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May 21, 2016

New Trial Setting Call System replaces Black Line Call in Cook County Courts


Law division cases will now be scheduled for a trial setting date in courtroom 2005 either 15 months or 28 months from the date filed. All litigants will receive postcard notice of such hearings. The new system is explained in the following order from the new Law Division Presiding Judge. This Trial Setting Call system replaces the unconstitutional Black Line Call System.

STATE OF ILLINOIS           )
)  SS
COUNTY OF COOK            )

 

IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS LAW DIVISION

GENERAL ADMINISTRATIVE ORDER 16-2 TRIAL SETTING CALL

IT IS HEREBY ORDERED: Effective April  1 , 2016, the Black Line Call currently heard in Courtroom 2006 will be replaced by a Trial Setting Call, that will also be heard in Courtroom 2006.

I.  The following Law Division Black Line Call General Administrative Orders are hereby vacated: 03-1, 04-2, 05-1, 05-2 and 06-1.

II.  Law Division Master Calendar System:

A. Cases included in the Master Calendar System:

  1.   All cases currently assigned to the Motion Calendar Section of the Law Division as designated by the Presiding Judge of the Law Division.

B. Cases excluded from the Master Calendar System:

  1.   All cases currently assigned to the Individual General Calendar Section, Individual Commercial Calendar Section, or the Tax and Miscellaneous Remedies Section of the Law Division, unless designated by specific order.

C.  The Master Calendar System consists of the following:

  1.   Motion Calendars as designated by the Presiding Judge of the Law
  2.   (Courtroom 2006) Trial Setting
  3.   (Courtroom 2005) Trial Call, Trial Setting Status Call, Prove-up Call and Motion Calls.
  4.   Trial Rooms as designated by the Presiding Judge of the Law Division.

Ill.      This General Administrative Order will apply to all cases currently assigned to the Law Divisions Master Calendar System and all cases filed in the future assigned to the Master Calendar System as designated by the Presiding Judge of the Law Division.

IV.     Master Calendar Case Designations:

A.  Category 1 Case Type: All cases assigned to the Master Calendar excluding: Medical Malpractice, Legal Malpractice, Product Liability and Construction

  1.   Trial Setting Date will be approximately 15 months from the filing date of the
  2.   Trial Setting Date: Electronic or postcard notice will be sent by the Clerk of the Circuit Court to all parties of record or pro se litigants approximately twelve (12)months from the filing date of the
  3.   Trial Setting Date will be approximately 90 days from the date electronic or postcard notice is sent out.

B.  Category 2 Case Type: Medical Malpractice, Legal Malpractice, Product Liability  and Construction Injury

  1.   Trial Setting Date will be approximately 28 months from the filing date of the lawsuit.
  2.   Trial Setting Date: Electronic or postcard notice will be sent by the Clerk of the Circuit Court to all parties of record or pro se litigants approximately twenty-four {24) months from the filing date of the Lawsuit.
  3.   Trial Setting Date will be approximately 120 days from the date electronic or postcard notice is sent out.

V.  All cases appearing on the Trial Setting Call will receive Trial All parties should discuss, prior to appearing for Trial Setting, reasonable Trial Dates to suggest to the Court on the Trial Setting Date.

VI.  Motion Procedure for Master Calendar Cases:

A. The assigned Motion Judge will address all discovery issues and hear all motions excluding motions to continue a trial, motions to vacate, alter, modify, or reconsider orders entered in Courtroom 2005 or 2006 and those motions that must be presented to the Presiding Judge of the Law Division by Circuit Court General Order. These excluded motions should be presented on the appropriate Courtroom 2005 Motion Call.

B.  All motions to continue trial on a case assigned to the Master Calendar Section must be presented to the Presiding Judge of the Law Division or his or her designee on the appropriate Courtroom 2005 motion call. Motion Judges may not set or continue a case for trial.

C.  If all discovery is complete and pending motions ruled upon, the assigned Motion Judge shall enter a Trial Certification This order shall be entered prior to any assigned trial date. If the certified case has no assigned trial date, the case shall be placed on the Trial Setting Status Call in Court room 2005, fourteen (l 4) days from the entry date, for the attorneys to appear and receive a trial date. Failure to have a trial certification order entered will not serve as a basis to continue the trial date.

D.  If at any time All Parties Agree that their case is ready for trial they may present a motion in Courtroom 2005 for Immediate Trial Assignment and the case will be assigned by random computer assignment for the trial to begin

VII. The Transition from the Black Line Trial Call to the Trial Setting Call:

A.  Commencing April I , 2016, Master Calendar Cases will no longer enter the Black Line Pool of

B.  Cases will no longer be categorized or re-categorized, removed from the Black Line Pool or re-sequences within the Black Line

C.  The Black Line Call will continue in Courtroom 2006, until all cases currently in the Black Line Pool have been assigned a trial

D. Cases not currently in the Black Line Pool will be identified as Transition

  1.  The Transition Trial Setting Call shall be conducted from May l, 2016 through July 31, 2016, in Courtroom 2006, with the oldest cases appearing first.
  2. The cases identified for transition will begin appearing in Courtroom 2006 at a rate approximately 60 per day for Trial
  3. Electronic or postcard notice will be sent out to attorneys and all pro se litigants to appear in Courtroom 2006 on the Transition Trial Setting Call, at least thirty (30) days prior to the court
  4. Parties shall be assigned a trial date on the Transition Trial Setting Call, and should discuss an agreed upon trial date, prior to their appearance on the Transition Trial Setting
  5. Effective July 31, 2016, the transition process shall be

VIII. Trial Setting Call

A. Effective August 1, 2016, the Trial Setting Call will commence in Courtroom 2006 with up to thirty (30) cases appearing per day, based on case type and filing

IX.  Nothing in this order will limit the inherent power and discretion of any Judge to enter an order the Judge feels is

It is further ordered that this Order be spread upon the records of this Court.

Dated at Chicago, Illinois this 23rd day of March, 20 1 6.

Honorable James P. Flannery Jr.

Presiding Judge Law Division

July 13, 2015

Replacing a bad public defender – possible but difficult


When public defenders refuse to listen to the defendant’s story, refuse to investigate the case, refuse to follow the law, refuse to tell the court when the court is violating law, are abrupt, rude, and harmful to defendants like ignoring their disability needs or indigency status when bail is set, and especially when they fail to subject the case to adversarial testing, then they should be replaced.  Legally when a defendant tells the judge that the PD is doing these things, the judge is obligated to question the defendant to see if there is a basis for ruling ineffective assistance of counsel and replacing the PD. The State’s Attorney may NOT participate in this stage 1 questioning. Yet they almost always do. The judges rarely listen to defendants who complain about PDs, but their failure to do so is a reversible error if it affects the outcome of the case. Attorneys will rarely help you with this issue unless the symptoms of misconduct of the PD are obvious like appearing in court drunk or not appearing in court at all. So, generally, defendants who are being abused by the system and rely on the PD due to indigency are scr**ed. This is where the ACLU and other public interest legal foundations should play a more active role, but so far they don’t.

The following is a summary of the present state of law in Illinois regarding these manners.

REPLACING A BAD PUBLIC DEFENDER – DIFFICULT BUT POSSIBLE:

NOTE: This refers to Illinois and federal case law – you must research the laws in your state.

