Pro Se Chicago's Weblog

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

May 27, 2014

Right to present a defense


Add your case’s caption, add the standard ending to a court pleading (Respectfully submitted by _______, and the litigants name address and phone), as well as a notice of service and filing.

Look up the case law in your state as Illinois case law has no precedent in another state which is true of all case law. Substitute your state’s case law for case law here, but you may be able to obtain search terms as sell as Shephardize the U.S. Supreme Court cases to find your state’s case law by using the following:

_____________________________________________________________________________________________________

MEMORADUM OF LAW – RIGHT TO PRESENT A DEFENSE

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

  1. A defendant has a right to present a defense, as in In re Marriage of A’Hearn, 408 Ill.App.3d 1091, 947 N.E.2d 333, 349 Ill.Dec.696 (2011), where the court ruled that it was too harsh a sanction as well as it ignored the best interest of the child, when in a post-trial motion to change custody was dismissed due to the litigant violating discovery. The court ruled that the best interests of the child were so important that a discovery violation was not extreme enough to deny a hearing on the merits.
  2. Every defendant has a Sixth Amendment right to present a defense. People v. Manion, 67 Ill.2d 564, 10 Ill.Dec. 547, 367  N.E.2d 1313 (1977) [It is a fundamental error to deny the right to present a defense that requires the decision be overturned. Striking Manion’s response was a denial of a right to present a defense as was the court’s decision to hold the trial and deny a continuance so Manion could obtain discovery and plan a defense.  The decision of the court was overturned.]
  3. It is a fundamental doctrine of law that a party to be affected by a personal judgment must have his day in court, and an opportunity to be heard. Renaud v. Abbott, 116 US 277, 29 L Ed 629, 6 S Ct 1194 (1886). Every person is entitled to an opportunity to be heard in a court of law upon every question involving his rights or interests, before he is affected by any judicial decision on the question. Earle v McVeigh, 91 US 503, 23 L Ed 398 (1875).
  4. Per the U.S. Supreme Court, a judgment of a court without hearing the party or giving him an opportunity to be heard is not a judicial determination of his rights. Sabariego v Maverick, 124 US 261, 31 L Ed 430, 8 S Ct 461 (1888), and is not entitled to respect in any other tribunal.

May 18, 2009

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


NOTE: As of April 1, 2016 the Black Line Trial Call has been abolished and a Master Trial setting call has been established. See article about this new system. You no longer will have hearings without notice !!!

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Rule 105. Additional Relief Against Parties in Default–Notice

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

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

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

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

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

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

1)                  Constitutional right to redress of grievances;

2)                  Due Process under the Fifth and Fourteenth Amendments;

3)                  Violation of Civil Rights Under Color of Law;

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

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

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

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

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

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

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

November 18, 2008

Dismissal due to Discovery Violations


DISMISSAL DUE TO DISCOVERY VIOLATIONS/DUE PROCESS GROUNDS

 

The duties to disclose and preserve impeachment/exculpatory evidence are grounded in the due process right to a fair trial. Kyles v. Whitley, 514 U.S. 419, 434 (1995); United States v. Bagley, 473 U.S. 667, 678 (1985); United States v. Agurs, 427 U.S. 97, 104 (1976); Brady v. Maryland, 373 U.S. 83 at 87 (1963) . Thus, the withholding or destruction of evidence violates a criminal defendant’s constitutional rights only if, as a result of the withholding or destruction of evidence the criminal defendant is denied a fair trial. Bagley, 473 U.S. at 678.

In People v. Walker, 257 Ill.App.3d 332, 628 N.E.2d 971 (1st Dist. 3d Div.
 1993) the court found that: “When police destroy material evidence, defendant’s clothing where he was  claiming misidentification … defendant’s due process rights violated and not an abuse of judicial discretion to dismiss the indictment.”

In People v. Madison, 264 Ill.App. 481, 637 N.E.2d 1074 (1st Dist., 4th Div.
 1994) the court found that: “Police destruction of evidence, heroin prior to trial, requires dismissal.”

