court Rule 323(c). On February 16, 2006 Nance received in the U.S. mail an unsigned document from Benson with the Circuit Court of Cook County’s filed stamp attached stating a proposed bystanders report for April 20, 2005 and May 20, 2005. (A 65-70) This violates Supreme Court Rule 137. Nance should receive signed documents from opposing counsel. Nance reported this same behavior to this Appellate court in his “motion to object to Benson’s Proposed Bystanders Report…” (R. Vol. 5, 32-38), yet this Appellate denied Nance’s motion submitted on January 30, 2006. (A 64)
During this arduous litigation, Nance’s fears of intimidation, harassment and lack of protection from the Cook County Sheriff’s deputies of Judge McGury’s courtroom could create situations to falsely accuse or incarcerate Nance. Therefore, Nance is left with a dilemma, which prevents Nance from acquiring a fair and appropriate bystanders report. Nance’s free exercise and expression will undoubtedly create passions within this distorted system leading to retaliation.
Thus, Nance must decline from an appearance in a court where the environment is hostile toward his continued constitutional freedoms. Nance has no protections from the court personnel and aggravating attorneys in this matter. (R. Vol. 5, p. 39) Nance attempted to get this protection from this Appellate Court. (A-64) Nance has alerted Chief Judge Timothy Evans, Presiding Judge Henry Budzinski and the Inspector General’s office of the Illinois Cook County Sheriff’s department of this impending doom. Therefore, Nance will not attend the court date of February 23, 2006 for the bystanders report due to threat of reprisal against him. Nance will have to stand on the common law record filed on January 30, 2006 filed in this Appellate Court, and his motions for a bystanders report on appeal. (A 19-27; A 40-47)
Due to the aforementioned statements of a hostile environment, Nance is prevented from providing this Appellate Court with a certified bystanders report of proceedings. Due to Nance’s suggesting a bystanders report to this Appellate Court, Nance may be penalized by this Appellate Court for not providing a “complete” record on appeal. Nevertheless, Nance is being denied the protections offered by the United States Constitution to be free to litigate without hindrance and threat of physical and emotional harm, in a hostile environment. The trial court should not produce or give the impression of a hostile environment. Nance has written many pieces about this hostile environment. [See http://clickforjusticeandequality.blogspot.com]
Violation of the Illinois Rules of Professional Conduct and Sanctions
Standard of Review
Illinois Supreme Court Rule: Article VIII. Illinois Rules of Professional Conduct Preamble states, “The practice of law is a public trust….Lawyers therefore are responsible for the character, competence and integrity of the persons whom they assist in joining their profession…and by defending the integrity of the judicial system against those who would corrupt, abuse or defraud it….To achieve these ends the practice of law is regulated by the following rules. Violation of these rules is grounds for discipline….This preamble therefore seeks to articulate those values…set forth in the Illinois Code of Professional Responsibility.”
Supreme Court Rule 771 addresses the types of discipline attorneys may be subjected to in Illinois. 134 Ill. 2d R. 771. The sanctions range from the severest, disbarment, to the most lenient, reprimand. See 134 Ill. 2d R. 771. The court has the ultimate responsibility for imposing attorney discipline. In re Chandler, 161 Ill. 2d 459, 472-73 (1994). In doing so, it strives to achieve predictability and fairness by imposing sanctions consistent with those imposed for similar misconduct. In re Howard, 188 Ill. 2d 423, 440 (1999). Nevertheless, this court should approach each case with the understanding that "the goal is not to punish the attorney but rather to protect the public from incompetent or unscrupulous attorneys, to maintain the integrity of the profession, and to protect the administration of justice from reproach." Howard, 188 Ill. 2d at 434.
Where corrupt motives and moral turpitude are not clearly shown, the proper punishment is suspension rather than disbarment. In re Chapman, 69 Ill. 2d 494, 501 (1978) Suspension is a proper punishment "where a corrupt motive and moral turpitude are not clearly shown", quoting In re Taylor, 66 Ill. 2d 567, 571 (1977), quoting In re Ahern, 23 Ill. 2d 69, 74 (1961).
Supreme Court Rule 137: When reviewing a sanctions award under Rule 137, the analysis focuses on whether the plaintiff's complaint was well-grounded in fact or law. Rule 137 imposes an affirmative duty on both litigants and attorneys to investigate the facts and law before filing an action, pleading, or other paper. Kellett v. Roberts , 281 Ill. App. 3d 461, 464 (1996). This rule requires an attorney to certify that "he has read the pleading, motion or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law." 155 Ill. 2d R. 137. If a party or attorney signs a pleading or other paper in violation of the rule, a court may impose sanctions upon the person who signed it, a represented party, or both. 155 Ill. 2d R. 137.
The purpose of Rule 137 is to prevent the abuse of the judicial process by penalizing claimants who bring vexatious and harassing actions based upon unsupported allegations of fact or law. Fremarek v. John Hancock Mutual Life Insurance Co. , 272 Ill. App. 3d 1067, 1074 (1995), and harassing actions without sufficient foundation. This rule is penal in nature and must be strictly construed. A trial court's decision whether to impose sanctions will not be reversed absent an abuse of discretion. Amadeo v. Gaynor, 299 Ill. App. 3d at 701, 701 N.E.2d at 1143 (1998). This standard of review, however, does not prevent the appellate court from independently reviewing the record and finding an abuse of discretion if the facts so warrant. Walsh v. Capital Engineering & Manufacturing Co., 312 Ill. App. 3d 910, 914, 728 N.E.2d 575, 578-79 (2000).
Discussion
On November 2, 2005 trial court Judge James Riley held a hearing on Nance’s request for Sanctions against Benson, Bergmann and Ceko. (R. C 645-782) Judge Riley did not consider any evidence nor did he read Nance’s complaint. If he read Nance’s complaint, he did not consider the material facts, evidence, or case law supporting Nance’s allegations for sanctions against Benson, Bergmann and Ceko. Judge Riley did not examine Ceko’s complaint seeking the false statements Nance reported. When Judge Riley asked Nance to articulate his allegations, Nance informed Judge Riley he was standing on his complaint. Judge Riley gave no signal he had examined Nance’s complaint in search of truth or falsity to Nance’s claims. (R. C 549-587) Judge Riley denied Nance’s petition for sanctions. (R. TR 23-31)
Ceko filed a false and frivolous pleading, that is, her motion to terminate Nance’s visitation and sanctions, in the trial court. (R. C 798-809) Illinois Supreme Court Rule 137 was adopted to discourage false and frivolous pleadings and to punish those who file groundless law suits. Cult Awareness Network v. Church of Scientology International, 177 Ill. 2d 267, 279, 685 N.E.2d 1347, 1353-54 (1997); Estate of Hoover, 155 Ill. 2d at 419, 615 N.E.2d at 743. See also Olsen v. Staniak, 260 Ill. App. 3d 856, 864, 632 N.E.2d 168, 175 (1994) (the purpose of imposing the sanction is to prevent abuse of the judicial process and punish a party who brings vexatious litigation predicated upon false statements).
