The following is an example of a motion for supervisory order.

To file it, if the court is in session you send the original and 9 copies to the IL S Ct in Springfield at their office. If they are not in session and you are in Chicago, you file an original and five copies in the Chicago office of the IL S Ct and then send one copy to each of the four justices outside of Chicago – their local offices.

Included must be notice of service to the judge (who is the respondent) and to the other parties, an order with a place for the judges to circle either “denied” or “granted” and a place to sign it., a verified statement that you are complying with the 20 page limit to the pleading, a cover for the appendix, an affidavit that the documents in the appendix are true and accurate copies, a table of contents with page numbers for the appendix, an affidavit if you are pro se (verified statement if you are an attorney) that you have served notice and the motion to the parties and judges, and a check for $25 dollars.  See IL S Ct rules 383,341-343.

The supporting record must be authenticated by the trial court clerk or verified by affidavit by attorney or  pro se counsel as required in IL S Ct rule
328

The sample IL S Ct motion for supervisory order is here.

The “argument” either orally or in writing in a pleading such as a motion or petition is the manner in which a litigant can win or lose in court. This may seem simple but it is not. There is a lot of confusion and most people think that if a law says something, it must be followed. This is a delusion and is NOT how the law works in the United States.

The court does not care about the truth or facts. It cares about who convinces them that their argument is correct or the best. It comes down to whoever shouted loud enough, did the best magic act, used the best smoke and mirrors, or denigrated the other side enough so that the judge didn’t listen to them wins.

First understand that we are the UNITED States of America. There is a concept known as state’s rights.

Federal law DOES NOT always trump state law. If you have a federal right that is CLEARLY delineated by federal law or the constitution such as the right in a CRIMINAL trial to have a jury decide your fate, then any state law depriving you of that right is unconstitutional and is trumped by your federal right.

However, federal rights such as the constitutional Fifth and Fourteenth Amendment Due Process right does not always trump state law. For example, if there is a state law that says you have to stop at a stoplight, the federal due process constitutional right is NOT violated if someone doesn’t stop at the stoplight, hits you and the police fail to give them a ticket. There is no federal law that says a person has to stop at a stoplight and no federal law or right that says police must give someone who violates the law a ticket.

Therefore DO NOT PRESUME YOUR FEDERAL DUE PROCESS RIGHTS ARE VIOLATED WHEN THE STATE COURT OR POLICE DO NOT FOLLOW STATE LAW.

Next remember that EVERY argument MUST be backed-up by case law that is on point supporting that argument. You should Shephardize your cases. That means look in the “ Shephard’s Citations” volumes and see if there is a more recent case that overturns or that supports the decision in the case you are looking up. This is how you verify the validity of the authority (case law) that you quote. If you don’t know how to use Shephard’s Citations ask a law librarian to teach you.

If you state an argument but fail to develop it and back it up with case law, the court can THROW OUT that argument for “failure to develop it.”

If you have an argument where there is NO case law available and this is the FIRST time it is being argued in any court, then this is an ” issue of first impression .” You still have to develop it or the court may throw it out for failure to develop it. You need to review the historical “common law” and then explain the “line of reasoning” including quoting any cases that have a similar line of reasoning although about a different issue. If you say: “I am right because the statute says this,” you will likely lose because you did not develop your argument.

Laymen think that if a statute says an official “shall” do X, then that doing X is mandatory. You are wrong. The Illinois Supreme Court has ruled that sometimes the word “shall” is interpreted as a discretionary duty. This is what I call “perverted logic.” Then you have to explain, while quoting case law, why the word “shall” in the argument you use that claims that “shall” means the action is mandatory, really is mandatory. In other words you have to explain the issue of “statutory construction” or the line of reasoning from case law that explains when the word “shall” is mandatory and when it is discretionary. Then you have to explain citing case law on the line of argument from other cases that you are using why this line of argument applies to your case. “Statutory construction” is the issue of how you interpret a legal statute written by the legislature. This includes the issues of “legislative intent” which you can find by reading the “legislative record” (the verbatim copy of the arguments of the legislators when the bill was debated before passage). It also includes the issue of “clear language interpretation” where the courts have held in case law that if the language is clear then it should be interpreted clearly (which is open to interpretation as illustrated in above discussion of the word “shall”). This also includes the fact that if two statutes are conflicting and contradictory, then case law says that the statute that is more specific controls.

Another difficult concept is the fact that criminal law and civil law have DIFFERENT procedures. Look at the Illinois code of civil procedure v. the Illinois Code of Criminal Procedure. Therefore case law concerning civil procedure may not translate into precedent for criminal procedure. The same applies for federal v state laws, codes and rules as well as appellate v. local trial rules and procedures.

Stare decisis is the principle in law that previous appellate or supreme court decisions are controlling and must be followed, especially if they are long-standing.