            In Arizona v. Youngblood, 488 U.S. 51, 102 L. Ed. 2d 281, 109 S. Ct. 333 (1988), the court held that police did not deny the defendant due process by inadvertently destroying evidence that might have aided him.

      In People v. Camp, 352 Ill. App. 3d 257, 815 N.E.2d 980 (2d Dist. 2004) the court

discussed bad faith and its relationship to destruction of evidence and the issue of whether the evidence had only speculative value or was essential to the case.

“We have applied Newberry to uphold dismissals on due process grounds where the State destroyed evidence that was essential or outcome determinative. In People v. Crowder, 323 Ill. App. 3d 710, 753 N.E.2d 1165, 257 Ill. Dec. 539 (2001), the defendant was charged with two weapons offenses. After receiving a discovery request for the gun on which the charges were based, the State lost the gun. The trial court dismissed the charges. We affirmed, observing that the key issue was whether the gun was actually a firearm and not, e.g., a toy or inoperable replica. Crowder, 323 Ill. App. 3d at 712. Thus, the gun was essential to the case, and the defendant had no realistic hope of exonerating himself unless his experts could examine it. Crowder, 323 Ill. App. 3d at 712; see also People v. Coleman, 307 Ill. App. 3d 930, 934, 718 N.E.2d 1074, 241 Ill. Dec. 220 (1999) (dismissal proper after State inadvertently lost or destroyed alleged controlled substance that defendant had sought in discovery [in a timely fashion, even in the absence of bad faith].” People v. Camp, 352 Ill. App. 3d 257, 815 N.E.2d 980 (2d Dist. 2004)

 

“The court distinguished Arizona v. Youngblood, 488 U.S. 51, 102 L. Ed. 2d 281, 109 S. Ct. 333 (1988), which held that police did not deny the defendant due process by inadvertently destroying evidence that might have aided him. The Newberry court observed first that, in Youngblood, the Court required a showing of bad faith because the evidence that was destroyed had no more than speculative value to either the State or the defendant. Newberry, 166 Ill. 2d at 315; see Youngblood, 488 U.S. at 58, 102 L. Ed. 2d at 289, 109 S. Ct. at 337. The court observed second that in the case before it, unlike in Youngblood, the evidence was destroyed after the defendant had requested it in discovery. Thus, the State had been on notice that it needed to preserve the evidence. Newberry, 166 Ill. 2d at 317.”  People v. Camp, 352 Ill. App. 3d 257, 815 N.E.2d 980 (2d Dist. 2004)

 

“[I]n Newberry, the police seized what appeared to be cocaine from the defendant. After the substance tested negative, the defendant was charged with possessing a look-alike substance. However, a second drug test was positive. The State then indicted the defendant for possessing cocaine and several closely related offenses and dismissed the look-alike substance charge. After the defendant filed a general discovery request, he learned that the police had mistakenly destroyed the alleged cocaine. On the defendant’s motion, the trial court dismissed the indictments. Newberry, 166 Ill. 2d at 312-13.

The supreme court affirmed the trial court’s decision. The court held that, even absent bad faith, trying the defendant would deny him due process because the destroyed evidence was “essential to and determinative of the outcome of the case.” Newberry, 166 Ill. 2d at 315. That was because the defendant could not be convicted of the possession charges without proof of the content of the substance and, conversely, could not hope to exonerate himself without a chance to have his own experts examine the substance. Newberry, 166 Ill. 2d at 315.” People v. Camp, 352 Ill. App. 3d 257, 815 N.E.2d 980 (2d Dist. 2004)

 

“Aside from relying on due process, the supreme court upheld the dismissal of the charge as a proper sanction for the State’s discovery violation. …[U]nder Ill. Sup. Ct. R. 415(g)(i), a trial court may impose appropriate sanctions where the State fails to meet its discovery obligations, even absent bad faith. Newberry, 166 Ill. 2d at 317-18. Because the evidence that was destroyed was “pivotal,  the court held that the trial court did not abuse its discretion in dismissing the charge. Newberry, 166 Ill. 2d at 318.” People v. Camp, 352 Ill. App. 3d 257, 815 N.E.2d 980 (2d Dist. 2004)