Rule 137 states that both the parties and the attorneys have an affirmative duty to conduct an inquiry of the facts and the law before filing an action, pleading, or other paper and that the failure to make such an inquiry could subject them to sanctions. 155 Ill. 2d R. 137; see Amadeo v. Gaynor, 299 Ill. App. 3d 696, 700, 701 N.E.2d 1139, 1142-43 (1998). The rule requires a party or litigant to (1) sign pleadings and other papers to certify that he or she has read the document, (2) make reasonable inquiry into its basis, (3) believe that it is well-grounded both in fact and in law or that there is a good-faith argument for the extension, modification, or reversal of existing law, and (4) not interpose it for any improper purpose, such as harassment, unnecessary delay, or needless increase in the cost of the litigation. 155 Ill. 2d R. 137. Ceko, Benson and Bergmann did not conduct an appropriate inquiry of the facts before filing her motion.
On December 31, 2005 Benson supposedly filed a Motion to Reschedule Hearing, which Nance received without a signature and court file stamp attached to it. On January 10, 2006 Benson supposedly filed her objections to Nance’s bystanders report and her proposed bystanders report of proceedings, which Nance received having a court file stamp without a signature attached to it. (R. Vol. 5, 40-48) On or about February 15, 2006 Benson filed proposed bystanders report of proceedings for April 20th and May 20th, 2005, which were received by Nance without signatures attached to them. (A 65-70) Every pleading Nance has filed with the Clerk of the Circuit Court, the Clerk has demanded Nance sign each pleading in order to file his documents.
Benson’s motions violates Supreme Court Rule 137, Signing of Pleadings, Motions, and Other Papers – Sanctions, reports, “Every pleading, motion and other paper of a party represented by an attorney shall be signed by at least one attorney of record in his individual name, whose address shall be stated. A party who is not represented by an attorney shall sign his pleading, motion, or other paper and state his address…. The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. If a pleading, motion, or other paper is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the pleader or movant. If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, may impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of reasonable expenses incurred because of the filing of the pleading, motion or other paper, including a reasonable attorney fee.” Judge McGury did not strike these pleadings even though Nance brought it to her attention.
Ceko is employed by Loyola Community Law Center. Bergmann and Benson are employed by Chicago Volunteer Legal Services Foundation. A principal is liable for the acts of its agent committed within the scope of her authority. Brubakken v. Morrison, 240 Ill. App. 3d 680, 608 N.E.2d 471 (1992). Brubakken upheld the entry of sanctions against the law firm that employed the lawyer who committed the sanctionable conduct. Good faith alone is not a defense to sanctionable conduct. An objective standard of reasonableness based upon the entirety of the circumstances must be applied. In re Marriage of Irvine, 215 Ill. App. 3d 629, 638, 577 N.E.2d 462, 468 (1991).
Nance’s rule to show cause on May 3, 2005 reports, in part, Attorney Michael Bergmann (Bergmann) of the Chicago Volunteer Legal Foundation and attorney for respondent Johnson stated Nance did not have standing to pursue his motion to re-appoint and compel. (R. C 447, ¶1) Under Illinois law, a plaintiff need not allege facts establishing standing. Rather, it is the defendant's burden to plead and prove lack of standing. On June 24, 2005 Nance filed a motion to amend/supplement establishing visitation and standing rights of a grandparent… (R. C 535-540) Bergmann’s statement to Judge McGury denying Nance’s visitation flew directly in the face of established law and Illinois State statutes. On June 24, 2005 Judge McGury entered an order suspending Nance’s visitation and giving Nance 7 days to respond to Attorney Theresa Ceko’s (Ceko) GAL for Loyola Community Law Center’s motion to terminate visitation and for sanctions against Nance. (R. C 541) Ceko’s motion is supported by Bergmann and Benson.
Nance’s motions filed in this matter strictly address the Court order of June 27, 2000, and the violations of it by the respondent. This is a material fact. There is nothing malicious, frivolous, or vexatious about it. The GAL’s report and motion is malicious, frivolous, and vexatious. (R. C 452-462, C 798-806) Ceko’s motion to terminate visitation is intended to harass and embarrass Nance in the trial court. It was meant to suppress and oppress Nance from alerting the trial court to the violations of the trial court’s order on June 27, 2000.
In support of Ceko’s motion she cites cases, Singer v. Brookman, 217 Ill. App. 3d 870, 578 N.E.2d 1 (1991), and Mentzer v. Dudley, 236 Ill. App. 3d 726, 602 N.E.2d 934 (1992), wherein the trial courts awarded sanctions. In Singer, the trial court imposed sanctions because the plaintiffs sought to retry issues in litigation against their mother that they knew had previously been raised by their father through representation by the same counsel despite being warned by the trial judge in the earlier action that the subsequent action might be barred by res judicata. The trial court found that the only conceivable basis for the subsequent action was to waste the court's time, generate legal fees, and harass the defendant. Similarly, in Mentzer, the trial court imposed sanctions against the plaintiff who presented no testimony or evidence to support the theory of liability alleged in his complaint. The court found that the plaintiff had acted solely for the purpose of harassing the defendant as evidenced by several undisputed acts of maliciousness. This is not the case at bar. Nance addresses the “new and present” violations of the Court order issued on June 27, 2000 in filing his motions with supporting documentation and witnessed testimony, which the trial court refused to hear.
Bergmann, Benson and Ceko violated the Rules of Professional conduct, specifically Rule 12(e) A lawyer shall not present, participate in presenting, or threaten to present criminal charges or professional disciplinary actions to obtain an advantage in a civil matter; (f) In representation of a client, a lawyer shall not: (1) file a suit, assert a position, conduct a defense, delay a trial or take other action on behalf of the client when the lawyer knows or reasonably should know that such action would serve merely to harass or maliciously injure another; (g) A lawyer who knows a client has, in the course of representation, perpetrated a fraud upon a person or tribunal shall promptly call upon the client to rectify the same, and if the client refuses or is unable to do so, the lawyer shall reveal the fraud to the affected person or tribunal, except when the information is protected as a privileged communication.
Rule 3.1 Meritorious Claims and Contentions: A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes a good-faith argument for an extension, modification or reversal of existing law.