I am developing this article, so the above is introductory, but you get my point. See the code of civil procedure section on “pleadings” posted to the right under “pages” on this blog and read it carefully.

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

The IDPA, CSEU also manages the State Disbursement Unit which collects and disburses child support payments through guarnishment of wages.

If you are not making payments through the SDU, then you can still apply to be heard by the Adm Law Court by filling out this application – click here.

The trial court does not  have the jurisdiction to hear motions for enforcement of child  support orders or motions for change in child support, until AFTER the Adm Law Court makes a recommendation. Then the trial court will rubber stamp the recommendation if the parents agree or will hold hearings and make decisions if the parents disagree on the payments.

The Domestic Relations Courts in Cook County have been for two decades ILLEGALLY hearing these motions instead of waiting for a recommendation by the Adm Law courts!  ALL SHOULD PROTEST BY APPLYING TO THE CHILD SUPPORT ENFORCEMENT SERVICES DIVISION WITH THIS APPLICATION AND BY MAKING OBJECTIONS IN THE TRIAL COURTS.

WE ALSO SUGGEST YOU COPY THIS COMPENDIUM OF THE RELATIVE FEDERAL AND STATE LAWS THAT IS SUMMARIZED I THE TABLE OF CONTENTS IN OUR BIG DIVORCE BOOK HERE AND PRESENT IT TO YOUR TRIAL COURT AS A “MEMORANDUM OF LAW”.

Make sure to read this booklet by the federal government that is a comprehensive guide to all issues in child support here.

GOOD LUCK!

Supreme Court Summaries
Opinions filed October 27, 2011

In re Dar. C., 2011 IL 111083
Appellate citation: No. 4-10-0267 (unpublished order under Supreme Court Rule 23).

CHIEF JUSTICE KILBRIDE delivered the judgment of the court, with opinion.
Justices Thomas, Garman, and Karmeier concurred in the judgment and opinion.
Justice Burke specially concurred, with opinion, joined by Justice Freeman.
Justice Theis specially concurred, with opinion.

In this McLean County case, a father whose parental rights had been terminated on March 7, 2008, challenged that result for lack of personal jurisdiction. Under the Code of Civil Procedure, he filed a petition for relief from that judgment, claiming that, under the Juvenile Court Act of 1987, it was improper to serve him only by publication in Bloomington after attempts at personal service or service by certified mail were unsuccessful. Statute requires a “diligent inquiry” before a parent may be served by publication. The failed attempts had been based on potential addresses obtained through the use of computerized database searches. The State simply mailed letters but made no visits to the addresses to seek further information. The appellate court affirmed the termination order.
The termination took place in proceedings that began pursuant to 2006 charges that the respondent father’s two minor children, who were living with their mother, were neglected. It was known that the mother was receiving Social Security benefits, but no effort was made to determine their source or to obtain a release of Social Security information. Later that same year, a separate proceeding to collect child support from the father was initiated by a different attorney in the same prosecutor’s office, with the complaint being signed by a caseworker in the termination proceeding. In the collection matter, the father’s birth date, Social Security number and physical description were listed. The State indicated that it had located the respondent at a treatment center in Lake County and obtained his consent for entry of a child support order using the funds from his social security disability benefits.
In this decision, the supreme court said that “the State’s ability to obtain respondent’s contact information in the separate child support action casts significant doubt on the diligence of the State’s inquiry into respondent’s location in the termination proceedings” and that “relying on a computerized database search of a parent’s name while ignoring, or otherwise not investigating, other potentially useful information, does not constitute a diligent inquiry.” These circumstances indicate that there was a lack of personal jurisdiction over the father in attempting to serve him by publication on these facts. The appellate court was reversed and the termination of the father’s rights concerning his children was vacated as void. The cause was remanded to the circuit court for further proceedings.

ILLINOIS

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

Article about juror power to just say no.

Law  professor’s opinion and detailed long instruction manual for jurors.

I believe that jurors should use their powers more often as a message to our  corrupt police, prosecutors, politicians, and judges in Cook County, IL.

IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS
COUNTY DEPARTMENT – LAW DIVISION
JUDGE RAYMOND W. MITCHELL
STANDING ORDER
APRIL 7, 2011
This Standing Order supercedes all prior Standing Orders regarding pending cases assigned to Calendar S of the Law Division in Room 2004, Richard J. Daley Center, Chicago. All prior Standing Orders of this Calendar are hereby vacated. The purpose of this Standing Order is to establish a general pre-trial and trial procedure intended to aid in the timely resolution of matters assigned to this calendar. Where special circumstances exist that warrant modification, those cases will be handled according to the specific needs presented.
It is the intention of the court that all court personnel, including the judge, be of assistance to all attorneys and all litigants who have business before the court. If you have questions concerning the requirements of this order, the scheduling of matters before the court, or other matters with which we are permitted to be of assistance, please ask.
A. CASE MANAGEMENT CONFERENCES
Cases will be set for case management conferences from time to time by order of the court. Case management conferences may relate to progression of a case toward trial, settlement, mediation or other ultimate disposition.
1. INITIAL CASE MANAGEMENT CONFERENCE
a. Newly Filed Cases
Approximately ninety (90) days after the filing of each case assigned to this court’s calendar (Calendar S), the clerk of the court will notify parties’ counsel or pro se litigants who appeared of an initial case management conference, which is held approximately one hundred and twenty (120) days after the initial filing date. The notice will specify the date and time of the hearing. Notice of the initial case management conference is also published in the Chicago Daily Law Bulletin.
At the initial case management conference, counsel familiar with the case, or pro se litigants, must appear and must be prepared to inform the court of the status of service of process upon all named parties, including all efforts that have been undertaken to locate and serve all unserved defendants, the status of the pleadings and the status of ongoing discovery. The plaintiff’s attorney may move for the appointment of a special process server to be heard at the time of the initial case management conference, or counsel may otherwise file a routine motion for appointment of a special process server well in advance of the initial case management conference. 2
If it appears to the court that one or more defendants have not been served, the court may continue the case for an additional case management conference at which time the plaintiff or plaintiff’s counsel shall be prepared to report on all steps that have been taken to serve all unserved defendants. If it should become apparent to the court that the plaintiff is not exercising reasonable diligence to effectuate service of process, the court may invoke the provisions of Supreme Court Rule (S. Ct. R.) 103(b) on the court’s own motion at the case management conference.
b. Pending Cases Assigned to Individual Commercial Calendar
The plaintiff shall prepare a Pre-Trial Memorandum (Circuit Court Form CCL-56, which can be found in Room 801 of the Daley Center), and circulate that memorandum to all other parties at least two court days prior to the case’s initial case management conference. Plaintiff shall present the memorandum to the court at the initial case management conference.
Counsel familiar with the case must appear for all parties represented by counsel. Pro se litigants must also appear. At the initial case management conference before this calendar, all parties must be prepared to inform the court of all contemplated discovery, both written and oral, and the length of time that each party estimates will be necessary for the completion of discovery.
The parties should also be prepared to report to the court the status of the pleadings, and any pending or contemplated pre-trial motions and other matters mandated by S. Ct. R. 218.
At the parties’ first case management conference, the court will commence to supervise the discovery process, including the entry of orders compelling compliance with outstanding discovery requests.
2. REGULAR CASE MANAGEMENT CONFERENCE CALL
Cases will be continued for further case management conferences to 1) afford the court an opportunity to monitor the status of all cases, 2) enable the court to enter such orders as it deems appropriate, and 3) facilitate proper discovery and pre-trial motion practice with a view to expeditiously and reasonably get cases ready for trial or for other disposition.
Repeated failure to attend scheduled case management conferences may result in the entry of an order dismissing the case for want of prosecution, an order of default, or other appropriate sanctions pursuant to S. Ct. R. 218 and S. Ct. R. 219.
B. PRE-TRIAL SETTLEMENT CONFERENCES
The court strongly encourages all parties to, in good faith, explore and negotiate settlements of their cases. In most circumstances, freely negotiated settlements result in a 3
more satisfactory resolution of the dispute at a much lower cost. If the court can assist the parties in their settlement negotiations at any stage of the pre-trial process, it stands ready to do so. After conferring with all other parties and having obtained a consensus that a Pre-Trial Settlement Conference may be of assistance, any party may move the court to set a Pre-Trial Settlement Conference.
Before the court participates in a settlement conference, the court will expect the parties to attempt settlement between or among themselves.
Pre-Trial Settlement Conferences may be continued from time to time, so long as the court is of a belief that progress toward settlement is being made. The court may set the case for trial on a date certain, whether or not a Pre-Trial Settlement Conference is to be conducted.
C. MEDIATION OF MAJOR CASES (CIRCUIT COURT OF COOK COUNTY RULE 20)
Any Law Division case, irrespective of its filing date, procedural posture or discovery status, may be submitted for voluntary mediation. Mediation is a confidential process by which a neutral mediator, selected by the parties or selected by or with the assistance of the court, assists the litigants in reaching a mutually acceptable agreement. The role of the mediator is to assist the parties in identifying issues, reducing misunderstandings, exploring and clarifying the parties’ respective interests and priorities, and identifying and exploring possible solutions that will satisfy the interests of all parties and thereby resolve some or all of the issues in dispute. The parties and their representatives are required to mediate in good faith, but are not compelled to reach any agreement.
The judge to whom the matter is assigned may order any contested civil matter pending in the Law Division to mediation by entering an Order of Referral. An Order of Referral may be entered sua sponte or upon the motion of any party. Further, the parties may file a written stipulation to mediate any case or issue between them at any time and such shall be incorporated into the Order of Referral.
Each Order of Referral shall set a court appearance for the twenty-first day following the date of entry of the Order of Referral (unless that date falls on a court holiday, in which case the Order of Referral shall set the court appearance for the first court day following that court holiday), or as otherwise determined by the court. Please refer to Circuit Court of Cook County Rule 20 for more information regarding this process.
D. FINAL PRE-TRIAL CONFERENCES (JURY TRIALS ONLY)
The following provisions and orders apply only to cases in which a jury has been demanded. 4
At the same time the court sets a trial date, or shortly thereafter, the court will also set one or more Final Pre-Trial Conferences. At the first Final Pre-Trial Conference, plaintiff shall file a Final Pre-Trial Memorandum with the court. The purpose of the Final Pre-Trial Memorandum is to limit the issues to be decided at trial. This will ensure that parties engage in essential trial preparation in a timely fashion, and it will help eliminate the possibility of a delay during trial. At least ten (10) court days prior to the first Final Pre-Trial Conference, plaintiff’s attorney or plaintiff pro se shall serve all counsel of record a proposed Final Pre-Trial Memorandum.
The Final Pre-Trial Memorandum Shall Contain the Following:
1. Statement of the Case: A short proposed statement of the case for use in jury selection. The statement of the case should be designed to briefly inform the venire of the nature of the case to which they have been assigned for jury selection. It should not go into great detail. Counsel for all parties, or pro se litigants, must, in advance of the first Final Pre-Trial Conference, attempt to agree on the proposed statement of the case. If the parties are unable to agree, each must submit their own proposed statement of the case for use in jury selection, but the court expects the agreement of all parties.
2. Statement of Stipulated Facts: A statement of all facts stipulated to between the parties.
3. Supreme Court Rule 216: If the stipulation is by way of an admission pursuant to S. Ct. R. 216 Admissions of Fact or Genuineness of Documents the request(s) and response(s) should be included.
4. Exhibit Lists: A list of all exhibits that parties intend to use or offer into evidence. Each party shall prepare and provide to each other party a list of all exhibits. All exhibits shall be listed according to the number that the party offering the exhibits intends to use at trial. Opposite each exhibit, the party preparing the memorandum shall indicate whether a stipulation has been entered into regarding the authentication of the exhibit, or whether foundation testimony for its admission has been waived.
5. Witness Lists: A list of all potential witnesses expected to be called by each party, the expected order in which such witnesses will be called, and the estimated duration in time of the direct and cross-examination of each witness.
6. Deposition Transcripts and Recorded Testimony: If recorded testimony is to be used and the court needs to make rulings on objections, the proponent of the testimony should list the witness and indicate the rulings that will be needed. The proponent should bring copies of the transcript to the Final Pre-Trial Conference.
(Note: You must provide your own court reporter if you desire to have a court reporter present.)
7. Motions in Limine: A motion raised before or during trial to exclude the presentation of certain evidence to the jury. Each of the parties will serve opposing 5
counsel with motions in limine at least ten (10) days prior to the first Final Pre-trial Conference. After each motion, there should be an indication as to whether parties agree to or contest the motion. Each party is to prepare, if at all, a single motion in limine listing in separate paragraphs each item of relief requested and a brief reference to the case(s) supporting such relief. As to relief directed to the opinion testimony of expert witnesses, the motion must contain specific references to the opinions to which the witnesses are to be limited.
(Note: The court will not entertain generalized requests to limit the testimony of an expert to those opinions expressed during discovery. The response of each party to every other party’s motion in limine shall specifically state upon which items there is agreement and upon which items there are objections. Regarding those items of relief to which there are objections, the response shall state the basis for the objection, a brief reference to the cases supporting the objection, and a reference to and copy of all discovery material supporting the objection.)
8. S. Ct. R. 237 Requests to Produce at Trial. At least seven (7) days prior to the first Final Pre-trial Conference, parties will prepare and deliver to the court, counsel for all parties, and pro se litigants a statement of all outstanding disputes regarding requests to produce at trial pursuant to S. Ct. R 237. Each party desiring an opposing party to produce either materials or witnesses at trial pursuant to S. Ct. R. 237 is to serve the opposing party with notice in adequate time so that the request to produce can be discussed at a meeting between counsel prior to the preparation of the first Final Pre-trial Conference. Counsel will make a good faith effort to determine if there are any issues regarding S. Ct. R. 237 requests to produce at trial and resolve them by agreement.
9. Jury Instructions. Plaintiff must deliver one marked copy of proposed jury instructions to the counsel for each opposing party, or pro se litigant; the copy must be sorted in the order of the Illinois Pattern Jury Instruction (IPI) numbers, and plaintiff’s counsel, or pro se plaintiff, shall deliver two copies of a set of verdict forms to each other counsel or pro se litigant at least ten (10) days prior to the first Final Pre-Trial conference. If a party submits non-IPI instructions, the party must submit these instructions following the tendered verdict forms.
(Note: The plaintiff’s counsel or pro se plaintiff shall have the initial burden of tendering jury instructions. Plaintiff’s counsel, or pro se plaintiff, shall provide a copy of the proposed instructions, along with the rest of the proposed Final Pre-Trial Memorandum, at a meeting of counsel (including parties pro se) at least ten (10) days prior to the first Final Pre-Trial Conference. Defendant’s counsel, or pro se litigants, shall provide copies of any additional instructions to the plaintiff at least six (6) days prior to the Final Pre-Trial Conference, and such copies should be included in the first Final Pre-Trial Memorandum. Should plaintiff’s counsel, or pro se plaintiff, fail to propose jury instructions, defendant’s counsel or pro se litigant shall be responsible for proposing jury instructions. The failure of a party to tender jury instructions in accordance with this order may be taken by the court as a waiver of the jury demand.)
9. Attorney’s Conference. Ten (10) or more days before the first scheduled Final Pre-Trial Conference, the attorneys representing each party and parties pro se shall meet 6
at the office of the attorney for the plaintiff, or as otherwise mutually agreed, to exchange exhibit lists, proposed jury instructions and motions in limine. Additionally, in advance of voir dire, parties shall discuss the proposed statement of facts to be read to prospective jurors, the allocation of peremptory challenges, and the necessity, if any, to impanel alternate jurors.
Within five (5) court days following the meeting of all counsel, each party’s attorney and each pro se litigant shall forward to every other counsel, or pro se litigant, their response(s) to all motions in limine and an indication regarding objections to any exhibits and proposed jury instructions.
10. Final Pre-Trial Memorandum.
Following the meeting of all counsel including any pro se litigants, and after receipt of all responses to motions in limine, objections to exhibits and proposed jury instructions, counsel for plaintiff shall prepare the Final Pre-Trial Memorandum, which shall incorporate the required exhibit lists, statement of facts, and instruction lists, and shall incorporate all of the agreements of the parties as to the admission of exhibits, and the giving of instructions, stipulations of fact and statements of fact to be read to the prospective jurors. Each party shall cooperate to the fullest extent necessary to enable plaintiff’s counsel to prepare the Final Pre-Trial Memorandum.
Plaintiff shall file a single Final Pre-Trial Memorandum that includes both the plaintiff’s and defendant’s responses to each of the requested items.
In those rare situations where cooperation has failed to produce a joint memorandum, each side should serve their own memorandum upon each other at least three (3) days prior to the first Final Pre-Trial Conference.
At Final Pre-Trial Conferences, the court may rule on contested motions in limine, set the number of peremptory challenges, discuss trial scheduling, and enter other orders as deemed necessary.
(Note: This procedure will not prevent a party from making any appropriate objection to testimony at trial, regardless of whether the matter could have been raised by way of a motion in limine.)
The attorney(s) or pro se litigants appearing at the Final Pre-Trial Conferences must have full knowledge of the case and the attorney(s) must have full authority to bind their respective clients to stipulations of fact, pre-trial motions and other matters in preparation for trial. In the event that an attorney lacks such authority, the party (or authorized representative where appropriate) must be present or available by telephone. The failure of trial counsel to appear at the Final Pre-Trial Conferences may result in the dismissal of the action for want of prosecution, the entry of an order of default or other appropriate sanctions pursuant to S. Ct. R. 218 and S. Ct. R. 219. 7
E. NON-JURY (BENCH) TRIALS
At least fourteen (14) days prior to the date set for trial to begin, counsel for all parties shall exchange exhibit lists, witness lists, and motions in limine, if any.
1. Exhibit Lists. Counsel for each party will confer with one another to stipulate, to the extent possible, to the waiver of foundational requirements for each document or other exhibit that will be sought to be used at trial.
2. Witness Lists. The witness lists to be exchanged by each party will include the following:
a. The name and address of each witness;
b. The estimated length of time needed for direct and cross-examination of each witness; and
c. The approximate order in which the witnesses will be called.
3. Motions in Limine. Unless otherwise ordered, Motions in Limine will be heard by the court at the time of trial.
F. MOTION PRACTICE
1. Emergency Motions. Emergency Motions are heard Monday through Friday at 9:15 a.m. unless otherwise ordered by the court. The motion should involve a genuine emergency; that is, it should involve some circumstance that could lead to irreparable damage to a party if relief is not obtained prior to the time the party could be heard on the court’s regular motion call or at the next scheduled case management conference.
a. Any motion brought within ninety (90) days of a set trial date may be brought as an emergency motion in order to protect the set trial date.
b. A motion to extend the discovery cut-off deadline that is filed prior to the cut-off date and noticed for hearing at the next scheduled court appearance is sufficient to show the court that the movant has done everything possible to comply with the discovery cut-off date. Therefore, it is not necessary to appear in court on an emergency basis for this purpose. Similarly, a motion to file a brief in excess of fifteen (15) pages is not an emergency, and a motion filed with the court and noticed for hearing at the next regularly scheduled court date is sufficient.
2. Routine Motions. The court entertains Routine Motions at 9:00 a.m. on each day of the week. Routine Motions shall be governed by the Rules of Procedure of the Motion Court of the Law Division of the Circuit Court of Cook County, which can be found online at: www.cookcountycourt.org/rules/rules/court_rules.html.
A party may object to a routine motion in writing or orally, in person or by telephone. Objections must be made either the day prior to the scheduled day of presentation, or by 9:00 a.m. on the day of presentation. The party making an objection must state the reason. If an objection is received, or if the court objects to the entry of the order, the court will not enter the order. If the moving attorney chooses to pursue the 8
motion, she or he must put it on the Regular Motion call. See, Motion Judges Rules 5.0(g), a copy of which may be found in Room 2005 of the Daley Center.
(Note: Motions for default judgment, motions to withdraw without substitution of attorney, and any discovery motions must be brought as regular motions.)
3. Regular Motion Call. The court hears the Regular Motion call on Tuesdays. The first ten (10) motions spindled are set for 9:30 a.m., those numbered eleven (11) through twenty (20) are set for 10:00 a.m., and those numbered twenty-one (21) through thirty (30) are set for 10:30. This court has been designated “Motion Call S,” and Regular Motions shall be docketed in the Clerk’s office on the 8th floor of the Richard J. Daley Center, 50 W. Washington. Chicago, IL 60602. Cook County Circuit Court Rule 2.1 and the Motion Judge’s Rules shall apply to all motions set on the court’s Regular Motion call.
4. “Piggy-Backed” Motions. With proper notice to counsel for all parties who have appeared, and to pro se parties, motions may be brought or “piggy-backed” before the court at any regularly set Case Management Conference, Motion Hearing or Pre-Trial Conference.
5. Courtesy Copies. For contested (and Regular Motions), the movant shall deliver to chambers at least ten (10) court days prior to the date of the hearing, courtesy copies of the motion, response, reply, and also other pleadings, and exhibits. It is not necessary to provide case law as the court has access to Lexus. Any and all courtesy copies are to be delivered before 3:30 p.m. If parties do not provide courtesy copies within the requisite ten (10) days, the court may strike the motion.
(Note: The Clerk of the Circuit Court of Cook County keeps copies of all pleadings, but the judge hearing the case will usually not have the court file. Therefore, the movant must supply courtesy copies of all relevant pleadings.)
6. Automatic Briefing Schedule – Contested Motions. Unless otherwise ordered by the court, for contested motions that have been noticed for presentment to the court, respondent has twenty-one (21) days from the date the motion is served on respondent to file a response to the motion, and movant has fourteen (14) days thereafter to file any reply. Therefore, since there is an automatic briefing schedule that begins to run from the time any party is properly served with a motion and a notice of motion, the motion may, at movant’s option, be noticed to be brought before the court at any time the case has been set for any case management conference, motion hearing or pre-trial conference. Further, if the motion has been served on the respondent a sufficient number of days prior to the date that the motion is noticed to be brought before the court, the motion should be fully briefed, requiring only a hearing date. Therefore, the need to “spindle” a motion for the court’s Tuesday motion call may be unnecessary since typically all that may happen at the Tuesday motion call is the entry of a briefing schedule.
(Note: It may be best to remind opposing counsel in the forwarding letter accompanying a notice of motion together with the motion itself, that this Standing Order gives respondent twenty-one (21) days to respond to the motion from the date it is 9
received with a notice of motion, after which the movant has fourteen (14) days to serve and file a reply.)
7. Briefs and Citations.
a. No motion, opening brief or response brief shall exceed fifteen (15) double-spaced pages, 12 pt. font and 1 inch margin (exclusive of exhibits). Oversized briefs are disfavored and require leave of court. No reply brief shall exceed seven (7) pages. No surreplies will be permitted.
b. Citations shall include citations to Official Illinois Reporters. Reference to the Northeastern Reporter alone is not acceptable.
c. Movant is responsible for providing the court with courtesy copies of all briefs and a copy of the relevant pleadings, motions or other documents under attack.
8. Rulings on Written Briefs Alone. Unless the court orders otherwise, the court may rule on the pending motion(s) on the written briefs submitted, without oral argument. If the court feels that it needs oral argument to better understand the substance of the motion or arguments of counsel, then oral argument will be allowed.
9. Appearance at Motion Hearings. Each movant and respondent must appear at each set motion hearing, either in person or through counsel.
If a motion is set for oral argument and a pro se litigant or counsel for the parties does not appear, the court may rule based on the written briefs submitted, or, at the court’s option, may strike the motion.
G. CLERK STATUSES
Clerk Statuses are held on Thursdays at 9:00 a.m. in the court’s chambers. If the movant fails to appear for a Clerk Status by 9:30 a.m., the court may strike the motion unless the court is notified beforehand about the inability of a party or counsel to attend.
At such time as the court enters a briefing schedule on a motion that has been or is to be filed, the court may then continue the pending motion for a Clerk Status, at which time counsel for the parties will appear in the court’s chambers to inform the law clerk or the court’s personnel that the motion is or is not fully briefed. If the motion is fully briefed, counsel will be given a motion hearing date and time, and counsel for the movant will prepare an order to be entered by the judge continuing the motion to that date and time for hearing.
H. CLAIMS OF PRIVILEGE
Claims of privilege will not be entertained unless the party asserting the claim has supplied a Privilege Log (see Supreme Court Rule 201(n)), and any affidavits or other proof necessary to lay a factual basis for the privilege claimed. See Chicago Trust Co. v. Cook County Hospital, 298 Ill. App. 3d 396, 401 (1st Dist. 1998), (“The burden of 10
establishing the applicability of a discovery privilege rests with the party seeking to invoke the privilege.”)
I. MOTIONS FOR DEFAULT
a. Finding of Default
1. Notice. The moving party must provide, or attempt to provide, the opposing party with notice of a motion for default and default judgment. This may be accomplished by mailing the notice of motion and the motion to the respondent party’s last known address by both regular mail and by certified mail.
2. Documents Required. At the hearing on the motion for default, the following documents must be delivered to the court:
a. A clerk-stamped copy of the notice of motion and motion;
b. A copy of summons with the sheriff’s return showing service;
c. An attorney’s certificate, signed by counsel, certifying that both the court file and the clerk’s computer have been checked for defendant’s appearance and answer. The certificate must be dated no more than ten (10) days before the date selected to present the motion; and
d. If defaulting an individual, the attorney must present a military affidavit, i.e., an affidavit that certifies defendant is not in the military.
b. Entering Default Judgment
1. Unliquidated Damages. The court may set the matter to a further date for prove-up of damages, or may hear the prove-up of damages at the initial motion for default judgment hearing date. Parties may prove damages by affidavit in accordance with Supreme Court Rule 191.
2. Liquidated Damages. The court will enter a default judgment upon presentation of the following documents:
a. A copy of the verified complaint with exhibits, or an affidavit by the moving party establishing the judgment amount;
b. An affidavit detailing the costs of the suit; and
c. An affidavit for attorneys’ fees, if applicable.
(Note: The individual verifying the complaint or certifying the complaint in accordance with 735 ILCS 5/1-109, must indicate in the body of the verification or certification language that he or she is someone who should and does know the truth of the matters so verified or certified.)
c. Attorneys’ Fees
Attorneys’ fees are recoverable only by statute or when provided for in an agreement between the parties. If attorneys’ fees are recoverable, an affidavit from the attorney is necessary to establish the amount. The affidavit shall state: 11
1. The date that services were performed;
2. The nature of the services performed;
3. The amount of time spent performing the services;
4 The attorneys’ hourly rate;
5. The year the attorney graduated from law school, and the experience of the attorney in legal matters in the nature of those being billed;
6. A statement that the number of hours spent and the rate charged per hour is fair and reasonable and within the normal standards of the community for the type of services performed.
(Note: Any motion for default that fails to meet the above requirements may be stricken or the hearing continued for the provision of additional information.)
J. DISCOVERY DISPUTES
If discovery disputes arise, the parties must engage in a Supreme Court Rule 201(k) conference and attempt to resolve the dispute prior to spindling or noticing a motion for sanctions, or other relief concerning the dispute.
K. REQUESTS TO ADMIT FACTS AND GENUINESS OF DOCUMENTS
(a) Since the parties and the court may be unable to determine whether facts and documents are relevant before the parties are at issue in the pleadings, no request to admit facts and no requests to admit the genuineness of documents in accordance with Supreme Court Rule 216(a) and (b) may be served on a party and filed with the court prior to the time the parties are at issue in the pleadings, except by prior leave of court. Once any two (2) parties are at issue, those parties only may initiate requests to admit in accordance with Supreme Court Rules.
(b) The court has found that many attorneys, and almost all pro se litigants, are unfamiliar with the requirements of Supreme Court Rules 216 and 183. Therefore, even slight violations of these Supreme Court Rules, as further explained by relevant case law, may result in the ultimate disposition of the case. In response to these concerns, the Illinois Supreme Court recently amended Supreme Court Rule 216. The rule as amended contains the following requirements:
(f) Number of Requests. The maximum number of requests for admission a party may serve on another party is 30, unless a higher number is agreed to by the parties or ordered by the court for good cause shown. If a request has subparts, each subpart counts as a separate request.
(g) Special Requirements A party must: (1) prepare a separate paper which contains only the requests and the documents required for genuine document requests; (2) serve this paper separate from other papers; and (3) put the following warning in a prominent place on the first page in 12-12
point or larger boldface type: “WARNING: If you fail to serve the response required by Rule 216 within 28 days after you are served with this paper, all the facts set forth in the requests will be deemed true and all the documents described in the requests will be deemed genuine.”
Ill. S. Ct. R. 216 (f)-(g) (LEXIS 2011).
(c) Before the court will deem facts admitted pursuant to Supreme Court Rule 216, the party seeking to deem facts admitted must demonstrate to the court that it strictly complied with the new requirements of Supreme Court Rule 216. Specifically, the party must demonstrate: (1) that there were only 30 requests for admission served on the opposing party; (2) that the requests and the documents required for genuine document requests were served separately from other papers; and (3) that the first page of the requests contained the warning in the proper font.
(d) A motion for leave of court to serve a request for more than thirty (30) admissions must be in writing and shall set forth the additional facts requested to be admitted and attach copies of the documents if any, the genuineness of which are requested to be admitted, and set forth the reasons establishing good cause for these additional requests to admit.
L. TRIALS AND DATES
1. Opening Statements and Closing Arguments. Unless otherwise ordered by the court, in all jury trials, opening statements will be limited to twenty (20) minutes per side, and closing arguments will be limited to thirty (30) minutes per side. Plaintiff’s counsel or plaintiff pro se will have to schedule rebuttal time so that the total of thirty (30) minutes in closing arguments is not exceeded.
2. Trial Dates are Firm. Trial dates are firm and will rarely be continued. On those very rare occasions, trial dates will be continued only for good cause shown – usually involving the serious illness of counsel, one of the parties or a necessary witness. Otherwise, assume the date is firm and that the court will not grant a continuance.
M. STANDING ORDER CONSIDERATIONS
1. Applicability and Inconsistency. Unless the court orders otherwise (either generally or in a particular case), this Standing Order applies in every case. In the event of any inconsistency between this Standing Order and any order entered in a case, the order entered in the case controls to the extent of the inconsistency.
2. Modification. The court may modify this Standing Order from time to time.
_______________
Judge Raymond W. Mitchell

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 (7^th 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 (7^th 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 (7^th 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 (5^th 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 (3^rd 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 (9^th 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 (2^nd 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 (11^th 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 (4^th 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 (2^nd 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 (8^th 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                                           

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. 

http://writ.lp.findlaw.com/amar/20090731.html

He explains that since Sgt. Crowley admitted in his report that Prof. Gate’s words that he considered “disorderly” occurred after he had concluded that no burglary had occurred (the investigation was over so there was no obstruction of justice), whatever Prof. Gates said was protected by the First Amendment right to free speech per the U.S. Supreme Court holding in Houston v. Hill two decades ago. Justice Brennan in that case stated “Speech is often provocative and challenging…[But it] is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.” Therefore, Prof. Gates comments were  protected by the First Amendment and were not “disorderly.” That clearly is a reason why the charges were dropped. Constitutional rights always trump State law.

The vague disorderly conduct laws cannot negate a person’s right to free speech unless there is a “clear and present danger of a serious substantive evil” , like yelling “fire” in a crowded movie theatre or interfering with a police investigation of a crime.

I believe the arrest had nothing to do with race but everything to do with ego. Sgt. Crowley was annoyed by Prof. Gates’ words and didn’t want to appear weak as a Sgt. in front of the other officers. He therefore acted more like the top dog in a dog pack and bit Prof. Gates’ who was alledgedly acting like an uppity overeducated and arrogant nerd who did not show the proper “respect” to an officer. The “teachable moment” should be in regards to constitutional rights and the fact that it is unlawful to arrest someone simply because they are insulting an officer.

Yes the public doesn’t always give officers the respect they deserve for putting their lives on the line every day and yes racial profiling still exists, however, I don’t believe these two issues have much to do with this case. Talk about these topics appear to me simply to be red herrings that the media are using to sensationalize this case, at the expense of the real teachable moment..