 

            Courts have ruled that if the police destroy evidence, “even absent bad faith” that is “essential and determinative of the outcome of the case” then the Defendant would be denied due process, as the defendant “could not hope to exonerate himself without a chance to have his own experts examine the substance [evidence forming basis of case].”  People v. Camp, 352 Ill. App. 3d 257, 261, 815 N.E.2d 980, 984 (2d Dist. 2004)

The court in Camp (id.) reasoned that if the charges were dependent on the destroyed evidence then the defendant would be deprived of due process if convicted. Therefore, they concluded that the case must be dismissed under such circumstances.

The trial court in Camp (id.) suggested that when the destroyed evidence is not essential or outcome determinative, the court has the power to impose lesser sanctions than dismissal.

“[T]he court could impose a sanction short of dismissal, such as instructing the jury that it could “take the disappearance of evidence in a manner disadvantageous to the prosecution.” People v. Camp, 352 Ill. App. 3d 257, 815 N.E.2d 980 (2d Dist. 2004)

 

 “This is primarily a question for the trial court, which has broad discretion to impose sanctions that are proportionate to the magnitude of the discovery violation. Newberry, 166 Ill. 2d at 317-18; People v. Koutsakis, 255 Ill. App. 3d 306, 314, 627 N.E.2d 388, 194 Ill. Dec. 272 (1993)…. [T]he trial court may consider a variety of less drastic options [than dismissal]. These include instructing the jury that the absence of the videotape requires an inference that the tape’s contents are favorable to defendant. See Thorne v. Department of Public Safety, 774 P.2d 1326, 1331-32 (Alaska 1989) (imposing similar remedy on remand to hearing officer in DUI case). On remand, the trial court is to consider the appropriate sanction under Rule 415(g)(i) for the State’s discovery violation.” People v. Camp, 352 Ill. App. 3d 257, 815 N.E.2d 980 (2d Dist. 2004)

October 24, 2008

Outrageous Government Conduct – Not Just for Drug Cases!


IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS

COUNTY DEPARTMENT, CRIMINAL DIVISION

 

People of the State of Illinois                             )

                        Plaintiff                                     )

                        v.                                             )           No. 05 CR 12718

Linda Shelton                                                   )

                        Defendant                                 )           Honorable Judge Kazmierski

                                                                        )                       presiding

 

 

MEMORANDUM OF LAW

OUTRAGEOUS GOVERNMENT CONDUCT DEFENSE

 

                NOW COMES, the Defendant, Linda L. Shelton, Pro Se who respectfully submits this memorandum of law as follows:

 

The Orphan Doctrine of Outrageous Government Conduct

Otherwise known as the criminal defense of

DUE PROCESS

Proof that it is alive and well in Illinois

The doctrine of “outrageous conduct,” sometimes referred to as “outrageous misconduct,” was introduced by the Supreme Court. In the course of discussing the entrapment defense, the Court speculated that:  “[W]e may some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial process to obtain a conviction ….” United States v. Russell, 411 U.S. 423, 431-32, 36 L. Ed. 2d 366, 93 S. Ct. 1637, 1643 (1973). The Russell court went on to state that in order to rise to the level of outrageous, the misconduct must be of such a nature that it violates “‘fundamental fairness, shocking to the universal sense of justice, mandated by the Due Process Clause of the Fifth Amendment.” Russell, 411 U.S. at 432, 36 L. Ed. 2d 366, 93 S. Ct. at 1643, quoting Kinsella v. United States ex rel. Singleton, 361 U.S. 234, 246, 4 L. Ed. 2d 268, 80 S. Ct. 297, 303 (1960).