Rule 3.3. Conduct Before a Tribunal (a) In appearing in a professional capacity before a tribunal, a lawyer shall not: (1) make a statement of material fact or law to a tribunal which the lawyer knows or reasonably should know is false; (2) fail to disclose to a tribunal a material fact known to the lawyer when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client; (3) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; (6) counsel or assist the client in conduct the lawyer knows to be illegal or fraudulent; (7) engage in other illegal conduct or conduct in violation of these Rules; (9) intentionally degrade a witness or other person by stating or alluding to personal facts concerning that person which are not relevant to the case; (11) refuse to accede to reasonable requests of opposing counsel that do not prejudice the rights of the client; (12) fail to use reasonable efforts to restrain and to prevent clients from doing those things that the lawyer ought not to do; (13) suppress any evidence that the lawyer or client has a legal obligation to reveal or produce.
Rule 4.3 Dealing With Unrepresented Person: In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.
Rule 4.4 Respect for Rights of Third Persons: In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.
Rule 8.4 Misconduct (a) A lawyer shall not: (1) violate or attempt to violate these Rules; (2) induce another to engage in conduct, or give assistance to another's conduct, when the lawyer knows that conduct will violate these Rules; (4) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; (5) engage in conduct that is prejudicial to the administration of justice. In relation thereto, a lawyer shall not engage in adverse discriminatory treatment of litigants, jurors, witnesses, lawyers, and others, based on race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status. This subsection does not preclude legitimate advocacy when these or similar factors are issues in the proceeding; (6) state or imply an ability to influence improperly any tribunal, legislative body, government agency or official; (7) assist a judge or judicial officer in conduct that the lawyer knows is a violation of the Code of Judicial Conduct; (9)(A) violate a Federal, State or local statute or ordinance that prohibits discrimination based on race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status by conduct that reflects adversely on the lawyer's fitness as a lawyer.
Whether a discriminatory act reflects adversely on a lawyer's fitness as a lawyer shall be determined after consideration of all the circumstances, including (1) the seriousness of the act, (2) whether the lawyer knew that it was prohibited by statute or ordinance, (3) whether it was part of a pattern of prohibited conduct, and (4) whether it was committed in connection with the lawyer's professional activities. (B) No complaint of professional misconduct based on an unlawfully discriminatory act, pursuant to paragraph (9)(A) of this rule, may be brought until a court or administrative agency of competent jurisdiction has found that the lawyer has engaged in an unlawfully discriminatory act, and that the determination of the court or administrative agency has become final and enforceable and the right of judicial review of the determination has been exhausted.
Judge McGury’s affirmation of Bergmann and Ceko’s request and subsequent suspension of Nance’s visitation privileges violated the court order of June 27, 2000 creating an abuse of discretion. Nance was not given the opportunity to refute Ceko’s allegations before Judge McGury suspended Nance’s visitation.
The decision to allow or deny intervention, whether permissively or as of right, is a matter of sound judicial discretion that will not be reversed absent an abuse of that discretion. In re Application of the County Collector of Du Page County for Judgment for Delinquent Taxes for the Year 1992, 181 Ill. 2d 237, 247, 692 N.E.2d 264, 269 (1998); see Regnery v. Meyers, 345 Ill. App. 3d 678, 683, 803 N.E.2d 504, 509 (2003).
Intervention in civil proceedings is governed by section 2‑408 of the Code of Civil Procedure (735 ILCS 5/2‑408 (West 2002)), which provides in relevant part: (a) Upon timely application anyone shall be permitted as of right to intervene in an action: (1) when a statute confers an unconditional right to intervene; or (2) when the representation of the applicant's interest by existing parties is or may be inadequate and the applicant will or may be bound by an order or judgment in the action; or (3) when the applicant is so situated as to be adversely affected by a distribution or other disposition of property in the custody or subject to the control or disposition of the court or a court officer, (b) Upon timely application anyone may in the discretion of the court be permitted to intervene in an action: (1) when a statute confers a conditional right to intervene; or (2) when an applicant's claim or defense and the main action have a question of law or fact in common." 735 ILCS 5/2‑408(a), (b) (West 2002).
This section liberally allows the practice of intervention so as to avoid the unnecessary relitigation of issues in a second suit. Caterpillar Tractor Co. v. Lenckos, 84 Ill. 2d 102, 111‑12, 417 N.E.2d 1343, 1349 (1981). "Although a party need not have a direct interest in the pending suit, it must have an interest greater than that of the general public, so that the party may stand to gain or lose by the direct legal operation and effect of a judgment in the suit." People ex rel. Birkett v. City of Chicago, 202 Ill. 2d 36, 57-58, 779 N.E.2d 875, 887 (2002), citing Caterpillar Tractor Co., 84 Ill. 2d at 112, 417 N.E.2d at 1349.
On May 23, 2005 Nance filed a motion to respond to Ceko’s report, which is different from Ceko’s motion to terminate visitation and sanctions (R. C 469-471 et seq.). Ceko filed her motion to terminate visitation and for sanctions against Nance (R. C 798-806). On June 24, 2005 Judge McGury entered an order suspending Nance’s visitation and giving Nance 7 days to respond to Ceko’s motion to terminate visitation and for sanctions against Nance. (R. C 541) On June 29, 2005 Nance filed his response to Ceko’s motion to terminate visitation and sanctions, and his request for sanctions against Ceko and Loyola University Community Law Center, and Bergmann and Chicago Volunteer Legal Services Foundation with supporting documentation. (R. C550-584, 585, 586, 608-643)
To this end, a Rule 137 petition must be specific enough to enable the responding party to respond to the allegations and enable the court to make a determination on the merits. See In re Marriage of Adler, 271 Ill. App. 3d 469, 476, 648 N.E.2d 953, 957 (1995). A hearing is generally necessary for the trial court to determine whether a Rule 137 violation occurred. Century Road Builders, Inc. v. City of Palos Heights, 283 Ill. App. 3d 527, 531, 670 N.E.2d 836, 838 (1996). Whether an evidentiary hearing should be held depends on the facts of each case. Olsen, 260 Ill. App. 3d at 862, 632 N.E.2d at 174; Century, 283 Ill. App. 3d at 531, 670 N.E.2d at 839.
Rule 137 does not authorize imposition of sanctions for all acts of misconduct, but only for the filing of pleadings, motions or other papers in violation of the rule itself. Marriage of Adler, 271 Ill. App. 3d at 476, 648 N.E.2d at 957. Rule 137 is a general sanction provision that is not properly used to sanction conduct where other, more specific, sanction rules apply. Diamond Mortgage Corp. v. Armstrong, 176 Ill. App. 3d 64, 71-72, 530 N.E.2d 1041, 1045 (1988).
The Illinois courts have recognized that a trial court has discretion in determining whether sanctions should be applied. The discretion, however, is not unlimited, and a number of cases have reversed the denial of sanctions by the trial court. Pritzker v. Drake Tower Apartments, Inc., 283 Ill. App. 3d 587, 670 N.E.2d 328 (1996); Fremarek v. John Hancock Mutual Life Insurance Co., 272 Ill. App. 3d 1067, 651 N.E.2d 601 (1995); Wittekind v. Rusk, 253 Ill. App. 3d 577, 625 N.E.2d 427 (1993).
In re Marriage of Margaret Oleksy (2003) reports, Rule 137, as we read the cases, is aimed at the abuse of the judicial process by penalizing claimants who bring vexatious or harassing actions based upon unsupported allegations of law or fact. Singer, 217 Ill. App. 3d at 879. Ceko’s statement “…make up visitation was arranged” supports the alleged fact of a denial of visitation as Nance’s motion claimed. The motion filed by Ceko, and supported by Benson and Bergmann, was purposed for harassment and intimidation of Nance for litigating his case, and for filing a charge against them with ARDC.
A party may recover fees under Rule 137 that were incurred because of the sanctionable paper or pleading. 155 Ill. 2d R. 137. Recoverable fees under Rule 137 include those incurred in pursuit of unsuccessful motions. Ashley v. Scott, 266 Ill. App. 3d 302, 307, 640 N.E.2d 677, 681 (1993). A party may also recover fees incurred in prosecuting a motion for sanctions. Bosch Die Casting Co. v. Lunt Manufacturing Co., 236 Ill. App. 3d 18, 33, 603 N.E.2d 546, 556 (1992). Fees are recoverable under Rule 137 even where they are "lumped," and even for unaccounted-for time entries. Riverdale Bank v. Papastratakos, 266 Ill. App. 3d 31, 639 N.E.2d 219 (1994). "[C]ounsel is not required to record how each minute of time was expended, but should identify the general subject matter involved in the time expenditure." Ashley, 266 Ill. App. 3d at 306, 640 N.E.2d at 680. As the GAL has stated, Nance has been litigating this matter before the Court for 5 years, being unsuccessful with the Court enforcing the trial court’s order of June 27, 2000 for visitation.
In Walsh v. Capital Engineering and Manufacturing Co. (2000) this Court reports, we have specifically held that Rule 137 does not require counsel to amend or withdraw a paper of pleading if he discovers, after signing, that it is unfounded. An attorney need not revise the pleadings to conform with newly discovered information. Chicago Title & Trust Co. v. Anderson, 177 Ill. App. 3d at 626. See also, Schoenberger v. Oselka, 909 F.2d 1086 (7th Cir. 1990); Gravel v. DiDomenico, 908 F.2d 223 (7th Cir. 1990); Samuels v. Wilder, 906 F.2d 272 (7th Cir. 1990). "Nevertheless counsel cannot simply remain silent when faced with this newly discovered information, file additional papers with the court that do not reveal the more recent discoveries, and by such silence allow the court and opposing counsel to draw erroneous conclusions or proceed on improper assumptions. Instead, once it appears that the prior factual allegation is in error, this must be brought forthrightly to the attention of court and opposing counsel, at the least in the next available court filing." Chicago Title & Trust co. v. Anderson, 177 Ill. App. 3d at 627.
Illinois courts frequently seek guidance from the Federal Court's interpretations of their Rule 11 in considering the appropriateness of sanctions. Zander v. Whitney, 242 Ill. App. 3d 523, 535 (1993). The seventh circuit has addressed this very issue in Melrose v. Shearson/American Express, Inc., 898 F.2d 1209 (7th Cir. 1990). That court stated: "It is true that in part we have generally focused attention on the motion or pleading as a whole, rather than on its parts, in determining whether Rule 11 sanctions were appropriate. We have also expressed some doubt as to whether a point-by-point analysis of a pleading or motion under Rule 11 would be worthwhile in every case. It, however, is neither contrary to the language of Rule 11 as amended, nor an abuse of discretion for the district court to undertake such a detailed analysis when the court believes the circumstances warrant it. A litigant cannot expect to avoid all sanctions under Rule 11 merely because the pleading or motion under scrutiny was not entirely frivolous. [citation] (emphasis in original). 898 F.2d 1209 (7th Cir. 1990).
Our Appellate Court has concurred with the 7th Circuit's analysis of this issue. To adopt a standard that would deny sanctions for significant and obviously meritless claims or allegations known to be false simply because the remainder of the pleading was sound offends the spirit of Rule 137. The stated purpose of Supreme Court Rule 137 is to prevent abuse of the judicial process by penalizing litigants who bring vexatious or harassing actions based upon unsupported allegations of law or fact. Shea, Rogal & Associates, Ltd. v. Leslie Volkswagen, Inc., 250 Ill. App. 3d 149, 152 (1993). Thus, we hold that a litigant cannot expect to avoid all sanctions under Rule 137 merely because the pleading was not entirely frivolous. Moreover, when the invalidity of an allegation or claim becomes known to the signing party prior to trial, that party has an obligation to act in good faith with both opposing counsel and the court. Walsh Id.
Rule 137 clearly provides for such a cure to the motions filed by Nance, that is, to correct the characters and behaviors and the respondent to follow the Court order of June 27, 2000 and for Loyola University Community Law Center (Ceko) and the Chicago Volunteer Legal Services Foundation (Bergmann and Benson) to adhere to the Court order of June 27, 2000 without maliciously harassing, intimidating, and defaming Nance for exercising his right to be free to litigate his cause. Benson, Bergmann and Ceko violated Nance’s 1st and 14th Amendment rights.
Judicial Violation of the Code of Judicial Conduct, Abuse of Discretion, Due Process-Standard of Review
A Judge should uphold the integrity and independence of the Judiciary. (Supreme Court Rule 61) A Judge should avoid impropriety and the appearance of impropriety in all of the Judge’s activities. (Rule 62) A Judge should perform the duties of Judicial Office impartially and diligently. (Rule 63)
An abuse of discretion occurs where a trial court's decision is arbitrary, fanciful, or unreasonable, or where no reasonable person would adopt the court's view. Agnew v. Shaw, 355 Ill. App. 3d 981, 990, 823 N.E.2d 1046 (2005) In People v. Wilson (1967) the court said that "in certain circumstances a trial judge should recuse himself when it appears that he may be biased or may be a potential witness." Wilson, 37 Ill. 2d at 621; see In re Moses, W. (2006) Abuse of discretion is the most deferential standard of review-next to no review at all-and is therefore traditionally reserved for decisions made by a trial judge in overseeing his or her courtroom or in maintaining the progress of a trial. People v. Coleman, 183 Ill. 2d 366, 387 (1998) For example, a trial judge's decision whether to allow or exclude evidence is reviewed for an abuse of discretion (Swick v. Liautaud, 169 Ill. 2d 504, 521 (1996)), as is his or her decision to limit discovery (People v. Williams, 209 Ill. 2d 227, 234 (2004)), impose a sanction for a discovery violation (Sullivan v. Edward Hospital, 209 Ill. 2d 100, 110-11 (2004)), disqualify counsel (People v. Ortega, 209 Ill. 2d 354, 360 (2004)), accept or reject a negotiated plea (People v. Henderson, 211 Ill. 2d 90, 103 (2004)), and deny a forum non conveniens motion (Dawdy v. Union Pacific R.R. Co., 207 Ill. 2d 167, 177 (2003)). Accordingly, a trial judge's evidentiary rulings during a best-interests hearing are subject to an abuse of discretion standard of review. See C.N., 196 Ill. 2d at 223; In re D.M., 336 Ill. App. 3d 766, 773 (2002).
The first amendment of the United States Constitution, made applicable to the states through the fourteenth amendment, prohibits the government from denying or abridging freedom of speech. U.S. Const., amends. I, XIV. Protected speech includes not only written and spoken words but also can include expressive conduct. Spence v. Washington, 418 U.S. 405, 409-10, 41 L. Ed. 2d 842, 846-47, 94 S. Ct. 2727, 2729-30 (1974). The first amendment protects nonverbal conduct if the actor intends the conduct to convey a particularized message and the message will likely be understood by those who view it. Spence, 418 U.S. at 410-11, 41 L. Ed. 2d at 846-47, 94 S. Ct. at 2730.
The due process clause of the fourteenth amendment to the United States Constitution provides that no state shall "deprive any person of life, liberty, or property, without due process of law." U.S. Const., amend. XIV, §1. The due process clause guarantees " 'heightened protection against government interference with certain fundamental rights and liberty interests.' " In re M.H., 196 Ill. 2d 356, 362, 751 N.E.2d 1134, 1139 (2001), quoting Washington v. Glucksberg, 521 U.S. 702, 720, 138 L. Ed. 2d 772, 787, 117 S. Ct. 2258, 2267 (1997).
Discussion
Trial Judge Riley denied my witnesses to testify, and refused to take into evidence an affidavit from Genesis Nance refuting the motion of Ceko for termination of visitation. On July 1, 2005 Nance presented 3 witnesses, his 74-year-old mother, his stepdaughter, and the minor child’s brother for testimony. (R. TR 3, p. 2, L 2-5) Nance stated, “…I have an affidavit from my daughter about these false allegations to suspend my visitation.” (R. TR 6, p. 5, L 13-15) Judge Riley responded, “Is your daughter here today?” (R. TR 6, p. 5, L 16) Nance replied, “She is at work. (R. TR 6, p. 5, L 17) Judge Riley responded, “Your affidavit is no good.” (R. TR 6, p. 5, L 19) Nance replied, “I am presenting an affidavit. I would like testimony from my witnesses about my visitation with Romeo, your honor.” (R. TR 7, p. 6, L 1-3) Judge Riley responded, “If you just filed it last Friday, it’s not being heard today.” (R. TR 7, p. 6, L 10-11) Nance stated to Judge Riley, “You are saying that this affidavit from my daughter is no good about this suspension?” (R. TR 8, p. 7, L 14-15) Judge Riley responded, “That’s correct.” Affidavits don’t testify.” (R. TR 8, p. 7, L 16-17)
Within Nance’s motion of January 30, 2006 to this appellate court (A 40-47), he informed this court of a conversation between Judge McGury’s courtroom clerk and Benson. In paragraph 36 and 37 of the affidavit supporting the motion, Nance reports “…the African-American female clerk for Judge McGury stated to opposing counsel Attorney Margaret Benson in open court “Judge McGury wants to know if you want to speak to her about this case before this case is called? Benson answered “no, everything is okay.” Benson did not submit to this court an objection to Nance’s motion of January 30, 2006. Therefore, this court can assume the allegations were true.
Judge McGury has been conducting private interviews and/or having private conversations with opposing counsel without Nance’s presence or acknowledgement. Pursuant to Supreme Court Rule 63(c) A judge may, with the consent of the parties, confer separately with the parties and their lawyers in an effort to mediate or settle matters pending before the judge. (d) A judge may initiate or consider any ex parte communications when expressly authorized by law to do so. (8) A judge shall perform judicial duties without bias or prejudice.
In addition, Illinois Supreme Court Rule 63, Adjudicative Responsibilities reports: (1) A judge should be faithful to the law and maintain professional competence in it. A judge should be unswayed by partisan interests, public clamor, or fear of criticism. (3) A judge should be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and others with whom the judge deals in an official capacity, and should require similar conduct of lawyers, and of staff, court officials, and others subject to the judge's direction and control. (4) A judge shall accord to every person who has a legal interest in a proceeding, or that person's lawyer, the right to be heard according to law. A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding except that: (i) the judge reasonably believes that no party will gain a procedural or tactical advantage as a result of the ex parte communication, and (ii) the judge makes provision promptly to notify all other parties of the substance of the ex parte communication and allows an opportunity to respond. (c) A judge may, with the consent of the parties, confer separately with the parties and their lawyers in an effort to mediate or settle matters pending before the judge. (d) A judge may initiate or consider any ex parte communications when expressly authorized by law to do so. (8) A judge shall perform judicial duties without bias or prejudice. A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, including but not limited to bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, and shall not permit staff, court officials and others subject to the judge's direction and control to do so. (9) Proceedings before a judge shall be conducted without any manifestation, by words or conduct, of prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, by parties, jurors, witnesses, counsel, or others. This section does not preclude legitimate advocacy when these or similar factors are issues in the proceedings.” B. Administrative Responsibilities. C. Disqualification. (1) A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where:(a) the judge has a personal bias or prejudice concerning a party or a party's lawyer, or personal knowledge of disputed evidentiary facts concerning the proceeding.
Nance claimed he had a right to the disqualification of Judge Riley in this matter. The Code of Judicial Conduct (Judicial Code) (134 Ill. 2d Rs. 61 through 68), which became effective on January 1, 1987, gives expression to the principle. Supreme Court Rule 63(C)(1)(a) (188 Ill. 2d R. 63(C)(1)(a)), also known as Canon 3 of the Judicial Code, provides in relevant part:
"(1) A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where:
(a) the judge has a personal bias or prejudice concerning a party or a party's lawyer, or personal knowledge of disputed evidentiary facts concerning the proceeding." Rule 63(C)(1)(a) provides that a judge must recuse himself where he harbors bias or prejudice against a party or has "personal knowledge of disputed evidentiary facts concerning the proceeding" (188 Ill. 2d R. 63(C)(1)(a)). Thus, the Wilson/Rule 63(C)(1)(a) principle is an exception to the general requirement of actual prejudice in section 114--5(d) cases. In Re Moses W. (2006). If a motion for substitution of judge is improperly denied, as it was in this case, all subsequent action by the trial court is void. People v. Pace, 225 Ill. App. 3d 415, 424 (1992).
Nance claims Judge McGury and Riley abused their discretion and violated Nance’s due process in this matter and his 1st Amendment right to free exercise and expression. From the statement of facts, this appellate court can conclude that these judges were overtly abusing their discretion and Nance’s due process, legislating from the bench. Nance requested Judge Riley recuse himself from this matter (R. C 836-839). Judge Riley humiliated Nance at every turn.
Judge McGury allowed her courtroom staff (clerks and sheriffs) to harass, intimidate and humiliate Nance, treating Nance indifferently than similarly situated individuals litigating their issues attempting to prevent Nance from litigating his issues before the trial court. Judge McGury succeeded in harassing and intimidating Nance with her courtroom personnel, Cook County Sheriff’s deputies, preventing him from pursuing his bystanders report of proceedings.
Judges McGury and Riley abused their discretion when they denied Nance procedural due process rights given by the 14th Amendment, and prevented Nance from his 1st Amendment right of free exercise and expression during the litigation processes. Judges McGury and Riley abused their discretion when they did not allow evidence to be presented to them from Nance to support his visitation privileges given in the court order of June 27, 2000. Judges McGury and Riley abused their discretion suspending the visitation of Nance due to unsupported allegations by attorneys Ceko, Benson and Bergmann. Judges McGury and Riley should have provided a best-interest test for Nance’s visitation matters, rather than rely on unsupported allegations provided by Attorneys Ceko, Benson and Bergmann.
Visitation is not a mere exercise of paternal or maternal rights, but rather, acts of love and concern for all aspects of life. Visitation dictates a vested interest in all medical, mental, and academic needs of the minor child’s life. Visitation demands that the nurturing processes have a continuum of care in the best interest of the child.
Illinois courts recognized the standing of grandparents to petition for visitation with minor grandchildren under certain special circumstances. E.g., Boyles v. Boyles, 14 Ill. App. 3d 602, 604, 302 N.E.2d 199 (1973); Lucchesi v. Lucchesi, 330 Ill. App. 506, 511-12, 71 N.E.2d 920 (1947); Solomon v. Solomon, 319 Ill. App. 618, 621-22, 49 N.E.2d 807 (1943). Even after the enactment of the Marriage Act, which expressly provided for visitation for noncustodial parents (Ill. Rev. Stat. 1977, ch. 40, par. 607), Illinois courts continued to recognize the common law standing of grandparents to petition for visitation with minor grandchildren under special circumstances. Hawkins v. Hawkins, 102 Ill. App. 3d 1037, 1039, 430 N.E.2d 652 (1981). Eventually, our General Assembly codified the common law of grandparent visitation within section 607 of the Marriage Act. West v. West, 294 Ill. App. 3d 356, 361, 689 N.E.2d 1215 (1998); see Ill. Rev. Stat. 1981, ch. 40, par. 607(b). Several other amendments to section 607 followed. West, 294 Ill. App. 3d at 361. Through the intervening years, great-grandparents, siblings and stepparents have all been afforded standing to petition for visitation with a minor under section 607. See 750 ILCS 5/607(b)(West 1998).
Illinois courts have defined the term affidavit in a consistent fashion for over 100 years. For example, in Harris v. Lester, 80 Ill. 307, 311 (1875), this court noted that “[a]n affidavit is simply a declaration, on oath, in writing, sworn to by a party before some person who has authority under the law to administer oaths. It does not depend on the fact whether it is entitled in any cause or in any particular way. Without any caption whatever, it is nevertheless an affidavit.” See also Figge v. Rowlen, 185 Ill. 234, 238 (1900) (citing Harris definition with approval); People ex rel. McCline v. Meyering, 356 Ill. 210, 214 (1934) (defining affidavit as a declaration on oath, in writing, sworn to by a party before some person who has authority, under the law, to administer oaths). More recently, our appellate court has noted that “an affidavit is simply a declaration, on oath, in writing sworn to before some person who has authority under the law to administer oaths. A writing which does not appear to have been sworn to before any officer does not constitute an affidavit.’ ” People v. Smith, 22 Ill. App. 3d 377, 380 (1974), quoting 2 Ill. L. & Prac. Affidavits §2, at 648 (1953). Thus, an affidavit must be sworn to, and statements in a writing not sworn to before an authorized person cannot be considered affidavits. See Kehoe v. Rounds, 69 Ill. 351 (1873); Kohls v. Maryland Casualty Co., 144 Ill. App. 3d 642 (1986); 1 Ill. L. & Prac. Affidavits §3, at 436 (1988). Judge Riley violated Nance’s 1st and 14th Amendment rights when he refused to hear testimony from his witnesses and refused his affidavit from Genesis Nance, the mother of the minor child, in defense of the motion Ceko issued, which suspended/terminated Nance’s visitation rights.
Nance was granted visitation by the trial court order of June 27, 2000. 750 ILCS 5/607, Visitation: A parent not granted custody of the child is entitled to reasonable visitation rights unless the court finds, after a hearing, that visitation would endanger seriously the child's physical, mental, moral or emotional health. 607.1(a)(b) the circuit court shall provide an expedited procedure for enforcement of court ordered visitation in cases of visitation abuse. Visitation abuse occurs when a party has willfully and without justification: (1) denied another party visitation as set forth by the court. An action may be commenced by filing a petition setting forth: (i) the petitioner's name, residence address or mailing address, and telephone number; (ii) respondent's name and place of residence, place of employment, or mailing address; (iii) the nature of the visitation abuse, giving dates and other relevant information; (iv) that a reasonable attempt was made to resolve the dispute; and (v) the relief sought.
750 ILCS 5/607(b)(1), (b)(3) (West 2000); (b)(1) The court may grant reasonable visitation privileges to a grandparent, great-grandparent, or sibling of any minor child upon petition to the court by the grandparents or great-grandparents or on behalf of the sibling, with notice to the parties required to be notified under Section 601 of this Act, if the court determines that it is in the best interests and welfare of the child, and may issue any necessary orders to enforce such visitation privileges. Except as provided in paragraph (2) of this subsection (b), a petition for visitation privileges may be filed under this paragraph (1) if one or more of the following circumstances exist: (A) the parents are not currently cohabiting on a permanent or an indefinite basis; (B) one of the parents has been absent from the marital abode for more than one month without the spouse knowing his or her whereabouts; (C) one of the parents is deceased; (D) one of the parents joins in the petition with the grandparents, great-grandparents, or sibling; or (E) a sibling is in State custody.
Under Illinois law, statutes carry a strong presumption of constitutionality. People ex rel. Ryan v. World Church of the Creator, 198 Ill. 2d 115, 120 (2001); People v. Sanders, 182 Ill. 2d 524, 528 (1998). Whenever reasonable, courts must construe a statute to uphold its constitutional validity. World Church of the Creator, 198 Ill. 2d at 120; Sanders, 182 Ill. 2d at 528. A statute is facially invalid only if the party challenging the enactment can establish " 'that no set of circumstances exists under which the Act would be valid.' " In re C.E., 161 Ill. 2d 200, 210-11 (1994), quoting United States v. Salerno, 481 U.S. 739, 745, 95 L. Ed. 2d 697, 707, 107 S. Ct. 2095, 2100 (1987).
In Re: Austin, W. (2005) reports, in all guardianship and custody cases, "the issue that singly must be decided is the best interest of the child." In re Ashley K., 212 Ill. App. 3d 849, 879 (1991). As the Ashley K. court aptly noted: "A child's best interest is not part of an equation. It is not to be balanced against any other interest. In custody cases, a child's best interest is and must remain inviolate and impregnable from all other factors" In re Ashley K., 212 Ill. App. 3d at 879. Recognizing that a best-interests determination is often a difficult one, the legislature has identified various factors that help inform the decision.
These factors are contained in section 1-3(4.05) of the Juvenile Court Act (705 ILCS 405/1-3(4.05) (West 2000)), which provides: "Whenever a 'best interest' determination is required, the following factors shall be considered in the context of the child's age and developmental needs: (a) the physical safety and welfare of the child, including food, shelter, health, and clothing; (b) the development of the child's identity; (c) the child's background and ties, including familial, cultural, and religious; (d) the child's sense of attachments, including: (i) where the child actually feels love, attachment, and a sense of being valued (as opposed to where adults believe the child should feel such love, attachment, and a sense of being valued); (ii) the child's sense of security; (iii) the child's sense of familiarity; (iv) continuity of affection for the child; (v) the least disruptive placement alternative for the child; (e) the child's wishes and long-term goals; (f) the child's community ties, including church, school, and friends; (g) the child's need for permanence which includes the child's need for stability and continuity of relationships with parent figures and with siblings and other relatives; (h) the uniqueness of every family and child; (i) the risks attendant to entering and being in substitute care; and (j) the preferences of the persons available to care for the child."
As the United States Supreme Court explained: "The function of a standard of proof, as that concept is embodied in the Due Process Clause and in the realm of factfinding, is to 'instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.' " Addington v. Texas, 441 U.S. 418, 423, 60 L. Ed. 2d 323, 329, 99 S. Ct. 1804, 1808 (1979), quoting In re Winship, 397 U.S. 358, 370, 25 L. Ed. 2d 368, 379, 90 S. Ct. 1068, 1076 (1970) (Harlan, J., concurring).
In any given proceeding, the minimum standard of proof the due process clause permits reflects the weight of the private and public interests affected, as well as a societal judgment about how the risk of error should be allocated between the parties. Santosky, 455 U.S. at 755, 71 L. Ed. 2d at 607, 102 S. Ct. at 1395. "The more stringent the burden of proof a party must bear, the more that party bears the risk of an erroneous decision." Cruzan v. Director, Missouri Department of Health, 497 U.S. 261, 283, 111 L. Ed. 2d 224, 245, 110 S. Ct. 2841, 2854 (1990). For example, in a criminal case the private interests of the defendant are of such magnitude that society imposes the risk of error almost entirely on itself by requiring the State to prove the defendant's guilt "beyond a reasonable doubt." Addington, 441 U.S. at 423-24, 60 L. Ed. 2d at 329, 99 S. Ct. at 1808. This high standard of proof reduces the risk of finding an innocent person guilty, but increases the risk of acquitting a guilty person. Lyon v. Department of Children & Family Services, 209 Ill. 2d 264, 279 (2004).
In contrast, civil cases generally require the lesser "preponderance" standard of proof. This standard allocates the risk of error roughly equally between the litigants (Santosky, 455 U.S. at 755, 71 L. Ed. 2d at 607, 102 S. Ct. at 1395), reflecting the view that the interests at stake are of relatively equal societal importance (Lyon, 209 Ill. 2d at 281). In some civil cases, however, the interests at stake are deemed to be more substantial, requiring a higher standard than a preponderance. In these cases, a clear and convincing standard is imposed. Addington, 441 U.S. at 424, 60 L. Ed. 2d at 329-30, 99 S. Ct. at 1808; Bazydlo, 164 Ill. 2d at 213. The clear and convincing standard requires proof greater than a preponderance, but not quite approaching the criminal standard of beyond a reasonable doubt. Bazydlo, 164 Ill. 2d at 213. A party burdened with a clear and convincing standard shoulders a greater share of the risk of an erroneous determination. See Cruzan, 497 U.S. at 283, 111 L. Ed. 2d at 245, 110 S. Ct. at 2854.
A clear and convincing standard is the minimum burden of proof at a best-interests hearing that the due process clause will allow. Nance suggest Mathews v. Eldridge, 424 U.S. 319, 47 L. Ed. 2d 18, 96 S. Ct. 893 (1976) is the test in this matter for this abuse of discretion, due process violation, and violation of free exercise by Judges McGury and Riley. See In re Andrea F., 208 Ill. 2d 148, 165 (2003) (evaluating challenged procedure at parental rights termination proceeding under Mathews); In re M.H., 196 Ill. 2d 356, 364-65 (2001) (same). Under Mathews, the dictates of due process require consideration of three factors: "[f]irst, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail." Mathews, 424 U.S. at 335, 47 L. Ed. 2d at 33, 96 S. Ct. at 903.
In this current appeal, Nance filed a motion on April 8, 2005 requesting, among other things, the trial court find Johnson in Contempt of Court for violating the Court ordered visitation of June 27, 2000. (R. C 438-442) Johnson continued to violate the Court order of June 27, 2000, and Nance filed numerous motions to the Court requesting and seeking relief.
On May 20, 2005 respondent Johnson stated she had made arrangements for the minor child to visit relatives out-of-town on the Memorial holiday weekend. Nance relinquished his visitation for Memorial Day, May 27, 2005, so that Johnson could take the minor child out of town to visit other relatives. Johnson agreed that Nance would have two weekends in a row, that is, June 3rd & June 10th, 2005 for visitation. Nance claimed in his motion to find respondent in contempt of court that on June 1, 2005 Johnson left a phone message at Nance’s home stating that the minor child came back home and Johnson sent the child back out of town and that the child will be out of town in Minnesota and will return sometime at the end of June 2005. Judge McGury did not find Johnson in contempt of court. Nance did not get his court ordered visitation. On June 3, 2005, Nance filed a motion requesting Judge McGury find guardian Johnson in contempt of court for violating the court order of June 27, 2000. (R. C 473-478)
On June 20, 2005, Nance filed an emergency motion requesting the trial court find Johnson in contempt of court for denying Nance court ordered visitation of the minor Romeo Ashford; requesting that the motion be heard on June 24, 2005. (R. C 479-488) On June 24, 2005, Ceko submitted a motion to terminate visitation and for sanctions against Nance. (R. C 798-809) On June 24, 2005, Judge McGury did not entertain Nance’s motion, but decided to entertain the motion of the Ceko filed in open court on June 24, 2005, which Judge Riley denied Nance the same opportunity in his courtroom. (R. TR 27, L 16-18) On June 24, 2005, Judge McGury ordered visitation suspended based upon Ceko’s oral pleading of her motion, that was not before the Court, and told Nance he could not challenge Ceko’s written motion in her Court until July 25, 2005. On June 24, 2005, Judge McGury set a briefing schedule stating Nance is to respond to Ceko’s motion by July 1, 2005 and Ceko and Benson had until July 8, 2005 to reply. (R. C 541)
On June 24, 2005, Benson requested Judge McGury restrict Nance from filing any other motions in this action. On June 24, 2005, Nance attempted to orally motion the court, and Bergmann informed Judge McGury Nance’s oral motion was not in front of the court on that day and should not be entertained. Judge McGury entertained and affirmed Bergmann’s statement denying Nance the opportunity to present an oral motion. This is indifferent treatment.
Judge McGury allowed attorneys Bergmann and Ceko to circumvent the processes of the court ordered violation, which Nance has raised in open court with motions. Nance requested of Judge McGury that the attorneys respond in writing to Nance’s motions to avoid costly and arduous litigation with a bystanders report if needed for the appellate process, and to assist the pro se litigant in his attempts to argue his case.
Judge McGury decided the attorneys do not have to file written responses to Nance’s motions. There was no court reporter in this courtroom, leaving objections to the oral reply of the attorneys up to a bystanders report. Judge McGury allowed the courtroom staff, Cook County Deputy Sheriffs’ and clerks, to degrade and humiliate Nance in open court. (R. C 498-502)
On May 20, 2005, Judge McGury allowed attorney Bergmann to present an oral motion for supervised visitation. During the proceedings on May 20, 2005, Nance raised the issue of receiving visitation on May 13, 2005, and the minor child having socks on his feet that were extremely dirty, which Nance brought to court with him for public viewing. Attorney Bergmann objected and informed Judge McGury that the issue of the socks was not before the court, directing the court and pointing to Nance’s written motion.
Judge McGury sustained the objection and did not entertain the issue of the socks because it was not in Nance’s written motion. (R. C 446-451) Judge McGury entertained attorney Bergmann’s “oral” motion for supervised visitation. Judge McGury informed Nance he could not file an appeal in this matter before the court because the court did not enforce the court order of June 27, 2000. Judge McGury stated to Nance he could file an “Interlocutory Appeal” but then changed her statement to Nance reporting he could not file this type of appeal either in this matter. This is indifferent treatment. Nance submitted a motion requesting Judge McGury recuse herself because of her biases and prejudices toward Nance. (R. C 588-591) Judge McGury recused herself from the case. (A 71)
On June 24, 2005, the Honorable Judge Henry Budzinski recused Judge Kathleen McGury from this matter. Nance reported Judge McGury had personal biases and prejudices stemming from his complaint to the Judicial Inquiry Board on June 13, 2005 about Judge McGury’s decisions. On June 24, 2005, Judge Budzinski assigned the case to Judge James G. Riley in courtroom 1809. (A 71) On June 24, 2005, Nance filed this motion to recuse a judge and immediately reinstate visitation of June 27, 2000 requesting it heard on July 1, 2005 in room 1809. (R. C 588-591)
Judge James Riley has personal biases and prejudices concerning Nance, and personal knowledge of disputed evidentiary facts concerning this matter. On January 12, 2001, Nance sent a letter to Judge Henry Budzinski complaining about Judge James Riley’s character and behavior in the courtroom. (R. C173-176) Judge James Riley was not patient or courteous to Nance. In the present matter, Judge Riley did not accord Nance the right to freedom of expression or speech as complained of in the letter of January 12, 2001. Nance requested Judge Riley recuse himself from this matter; Nance submitting a recusal order to be signed by Judge Riley. Judge Riley threw the recusal order across his desk at Nance stating recusal denied you already had one. Nance informed Judge Riley that he could not hear his own recusal. Judge Riley refused to hear witness testimony. Judge Riley refused to enter Nance’s affidavit from Genesis Nance into the record as evidence refuting the allegations of Ceko’s motion to terminate visitation. (R. TR 6, p. 5, L 19)
Ceko and Benson submitted to the court unsupported statements for the suspension of the Nance’s visitation rights pursuant to the court order of June 27, 2000. (R. C 798-809) Ceko reported to the court her claims for suspension of Nance’s rights to visitation are predicated on the minor child’s conversation with her. Nance spoke to the minor child on July 3, 2005, and the minor child stated he did not tell Ceko that he did not want to visit with his grandfather as Ceko reported to the Court in her motion to terminate visitation. Benson had secret, private meetings/discussions with Judge McGury about this case without the presence of Nance. (A 46, ¶ 36-41)
Nance met with the Cook County Department of Supportive Services for a home study with the minor child present. The home study resulted in Nance being absolved of Ceko’s false allegations to the trial court. (R. C783-797)
Conclusion
Nance has not had visitation with the minor, his grandson Romeo Ashford, since filing his complaint on April 8, 2005. Nance respectfully request, this Honorable Appellate Court reverse and remand the orders of the trial court; find trial Judges McGury and Riley in violation of the Code of Judicial Conduct, Abuse of Discretion and Due Process; and issue Sanctions against Attorneys Bergmann, Benson and Ceko, address the 1st and 14th amendment challenges Nance presents, and whatever else this honorable court deems necessary and appropriate.
Respectfully submitted,
Fred Nance Jr., ABD, MA, CADC, NCRS
Pro Se Appellant
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