CASE LAW CONCERNING INEFFECTIVE ASSISTANCE OF COUNSEL.

  • GENERAL ISSUE – STRICKLAND TWO-PRONG TEST ON APPEAL
  1. The Sixth Amendment requires only competent representation and does not guarantee a meaningful relationship between a defendant and counsel. (quoting Morris v. Slappy, 461 U.S. 1, 13-14 (1983)) Schell v. Witek, 218 F.3d 1017, ¶ 35 (9th Cir. 1991)
  2. The Illinois Supreme Court has held that, to determine whether a defendant was denied his or her right to effective assistance of counsel, on appeal, an appellate court must apply the two-prong test set forth in Strickland Washington, 466 U.S. 668 (1984). People v. Colon, 225 Ill. 2d 125, 135 (2007) (citing People v. Albanese, 104 Ill. 2d 504(1984) (adopting Strickland)). Under Strickland, a defendant must prove both (1) his attorney’s actions constituted errors so serious as to fall below an objective standard of reasonableness; and (2) absent these errors, there was a reasonable probability that his trial would have resulted in a different outcome. People v. Ward, 371 Ill. App. 3d 382, 434 (2007) (citing Strickland, 466 U.S. at 687-94).
  3. Under the first prong of the Strickland test, the defendant must prove that his counsel’s performance fell below an objective standard of reasonableness “under prevailing professional norms.” Colon, 225 Ill. 2d at 135; People v. Evans, 209 Ill. 2d 194, 220 (2004). Under the second prong, the defendant must show that, “but for” counsel’s deficient performance, there is a reasonable probability that the result of the proceeding would have been different. Colon, 225 Ill. 2d at 135; Evans, 209 Ill. 2d at 220. “[A] reasonable probability that the result would have been different is a probability sufficient to undermine confidence in the outcome–or put another way, that counsel’s deficient performance rendered the result of the trial unreliable or fundamentally unfair.” Evans, 209 Ill. 2d at 220; Colon, 225 Ill. 2d at 135. In other words, the defendant was prejudiced by his attorney’s performance.
  4. To prevail, the defendant must satisfy both prongs of the Strickland Colon, 225 Ill.2d at 135; Evans, 209 Ill. 2d at 220. “That is, if an ineffective-assistance claim can be disposed of because the defendant suffered no prejudice, we need not determine whether counsel’s performance was deficient.” People v. Graham, 206 Ill. 2d 465, 476 (2003). We do not need to consider the first prong of the Strickland test when the second prong cannot be satisfied.
  • STRICKLAND – PREJUDICE PRESUMED CRITERIA (HATTERY & CRONIC)
  1. In People v. Stanford, 2011 Ill. App. (2nd) 2090420, our supreme court has noted that the Court in Strickland recognized that “there are some circumstances so likely to prejudice the accused that such prejudice need not be shown, but instead will be presumed.” People v. Hattery, 109 Ill.2d 449, 461 (1985). Situations warranting the presumption of prejudice include cases in which (1) there is a complete denial of counsel at a critical stage of the trial, or (2)counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing.” United States v. Cronic, 466 U.S. 648, 659 (1984); see Angarola, 387 Ill.App.3d at 735. Additionally, a more limited presumption of prejudice exists where counsel has a genuine conflict of interest. Strickland, 466 U.S. at 692. “Even so, the rule is not quite the per se rule of prejudice that exists for the Sixth Amendment claims mentioned above. Prejudice is presumed only if the defendant demonstrates that counsel ‘actively represented conflicting interests’ and that ‘an actual conflict of interest adversely affected his lawyer’s performance.’ “ Strickland, 466 U.S. at 692 (quoting Cuyler v. Sullivan, 446 U.S. 335, 350, 348 (1980)). Our supreme court has emphasized that a “defendant faces a high burden before he can forsake the two-part Strickland test” by meeting the Cronic standard. People v. Johnson, 128 Ill.2d 253, 270 (1989).
  2. In People v. Stanford, 2011 Ill. App. (2nd) 2090420, the defendant argued that the Cronic standard applied. Cronic, 466 U.S. at 658 (“[T]he right to the effective assistance of counsel is recognized not for its own sake, but because of the effect it has on the ability of the accused to receive a fair trial. Absent some effect of challenged conduct on the reliability of the trial process, the Sixth Amendment guarantee is generally not implicated.”). Although in the Stanford case the court said this argument was inopposite, our supreme court did note that in some cases it may be on point when the trial court summarily dismissed the defendants’ motions for new counsel without any inquiry: United States v. Nguyen, 262 F.3d 998, 1003–04 (9th Cir.2001) (where the defendant’s counsel of choice appeared and requested leave to be substituted in for the PD and requested a continuance and the trial court made no inquiry into the defendant’s dissatisfaction with appointed counsel, the trial court abused its discretion in denying the substitution motion); . . . Brown v. Craven, 424 F.2d 1166, 1170 (9th Cir.1970) (holding that the defendant’s being embroiled in an irreconcilable conflict with his attorney warranted reversal where the defendant was dissatisfied and would not cooperate with the attorney and the trial court summarily dismissed the defendant’s four motions for new counsel WITHOUT ANY INQUIRY).
  • STRICKLAND ERROR REQUIRES ESTABLISH INEFFECTIVENESS COUNSEL
  1. In People v. Stanford, 2011 Ill. App. (2nd) 2090420, our supreme court stated that even if the counsel’s comments were enough to require the trial court to conduct an inquire into the effectiveness of counsel, “the error is not reversible unless defendant establishes that counsel was ineffective. See People v. Ogurek, 356 Ill.App.3d 429, 434 (2005)”
  2. It is instructive that the 9th Circuit Court of Appeals held: “When forced to choose between incompetent counsel and pro se representation . . . . we concluded that no showing of prejudice was required because Crandall was improperly left with no counsel at all” (quoting Crandell v. Bunnell, 144 F.3d 1213, 1214 (9th Cir. 1998)) and quoting Strickland v. Washington, 466 U.S. 668, 692 (1984) (“Actual or constructive denial of the assistance of counsel altogether is legally presumed to result in prejudice.”)). Schell v. Witek, 218 F.3d 1017, ¶ 34 (9th Cir. 1991)
  3. Thus, the ultimate constitutional question the federal courts must answer is not whether the state trial court “abused its discretion” in not deciding defendant’s motion, but whether this error actually violated defendant’s constitutional rights in that the conflict between defendant and his attorney had become so great that it resulted in a total lack of communication or other significant impediment that resulted in turn in an attorney-client relationship that fell short of that required by the Sixth Amendment. Schell v. Witek, 218 F.3d 1017, ¶ 36 (9th Cir. 1991)
  • EFFECTIVENESS OF PD MUST BE ESTABLISHED BEFORE COLLATERAL ISSUES CONSIDERED (FIRST IMPRESSION ISSUE IN ILLINOIS)
  1. It is instructive, as this is an issue of first impression in Illinois that in People v. Stankewitz, 51 Cal.3d 72, 270 Cal. Rptr. 817, 793 P.2d 23 (1990), the California Supreme Court held that a motion to replace incompetent counsel must be heard before a collateral hearing on issue of competency [or fitness] because “the Sixth Amendment right to effective representation virtually compels a hearing and an order granting a motion for substitution of counsel when ‘there is a sufficient showing that the [51 Cal. 3d 88] defendant’s right to the assistance of counsel would be substantially impaired if [the defendant’s] request was denied.’ (People v. Carr (1972) 8 Cal. 3d 287, 299 [104 Cal. Rptr. 705, 502 P.2d 513]; accord People v. Burton (1989) 48 Cal. 3d 843, 855 [258 Cal. Rptr. 184, 771 P.2d 1270];People v. Moore (1988) 47 Cal. 3d 63, 76 [ 252 Cal. Rptr. 494, 762 P.2d 1218]; People v. Smith (1985) 38 Cal. 3d 945, 956 [216 Cal. Rptr. 98, 702 P.2d 180]; People v. Walker (1976) 18 Cal. 3d 232, 238 [133 Cal. Rptr. 520, 555 P.2d 306].)”
  2. The California Supreme Court clarified this concept further in its Marsden decision [now a rule in Cal.] which held that a trial judge abuses his discretion when he boldly states that the court has observed that the PD was performing admirably, but fails to give the defendant an opportunity to explain his/her concerns about ineffective assistance of counsel. This is on point with Illinois Supreme Court rule 63 which requires the court to hear the defendant:

Thus, a judge who denies a motion for substitution of attorneys solely on the basis of his courtroom observations, despite a defendant’s offer to relate specific instances of misconduct, abuses the exercise of his discretion to determine the competency of the attorney. A judicial decision made without giving a party an opportunity to present argument or evidence in support of his contention “is lacking in all the attributes of a judicial determination.” …. It is in the highest tradition of [2 Cal.3d 126] American jurisprudence for the trial judge to assist a person who represents himself as to the presentation of evidence, the rules of substantive law, and legal procedure, and judges who undertake to assist, in order to assure that there is no miscarriage of justice due to litigants’ shortcomings in representing themselves, are to be highly commended.”  (Spector v. Superior Court (1961) 55 Cal.2d 839, 843 [13 Cal.Rptr. 189, 361 P.2d 909].) People v. Marsden , 2 Cal.3d 118 (1970)

  • PD INEFFECTIVE WHEN FAIL TO ALERT COURT OF COURT’S ERRORS
  1. There are a number of cases where it is instructive that the federal courts have found error when the PD failed to bring to the attention of the court statutory, legal, or constitutional errors made by the court:
    1. Finch v. Vaughn, 67 F.3d 909 (11th Cir. 1995) (Counsel failed to correct state trial judge’s statutory mis-statements that state sentence could run concurrent with potential federal sentence);
    2. United States v. Stearns, 68 F.3d 328 (9th Cir. 1995) (A counsel failed to file notice of appeal); Fern v. Gramley, 99 F.3d 255 (7th Cir. 1996) (Prejudice could be presumed from an attorney’s failure to file an appeal upon the defendant’s request); Montemoino v. United States, 68 F.3d 416 (11th Cir. 1995) (Failure to file notice of appeal after request by defendant; Williamson v. Ward, 110 F.3d 1508 (10th Cir. 1997) (Failure to investigate the defendant’s mental illness was ineffective assistance of counsel); United States v. Kauffman, 109 F.3d 186 (3rd Cir. 1997) (Failure to investigate insanity defense was ineffective assistance of counsel;
    3. Coss v. Lackawanna County District Attorney, 204 F.3d 453 (3rd Cir. 2000) (Defendant was prejudiced by attorney’s failure to subpoena witnesses;
    4. Carter v. Bell, 218 F.3d 581 (6th Cir. 2000) (Failure to investigate mitigating evidence was ineffective assistance); Hinton v. Alabama, 2014 U.S. 136440, 571 U. S. ____ (2014) (Defendant prejudiced by ineffective assistance of PD, when the PD refused to hire an expert witness due to his ignorance of the law fundamental to the case);
  • MUST HOLD EVIDENTIARY HEARING ON DEFENDANT’S POST-TRIAL MOTION AS TO INEFFECTIVE ASSISTANCE COUNSEL BEFORE HEARING POST-TRIAL MOTIONS [HERE MOTION FOR RESTORATION OF FITNESS AFTER TRIAL FINDING UNFIT]
  1. The Illinois Supreme Court in People v. Krankel, 102 ILL.2d 181, 183 (1984) held that the “[T]rial Court erred in failing to appoint counsel other than defendant’s originally appointed counsel  to argue his pro se motion alleging ineffective assistance of counsel.” See also People v. Moore, 2003 Ill. 87958, 207 Ill.2d 68, 77-78 (2003) (First stage is to examine defendant as to basis of claim of ineffective counsel and if lacks merit then not required to appoint counsel to argue it; defendant is not required to renew claim of ineffective counsel for purposes of appeal).
  2. In People v. Jolly, 2015 Ill. 117142 at ¶ 38, the Illinois Supreme Court held that the First Stage examination of defendant concerning ineffective counsel is held WITHOUT the adversarial participation of the State’s Attorney because there is no substitute counsel arguing the defendant’s position. The Court also held that when an adversarial proceeding is held that the remedy is to hold a new Krankel hearing before a different judge. At ¶ 46
  3. The Illinois Supreme Court, in People v. Jocko, 2010 Ill. 108465, at p.4-6, 239 Ill. 2d (2010) &, held that although a two-prong Strickland hearing cannot be held pretrial as it cannot be determined if the errors affected the outcome of the trial (i.e. determine prejudice), it is required to hold a pre-trial evidentiary hearing concerning ineffective assistance of counsel only when prejudice is not relevant as when bail issues are concerned (Jocko at p 5), when there are conflicts of interest (Jocko at p. 4, 239 Ill.2d at 92 quoting Holloway v. Arkansas, 435 U.S. 475 (1978)), or when there is complete deprivation of counsel (Jocko at p. 4, 239 Ill.2d at 92 quoting Cronic 466 U.S. at 659 )

October 31, 2008

Legally Insufficient Indictment-Failure to State Specific Means by Which Alleged Crime Accomplished – Illinois / Felonious Conduct of Judge Pantle and Judge Alonso in Obstructing Justice by Denying Defense Access to Evidence


The first thing I do if I am indicted or charged is look at the charging instrument – complaint, information, or indictment. I ask does it include all the elements of the alleged crime? If not, it is legally insufficient and voids the charge and case. There are other reasons it may be insufficient and I will discuss that in later posts. The motion in this post goes over the relevant controlling case law. Please enjoy it! I hope you find it useful. This is my motion in one case where the indictment is constitutionally legally insufficient basically because it fails to state the SPECIFIC MEANS of the alleged crime – in this case the specific allegedly fraudulent invoices, naming the specific dates of service, name of patient, service billed for, provider of the service, provider who is billing, and WHAT SPECIFICALLY is fraudulent about the invoice. It also states there is a “single intention or design” (i.e. scheme) but gives NO CLUE as to what the scheme involves or who are the alleged perpetrators other than me. The US Supreme Court as well as higher courts in Illinois have ruled in similar cases that this is a void indictment and therefore the entire case is void, not just voidable.
This is a case where in 2004 I was charged with felony Medicaid fraud by the Illinois Attorney General with a fraudulent grand jury indictment by an illegally impaneled special grand jury. The trial is still pending. If you want to attend, please e-mail me and I will inform you of the date when scheduled. Contributions to my legal defense fund may also be given to my attorney – made out to: “Shelton Legal Defense Fund” C/O J. Nicolas Albukerk, 3025 W 26th St., Chicago, IL 60623. The IL AG has absolutely no legal authority to indict anyone (with the exception of about six crimes specified by statute giving AG authority) without the invitation, review, and at least minimal participation of the State’s Attorney. This never happened in mycase. The law was mistated to the grand jury, only perjured testimony was given to grand jury, extensive exculpatory evidence was withheld from grand jury. No crime is actually alleged in indictment as act is specifically authorized by the Federal Medicaid Act if one guesses that the alleged crime is billing Medicaid for services of employees who are statutorily qualified to provide services – i.e. psychologists and counselors. I will post all the other motions to dismiss that the court has illegally refused to hear later.
UPDATE: I tried to file this pro se. It is still my position that I am being illegally denied the right to self-representation – more on this later. My attorney is considering adopting this motion and filing it under his name. In the meantime, Judge Alonso refused to hear it because it did not come from my attorney, who is now representing me over my objection. I did this not because he is a bad attorney, he is very good, but I believe at this point I need to represent myself – more on this later. The judge allowed this motion to be filed as an offer of proof only.