The outrageous-misconduct defense was further addressed by the Supreme Court in Hampton v. United States, 425 U.S. 484, 48 L. Ed. 2d 113, 96 S. Ct. 1646 (1976). “Police involvement in crime would have to reach a demonstrable level of outrageousness before it could bar conviction.”  Id. 1653 n.7

In Hampton, the defendant was convicted of distributing heroin, despite his argument that because the heroin had been supplied by a government informer and sold by the defendant to an undercover agent, the defendant’s due process rights had been violated. The Supreme Court affirmed the conviction but wrote three separate opinions. The plurality opinion found that neither the defense of entrapment nor the defense of outrageous conduct was available to the defendant because the defendant was predisposed to commit the crime. The plurality opinion stated, “If the police engage in illegal activity in concert with a defendant beyond the scope of their duties[,] the remedy lies[,] not in freeing the equally culpable defendant[,] but in prosecuting the police under the applicable provisions of state or federal law.” Hampton, 425 U.S. at 489, 48 L. Ed. 2d 113, 96 S. Ct. at 1650 (plurality opinion of Rehnquist, J., joined by Burger and White, JJ.). Two justices concurred in the result but refused to foreclose the possibility of the fundamental-fairness defense even where predisposition is shown. Hampton, 425 U.S. at 491-95, 48 L. Ed. 2d 113, 96 S. Ct. at 1650-53 (Powell, J., concurring, joined by Blackmun, J.). On the other hand, the dissenting justices believed that the behavior of the law enforcement officials was sufficiently offensive to bar a conviction. Hampton, 425 U.S. at 495-500, 48 L. Ed. 2d 113, 96 S. Ct. at 1653-55 (Brennan, J., dissenting, joined by Stewart and Marshall, JJ.). Accordingly, Hampton stands for the proposition that even though proof of predisposition to commit a crime will bar the application of the entrapment defense, fundamental fairness will not permit any defendant to be convicted of a crime in which police conduct is outrageous. See United States v. Twigg, 588 F.2d 373, 378-79 (3rd Cir. 1978).

            “The due process defense of outrageous police conduct was elevated from theory to reality in United States v. Twigg, 588 F.2d 373, 377 (3rd Cir. 1978). That court reversed convictions of two defendants, because ‘the nature and extent of police involvement … was so overreaching as to bar prosecution of the defendants as a matter of due process of law.’…  The State has argued that this due process defense…our [Illinois] supreme court has conclusively rejected…in People v. Cross, 77 Ill.2d 396, 33 Ill.Dec. 285, 396 N.E.2d 812 (Ill. 1979).  We believe that… Cross should not be interpreted as a bar to the due process defense.” People ex rel Difanis v. Boston, 92 Ill.App.3d 962, 416 N.E.2d 333, 336-337 (Ill.App. 4 Dist. 1981).

 

In People v. Ming, 316 Ill.App. 1274, 250 Ill.Dec. 412, 738 N.E.2d 628 (Ill.App. 5 Dist. 2000) the court extensively discussed the defenses of entrapment and outrageous government conduct, holding that the defense of outrageous government conduct exists in Illinois, even if it has never been successfully employed:

“…[T]he outrageous [government] conduct defense looks at the government’s behavior.  See United States v. Gamble, 737 F.2d 853, 858 (10th Cir. 1984).…  One circuit of the United States Court of Appeals has declared the defense dead (United States v. Boyd, 55 F.3d 239 (7th Cir. 1995))… First, we point out that decisions of United States district courts and courts of appeal are not binding on Illinois courts. See City of Chicago v. Groffman, 68 Ill. 2d 112, 118, 368 N.E.2d 891, 894 (1977). Second, it is noteworthy that Boyd dealt with prosecutorial misconduct, while the instant case deals instead with the alleged misconduct of an undercover drug agent. Finally, we disagree with the Boyd court’s holding that the doctrine is dead.  Contrary to the holding in Boyd, the fact remains that most jurisdictions at least acknowledge that such a defense exists.  For example, United States v. Mosley, 965 F.2d 906, 909 (10th Cir. 1992), cited cases from 11 circuits, all of which agreed that the defense of outrageous [government] conduct exist.” Ming. Id.

