Pro Se Chicago's Weblog

August 1, 2014

Federal Petiton proving corrupt judges, sheriff, & state’s attorney in Cook County


SIC color_edited-1

PLEASE come to court and show support for Shelton at the next court date on November 14, 2014, 10am, 2600 S California, Chicago IL, courtroom 506.

Write letters to the U.S. Attorney, Sen. Durbin, Sen. Kirk, your senator, Rep. Lipinsky or your representative, and the press. Some addresses are at end of post. Spread the word through social media that Shelton needs public support to continue these blogs and fight unlawful attacks against her in retaliation for them and for helping so many with pro se litigation and defense.

This is a petition for writ of habeas corpus to the federal district court in Chicago. The Cook County Sheriff in retaliation for Shelton filing civil rights suits has been falsely arresting Shelton repeatedly and maliciously prosecuting her for battery to officers. Of NOTE: She is never charged with battering anyone else and has a lifelong history of non-violent pacifism.  For more information go here.  Also read Shelton’s other blogs: http://cookcountyjudges.wordpress.com  http://chicagofbi.wordpress.com   http://cookcountysheriffdeputies.wordpress.com   http://illinoiscorruption.blogspot.com and search them for posts about Madigan in particular.

They have beaten her so many times and so viciously that she now has post-traumatic-stress disorder and when aggressively approached by officers goes into a flashback where she cries, screams, tries to protect herself from imagined blows swinging her arms randomly (as she is reliving attacks) and cowers. If she is pushed, carried, or dragged, due to disabilities and severe balance problems she grabs at things to steady herself – all the while being out of touch with reality during these brief PTSD flashbacks.

She has been arrested and charged with FELONY battery to an officer with a possible sentence of 3-14 years for “touching an officers ear and pulling her hair until her hand slipped off”.

She has been held in jail one year on no bail and only recently released on $300,000 bail. This is unconstitutional excessive bail

She has been denied notice, counsel of choice, discovery of evidence, and has been fraudulently accussed of being psychotic and unfit for trial, illegally without notice or jury trial, without any professional saying she was psychotic or unfit, sent to a secure mental health facility who after a few months said in court she was never unfit and is not psychotic and sent her back to jail.

As a result of this lawlessness Shelton has now filed at Petition for Writ of Habeas Corpus to the Federal District Court asking for relief and presentment of the criminal conduct of judges, sheriff staff, state’s attorney, court clerk, and other corrupt persons to the U.S. Attorney for  prosecution.

You can read it here: (download will be 24 pages) fed habeas 6-12-14 final

Full Petition with evidence (download will be 400+ pages) Habeas Petition

Asst. US Attorney Zachary T. Fardon
United States Attorney’s Office
Northern District of Illinois, Eastern Division
219 S. Dearborn St., 5th Floor
Chicago, IL 60604
Phone: (312) 353-5300
______________________
FBI,Special Agent in Charge – Chicago
Robert J. Holley
2111 W. Roosevelt Road
Chicago, IL 60608
Phone: (312) 421-6700
Fax: (312) 829-5732/38
E-mail: Chicago@ic.fbi.gov
_________________________

Senator Durbin
WASHINGTON, D.C.
711 Hart Senate Bldg.
Washington, DC 20510
9 am to 6 pm ET
(202) 224-2152 – phone
(202) 228-0400 – fax
____________________

Senator Kirk
Washington, DC
524 Hart Senate Office Building
Washington DC, 20510
Phone: 202-224-2854
Fax: 202-228-4611
___________________
Congressman Lipinsky
Washington, D.C. Office
1717 Longworth HOB
Washington, DC 20515
P (202) 225 – 5701
P (866) 822 – 5701
F (202) 225 – 1012

July 31, 2014

When opposing counsel lie to the court


You can file a Petition for adjudiction of criminal contempt against the attorney whether the case is in the local court or the appellate court. You should attach an affidavit stating that you have reviewed the transcripts or motion wherein the false statement was made. You should swear that the statement was false and how it was false You can ask the court to hold the attorney in contempt for fraud upon the court and sentence him for criminal contempt after a trial. If the court holds the attorney in contempt for fraud, then you can file with the ARDC and ask for the attorney to be disbarred. ARDC = Attorney Regulatory and Disciplinary Commission.

A petition is written just like a motion, but it is a collateral proceeding and not part of the case. It should be given a separate case number by the clerk.

Opposing counsel is an officer of the court. Attorneys have a code of conduct under IL Supreme Court Rules that prevent them from making false statements. They can be disbarred and should be.

Criminal contempt is when someone makes  false statements or commits fraud upon the court. Criminal contempt cannot be purged. As those charged with crimes have a 5th Amendment right to remain silent they can not be ordered to show cause as in a civil contempt case where someone refuses to obey an order.  Therefore you must file a Petition for Adjudication of Criminal Contempt instead of a Motion for Rule to Show Cause as you would with civil contempt. Criminal contempt is an act that

Civil  contempt is when you disobey an order and you hold the keys to the jail as you can expunge the order to jail you if you comply with the order such as pay child support or perform an act ordered by the judge. This is not an attempt to embarrass the court or bring the court into disrepute.

The following contains extensive important case law relevant to above and your cases.

CONTEMPT OF COURT (CIVIL V CRIMINAL) 

Circle Management, LLC., v. Olivier, 378 Ill.App.3d 601, 317 Ill.Dec. 555, 882 N.E.2d 129 (2007) [Ill.App. 1st Dist]

Major controlling case with amici including Legal Assistance Foundation of Metropolitan Chicago (LAF), the Lawyer’s Committee for Better housing (LCBH), Cabrini-Green legal Aid (CGLA) and the Northwestern University School of Law Bluhm Legal Clinic (Bluhm Clinic).

         

Courts have inherent authority to punish a party for contempt. See People v. Warren, 173 Ill.2d 348, 370, 219 Ill.Dec. 533, 671 N.E.2d 700 (1996) (“The power to punish for contempt does not depend on constitutional or legislative grant”) [further citations omitted]

“Contempt of court has been defined as any act that is calculated to embarrass, hinder, or obstruct a court in the administration of justice, or that is calculated to lessen its authority or dignity.” Levaccare v. Levaccare, 376 Ill.App.3d 503, 508, 315 Ill.Dec. 280, 876 N.E.2d 280 (2007), quoting People v. Budzynski, 333 Ill.App.3d 433, 438, 266 Ill.Dec. 713, 775 N.E.2d 275 (2002).

Criminal contempt sanctions are punitive in nature and require a finding that the contemptuous conduct was willful. People v. Minor, 281 Ill.App.3d 568, 574, 217 Ill.Dec. 449, 667 N.E.2d 538 (1996); People v. Ernest, 141 Ill.2d 412, 422, 152 Ill.Dec. 544, 566 N.E.2d 231 (1990).

Civil contempt is prospective in nature, and is “designed to compel future compliance with a court order.” Emery, 374 Ill.App.3d at 977, 313 Ill.Dec. 502, 872 N.E.2d 485, quoting In re Marriage of Sharp, 369 Ill.App.3d 271, 279, 307 Ill.Dec. 885, 869 N.E.2d 539 (2006).

Although a court may enforce an order to pay money through contempt, this power is “limited to cases of willful refusal to obey the court’s order.” In re Marriage of Logston, 103 Ill.2d 266, 285, 82 Ill.Dec. 633, 469 N.E.2d 167 (1984).

“’It is not a contempt of court to fail to pay money which one neither has nor can obtain and which he has not causelessly either put out of his hands or failed to receive.’” Shapiro v. Shapiro, 113 Ill.App.2d 374, 388, 252 N.E.2d 93 (1969), quoting White v. Adolph, 305 Ill.App.76, 79, 26 N.E.2d 993 (1940)

Trial courts have inherent authority to impose sanctions against a party that fails to abide by valid court orders. Sander v. Dow Chemical Co., 166 Ill.2d 48, 67, 209 Ill.Dec. 623, 651 N.E.2d 1071 (1995); Smith v. City of Chicago, 299 Ill.App.3d 1048, 1054, 234 Ill.Dec. 108, 702 N.E.2d 274 (1998).

FRAUD – NOT JUST FALSE STATEMENT, BUT ALSO SUPPRESSION OF THE TRUTH

It is also clear and well-settled Illinois law that any attempt to commit “fraud upon the court” vitiates the entire proceeding. People v. Sterling, 357 Ill. 354; 192 N.E. 229 (1934) (“The maxim that fraud vitiates every transaction into which it enters applies to judgments as well as to contracts and other transactions.”); Moore v. Sievers, 336 Ill. 316; 168 N.E. 259 (1929) (“The maxim that fraud vitiates every transaction into which it enters …”); In re Village of Willowbrook, 37 Ill.App.2d 393 (1962) (“It is axiomatic that fraud vitiates everything.”); Dunham v. Dunham, 57 Ill.App. 475 (1894), affirmed 162 Ill. 589 (1896); Skelly Oil Co. v. Universal Oil Products Co., 338 Ill.App. 79, 86 N.E.2d 875, 883-4 (1949); Stasel v. The American Home Security Corporation, 362 Ill. 350; 199 N.E. 798 (1935).

Fraud maybe inferred from nature of acts complained of, individual and collective interest of alleged conspirators, situation, intimacy, and relation of parties at time of commission of acts, and generally all circumstances preceding and attending culmination of claimed conspiracy Illinois Rockford Corp. V. Kulp, 1968, 242 N.E. 2d 228, 41 ILL. 2d 215. “The Court has broadly defined fraud as any conduct calculated to deceive, whether it be by direct falsehood or by innuendo, by speech or silence, by word of mouth, by look, or by gesture. Fraud includes the suppression of the truth, as well as the presentation of false information. (In re Witt (1991) 145 Ill.2d 380, 583 N.E.2d 526, 531, 164 Ill. Dec. 610).” See also In re Frederick Edward Strufe, Disciplinary case no. 93 SH 100 where the Court stated that “Fraud has been broadly defined as anything calculated to deceive.” “Fraud upon the court” has been defined by the 7th Circuit Court of Appeals to “embrace that species of fraud which does, or attempts to, defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery cannot perform in the usual manner its impartial task of adjudging cases that are presented for adjudication.” Kenner v. C.I.R., 387 F.3d 689 (1968); 7 Moore’s Federal Practice, 2d ed., p. 512, ¶ 60.23. The 7th Circuit further stated “a decision produced by fraud upon the court is not in essence a decision at all, and never becomes final.”

Fraud does not always divest court of jurisdiction and cause orders to be void. They however would be voidable.

 

Misrepresentation of neglect in petition for wardship did not void jurisdiction.

 

An order is rendered void only by lack of jurisdiction, not by error or impropriety. (p. 377)

 

Only fraud that confers only colorable jurisdiction upon court renders judgment void; fraud that occurs after court’s valid

 

Fraud can render a judgment void, but not all fraud can do so. (Johnson v. Hawkins (1972), 4 Ill.App.3d 29, 32, 280 N.E.2d 291.) There is a difference between fraud that confers only colorable jurisdiction upon the court, and fraud that occurs after the court’s valid acquisition of jurisdiction; only the former type of fraud will render a judgment void. (Schwarz v. Schwarz (1963), 27 Ill.2d 140, 144-45, 188 N.E.2d 673.) The latter type of fraud, fraud that occurs after jurisdiction has been acquired, will render the court’s  order voidable, but not void for lack of jurisdiction. (Vulcan Materials Co.  v. Bee Construction, 96 Ill.2d at 165, 70 Ill.Dec. 465, 449 N.E.2d 812; In re Marriage of Noble (1989), 192 Ill.App.3d 501, 509, 139 Ill.Dec. 133, 548 N.E.2d 518; James v. Chicago Transit Authority (1976), 42 Ill.App.3d 1033, 1034-35, 1 Ill.Dec. 552, 356 N.E.2d 834; Johnson v. Hawkins, 4 Ill.App.3d at 32, 280 N.E.2d 291.) Fraudulent concealment, for example, renders a court’s orders voidable, not void. In re Application of County Treasurer (1990), 194 Ill.App.3d 721, 726, 141 Ill.Dec. 350, 551 N.E.2d 343.

 

Can file civil rights suit against lawyer when they lie to the court and harm you

In ?  Vigus v. O’Bannon, 1886 N.E. 788, 118 Ill. 334; Hazelton v. Carolus, 1907 132 Ill. App. 512; Carter v. Mueller 457 N.E. 2d 1335 Ill. App. 1 Dist. 1983, The Supreme court has held that: “The elements of a cause of action for fraudulent misrepresentation (sometimes referred to as “(fraud and deceit)”are: (1) False statement of material fact; (2) known or believed to be false by the party making it; (3) intent to induce the other party to act; (4) action by the other party in reliance on the truth of the statement; and (5) damage to the other party resulting from such reliance. ______________, ____ U.S. _____ (_?_)

_____? citation_______Scott, 377 Mass. 364, 386 N.E. 2d 218, 220 (1979) See Lopez-Alexander, Unreported Order No. 85-279 (Colo. May 3, 1985) (Judge removed for, inter alia, a persistent pattern of abuse of the contempt power. The Mayor of Denver accepted the findings of the Denver County Court Judicial Qualification Commission that the judge’s conduct could not be characterized as mere mistakes or errors of law and that the conduct constituted willful misconduct in office and conduct prejudicial to the administration of justice that brings the judicial office into disrepute). Canon Ethics where there is a pattern of disregard or indifference, which warrant discipline.

Section 1983 of U.S.C.S. contemplates the depravation of Civil Rights through the Unconstitutional Application of a Law by conspiracy or otherwise. Mansell v. Saunders (CA 5 F 1A) 372 F 573, especially if the conspiracy was actually carried into effect, where an action is for a conspiracy to interfere with Civil Rights under 42 U.S.C.S. 1985 (3), or for the depravation of such rights under 42 U.S.C.S. 1983, if the conspiracy was actually carried into effect and plaintiff was thereby deprived of any rights, privileges, or immunities secured by the United States Constitution and Laws, the gist of the action maybe treated as one for the depravation of rights under 42 U.S.C.S. 1983, Lewis v. Brautigam (CA 5 F 1a) 227 F 2d 124, 55 ALR 2d 505, John W. Strong, 185, 777-78 (4 th ed. 1992).

Properly alleged facts within an affidavit that are not contradicted by counter affidavit are taken as true, despite the existence of contrary averments in the adverse party’s pleadings. Professional Group Travel, Ltd. v. Professional Seminar Consultants Inc., 136 ILL App 3d 1084, 483 N.E. 2d 1291; Buzzard v. Bolger, 117 ILL App 3d 887, 453 N.E. 2d 1129 et al.

i.e. even if false statements, unless you have affidavits that they are false, the statement is taken as true

FRAUD BY STATE IN CRIMINAL CASE – FALSE STATEMENTS TO CRIMINAL COURT

 

Where the public policy of the State of Illinois is violated, the order is void, Martin-Tregona v. Roderick, 29 Ill.App.3d 553, 331 N.E.2d 100 (1st Dist. 1975).

“Fraud upon the court” makes void the orders and judgments of that court. It is clear and well-settled law that any attempt to commit “fraud upon the court” vitiates the entire proceeding. People v. Sterling, 357 Ill. 354, 192 N.E. 229 (1934)

To apprehend a person on a sham or pretextual charge is so dangerous to interest of privacy and personal security as to call into play the exclusionary rule … The officer’s subjective intent and beliefs are quite crucial … If sham arrest operating under the impression that an arrest for offense count not stand up – use exclusionary rule …arrest must have a good faith probable cause  Carroll v. United States 267 U.S. 132, 156, 69 L.Ed. 543, 45 S.Ct 280 (1925); Moss v. Cox, 311 F.Supp. 1245, 1252 (ED VA 1970)

Due Process Defense 97 ALR Fed. 273

June 17, 2014

Offers of Proof – Preserving barred evidence & testimony for appeal


OFFERS OF PROOF

These are used to preserve evidence or testimony for the record when the court bars its introduction during the trial or during an evidentiary hearing. During a trial, if an offer of proof is formally made, the jury will be excluded and the witness is put on the stand so that the testimony will be on the transcript or the attorney/pro se counsel may put the evidence on the record or state what they expect a witness would have said in detail, just to get it on the record for purposes of appeal.  Anything not on the record cannot be considered for appeal.  If the judge won’t let you do this, you can file an offer of proof with an attached affidavit as to what the witness would have said or attached evidentiary document. This memorandum explains offers of proof a little more clearly. Everything I write uses Illinois and federal case law. 

MEMORADUM OF LAW – OFFERS OF PROOF

NOW COMES, Linda Shelton who respectfully presents to the court this memorandum of law.

  1. The refusal to allow an offer of proof in a trial denies due process and is reason for overturning the verdict. Every defendant has a Sixth Amendment right to present a defense. People v. Manion, 67 Ill.2d 564, 10 Ill.Dec. 547, 367  N.E.2d 1313 (1977) It is a fundamental error to deny the right to present a defense that requires the verdict be overturned. (Ibid)  Refusing to allow a person to place an offer of proof on the record, de facto denies defendant the right to present a defense.
  2. “When a party claims she has not been given the opportunity to prove her case because the trial court improperly barred certain evidence, she “must provide [the] reviewing court with an adequate offer of proof as to what the excluded evidence would have been.” In re Estate of Romanowski, 329 Ill. App. 3d 769, 773, 771 N.E.2d 966, 970 (2002). An offer of proof serves two primary functions: (1) it discloses to the trial court and opposing counsel the nature of the offered evidence, thus enabling the court to take appropriate action, and (2) it provides the reviewing court with an adequate record to determine whether the trial court’s action was erroneous. People v. Thompkins, 181 Ill. 2d 1, 10, 690 N.E.2d 984, 989 (1998).
  3. The traditional way of making an offer of proof is the “formal” offer, in which counsel offers the proposed evidence or testimony by placing a witness on the stand, outside the jury’s presence, and asking him questions to elicit with particularity what the witness would testify to if permitted to do so. People v. Wallace, 331 Ill. App. 3d 822, 831, 772 N.E.2d 785, 794 (2002); M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §103.7, at 22 (8th ed. 2004).
  4. In lieu of a formal offer of proof, counsel may ask the trial court for permission to make representations regarding the proffered testimony. If counsel so requests, the court may–within its discretion–allow counsel to make such an informal offer of proof.
  5. A trial court may deem an informal offer of proof sufficient if counsel informs the court, with particularity, (1) what the offered evidence is or what the expected testimony will be, (2) by whom it will be presented, and (3) its purpose. Kim v. Mercedes-Benz, U.S.A., Inc., 353 Ill. App. 3d 444, 451, 818 N.E.2d 713, 719 (2004). However, an informal offer is inadequate if counsel (1) “merely summarizes the witness’ testimony in a conclusory manner” (Snelson v. Kamm, 204 Ill. 2d 1, 23, 787 N.E.2d 796, 808 (2003)) or (2) offers unsupported speculation as to what the witness would say (People v. Andrews, 146 Ill. 2d 413, 421, 588 N.E.2d 1126, 1132 (1992)). In deciding whether to permit an informal offer of proof, the court should ask itself the following questions: (1) Are counsel’s representations accurate and complete? and (2) Would a better record be made by requiring counsel to make a formal offer of proof, even though doing so might be inconvenient and require more time?
  6. In addition, before deciding whether to accept counsel’s representations in lieu of a formal offer, the trial court should ask opposing counsel if he objects to proceeding in that fashion, even though counsel’s response in no way limits the court in exercising its discretion on this matter. If opposing counsel concedes the sufficiency of the offer or has no objection to proceeding by counsel’s representations, then opposing counsel’s client may not later challenge the court’s decision to proceed by counsel’s representations, rather than a formal offer. See In re Detention of Swope, 213 Ill. 2d 210, 217, 821 N.E.2d 283, 287 (2004) (“Simply stated, a party cannot complain of error which that party induced the court to make or to which that party consented”); In re Marriage of Sobol, 342 Ill. App. 3d 623, 630, 796 N.E.2d 183, 188 (2003) (a party forfeits the right to complain of an alleged error when to do so is inconsistent with the position the party took in the trial court).
  7. We emphasize that a trial court is never required to settle for less than a formal offer of proof, whatever the positions of the parties at trial may be. Whether to do so is left entirely to the court’s discretion. Thus, if the trial court is not satisfied that counsel’s representations alone are sufficient, the court may require counsel to place his witnesses on the stand and make a formal offer of proof.”  Miller v. Miller, 2004 Ill. App. 4th Dist.

 

QUOTED FROM ILLINOIS INSTITUTE FOR CONTINUING LEGAL EDUCATION  9 — 35

EVIDENTIARY MOTIONS AT TRIAL §9.48

 

 

  1. “Offers of proof are technically not evidentiary motions but rather serve as a sort of narrative insurance policy for appeal. Offers of proof are designed to preserve the record and guarantee that testimony that is not allowed is at least previewed for the appellate court. The purpose of offers of proof is discussed in Lagestee v. Days Inn Management Co., 303 Ill.App.3d 935, 709 N.E.2d 270, 237 Ill.Dec. 284 (1st Dist. 1999). Lagestee followed previous holdings that offers of proof are made to disclose to opposing counsel and the trial court the substance of excluded evidence and to enable the reviewing court to determine whether the trial court committed error thereon. It should be noted that unlike most of the motions made at trial, a motion to make an offer of proof is not subject to the discretion of the court. It has been held in People v. Richmond, 201 Ill.App.3d 130, 559 N.E.2d 302, 147 Ill.Dec. 302 (4th Dist. 1990), that trial courts are required to permit counsel to make offers of proof. Refusal to permit an offer may constitute error. However, refusal of an offer is not error if the suggested testimony is not relevant.

 

  1. Because offers of proof are essential to make and preserve a viable record, the offers should be as accurate as possible. In Snelson v. Kamm, 319 Ill.App.3d 116, 745 N.E.2d 128, 253 Ill.Dec. 354 (4th Dist. 2001), aff’d in part, rev’d in part, 204 Ill.2d 1 (2003), an offer was held adequate if it informed the court of the particular answer that would have been given. Note that Snelson also holds that a summary or synopsis will not suffice. The offer must be as accurate as possible.

 

  1. To insure that the offer is as accurate as possible, the author would urge that counsel write out, or at least loosely outline, the offer in advance so that it can be read carefully into the record. Obviously, the offer cannot always be written out; but in most instances, the opponent’s objection and the court’s possible denial can be anticipated. A written statement or an outline helps to ensure that all necessary evidentiary elements are included and clearly and artfully set forth. If the need for an offer has not been anticipated, counsel may ask the court’s indulgence for a short break to gather his or her thoughts and compose or outline the offer. If the evidence has been excluded during the testimony of a witness, the questions and proposed answers should be set so as to show the reviewing court what has been excluded. The traditional or classic method of making the offer involves posing the question and eliciting the answers from the witness. The alternative to the questions-and-answers format is for counsel to read the offer into the record. Presenting an offer of proof by orally reciting the substance of the expected testimony was specifically approved in Wright v. Stokes, 167 Ill.App.3d 887, 522 N.E.2d 308 (5th Dist. 1988). Although it runs counter to the conventional method of putting the witness on the stand, the narrative by counsel is the most effective and safest method. The narrative avoids an inarticulate or nervous witness who is very likely to be shocked and concerned by the exclusion of his or her testimony, insures that the testimony is on point, and should provide the optimum voice in setting forth the reasons why the evidence has been improperly excluded. An offer read into the record by counsel is generally more orderly and better understood.

 

  1. In making the offer, specificity is the goal. Conclusory or summary statements as to what the testimony or evidence would have shown will not preserve the record. Snelson, supra. Any offer of proof should be made out of the presence of the jury, and it is suggested that at the close of the offer counsel renew the request that the testimony be allowed into evidence. Restatement of the request gives continuity to the record, ties up loose ends, and ensures that the offer and the ruling of the court are tied together and understood by the reviewing court.

 

  1. Various texts and cases reflect a further relaxation in the method of making an offer and go as far as to suggest that it is not needed at all when the court clearly understands the objection and the nature of the evidence being offered. See People v. Foster, 81 Ill.App.3d 915, 401 N.E.2d 1221, 37 Ill.Dec. 128 (1st Dist. 1980). Notwithstanding Foster, it is strongly suggested that the offer of proof be made outside the presence of the jury in a formal manner whenever testimony has been circumscribed in whole or in part.

 

  1. From a purely practical standpoint, there is generally little likelihood that the offer of proof will have an immediate impact on the trial court. The fact that the offer is being made is indicative of the trial court’s position. The offer is primarily directed toward compiling and preserving an accurate record for appeal. Since the offer entails the refusal of testimony during the case in chief, it properly should be viewed as a very serious motion deserving careful attention.

 

  1. Thus, the offer of proof satisfies two critical needs in preserving the record on appeal: it demonstrates (1) that an error has been committed in excluding evidence and (2) that that error was harmful to the presentation of counsel’s case in chief. The author believes that the only way the above defects can be lucidly conveyed to an appellate court is through a disciplined, formal recitation on the record, as in the following sample: Your Honor, at this time I would like to make an offer of proof in connection with the testimony of [witness]. [Witness], if allowed to testify under oath in these proceedings, would testify as follows: [foundation establishing background and competency, and then a specific narrative of the substantive testimony that would have been adduced.]

 

  1. Again, the offer of proof should be as specific as possible, at all times avoiding summaries or vague conclusions.” [emphasis added]

 

Dated: April 29, 2014

Respectfully submitted,

 

 

Linda L. Shelton

Pro Se Defendant

 

May 20, 2014

Cook County court clerk misconduct and incompetence – letter to Cook County Board President


Board President Preckwinkle kindly replied and said she is continuing to try to achieve changes, but does not have the authority to change several things or obtain documents owed to me.

April 22, 2014
Madam Tony Preckwinkle
President Cook County Board of Commissioners
118 N. Clark St Rm 537
Chicago, IL 60602

Re: Court & Clerk Systemic and Criminal Violation of Law

Dear Pres. Preckwinkle:

This letter is to inform you of criminal systemic “errors” by the Court Clerk and Judges that need to be corrected as well as systemic fraud upon criminal defendants amounting to stealing hundreds of thousands of dollars – millions over decades, without due process of law.

In criminal cases, when a defendant does not show up in court a BFW (Preliminary Bond Forfeiture, Warrant) is issued. Then the defendant has 30 days to show up and have the preliminary bond forfeiture quashed or it becomes final.

Many defendants have good excuse not to have shown up in court – for example: 1) they are hospitalized; 2) they are in custody and the Sheriff refused to bring them to court – because the sheriff is not aware of other court cases or dates unless the court provides them a mittimus paper; 3) there was a death or birth in the family – its hard to be in court if your wife is in the delivery room; or 4) they are on active duty in the military and are out of the country. Then they bring proof of the above to the court and the judge quashes the BFW.

However, the Clerks systemically make the following errors:

1) Instead of writing “preliminary bond forfeiture” = pBFW, they write that this is a final bond forfeiture = BFW, which is transmitted to the Illinois State Police and FBI criminal databases such as LEADS and are used by prosecutors to argue for high bail due to “flight risk”.

2) The judges although they order the warrant to be quashed, they fail to order the bond forfeiture to be quashed.

3) The Clerk therefore fails to write that the bond forfeiture was quashed.

4) If the defendant doesn’t show up for court the Clerk and judge fail to write that this is a final bond forfeiture.

Therefore, on the State Police rap sheets, all preliminary bond forfeitures, even if quashed and warrant quashed for a good reason, state that the preliminary bond forfeiture is a final bond forfeiture. This forever defames the defendant.

This means that when a judge looks at a rap sheet in order to decide bail on a future case, they set fraudulently high bails as they use these “bond forfeitures” that have been quashed as reason to set an exorbitantly high bail rationalizing that the defendant is a “flight risk”.

For example: because I had four (4) “preliminary bond forfeitures” which had been quashed because I was hospitalized each time listed on rap sheet as final bond forfeiture, Judge Daly at Bridgeview set my bail on a MISDEMEANOR case at $50,000 instead of at $1,000 in 2009. Therefore, I was unconstitutionally jailed because I could not pay the bail.

This means my family had to pay $5,000 to get me out of jail (I later won the case) and the court Clerk kept $500. This was theft of my funds as the bond order was void because it was based on false information. I expect this high bail to be vacated nunc pro tunc and the $500 returned. I would prefer the County to take initiative and correct these things, but I doubt they will.

The rap sheets are providing judges false information and this is costing defendants dearly in excessively high bails and wrongful incarceration. I intend to have all these fraudulent bail orders vacated and the Clerk of your court will then owe me a lot of money.

Please make sure that Clerk Dorothy Brown immediately does something to correct these errors. I had a meeting with Dorothy Brown in Dec. 2009 with an attorney as a witness. I told her about the above and she has failed to correct the errors. This means Clerk Dorothy Brown is knowingly and willingly keeping false and incorrect records, each act of which is a class A misdemeanor crime , as you know. I will be filing court pleadings to have all my dockets corrected to reflect this. The number of incorrect court records is staggering as this has been going on for decades. Nine of my cases have such errors. All of my 35+ criminal cases are false arrests in retaliation for my complaints and whistle blowing activities, as well as for my blogs and assistance to other litigants against the state and their officers and judges.

Also note that technically the Illinois bail bond law is unconstitutional as it ties the fee for a fixed service (processing of bond) to the bail amount. Thus someone who is found not guilty after five years of murder and who paid $100,000 bond to get out owes the County $10,000 for processing one bond, while a guilty drug addict who paid $200 to get out on bond only owes the County $20 for the exact same service (processing of bond). This is fraud and denial of equal protection concerning right to property (money), which cannot be taken without due process of law. This is no different than Medicare fraud when a billing agent for a doctor charge by percentage of the doctor’s income instead of per bill processed. You cannot tie the fee for a fixed service to the value of services, labor, or property provided or owned by others. Many billing agents have been sent to federal prison for Medicare fraud. Isn’t the County unknowingly doing the same thing and harming its citizens?

Please be informed of a very serious criminal act going on by the Clerks at Bridgeview courthouse. The cost of a certified computer docket is $9. Any clerk you go to at any other courthouse will print out the docket and charge $9 as the Court Clerk’s web site states.

I wrote Clerk Brown in 2012 and the following is part of the letter:

“I went to Bridgeview Courthouse on 2/10/12 to the civil clerk and asked for two certified docket printouts on case numbers 10 P 006117 and 11-M5-000940. The Clerk said the charge for this 78 page docket and about 15 page docket was $9.00 PER PAGE or about $702 and $135. As you know, your charge is $9.00 per docket regardless of the length of the docket. $837 is a lot different than $18.

This is an $819 overcharge.

It is likely that some people have been inhibited in filing expungements or appeals due to this continuing practice of gross overcharges. This is doing great harm to litigants.

This is massive extortion. All your other clerks at other courthouses charge $9.00 per docket, not per page. Someone has dropped the ball and is not supervising Bridgeview properly or someone at Bridgeview is stealing this money and pocketing it. You must immediately investigate and take action to correct this.

I confirmed with all the clerks present that they actually have been charging the public $9.00 per page for a certified print-out of a single current case docket, instead of $9.00 per docket regardless of number of pages. I suspect someone is embezzling the money as your auditors or supervisors would have caught such a gross error.

I even asked Mr. Blumberg to call your Chief Counsel and he came back and said he spoke to Ms. Demos and she confirmed that the charge was $9.00 per page!

I paid for just the last page certified of each of the above two dockets. I demand that you immediately send by overnight mail the rest of the docket that I paid for.

Your clerks at the Daley Center and other courthouses are charging the appropriate $9.00 per certified case docket.

Attached is Mr. Blumberg’s signature on your fee schedule where he has yellowed what he said is the fee under:

“For record searching, for each year searched.

For each page of computer printout _______________________$9.00”

Ms. Malis agreed with him despite my protests. She has been there long enough to know the correct fee! These are fees for searching the archive records not for printing out a docket!

As you know this is not the fee for a certified computer docket. The correct fee is listed here and applies to the entire docket regardless of the number of pages. I have circled in in red on the attached fee schedule.

“For each certification or authentication with the seal of office ______$9.00”

This is outrageous and means your staff has been stealing tens of thousands of dollars or more from the public.”

I have informed the Inspector General for the Clerk’s office and as far as I know, nothing has been done. I have seen no arrests discussed in the media. Who is covering this up? What are you going to do about it? Where is the money going?

Please also be informed that Judge Biebel and Judge Wright have de facto suspended habeas corpus for people with misdemeanors and detainees at Cook County Jail who file a petition for writ of habeas corpus from Cook County Jail. By law, the Clerk must file any habeas petition a person brings to her and give it a separate civil case number, then schedule it for hearing before the presiding judge of the division promptly. If incarcerated, the presiding judge should issue orders bringing the defendant into the court.

I have tried to file more than six habeas petitions in misdemeanors in 2012 and they are still pending, by mailing them to an attorney friend who tried to file them. The clerk of 1st municipal division refused to give them a civil case number or a hearing date. She just filed them in the criminal case files. We repeatedly both contacted Judge Wright’s, Judge Evans’ and Clerk Brown’s offices and simply got the run around. I contacted them in writing. I mailed a petition for writ of habeas corpus to the clerk at 2650 S California in August 2013 and the supervising clerk now told me that it was placed in the criminal file, not given a civil case number and sent to Judge Biebel to decide whether it should be filed and heard. It was never given a civil case number or heard and is still pending. This issue is now before the Illinois Supreme Court.

The clerk supervisor shockingly said there are “two kinds of habeas petitions” – as instructed by Biebel’s office – one from those in jail and one when an attorney comes and files them. Apparently this County does not understand the rights of citizens under the U.S. Constitution including due process and equal protection. She gives the attorneys’ petition in these felony cases a civil case habeas number and schedules them for hearing. She sends the detainees petition to Biebel and he deep sixes them! That is criminal to de facto suspend the highest civil right a person has – to petition for writ of habeas corpus under the suspension clause of the United States Constitution. This needs a federal criminal investigation, as when a judge knowingly usurps power he does not have (here is doing the clerk’s duty and impeding purposely these petitions from being heard), then according to Chief Justice Marshall in Cohens v. Virginia, 6 Wheat. 264, 5 L.Ed 257 (1821) that it is “treason on the constitution” when a judge “usurps [the jurisdiction] that which is not given”. The case against me is totally bogus and has the appearance of retaliation for my complaints.

This is just the tip of the iceberg I have concerning misconduct of the Court Clerk, the judges, the sheriffs, and the State’s Attorney, as well as Public Defender in Cook County. I really would like to sit down with you and a representative from the Illinois Supreme Court and U.S. Attorney’s office with several colleagues and give you all evidence of so much other misconduct, criminal acts, and failure to follow their statutory duty, as well as felony federal funding fraud among players in the courts that you will be gob smacked. You have only witnessed the surface of the iceberg in your dealings with Evans and Alvarez. There is not one aspect of the functioning of the courts that is not in need of major reform. Evans must go! He and D. Brown should be impeached, along with several other senior judges. There is plenty of evidence for Greylord 2.

Thank you for your attention to this matter. I hope you will give me a response as to what you plan to do about this. Judge Evans and Clerk Brown, apparently do not think the above need attention as they have done nothing despite being informed.

Sincerely,

Linda L. Shelton, PhD, MD

January 15, 2013

Free legal assistance for those who are wrongfully convicted or coerced to falsely plea guilty


There is no guarantee you will be able to find a lawyer to help you, but here are the places you can look.  You will have to make appointments by phone and then go to them.  There will be lots of appointments and lots of rejections before  you are likely to find someone to help you, but don’t give up!

Prepare a SHORT document where you write about your case and send it or deliver it to the attorneys or law clinics you made appointments with before you go to your appointments – with a cover letter that is a few sentences saying this is what you are doing.

Write a one to two page story about your case and attach any evidence that proves you are innocent (affidavits or letters from witnesses or whatever else you have).  Give the details of what you were accused of and what you confessed to and pled  guilty to.  Write a paragraph as to why you pled guilty when you didn’t do it.  Write a paragraph about what you plan on doing in life and how the conviction is preventing  you from accomplishing your goals.  Write a paragraph about what the state’s witnesses said that caused you to be convicted and why you think they were motivated to lie.  Give this to each of the places you get an appointment BEFORE you go to the appointment.

Contact law school clinics where they have lawyers who represent indigent clients.  They all don’t do this automatically and they are limited by funding from grants and government. etc.  But call each one and pound the pavement meeting with them after making appointments and showing them the evidence that proves you are innocent. This is NOT an easy task.

http://www.cookcountyclerkofcourt.org/?section=LinksPage&LinksPage=Law_Schools

You should also apply for executive clemency from the parole board – which reviews your case and recommends to the Governor if you should be granted a pardon.  Make sure you answer the above questions in your written application. The Gov. can overturn any conviction with a pardon.  It would be better if you could find witnesses who can prove your innocence and get a signed affidavit from them that would be signed by a notary.  Remember that letters are hearsay and not admissible in court.  If you have witnesses that sign affidavits that state they are willing to testify to what they wrote in their affidavits that would be best.

http://www2.illinois.gov/PRB/Pages/prbexclemex.aspx

This page  contains links to free legal services.

http://www.cookcountyclerkofcourt.org/?section=SERVRESPage&SERVRESPage=7020

It will be tough finding someone to help you.

Good luck!  Work hard pounding the pavement going to appointments and never give up!

December 9, 2011

Time for Fourth branch of government to clean up corrupt Cook County Courts


When the British government acted like dictators and ignored the laws we had the Boston Tea Party and then the revolutionary war.

 

It is time for a new awakening of the Fourth branch of government – this time to clean up the courts. It is past time to talk the talk -we must walk the walk -no fear – just act! When the judge violates the law – file everything possible in state and federal court (complaint for supervisory order; complaint for mandamus; Section 1983 federal civil rights suit for injunctive relief – justices have immunity from suits for monetary damages but not from suits for injunctive relief or mandamus; Attorney Regulatory Commission Complaint; Judicial Inquiry Board Complaint; Judicial Council complaints; complain to the press; complain to officials in charge of the County or State; complain to your representatives and senators; make a request for impeachment to the speaker of the house; complain to the press, put ALL details of your case on the Internet.

The Declaration of Independence states:

      We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. –That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed.

But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.

Our right to justice is not something that the judiciary should play with. Our justice system is not a tool of self serving lawyers to use to allow lawyers to take advantage of the misfortunate and victimize them. Our courts are to serve the people and not as a profit center to protect the incomes of lawyers. We the people hereby give notice to the judiciary that you are acting in contempt of the people and that you will refrain from continuing to do so or face the consequences.

For more details see this link: http://www.perkel.com/politics/issues/fourth.htm

October 3, 2011

The Big Divorce Book – little known Illinois and Federal Divorce laws


FOR  COMPLETE COPY WITH SUMMARY OF THE LAWS PERTAINING TO CHILD SUPPORT FOR ILLINOIS CONTACT LINDA SHELTON AT picepil@aol.com – IT WILL BE E-MAILED TO YOU FOR A CONTRIBUTION TO COVER THE COST OF COPYING, PRODUCING, AND MAILING THIS 56 PAGE DOCUMENT  – there are no guarantees as to completeness or accuracy

ILLINOIS

DIVORCE BIG BOOK
ILLINOIS AND FEDERAL STATUTES
REGARDING CHILD SUPPORT

AN EDUCATIONAL PUBLICATION BY

STOP ILLINOIS CORRUPTION

(A PUBLIC SERVICE CLUB)

EDITED BY

DAVID BAMBIC and DR. LINDA SHELTON

Copyright 2011

November 4, 2011

NOTE: Interpretation of Law in Table of Contents has been done by paralegals and lay persons and is not guaranteed as to its accuracy – Please verify any interpretation of law by a licensed attorney – This is the opinion and belief of editors only and not meant to be a definitive interpretation of the law or legal advice – Use this interpretation at your own risk

NOTE: These laws are applicable the moment an obligee (non-custodial parent) is placed into the State Disbursement Unit (in Illinois Department of Healthcare and Family Services [HFS]) for collection and distribution of child support and are available to ALL PARENTS in divorce actions even if they are NOT on public assistance (Public Aid), upon application by either parent, whereupon the Family Court loses jurisdiction to investigate and hear applications for change in child support unless the parents disagree with the recommendation of the HFS Child Support Unit Administrative Law Court (ALC), after the ALC investigates financial circumstances, holds a hearing and makes a recommendation to the parties. Then the parties may go back to the Family Court Judge (Trial Judge) for review of recommendations, evidentiary hearing, and decision on change in child support.

NOTE: All parents may apply to be supervised by the SDU and ALC in the Child Support Services Division (CS) of HFS. Find the address of your local office for the Illinois Child Support Unit in the Department of Healthcare and Family Services at their web site:

TABLE OF CONTENTS FOR DIVORCE BIG BOOK

Note that these laws were written to be in compliance with federal codes pertaining to Social Security Title IV – 42 U.S.C. § 401 et seq. & amendments

page

1. Illinois Marriage and Dissolution of Marriage Act – 750 ILCS 5/506 Representation of child………………………………………………..…. 1-2

“The child representative shall not render an opinion, recommendation, or report to the court . . . but shall offer evidence-based [ NOTE NOT HEARSAY] legal argument. The child representative shall disclose the position as to what the child representative intends to advocate in a pre-trial memorandum that shall be served upon counsel of record prior to the trial. The position disclosed in the pre-trial memorandum shall not be considered evidence.” ……………………………………………………………………………………………………………………. 1

“Any person appointed under this Section shall file with the court within 90 days of his or her appointment, and every subsequent 90 – day period thereafter during the course of his or her representation , a detailed invoice for services rendered with a copy being sent to each party.”…………………………………………………………………………………………………………………………………………………………………………. 2

2. “Unified Child Support Services Act” 750 ILCS 24 et seq. …………………………………………………………………………………………….……… 3-6

Plan must be submitted by County State’s Attorney to the [Illinois] Department of Healthcare and Family Services (“DFS”) – Section 10 ………………………………………………………………………………………………………………………………………………………………………………….. 3

“Components of a Unified Child Support Services Program” 750 ILCS 24/15……………………………………………………………………..…..…… 4-5

“ (1) Accepting applications for child support services from private Parties or referrals from any state agency [Court]”……………………… 4

“(7) Obtaining identified cases that have moved into non-compliance With obligations [arrears] . . . . “……………………………………….. 4

“(16) Marketing the Program within the county in which it is operating so that potential applicants learn about child support services offered.”………………………………………………………………………………………………………………………………………………………………………………. 5

“Child Support Program Responsibilities” – 750 ILCS 24/35 ……………………………………………………………….………………………………..… 5-6

”Operation of a statewide toll free telephone” – [for the public to obtain information even if they are not eligible for public aid]……… 5

“(2) Management and supervision of the State Disbursement Unit” By the DFS………………………………………….………………………………. 6

3. “Expedited Child Support Act of 1990” – 750 ILCS 25 et seq……………………….……………………………………………………………..………… 7-13

“Purpose” 750 ILCS 25/2 “. . modification of child support orders” ……..…………..………………………………………………………………………. 7

“Establishment of the Expedited Child Support System” 750 ILCS 25/4………….………………………………………………………………………… 8

“(1) …The System shall be available to all participants in the IV-D program, and may be made available to all persons, regardless of participation in the IV-D program…” ……………….………………………………………………………………………………………………………………..…… 8

“(2) Implementation . . . the Chief Judge of any Circuit shall develop and Submit to the [Illinois] Supreme Court a Plan for the creation of a System ………………………………………………………………………………………………………………………………………………………………………………. 8

“(5) Implementation. The System shall be administered by Supreme Court. The Supreme Court may delegate, to the Chief Judge of each Judicial Circuit, the day-to-day administration of the system in the County. . . .” ………………………………………………………………………… 8

4. “Actions subject to Expedited Child Support Hearings” – 750 ILCS 25/5 ………………….……………………………………………………………. 9

“(1) Petitions for child support and for medical support . . . for post-judgment dissolution and . . where child support or medical support was reserved or could not be ordered at the time of entry of the judgment . . .” ………………………………….………………………………………… 9

“(2) Petitions for modification of child support and medical support in post-judgment dissolution of marriage . . . “ ……………………… 9

“(4) Actions for the enforcement of any existing order for child support or medical support in post-judgment dissolution of marriage . . .”………………………………………………………………………………..………………………………………………………………………………………………………… 9

“(8) Actions brought pursuant to Article X of the Illinois Public Aid Code”……………………………………………………………………………….…. 9

“(b) Notwithstanding the provisions of subsection (a) of this Section, if the custodial parent is not a participant in the IV-D program and maintenance is in issue, the case shall be presented directly to the court.”……………………………………………………………………………..….… 9

“(c) . . . the System be available in pre-judgment proceedings for dissolution of marriage, declaration of invalidity of marriage and legal separation.”………..………………………………………………………………………………………………………………………………………………………..……….. 9

5. “Authority of hearing officers (administrative law judges” and “Expedited Child Support Hearings” 750 ILCS 25/6 & 7……………………………………………….………………..…………………………………………………………………………………………………………….………….… 9-11

Administrative law judges [hearing officers] are by statute authorized to subpoena and collect evidence, review evidence, and make recommendations to the court as to post-dissolution of marriage child support issues, modification of child support and health insurance issues for the children. The Trial Court by statute shall refer all child support and health insurance issues to the administrative law court. Only if the parents disagree with the administrative law judge’s recommendations shall the court intervene in coming up with its own decisions regarding child support and health insurance issues for the children post judgment for dissolution of marriage……………….. 9-11

“(b) in any case in which the Obligee is not participating in the IV-D program or has to apply to participate in the IV-D program, the Administrative Hearing Officer shall: (1) inform the Obligee of the existence of the IV-D program and provide applications on request; and (2) inform the Obligee and the Obligor of the option of requesting payment to be made through the Clerk of the Circuit court.” ………………………………………………………………………..…………………………….……………………………………………………………………………………. 10-11

6. “Authority retained by the [trial] court” 750 ILCS 25/8 ………………………………………………………………………………………………………… 12-13

Trail Court retains jurisdiction over all matters not related to child Support or health insurance [as well as parentage issues] for the children and must resolve issues when the parents disagree with

the recommendations of the administrative law judge ……………………………………………………….……………………………………………………… 12-13

7. “Judicial Hearings” 750 ILCS 25/9……………………………………………………….…………………………………………………………………………..….. 13

Defines under what circumstances the Trial Court regains Jurisdiction over post-judgment child support and child health Insurance support issues …………….…………………………………………………………………………………………………………………………………………………………. 13

8. “Child Support Payment Act” 750 ILCS 27 ………………………………………………………….………………………………………………………………… 14

Allows obligor to pay child support through a currency exchange……………..………………………………………………………………………………… 14

9. “Income Withholding for Support Act: 750 ILCS 28………………………………………………………………………………………………………….…. 15-24

Details the form of notice to be given to the Obligor (750 ILCS 28/20(b)- p. 17-18), by the Court Clerk and the payer by the SDU, Clerk or other public officer (750 ILCS 28/20(g) – p. 18, 750 ILCS 28/30 – p. 20), or Obligee if the SDU, Clerk or other public officer is not Ordered to be involved in support payments supervision or providing notice to payer (750 ILCS 28/20(b)&(g) – p.18); details how to deal with delinquency and how to penalize payers who refuse to withhold……………………………………………………………………………………………………………………………………………………………………………… 15-24

10. “Illinois Public Aid Code” 305 ILCS 5, “Determination and Enforcement of Support Responsibility of Relatives” 305 ILCS 5/Article X………………………………………………………………………………………………………………………………………………………………………………………… 25-49

“The Department of HFS shall cause to be published and distributed publications reasonably calculated to inform the public that individuals who are not recipients or applicants for public aid under this Code are eligible for the child support enforcement services under this Article X. Such publications shall set forth the an explanation, in plain language, that the child support enforcement services program is independent of any public and aid program under the Code and that the receiving of child support enforcement services in no way implies that the person receiving such services is receiving public aid.”.…………………………………………………..………………………. 25-26

“Access to records” 305 ILCS 5/10-9.5……………………………………..………………………………………………………………………………………….. 32

Mandates that both parents have access to all records from the Clerk, SDU, and HFS, except if there is an order of protection hiding an address or phone number, then that Address or phone number may not be revealed……………………………………………………………….. 32

“Information to State Case Registry” 305 ILCS 5/10-10.5 …………………………………………………………………………………………………..… 37-39

Establishes a section in the Department of HFS, Public Aid Division that maintains all records of child support Payment and enforcement, and requires that both parents keep the Department informed of address changes……………………………………………… 37-39

“State Disbursement Unit” 305 ILCS 5/10-26…………………………………………………………………………………………………………………..….. 46-47

Establishes the SDU under the supervision of the Illinois HFS which is authorized to accept and disburse child support payments as well as to inform payers of withholding orders and penalties for failure to comply ………………………………………………………………… 46-47

“Notice of child support enforcement services” 305 ILCS 5/10-28………………………………………………………………………………………… 49

Provides that the SDU may notify the Obligor and payer of its services, as well as other parties……………………………………………….. 49

11. “Title III, Consumer Protection Act” Summary of authority and purpose of 15 USC § 1671 et seq. and 29 CFR (Code of Federal Regulations) Part 870 regarding maximum payments that may be withheld under federal law from Obligor……………………………………………………………………………. 50-51

12. 15 USC § 1671 et seq. Federal Wage Garnishment Law (Title III of the Consumer Protection Act) & corresponding 29 CFR Part 870 ………………………………………………………………………………………………………………………………………………………………………….……………. 51-56

Mandates that when child support is an issue that federal and State taxes have priority over child support or other debts. Provides that child support has priority over other debts except for taxes. Provides that if the Obligor is not living with and supporting a spouse or child that no more than a total of 60% of net wages may be withheld from a paycheck and no more than 65% of net wages may be withheld from a paycheck if Obligor is more than 12 weeks in arrears ………………………………………………………………………..…………….………….. 52-54

January 19, 2010

Massive federal memorandum of law proving IL Attorney General Lisa Madigan & judges lack immunity – liable for malicious prosecution


The civil rights suit against Lisa Madigan, Jorge Alonso, Kathleen Pantle, John Fearon, Patrick Murray, William Reibel, Patrick Keenan, Nicholas Cozzolino, Julia Lovett, Charlene Wells can be read at this link.

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

 

LINDA SHELTON v. ILLINOIS ATTORNEY GENERAL LISA MADIGAN et al.

Case Number 06 C 4259

before Honorable Judge Joan H. Lefkow        

MEMORANDUM OF LAW – JURISDICTION

 

                Defendant, Pro Se, respectfully presents to this Honorable Court the following memorandum of law concerning statutes and case law regarding total and complete lack of prosecutorial and judicial jurisdiction of sham prosecutors and judges in this case.

Judges and prosecutors have absolute immunity unless they totally lack subject-matter or personal jurisdiction in the case. A judge acting without subject-matter jurisdiction is acting without judicial authority. Cohens v. Virginia,  19 U.S. (6 Wheat) 264, 404, 5 L.Ed 257 (1821) The U.S. Supreme Court, in Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 1687 (1974) stated that "when a state officer acts under a state law in a manner violative of the Federal Constitution”, he "comes into conflict with the superior authority of that Constitution, and he is in that case stripped of his official or representative character and is subjected in his person to the consequences of his individual conduct. The State has no power to impart to him any immunity from responsibility to the supreme authority of the United States." [Emphasis supplied in original].

State officials may be sued as individuals in § 1983 actions. Brokaw v. Mercer County, 235 F.3d 1000 (7th Cir. 2000).

Plaintiff alleges that the prosecutors and judges sued in this case totally lacked subject matter jurisdiction and therefore pursued this prosecution and presided over this prosecution without any legal authority as individuals and trespassers of the Constitution of the United States. The sham prosecutors had no constitutional or statutory authority or jurisdiction to bring the Medicaid vendor fraud charge. The court had no subject matter jurisdiction because the indictment was legally insufficient and failed to state a charge, the charges were void as a violation of the Supremacy clause, the charges were void due to vagueness, and therefore there was a total and complete failure to charge a crime.

[The following are the subtitles in the document. See link for full document of 42 pages. A limited number of excerpts are included as follows:]

INDICTMENT LEGALLY INSUFFICIENT

SUBJECT MATTER JURISDICTION OF THE COURT

            A Judge may not claim jurisdiction by fiat. All orders or judgments issued by a judge in a court of limited jurisdiction must contain the findings of the court showing that the court has subject-matter jurisdiction, not allegations that the court has jurisdiction. “. . . in a special statutory proceeding an order must contain the jurisdictional findings prescribed by statute.” In re Jennings, 68 Ill.2d 125, 368 N.E.2d 864 (1977) A judge’s allegation that he has subject-matter jurisdiction is only an allegation. Lombard v. Elmore,  134 Ill.App.3d 898, 480 N.E.2d 1329 (1st Dist. 1985), Hill v. Daily, 28 Ill.App.3d 202, 204, 328 N.E.2d 142 (1975). Inspection of the record of the case is the controlling factor. If the record of the case does not support subject-matter jurisdiction, then the judge has acted without subject-matter jurisdiction.  “If it could not legally hear the matter upon the jurisdictional paper presented, its finding that it had the power can add nothing to its authority, – it had no authority to make that finding.” The People v. Brewer, 328 Ill. 472, 483 (1928) Without the specific finding of jurisdiction by the court in an order or judgment, the order or judgment does not comply with the law and is void. The finding can not be merely an unsupported allegation.

The law is well-settled that a void order or judgment is void even before reversal. “Courts are constituted by authority and they cannot go beyond that power delegated to them. If they act beyond that authority, and certainly in contravention of it, their judgments and orders are regarded as nullities. They are not voidable, but simply void, and this even prior to reversal.” Vallely v. Northern Fire & Marine Ins. Co.,  254 U.S. 348, 41 S.Ct. 116 (1920)

           A court has no jurisdiction where the public policy of the State of Illinois is violated [a crime must be alleged and state ALL the elements of the offense for the complaint to be valid], People v. Meyers, 158 Ill.2d 46, 51 (1994);  Martin-Tregona v. Roderick, 29 Ill.App.3d 553, 331 N.E.2d 100 (1st Dist. 1975).

            Courts may not attempt to resolve controversies which are not properly presented to them for, if they should do so, it would violate not only the precepts of Constitutional due process, but would fly in the face of the American tradition of adversary litigation. In Re Custody of Ayala, 344 Ill.3d 574, 800 N.E.2d 524, 534-35 (1st Dis. 2003); Ligon v. Williams, 264 Ill.App.3d 701, 637 N.E.2d 633, 639 (1st Dis. 1994); In re Estate of Rice, 77 Ill.App.3d 641, 656-57, 396 N.E.2d 298, 310 (1979)

            The Constitutional source of a circuit court’s jurisdiction does not carry with it a license to act in ways inconsistent with controlling statutory law. In re D.W. (People v. Lisa M.), 214 Ill.2d 289, 827 N.E.2d 466, 480 (Ill. 2005); In re Lawrence M., 172 Ill. 2d 523, 529, 670 N.E.2d 710, (Ill. 1996), citing In re M.M., 156 Ill. 2d 53, 75, 619 N.E.2d 702, (Ill. 1993) (Miller, C.J., concurring, joined by Bilandic, J.)

            A void judgment, order, or decree is one in which the rendering court lacked subject-matter jurisdiction, lacked personnel jurisdiction, lacked the inherent power or authority to make or enter or enforce the particular order involved. In re D.W. (People v. Lisa M.), 214 Ill.2d 289, 827 N.E.2d 466, 480 (Ill. 2005); People v. Thompson, 209 Ill.2d 19, 23, 805 N.E.2d 1200, 1203 (Ill. 2004); Sarkissian v. Chicago Board of Education, 201 Ill.2d 95, 103, 776 N.E.2d 195, (Ill. 2002), quoting Barnard v. Michael, 392 Ill. 130, 135, 63 N.E.2d 858 (1945).  A judge should not proceed in any action in which the judge does not have subject-matter jurisdiction, since she has no lawful authority to act. Any acts made without jurisdiction are void.

FRAUD UPON THE COURT BY PROSECUTOR OR COMPLAINANT

INVALIDATES ALL ORDERS OF COURT

            Fraud upon the court in obtaining a complaint, information, or indictment invalidates all orders of the court and causes the case to be null and void ab initio.  “Fraud upon the court” has been defined by the 7th Circuit Court of Appeals to “embrace that species of fraud which does, or attempts to, defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery can not perform in the usual manner its impartial task of adjudging cases that are presented for adjudication.” Kenner v. C.I.R., 387 F.3d 689 (1968); 7 Moore’s Federal Practice, 2d ed., p. 512, ¶ 60.23. The 7th Circuit further stated “a decision produced by fraud upon the court is not in essence a decision at all, and never becomes final.”

 It is also clear and well-settled Illinois law that any attempt to commit “fraud upon the court” vitiates the entire proceeding. People v. Sterling, 357 Ill. 354; 192 N.E. 229 (1934) (“The maxim that fraud vitiates every transaction into which it enters applies to judgments as well as to contracts and other transactions.”); Moore v. Sievers, 336 Ill. 316; 168 N.E. 259 (1929) (“The maxim that fraud vitiates every transaction into which it enters …”); In re Village of Willowbrook, 37 Ill.App.2d 393 (1962) (“It is axiomatic that fraud vitiates everything.”); Dunham v. Dunham, 57 Ill.App. 475 (1894), affirmed 162 Ill. 589 (1896); Skelly Oil Co. v. Universal Oil Products Co., 338 Ill.App. 79, 86 N.E.2d 875, 883-4 (1949); Stasel v. The American Home Security Corporation, 362 Ill. 350; 199 N.E. 798 (1935).
        Under Illinois and Federal law, when any officer of the court has committed “fraud upon the court”, the orders and judgment resulting from such fraud on that court are void, of no legal force or effect.

In this case the fraud consisted of the Illinois Attorney General fraudulently claiming to have the authority to prosecute vendor fraud without the at least minimal participation and knowledge of the States Attorney of Cook County, the State fraudulently presenting the law to the court and ignoring the Supremacy clause as well as the State Codes and Rules, the State fraudulently claiming Defendant had committed a crime, the State fraudulently claiming that the indictment was legally sufficient, the State fraudulently claiming that the statute of limitations had not run out, the State fraudulently agreeing with the court that Federal Medicaid Code was not applicable in this case of Medicaid vendor fraud,

JUDICIAL TRESPASSERS OF THE LAW

The Illinois Supreme Court has held that "if the magistrate has not such jurisdiction, then he and those who advise and act with him, or execute his process, are trespassers." Von Kettler et.al. v. Johnson, 57 Ill. 109 (1870)

Under Federal law which is applicable to all states, the U.S. Supreme Court stated that if a court is "without authority, its judgments and orders are regarded as nullities. They are not voidable, but simply void; and form no bar to a recovery sought, even prior to a reversal in opposition to them. They constitute no justification; and all persons concerned in executing such judgments or sentences, are considered, in law, as trespassers." Elliot v. Piersol, 1 Pet. 328, 340, 26 U.S. 328, 340 (1828)

The Illinois Supreme Court held that if a court "could not hear the matter upon the jurisdictional paper presented, its finding that it had the power can add nothing to its authority, - it had no authority to make that finding." The People v. Brewer, 128 Ill. 472, 483 (1928). The judges listed below had no legal authority (jurisdiction) to hear or rule on certain matters before them. They acted without any jurisdiction.

When judges act when they do not have jurisdiction to act, or they enforce a void order (an order issued by a judge without jurisdiction), they become trespassers of the law,and are engaged in treason (see below).

The Court in Yates v. Village of Hoffman Estates, Illinois, 209 F.Supp. 757 (N.D. Ill. 1962) held that "not every action by a judge is in exercise of his judicial function. ... it is not a judicial function for a judge to commit an intentional tort even though the tort occurs in the courthouse."

When a judge acts as a trespasser of the law, when a judge does not follow the law, the judge loses subject-matter jurisdiction and the judge’s orders are void, of no legal force or effect.

By law, a judge is a state officer. The judge then acts not as a judge, but as a private individual (in his person).

VIOLATION OF JUDGE’S OATH OF OFFICE

In Illinois, 705 ILCS 205/4 states "Every person admitted to practice as an attorney and counselor at law shall, before his name is entered upon the roll to be kept as hereinafter provided, take and subscribe an oath, substantially in the following form:

'I do solemnly swear (or affirm, as the case may be), that I will support the constitution of the United States and the constitution of the state of Illinois, and that I will faithfully discharge the duties of the office of attorney and counselor at law to the best of my ability.'"

In Illinois, a judge must take a second oath of office. Under 705 ILCS 35/2 states, in part, that "The several judges of the circuit courts of this State, before entering upon the duties of their office, shall take and subscribe the following oath or affirmation, which shall be filed in the office of the Secretary of State:

'I do solemnly swear (or affirm, as the case may be) that I will support the constitution of the United States, and the constitution of the State of Illinois, and that I will faithfully discharge the duties of judge of ______ court, according to the best of my ability.'"

Further, if the judge had enlisted in the U.S. military, then he has taken a third oath. Under Title 10 U.S.C. Section 502 the judge had subscribed to a lifetime oath, in pertinent part, as follows: "I, __________, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign or domestic; that I will bear true faith and allegiance to the same; ...".

The U.S. Supreme Court has stated that "No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it.". Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401 (1958).

Any judge who does not comply with his oath to the Constitution of the United States wars against that Constitution and engages in acts in violation of the Supreme Law of the Land. The judge is engaged in acts of treason.

Having taken at least two, if not three, oaths of office to support the Constitution of the United States, and the Constitution of the State of Illinois, any judge who has acted in violation of the Constitution is engaged in an act or acts of treason (see below).

If a judge does not fully comply with the Constitution, then his orders are void, In re Sawyer, 124 U.S. 200 (1888), he/she is without jurisdiction, and he/she has engaged in an act or acts of treason.

TREASON BY A JUDGE

Whenever a judge acts where he/she does not have jurisdiction to act, the judge is engaged in an act or acts of treason. U.S. v. Will, 449 U.S. 200, 216, 101 S.Ct. 471, 66 L.Ed.2d 392, 406 (1980); Cohens v. Virginia, 19 U.S. (6 Wheat) 264, 404, 5 L.Ed 257 (1821)

        The Supreme Court has also held that if a judge wars against the Constitution, or if he acts without jurisdiction, he has engaged in treason to the Constitution. If a judge acts after he has been automatically disqualified by law, then he is acting without jurisdiction, and that suggest that he is then engaging in criminal acts of treason, and may be engaged in extortion and the interference with interstate commerce.
        Courts have repeatedly ruled that judges have no immunity for their criminal acts. Since both treason and the interference with interstate commerce are criminal acts, no judge has immunity to engage in such acts.

ATTORNEY GENERAL WITHOUT ANY JURISDICTION TO

INDEPENDENTLY PROSECUTE VENDOR FRAUD

            Statutes and case law regarding constitutional and statutory authority of Illinois Attorney General do not allow the Illinois Attorney General to prosecute Medicaid Vendor Fraud without the invitation, consent, or participation of the Cook County State’s Attorney.

            The Illinois Constitution, Article V, Section 15 states: “The Attorney General shall be the legal officer of the State, and shall have the duties and powers that may be prescribed by law.”

     15 ILCS 205/4 (from Ch. 14, par. 4) states:

 
“The duties of the Attorney General shall be:

Fourth – To consult with and advise the several State’s Attorneys in matters relating to the duties of their office; and when, in his judgment, the interest of the people of the State requires it, he shall attend the trial of any party accused of crime, and assist in the prosecution…

Fifth – To investigate alleged violations of the statutes which the Attorney General has a duty to enforce and to conduct other investigations in connection with assisting in the prosecution of a criminal offense at the request of a State’s Attorney…”

            People v. Massarella, 53 Ill. App. 3d 774 (1977)” states:

“Although a court may request that the Attorney General act in place of the State’s Attorney if he is sick, absent, uninterested, or unable to attend, Ill. Rev. Stat. Ch. 14, para. 6 (1973), in the absence of such circumstances, even the court may not substitute one official for the other. Moreover, since the State’s Attorney has the duty to take charge and prosecute all criminal offenses in his county, the attorney general has no power to interfere while that duty is being honestly, intelligently, and carefully discharged.

            Nowhere in the Illinois Statutes does it state that an Attorney General may initiate

and pursue a prosecution, independent of the State’s attorney, in a category of crimes not specifically assigned to the Attorney General by Statute, but which falls under the duties of the State’s attorney according to the following Statute:

55 ILCS 5/3-9005(a) states:

“The duty of each State’s attorney shall be: (1) To commence and prosecute all actions, suits, indictments and prosecutions, civil and criminal, in the circuit court for his county…”

            The Illinois Supreme Court in People v. Massarella, 72 Ill.2d 531, 382 N.E.2d 262 (1978), held that the Illinois Attorney General has authority to prosecute any crime with acquiescence of and absent of objection by State’s Attorney. The key is that the state’s attorney had knowledge of the case and actively acquiesced or failed to make an objection. It also held that the Illinois Attorney General has authority to appear before the grand jury without prior approval of the State’s Attorney.

            In People v. Buffalo Confectionery Co., 78 Ill.2d 447, 36 Ill.Dec. 705, 401 N.E.2d

546 (1980) the Illinois Supreme Court, under common law, found that “duties of the Attorney General…include the initiation and prosecution of litigation on behalf of the people.” They state that this power “may be exercised concurrently with the power of the State’s Attorney to initiate and prosecute all actions, suits, indictments, and prosecutions in his county as conferred by statute.”

However, they also ruled that the State’s Attorney is the only official whom by statute can initiate and prosecute criminal charges in that county (Ill.Rev.Stat. 1973, ch. 14, § 5) and that the Illinois Constitution gives the Attorney General only the “duties and powers that may be prescribed by law.” They also ruled that the statutes prescribe the Attorney General’s duties to include to “attend…and assist in the prosecution.” (Ill.Rev.Stat.1973, ch. 14 § 4). Therefore, the Illinois Supreme Court concluded that:

As we have previously stated, the aforementioned duties and powers of the two officers are concurrent. Thus, the Attorney General lacks the power to take exclusive charge of the prosecution of those cases over which the State’s Attorney shares authority. (People v. Flynn (1941), 375 Ill. 366, 368, 31 N.E.2d 591.) However, where the statute so provides, the Attorney General has exclusive authority to institute and prosecute. See, e.g., Ill.Rev.Stat. 1977, ch. 120 par. 453.16 (Cigarette Tax Act prosecution); Ill.Rev.Stat. 1977, ch 38, par. 60-6 (Illinois Antitrust Act prosecution). [They explained that since Illinois Revenue Laws do NOT give the Illinois Attorney General exclusive authority to prosecute violation of revenue laws, the Illinois Attorney General may NOT prosecute these violations without the acquiescence of the State’s Attorney – in the revenue violation case in Buffalo Confectionery Co., the State’s Attorney was deemed to have acquiesced because he had been named to the grand jury, he had signed the indictments, he had attended the arraignments and he had filed certain pretrial discovery motions.)

They also found that an indictment is not invalidated because the Illinois Attorney General appears before the grand jury without approval of the State’s Attorney.

            The court then stated that there was no statute prescribing the duties of the Attorney General to include prosecuting revenue claims to the exclusion of the State’s Attorney. (People v. Buffalo Confectionery, Co., Ibid at page 549 [4].) Analogously, in the above captioned case, there is no state statute that grants the Attorney General exclusive authority to prosecute cases of CRIMINAL vendor fraud. The statutes do however, proscribe the duties of the Attorney General to include exclusive prosecution of CIVIL vendor fraud. (305 ILCS 5/8A-7I.)

            In Buffalo Confectionery, Co. (Ibid at page 548) the court noted that in that case the Assistant Attorney General (AAG) told the grand jury that he had obtained permission of a named Assistant State’s Attorney (ASA) to prosecute the case. The named ASA was present at the arraignment and filed a motion for pretrial discovery. The signature of the Cook County State’s Attorney appeared on the indictment. In the case at bar the AAG told the grand jury he had permission of the State’s Attorney, but does not name any such person. The ASA has not appeared at any hearing or before the grand jury in this case and has filed no motions. A signature stamp for SA Richard Divine on the indictment is the only documentation of involvement of the state’s attorney. This signature stamp does not verify that ANY person from the State’s Attorney’s office ever was consulted about this case, was shown evidence  about this case, decided what charges should be filed, and consented to the prosecution of this case by the Attorney General with exclusion of ANY involvement of the State’s Attorney in this case.

            In Buffalo Confectionery, Co. (Ibid at page 548 and 550) the court noted that there was an “obvious acquiescence by the State’s Attorney”, who was present at the arraignment and made a motion for pretrial discovery. In that case, it was clear that the State’s Attorney had considered the case and had decided to allow the AAG to proceed with prosecution without the ASA.

            In, Shelton v. Brown, 126 S.Ct. 51, 163 L.Ed.2d 472, certiorari denied by the United States Supreme Court and the Illinois Supreme Court, the Illinois Appellate Court agreed with Cook County State’s Attorney Dick Devine stated in his Illinois Appellate Court response brief page 12,

“It is clear that in Illinois, even the Attorney General, a constitutionally created prosecuting office, cannot invade the exclusive jurisdiction of the State’s Attorney to bring charges absent some evidence of abuse by the state’s attorney, or a conflict of interest.

            This issue in this case was whether or not citizens can file criminal complaints with the court clerk, without the approval or signature of police or the state’s attorney. The clerk had refused to accept criminal complaints by Shelton against corrupt State and County officials, including the State’s Attorney and police. The Appellate Court ruled that this refusal was proper and that citizens had no standing to file such complaints. The reasoning agreed with Cook County State’s Attorney Richard Divine who opined that the Attorney General has no statutory authority to indict and prosecute a person absent consent and participation of the State’s Attorney. This is binding precedent, so much so that any criminal prosecution of vendor fraud by the AG is null and void if the AG did not have the invitation, consent, and participation or acquiescence of the SA.

            This position was later re-iterated in People v Dosaky,  303 Ill.App.3d 986, 709 N.E.2d 635 Ill.App. 1 Dist., 1999, where the court ruled:

Attorney General lacks the power to take exclusive charge of the prosecution of those cases over which the State’s Attorney shares authority, but is authorized to consult with and advise the several State’s Attorneys and attend the trial of any party accused of a crime and assist in the prosecution.

            Illinois statutes and case law are explicit in that an Attorney General, in Illinois, can only initiate and prosecute a criminal offense if they are invited to do so by the states attorney and the states attorney participates at hearings and at trial, if the State’s Attorney has reviewed the facts of the case, taken some initial steps towards prosecution and acquiesces to the Illinois Attorney General prosecuting without the State’s Attorney’s participation, or if statutory authority is granted, as it is in CIVIL prosecution of vendor fraud (after approval by OIG-DHHS), in certain environmental crimes or in certain cases involving drug crimes  and other statutorily specified crimes.

            Medicaid vendor fraud is not such a special statutory category subject to independent and exclusive prosecution by the Attorney General and cannot be criminally prosecuted by the Illinois Attorney General without the written approval of the OIG-DHHS and the request, and at least initial participation of the States Attorney, after the State’s Attorney has evaluated the evidence and determined which offense with which offender should be charged.

            More recently, in People v. Knippenberg, 325 Ill.App.3d 251, 757 N.E.2d 667 Ill. App. 3 Dist., 2001, the Illinois Appellate Court ruled that the “Attorney General has exclusive authority to initiate and prosecute cases only when a statute so provides.”

            The court in People v. Mitchell, 1971, 131 Ill.App.2d 347, 268 N.E.2d 232 states:

It is the responsibility of State’s attorney of county to appraise evidence against accused and determine offense with which he should be charged.

The court in People v Rhodes, 1967, 38 Ill.2d 389, 231 N.E.2d 400 states:

 

State’s attorney as a representative of the people has responsibility of evaluating evidence and other pertinent factors and determining what offense can properly and should properly be charged.

Therefore, without a specific statute giving the Illinois Attorney General authority to exclusively prosecute criminal Medicaid vendor fraud, the Illinois Attorney General may not prosecute anyone including Defendant in case at bar if there has been no review of evidence by the State’s Attorney, no determination of the charges by the State’s Attorney, no initial participation by the State’s Attorney, and no acquiescence by the State’s Attorney.

            Without the authority of the Attorney General to prosecute the charges, the charges were not properly before the court and the case was void ab initio.

PROSECUTORS ACTING OUTSIDE THE SCOPE OF THEIR PROSECUTORIAL DUTIES DO NOT ENJOY ABSOLUTE IMMUNITY

            The Eight Circuit Court of Appeals in McGhee v. Pottawattamie Co., 547 F.3d 922 (2008) ruled that malicious and willful acts to fabricate  probable cause are substantive due process violations and subject the prosecutor who fabricated probable cause to liability under § 1983. This is because the United States Supreme Court in Burns v. Reed, 500 U.S. 478 (1991) took a functional approach as to the role of a prosecutor. If his acts were not intimately tied to the prosecution of the case, but were tied to the investigation, the prosecutor was not immune. This is consistent with Imbler v. Pachtman, 424 U.S. 409, 428, 430 (1971) where the court held that prosecutors are absolutely immune for acts intimately tied to the prosecution.

            In this case prosecutorial absolute immunity does not attach to a prosecutor who never had statutory or constitutional authority to prosecute the alleged crime; does not attach to an Illinois Police investigator prior to the charging of the crime; does not attach to Illinois Medicaid Office of Inspector General nurses serving as investigators; does not attach to Defendant AAG Murray who served as an investigator gathering evidence and later joined the prosecution team; and does not attach to an Attorney General or her staff who willingly and intentionally ignore Illinois Code and Rules as well as Federal Medicaid Code in order to bring false charges to whistle blowers, who are witnesses to their corruption, as is Defendant and the persons the Illinois Attorney General have prosecuted for Medicaid Vendor fraud using virtually identical fraudulent indictments, using the same investigator and witnesses (Inv. Reibel and Lovett), and fraudulently presenting the same false information about the law to the multiple grand juries. These persons have included Dr. Maisha Hamilton Bennett, Vernon Glass, M.S., and Naomi Jennings R.N., as well as Plaintiff.

            Therefore, the Illinois Attorney General, her staff, and her investigators are not immune from liability.

VOID FOR VAGUENESS DOCTRINE

            It is impermissible to prosecute a person, per due process requirements, for a crime if it relies on a vague, ambiguous, or conflicting legal requirement. As the Seventh Circuit Court recently emphasized in Gresham v. Peterson, 225 F.3d 899 (7th Cir. 2000), criminal penalties require a “high degree of clarity.” Id. at 908. A year earlier, the Seventh Circuit Court also held:

The vagueness doctrine holds that a person cannot be held liable for conduct he     could not reasonably have been expected to know was a violation of law.  It is well-settled that, as a matter of due process, a criminal statute that fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute, or is so indefinite that it encourages arbitrary and erratic arrests and convictions is void for vagueness. [United States v. Brierton, 165 F.3d 1133, 1138-39 (7th Cir. 1999) (as amended)]

            The Supreme Court has emphasized this same principle on numerous occasions. In United States v. Harriss, 347 U.S. 612 (1954), the Court held that:

The constitutional requirements of definiteness is violated by a criminal statute that fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute. The underlying principle is that no man shall be held criminally responsible for conduct which he could not reasonable understand to be proscribed. [Id.at 617 (citations omitted)]

See also Dowling v. United States, 473 U.S. 207, 229 (1985) (reversing a conviction because “Congress has not spoken with the requisite clarity” and affirming the “‘time-honored interpretive guideline’ that ‘ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity’”) (quoting Liparota v. United States, 471 U.S. 419, 427 (1985) and United States v. Hudson, 7 Cranch 32 (1812), inner quotations omitted.)

            Even if the Illinois regulation per the Administrative Code is upheld to deny reimbursement for these counseling services to the poor, all defendants in any similar vendor fraud cases indictments and prosecutions cannot be sustained amid the uncertainty and vagueness created by the federal-state conflict. Indictment and prosecution of any defendant under a similar theory to this case of substitute billing run afoul of the Seventh Circuit Court’s holdings in Gresham and Brierton, and the Supreme Court precedents following Harriss.

            “It is well known that ‘no one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes.’” United States v. Ward, 2001 U.S. Dist. LEXIS 15897 (E.D. Pa Sept. 5, 2001). *12 (quoting Lanzetta v. New Jersey,  306 U.S. 451 (1939)). The Ward court then detailed the rigorous threshold test necessary for criminalizing conduct in the regulatory arena:

Especially where a regulation subjects a private party to criminal sanctions, ‘a regulation cannot be construed to mean what an agency intended but did not           adequately express.’ Diamond Roofing Co., Inc. v OSHRC, 528 F.2d 645, 649 (5th Cir 1976). As Bethlehem Steel made clear, ‘if the language is faulty, the Secretary has the means and obligation to amend.’ [Ward, 2001 U.S. Dist. LEXIS 15897, *19 - *19 (quoting Bethlehem Steel v. Occupational Safety and Health Review Comm’n, 573 F.2d 157, 161 (3rd Cir. 1978)).]

            The Ward Court cited a legion of precedents requiring dismissal of the indictment, which likewise require dismissal of the indictment in the vendor fraud case against Plaintiffs. “[I]t is our view that courts should not defer to an agency’s informal interpretation of an ambiguous statute or regulation in a criminal case.” Ward, 2001 U.S. Dist. LEXIS 15897, *22. See United States v. McGoff, 831 F.2d 1071, 1077 (D.C. Cir. 1987),

In the criminal context, courts have traditionally required greater clarity in draftsmanship than in civil contexts, commensurate with the bedrock principle that in a free country citizens who are potentially subject to criminal sanctions should have clear notice of the behavior that may cause sanctions to be visited upon them.[;]

See also United States v. Apex Oil Co., Inc.,  132 F.3d 1287 (9th Cir. 1997) (affirming dismissal of indictment because the conduct was not clearly forbidden by the regulations); United States v. Plaza Health Laboratories, Inc., 3 F.3d 643, 649 (2nd Cir. 1993), cert. denied, 512 U.S. 1245 (1994) (in criminal cases, “a court will not be persuaded by cases urging broad interpretation of a regulation in the civil-penalty context”). See also, United States v. Whiteside, 2002 U.S. App. LEXIS 4610, *18 – *19 (11th Cir. Mar. 22, 2002) (“The government cannot meet its burden in this case because, despite its contention to the contrary, no Medicare regulation, administrative ruling, or judicial decision exists that clearly “proscribes defendants’ conduct.)

            The indictments in the vendor fraud case against defendant and all defendants in similar cases fail to cite violation of any binding federal rule. Accordingly, the indictments directly contravene Supreme Court teaching in Christensen v. Harris County, 529 U.S. 576 (2000), and over 150 decisions that have relied on it. Defendant and similarly situated defendants in other cases administered much-needed services to the poor under the federally funded Medicaid program, in full compliance with all applicable federal laws and formal regulations. It is contrary to Christensen and its progeny to sustain Defendant’s and similarly situated defendants’ indictments for conduct that did not violate any clear and binding rules.

            The Medicaid program has been recognized to constitute one of the most complex and intractable regulatory systems in our country. See Herweg v. Ray, 455 U.S. 265 (1982) Burger, J., dissenting) (observing that ‘the Medicaid program is a morass of bureaucratic complexity.”) Medicaid generally provides the lowest level of reimbursement, and requires treatment of the most ill and difficult patients. Physicians who participate in the low-paying Medicaid program should not be imprisoned based on a game of “gotcha”. See United States v. Harris, 942 F.2d at 1132 (“If the obligation . . . is sufficiently in doubt, willfulness is impossible as a matter of law, and the ‘defendant’s actual intent is irrelevant.’”) (citing Garber, 607 F.2d at 98, quoting United States v. Critzer, 498 F.2d 1160, 1162 (4th Cir. 1974)). Indictment and/or conviction of Medicaid physicians based on regulatory gamesmanship is both unjust to defendants and catastrophic to the needy patients, because it drives small practitioners out of Medicaid.  Courts are increasingly dismissing these types of fraud charges against physicians, and dismissal is appropriate in the vendor fraud case against Plaintiffs. See, e.g State v. Vainio, 2001 MT 220, 35 P.3d 948 (Mont. 2001) (reversing a Medicaid conviction because it was based on an improperly promulgated state regulation); Siddiqi v. United States, 98 F.3d 1427, 1429 (2nd Cir. 1996) (reversing Medicare fraud convictions for “claim[s] for services rendered by somebody else”); id. at 1438 (“It takes no great flash of genius to conclude that something is wrong somewhere.”)

            The vendor fraud case against Defendant and similarly situated defendants is void for vagueness, similar to the Siddiqu and the Vainio cases as explained in the precedent setting and controlling cases such as Harriss, Gresham, and Brierton. “Void for vagueness” means criminal responsibility should not attach where one could not reasonably understand that his contemplated conduct is proscribed. United States v. Chandler, 66 F. 3d 1460 (8th Cir. 1995) The vendor fraud case against Defendant and similarly situated defendants clearly falls under the void for vagueness doctrine and should have been dismissed ab initio. Therefore, the trial court never had subject matter jurisdiction.

SUBSTITUTE BILLING NOT A CRIME

Alleged vendor fraud crime outside of statutory authority and

barred by Supremacy Clause

            This is not a matter of an unconstitutional statute. There is no statute or administrative rule in Illinois barring this allegedly criminal act of substitute billing in the case at bar as fraudulently charged. This act is specifically authorized by the federal Medicaid Code, Federal Code of Regulations, State Statutes, and State Administrative Code. Therefore, this case is a matter of enforcing federal code, which is being violated by this fraudulent prosecution, and not a matter of constitutionality of a state statute.

FEDERAL LAW REQUIRES FUNDING OF NON-PHYSICIAN EMPLOYEES OF

PHYSICIANS SERVICES TO THE POOR

 SUMMARY

            In summary, a prosecutor who acts without State or Constitutional authority as a prosecutor, who then generates legally insufficient indictments, using illegally impaneled grand juries, to charge a person with a crime despite the Supremacy clause providing that the act is NOT a crime under federal law, and the fact that the charge is void due to vagueness has failed to state a claim and is not properly before the trial court. The sham prosecutor, her assistants, and their investigators are acting as individuals without legal authority and are all personally liable under § 1983 and state tort law.

            All judge who act on such an indictment, despite the fact it was not properly before the court, especially when they ignore extensive motions by the defendant about these issues, are committing acts of treason and are grossly violating their oaths of office as well as the United States and Illinois Constitutions.

            Therefore, none of the Defendants in this case are immune from liability as prosecutors or judges.

Respectfully submitted by:

__________________________                               

Linda L. Shelton, Pro Se                                           


[1] People v. Foxall, 283 Ill. App. 3d 724 (1996): The defendant was charged by information with disorderly conduct based on transmitting a false report of sexual misconduct to the Department of Children and Family Services. Foxall, 283 Ill. App. 3d at 727. The reviewing court held that the information was insufficient because it did not specify the contents of the false report, and basic fairness required the State to identify the allegedly false statements. Foxall, 283 Ill. App. 3d at 727.

Davis: The reviewing court found that the indictment was insufficient when the defendant was charged with official misconduct based on “disseminat[ing] information,” but the indictment did not identify the contents of the alleged communication. Davis, 281 Ill. App. 3d at 990.

People v. Stoudt, 198 Ill. App. 3d 124 (1990): The reviewing court held that a complaint that charged defendant with resisting a police officer was insufficient when the complaint stated that the officer was engaged in the execution of his official duties but did not identify the authorized act the officer was performing. Stoudt, 198 Ill. App. 3d at 128.

People v. Leach, 279 N.E.2d 450 (Ill.App.1st, 1972): The defendant in Leach was charged with resisting or obstructing a police officer. The charging instrument was insufficient because it only stated that the defendant committed the above offense by knowingly obstructing a police officer. Id. at 453-454

United States v. Bobo, 344 F.3d 1076 (11th Cir, 2003): The indictment was insufficient because it failed to specify the nature of the scheme used by the defendant to defraud the State of Alabama and the United States.

United States v. Nance, 533 F.2d 699 (D.C. Cir., 1976): The indictment was insufficient because it failed to apprise the defendant of the nature of the false pretenses by which the defendant gained unauthorized control over money.

People v. Gerdes, 527 N.E.2d 1310 (Ill.App.5th, 1988): The defendant in Gerdes was charged with obstructing justice by giving false information to the police. The charging instrument did not specify the nature of the allegedly false information. The defendant was therefore left to wonder which of many statements to the police the basis for the charge against him was, so the appellate court dismissed the indictment. Id. 

June 10, 2009

Sample Appeal of Wrongful Conviction


I have now filed my Illinois Appellate Court appeal of my wrongful conviction for aggravated battery of a correctional officer. Sgt. Anthony Salemi had attacked me, falsified his records, committed perjury, and with the help of Nifong-like prosecutorial misconduct of ASAs Andrew Dalkin and John Maher and extreme judicial misconduct by Judge Joseph Kazmierski, I was convicted and sentenced to two years in the Illinois Dept. of Corrections plus one year of mandatory supervised release.

I served the minimum 6 months and the full supervised release and was not able to appeal due to illegal conduct of staff at the Cook County Dept. of Corrections and Illinois Dept. of Corrections where I was held and due to damage to my health requiring several hospitalizations within the last year since my release on March 27, 2008 from prison. The damage to my health was a result of torture at the CCDOC and IDOC by ignorant, sociopathic, poorly trained officers and incompetent medical staff (with the exception of Dr. Baker). The social workers even told me they purposely were told not to allow me to use the law library. My medications were withheld in illegal acts of willful indifference to medical needs.

I have informed the FBI and asked them to prosecute for felony conspiracy to violate rights under color of law, etc.

I will never forget the comment to me at CCDOC by Sgt. Molevetti “We got you on one made charge so I can write anything I want and get you on another.” Officer Levy said the same thing. It appears that falsification of records is common practice at CCDOC. We need to take him down and jail him too!

As soon as I win this one, the mother of all civil rights suits will be filed against these creeps. Any officer who has aided and abetted this wrongful conviction is a target in my book to be arrested, removed as an officer, and jailed for felony conspiracy to violate rights under color of law under federal law.

I strongly suggest that ANY officer or CCDOC staff who has knowledge about this wrongful conviction march over to the FBI on Roosevelt Road, ask for a duty agent and confess and turn in the corupt officers and sergeants. The time is NOW to clean up the CCDOC and get rid of decayed and dead wood! If you don’t turn them in, you are part of the corruption and are condoning it! I have no sympathy for you!

You can read my appeal and the evidence of innocence and Sgt. Salemi’s guilt along with the incomptence of Inv. Sofus, as well as the prosecutorial misconduct at: Appeal-of-Wrongful-Conviction-Battery-Shelton-Illinois-2009

Note that the appeal exceeds the 50 pages allowed by the Appellate Court. I have written a motion for leave to file this 82 page appeal due to the extreme prosecutorial and judicial misconduct resulting in 18 different issues justifying appeal and overturning verdict.

Note that the appendix has case law on spoilation of or failure to produce critical evidence, self-representation, and insufficient indictments – all what I have already posted on this site elsewhere.

May 18, 2009

Black Line Trial Call – Judge Maddux’s Illegal Scheme to Quash Suits


Judge Maddux Violates Constitutional Rights – Dismisses Torts with Dual Court Assignment for Same Case – hidden “Black Line Trial Call” WITHOUT Notice to Litigant – RICO Violation?

 In the Circuit Court of Cook County Law Division Presiding Judge William D. Maddux has devised a system that has been in place for several years that serves to quash cases primarily of pro se and indigent plaintiffs  by “dismissing for want of prosecution” (“DWP”) without notice in violation of Illinois Supreme Court Rules. Judge Maddux appears to suffer from arrogance, a controlling obsessive-compulsive character where he must micro-manage as many aspects of all cases in his division as possible, narcissism in that he must be involved in every case and grandiose delusions in that he must boost his self-esteem by controlling others in all cases – even to the point of denying civil rights and the law.

 This scheme involves assigning each case to two parallel courts. The first is the motion judge and then trial judge. The second is the “Black Line Trial Call.” Litigants are not informed or given notice about the “Black Line Trial Call.”  The second parallel court hearings are used to cause DWP without notice.

 This scheme that he devised purportedly to move cases along faster, but which actually denies the First Amendment right to redress of grievances, amounts to a RICO violation. Judge Maddux is enriching the courts and clerk’s office or County of Cook by taking money for filing fees and then illegally quashing the cases by DWP in clear violation of law. This makes the Cook County Circuit Court Law Division and the Cook County Circuit Court Clerk’s Office a criminal enterprise used by Judge Maddux, with approval of Chief Judge Timothy Evans and Cook County Circuit Court Clerk Dorothy Brown, essentially influencing this criminal enterprise by influencing through racketeering the outcome of every case in the Law Division. The crimes are fraud in that the Circuit Court appears to permit a person redress of grievances and accepts their filing fee, but instead DWP without notice in an unconstitutional scheme. This is also felony violation of civil rights under color of law and conspiracy to violate civil rights under color of law. As the mails are used in this scheme to inform the plaintiffs that their cases have been dismissed this is also mail fraud. Finally, this is also theft of honest services, as courts are supposed to uphold the constitution, not purposely violate it.

 The scheme or conspiracy to wholesale deny civil rights under color of law goes as follows:

 The plaintiff files a lawsuit (tort) for damages and pays the filing fee thinking that they will obtain redress of grievances and have a just chance to present their case to court and be made whole by awarding of damages.

 The case is assigned by a random system to a motion judge. If it finishes all pre-trial matters, it is then assigned to a different judge for trial. (The ABA recently advised that a case should stay with the same judge from pre-trial through trial as a matter of best practice. The present system is a mess as the motion judges are often changed in the middle of cases and then the judge is totally unfamiliar with the previous motion judge’s rulings and time is wasted and rulings become unfair and confusing because of ignorance of the judge. The trial judges are then also unable to make appropriate rulings through ignorance of previous rulings and this impairs a fair hearing.)

 The case is also assigned to an 18 month or 24 month pre-trial “discovery” schedule for purposes of the “Black Line Call.” The plaintiff is NEVER told that the “Black Line Call” system exists and only find out about it by word of mouth, if they read the Circuit Court of Cook County web site in detail, or if they read the Cook County Circuit Court Clerk web site in detail, which contains a link to the Court web site and contains the “Black Line Case Docket”.  The majority of pro se litigants who are novices therefore do not know about this second court “system,” to which their case is also assigned.

 When the case reaches the 18 mo or 24 mo discovery schedule date, it is assigned to the last number on the “Black Line Call”, a list of cases. The cases are heard about thirty a day without any notice except publication in the Chicago Daily Law Bulletin and the case being listed on the Court Clerk’s “Black Line” computer docket. A specific date is NOT given for the hearing, but rather the litigants must guess at the date that the case will move from the end of the line of about 300 cases to the first thirty cases (“above the Black Line”), or read the Chicago Daily Law Bulletin or court computer docket every day after 4:00 p.m.

 The plaintiff must appear on that date at 9:00 a.m. or the case is DWP. No continuances of any kind are allowed. No accommodations are made for the disabled or pro se litigants of any kind. Then when the case is DWP, the plaintiff receives a postcard in the mail from the court that their case has been dismissed and the motion judge will refuse to hear it any or receive any motions. The litigant will have to make a motion to vacate the DWP before Judge Maddux within 30 days or make a 1401 petition before Judge Maddux for the case to be re-instated. Judge Maddux refuses to re-instate cases for unknown reasons.

 For Judge Maddux’s Law Division rules and orders related to the “Black Line Trial Call: see:

 http://www.cookcountycourt.org/divisions/index.html

 Illinois Supreme Court Rules 104 and 105 require proper notice be given to a litigant before a motion, including a motion of the court under the “Black Line Trial System,” can be heard by the court. Therefore, since all orders for DWP by Judge Maddux or his designee judge were done without proper notice to the litigant, these orders are all null and void. The court fails to make a motion or affidavit or order to hear the case in a hearing before a judge other than the judge assigned for the case and fails to specify that this hearing is ordered by the court, for the purpose of setting a trial date and ordering discovery be finished or closed or extended. A case cannot constitutionally be DWP for failure to appear at a “Black Line” hearing when the plaintiff was not legally notified of the hearing per the following Supreme Court Rules and Illinois Statutes:

 “Rule 104. Service of Pleadings and Other Papers; Filing

(a) Delivery of Copy of Complaint. Every copy of a summons used in making service shall have attached thereto a copy of the complaint, which shall be furnished by plaintiff.

(b) Filing of Papers and Proof of Service. Pleadings subsequent to the complaint, written motions, and other papers required to be filed shall be filed with the clerk with a certificate of counsel or other proof that copies have been served on all parties who have appeared and have not theretofore been found by the court to be in default for failure to plead.

(c) Excusing Service. For good cause shown on ex parte application, the court or any judge thereof may excuse the delivery or service of any complaint, pleading, or written motion or part thereof on any party, but the attorney filing it shall furnish a copy promptly and without charge to any party requesting it.

(d) Failure to Serve Copies. Failure to deliver or serve copies as required by this rule does not in any way impair the jurisdiction of the court over the person of any party, but the aggrieved party may obtain a copy from the clerk and the court shall order the offending party to reimburse the aggrieved party for the expense thereof.

Rule 105. Additional Relief Against Parties in Default–Notice

(a) Notice–Form and Contents. If new or additional relief, whether by amendment, counterclaim, or otherwise, is sought against a party not entitled to notice under Rule 104, notice shall be given him as herein provided. The notice shall be captioned with the case name and number and shall be directed to the party. It shall state that a pleading seeking new or additional relief against him has been filed and that a judgment by default may be taken against him for the new or additional relief unless he files an answer or otherwise files an appearance in the office of the clerk of the court within 30 days after service, receipt by certified or registered mail, or the first publication of the notice, as the case may be, exclusive of the day of service, receipt or first publication. Except in case of publication, a copy of the new or amended pleading shall be attached to the notice, unless excused by the court for good cause shown on ex parte application.

(b) Service. The notice may be served by any of the following methods:

(1) By any method provided by law for service of summons, either within or without this State. Service may be made by an officer or by any person over 18 years of age not a party to the action. Proof of service by an officer may be made by return as in the case of a summons. Otherwise proof of service shall be made by affidavit of the server, stating the time, manner, and place of service. The court may consider the affidavit and any other competent proofs in determining whether service has been properly made.

(2) By prepaid certified or registered mail addressed to the party, return receipt requested, showing to whom delivered and the date and address of delivery. The notice shall be sent “restricted delivery” when service is directed to a natural person. Service is not complete until the notice is received by the defendant, and the registry receipt is prima facie evidence thereof.

(3) By publication, upon the filing of an affidavit as required for publication of notice of pendency of the action in the manner of but limited to the cases provided for, and with like effect as, publication of notice of pendency of the action.”

This “Black Line Trial Call” invented and administrated by Judge Maddux in violation of Supreme Court Rules and due process therefore amounts simply to a scheme to quash as many cases as possible without due process by having a dual court system, of which the litigant is not informed about, nor is given notice of hearings. In my opinion this amounts to a RICO violation, in that Judge Maddux with the agreement of Chief Judge Evans, Clerk Dorothy Brown, and Sheriff Dart use the Circuit Court of Cook County and its arm the Clerk’s office as a criminal enterprise to enrich the Clerk’s Office and the Sheriff’s Office by violating laws and depriving pro se, primarily indigent plaintiffs of their constitutional right to redress of grievances and due process. The laws violated are:

1)                  Constitutional right to redress of grievances;

2)                  Due Process under the Fifth and Fourteenth Amendments;

3)                  Violation of Civil Rights Under Color of Law;

4)                  Conspiracy to Violate Civil Rights Under Color of Law;

5)                  Theft of Honest Services by Judge Maddux and Clerk Dorothy Brown (Acting as a judge yet denying due process and violating constitutional rights, collecting fees knowing that due process will be denied and mailing a postcard verifying that due process was denied);

6)                  Obstruction of Justice (interfering with First Amendment rights to redress of grievances);

7)                  Mail Fraud (mailing a postcard to litigant that the case is dismissed [yet the dismissal is void as due process is denied]);

8)                  Extortion (of original filing fee and fees for service to Sheriff with no intention to actually give plaintiff due process);

9)                  Extorting money by denying due process in order to enrich a criminal enterprise including the Circuit Court of Cook County through the Office of the Clerk of the Court – filing fees; and through the Office of the Cook County Sheriff – service fees (all fees fraudulently obtained as the “Black Line Trial Call” system or scheme sets up the majority of pro se plaintiffs to have their cases dismissed without notice or due process).

The FBI and United States Attorney should be investigating this, should prosecute the offenders, and should restore constitutional rights to redress of grievances and due process to the citizens of Cook County.

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