 

IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS

COUNTY DEPARTMENT, CRIMINAL DIVISION

 

PEOPLE OF THE STATE OF ILLINOIS       )

                        Plaintiff,                                    )          

                        v.                                             )           No. 04 CR 17571

                                                                        )

LINDA SHELTON                                         )           Jorge Alonso

            Defendant                                 )           Judge Presiding

 

 

MOTION TO DISMISS FOR INSUFFICIENT INDICTMENT OR IN THE ALTERNATIVE AN OFFER OF PROOF

 

NOW COMES Defendant, Linda Shelton, Pro Se, who respectfully moves this court to dismiss case due to insufficiency of indictment, or in the alternative offer this motion as an offer of proof that the indictment is insufficient and therefore the case is void ab initio. In support of this motion Defendant states as follows:

1.      In Illinois, an indictment must be reasonably certain enough to apprise a defendant of the charges against him, enable him to prepare a defense, and permit a conviction or acquittal to serve as a bar to any subsequent prosecution for the same offense. People v. Greico, 255 N.E.2d 897, 898-899 (Ill. 1970)

2.      A defendant has a fundamental right to be informed of the “nature and cause” of the charges against him or her. People v. Meyers, 158 Ill. 2d 46, 51 (1994).

3.      In Illinois this fundamental right is given substance by statute and incorporated into section 111-3 of the Code of Criminal Procedure of 1963 (725 ILCS 5/111–3 (West 1998)). 725 ILCS 5/111‑3 states: “111‑3. Form of charge. (a) A charge shall be in writing and allege the commission of an offense by: . . . . (3) Setting forth the nature and elements of the offense charged;” [emphasis added] See Meyers, 158 Ill. 2d at 51; People v. Davis, 281 Ill. App. 3d 984, 987 (1996). When the sufficiency of a charging instrument is challenged in a pretrial motion, the inquiry upon review is whether the instrument strictly complies with section 111–3. Davis, 281 Ill. App. 3d at 987.

4.      When the language of a statute which constitutes a charge against the defendant defines the acts prohibited, no further particularity is necessary. People v. Kamsler, 214 N.E.2d 562, 566 (Ill. 1966)

5.      An indictment is not flawed because the overt act could be described in greater detail. City of Chicago v. Powell, 735 N.E.2d 119, 125 (Ill.App.1st Dist, 2000) CITING People v. Meyers, 630 N.E.2d 811 (Ill. 1994). Rather an indictment is sufficient so long that it would enable a defendant to prepare a defense. Id.

6.      Ordinarily, the requirements of section 111-3 are met when the counts of a complaint follow the statutory language in setting out the nature and elements of an offense. Davis, 281 Ill. App. 3d at 987. The relevant inquiry is not whether a charging instrument could have described an offense with more particularity, but whether there is sufficient particularity to allow the defendant to prepare a defense. Meyers, 158 Ill. 2d at 54. A charging instrument is a preliminary pleading, and it need not contain more than a cursory statement of the facts. People v. Smith, 259 Ill. App. 3d at 497. However, it must state some facts.

7.      If the charging instrument meets the minimum requirements of section 111–3(a) but (combined with any discovery the State furnishes) is insufficient to allow the defendant to prepare a defense, he or she can–and should–seek a bill of particulars. Smith, 259 Ill. App. 3d at 498; People v. Intercoastal Realty, Inc., 148 Ill. App. 3d 964, 971 (1986).

8.      An indictment need not state the exact means used in committing a charged offense if that means is not an integral part of the offense. Grieco, 255 N.E.2d 899; SEE People v. Brogan, 816 N.E.2d 643, 654 (Ill.App.1st, 2004) (defendant’s argument that the indictment failed to apprise him of the details of how the overt act was carried out failed because the argument focused on the nature of the proof rather than the nature of the offense.) However, if the means is an integral part of the offense, the indictment needs to state these means.

9.      When the language of a statute does not articulate a specific offense, the indictment must articulate a specific overt act. People v. Potter, 125 N.E.2d 510 (Ill. 1995) In Potter, the defendant was charged with reckless driving. The indictment specifically stated that the defendant drove recklessly by speeding. The defendant was therefore not left to question whether the reckless conduct was running a red light, driving at night without his lights on, or one of a myriad of other possibly dangerous driving manners. However, there are numerous cases where the reviewing courts ruled that the indictment did not articulate a specific overt act[1], and therefore, these indictments were fatally defective.

10.  In the case at bar, the indictment states defendant is alleged to have “in furtherance of a single intention and design, … by means of false statements and representations, . . . caused false billing invoices to be submitted to the Illinois Department of Public Aid.”

11.  The indictment does NOT SPECIFY any details of this “single intention and design” so the Defendant cannot prepare a defense because she must guess at what kind of scheme and with whom she schemed in order to commit the alleged crime. As she is innocent, she has no knowledge of any scheme to which to prepare a defense.

12.  The indictment does NOT SPECIFY what false statements or what false representations she is accused of having made. She cannot prepare a defense and is forced to guess that the false statements have something to do with the large amount of different types of information on an invoice (Exhibit A), such as patient name, patient Medicaid number, date of service, type of service, diagnosis, or provider name.

13.  Defendant must also guess at which step is fraudulent in a complicated series of steps necessary to submit an invoice, from agreeing to work for the business, to signing the contract with the billing agent, to giving a patient encounter form to the business assistant when a patient is seen in clinic, to the billing agent setting up the business for electronic submission and registering the business and provider for billing, to signing a power of attorney form, electronic partner trading agreement, and alternate payee form, in order to generate an electronic invoice from the patient encounter form, to submitting the invoice over the wire, and to documenting hours worked on chart review and teaching therapist or setting medical policies.

14.  She further has to guess which dates of service for which of thousands of patient’s names in remittance advices given to her in discovery by the state, for the large time period of the indictment, June 2000 through April 2002, are involved so she can examine each of these invoices and guess at what is allegedly fraudulent about them.

15.  The above involves pulling out each of the thousands of charts in storage, examining each date of service record and comparing them with the invoices, after obtaining access to medical charts not under her control or possession until June 2008. It also involves examining all business and bank records related to billing and payroll, after obtaining access to them, as they were not under her control or possession until June 2008.

16.  As Defendant was not owner of the practice and did not have access to these documents after she left the practice in 2003, until June 2008, when she received Power of Attorney over all documents of the practice, at the request of XXXX, the owner, who is now medically incapacitated and dying of XXXXXX, Defendant is supposed to figure all this out and develop a defense using this material in only a couple of months. This is a Herculean task that no one could possibly be expected to accomplish. The Court for four (4) years has negligently and/or willfully interfered with and prevented Defendant from obtaining banking and billing records or compulsory process and prevented Defendant from legitimately seeking details of alleged offense.

17.  The State does not specify if Defendant is alleged to have ghost-billed by listing patients and Medicaid numbers of persons who never came to the practice, upcoded by listing a code for a higher degree of service than provided, substitute-billed for a provider who was not eligible to bill, schemed with the business owner, the biller, the office assistants, or whomever, for any of this. In addition, no specific acts (specific patients, specific dates of services, or specific services) are described in indictment, and no specific dates of service or specific services billed for are described in Bill of Particulars.

18.  No reasonable person can be expected to prepare a defense under the above circumstances, where the State, in the indictment has utterly failed, as required by law, to specify the overt acts which constitute the alleged criminal acts.

19.  The State, in discovery, has provided a list of approximately 54 patients which are family groups with approximately 30 adults. They claim that this discovery material represents the State informing the Defendant of the means of the illegal acts she is alleged to have committed. This, along with a Bill of Particulars, however does not cure the fatally defective and insufficient indictment. The 30 or so adults were provided in a witness list. If each psychiatric patient is seen an average of 20 visits, then these 54 patients represent about 1080 visits. Defendant, without the indictment specifying which patients and which visits are allegedly fraudulent and how they are fraudulent is left to guess about this information for each of these 1080 office visits. The State’s bill of particulars and answer to discovery states that Medicaid received bills for services for these 54 patients and lists inclusive dates of service and total amounts billed for, but does not state specific dates of service and patients for which they claim that services were billed fraudulently or what was fraudulent about the bill, except that the bills were for services “not provided by the physician,”  which could mean several different types of overt acts or omissions.

20.  Defendant is now in a situation, ordered by this Court, and produced by the State, analogous to someone being indicted and charged with murder, but not being told who she murdered, where and on what continent the murder took place, what was the nature of the alleged weapon, or even what year the murder took place. This is the ultimate injustice and sham proceeding, that should have been dismissed several years ago. This is a continuing four (4) year act of judicial and prosecutorial misconduct. There is no specific Who, What, Where, or When! These proceedings are therefore, a travesty of justice and beyond any semblance of legitimate American jurisprudence. This case brings this Court, this State, and its legal system into disrepute based on the unconstitutional, illegal, and unethical actions of this Court and this State against Defendant that run counter to every due process principle guaranteed by the United States Constitution.

21.  The State has also provided in discovery thousands of the practice’s “remittance advices” that cover an approximately two year period. Remittance advices are documents generated by Illinois Medicaid sent to the medical provider which list the names of patients billed for, the recipient’s Medicaid number, the date of the service, the code for the service claimed, the invoiced amount, and the amount paid to the provider or alternate payee by Medicaid. Defendant must guess at which of these dates of services and patients may be added to the witness list and what is fraudulent about each and every one of the invoices submitted that Medicaid used to generate the remittance advices. Defendant would have to examine each invoice, if available, examine each chart for each date of service, and determine if there was a scrivener’s error, or a somehow fraudulent invoice and determine what was fraudulent about the invoice, and who was responsible for this act. Only in July 28, 2008, four (4) years after the indictment has this Court began to enforce discovery rules and order the State to clearly identify all witnesses to be used against Defendant, although the Court still has not ordered the State to identify the acts (dates of service and details of invoice that they allege are fraudulent) that constitute the alleged crime.

22.  It appears that the State is forcing the Defendant to perform their investigation and figure out what, if anything, she should be charged with concerning these thousands of patient encounters, not just by her, but by every physician and provider in the practice during the broad indictment period, four years after the indictment was handed down.

23.  Of note, a bill of particulars does not cure a faulty indictment. People v. Meyers, 158 Ill. 2d 46, 53 (1994). The indictment must stand on its own in stating facts sufficient to support all elements of the offense. The indictment, even with discovery materials, fails to inform Defendant of the alleged means of the crime or the alleged specific acts constituting this crime, four (4) years after indictment.

24.  The indictment in this case is fatally insufficient in failing to specify the acts that allegedly constitute the crime charged. Therefore, no  crime has been legally charged and the case is null and void ab initio.

25.  Under 725 ILCS 5/114-4(e), if the State, due to lack of due diligence, fails to bring Defendant to trial within one (1) year, following the indictment, after one additional hearing scheduled 14 –30 days after this motion is filed, then the case must be dismissed with prejudice for lack of due diligence.

26.  Defendant has previously moved for dismissal, 17 months after the indictment, due to lack of due diligence and this has been unconstitutionally denied. Defendant renews her request for dismissal for lack of due diligence. After four years or 48 months post-indictment, the State clearly should have provided the Defendant discovery, including all allegedly fraudulent invoices and a bill of particulars to address the above, even if this court erroneously rules that the indictment is valid.

27.  The court has placed Defendant’s subpoenas on hold for several years and denied Defendant counsel for nine (9) months in 2005-2006. The law only requires the billing agent and practice to keep invoices for three (3) years. The billing agent now claims the invoices no longer exist. The State failed to produce any invoices for the indictment period despite repeated specific orders of Judge Pantle several years ago. It claims to have microfiche of some invoices, but these cannot include most of invoices produced by Ms. Moore, as the State only make microfiche of paper claims. State has not admitted to having or denied having in their possession copies of electronic invoices from indictment period, but has failed to produce them (the actual alleged means of the alleged crime) despite orders of the Court in 2006 to do so. Ms. Moore, by law was allowed to destroy all invoices and computer records of them before 2006.

28.  In addition, banks are only required to keep records for five (5) years. Due to physical incapacity and lack of funds, Mr. XXXX, the sole proprietor of RFOM during the indictment period, has not been able to preserve all his business and bank records. Citizen’s Bank has now informed Defense attorney Albukerk that the practice’s bank records no longer exist as it is now beyond this five (5) year period. The State has failed to ask for, subpoena, or proffer the practice’s bank records in discovery while the case has been pending for four (4) years.

29.  Therefore, the Court and State have caused Defendant to be deprived of the “instruments of the alleged crime,” (the allegedly fraudulent electronic and then paper invoices) as well as exculpatory business and bank records, and therefore, materially and intentionally prevented Defendant from preparing a defense. This is not just lack of due diligence by the State. This is active interference with the defense, as well as violation of the judges’ oaths of office.

30.  The defense cannot have invoices inspected by an expert for forgery of Defendant’s signature by someone unknown person regarding paper claims, nor inspect the electronic partner trading agreement from the third-party adjudicator, Blue Cross Blue Shield of Illinois (”BC/BS”), which allows BC/BS to accept electronic claims from Medicaid providers, for forgery of Defendant’s signature.  

31.  These acts of withholding and failing to preserve evidence by the Court and the State, in themselves should cause this case to be immediately dismissed as a sanction against the State and the Court and because it now is more difficult, if not impossible to definitively prove that Defendant did not produce or cause to be produced most of the invoices in question, nor receive most of the money given the practice by Medicaid or have any part in deciding its distribution. This is the main element and the nature of the alleged crime, stated in general terms in indictment, without description of overt acts. With the physical incapacity of Co-Defendant and his written statement that he is invoking the Fifth Amendment and has refused to give a dying declaration, Defendant is put in the impossible position of proving a negative without the help of any evidence.

32.  Defendant was UNCONSTITUTIONALLY prohibited by the court from filing any pleadings pro se by a written order of Judge Pantle, dated July 6, 2005, that has not been rescinded, and DENIED at the same time an attorney from May 2005 to January 2006, a period of nine (9) months. All Defendant’s subpoenas were put on hold by the court. Defendant has repeatedly requested to present argument to the court on her many outstanding and fully briefed motions and to represent herself and fire attorneys, initially hired by her family without her consent and then hired by her when it became clear that this court was going to continue its lawlessness and deny her all due process, right to an attorney of her choice, and right to a speedy trial. ALL her reasonable requests have been unconstitutionally denied by outrageous and dishonorable conduct of this court.

33.  Denial of her Faretta rights has been baseless, and the reasons stated on the record by Judge Pantle are legally insufficient, lacking details and only conclusory; not properly documented by this court in a manner necessary to deny Faretta rights. Speedy trial has been violated as de facto removing Defendant as pro se counsel between July 6, 2005, when the court prohibited her from filing pleadings, while at the same time denying appointment of an attorney, until Defendant hired an attorney on January 19, 2006, means defense could not have agreed to any continuance during that time and therefore, all continuances during these seven (7) months must be charged to the State, and therefore case must be dismissed for speedy trial reasons.

34.  Therefore, Defendant has been unconstitutionally barred from this court from filing or presenting this motion and many other motions, many of which have been fully briefed since February 2005. Attorneys acting on her behalf, against her wishes, have not fully presented all issues stated in Defendant’s pro se pleadings to the court. She therefore, is requesting her attorneys, denied their request to withdraw by the court and forced to continue to represent Defendant, and therefore appointed by the court over her objection, to file a motion to vacate July 6th, 2005 order preventing Defendant from filing pleadings, as well as adopt this motion and enter this motion, or in the alternative let Defendant pro se argue this motion. If the court won’t allow Defendant to argue it, Defendant requests that it be entered as an Offer of Proof, so that on appeal arguments and defenses she would have presented are preserved on the record.

            WHEREFORE, Defendant respectfully requests this Court to dismiss this case with prejudice for a fatally flawed indictment, or in the alternative for lack of due diligence or speedy trial violation. If this motion is not allowed to be filed for argument, then Defendant requests it be entered as an offer of proof.

                                                                        Respectfully Submitted,

                                                                        _______________________

                                                                        Linda Shelton, Pro Se

 

Linda Lorincz Shelton, Ph.D., M.D.

Pro Se Defendant

 

Under penalties as provided by law pursuant to Section 1-109 of the Code of Civil Procedure, the undersigned certifies that the statements set forth in this instrument are true and correct.

                                                                        __________________________

                                                                        Linda Shelton, Pro Se

 

Dated: August 4, 2008

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 

 

 


October 25, 2008

Defendant Arrested for Pretending to be “Counsel” [Attorney Code 99500 = Pro Se Counsel]


In C[r]ook County Circuit Court, Dishonorable Judge Thomas Donnelly and the C[r]ook County State’s Attorney Devine have charged a pro se defendant with fraudulently presenting himself as an attorney because at the bottom of a pleading he wrote the attorney code 99500.  Court Clerk Dorothy Brown’s office uses this code to designate pro se counsel. The appearance form which is filed in every case in the Court’s Law Division specifically states that the “attorney code” for “pro se” = 99500. Someone needs to inform the judges about this. Divine and Donnelly should have their ignorant, incompetent faces plastered all over the press for this one.  When this case is resolved I’ll add to this post.

Please help Mr. Moore by writing and complaining to:
Hon. Timothy C. Evans
Chief Judge Circuit Court of Cook County
50 W. Washington, Rm 2600
Chicago, IL 60602

Hon. E. Kenneth Wright
Presiding Judge Municipal 1
Circuit Court of Cook County
50 W. Washington, Rm 1303
Chicago, IL 60602

States Attorney Richard Divine
Cook County States Attorney
50 W. Washington, Rm 500
Chicago, IL 60602

Please inform the press and urge them to cover this story! It proves how incompetent, corrupt, and unethical is our states attorney. It proves that he wastes government money harassing activists and whistle blowers such as myself and Mr. Moore.

October 14, 2008

Indigent Petition Illegal Denial in Cook County


In Cook County Illinois, the presiding judge of the law division of the Circuit Court of Cook County, Judge William D. Maddux, routinely violates statutes and denies indigent petitions. He particularly denies them if you are a whistle blower against County Government, if you have filed more than one suit as an indigent person, or if you are “too” well dressed.

He violates law by not granting indigent status when one is on Medicaid, food stamps or SSI, as well as if one is living at an income less than the poverty level.

He fails to specifically state the reason he denies the petition and fails to order a payment schedule or a date certain by which to pay the fee.

He tells his staff to not tell the indigent person their names or their positions to make it harder for the person to appeal his decision. He has his staff routinely write on these petitions: “cannot maintain action in good faith.” This is not a legally valid reason to deny a petition.

Judge Maddux is committing conspiracy to violate rights under color of law, and violation of rights under color of law knowingly and willingly which are both federal felony crimes under the Federal Code. He is violating his oath of office to uphold the law and denying the indigent person their civil rights to redress of grievances, equal protection under the law, and due process. He should be removed from the bench.  I have filed the following Complaint for Mandamus against him in this regard in the Illinois Supreme Court today. I encourage all who are similarly situated to do the same. Chief Judge of the Circuit Court of Cook County, Timothy Evans, is failing to supervise him or his staff and is therefore aiding and abetting  this crime.

IN THE SUPREME COURT OF THE STATE OF ILLINOIS

 

 

Linda L. Shelton                                             )

                        Plaintiff                                     )

                                                                        )      Case No. ______________

v.                                                                                                                              )

)

The Honorable William H. Maddux,            )

in his official capacity as executive director     )

of the Law Division of the Cook County      )

Circuit Court and its Presiding Judge           )

                                                                        )

and                                                                  )

                                                                        )

Dorothy Brown in her official capacity             )

as the Cook County Circuit Court Clerk       )

                                                                        )

                        Defendants                               )

 

VERIFIED COMPLAINT FOR A WRIT OF MANDAMUS

 

            Plaintiff Linda L. Shelton, complains of Defendant as follows:

 

INTRODUCTION

 

1.      This complaint asks this Court to issue a writ of mandamus requiring the Presiding Judge of the Law Division, County Department, of the Circuit Court of Cook County (“CCCC”) and the Clerk of the CCCC to comply with the nondiscretionary mandates of the portion of the Illinois Code of Civil Procedure governing how courts process and evaluate request by litigant to proceed in forma pauperis.

THE PARTIES

2.      Plaintiff Linda L. Shelton is a resident of Cook County and the State of Illinois.

3.      Defendant the Honorable William H. Maddux (“Judge”) is the duly appointed presiding judge of the Law Division of the County Department of the CCCC. He was appointed the presiding judge of the Law Division by order of the Chief Judge of the CCCC, the Honorable Timothy Evans, and as such is authorized to make administrative decisions for the functioning of the Law Division of the CCCC, per rules of the CCCC, consistent with the laws of the State of Illinois and the Illinois Supreme Court Rules.

4.      Defendant Dorothy Brown is the duly elected Clerk of the CCCC (“Clerk”) under the laws of the State of Illinois.

STATEMENT OF FACTS AND ARGUMENT

5.      The Judge has by fiat decided that all petitions for in forma pauperis status in the Law Division of the CCCC will be heard by him ONLY at 11:30 a.m. each morning the court is open. If the plaintiff appears in his courtroom after noon he absolutely refuses to hear the plaintiff’s petition that day. He does not hear the petitions in open court, but requires that the petition be given to his law clerk and the decision on the petition is done without the presence or further input of the Plaintiff. At his discretion, the Judge may come into the courtroom and question the Plaintiff, which on information and belief in practice is almost never done. This procedure is NOT published or posted anywhere and Plaintiffs must discover it by accident or by asking the Clerk or the Judge’s courtroom clerk or law clerks.

6.      On information and belief Plaintiff has discovered that the Judge routinely denies petition to sue as an indigent person in violation of Illinois Statutes and has violated the Plaintiff’s constitutional statutory rights as follows:

735 ILCS 5/5‑105

             Leave to sue or defend as an indigent person.
                         (a) As used in this Section:
                                     (1) “Fees, costs, and charges” means payments

imposed on a party in connection with the prosecution or defense of a civil action, . . . .

(2) “Indigent person” means any person who meets one or more of the following criteria:

(i) He or she is receiving assistance under one or more of the following public benefits programs: Supplemental Security Income (SSI), Aid to the Aged, Blind and Disabled (AABD), Temporary Assistance for Needy Families (TANF), Food Stamps, General Assistance, State Transitional Assistance, or State Children and Family Assistance.

(ii) His or her available income is 125% or less of the current poverty level as established by the United States Department of Health and Human Services, unless the applicant’s assets that are not exempt under Part 9 or 10 of Article XII of this Code are of a nature and value that the court determines that the applicant is able to pay the fees, costs, and charges.

(iii) He or she is, in the discretion of the court, unable to proceed in an action without payment of fees, costs, and charges and whose payment of those fees, costs, and charges would result in substantial hardship to the person or his or her family.

(iv) He or she is an indigent person pursuant to Section 5‑105.5 of this Code.

(b) On the application of any person, before, or after the commencement

of an action, a court, on finding that the applicant is an indigent person, shall grant the applicant leave to sue or defend the action without payment of the fees, costs, and charges of the action.

(c) An application for leave to sue or defend an action as an indigent

person shall be in writing and supported by the affidavit of the applicant or, if the applicant is a minor or an incompetent adult, by the affidavit of another person having knowledge of the facts. The contents of the affidavit shall be established by Supreme Court Rule. . . . The clerk of the court shall post in a conspicuous place in the courthouse a notice no smaller than 8.5 x 11 inches, using no smaller than 30‑point typeface printed in English and in Spanish, advising the public that they may ask the court for permission to sue or defend a civil action without payment of fees, costs, and charges. The notice shall be substantially as follows:
        “If you are unable to pay the fees, costs, and charges of an action you may ask the court to allow you to proceed without paying them. Ask the clerk of the court for forms.”

(d) The court shall rule on applications under this Section in a timely manner based on information contained in the application unless the court, in its discretion, requires the applicant to personally appear to explain or clarify information contained in the application. If the court finds that the applicant is an indigent person, the court shall enter an order permitting the applicant to sue or defend without payment of fees, costs, or charges. If the application is denied, the court shall enter an order to that effect stating the specific reasons for the denial. The clerk of the court shall promptly mail or deliver a copy of the order to the applicant.
            (e) The clerk of the court shall not refuse to accept and file any complaint, appearance, or other paper presented by the applicant if accompanied by an application to sue or defend in forma pauperis, and those papers shall be considered filed on the date the application is presented. If the application is denied, the order shall state a date certain by which the necessary fees, costs, and charges must be paid. The court, for good cause shown, may allow an applicant whose application is denied to defer payment of fees, costs, and charges, make installment payments, or make payment upon reasonable terms and conditions stated in the order. The court may dismiss the claims or defenses of any party failing to pay the fees, costs, or charges within the time and in the manner ordered by the court. A determination concerning an application to sue or defend in forma pauperis shall not be construed as a ruling on the merits.
             (f) The court may order an indigent person to pay all or a portion of the fees, costs, or charges waived pursuant to this Section out of moneys recovered by the indigent person pursuant to a judgment or settlement resulting from the civil action. However, nothing is this Section shall be construed to limit the authority of a court to order another party to the action to pay the fees, costs, or charges of the action.

 

The Judge wrote on the order that the Plaintiff is denied in forma pauperis status despite the fact that the Plaintiff is “indigent” as provided by the above statute. He wrote as the reason on the order in the handwriting of his law clerk: “cannot maintain action in good faith.” (Exhibit A) There is NO provision in this statute for the Judge determining whether or not the Plaintiff can maintain the action in good faith. It is mandatory that the Judge grant the petition if the Plaintiff meets the qualifications for indigent status as defined in Statute, 735 ILCS 5/5-105(a)(2) & (b). The Judge failed to issue an order as to when the filing fee must be paid to prevent dismissal and fails to consider payment plans, which is an issue he is required to decide and write in his order per statute, 737 ILCS 5/5-105(e). These omissions of the Judge are violations of the First and Fifth Amendments rights to redress of grievances (access to the courts) and due process.

7.      The Clerk oversees the office of the Clerk of the CCCC. She and her staff are responsible for filing and maintaining a record of all civil cases filed and heard in the CCCC. The Clerk is responsible, in her official capacity, for the actions of her staff as alleged herein. The only information a plaintiff obtains from the Clerk on her website in regards to in forma pauperis petitions is that they must be heard by a judge.  The Clerk’s authority to file complaints is determined by the rules of the CCCC and Illinois Statutes:

CCCC Rule 0.3.1 Clerk of Court

(a) The Clerk of the Circuit Court of Cook County shall perform the duties usually performed by the Clerk as provided in “An Act to revise the law in relation to clerks of courts,” Chapter 25, Illinois Revised Statutes.

 

705 ILCS 105/10
The principal clerk shall, in all cases, be responsible for the acts of his or her deputies.


705 ILCS 105/13
The clerks shall attend the sessions of their respective courts, preserve all the files and papers thereof, make, keep and preserve complete records of all the proceedings and determinations thereof, except in cases otherwise provided by law, and do and perform all other duties pertaining to their offices, as may be required by law or the rules and orders of their courts respectively.

 

8.      The Clerk of the CCCC, on information and belief, refuses to accept a complaint for filing unless the Plaintiff pays the filing fee or presents to the Clerk a copy of an order from the Judge granting in forma pauperis status.

9.      The statutes of the State of Illinois, 735 ILCS 5/5-105, state:

The clerk of the court shall not refuse to accept any complaint, appearance, or other paper presented by the applicant if accompanied by an application to sue or defend in forma pauperis, and those papers shall be considered filed on the date the application is presented.

 

This is a non-discretionary act of the Clerk of the CCCC.

10.  Plaintiff of October 2, 2008 arrived in the courtroom of the Judge at 10:30 a.m. and waited until the call was ending to hand the courtroom clerk a Petition to Sue as an Indigent Person (Exhibit B) and a tort Complaint (Exhibit C).

11.  At approximately noon the court proceedings had ended, the Judge had retired to his chambers, and the courtroom clerk took the Plaintiff’s documents and documents from other similarly situated persons to the Judge’s chambers.

12.  Approximately an hour later, the Judge’s staff came out and gave all the papers and orders to an employee of the Clerk’s office, who told Plaintiff and other similarly situated persons to follow him to the Clerk’s office on the 8th floor of the Daley Center, Room 801.

13.  In room 801 in the line for filing complaints each in succession after a period of waiting the Clerk’s staff called Plaintiff and similarly situated individuals up to the counter.

14.  Plaintiff was informed that the Judge denied the Petition. Plaintiff asked why? The Clerk’s staff stated “You can’t sue in good faith.” The Clerk’s staff demanded payment of the filing fee of $381 in order to file the complaint.

15.  Plaintiff stated she could not pay the fee. The Clerk’s staff refused to file the complaint without the fee, so Plaintiff demanded her papers back. The Clerk’s staff withheld the order from Plaintiff and gave back the complaint and blank copies of the proposed order.

16.  Plaintiff immediately went back to the Judge’s courtroom and requested to have her case (Petition) recalled to the courtroom Sheriff’s deputy, who was the only person in the courtroom at that time. She sat quietly with her walker on a bench in the gallery.

17.  The Sheriff’s deputy went to the Judge’s chamber and came back and told Plaintiff her situation was being reviewed.

18.  A secretary or law clerk who refused to reveal her name or position came out and told Plaintiff she would not be heard. Plaintiff told her that she did not receive a copy of the order and this woman went in the back and eventually came back with a copy of the order that said the Petition was denied because “cannot maintain action in good faith.” Plaintiff stated to this lady that this order was legally insufficient and void and she wanted to make an instanter motion to reconsider. The lady stated she would not give legal advice, when none was asked for.

19.  The lady stated that the Judge was gone. Plaintiff stated she would wait until he returned. The lady stated that Plaintiff would have to come back another day at 9:30 for motions. Plaintiff stated that she needed a case number and that the Clerk had failed to write one on the order. The lady stated she would give no legal advice. Plaintiff stated that she wanted to know the administrative procedure for appealing the decision. The lady stated she would give no legal advice.

20.  Plaintiff stated she needed the lady’s name so that she could appeal the ruling and that she would come back the next day with a motion to reconsider. The lady refused to give her name and left.

21.  The courtroom deputy refused to give the lady’s name or the nature of her position in the court.

22.  Plaintiff stated she would go in the back to the chambers and ask the law clerk to identify the lady, as she had the same standing as a pro se counsel as an attorney to request information from the secretary and law clerk in the chambers. The courtroom deputy stated he would not allow Plaintiff to go to the chambers.

23.  Plaintiff then got out her cell phone and called the CCCC Chief Judge Evan’s office. Rosemary answered the phone and Plaintiff politely requested the name of the secretary and law clerks for the Judge. Rosemary stated she didn’t give out that information, not even first names. She demanded the name of the caller and Plaintiff stated Linda. She demanded Plaintiff’s last name and Plaintiff stated, “when you give me your last name, I’ll give you mine.”  Plaintiff asked Rosemary how to make a complaint to the Chief Judge and Rosemary said to write a letter and gave the address.

24.  During this time, two Sheriff’s Sergeants and several Officers arrived in the courtroom. As Plaintiff was talking on the phone, the deputies ordered her to leave the courtroom and the oriental Sgt. known to others as “Q” threatened Plaintiff with an unlawful arrest for “trespass to state supported land.” Plaintiff demanded their names and the name of the lady. They refused to give their names and said “read it off my badge”, but were too far for Plaintiff to read the names, except for two deputies, Woods badge 11223 and Erman. Plaintiff stated she wasn’t leaving until she had the name of the lady so she could write a proper appeal identifying all the actors in the situation. The deputies then ordered Plaintiff to stand and submit to arrest. They grabbed her papers and her walker away from her and Plaintiff stood up. The deputies ordered Plaintiff to walk to the door and Plaintiff replied: “that’s impossible because you took my walker.”

25.  The deputies surrounded Plaintiff and returned the walker and Plaintiff walked out of the courtroom door surrounded by the deputies and led by Sgt. Q. They did not arrest Plaintiff, but a deputy pulled the walker too fast causing Plaintiff to lose her grip. Then Deputy Woods pushed Plaintiff, Plaintiff lost her balance and had to grab Woods’ shoulder to keep from falling. Plaintiff loudly complained: “stop assaulting me.” The deputies then gave back the walker and backed off a bit.

26.  Plaintiff then proceeded to the Clerk’s satellite office next to the Judge’s courtroom and went up to the counter and asked the name of the lady and the Judge’s law clerks, two of whom came into the room while Plaintiff was talking.  The two clerk’s assistants and the two law clerks refused to identify the lady or themselves. Plaintiff called a friend on her cell phone and was told one of the law clerk’s names was “Donald”. Plaintiff then left the building.

27.  The next day Plaintiff was granted food stamps by the Illinois Department of Human Services (“IL Medicaid”).

28.  Plaintiff has a clear right to have either her Indigency Petition approved or to receive a written order stating the specific reasons for the denial. The Judge had a clear duty to approve the Indigency Application or to issue a written order stating the specific reasons for denial. Now that Plaintiff has been granted food stamps, the Judge has an absolute duty to approve the Indigency Petition. The Clerk had a clear duty to file the Complaint.

29.  By refusing to perform their statutory duties, the Clerk and the Judge violated Plaintiff’s right to due process, her right to equal protection of the laws and her right to petition the government for a redress of grievances as guaranteed by the United States Constitution and the Constitution of the State of Illinois.

WHEREFORE, for the foregoing reasons, Plaintiff, Linda L. Shelton respectfully

requests that this Honorable Court:

a.         issue a writ of mandamus requiring

1.                  that Dorothy Brown, the Clerk, accept the filing of Plaintiff’s complaint nunc pro tunc to October 2, 2008; and

2.                  that the Honorable Judge Maddux, grant Plaintiff’s Indigency Petition;

3.                  that Judge Maddux’s staff must identify themselves and state their positions when asked by a citizen;

4.                  that Judge Maddux’s staff will cease and desist using Sheriff’s deputies to harass citizens seeking grants of Indigency Petitions, will stop in so doing obstructing justice, and will stop violating constitutional and statutory rights of such citizens;

b.         issue an order requiring Defendants to reimburse Plaintiff for the costs associated with bringing this action including but not limited to parking fees and Xeroxing costs;

c.         grant such other relief as this Court deems appropriate including but not limited to reprimanding the Judge for violation of his oath of office.

 

Under penalties as provided by law pursuant to 735 ILCS 5/109-1 I certify that the statements set forth herein are true and correct.

 

____________________________                           

October 9, 2008                                              Linda L. Shelton

 

 

Linda Lorincz Shelton, Ph.D., M.D.

Plaintiff Pro Se

 

 

 

 

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