“One of the few cases to actually advance the defense of outrageous police misconduct from pure theory to reality is United States v. Twigg, 588 F.2d 373 (3rd Cir. 1978), which is distinguishable from the case before us. In Twigg, a government informant suggested the establishment of a laboratory to manufacture ‘speed.’ The government supplied a chemical used to make the drug, made arrangements with chemical supply houses to provide the other ingredients, and provided the production site, and a government agent was completely in charge of the operation. Thus, Twigg involved an egregious case of government overinvolvement in which the government’s undercover operative essentially concocted and conducted the entire illicit scheme. The Twigg court characterized the police conduct as ‘so overreaching as to bar prosecution of the defendants as a matter of due process of law.’ Twigg, 588 F.2d at 377. In a footnote, the Twigg court stated:

 

FN ‘We are adhering to Justice Powell’s reasoning [in Hampton] that in evaluating whether government conduct is outrageous, the court must consider the nature of the crime and the tools available to law enforcement agencies to combat it.’ Twigg, 588 F.2d at 378 n.6.”

 

Ming. Id.

“The outrageous-conduct defense is distinct from the entrapment defense because while the entrapment defense looks to the state of mind of the defendant in order to determine whether he or she was predisposed to commit the crime being prosecuted (Jacobson v. United States, 503 U.S. 540, 118 L. Ed. 2d 174, 112 S. Ct. 1535, 1540 (1992)), the outrageous-conduct defense looks at the government’s behavior. See United States v. Gamble, 737 F.2d 853, 858 (10th Cir. 1984). The defense of outrageous conduct is premised upon the notion that the due process clause imposes limits upon how far the government can go in detecting crime irrespective of the character of the target. See People v. Hirsch, 221 Ill. App. 3d 772, 779, 582 N.E.2d 1228, 1232 (1991). We are cognizant that ‘[t]he banner of outrageous misconduct is often raised but seldom saluted’ (United States v. Santana, 6 F.3d 1, 4 (1st Cir. 1993)) and that one circuit of the United States Court of Appeals has declared the defense dead (United States v. Boyd, 55 F.3d. 239 (7th Cir. 1995)). In addressing whether or not the doctrine is valid, the Boyd court stated:

 

FN ‘Today we let the other shoe drop, and [we] hold that the doctrine does not exist in this circuit. The gravity of the prosecutors’ misconduct is relevant only insofar as it may shed light on the materiality of the infringement of the defendants’ rights; it may support, but it can never compel, an inference that the prosecutors resorted to improper tactics because they were justifiably fearful that without such tactics the defendants might be acquitted.’ Boyd, 55 F.3d at 241.”

 

Ming. Id.

 “Several Illinois cases have discussed the defense of outrageous government conduct with respect to undercover drug officers and recognize its validity, including People v. D’Angelo, 223 Ill.App.3d 754, 166 Ill.Dec. 217, 585 N.E.2d 1239 (1992).  In both People v. Johnson, 123 Ill.App.3d 363, 78 Ill.Dec. 829, 462 N.E.2d 948 (1984) and People ex rel Difanis v. Boston, [supra], the defense of outrageous government conduct was recognized. The D’Angelo court found that because defendant failed to raise the issue of outrageous conduct in his posttrial motion, the issue was waived, but the court legitimized the defense by stating, ‘In any event, we do not believe that the conduct of the government agents in this case is so outrageous that it violates fundamental fairness or shocks the conscience.’ D’Angelo, 223 Ill. App. 3d at 782, 585 N.E.2d at 1257. In both People v. Johnson, 123 Ill. App. 3d 363, 462 N.E.2d 948 (1984), and People ex rel. Difanis v. Boston, 92 Ill. App. 3d 962, 416 N.E.2d 333 (1981), the defense of outrageous governmental conduct was recognized as a separate defense from that of entrapment.… However, none of those courts believed that the conduct complained of rose to the level of outrageousness necessary to bar the action…  In fact, no Illinois case has yet to find outrageous government conduct sufficient to bar the prosecution of the defendant; on the other hand, no Illinois case has denied the doctrine’s validity.  After considering the historical perspective of the doctrine, we hold that it is a valid defense in Illinois. …  A defendant can raise the defense of outrageous [government] conduct if the government was overly involved in the creation of a crime or if the government coerced the defendant into participating [therein].    One of the few cases to actually advance the defense of outrageous government conduct from pure theory to reality is United States v. Twiggs, 588 F.2d 373 (3rd Cir. 1978).    Twigg involved an egregious case of government overinvolvement in which the government’s undercover operative essentially concocted and conducted the entire illicit scheme.  The Twigg court characterized the police conduct as ‘so overreaching as to bar prosecution of the defendants as a matter of due process of law.’    Should the proper factual situation arise, courts should apply the doctrine of outrageous police misconduct and dismiss the charges against a defendant.”  Ming. Id.

“After considering the historical perspective of the doctrine, we hold that it is a valid defense in Illinois.” Ming. Id.

 “Whether the circumstances of a case demonstrate outrageous government conduct is a question of law for the court to decide. See People v. Johnson, 123 Ill. App. 3d 363, 373-74, 462 N.E.2d 948, 955 (1984). A defendant can raise the defense of outrageous conduct if the government was overly involved in the creation of a crime or if the government coerced the defendant into participating. See United States v. Mosley, 965 F.2d 906, 912 (10th Cir. 1992)…. Whether or not conduct is outrageous must be determined on an ad hoc basis and cannot be reduced to a specific formula. See United States v. Santana, 6 F.3d 1, 6 (1993)…. [The Santana case gave guidelines to determine outrageous government conduct in drug sting cases where the defendants claim entrapment.] While the Santana court appreciated the district court’s efforts to structure such a test, it found that ‘there is simply no way to reduce the myriad [of] combinations of potentially relevant circumstances to a neat list of weighted factors without losing too much in the translation.’ Santana, 6 F.3d at 6. We agree with the Santana court that there is no universal litmus test for a court to utilize to determine whether or not conduct is outrageous…. Ultimately, the outrageousness of a police officer’s actions must be evaluated by (1) taking into account the totality of the relevant circumstances (Santana, 6 F.3d at 7) and (2) considering whether or not the totality of the circumstances show misconduct of such a nature that it violates fundamental fairness and is shocking to our universal sense of justice. See Russell, 411 U.S. at 432, 36 L. Ed. 2d at 366, 93 S. Ct. at 643.” Ming. Id.

 

The court in United States v. Diaz, 189 F. 3d 1239 (1999) stated the following: “In sum, there is no binding Supreme Court authority recognizing a defense based solely upon an objective assessment of the government’s conduct in inducing the commission of crimes. Non-binding dicta of the Court, indicating that there may be such a defense, has been recanted by its author based upon reasoning later adopted by a majority of the Court in United States v. Payner, 447 U.S. 727, 737 n. 9 (further citation omitted). Moreover, this court has recognized the availability of this defense only in dicta because, in every case in which the issue has been raised, the government’s conduct has been held not to have been ‘outrageous.’ The only case squarely holding that an objective assessment of the government’s conduct in a particular case may bar prosecution without regard for the defendant’s predisposition [United States v. Twigg, 588 F.2d 373 (3d Cir. 1978), cited extensively by Mr. Diaz] has been greatly criticized, often distinguished and, recently, disavowed in its own circuit.” Diaz, Id.

“In considering this argument, we are not as sanguine as the government, nor even as literary or mythical. See Rec. vol. I, doc. 16, at 23 (‘this court should similarly reject the outrageous government conduct defense as a chimera or unicorn ­ often hunted but never taken into captivity’). We note that the disaffection with the doctrine does not yet indicate its total impossibility. Rather, as Justice Powell noted in Hampton v. United States, 425 U.S. 484 (1976), while rejecting the plurality’s conclusion that neither due process principles nor supervisory powers could support a bar to conviction in any case where the Government is able to prove predisposition:

 

I emphasize that the cases, if any, in which proof of predisposition is not dispositive will be rare. Police overinvolvment in crime would have to reach a demonstrable level of outrageousness before it could bar conviction.

 

Hampton, 425 U.S. at 495 n.7 (Powell, J., concurring) (emphasis added).” Diaz, Id. 

 

United States Attorney’s View of Outrageous Government Conduct

[for purposes of understanding the viewpoint of a “prosecutor”]

 

In U.S. Attorney’s Manual:

“While the essence of the entrapment defense is the defendant’s lack of predisposition to commit the offense, the ‘defense’ of outrageous government conduct presupposes predisposition but seeks dismissal of the indictment on the ground that the conduct of law enforcement agents was ‘so outrageous that due process principles would absolutely bar the government from invoking judicial process to obtain a conviction.’ United States v. Russell, 411 U.S. 423, 431-32 (1973). Thus, the outrageous government conduct defense is not really a defense at all. Rather, it is a claim that the institution of the prosecution suffers from a purely legal defect; as such, the claim is waived unless raised prior to trial under Fed. R. Crim. P. 12(b)(1) and (b)(2). See, e.g., United States v. Henderson-Durand, 985 F.2d 970, 973 & n. 5 (8th Cir.), cert. denied, 510 U.S. 856 (1993); United States v. Duncan, 896 F.2d 271, 274 (7th Cir. 1990); United States v. Nunez-Rios, 622 F.2d 1093, 1099 (2d Cir. 1980).

The Supreme Court has never held that the government’s mere use of undercover agents or informants, or the use of deception by them, gives rise to a due process violation, although in Russell it left open that possibility. The requisite level of outrageousness could be reached only where government conduct is so fundamentally unfair as to be ‘shocking to the universal sense of justice.’ Id. at 432. No court of appeals has held that a predisposed defendant may establish a due process violation simply because he purportedly was induced to commit the crime by an undercover agent or informant. See, e.g., United States v. Pedraza, 27 F.3d 1515, 1521 (10th Cir.) (not outrageous for government ‘to infiltrate an ongoing criminal enterprise, or to induce a defendant to repeat, continue, or even expand criminal activity.’), cert. denied, 115 S. Ct. 347 (1994). Defendants who claim to be victims of outrageous government conduct sometimes also argue that the district court should dismiss the indictment in the exercise of its supervisory power. In the absence of a due process violation, however, a district court has no authority to dismiss an indictment on this basis. See, e.g., United States v. Simpson, 927 F.2d 1088, 1090 (9th Cir. 1991).” See U.S. Attorney’s Manual

 

Historical Context

[Note: that outrageous government conduct affirmative defenses have

almost entirely been limited to police drug stings and

undercover operations related to drugs and a few cases of proscutorial misconduct-there is no precedence providing guidelines for its use in other situations]

 

In United States v. Santana and Fuentes, 6 F. 3d 62 (1993) the court stated:

“Outrageous misconduct is the deathbed child of objective entrapment, a doctrine long since discarded in the federal courts.  See, e.g., Sherman v. United States, 356 U.S. 369, 372 (1958) (rejecting an objective entrapment approach in favor of a subjective approach).  The doctrine’s midwife was Chief Justice Rehnquist (then Justice Rehnquist), who, in the course of championing a subjective theory of entrapment, speculated that the Court might ‘some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction. . . .’  United States v. Russell, 411 U.S. 423, 431-32 (1972). Seizing upon this dictum, the defendant in Hampton v. United States, 425 U.S. 484 (1975), attempted to construct an outrageous misconduct defense rooted in the due process clause. Hampton lost his case but succeeded in legitimating the doctrine, albeit precariously.FN4

FN4 In Hampton, a concurrence combined with the plurality to reject the appeal.  However, the two concurring Justices switched sides to form a different majority vivifying the doctrine of outrageous misconduct. See Hampton, 425 U.S. at 491-95 (Powell, J. concurring).


Although it has a comfortably familiar ring, ‘outrageous misconduct’ is

surpassingly difficult to translate into a closely defined set of behavioral norms. The broadest hints as to the content of the outrageousness standard lie in the dictum that spawned the doctrine. Inasmuch as Rochin  v. California, 342  U.S. 165 (1952), is the case irrefragably linked with the legal rubric of fundamental fairness, one hint is found in Justice Rehnquist’s citation to Rochin.  See Russell, 411 U.S. at 431-32. A second hint is contained in Russell’s explicit equation of outrageous misconduct with violations of ‘that ‘fundamental fairness, shocking to the universal sense of justice,’ mandated by the Due Process Clause of the Fifth Amendment.’ Russell, 423 U.S. at 432 (quoting Kinsella v. United States ex rel. Singleton, 361 U.S. 234, 246 (1960)). Picking up on these clues, most courts apply a variant on the fundamental fairness standard as a sounding line for outrageousness. See Mosley, 965 F.2d at 910 (collecting formulations).  Although this standard lacks mathematical precision, we agree with Justice Frankfurter that imprecision of this nature does not leave courts without  adequate guidance; rather, ‘[i]n dealing not  with the machinery of government but with human rights, the absence of formal exactitude, or want of fixity of  meaning, is not an unusual or even regrettable attribute of constitutional provisions.’ Rochin, 342 U.S. at 169.          
           The banner of outrageous misconduct is often raised but seldom saluted.  Even though one respected jurist contends that the doctrine belongs in the dustbin of history, see United States v. Miller, 891 F.2d 1265, 1271-73 (7th Cir. 1989) (Easterbrook, J., concurring),
FN5 case after case confirms its continued existence. See Moran v. Burbine,  475 U.S. 412, 432 (1985) (‘We do not question that on facts more egregious than those presented here police  deception might  rise to  a level  of a  due process violation’); United  States v. Mosley,  965 F.2d 906, 909 (10th Cir. 1992) (collecting cases  from eleven circuits).  Be that as it may, the doctrine is moribund; in practice, courts have rejected its application with almost monotonous regularity. See, e.g., United States v. Barnett, 989 F.2d 546, 560 (1st Cir. 1993), petition for cert. filed (June 28, 1993) (No. 93-5018); United States v. Lilly, 983 F.2d 300, 309-10 (1st Cir.  1992); United States v. Marino, 936 F.2d 23, 27 (1st Cir. 1991); United States v. Rosen, 929 F.2d 839, 842 (1st Cir.), cert. denied, 112 S. Ct. 77 (1991); United States v. McDowell, 918 F.2d 1004, 1008-09 (1st  Cir. 1990); see also United States v. Panitz, 907 F.2d 1267, 1272-73 (1st Cir.  1990) (collecting pre-1990 First Circuit United States cases declining to invoke the doctrine); United States v. Bogart, 783 F.2d 1428,  1434-38  (9th Cir.) (summarizing elevant  case law), vacated in part on other grounds sub nom. United States v. Wingender, 790 F.2d 802 (9th Cir. 1986); United States v. Warren, 747 F.2d 1339,  1342-43 &  nn. 7-8 (10th Cir. 1984) (collecting precedents from various circuits). Indeed, since the Supreme Court decided Hampton, a federal appellate court has granted relief to a criminal defendant on the basis of the outrageous misconduct defense only once. See United States v. Twigg, 588 F.2d 373, 382 (3d Cir. 1978).  The historical record makes it clear, therefore, that the outrageous misconduct defense is almost never successful.FN6

FN5 In  Judge Easterbrook’s  view, the appropriateness of the government’s decision to supply drugs as part of an undercover operation  presents a ‘political’ question that is quintessentially nonjusticiable.  Miller, 891 F.2d at 1272. With respect, we think this conceptualization stretches the military analogy too far.  We adhere instead to the idea that ‘those charged with th[e] investigative and prosecutorial duty should not be the sole judges of when to utilize constitutionally sensitive means in pursuing their tasks.’ United  States  v. District Court, 407 U.S. 297, 317 (1972).

FN6 In addition to Twigg, one court of appeals invoked the doctrine in an alternative holding, see United States v.  Lard, 734 F.2d 1290,  1296 (8th  Cir. 1984), and  another directed  the district court to determine  whether outrageous misconduct should be found on remand, see Bogart, 783  F.2d at 1438.  A smattering of district courts have also applied the outrageous misconduct doctrine to the defendant’s advantage.   See, e.g., United States v. Marshank, 777  F. Supp. 1507, 1524 (N.D.  Cal. 1991); United States v. Gardner, 658 F. Supp. 1573, 1577 (W.D. Pa. 1987); United States v. