Update: October 3, 2006
I talked to Ms. Efia Goosby, Illinois Department of Employment Security (IDES) Supervisor on October 2, 2006 requesting she recuse herself from judging my IDES Appeal. Ms. Goosby refuses to include the Illinois Department of Corrections in my appeal, even though I have persisted in requesting their inclusion because they locked me out from my employment, and that they are the "indirect employer" in this matter. I have also left a message with Ms. Goosby's supervisor Hilda Whittington.
I informed Ms. Goosby one of her line items for discussion in my pre-hearing of September 28, 2006 was "Whether the Administrative Law Judge, Efia Goosby, must disqualify herself from hearing this matter." Ms. Goosby informed me on October 2, 2006 that this issue will be discussed on October 12, 2006 at my "hearing." This is absurd.
Update: September 21, 2006
September 21, 2006
State of Illinois Department of Employment Security
Administrative Hearings
Ms. Efia Goosby, Supervisor
33 South State Street, 8th Floor
Chicago, Illinois 60605
Re: Scheduled Pre-Hearing Conference on Docket #DL 59719
Ms. Goosby:
On or about September 18, 2006 I called you regarding the pre-hearing on September 28, 2006 requesting a call back to discuss the consolidation of my case with the individuals who participated in the strike against Gateway Foundation (Gateway), and my bi-weekly unemployment certification.
On September 21, 2006, at approximately 3:35 pm, I called Ms. Hilda Whittington reporting I had not received a call back from you. Ms. Whittington called me back. You called me a few minutes later. You informed me the pre-hearing on September 28, 2006 at 4:00 pm would be a pre-hearing conference to discuss the items to be considered listed on my paperwork. I spoke to you about two issues.
First, about the pre-hearing conference where it is reported my case may be consolidated with the other appeals, which are not similarly situated to my issue, and second, my bi-weekly certification.
On the first issue you informed me you could not speak about the issues being discussed at the conference. I informed you I strongly object to a consolidated hearing with individuals who voluntarily went on strike against Gateway. We are not similarly situated. These individuals participated in a strike where they “voluntarily” walked off their jobs.
According to IDES’ language in their decision denying my unemployment benefits, these individuals are “participating” employees of the strike at Sheridan Correctional Center (Sheridan). Additionally, IDES’ language reports I am a “non-participating” employee locked out from my employment. I was “intentionally” locked out from my employment at Sheridan. Therefore, we are not similarly situated.
In addition, pursuant to the Illinois Unemployment Insurance Act (IUIA), §604-Voluntary Leaving, “an individual shall be ineligible for benefits for the week in which he has left work voluntarily….” The individuals who participated in the strike against Gateway walked off their jobs voluntarily. Pursuant to IUIA, §604-Labor Dispute, “For the purpose of disqualification under this Section the term “labor dispute” does not include a lockout by an employer, and no individual shall be denied benefits by reason of a lockout, provided that no individual shall be eligible for benefits during a lockout who is ineligible for benefits under another Section of this Act…This Section shall not apply if it is shown that (A) the individual is not participating in….”
Sections’ 601 and 604 defines and discusses ineligibility. Individual’s who participated in the strike, whether they were locked out or left work voluntarily, are not eligible for unemployment benefits pursuant to Sections’ 601 and 604. I did not voluntarily leave work. I did not a participant in the strike. I was locked out from employment by the Illinois Department of Corrections (IDOC).
Therefore, my case should not be consolidated with the strikers/participants in the strike.
On the second issue you suggested I wait until the outcome of the hearing. I disagree. On September 11, 2006 I called in to certify for unemployment benefits. This certification was for the weeks covering August 27, 2006 through September 9, 2006. I attempted to challenge the prompts stating I went back to work on September 7, 2006. The prompts would take my request. Therefore, I called my local unemployment office twice on September 11, 2006 and September 12, 2006, leaving a message regarding this issue. I have not received a call back. I informed you I had no other recourse but to alert you to this issue. You informed me you did not know who I should contact other than my local office.
Nevertheless, to avoid the appearance of fraud this is my formal notice to IDES that I am certifying for unemployment benefits for the period of August 27, 2006 through September 6, 2006. You informed me there is no fraud because I have not received any benefits. Therefore, we agreed the issue of fraud is a non-issue because I have not received any benefits.
You also stated you have received my phone number for the telephone pre-hearing conference on September 28, 2006 at 4:00 pm and would be calling me at the designated time. I asked you if I could tape record the pre-hearing conference. You informed me you would be taping the proceedings but I could not. I requested you send me a copy of the legal citations stating I could not tape record the proceedings. You agreed to send me the necessary legal citations before the pre-hearing.
Wherefore, this written statement shall be deemed a part of my discussion scheduled for September 28, 2006 at 4:00 pm. This statement shall hold all the requirements of a lawful and valid statement and shall be construed as a part of the record for September 28, 2006.
I certify that the foregoing writing/statement is true and accurate to best my knowledge.
Respectfully submitted,
Fred L Nance Jr., ABD, MA, CADC, NCRS
cc: Ms. Hilda Whittington (fax only) http://clickforjusticeandequality.blogspot.com/
September 7, 2006
STATE OF ILLINOIS
DEPARTMENT OF EMPLOYMENT SECURITY
LABOR DISPUTE DETERMINATION
U.I. PROGRAM SUPPORT DIVISION, LABOR DISPUTE SECTION
33 SOUTH STATE STREET, 9TH FLOOR
CHICAGO, ILLINOIS 60603
APPEAL OF DETERMINATION
Supplement to Appeal
September 7, 2006
Ms. Efia Goosby, Supervisor
Administrative Hearings Department
33 South State Street
Chicago, Illinois 60603
Ms. Goosby:
I, Fred L Nance Jr., am supplementing my appeal with the following. On September 7, 2006 I returned to work at Sheridan Correctional Center (Sheridan). Sheridan has decided Gateway Foundation (Gateway) staff returning to work from the strike must go through cycle training. Sheridan has determined the time, place and curricula for this demand.
Upon entering Sheridan, I spoke to the Director of Gateway/Sheridan, Mr. Gregg Dockins. Mr. Dockins informed me Gateway has no knowledge of why the staff has to go through the cycle training. Gateway had nothing to do with the scheduling or the curricula. The Illinois Department of Corrections (IDOC) and Sheridan has decided I must take this training again. I completed this training in May of 2006.
As stated in the original appeal, IDOC/Sheridan is my de facto or indirect employer. “Indirect liability results when the defendant employer "so far control[s] the plaintiff's employment relationship that it [is] appropriate to regard the defendant as the de facto or indirect employer of the plaintiff . . . ." E.E.O.C., supra, 69 F.3d at 169. In other words, "[d]e facto or indirect employer liability depends on the amount of the control a putative Title VII defendant exerts over the plaintiff's employment." Kerr, supra, 229 F. Supp. 2d at 886. It "addresses the situation where a formal employment relationship may be absent, but the putative defendant is so extensively involved with the plaintiff's day to day employment that the putative defendant is the 'real' employer for all intents and purposes, including Title VII liability." Ibid.; see E.E.O.C., supra, 69 F.3d at 171 (explaining how entities that "pull the strings in the background", and retain employment decision making power, are de facto employers pursuant to Title VII).
In addition, on September 7, 2006 I talked to you requesting information on my administrative hearing date. You informed me you could not talk about my case because AFSCME was IDES’s employees’ union. This is interesting information. When I challenged this answer stating you could not be a unionized employee because you are a supervisor/manager, you informed me you might have to handle my case.
Ms. Goosby, you cannot handle this case because I have discussed this case with you over the phone before you gave me the information you gave me today, September 7, 2006. This case must be handled by a non-union employee. You should have informed me in the beginning there might be a conflict of interest. My rights may have been violated by IDES.
It appears there is a conflict of interest in my case. Who worked on my case from the beginning? Along with Ms. Cheryl Howard, what AFSCME employee worked with her to determine my ineligibility? This may be why IDES ruled against me. The language in IDES’s response to my request for unemployment benefits is tainted with biases and prejudices that may have come from a pro-union belief and standard.
Therefore, I respectfully request an immediate administrative hearing date. IDES has purposely and maliciously ruled against me. I filed my appeal in this matter on or about August 10, 2006. This purposeful delay is further evidence of the biases and prejudices of IDES toward my eligibility for unemployment benefits.
Respectfully submitted,
Fred L Nance Jr., ABD, M.A., CADC, NCRS
cc: Ms. Hilda Whittingham, Supervisor
Ms. Cheryl Howard
http://clickforjusticeandequality.blogspot.com/
http://clickforjusticeandequality2.blogspot.com/
Ms. Brenda Russell, Director IDES
Wednesday, May 14, 2008
Tuesday, May 13, 2008
Blagojevich's Illinois Department of Employment Security, Director Brenda Russell: Where are my unemployment benefits?
Update: January 5, 2006
I received $6175.00 from the Illinois Department of Employment Security today. Thank you Mr. Blagojevich.
Update: December 30, 2006
On or about December 27, 2006, Ms. Goosby returned my call leaving a voice message stating the Director's decision will post in the system on December 27, 2006. She also stated the local office should take responsibility for disbursing the check for every week I certified for benefits. As of today, December 30, 2006, I have not received my unemployment benefits.
Update: December 23, 2006
I have been informed Ms. Brenda Russell, Director of the Illinois Department of Employment Security, has concurred with Ms. Efia Goosby in the decision to find me eligible for unemployment benefits for the period of June 6, 2006 through September 6, 2006. Further details will be forthcoming.
Update: December 14, 2006
Ms. Goosby returned my call leaving a voice message stating no one objected to her decision. Therefore, her recommendation goes on to Ms. Brenda Russell, Director of the Illinois Department of Employment Security. Ms. Goosby states her decision is a "recommendation" and that Ms. Brenda Russell will make the final decision, which I should receive Ms. Russell's decision in a few days. I hope Ms. Russell promptly expedites her decision. It is my thought that Ms. Russell will agree with Ms. Goosby decision, and issue my check along with her decision. What can Ms. Russell come up with now to postpone or deny my unemployment benefits?
Update: December 13, 2006
When the Director's Representative, Efia Goosby Administrative Law Judge Supervisor, issued this "Recommendation" on November 29, 2006 she reports "Objections to this report may be filed within ten days of its date...Copies must also be served upon each party listed entitled to notice...." The only entity entitled to object is Gateway Foundation, Inc. Gateway has not objected. I have not received copies of any objections. Therefore, this recommendation should stand. I am entitled to unemployment benefits for the period of June 6, 2006 through September 6, 2006. The Director's Representative has not contacted me about my benefit check, which should be in the neighborhood of $6,175.00. On December 13, 2006 at approximately 11:00 pm (CST) I am leaving a message for the Director's Representative to call me giving information on the approximate date I will receive my unemployment check for the period of June 6, 2006 through September 6, 2006.
Update: November 30, 2006
It appears Governor Blagojevich's Department of Unemployment Security works toward justice.
I received a "Recommended Decision" from the Director's representative of the Illinois Department of Unemployment Security reporting "The claims adjudicator's determination dated August 4, 2006, should be set aside. The claimant-appellants herein should not be ineligible for unemployment benefits under the provisions of Section 604 of the Illinois Unemployment Insurance Act." There is a footnote: "After considering the Report of the Director's representative, the objections filed, if any, and the record as a whole, the Director will make the final Department decision and copy will be served upon all parties entitled to notice."
I await the Director's decision and my unemployment benefits. It appears there is some justice in Illinois. Governor Blagojevich's Department appears to work in the storm.
Update: November 11, 2006
The election is over. Governor Blagojevich has been re-elected. Where are my unemployment benefits from being locked out of my employment at Sheridan Correctional Center on June 6, 2006 until September 6, 2006 by the Illinois Department of Corrections when AFSCME the union forced a strike?
I was not permitted to cross the picket lines of the strike. This issue is presently in front of the Illinois Department of Employment Security's Board of Review, where hearing officer Ms. Goosby is ruling. The telephone hearing was held on October 12, 2006.
Update: October 30, 2006
Ms. Goosby conducted the hearing on or about October 12, 2006. I withdrew my request for her recusal to avoid further delay of these proceedings. I was promised a decision in 2 weeks. There has not been a decision made yet. It appears the Illinois Department of Employment Security is waiting for the Governor's election to conclude before they make their decision. Remember, this is a department of our "famous" Governor Blagojevich.
Ms. Goosby also sent me the following: §1900. Disclosure of Information A. Except as provided in this Section, information obtained from any individual or employing unit during the administration of this Act shall: 1) be confidential, 2) not be published or open to public inspection, 3) not be used in any court in any pending action or proceeding, and 4) not be admissible in evidence in any action or proceeding other than one arising out of this Act. Does this statement take away or violate my freedom of speech or any other "1st Amendment" right?
Update: October 3, 2006
I talked to Ms. Efia Goosby, Illinois Department of Employment Security (IDES) Supervisor on October 2, 2006 requesting she recuse herself from judging my IDES Appeal. Ms. Goosby refuses to include the Illinois Department of Corrections in my appeal, even though I have persisted in requesting their inclusion because they locked me out from my employment, and that they are the "indirect employer" in this matter. I have also left a message with Ms. Goosby's supervisor Hilda Whittington.
I informed Ms. Goosby one of her line items for discussion in my pre-hearing of September 28, 2006 was "Whether the Administrative Law Judge, Efia Goosby, must disqualify herself from hearing this matter." Ms. Goosby informed me on October 2, 2006 that this issue will be discussed on October 12, 2006 at my "hearing." This is absurd.
October 2, 2006
State of Illinois
Department of Employment Security
Administrative Hearings
Ms. Efia Goosby, Supervisor
33 South State Street, 8th Floor
Chicago, Illinois 60605
Re: Docket #DL 59719:
Ms. Goosby:
First and foremost, I, Fred L Nance Jr., requested dismissal of Ms. Goosby assignment to this matter, as it applies to my issues. I did not have an interest or participate in the strike at Sheridan Correctional Center (Sheridan). I am not a “bargaining unit” member of AFSCME. I am an innocent victim of this strike. Second, the Illinois Department of Employment Security (IDES) interprets Illinois public policy first before attempting to interpret Illinois Supreme and Appellate Court decisions. IDES should not be legislating from their offices from the interpretations of the Illinois Supreme and Appellate Courts. Third, Illinois Supreme and Appellate Courts interpret public policy. They should and do not legislate from the bench. These courts give their opinions of public policies. Fourth, the case presented by AFSCME’s lawyer, Mr. Scott Miller, does not fit squarely with my issues and my particular case.
The Illinois legislature declared public policy underlying the Unemployment Insurance Act is to lighten the burden of involuntary unemployment that "so often falls with crushing force upon the unemployed worker and his family." 820 ILCS 405/100 (West 1992); see Panther Creek Mines, Inc. v. Murphy, 390 Ill. 23, 28 (1945) (the purpose of unemployment compensation is "to alleviate the distress and suffering occasioned by involuntary unemployment"); see also Outboard, Marine & Manufacturing Co., Johnson Motors Division v. Gordon, 403 Ill. 523, 536-37 (1949) ("the legislature intended to provide for the innocent victims of a labor dispute by specifically excluding them from the denial of unemployment compensation"). Accordingly, the Act is to be liberally construed to provide financial assistance to those who are unemployed through no fault of their own. Bridgestone, 179 Ill. 2d at 155; Cummins, 7 Ill. 2d at 339. This is not legislated by IDES or the Supreme and Appellate Courts.
In contrast, Gateway Foundation (Gateway) AFSCME bargaining unit employees are not eligible for unemployment benefits due to the Illinois Unemployment Insurance Act §604: "Labor dispute. An individual shall be ineligible for benefits for any week with respect to which it is found that his total or partial unemployment is due to a stoppage of work which exists because of a labor dispute at the factory, establishment, or other premises at which he is or was last employed. This Section shall not apply if it is shown that (A) the individual is not participating in or financing or directly interested in the labor dispute which caused the stoppage of work and (B) he does not belong to a grade or class of workers of which immediately before the commencement of the stoppage there were members employed at the premises at which the stoppage occurs, any of whom are participating in or financing or directly interested in the dispute; provided, that a lockout by the employer or an individual's failure to cross a picket line at such factory, establishment, or other premises shall not, in itself, be deemed to be participation by him in the labor dispute." 820 ILCS 405/604 (West 1994). The “Participants” (strikers) have an interest in the strike and walked off their jobs.
To be eligible for unemployment insurance benefits under the relieving proviso of section 604, an employee must prove both that he is not directly interested in the labor dispute and that he is not of the same grade or class as employees who are participating in, financing or who hold a direct interest in the labor dispute. International Union of Operating Engineers, Local 148, AFL-CIO v. Illinois Department of Employment Security et al. (2005). I am not directly interested in the labor dispute, nor do I fit the second prong because the class here at Sheridan also includes “Participating and Non-Participating” employees of Gateway/Sheridan as stated, labeled and determined by IDES in their “Labor Dispute Determination.” To develop, capture and entangle me in the strike at Sheridan, AFSCME’s bargaining unit must have a “collective bargaining agreement” (contract) with Gateway and I must be a “Participant” (class) in the strike.
AFSCME bargaining unit employees are not eligible for unemployment benefits because they voluntarily walked off their jobs. AFSCME does not have a “collective bargaining agreement” (contract) with Gateway. AFSCME is the “bargaining unit” for some of Gateway’s employees. I, Fred L Nance Jr., am a Counselor III working for Gateway at Sheridan Correctional Center (SCC)/Illinois Department of Corrections (IDOC)/State of Illinois. AFSCME does not and has never represented me.
IDOC is not part of the bargaining unit, yet it took on the role of participation in the bargaining processes by locking out Gateway employees who wanted to cross the picket lines. IDOC, in all practical terms, assumed the role of the union, forcing “Non-Participants” to participate in the strike. IDOC took on a role that erased Gateway’s essential terms and conditions of employment. IDOC’s behavior was direct and substantial and IDOC's involvement rose to the level of sharing meaningful control, assuming the role of employer. There was no more of a security problem than there is a security problem now that all Gateway employees are back at work at Sheridan.
IDOC took on a role reporting in IDES’s “Labor Dispute Determination” dated August 4, 2006, “…IDOC states it refuses to allow entry to SCC to the NON-PARTICIPATING WORKERS because various AFSCME bargaining units are the recognized collective bargaining representatives of correctional officers (i.e. security staff) and other IDOC employees at SCC, and therefore the safety and security at SCC could be disrupted if it allowed the NON-PARTICIPATING WORKERS into SCC in order to work before the differences between the UNION and the COMPANY is resolved.”
There was no more of a security issue than it would be today, yet IDOC has given access to all Gateway employees. IDOC had no prison rule to enforce here. This was clearly a right to choose if one wants to cross a picket line or not.
IDOC had control over the Gateway non-participating employees because IDOC locked out the Gateway employees from their employment. Therefore, the case cite below, which was provided by Mr. Scott Miller, AFSCME attorney, does not apply or rule in this instance. IDOC did not exercise “theoretical” control over the Gateway employees. IDOC exacted direct and immediate control over the non-participating Gateway employees when they locked them out from their employment, taking their right to cross the picket lines away from them. IDOC took the direct control out of Gateway’s hand when it denied their employees access to their employment.
If this case is used, then IDES’s rationalization in their “Labor Dispute Determination” would be invalid. IDES reports “…If the NON-PARTICIPATING WORKERS had been denied access to SCC by the COMPANY rather than IDOC, there would be clear justification for not finding them ineligible for benefits…But that is not the case. The COMPANY not only has not prevented the NON-PARTICIPATING WORKERS’ access to SCC, it in fact would very much like them to enter SCC and work. If the COMPANY was in control of SCC this exactly what would happen, and the NON-PARTICIPATING WORKERS, being employed, would not have claims…However, a unilateral action of IDOC over which the COMPANY has no direction or control has frustrated its express desires.”
I have copied and attached to this writing the part of the opinion alleged by Mr. Miller to apply to the strike at Sheridan. This case does not address a strike and whether a “non-participating” employee of a strike can cross a picket line and receive unemployment benefits. This case does not apply to the instant case involving Sheridan Correctional Center.
Fred L Nance Jr.
Docket No. 99074-Agenda 14-May 2005.
AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, COUNCIL 31, Appellee, v. THE ILLINOIS STATE LABOR RELATIONS BOARD, STATE PANEL, et al. (The Department of Central Management Services et al., Appellants).
Opinion filed October 6, 2005.
JUSTICE FREEMAN delivered the opinion of the court:
This case arises from a decision of the Illinois State Labor Relations Board, State Panel (Board), dismissing a certification petition and a related unfair labor practice claim filed by the American Federation of State, County, and Municipal Employees, Council 31 (AFSCME). The appellate court, on administrative review, set aside the Board's decision. 351 Ill. App. 3d 707. We granted leave to appeal (177 Ill. 2d R. 315) and now reverse the judgment of the appellate court.
As an initial matter, Wexford maintains in its brief that this matter has been preempted by federal law, specifically the National Labor Relations Act (National Act). Wexford points out that AFSCME, in this action, is attempting to organize a group of employees that it acknowledges is already covered by a collective-bargaining agreement negotiated under the National Act. Put another way, AFSCME seeks the right to bargain with two employers, a private company and a state governmental agency, under two different labor relations statutes with respect to one group of employees. As such, AFSCME is asking to be the employees' sole bargaining representative under our state labor relations act just as it already is under the National Act. Wexford maintains that such simultaneous or concurrent jurisdiction has never been recognized by any agency or judicial opinion.
As noted earlier, both Wexford and CMS raised this very issue before the Board by way of a motion to dismiss. The Board denied the motion because it was not clear that its jurisdiction was preempted. To that end, the Board ordered that a hearing be held in order to determine whether the employees at issue were, in fact, joint employees of the DOC under the Illinois act. The Board further indicated that if it were to find that a joint employer relationship existed between Wexford and the DOC, the Board would then petition the National Labor Relations Board for an advisory opinion as to whether the joint employer status, as contemplated in this case, would violate principles of federal preemption. However, at the conclusion of the hearing, the Board concluded that the DOC was not an employer of the petitioned-for employees under the Illinois act and that it lacked jurisdiction over the matter.
In its brief, CMS has not iterated its previous arguments made before the Board with respect to preemption. CMS, represented by the Attorney General, maintains that the issue need not be addressed in resolving this appeal. Indeed, at oral argument in this case, all of the parties agreed, including Wexford, that this court need not address the question of federal preemption because if the appellate court's conclusion that the DOC is a joint employer were to be upheld, the Board would seek an advisory opinion from the National Labor Relations Board on the matter. See 29 C.F.R. pt. 100, §101.39 (2003).
Thus, while we believe that the question of whether it is possible for both the Board and the National Labor Relations Board to assert concurrent jurisdiction over a single group of employees is both novel and interesting, given the arguments and representations of the parties at oral argument, we decline to address the issue of federal preemption. We therefore proceed to the question of whether the Board's decision, that the DOC is not a joint employer of the petitioned-for employees, should be confirmed.
Judicial review of a decision of the Board is governed by the Administrative Review Law. See 5 ILCS 315/11(e) (West 2000); 735 ILCS 5/3-101 et seq. (West 2000). Under the Administrative Review Law, the scope of judicial review extends to all questions of law and fact presented by the record before the court. 735 ILCS 5/3-110 (West 2000).
The applicable standard of review depends upon whether the question presented is one of fact, one of law, or a mixed question of fact and law. AFM Messenger Service, Inc. v. Department of Employment Security, 198 Ill. 2d 380, 390 (2001). Questions of law are reviewed de novo. Branson v. Department of Revenue, 168 Ill. 2d 247, 254 (1995). An agency's findings and conclusions on questions of fact shall, by statute, "be held to be prima facie true and correct." 735 ILCS 5/3-110 (West 2000); City of Belvidere v. Illinois State Labor Relations Board, 181 Ill. 2d 191, 204 (1998). As such, when a court is reviewing an agency's factual findings, it will not reweigh the evidence nor will it substitute its judgment for that of the agency. Rather, the court will ascertain only if the findings of fact are against the manifest weight of the evidence. City of Belvidere, 181 Ill. 2d at 204.
Mixed questions of fact and law are "questions in which the historical facts are admitted or established, the rule of law is undisputed, and the issue is whether the facts satisfy the statutory standard, or to put it another way, whether the rule of law as applied to the established facts is or is not violated." Pullman-Standard v. Swint, 456 U.S. 273, 289 n.19, 72 L. Ed. 2d 66, 80 n.19, 102 S. Ct. 1781, 1790 n.19 (1982). Mixed questions of fact and law are subject to reversal only when deemed "clearly erroneous." AFM Messenger, 198 Ill. 2d at 395. A decision is "clearly erroneous" when the reviewing court is left with the definite and firm conviction that a mistake has been committed. AFM Messenger, 198 Ill. 2d at 395, quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 92 L. Ed. 746, 766, 68 S. Ct. 525, 542 (1948).
The question of whether the DOC is a joint employer under the Illinois Public Labor Relations Act is a mixed question of law and fact. The parties are not in dispute as to the DOC's involvement in matters such as recruitment, hiring, training, wages, benefits, scheduling, direction, evaluation, discipline, and discharge. The only question is whether, given these facts, the DOC is a joint employer of the Wexford employees under the Illinois Labor Relations Act. Thus, we review the Board's decision under the clearly erroneous standard noted above.
AFSCME maintains that the Board erred by overlooking the significant amount of control the DOC has retained for itself over the terms and conditions of the Wexford employees' employment. Citing to both federal and state labor relations cases, AFSCME argues that it is the DOC's theoretical, indirect control over the terms and conditions of employment and not its actual exercise of (or lack thereof) control over those terms and conditions that is dispositive. We disagree.
Contrary to AFSCME's contentions, joint employer status does not turn on theoretical control over the terms and conditions of employment. In Village of Winfield v. Illinois State Labor Relations Board, 176 Ill. 2d 54, 60 (1997), this court considered whether two entities were joint employers under the Illinois Labor Relations Act. In so doing, we enunciated the following test to be used when undertaking a joint employer assessment: "The test for the existence of joint employers is whether ' "two or more employers exert significant control over the same employees-where from the evidence it can be shown that they share or co-determine those matters governing essential terms and conditions of employment." ' Orenic v. Illinois State Labor Relations Board, 127 Ill. 2d 453, 474 (1989), quoting National Labor Relations Board v. Browning-Ferris Industries of Pennsylvania, Inc., 691 F.2d 1117, 1124 (3d Cir. 1982).
Relevant factors to consider in making this determination include the 'putative joint employer's role in "hiring and firing; promotions and demotions; setting wages, work hours, and other terms and conditions of employment; discipline; and actual day-to-day supervision and direction of employees on the job." ' Orenic, 127 Ill. 2d at 475, quoting J. Jansonius, Use and Misuse of Employee Leasing, 36 Lab. L.J. 35, 36 (1985). An important consideration in determining whether a particular entity is an employer is the extent to which that entity is necessary to create an effective bargaining relationship." Village of Winfield, 176 Ill. 2d at 60.
We note that the above citation reveals that the standard set forth in Winfield was predicated upon the same standard utilized under federal law with respect to joint employer status. This is so because, in labor cases, "the rulings of the National Labor Relations Board (NLRB) and the Federal courts when these bodies construe the National Labor Relations Act are persuasive authority for similar provisions in the State Act." American Federation of State, County & Municipal Employees v. Illinois State Labor Relations Board, 190 Ill. App. 3d 259, 264 (1989).
The test enunciated in Winfield remains consistent with that utilized in federal cases addressing joint employer status. Indeed, the National Labor Relations Board has recently noted: "[T]he Board's test for determining whether two separate entities should be considered to be joint employers with respect to a specific group of employees has been a matter of settled law for approximately 20 years. In determining whether a joint employer relationship exists under this test, the Board analyzes whether putative joint employers share or co-determine those matters governing essential terms and conditions of employment. See, e.g., Texas World Service Co. v. NLRB, 928 F.2d 1426, 1432 (5th Cir. 1991); NLRB v. Browning-Ferris Industry, 691 F.2d 1117, 1124 (3rd Cir. 1982); TLI, Inc., 271 NLRB 798 (1984), enfd. mem. 772 F.2d 894 (3d Cir. 1985).
The essential element in this analysis is whether a putative joint employer's control over employment matters is direct and immediate. TLI, Inc., 271 NLRB at 798-799.
Thus, approximately 20 years ago, the Board, with court approval, abandoned its previous test in this area, which had focused on a putative's joint employer's indirect control over matters relating to the employment relationship." Airborne Freight Co., 338 N.L.R.B. 597, 597 n.1 (2002). Thus, under federal law, theoretical control is not dispositive to the determination of joint employer status.
We further note that the state labor decisions cited by AFSCME in support of its theoretical-control argument, specifically Elmhurst Park District, 16 Pub. Employee Rep. (Ill.) par. 2042, No. S-RC-00-097 (ISLRB General Counsel August 30, 2000), do not compel a departure from the above principles. According to AFSCME, Elmhurst stands as authority for the proposition that the theoretical control which an entity may exercise should be the standard which is used to determine whether it is a joint employer rather than the actual control which it does exercise.
We have reviewed Elmhurst, however, and find it inapposite. Elmhurst involved an entity, the Sugar Creek Golf Course, which was created by an intergovernmental agreement between two public bodies, the Village of Villa Park and the Elmhurst Park District. The Board noted that "the terms of that agreement are critical in deciding what public body has authority as a public employer over the employees of that entity." Thus, in assessing which public body employed the people who worked at the Sugar Creek Golf Course, the Board looked to the language of the intergovernmental agreement which specifically defined that reserved authority.
In this case, there is no intergovernmental agreement. Rather, there are only vendor contracts between a public entity and a private company. Moreover, unlike the intergovernmental agreement in Elmhurst, which created the specific entity by which the petitioned-for employees are employed, the vendor contracts here did not create Wexford. Given these critical distinctions, we cannot agree with AFSCME's assertion that Elmhurst controls the resolution of the instant case.
In light of the above, we are convinced that the Board in this case employed the correct legal standard to assess whether the DOC was a joint employer of the Wexford employees. Accordingly, we turn our analysis to the question of whether the Board's conclusion that the DOC was not a joint employer is clearly erroneous.
In this case, the ALJ found, and the Board agreed, that Wexford's control over matters governing the essential terms and conditions of employment was direct and substantial and that the DOC's involvement did not rise to the level of sharing meaningful control. We agree and do not believe that the Board's decision was clearly erroneous.
Uncontroverted facts entered into evidence at the Board hearing included consideration of all of the relevant terms and conditions of employment, which we address in turn.
With respect to hiring, Wendy Milner, Wexford's director of Human Resources in Risk Management, testified that the DOC has no control or involvement in the recruitment and hiring of Wexford employees. Wexford solely assesses its recruiting needs, identifies candidates, accepts applications and resumes, and conducts interviews. Wexford then makes the hiring decision without consultation with or any input from the DOC.
Although testimony revealed that the DOC does conduct a background check of Wexford employees, such a check exists for security purposes only and is unrelated to hiring considerations made by Wexford. The background check is required of all DOC employees, contract employees, consultants, interns, volunteers and anyone allowed regular access to a DOC facility.
Another term and condition of employment is wages. Theodore R. Sucher III, Wexford's executive vice president for operations, testified that the wages paid to Wexford employees are the result of negotiations memorialized in the binding collective-bargaining agreement between Wexford and AFSCME. Although the vendor contracts between Wexford and the DOC are based upon a certain hourly rate for each staff position, it is done so to calculate the total amount of compensation to be provided to Wexford under their vendor contract.
It does not bind Wexford to adhere to those calculations in deciding what to pay its own employees. Rather, Wexford is bound by the terms of its collective-bargaining agreement with AFSCME. Evidence established at the hearing revealed that those wages can and do differ from the rates delineated in the vendor contracts. Additionally, pursuant to the collective-bargaining agreement between AFSCME and Wexford, Wexford employees are paid time and one-half after 40 hours in any given week or after eight hours in any given day. Sucher also testified that overtime must be approved by a Wexford manager.
The DOC may or may not reimburse Wexford partially for such overtime depending on the circumstances and pursuant to the terms of the vendor contracts with Wexford. Whether the DOC selectively decides to reimburse Wexford, Wexford is bound legally and under the terms of its agreement with AFSCME to pay the employees such overtime. Given this evidence, we cannot say that the Board clearly erred in finding that the DOC had little meaningful control over this particular term of employment.
Another example of the exclusivity of Wexford's control over its employees is found in paid-time-off requests. Milner testified that, in order to use one's paid time off, an employee submits a request slip which is reviewed for approval by a Wexford on-site manager or regional manager. If approved, a copy of the request is then provided to the "Health Care Unit Administrator" (HCUA). The HCUA is a DOC employee whose role is to facilitate management of the vendor contracts by monitoring compliance with the contract and assuring safety of the unit. The HCUA may make a recommendation to the Wexford manager concerning the operational needs of the facility, but he or she has no authority to approve or deny a paid-time-off request. There have been occasions when concerns have been raised by the HCUA about operational needs, but the Wexford manager has approved the paid-time-off request nonetheless. Milner averred that Wexford's paid-time-off provisions are distinctly different from the paid-time-off provisions offered by the DOC to its employees.
With respect to performance evaluations, the record reflects that such evaluations are conducted by Wexford managers. These evaluations are recorded on a standard Wexford evaluation sheet which is different from the evaluation sheet used by the DOC for its employees. The original evaluation is forwarded to Wexford's main office in Pittsburgh, a copy is placed in the local facility's file and a copy is given to the employee for retention. Milner testified that once the evaluation is completed, it is forwarded to the HCUA for signature. According to Milner, the purpose for the HCUA signature is simply to demonstrate to the DOC that Wexford is satisfying the terms of the vendor contract by ensuring premium care. On rare occasions, particularly where there is no on-site Wexford supervisor, an HCUA may provide input into the evaluation. However, this input may or may not be incorporated into the formal evaluation based on Wexford's judgment and does not affect an employee's wages. The record therefore supports the Board's conclusion that the DOC had little meaningful control over this particular condition of employment.
Discipline is another relevant term and condition of employment. According to the testimony of Susan Walker, regional manager of Wexford and formerly an HCUA with the State of Illinois, Wexford employees are subject to Wexford rules and regulations under its "Code of Conduct" contained in the employee handbook. Violation of any of the 31 listed items subjects an employee to the company's progressive discipline system. The process and any resulting disciplinary measures which are taken are initiated and ultimately decided by Wexford supervisors or managers. Disciplinary issues may be raised by an HCUA or medical director, but they are directed to the Wexford officials who then determine an appropriate course of action. All discipline issued by Wexford between January 2000 and the date of the hearing (approximately 100 occasions) was the independent decision of Wexford, not the DOC. In fact, testimony revealed that DOC employees do not have the authority to discipline any Wexford employees. In light of this evidence, we cannot say the Board clearly erred in finding that the DOC had little meaningful control over discipline.
We note at this juncture that both the appellate court and AFSCME put emphasis on the HCUA's involvement with Wexford employees in matters such as the paid-time-off and disciplinary measures as an example of joint employer control in that the DOC is responsible for the day-to-day direction of Wexford employees. In contrast, the Board ruled that the HCUA's participation in these activities was limited solely to their capacity as a monitor of the vendor contract between the DOC and Wexford and to ensure compliance therewith.
In so ruling, the Board relied on its previous decision, Illinois Departments of Central Management Services & Corrections, 4 Pub. Employee Rep. (Ill.), par. 2034, No. S-CA-100 (ISLRB July 20, 1988), where it held that such operational controls go to the issue of contract compliance as opposed to control over the essential terms and conditions of employment. We agree and note that Board's approach to this question is consistent with that of the National Labor Relations Board in similar circumstances. For example, in Local 254, Service Employees International Union, 324 N.L.R.B. 743 (1997), the National Board found that the direct supervision by the putative joint employer over the employees for purposes of "assuring that it received contracted services" was not sufficient to impose a joint employer status. Local 254, Service Employees International Union, 32 N.L.R.B. at 748. The Board, in our view, did not clearly err in characterizing the HCUAs' involvement as being one related to mere contractual compliance as opposed to control over the day-to-day direction of the Wexford employees.
Further testimony at the hearing by Thomas Page, deputy director of the DOC, revealed that wardens at any of the DOC facilities have the authority to issue a "stop order" barring an individual from access to that facility. Stop orders are typically issued by the warden any time he or she determines that any individual poses a threat to the security or safety of the facility or an inmate. It applies to anyone entering the facility, including visitors, employees, volunteers, chaplains, vendors or contract employees. According to the testimony of Sucher, in the event that a stop order is issued against a Wexford employee, Wexford officials decide whether, in their view, it was an appropriate action and may petition the DOC to reverse its decision.
A stop order is not tantamount to a discharge. In the event that the DOC does not remove the stop order, Wexford may offer the employee a position at one of its other non-DOC facilities. Article XV of the collective- bargaining agreement between Wexford and AFSCME specifically provides that a stop order does not automatically result in termination until an investigation and hearing have been conducted pursuant to the grievance provisions under the terms of their collective-bargaining agreement. Although AFSCME contends that the warden's power to issue a stop order is tantamount to control over firing, evidence at the hearing established that Wexford has the sole ability to discharge any of its employees without input or approval from the DOC. The state cannot and has never discharged a Wexford employee.
Notwithstanding the above evidence, both AFSCME and the appellate court assign great weight to the warden's power to issue a stop order and equate it with control over termination, which both maintain raises the DOC to the level of joint employer. We disagree.
In rejecting this argument, the Board cited to its previous decision in Illinois Department of Central Management Services & Corrections, 4 Pub. Employee Rep. (Ill.) par. 2034, in which it refused to equate the denial of access to a prison for security purposes with discharge from employment. We do not believe the Board erred in this respect.
Indeed, the Board's approach to this question, i.e., whether the ability to enforce prison security rules renders a prison the employer of those who fall within the ambit of the security directive, finds support in judicial opinions where the ability to deny access to a prison has been claimed to render a prison an employer. For example, in her recommended decision and order, the ALJ cited the opinion of Hojnacki v. Klein-Acosta, No. 00 C 1356, 3095 (N.D. Ill. 2001).
There, the plaintiff was an employee of a private company that contracted services to the DOC. The court held that the State was not plaintiff's employer for purposes of her Title VII claims. Relevant to this issue in this case is the court's conclusion that "the fact that Hojnacki (contract employee) was subject to the prison's security regulations does not make her an employee of the DOC." Hojnacki, slip op. at 13. The court acknowledged that although "valid penological measures imposed to ensure safety and security within a facility may require a worker to fulfill certain conditions, those conditions do not rise to the level of 'control' for purposes of determining a worker's employment status with the correctional facility itself."
On appeal, the United States Court of Appeals for the Seventh Circuit affirmed, stating "one can 'control' the conduct of another contracting party by setting out in detail his obligations; this is nothing more than the freedom of contract. This sort of one-time 'control' is significantly different than the discretionary control an employer’s daily exercises over its employees' conduct." Hojnacki v. Klein-Acosta, 285 F.3d 544, 551 (7th Cir. 2002), quoting Equal Employment Opportunity Comm'n v. North Knox School Corp., 154 F.3d 744, 748 (7th Cir. 1998).
Similarly, in Lambertsen v. Utah Department of Corrections, 79 F.3d 1024 (10th Cir. 1996), the Tenth Circuit Court of Appeals recognized the unique circumstances of a private employee working in a penal institution. The case involved a teacher's assistant working for an independent contractor (a school district) within the Utah Department of Corrections. The court refused to characterize the Utah Department of Corrections as an employer because the Department only controlled aspects of prison security while the school district controlled the hiring, firing, wages and benefits of school employees who were assigned to the prison school.
Although the Department exercised some control over the plaintiff for security purposes when she was within the confines of the prison, the ultimate control over her employment was exercised by the school district. In other words, there was no basis to find that the Department controlled the means or the manner in which the plaintiff performed her day-to-day work. Lambertsen, 79 F.3d at 1029. We agree with the reasoning outlined in the above federal cases and hold that the Board did not clearly err in finding that the control that DOC may exert over Wexford employees with respect to prison security and safety does not rise to the level of 'control' for purposes of determining employer status under the Illinois Labor Relations Act.
After reviewing the evidence adduced at the hearing, we cannot say the Board clearly erred in determining that the stop-order situation was merely authority which each facility reserves purely for security purposes and not for employment purposes. The record establishes, according to the testimony of Page that stop orders apply to everyone entering the facility, including visitors, employees, volunteers, chaplains, vendors or contract employees. In the only two specific instances cited by AFSCME in its brief and corroborated by the record, one involved the revocation of an employee's security clearance on two occasions because she did not meet the requisite licensing requirements of the state for a psychologist. Although the DOC was persuaded to waive the requirement for this employee after the first stop order, it chose to discontinue the waiver a second time due to an incident related to her performance. It was then that Wexford discharged the employee, not the DOC, after notice and a hearing, in accordance with the grievance procedures outlined in Wexford's collective-bargaining agreement with AFSCME. The second instance cited by AFSCME involved an employee who failed a required drug test. Again, after notice and a hearing, Wexford made an offer to the employee to allow her to resign. The offer was rejected, so she was discharged by Wexford, not the DOC.
After carefully reviewing all of the evidence adduced, we cannot say that the Board clearly erred in ruling that the Wexford employees were not jointly employed by the DOC. With respect to hiring and firing, promotions, and demotions, setting wages, work hours, discipline, and actual day-to-day supervision and direction of employees on the job, the evidence supports the Board's finding that the DOC did not share or codetermine control over these matters so as to be considered a joint employer. Moreover, we agree with the sentiment expressed by the Board at the conclusion of its written decision: "The Board's lack of jurisdiction over [the Wexford] employees does not completely remove them from the purview of collective bargaining. Rather, it simply removes them from the jurisdiction of the [Illinois State Labor Relations] Act.
However, these employees are currently represented by AFSCME and are covered by the [National Labor Relations Act]. They are thus not in the collective bargaining "no-man's land" in which many subcontracted employees of a public sector entity find themselves. On the contrary, the petitioned for employees possess the rights guaranteed by the National Labor Relations Act and may enforce those rights at the National Labor Relations Board.
Thus, AFSCME may seek redress for any disruption or potential unfair labor practice in its bargaining relationship with Wexford from the National Labor Relations Board. That is, if Wexford has relied on its connection with the State to justify an alleged refusal to bargain over certain terms and conditions of employment, or if AFSCME has been unable to process grievances under the collective bargaining agreement's grievance procedure because the State has denied its stewards access to the employees workplaces, AFSCME can pursue resolution of those matters with the National Labor Relations Board pursuant to the National Labor Relations Act's unfair labor practice provisions."
It is clear from the record that the DOC has little meaningful control over the conditions and terms of the Wexford employees' employment. The Board did not err in reaching this conclusion, and its decision on this matter should not be disturbed. In light of our resolution of the joint employer status question, the Board's dismissal of the related unfair labor practice charge was correct.
CONCLUSION
The Board's determination that the DOC is not a joint employer of the Wexford bargaining unit employees was not clearly erroneous. For the foregoing reasons, the judgment of the appellate court is reversed and the decision of the Board is confirmed.
This court decided this case on the record of this case. Defining employer for this case was determined from the facts of this case. AFSCME’s bargaining unit at Sheridan has no contract with Gateway and its employees. IDOC/State of Illinois took full and complete control of Gateway’s “Non-Participating” employees when they locked them out because they did not participate in the strike. IDOC/State of Illinois took and assumed meaningful control over the conditions and terms of Gateway’s “Non-Participating” employees’ employment. [Emphasis added]
cc: http://clickforjusticeandequality2.blogspot.com/
Ms. Hilda Whittington, Supervisor
I received $6175.00 from the Illinois Department of Employment Security today. Thank you Mr. Blagojevich.
Update: December 30, 2006
On or about December 27, 2006, Ms. Goosby returned my call leaving a voice message stating the Director's decision will post in the system on December 27, 2006. She also stated the local office should take responsibility for disbursing the check for every week I certified for benefits. As of today, December 30, 2006, I have not received my unemployment benefits.
Update: December 23, 2006
I have been informed Ms. Brenda Russell, Director of the Illinois Department of Employment Security, has concurred with Ms. Efia Goosby in the decision to find me eligible for unemployment benefits for the period of June 6, 2006 through September 6, 2006. Further details will be forthcoming.
Update: December 14, 2006
Ms. Goosby returned my call leaving a voice message stating no one objected to her decision. Therefore, her recommendation goes on to Ms. Brenda Russell, Director of the Illinois Department of Employment Security. Ms. Goosby states her decision is a "recommendation" and that Ms. Brenda Russell will make the final decision, which I should receive Ms. Russell's decision in a few days. I hope Ms. Russell promptly expedites her decision. It is my thought that Ms. Russell will agree with Ms. Goosby decision, and issue my check along with her decision. What can Ms. Russell come up with now to postpone or deny my unemployment benefits?
Update: December 13, 2006
When the Director's Representative, Efia Goosby Administrative Law Judge Supervisor, issued this "Recommendation" on November 29, 2006 she reports "Objections to this report may be filed within ten days of its date...Copies must also be served upon each party listed entitled to notice...." The only entity entitled to object is Gateway Foundation, Inc. Gateway has not objected. I have not received copies of any objections. Therefore, this recommendation should stand. I am entitled to unemployment benefits for the period of June 6, 2006 through September 6, 2006. The Director's Representative has not contacted me about my benefit check, which should be in the neighborhood of $6,175.00. On December 13, 2006 at approximately 11:00 pm (CST) I am leaving a message for the Director's Representative to call me giving information on the approximate date I will receive my unemployment check for the period of June 6, 2006 through September 6, 2006.
Update: November 30, 2006
It appears Governor Blagojevich's Department of Unemployment Security works toward justice.
I received a "Recommended Decision" from the Director's representative of the Illinois Department of Unemployment Security reporting "The claims adjudicator's determination dated August 4, 2006, should be set aside. The claimant-appellants herein should not be ineligible for unemployment benefits under the provisions of Section 604 of the Illinois Unemployment Insurance Act." There is a footnote: "After considering the Report of the Director's representative, the objections filed, if any, and the record as a whole, the Director will make the final Department decision and copy will be served upon all parties entitled to notice."
I await the Director's decision and my unemployment benefits. It appears there is some justice in Illinois. Governor Blagojevich's Department appears to work in the storm.
Update: November 11, 2006
The election is over. Governor Blagojevich has been re-elected. Where are my unemployment benefits from being locked out of my employment at Sheridan Correctional Center on June 6, 2006 until September 6, 2006 by the Illinois Department of Corrections when AFSCME the union forced a strike?
I was not permitted to cross the picket lines of the strike. This issue is presently in front of the Illinois Department of Employment Security's Board of Review, where hearing officer Ms. Goosby is ruling. The telephone hearing was held on October 12, 2006.
Update: October 30, 2006
Ms. Goosby conducted the hearing on or about October 12, 2006. I withdrew my request for her recusal to avoid further delay of these proceedings. I was promised a decision in 2 weeks. There has not been a decision made yet. It appears the Illinois Department of Employment Security is waiting for the Governor's election to conclude before they make their decision. Remember, this is a department of our "famous" Governor Blagojevich.
Ms. Goosby also sent me the following: §1900. Disclosure of Information A. Except as provided in this Section, information obtained from any individual or employing unit during the administration of this Act shall: 1) be confidential, 2) not be published or open to public inspection, 3) not be used in any court in any pending action or proceeding, and 4) not be admissible in evidence in any action or proceeding other than one arising out of this Act. Does this statement take away or violate my freedom of speech or any other "1st Amendment" right?
Update: October 3, 2006
I talked to Ms. Efia Goosby, Illinois Department of Employment Security (IDES) Supervisor on October 2, 2006 requesting she recuse herself from judging my IDES Appeal. Ms. Goosby refuses to include the Illinois Department of Corrections in my appeal, even though I have persisted in requesting their inclusion because they locked me out from my employment, and that they are the "indirect employer" in this matter. I have also left a message with Ms. Goosby's supervisor Hilda Whittington.
I informed Ms. Goosby one of her line items for discussion in my pre-hearing of September 28, 2006 was "Whether the Administrative Law Judge, Efia Goosby, must disqualify herself from hearing this matter." Ms. Goosby informed me on October 2, 2006 that this issue will be discussed on October 12, 2006 at my "hearing." This is absurd.
October 2, 2006
State of Illinois
Department of Employment Security
Administrative Hearings
Ms. Efia Goosby, Supervisor
33 South State Street, 8th Floor
Chicago, Illinois 60605
Re: Docket #DL 59719:
Ms. Goosby:
First and foremost, I, Fred L Nance Jr., requested dismissal of Ms. Goosby assignment to this matter, as it applies to my issues. I did not have an interest or participate in the strike at Sheridan Correctional Center (Sheridan). I am not a “bargaining unit” member of AFSCME. I am an innocent victim of this strike. Second, the Illinois Department of Employment Security (IDES) interprets Illinois public policy first before attempting to interpret Illinois Supreme and Appellate Court decisions. IDES should not be legislating from their offices from the interpretations of the Illinois Supreme and Appellate Courts. Third, Illinois Supreme and Appellate Courts interpret public policy. They should and do not legislate from the bench. These courts give their opinions of public policies. Fourth, the case presented by AFSCME’s lawyer, Mr. Scott Miller, does not fit squarely with my issues and my particular case.
The Illinois legislature declared public policy underlying the Unemployment Insurance Act is to lighten the burden of involuntary unemployment that "so often falls with crushing force upon the unemployed worker and his family." 820 ILCS 405/100 (West 1992); see Panther Creek Mines, Inc. v. Murphy, 390 Ill. 23, 28 (1945) (the purpose of unemployment compensation is "to alleviate the distress and suffering occasioned by involuntary unemployment"); see also Outboard, Marine & Manufacturing Co., Johnson Motors Division v. Gordon, 403 Ill. 523, 536-37 (1949) ("the legislature intended to provide for the innocent victims of a labor dispute by specifically excluding them from the denial of unemployment compensation"). Accordingly, the Act is to be liberally construed to provide financial assistance to those who are unemployed through no fault of their own. Bridgestone, 179 Ill. 2d at 155; Cummins, 7 Ill. 2d at 339. This is not legislated by IDES or the Supreme and Appellate Courts.
In contrast, Gateway Foundation (Gateway) AFSCME bargaining unit employees are not eligible for unemployment benefits due to the Illinois Unemployment Insurance Act §604: "Labor dispute. An individual shall be ineligible for benefits for any week with respect to which it is found that his total or partial unemployment is due to a stoppage of work which exists because of a labor dispute at the factory, establishment, or other premises at which he is or was last employed. This Section shall not apply if it is shown that (A) the individual is not participating in or financing or directly interested in the labor dispute which caused the stoppage of work and (B) he does not belong to a grade or class of workers of which immediately before the commencement of the stoppage there were members employed at the premises at which the stoppage occurs, any of whom are participating in or financing or directly interested in the dispute; provided, that a lockout by the employer or an individual's failure to cross a picket line at such factory, establishment, or other premises shall not, in itself, be deemed to be participation by him in the labor dispute." 820 ILCS 405/604 (West 1994). The “Participants” (strikers) have an interest in the strike and walked off their jobs.
To be eligible for unemployment insurance benefits under the relieving proviso of section 604, an employee must prove both that he is not directly interested in the labor dispute and that he is not of the same grade or class as employees who are participating in, financing or who hold a direct interest in the labor dispute. International Union of Operating Engineers, Local 148, AFL-CIO v. Illinois Department of Employment Security et al. (2005). I am not directly interested in the labor dispute, nor do I fit the second prong because the class here at Sheridan also includes “Participating and Non-Participating” employees of Gateway/Sheridan as stated, labeled and determined by IDES in their “Labor Dispute Determination.” To develop, capture and entangle me in the strike at Sheridan, AFSCME’s bargaining unit must have a “collective bargaining agreement” (contract) with Gateway and I must be a “Participant” (class) in the strike.
AFSCME bargaining unit employees are not eligible for unemployment benefits because they voluntarily walked off their jobs. AFSCME does not have a “collective bargaining agreement” (contract) with Gateway. AFSCME is the “bargaining unit” for some of Gateway’s employees. I, Fred L Nance Jr., am a Counselor III working for Gateway at Sheridan Correctional Center (SCC)/Illinois Department of Corrections (IDOC)/State of Illinois. AFSCME does not and has never represented me.
IDOC is not part of the bargaining unit, yet it took on the role of participation in the bargaining processes by locking out Gateway employees who wanted to cross the picket lines. IDOC, in all practical terms, assumed the role of the union, forcing “Non-Participants” to participate in the strike. IDOC took on a role that erased Gateway’s essential terms and conditions of employment. IDOC’s behavior was direct and substantial and IDOC's involvement rose to the level of sharing meaningful control, assuming the role of employer. There was no more of a security problem than there is a security problem now that all Gateway employees are back at work at Sheridan.
IDOC took on a role reporting in IDES’s “Labor Dispute Determination” dated August 4, 2006, “…IDOC states it refuses to allow entry to SCC to the NON-PARTICIPATING WORKERS because various AFSCME bargaining units are the recognized collective bargaining representatives of correctional officers (i.e. security staff) and other IDOC employees at SCC, and therefore the safety and security at SCC could be disrupted if it allowed the NON-PARTICIPATING WORKERS into SCC in order to work before the differences between the UNION and the COMPANY is resolved.”
There was no more of a security issue than it would be today, yet IDOC has given access to all Gateway employees. IDOC had no prison rule to enforce here. This was clearly a right to choose if one wants to cross a picket line or not.
IDOC had control over the Gateway non-participating employees because IDOC locked out the Gateway employees from their employment. Therefore, the case cite below, which was provided by Mr. Scott Miller, AFSCME attorney, does not apply or rule in this instance. IDOC did not exercise “theoretical” control over the Gateway employees. IDOC exacted direct and immediate control over the non-participating Gateway employees when they locked them out from their employment, taking their right to cross the picket lines away from them. IDOC took the direct control out of Gateway’s hand when it denied their employees access to their employment.
If this case is used, then IDES’s rationalization in their “Labor Dispute Determination” would be invalid. IDES reports “…If the NON-PARTICIPATING WORKERS had been denied access to SCC by the COMPANY rather than IDOC, there would be clear justification for not finding them ineligible for benefits…But that is not the case. The COMPANY not only has not prevented the NON-PARTICIPATING WORKERS’ access to SCC, it in fact would very much like them to enter SCC and work. If the COMPANY was in control of SCC this exactly what would happen, and the NON-PARTICIPATING WORKERS, being employed, would not have claims…However, a unilateral action of IDOC over which the COMPANY has no direction or control has frustrated its express desires.”
I have copied and attached to this writing the part of the opinion alleged by Mr. Miller to apply to the strike at Sheridan. This case does not address a strike and whether a “non-participating” employee of a strike can cross a picket line and receive unemployment benefits. This case does not apply to the instant case involving Sheridan Correctional Center.
Fred L Nance Jr.
Docket No. 99074-Agenda 14-May 2005.
AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, COUNCIL 31, Appellee, v. THE ILLINOIS STATE LABOR RELATIONS BOARD, STATE PANEL, et al. (The Department of Central Management Services et al., Appellants).
Opinion filed October 6, 2005.
JUSTICE FREEMAN delivered the opinion of the court:
This case arises from a decision of the Illinois State Labor Relations Board, State Panel (Board), dismissing a certification petition and a related unfair labor practice claim filed by the American Federation of State, County, and Municipal Employees, Council 31 (AFSCME). The appellate court, on administrative review, set aside the Board's decision. 351 Ill. App. 3d 707. We granted leave to appeal (177 Ill. 2d R. 315) and now reverse the judgment of the appellate court.
As an initial matter, Wexford maintains in its brief that this matter has been preempted by federal law, specifically the National Labor Relations Act (National Act). Wexford points out that AFSCME, in this action, is attempting to organize a group of employees that it acknowledges is already covered by a collective-bargaining agreement negotiated under the National Act. Put another way, AFSCME seeks the right to bargain with two employers, a private company and a state governmental agency, under two different labor relations statutes with respect to one group of employees. As such, AFSCME is asking to be the employees' sole bargaining representative under our state labor relations act just as it already is under the National Act. Wexford maintains that such simultaneous or concurrent jurisdiction has never been recognized by any agency or judicial opinion.
As noted earlier, both Wexford and CMS raised this very issue before the Board by way of a motion to dismiss. The Board denied the motion because it was not clear that its jurisdiction was preempted. To that end, the Board ordered that a hearing be held in order to determine whether the employees at issue were, in fact, joint employees of the DOC under the Illinois act. The Board further indicated that if it were to find that a joint employer relationship existed between Wexford and the DOC, the Board would then petition the National Labor Relations Board for an advisory opinion as to whether the joint employer status, as contemplated in this case, would violate principles of federal preemption. However, at the conclusion of the hearing, the Board concluded that the DOC was not an employer of the petitioned-for employees under the Illinois act and that it lacked jurisdiction over the matter.
In its brief, CMS has not iterated its previous arguments made before the Board with respect to preemption. CMS, represented by the Attorney General, maintains that the issue need not be addressed in resolving this appeal. Indeed, at oral argument in this case, all of the parties agreed, including Wexford, that this court need not address the question of federal preemption because if the appellate court's conclusion that the DOC is a joint employer were to be upheld, the Board would seek an advisory opinion from the National Labor Relations Board on the matter. See 29 C.F.R. pt. 100, §101.39 (2003).
Thus, while we believe that the question of whether it is possible for both the Board and the National Labor Relations Board to assert concurrent jurisdiction over a single group of employees is both novel and interesting, given the arguments and representations of the parties at oral argument, we decline to address the issue of federal preemption. We therefore proceed to the question of whether the Board's decision, that the DOC is not a joint employer of the petitioned-for employees, should be confirmed.
Judicial review of a decision of the Board is governed by the Administrative Review Law. See 5 ILCS 315/11(e) (West 2000); 735 ILCS 5/3-101 et seq. (West 2000). Under the Administrative Review Law, the scope of judicial review extends to all questions of law and fact presented by the record before the court. 735 ILCS 5/3-110 (West 2000).
The applicable standard of review depends upon whether the question presented is one of fact, one of law, or a mixed question of fact and law. AFM Messenger Service, Inc. v. Department of Employment Security, 198 Ill. 2d 380, 390 (2001). Questions of law are reviewed de novo. Branson v. Department of Revenue, 168 Ill. 2d 247, 254 (1995). An agency's findings and conclusions on questions of fact shall, by statute, "be held to be prima facie true and correct." 735 ILCS 5/3-110 (West 2000); City of Belvidere v. Illinois State Labor Relations Board, 181 Ill. 2d 191, 204 (1998). As such, when a court is reviewing an agency's factual findings, it will not reweigh the evidence nor will it substitute its judgment for that of the agency. Rather, the court will ascertain only if the findings of fact are against the manifest weight of the evidence. City of Belvidere, 181 Ill. 2d at 204.
Mixed questions of fact and law are "questions in which the historical facts are admitted or established, the rule of law is undisputed, and the issue is whether the facts satisfy the statutory standard, or to put it another way, whether the rule of law as applied to the established facts is or is not violated." Pullman-Standard v. Swint, 456 U.S. 273, 289 n.19, 72 L. Ed. 2d 66, 80 n.19, 102 S. Ct. 1781, 1790 n.19 (1982). Mixed questions of fact and law are subject to reversal only when deemed "clearly erroneous." AFM Messenger, 198 Ill. 2d at 395. A decision is "clearly erroneous" when the reviewing court is left with the definite and firm conviction that a mistake has been committed. AFM Messenger, 198 Ill. 2d at 395, quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 92 L. Ed. 746, 766, 68 S. Ct. 525, 542 (1948).
The question of whether the DOC is a joint employer under the Illinois Public Labor Relations Act is a mixed question of law and fact. The parties are not in dispute as to the DOC's involvement in matters such as recruitment, hiring, training, wages, benefits, scheduling, direction, evaluation, discipline, and discharge. The only question is whether, given these facts, the DOC is a joint employer of the Wexford employees under the Illinois Labor Relations Act. Thus, we review the Board's decision under the clearly erroneous standard noted above.
AFSCME maintains that the Board erred by overlooking the significant amount of control the DOC has retained for itself over the terms and conditions of the Wexford employees' employment. Citing to both federal and state labor relations cases, AFSCME argues that it is the DOC's theoretical, indirect control over the terms and conditions of employment and not its actual exercise of (or lack thereof) control over those terms and conditions that is dispositive. We disagree.
Contrary to AFSCME's contentions, joint employer status does not turn on theoretical control over the terms and conditions of employment. In Village of Winfield v. Illinois State Labor Relations Board, 176 Ill. 2d 54, 60 (1997), this court considered whether two entities were joint employers under the Illinois Labor Relations Act. In so doing, we enunciated the following test to be used when undertaking a joint employer assessment: "The test for the existence of joint employers is whether ' "two or more employers exert significant control over the same employees-where from the evidence it can be shown that they share or co-determine those matters governing essential terms and conditions of employment." ' Orenic v. Illinois State Labor Relations Board, 127 Ill. 2d 453, 474 (1989), quoting National Labor Relations Board v. Browning-Ferris Industries of Pennsylvania, Inc., 691 F.2d 1117, 1124 (3d Cir. 1982).
Relevant factors to consider in making this determination include the 'putative joint employer's role in "hiring and firing; promotions and demotions; setting wages, work hours, and other terms and conditions of employment; discipline; and actual day-to-day supervision and direction of employees on the job." ' Orenic, 127 Ill. 2d at 475, quoting J. Jansonius, Use and Misuse of Employee Leasing, 36 Lab. L.J. 35, 36 (1985). An important consideration in determining whether a particular entity is an employer is the extent to which that entity is necessary to create an effective bargaining relationship." Village of Winfield, 176 Ill. 2d at 60.
We note that the above citation reveals that the standard set forth in Winfield was predicated upon the same standard utilized under federal law with respect to joint employer status. This is so because, in labor cases, "the rulings of the National Labor Relations Board (NLRB) and the Federal courts when these bodies construe the National Labor Relations Act are persuasive authority for similar provisions in the State Act." American Federation of State, County & Municipal Employees v. Illinois State Labor Relations Board, 190 Ill. App. 3d 259, 264 (1989).
The test enunciated in Winfield remains consistent with that utilized in federal cases addressing joint employer status. Indeed, the National Labor Relations Board has recently noted: "[T]he Board's test for determining whether two separate entities should be considered to be joint employers with respect to a specific group of employees has been a matter of settled law for approximately 20 years. In determining whether a joint employer relationship exists under this test, the Board analyzes whether putative joint employers share or co-determine those matters governing essential terms and conditions of employment. See, e.g., Texas World Service Co. v. NLRB, 928 F.2d 1426, 1432 (5th Cir. 1991); NLRB v. Browning-Ferris Industry, 691 F.2d 1117, 1124 (3rd Cir. 1982); TLI, Inc., 271 NLRB 798 (1984), enfd. mem. 772 F.2d 894 (3d Cir. 1985).
The essential element in this analysis is whether a putative joint employer's control over employment matters is direct and immediate. TLI, Inc., 271 NLRB at 798-799.
Thus, approximately 20 years ago, the Board, with court approval, abandoned its previous test in this area, which had focused on a putative's joint employer's indirect control over matters relating to the employment relationship." Airborne Freight Co., 338 N.L.R.B. 597, 597 n.1 (2002). Thus, under federal law, theoretical control is not dispositive to the determination of joint employer status.
We further note that the state labor decisions cited by AFSCME in support of its theoretical-control argument, specifically Elmhurst Park District, 16 Pub. Employee Rep. (Ill.) par. 2042, No. S-RC-00-097 (ISLRB General Counsel August 30, 2000), do not compel a departure from the above principles. According to AFSCME, Elmhurst stands as authority for the proposition that the theoretical control which an entity may exercise should be the standard which is used to determine whether it is a joint employer rather than the actual control which it does exercise.
We have reviewed Elmhurst, however, and find it inapposite. Elmhurst involved an entity, the Sugar Creek Golf Course, which was created by an intergovernmental agreement between two public bodies, the Village of Villa Park and the Elmhurst Park District. The Board noted that "the terms of that agreement are critical in deciding what public body has authority as a public employer over the employees of that entity." Thus, in assessing which public body employed the people who worked at the Sugar Creek Golf Course, the Board looked to the language of the intergovernmental agreement which specifically defined that reserved authority.
In this case, there is no intergovernmental agreement. Rather, there are only vendor contracts between a public entity and a private company. Moreover, unlike the intergovernmental agreement in Elmhurst, which created the specific entity by which the petitioned-for employees are employed, the vendor contracts here did not create Wexford. Given these critical distinctions, we cannot agree with AFSCME's assertion that Elmhurst controls the resolution of the instant case.
In light of the above, we are convinced that the Board in this case employed the correct legal standard to assess whether the DOC was a joint employer of the Wexford employees. Accordingly, we turn our analysis to the question of whether the Board's conclusion that the DOC was not a joint employer is clearly erroneous.
In this case, the ALJ found, and the Board agreed, that Wexford's control over matters governing the essential terms and conditions of employment was direct and substantial and that the DOC's involvement did not rise to the level of sharing meaningful control. We agree and do not believe that the Board's decision was clearly erroneous.
Uncontroverted facts entered into evidence at the Board hearing included consideration of all of the relevant terms and conditions of employment, which we address in turn.
With respect to hiring, Wendy Milner, Wexford's director of Human Resources in Risk Management, testified that the DOC has no control or involvement in the recruitment and hiring of Wexford employees. Wexford solely assesses its recruiting needs, identifies candidates, accepts applications and resumes, and conducts interviews. Wexford then makes the hiring decision without consultation with or any input from the DOC.
Although testimony revealed that the DOC does conduct a background check of Wexford employees, such a check exists for security purposes only and is unrelated to hiring considerations made by Wexford. The background check is required of all DOC employees, contract employees, consultants, interns, volunteers and anyone allowed regular access to a DOC facility.
Another term and condition of employment is wages. Theodore R. Sucher III, Wexford's executive vice president for operations, testified that the wages paid to Wexford employees are the result of negotiations memorialized in the binding collective-bargaining agreement between Wexford and AFSCME. Although the vendor contracts between Wexford and the DOC are based upon a certain hourly rate for each staff position, it is done so to calculate the total amount of compensation to be provided to Wexford under their vendor contract.
It does not bind Wexford to adhere to those calculations in deciding what to pay its own employees. Rather, Wexford is bound by the terms of its collective-bargaining agreement with AFSCME. Evidence established at the hearing revealed that those wages can and do differ from the rates delineated in the vendor contracts. Additionally, pursuant to the collective-bargaining agreement between AFSCME and Wexford, Wexford employees are paid time and one-half after 40 hours in any given week or after eight hours in any given day. Sucher also testified that overtime must be approved by a Wexford manager.
The DOC may or may not reimburse Wexford partially for such overtime depending on the circumstances and pursuant to the terms of the vendor contracts with Wexford. Whether the DOC selectively decides to reimburse Wexford, Wexford is bound legally and under the terms of its agreement with AFSCME to pay the employees such overtime. Given this evidence, we cannot say that the Board clearly erred in finding that the DOC had little meaningful control over this particular term of employment.
Another example of the exclusivity of Wexford's control over its employees is found in paid-time-off requests. Milner testified that, in order to use one's paid time off, an employee submits a request slip which is reviewed for approval by a Wexford on-site manager or regional manager. If approved, a copy of the request is then provided to the "Health Care Unit Administrator" (HCUA). The HCUA is a DOC employee whose role is to facilitate management of the vendor contracts by monitoring compliance with the contract and assuring safety of the unit. The HCUA may make a recommendation to the Wexford manager concerning the operational needs of the facility, but he or she has no authority to approve or deny a paid-time-off request. There have been occasions when concerns have been raised by the HCUA about operational needs, but the Wexford manager has approved the paid-time-off request nonetheless. Milner averred that Wexford's paid-time-off provisions are distinctly different from the paid-time-off provisions offered by the DOC to its employees.
With respect to performance evaluations, the record reflects that such evaluations are conducted by Wexford managers. These evaluations are recorded on a standard Wexford evaluation sheet which is different from the evaluation sheet used by the DOC for its employees. The original evaluation is forwarded to Wexford's main office in Pittsburgh, a copy is placed in the local facility's file and a copy is given to the employee for retention. Milner testified that once the evaluation is completed, it is forwarded to the HCUA for signature. According to Milner, the purpose for the HCUA signature is simply to demonstrate to the DOC that Wexford is satisfying the terms of the vendor contract by ensuring premium care. On rare occasions, particularly where there is no on-site Wexford supervisor, an HCUA may provide input into the evaluation. However, this input may or may not be incorporated into the formal evaluation based on Wexford's judgment and does not affect an employee's wages. The record therefore supports the Board's conclusion that the DOC had little meaningful control over this particular condition of employment.
Discipline is another relevant term and condition of employment. According to the testimony of Susan Walker, regional manager of Wexford and formerly an HCUA with the State of Illinois, Wexford employees are subject to Wexford rules and regulations under its "Code of Conduct" contained in the employee handbook. Violation of any of the 31 listed items subjects an employee to the company's progressive discipline system. The process and any resulting disciplinary measures which are taken are initiated and ultimately decided by Wexford supervisors or managers. Disciplinary issues may be raised by an HCUA or medical director, but they are directed to the Wexford officials who then determine an appropriate course of action. All discipline issued by Wexford between January 2000 and the date of the hearing (approximately 100 occasions) was the independent decision of Wexford, not the DOC. In fact, testimony revealed that DOC employees do not have the authority to discipline any Wexford employees. In light of this evidence, we cannot say the Board clearly erred in finding that the DOC had little meaningful control over discipline.
We note at this juncture that both the appellate court and AFSCME put emphasis on the HCUA's involvement with Wexford employees in matters such as the paid-time-off and disciplinary measures as an example of joint employer control in that the DOC is responsible for the day-to-day direction of Wexford employees. In contrast, the Board ruled that the HCUA's participation in these activities was limited solely to their capacity as a monitor of the vendor contract between the DOC and Wexford and to ensure compliance therewith.
In so ruling, the Board relied on its previous decision, Illinois Departments of Central Management Services & Corrections, 4 Pub. Employee Rep. (Ill.), par. 2034, No. S-CA-100 (ISLRB July 20, 1988), where it held that such operational controls go to the issue of contract compliance as opposed to control over the essential terms and conditions of employment. We agree and note that Board's approach to this question is consistent with that of the National Labor Relations Board in similar circumstances. For example, in Local 254, Service Employees International Union, 324 N.L.R.B. 743 (1997), the National Board found that the direct supervision by the putative joint employer over the employees for purposes of "assuring that it received contracted services" was not sufficient to impose a joint employer status. Local 254, Service Employees International Union, 32 N.L.R.B. at 748. The Board, in our view, did not clearly err in characterizing the HCUAs' involvement as being one related to mere contractual compliance as opposed to control over the day-to-day direction of the Wexford employees.
Further testimony at the hearing by Thomas Page, deputy director of the DOC, revealed that wardens at any of the DOC facilities have the authority to issue a "stop order" barring an individual from access to that facility. Stop orders are typically issued by the warden any time he or she determines that any individual poses a threat to the security or safety of the facility or an inmate. It applies to anyone entering the facility, including visitors, employees, volunteers, chaplains, vendors or contract employees. According to the testimony of Sucher, in the event that a stop order is issued against a Wexford employee, Wexford officials decide whether, in their view, it was an appropriate action and may petition the DOC to reverse its decision.
A stop order is not tantamount to a discharge. In the event that the DOC does not remove the stop order, Wexford may offer the employee a position at one of its other non-DOC facilities. Article XV of the collective- bargaining agreement between Wexford and AFSCME specifically provides that a stop order does not automatically result in termination until an investigation and hearing have been conducted pursuant to the grievance provisions under the terms of their collective-bargaining agreement. Although AFSCME contends that the warden's power to issue a stop order is tantamount to control over firing, evidence at the hearing established that Wexford has the sole ability to discharge any of its employees without input or approval from the DOC. The state cannot and has never discharged a Wexford employee.
Notwithstanding the above evidence, both AFSCME and the appellate court assign great weight to the warden's power to issue a stop order and equate it with control over termination, which both maintain raises the DOC to the level of joint employer. We disagree.
In rejecting this argument, the Board cited to its previous decision in Illinois Department of Central Management Services & Corrections, 4 Pub. Employee Rep. (Ill.) par. 2034, in which it refused to equate the denial of access to a prison for security purposes with discharge from employment. We do not believe the Board erred in this respect.
Indeed, the Board's approach to this question, i.e., whether the ability to enforce prison security rules renders a prison the employer of those who fall within the ambit of the security directive, finds support in judicial opinions where the ability to deny access to a prison has been claimed to render a prison an employer. For example, in her recommended decision and order, the ALJ cited the opinion of Hojnacki v. Klein-Acosta, No. 00 C 1356, 3095 (N.D. Ill. 2001).
There, the plaintiff was an employee of a private company that contracted services to the DOC. The court held that the State was not plaintiff's employer for purposes of her Title VII claims. Relevant to this issue in this case is the court's conclusion that "the fact that Hojnacki (contract employee) was subject to the prison's security regulations does not make her an employee of the DOC." Hojnacki, slip op. at 13. The court acknowledged that although "valid penological measures imposed to ensure safety and security within a facility may require a worker to fulfill certain conditions, those conditions do not rise to the level of 'control' for purposes of determining a worker's employment status with the correctional facility itself."
On appeal, the United States Court of Appeals for the Seventh Circuit affirmed, stating "one can 'control' the conduct of another contracting party by setting out in detail his obligations; this is nothing more than the freedom of contract. This sort of one-time 'control' is significantly different than the discretionary control an employer’s daily exercises over its employees' conduct." Hojnacki v. Klein-Acosta, 285 F.3d 544, 551 (7th Cir. 2002), quoting Equal Employment Opportunity Comm'n v. North Knox School Corp., 154 F.3d 744, 748 (7th Cir. 1998).
Similarly, in Lambertsen v. Utah Department of Corrections, 79 F.3d 1024 (10th Cir. 1996), the Tenth Circuit Court of Appeals recognized the unique circumstances of a private employee working in a penal institution. The case involved a teacher's assistant working for an independent contractor (a school district) within the Utah Department of Corrections. The court refused to characterize the Utah Department of Corrections as an employer because the Department only controlled aspects of prison security while the school district controlled the hiring, firing, wages and benefits of school employees who were assigned to the prison school.
Although the Department exercised some control over the plaintiff for security purposes when she was within the confines of the prison, the ultimate control over her employment was exercised by the school district. In other words, there was no basis to find that the Department controlled the means or the manner in which the plaintiff performed her day-to-day work. Lambertsen, 79 F.3d at 1029. We agree with the reasoning outlined in the above federal cases and hold that the Board did not clearly err in finding that the control that DOC may exert over Wexford employees with respect to prison security and safety does not rise to the level of 'control' for purposes of determining employer status under the Illinois Labor Relations Act.
After reviewing the evidence adduced at the hearing, we cannot say the Board clearly erred in determining that the stop-order situation was merely authority which each facility reserves purely for security purposes and not for employment purposes. The record establishes, according to the testimony of Page that stop orders apply to everyone entering the facility, including visitors, employees, volunteers, chaplains, vendors or contract employees. In the only two specific instances cited by AFSCME in its brief and corroborated by the record, one involved the revocation of an employee's security clearance on two occasions because she did not meet the requisite licensing requirements of the state for a psychologist. Although the DOC was persuaded to waive the requirement for this employee after the first stop order, it chose to discontinue the waiver a second time due to an incident related to her performance. It was then that Wexford discharged the employee, not the DOC, after notice and a hearing, in accordance with the grievance procedures outlined in Wexford's collective-bargaining agreement with AFSCME. The second instance cited by AFSCME involved an employee who failed a required drug test. Again, after notice and a hearing, Wexford made an offer to the employee to allow her to resign. The offer was rejected, so she was discharged by Wexford, not the DOC.
After carefully reviewing all of the evidence adduced, we cannot say that the Board clearly erred in ruling that the Wexford employees were not jointly employed by the DOC. With respect to hiring and firing, promotions, and demotions, setting wages, work hours, discipline, and actual day-to-day supervision and direction of employees on the job, the evidence supports the Board's finding that the DOC did not share or codetermine control over these matters so as to be considered a joint employer. Moreover, we agree with the sentiment expressed by the Board at the conclusion of its written decision: "The Board's lack of jurisdiction over [the Wexford] employees does not completely remove them from the purview of collective bargaining. Rather, it simply removes them from the jurisdiction of the [Illinois State Labor Relations] Act.
However, these employees are currently represented by AFSCME and are covered by the [National Labor Relations Act]. They are thus not in the collective bargaining "no-man's land" in which many subcontracted employees of a public sector entity find themselves. On the contrary, the petitioned for employees possess the rights guaranteed by the National Labor Relations Act and may enforce those rights at the National Labor Relations Board.
Thus, AFSCME may seek redress for any disruption or potential unfair labor practice in its bargaining relationship with Wexford from the National Labor Relations Board. That is, if Wexford has relied on its connection with the State to justify an alleged refusal to bargain over certain terms and conditions of employment, or if AFSCME has been unable to process grievances under the collective bargaining agreement's grievance procedure because the State has denied its stewards access to the employees workplaces, AFSCME can pursue resolution of those matters with the National Labor Relations Board pursuant to the National Labor Relations Act's unfair labor practice provisions."
It is clear from the record that the DOC has little meaningful control over the conditions and terms of the Wexford employees' employment. The Board did not err in reaching this conclusion, and its decision on this matter should not be disturbed. In light of our resolution of the joint employer status question, the Board's dismissal of the related unfair labor practice charge was correct.
CONCLUSION
The Board's determination that the DOC is not a joint employer of the Wexford bargaining unit employees was not clearly erroneous. For the foregoing reasons, the judgment of the appellate court is reversed and the decision of the Board is confirmed.
This court decided this case on the record of this case. Defining employer for this case was determined from the facts of this case. AFSCME’s bargaining unit at Sheridan has no contract with Gateway and its employees. IDOC/State of Illinois took full and complete control of Gateway’s “Non-Participating” employees when they locked them out because they did not participate in the strike. IDOC/State of Illinois took and assumed meaningful control over the conditions and terms of Gateway’s “Non-Participating” employees’ employment. [Emphasis added]
cc: http://clickforjusticeandequality2.blogspot.com/
Ms. Hilda Whittington, Supervisor
Thursday, May 01, 2008
Moss v. Illinois Department of Employment Security - College Students: Is your student status your principal occupation?
First Division
May 31, 2005
No. 1-04-1826
TAMARA MOSS,
Plaintiff-Appellant,
v.
THE DEPARTMENT OF EMPLOYMENT SECURITY; DIRECTOR OF THE DEPARTMENT OF EMPLOYMENT SECURITY; BOARD OF REVIEW; TITAN SECURITY SERVICE; and LYLE HEADLEY, HUMAN RESOURCES DIRECTOR,
Defendants-Appellees.
Appeal from
the Circuit Court
of Cook County
03 L 51544
Honorable
Sheldon Gardner
Judge Presiding
JUSTICE McBRIDE delivered the opinion of the court:
In May 2003, plaintiff, Tamara Moss, applied for unemployment insurance benefits from defendant Illinois Department of Employment Security (Department), pursuant to the Unemployment Insurance Act (Act) (820 ILCS 405/100 et seq. (West 2002)). The Department found that plaintiff’s “principal occupation” was that of a student, and therefore, plaintiff was ineligible for unemployment insurance benefits under section 500(C)(4) of the Act. 820 ILCS 405/500(C)(4) (West 2002). On administrative review, the circuit court affirmed the Department’s decision to deny plaintiff’s claim.
Plaintiff appeals, arguing that (1) a claimant’s overall availability to work should be considered before being denied benefits on the ground that her “principal occupation” is that of a student, and (2) part-time workers are eligible for benefits under section 500(C) of the Act.
From September 2001 to March 2003, plaintiff worked full-time as a security officer with defendant Titan Security Services (Titan). Between March and May 2003, plaintiff received sporadic assignments on an “on call, as needed” basis. On May 4, 2003, plaintiff applied for unemployment benefits.
In May 2003, a claims adjudicator with the Department interviewed plaintiff. Plaintiff stated that she was attending classes to become a medical assistant at Olympia College from 7 a.m. until noon Wednesday to Saturday. Her program began April 30, 2003, and would end on December 17, 2003. Plaintiff obtained student loans to pay for the program. Plaintiff stated that she would not be seeking full-time employment until the completion of her program. Plaintiff’s claim for unemployment benefits was denied on May 29, 2003, because the adjudicator found that plaintiff’s “principal occupation” was that of a student and she failed to meet the eligibility requirements under the Act.
Plaintiff appealed this decision. In July 2003, plaintiff testified at a telephone hearing before a referee. Plaintiff stated that her last employer was Titan. While working for Titan, plaintiff began working “different sites” and was no longer working 40 hours a week. Plaintiff was told that she could file for unemployment because she was not working a full-time. Plaintiff received a letter in the mail terminating her employment a couple weeks after she filed for unemployment. Plaintiff confirmed that as of May 4, 2003, she was still employed with Titan when she filed for unemployment, but did not work any hours that week.
Plaintiff said that she was currently taking classes. She chose the morning classes so she would be available for an afternoon or evening shift with Titan. Plaintiff stated that she is “looking for whatever [work] [she] can get.” She indicated that she was willing to work full-time if offered as well as part-time if necessary.
Plaintiff asked the referee why she was ineligible for unemployment benefits, and the referee answered that, “It’s because you are a student. When someone’s principal occupation is student, that is, they look for work around the hours they go to school, they’re not eligible for unemployment.” Plaintiff responded that she only goes to school for five hours and she still has time to work. The referee stated that, “Most jobs are Monday to Friday, X number of hours or what have you. So when you go to school, you try to work your hours around the school, and that makes your principle [sic] occupation school. That’s why you have not received benefits.” The referee continued and asked plaintiff, “If somebody offered you a full-time job, would you drop school?” Plaintiff answered that she would not be able to leave school because she would still need to pay back the student loan regardless of if she finishes the program or not.
The referee issued her decision in July 2003 and affirmed the decision of the local office finding plaintiff ineligible because her principal occupation is that of a student. In her conclusion, the referee held: “The claimant’s principal occupation is that of a student. Although she has worked and continues to look for part-time work or work that will fit around her schedule, the realities of her present position are school is primary and work is secondary. That conclusion is drawn since she will not leave school to take a job. No matter how harsh the latter may seem, it dictates that her primary interest is that of a student. The claimant is not being penalized for going to school. The unemployment statute was established for workers who found themselves unemployed through no fault of their own and who put no restrictions on securing a new job. Consequently, the claimant is not eligible to receive unemployment benefits under Section 500C4 of the Act.”
In July 2003, plaintiff appealed the referee’s decision to the Board of Review (Board). In her letter of appeal, plaintiff characterized herself as a “part-time student” and argued that “business is not only conducted around the regular 9-5 hours.” She noted that a person very seldom gets a 9 a.m. to 5 p.m. shift in the security field. She said that while she will not leave school, she was willing to change her course schedule to fit her work schedule. Plaintiff wrote another letter to the Board in August 2003 because she had not received a decision.
In November 2003, the Board affirmed the referee’s decision. The Board determined that further evidence was unnecessary and the referee’s decision was supported by the record and the law. The Board specifically highlighted plaintiff’s statement that she would not “drop” school if offered a full-time job. The Board found that plaintiff “has voluntarily withdrawn herself from the active labor force. In addition she places such unreasonable restorations on her search for work as to render obtaining new employment which meets all her conditions, realistically doubtful.”
In December 2003, plaintiff sought administrative review in the circuit court. In March 2004, plaintiff filed a memorandum of law in support of her complaint. In May 2004, the court entered an order affirming the decision of the Board.
This appeal followed.
The primary issue before this court is whether plaintiff’s principal occupation is that of a student pursuant to section 500(C)(4) of the Act. Plaintiff argues that the Department has created a per se rule to exclude a claimant from unemployment benefits if that claimant refuses to quit school to take a job. Plaintiff asserts that this issue should be reviewed de novo because it is question of statutory construction. Defendants disagree and argue the standard of review is clearly erroneous because this issue presents a mixed question of fact and law since the determination of whether plaintiff’s principal occupation is that of a student involves a factual as well as legal determination.
We agree with defendants. A mixed question of law and fact is one involving an examination of the legal effect of a given set of facts. AFM Messenger Service, Inc. v. Department of Employment Security, 198 Ill. 2d 380, 391 (2001). Stated another way, a mixed question is one in which the historical facts are admitted or established, the rule of law is undisputed, and the issue is whether the facts satisfy the statutory standard, or whether the rule of law as applied to the established facts is or is not violated. AFM Messenger, 198 Ill. 2d at 391. Here, the question of whether plaintiff’s principal occupation is that of a student under the Act presents a mixed question of law and fact. A mixed question of law and fact is reviewed under the clearly erroneous standard. Knorst v. State Universities Civil Service System, 325 Ill. App. 3d 858, 861 (2001).
The clearly erroneous standard of review lies between the manifest weight of the evidence standard and the de novo standard, and as such, it grants some deference to the agency’s decision. AFM Messenger, 198 Ill. 2d at 392. “When the decision of an administrative agency presents a mixed question of law and fact, the agency decision will be deemed ‘clearly erroneous’ only where the reviewing court, on the entire record, is ‘left with the definite and firm conviction that a mistake has been committed.’ ” AFM Messenger, 198 Ill. 2d at 395, quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 92 L. Ed. 746, 766, 68 S. Ct. 525, 542 (1948). Nonetheless, that the clearly erroneous standard is largely deferential does not mean, however, that a reviewing court must blindly defer to the agency’s decision. AFM Messenger, 198 Ill. 2d at 395.
The primary purpose of the Act is to provide compensation benefits to unemployed individuals to alleviate their economic distress caused by involuntary unemployment, not to benefit those who are unemployed because of their own misdeeds. Miller v. Department of Employment Security, 245 Ill. App. 3d 520, 522 (1993). Receiving unemployment insurance benefits in this state is a conditional right, and the claimant bears the burden of proving his eligibility for those benefits. Miller, 245 Ill. App. 3d at 522.
Section 500 of the Act outlines the eligibility for benefits. An unemployed individual is eligible for benefits if he: (1) has registered for work and has continued to report to an unemployment office; (2) has made a claim for benefits with respect to each week; and (3) is able and available for work, and was actively seeking work for the period in question. 820 ILCS 405/500 (West 2002). “Available for work” means that the claimant stands ready and willing to accept suitable work. Miller, 245 Ill. App. 3d at 522. However, section 500(C)(4) provides that “[a]n individual shall be deemed unavailable for work with respect to any week which occurs in a period when his principal occupation is that of a student in attendance at, or on vacation from, a public or private school.” 820 ILCS 405/500(C)(4) (West 2002).
Here, the Board interpreted plaintiff’s statement that she would not quit school if offered a full-time job to mean that plaintiff was not looking for full-time work. In its decision, the Board relied on this statement to find that plaintiff’s principal occupation was that of a student, and therefore, plaintiff was ineligible for unemployment benefits. We disagree with the Board’s characterization of plaintiff’s response to the question posed by the referee. When asked, “If somebody offered you a full-time job, would you drop school?”, plaintiff said she would not leave school, but she did not say that she would turn down the job. Plaintiff did not state that she was not available and not willing to work a full-time job. In fact, plaintiff told the referee that she was “looking for whatever I can get. If they can get me full-time, I’ll work full-time. If they can get me part-time, I’ll work part time because I need money.”
Moreover, we conclude that asking a claimant whether she would leave school for a full-time job is not the correct focus under section 500(C)(4). The plain language of the statute does not render all students ineligible, just those whose principal occupation is that of a student. Whether a claimant is willing to end her education for a full-time job is not relevant to the issue of eligibility for unemployment benefits because a claimant can be available for work and remain a student. The statute does not set forth any such requirement in order to avoid being classified with a principal occupation of a student. Nor do any Illinois decisions suggest such a requirement.
Instead, the correct focus in determining if a claimant’s principal occupation is that of a student is whether the claimant has placed restrictions on her job search because of her status as a student. The analysis should focus on whether work is subordinate to and geared around an educational program as well as the claimant’s availability to work a full-time job with her school commitments. See Miller, 245 Ill. App. 3d at 523; James v. Department of Labor, 119 Ill. App. 3d 524, 528 (1983).
In Miller and James, the reviewing courts found that the plaintiffs had made work subservient to school and were only seeking part-time work that did not interfere with their courses. Miller, 245 Ill. App. 3d at 523-24; James, 119 Ill. App. 3d at 528. In Miller, the plaintiff took classes at varying times Monday through Friday at Lincoln Land Community College and wanted to work an afternoon or evening shift. Miller, 245 Ill. App. 3d at 522-23. The plaintiff indicated on a form that he did not want to work a ‘ graveyard shift, ’ but later showed a possible willingness to work the late hours if “the pay was right.” Miller, 245 Ill. App. 3d at 523. In his forms, the plaintiff also stated that he could not work Mondays, Tuesdays, Wednesdays or Thursdays because of school. Miller, 245 Ill. App. 3d at 523. Based on this evidence, the Miller court concluded that “the Department could appropriately find plaintiff’s employment was geared around and subservient to his classes.” Miller, 245 Ill. App. 3d at 523.
In James, the plaintiff was enrolled in a doctoral program which required three hours of classes on two evenings a week, clinical training from 9 a.m. to 4 p.m. on Mondays and Wednesdays, six to eight hours a week of studying, and extended studying on Saturday and Sunday at the end of semesters. James, 119 Ill. App. 3d at 527. The plaintiff had worked approximately 16 to 20 hours each week at her former employer. James, 119 Ill. App. 3d at 526. The Second District held that the evidence demonstrated that the plaintiff was employed on a part-time basis while enrolled in “an almost full-time educational program.” James, 119 Ill. App. 3d at 528. The James court went on to find that the time requirements of the plaintiff’s studies were greater than those of her employment. James, 119 Ill. App. 3d at 528.
In the present case, the Board and the referee did not properly consider the circumstances of plaintiff’s case. Plaintiff had worked for Titan for a year and a half, but when her hours were reduced, she decided to enroll in a medical assistant program to change careers. Plaintiff was not a student who worked, but was a worker who opted to become a student to find a better job. Plaintiff stated that she chose the morning classes because she worked in the afternoons for Titan. Plaintiff wanted to remain available for work. Plaintiff scheduled school around work, not the other way around, and she indicated that she would be willing to change her school schedule to accommodate a full-time job. Additionally, we note that unlike in Miller and James, the record does not indicate whether plaintiff was considered a full-time student at Olympia College. The referee also did not inquire about time spent studying outside of the classroom. We will not speculate whether plaintiff’s medical assistant program required study time apart from her time in class.
Also, at the hearing, the referee told plaintiff that “[m]ost jobs are Monday to Friday, X number of hours,” and did not discuss plaintiff’s prior employment and the hours she worked. In the record, plaintiff stated that 9 a.m. to 5 p.m. work is not often available in the security field. We disagree with the referee’s focus on a Monday through Friday, 9 to 5 workweek. Plaintiff’s work history at Titan did not support this conclusion. The reality of today’s world does not support a belief that full-time jobs are only available Monday to Friday, 9 to 5. In some career fields, such as plaintiff’s security officer position, jobs are primarily available for the second shift from 3 to 11 or the third shift from 11 to 7. A claimant who is going to school can be available for a full-time job at the same time, but the circumstances of each case must be considered by the Department before finding that someone’s principal occupation is that of a student.
Our decision, however, is not meant to open the door for all students to seek unemployment benefits when they find themselves out of work. “It should not be assumed that this decision will set a precedent for large numbers of college students to finance their college education by way of unemployment compensation benefits. The factual situations in this case *** are clear, and they permit the courts to draw a line between claimants who are basically students and claimants who are basically committed to the work‑force but in addition are attempting to better themselves by continuing their education.” Patronas v. Unemployment Compensation Board of Review, 291 A.2d 118, 120 (Pa. Cmmw. 1972).
Based on the record in this case, we find that the Board’s decision was clearly erroneous because it failed to consider whether plaintiff’s work was subordinate to school so as to render her unavailable to work full-time. We do not need to reach plaintiff’s remaining issue regarding the eligibility of part-time workers under the statute. We remand for a full hearing on plaintiff’s application for further proceedings consistent with this decision.
Reversed and remanded.
CAHILL, P.J. and GORDON, J., concur.
May 31, 2005
No. 1-04-1826
TAMARA MOSS,
Plaintiff-Appellant,
v.
THE DEPARTMENT OF EMPLOYMENT SECURITY; DIRECTOR OF THE DEPARTMENT OF EMPLOYMENT SECURITY; BOARD OF REVIEW; TITAN SECURITY SERVICE; and LYLE HEADLEY, HUMAN RESOURCES DIRECTOR,
Defendants-Appellees.
Appeal from
the Circuit Court
of Cook County
03 L 51544
Honorable
Sheldon Gardner
Judge Presiding
JUSTICE McBRIDE delivered the opinion of the court:
In May 2003, plaintiff, Tamara Moss, applied for unemployment insurance benefits from defendant Illinois Department of Employment Security (Department), pursuant to the Unemployment Insurance Act (Act) (820 ILCS 405/100 et seq. (West 2002)). The Department found that plaintiff’s “principal occupation” was that of a student, and therefore, plaintiff was ineligible for unemployment insurance benefits under section 500(C)(4) of the Act. 820 ILCS 405/500(C)(4) (West 2002). On administrative review, the circuit court affirmed the Department’s decision to deny plaintiff’s claim.
Plaintiff appeals, arguing that (1) a claimant’s overall availability to work should be considered before being denied benefits on the ground that her “principal occupation” is that of a student, and (2) part-time workers are eligible for benefits under section 500(C) of the Act.
From September 2001 to March 2003, plaintiff worked full-time as a security officer with defendant Titan Security Services (Titan). Between March and May 2003, plaintiff received sporadic assignments on an “on call, as needed” basis. On May 4, 2003, plaintiff applied for unemployment benefits.
In May 2003, a claims adjudicator with the Department interviewed plaintiff. Plaintiff stated that she was attending classes to become a medical assistant at Olympia College from 7 a.m. until noon Wednesday to Saturday. Her program began April 30, 2003, and would end on December 17, 2003. Plaintiff obtained student loans to pay for the program. Plaintiff stated that she would not be seeking full-time employment until the completion of her program. Plaintiff’s claim for unemployment benefits was denied on May 29, 2003, because the adjudicator found that plaintiff’s “principal occupation” was that of a student and she failed to meet the eligibility requirements under the Act.
Plaintiff appealed this decision. In July 2003, plaintiff testified at a telephone hearing before a referee. Plaintiff stated that her last employer was Titan. While working for Titan, plaintiff began working “different sites” and was no longer working 40 hours a week. Plaintiff was told that she could file for unemployment because she was not working a full-time. Plaintiff received a letter in the mail terminating her employment a couple weeks after she filed for unemployment. Plaintiff confirmed that as of May 4, 2003, she was still employed with Titan when she filed for unemployment, but did not work any hours that week.
Plaintiff said that she was currently taking classes. She chose the morning classes so she would be available for an afternoon or evening shift with Titan. Plaintiff stated that she is “looking for whatever [work] [she] can get.” She indicated that she was willing to work full-time if offered as well as part-time if necessary.
Plaintiff asked the referee why she was ineligible for unemployment benefits, and the referee answered that, “It’s because you are a student. When someone’s principal occupation is student, that is, they look for work around the hours they go to school, they’re not eligible for unemployment.” Plaintiff responded that she only goes to school for five hours and she still has time to work. The referee stated that, “Most jobs are Monday to Friday, X number of hours or what have you. So when you go to school, you try to work your hours around the school, and that makes your principle [sic] occupation school. That’s why you have not received benefits.” The referee continued and asked plaintiff, “If somebody offered you a full-time job, would you drop school?” Plaintiff answered that she would not be able to leave school because she would still need to pay back the student loan regardless of if she finishes the program or not.
The referee issued her decision in July 2003 and affirmed the decision of the local office finding plaintiff ineligible because her principal occupation is that of a student. In her conclusion, the referee held: “The claimant’s principal occupation is that of a student. Although she has worked and continues to look for part-time work or work that will fit around her schedule, the realities of her present position are school is primary and work is secondary. That conclusion is drawn since she will not leave school to take a job. No matter how harsh the latter may seem, it dictates that her primary interest is that of a student. The claimant is not being penalized for going to school. The unemployment statute was established for workers who found themselves unemployed through no fault of their own and who put no restrictions on securing a new job. Consequently, the claimant is not eligible to receive unemployment benefits under Section 500C4 of the Act.”
In July 2003, plaintiff appealed the referee’s decision to the Board of Review (Board). In her letter of appeal, plaintiff characterized herself as a “part-time student” and argued that “business is not only conducted around the regular 9-5 hours.” She noted that a person very seldom gets a 9 a.m. to 5 p.m. shift in the security field. She said that while she will not leave school, she was willing to change her course schedule to fit her work schedule. Plaintiff wrote another letter to the Board in August 2003 because she had not received a decision.
In November 2003, the Board affirmed the referee’s decision. The Board determined that further evidence was unnecessary and the referee’s decision was supported by the record and the law. The Board specifically highlighted plaintiff’s statement that she would not “drop” school if offered a full-time job. The Board found that plaintiff “has voluntarily withdrawn herself from the active labor force. In addition she places such unreasonable restorations on her search for work as to render obtaining new employment which meets all her conditions, realistically doubtful.”
In December 2003, plaintiff sought administrative review in the circuit court. In March 2004, plaintiff filed a memorandum of law in support of her complaint. In May 2004, the court entered an order affirming the decision of the Board.
This appeal followed.
The primary issue before this court is whether plaintiff’s principal occupation is that of a student pursuant to section 500(C)(4) of the Act. Plaintiff argues that the Department has created a per se rule to exclude a claimant from unemployment benefits if that claimant refuses to quit school to take a job. Plaintiff asserts that this issue should be reviewed de novo because it is question of statutory construction. Defendants disagree and argue the standard of review is clearly erroneous because this issue presents a mixed question of fact and law since the determination of whether plaintiff’s principal occupation is that of a student involves a factual as well as legal determination.
We agree with defendants. A mixed question of law and fact is one involving an examination of the legal effect of a given set of facts. AFM Messenger Service, Inc. v. Department of Employment Security, 198 Ill. 2d 380, 391 (2001). Stated another way, a mixed question is one in which the historical facts are admitted or established, the rule of law is undisputed, and the issue is whether the facts satisfy the statutory standard, or whether the rule of law as applied to the established facts is or is not violated. AFM Messenger, 198 Ill. 2d at 391. Here, the question of whether plaintiff’s principal occupation is that of a student under the Act presents a mixed question of law and fact. A mixed question of law and fact is reviewed under the clearly erroneous standard. Knorst v. State Universities Civil Service System, 325 Ill. App. 3d 858, 861 (2001).
The clearly erroneous standard of review lies between the manifest weight of the evidence standard and the de novo standard, and as such, it grants some deference to the agency’s decision. AFM Messenger, 198 Ill. 2d at 392. “When the decision of an administrative agency presents a mixed question of law and fact, the agency decision will be deemed ‘clearly erroneous’ only where the reviewing court, on the entire record, is ‘left with the definite and firm conviction that a mistake has been committed.’ ” AFM Messenger, 198 Ill. 2d at 395, quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 92 L. Ed. 746, 766, 68 S. Ct. 525, 542 (1948). Nonetheless, that the clearly erroneous standard is largely deferential does not mean, however, that a reviewing court must blindly defer to the agency’s decision. AFM Messenger, 198 Ill. 2d at 395.
The primary purpose of the Act is to provide compensation benefits to unemployed individuals to alleviate their economic distress caused by involuntary unemployment, not to benefit those who are unemployed because of their own misdeeds. Miller v. Department of Employment Security, 245 Ill. App. 3d 520, 522 (1993). Receiving unemployment insurance benefits in this state is a conditional right, and the claimant bears the burden of proving his eligibility for those benefits. Miller, 245 Ill. App. 3d at 522.
Section 500 of the Act outlines the eligibility for benefits. An unemployed individual is eligible for benefits if he: (1) has registered for work and has continued to report to an unemployment office; (2) has made a claim for benefits with respect to each week; and (3) is able and available for work, and was actively seeking work for the period in question. 820 ILCS 405/500 (West 2002). “Available for work” means that the claimant stands ready and willing to accept suitable work. Miller, 245 Ill. App. 3d at 522. However, section 500(C)(4) provides that “[a]n individual shall be deemed unavailable for work with respect to any week which occurs in a period when his principal occupation is that of a student in attendance at, or on vacation from, a public or private school.” 820 ILCS 405/500(C)(4) (West 2002).
Here, the Board interpreted plaintiff’s statement that she would not quit school if offered a full-time job to mean that plaintiff was not looking for full-time work. In its decision, the Board relied on this statement to find that plaintiff’s principal occupation was that of a student, and therefore, plaintiff was ineligible for unemployment benefits. We disagree with the Board’s characterization of plaintiff’s response to the question posed by the referee. When asked, “If somebody offered you a full-time job, would you drop school?”, plaintiff said she would not leave school, but she did not say that she would turn down the job. Plaintiff did not state that she was not available and not willing to work a full-time job. In fact, plaintiff told the referee that she was “looking for whatever I can get. If they can get me full-time, I’ll work full-time. If they can get me part-time, I’ll work part time because I need money.”
Moreover, we conclude that asking a claimant whether she would leave school for a full-time job is not the correct focus under section 500(C)(4). The plain language of the statute does not render all students ineligible, just those whose principal occupation is that of a student. Whether a claimant is willing to end her education for a full-time job is not relevant to the issue of eligibility for unemployment benefits because a claimant can be available for work and remain a student. The statute does not set forth any such requirement in order to avoid being classified with a principal occupation of a student. Nor do any Illinois decisions suggest such a requirement.
Instead, the correct focus in determining if a claimant’s principal occupation is that of a student is whether the claimant has placed restrictions on her job search because of her status as a student. The analysis should focus on whether work is subordinate to and geared around an educational program as well as the claimant’s availability to work a full-time job with her school commitments. See Miller, 245 Ill. App. 3d at 523; James v. Department of Labor, 119 Ill. App. 3d 524, 528 (1983).
In Miller and James, the reviewing courts found that the plaintiffs had made work subservient to school and were only seeking part-time work that did not interfere with their courses. Miller, 245 Ill. App. 3d at 523-24; James, 119 Ill. App. 3d at 528. In Miller, the plaintiff took classes at varying times Monday through Friday at Lincoln Land Community College and wanted to work an afternoon or evening shift. Miller, 245 Ill. App. 3d at 522-23. The plaintiff indicated on a form that he did not want to work a ‘ graveyard shift, ’ but later showed a possible willingness to work the late hours if “the pay was right.” Miller, 245 Ill. App. 3d at 523. In his forms, the plaintiff also stated that he could not work Mondays, Tuesdays, Wednesdays or Thursdays because of school. Miller, 245 Ill. App. 3d at 523. Based on this evidence, the Miller court concluded that “the Department could appropriately find plaintiff’s employment was geared around and subservient to his classes.” Miller, 245 Ill. App. 3d at 523.
In James, the plaintiff was enrolled in a doctoral program which required three hours of classes on two evenings a week, clinical training from 9 a.m. to 4 p.m. on Mondays and Wednesdays, six to eight hours a week of studying, and extended studying on Saturday and Sunday at the end of semesters. James, 119 Ill. App. 3d at 527. The plaintiff had worked approximately 16 to 20 hours each week at her former employer. James, 119 Ill. App. 3d at 526. The Second District held that the evidence demonstrated that the plaintiff was employed on a part-time basis while enrolled in “an almost full-time educational program.” James, 119 Ill. App. 3d at 528. The James court went on to find that the time requirements of the plaintiff’s studies were greater than those of her employment. James, 119 Ill. App. 3d at 528.
In the present case, the Board and the referee did not properly consider the circumstances of plaintiff’s case. Plaintiff had worked for Titan for a year and a half, but when her hours were reduced, she decided to enroll in a medical assistant program to change careers. Plaintiff was not a student who worked, but was a worker who opted to become a student to find a better job. Plaintiff stated that she chose the morning classes because she worked in the afternoons for Titan. Plaintiff wanted to remain available for work. Plaintiff scheduled school around work, not the other way around, and she indicated that she would be willing to change her school schedule to accommodate a full-time job. Additionally, we note that unlike in Miller and James, the record does not indicate whether plaintiff was considered a full-time student at Olympia College. The referee also did not inquire about time spent studying outside of the classroom. We will not speculate whether plaintiff’s medical assistant program required study time apart from her time in class.
Also, at the hearing, the referee told plaintiff that “[m]ost jobs are Monday to Friday, X number of hours,” and did not discuss plaintiff’s prior employment and the hours she worked. In the record, plaintiff stated that 9 a.m. to 5 p.m. work is not often available in the security field. We disagree with the referee’s focus on a Monday through Friday, 9 to 5 workweek. Plaintiff’s work history at Titan did not support this conclusion. The reality of today’s world does not support a belief that full-time jobs are only available Monday to Friday, 9 to 5. In some career fields, such as plaintiff’s security officer position, jobs are primarily available for the second shift from 3 to 11 or the third shift from 11 to 7. A claimant who is going to school can be available for a full-time job at the same time, but the circumstances of each case must be considered by the Department before finding that someone’s principal occupation is that of a student.
Our decision, however, is not meant to open the door for all students to seek unemployment benefits when they find themselves out of work. “It should not be assumed that this decision will set a precedent for large numbers of college students to finance their college education by way of unemployment compensation benefits. The factual situations in this case *** are clear, and they permit the courts to draw a line between claimants who are basically students and claimants who are basically committed to the work‑force but in addition are attempting to better themselves by continuing their education.” Patronas v. Unemployment Compensation Board of Review, 291 A.2d 118, 120 (Pa. Cmmw. 1972).
Based on the record in this case, we find that the Board’s decision was clearly erroneous because it failed to consider whether plaintiff’s work was subordinate to school so as to render her unavailable to work full-time. We do not need to reach plaintiff’s remaining issue regarding the eligibility of part-time workers under the statute. We remand for a full hearing on plaintiff’s application for further proceedings consistent with this decision.
Reversed and remanded.
CAHILL, P.J. and GORDON, J., concur.
Wednesday, April 30, 2008
Thursday, December 14, 2006
United States Marine Corps/Dept. of the Navy: Is this style still being used to motivate their personnel?
December 15, 2006
Department of the Navy
Board for Correction of Naval Records
2 Navy Annex, Room 2432
Washington, DC 20370-5100
Re: Docket Number 6626-06
Dear Sir or Madam:
On or about July 14, 2006 I submitted DD Form 293 requesting a discharge change. I received notice from the NDRB my paperwork was received on July 25, 2006. I have yet to receive any follow-up from the Department of the Navy to my request. Therefore, this is a follow-up to my request.
As part of my request for a discharge change, I submitted the following and now want to reiterate my beginning paragraph toward this request to the Department of the Navy: On or about March 4, 1968 I entered the United States Marine Corps (USMC). I am African-American. I volunteered to serve in the USMC for 4 years. Dr. Martin Luther King Jr. was assassinated on April 4, 1968. My white drill instructor, who was a Sergeant, told all the African American military personnel who were in my unit to get on the street. All the African American’s came out of their barracks.
The white drill instructor told us the “smoking lamp” is lit. This means we could smoke cigarettes if we were smokers. The white drill instructor stated, “Dr. Martin Luther King was killed today. We finally got that nigger. Now put those damn cigarettes out and get your asses back into those barracks.” This statement was outrageous and changed the course of my life and many others who thought they wanted to serve their country and be part of the United States Marine Corps.
With this said, I believe my request should be examined and scrutinized as soon as possible. This should not be a hard decision. My USMC experience impacted the rest of my life. My experience in the Marine Corps demonstrated how this country looked at African Americans in 60s, 70s, and the present. Everything that happened in my military life after this statement was part and partial of this statement made by one of your “finest.” I am requesting this Board act expeditiously to my appeal.
Respectfully submitted,
Fred L Nance Jr., ABD, MA, CADC, NCRS
cc: http://click.townhall.com/
http://clickforjusticeandequality.blogspot.com/
Department of the Navy
Board for Correction of Naval Records
2 Navy Annex, Room 2432
Washington, DC 20370-5100
Re: Docket Number 6626-06
Dear Sir or Madam:
On or about July 14, 2006 I submitted DD Form 293 requesting a discharge change. I received notice from the NDRB my paperwork was received on July 25, 2006. I have yet to receive any follow-up from the Department of the Navy to my request. Therefore, this is a follow-up to my request.
As part of my request for a discharge change, I submitted the following and now want to reiterate my beginning paragraph toward this request to the Department of the Navy: On or about March 4, 1968 I entered the United States Marine Corps (USMC). I am African-American. I volunteered to serve in the USMC for 4 years. Dr. Martin Luther King Jr. was assassinated on April 4, 1968. My white drill instructor, who was a Sergeant, told all the African American military personnel who were in my unit to get on the street. All the African American’s came out of their barracks.
The white drill instructor told us the “smoking lamp” is lit. This means we could smoke cigarettes if we were smokers. The white drill instructor stated, “Dr. Martin Luther King was killed today. We finally got that nigger. Now put those damn cigarettes out and get your asses back into those barracks.” This statement was outrageous and changed the course of my life and many others who thought they wanted to serve their country and be part of the United States Marine Corps.
With this said, I believe my request should be examined and scrutinized as soon as possible. This should not be a hard decision. My USMC experience impacted the rest of my life. My experience in the Marine Corps demonstrated how this country looked at African Americans in 60s, 70s, and the present. Everything that happened in my military life after this statement was part and partial of this statement made by one of your “finest.” I am requesting this Board act expeditiously to my appeal.
Respectfully submitted,
Fred L Nance Jr., ABD, MA, CADC, NCRS
cc: http://click.townhall.com/
http://clickforjusticeandequality.blogspot.com/
Monday, December 11, 2006
Chicago Lawyers: Are they corrupt?
Update: December 12, 2006
I spoke to Scott Thomas of WYLL Radio 1160 AM this afternoon after work. He reported Mr. Jackson was a delusional and angry man who possibly needed mental health services. I informed Mr. Thomas I was a mental health professional. I asked Mr. Thomas how he assessed Mr. Jackson as delusional. Mr. Thomas stated the Chicago Police investigated the case and found that there was no claim filed in Mr. Jackson's name for a patent. I informed Mr. Thomas this does make Mr. Jackson delusional. I informed Mr. Thomas this information supports Mr. Jackson's statement that Mr. McKenna did not do the job Mr. Jackson hired him to do.
After my statement, Mr. Thomas informed me he had to go. Mr. Thomas claims his radio talk show is dialogue, not monologue. I guess if you agree with him, it will be dialogue. If you disagree with him, as I did, it becomes monologue. I informed Mr. Thomas I did not support Mr. Jackson's actions. I informed Mr. Thomas I supported Mr. Jackson's claim that his lawyer did nothing for him after he paid him to perform a duty.
Man kills 3 in Chicago
This is a brief account of the event as reported by Chicago Tribune reporters Andrew L. Wang and Matt O'Connor. Tribune reporters Tonya Maxwell and Jeff Long also contributed to this story, which was published on December 11, 2006.
Two days after a West Side truck driver entered the offices of a downtown law firm and killed three people, the man's family and acquaintances called him a quietly religious man who for years sought revenge against a lawyer he believed pilfered his idea for a portable toilet. About 3 p.m. on December 8, 2006, Joe Jackson went to Wood, Phillips, Katz, Clark & Mortimer law firm on the 38th floor of 500 W. Madison St. with a snub-nose revolver and killed Michael McKenna, 58, who leased office space there. He then fatally shot another attorney, Allen J. Hoover, 65, and Paul Goodson, 78, a part-time employee and retired teacher. Ruth Zak Leib, 57, McKenna's paralegal, was shot in the foot and survived. Police shot Jackson in the head and chest, killing him and ending a 45-minute standoff.
This man decided to take the lives of three people because of his complaint about poor service from a lawyer in Chicago. I wonder if he tried going to the Attorney Registration and Disciplinary Committee (ARDC) or the Illinois Bar Association. If he did he would not get any relief from these entities. They all have breakfast, lunch and dinner together. These entities will not return any relief for those who are their peers. I have gone to them several times about my issues.
I have a pending clemency appeal with Illinois Governor Rod R. Blagojevich for a criminal conviction I suffered from Judge Paul Foxgrover. I had 2 lawyers in this case. One lawyer, Daniel Gallagher, was an alcoholic, who Judge Foxgrover had knowledge of his alcoholism. The other lawyer, William Swano, was indicted and suspended because of his involvement with Chicago’s Operation Greylord, an investigation into corruption in the courts. One of Governor Blagojevich’s representatives who interviewed me during my clemency hearing told me I did not show remorse for my criminal actions. For years Associate Judge Paul Foxgrover of the Markham Courthouse was a heavyweight in the 19th Ward Regular Democratic Organization of Cook County Sheriff Michael Sheahan and Assessor Thomas Hynes. He was a “go along” guy who figured that his powerhouse political connections placed him so far above the petty criminals that appeared before him in his courtroom, that nothing, short of an act of God, could touch him. That is, until the July 1991 grand jury was presented with evidence that this good judge scammed an estimated $50,000.00 in court-imposed fines which he deposited in two separate accounts for himself and a niece at the Mount Greenwood Bank. Foxgrover, who was appointed to the bench in 1984, was charged with 107 separated counts of theft, perjury, forgery, official misconduct, and obstruction of justice. Judge Foxgrover was suspended from his post but he continued to draw his $75,000-a-year salary while the case threaded through the Circuit Court. He did not submit his resignation until June 17, 1992. Less than a month later, on July 14, 1992, Foxgrover was sentenced to six years in a state prison and assessed a $25,934 fine after pleading guilty to theft, official misconduct, and forgery. The remaining charges against Foxgrover were dropped by the State’s Attorney’s office.
While I was incarcerated from Judge Foxgrover's decision, I continued to address my issues with the courts. When I was supposed to go to court a property clerk for the Illinois Department of Corrections (IDOC) purposely misdirected my legal papers. The papers were lost. I took the issue to the Federal Courts. The United States District Court for the Southern District of Illinois dismissed my case against the IDOC property clerk. I took the case to the U.S. 7th Circuit Court of Appeals. On June 17, 1998 the Appeals Court made their decision. This Court stated in its conclusions: "Nance has two options, which are not mutually exclusive: to seek damages in state court for the value of the photocopies as ordinary personal property, and to initiate a collateral attack or request for pardon concerning the judgment that rests on his guilty plea. The dismissal of his sec. 1983 complaint is without prejudice to the pursuit of those options, and on that understanding the judgment is affirmed." [see Fred Nance v. J.D. Vieregge, et al.; Argued May 12, 1998--Decided June 17, 1998]
I did not know about this decision on my appeal until I was researching another case in January of 2006. No one contacted me about this decision. I did know it existed. I went to IDOC in August of 1992. I believe I filed this complaint initially in January of 1993. IDOC personnel punished me for 1 year and 11 months, until I was discharged from IDOC on December 20, 1994, because I filed this complaint against their property clerk.
What choices do I have? I choose to write about my issues with crooked lawyers and judges in Illinois, specifically, Chicago. No one knows how many crooked lawyers and judges Chicago really has. What I do know is that the ARDC and the Illinois Bar Association is not going to investigate and find their peers libel for any acts of misconduct.
And so, we have a Joe Jackson. This is a sad state of affairs. The little man has no relief in our society. This is why we have to advocate for the socially disadvantaged and disenfranchised.
I spoke to Scott Thomas of WYLL Radio 1160 AM this afternoon after work. He reported Mr. Jackson was a delusional and angry man who possibly needed mental health services. I informed Mr. Thomas I was a mental health professional. I asked Mr. Thomas how he assessed Mr. Jackson as delusional. Mr. Thomas stated the Chicago Police investigated the case and found that there was no claim filed in Mr. Jackson's name for a patent. I informed Mr. Thomas this does make Mr. Jackson delusional. I informed Mr. Thomas this information supports Mr. Jackson's statement that Mr. McKenna did not do the job Mr. Jackson hired him to do.
After my statement, Mr. Thomas informed me he had to go. Mr. Thomas claims his radio talk show is dialogue, not monologue. I guess if you agree with him, it will be dialogue. If you disagree with him, as I did, it becomes monologue. I informed Mr. Thomas I did not support Mr. Jackson's actions. I informed Mr. Thomas I supported Mr. Jackson's claim that his lawyer did nothing for him after he paid him to perform a duty.
Man kills 3 in Chicago
This is a brief account of the event as reported by Chicago Tribune reporters Andrew L. Wang and Matt O'Connor. Tribune reporters Tonya Maxwell and Jeff Long also contributed to this story, which was published on December 11, 2006.
Two days after a West Side truck driver entered the offices of a downtown law firm and killed three people, the man's family and acquaintances called him a quietly religious man who for years sought revenge against a lawyer he believed pilfered his idea for a portable toilet. About 3 p.m. on December 8, 2006, Joe Jackson went to Wood, Phillips, Katz, Clark & Mortimer law firm on the 38th floor of 500 W. Madison St. with a snub-nose revolver and killed Michael McKenna, 58, who leased office space there. He then fatally shot another attorney, Allen J. Hoover, 65, and Paul Goodson, 78, a part-time employee and retired teacher. Ruth Zak Leib, 57, McKenna's paralegal, was shot in the foot and survived. Police shot Jackson in the head and chest, killing him and ending a 45-minute standoff.
This man decided to take the lives of three people because of his complaint about poor service from a lawyer in Chicago. I wonder if he tried going to the Attorney Registration and Disciplinary Committee (ARDC) or the Illinois Bar Association. If he did he would not get any relief from these entities. They all have breakfast, lunch and dinner together. These entities will not return any relief for those who are their peers. I have gone to them several times about my issues.
I have a pending clemency appeal with Illinois Governor Rod R. Blagojevich for a criminal conviction I suffered from Judge Paul Foxgrover. I had 2 lawyers in this case. One lawyer, Daniel Gallagher, was an alcoholic, who Judge Foxgrover had knowledge of his alcoholism. The other lawyer, William Swano, was indicted and suspended because of his involvement with Chicago’s Operation Greylord, an investigation into corruption in the courts. One of Governor Blagojevich’s representatives who interviewed me during my clemency hearing told me I did not show remorse for my criminal actions. For years Associate Judge Paul Foxgrover of the Markham Courthouse was a heavyweight in the 19th Ward Regular Democratic Organization of Cook County Sheriff Michael Sheahan and Assessor Thomas Hynes. He was a “go along” guy who figured that his powerhouse political connections placed him so far above the petty criminals that appeared before him in his courtroom, that nothing, short of an act of God, could touch him. That is, until the July 1991 grand jury was presented with evidence that this good judge scammed an estimated $50,000.00 in court-imposed fines which he deposited in two separate accounts for himself and a niece at the Mount Greenwood Bank. Foxgrover, who was appointed to the bench in 1984, was charged with 107 separated counts of theft, perjury, forgery, official misconduct, and obstruction of justice. Judge Foxgrover was suspended from his post but he continued to draw his $75,000-a-year salary while the case threaded through the Circuit Court. He did not submit his resignation until June 17, 1992. Less than a month later, on July 14, 1992, Foxgrover was sentenced to six years in a state prison and assessed a $25,934 fine after pleading guilty to theft, official misconduct, and forgery. The remaining charges against Foxgrover were dropped by the State’s Attorney’s office.
While I was incarcerated from Judge Foxgrover's decision, I continued to address my issues with the courts. When I was supposed to go to court a property clerk for the Illinois Department of Corrections (IDOC) purposely misdirected my legal papers. The papers were lost. I took the issue to the Federal Courts. The United States District Court for the Southern District of Illinois dismissed my case against the IDOC property clerk. I took the case to the U.S. 7th Circuit Court of Appeals. On June 17, 1998 the Appeals Court made their decision. This Court stated in its conclusions: "Nance has two options, which are not mutually exclusive: to seek damages in state court for the value of the photocopies as ordinary personal property, and to initiate a collateral attack or request for pardon concerning the judgment that rests on his guilty plea. The dismissal of his sec. 1983 complaint is without prejudice to the pursuit of those options, and on that understanding the judgment is affirmed." [see Fred Nance v. J.D. Vieregge, et al.; Argued May 12, 1998--Decided June 17, 1998]
I did not know about this decision on my appeal until I was researching another case in January of 2006. No one contacted me about this decision. I did know it existed. I went to IDOC in August of 1992. I believe I filed this complaint initially in January of 1993. IDOC personnel punished me for 1 year and 11 months, until I was discharged from IDOC on December 20, 1994, because I filed this complaint against their property clerk.
What choices do I have? I choose to write about my issues with crooked lawyers and judges in Illinois, specifically, Chicago. No one knows how many crooked lawyers and judges Chicago really has. What I do know is that the ARDC and the Illinois Bar Association is not going to investigate and find their peers libel for any acts of misconduct.
And so, we have a Joe Jackson. This is a sad state of affairs. The little man has no relief in our society. This is why we have to advocate for the socially disadvantaged and disenfranchised.
Friday, September 22, 2006
Estate of Romeo Nance Ashford: Appeal Filed
Update: September 22, 2006
The Appellate Court, State of Illinois, First District, Second Division, Case No. 1-05-3854 issued an order on September 22, 2006 reporting "This cause having come before the Court on the Court's own motion, the Court finding that the appellee has failed to file a brief within the time prescribed by Supreme Court Rule 343(a);
It is hereby ordered that this case is TAKEN FOR CONSIDERATION ON THE RECORD AND THE APPELLANT'S BRIEF ONLY.
This an appeal is from the Circuit Court of Cook County, Trial Court No. 00 P 1267, Honorable James G. Riley, Judge Presiding.
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
http://clickforjusticeandequality.blogspot.com/
The Appellate Court, State of Illinois, First District, Second Division, Case No. 1-05-3854 issued an order on September 22, 2006 reporting "This cause having come before the Court on the Court's own motion, the Court finding that the appellee has failed to file a brief within the time prescribed by Supreme Court Rule 343(a);
It is hereby ordered that this case is TAKEN FOR CONSIDERATION ON THE RECORD AND THE APPELLANT'S BRIEF ONLY.
This an appeal is from the Circuit Court of Cook County, Trial Court No. 00 P 1267, Honorable James G. Riley, Judge Presiding.
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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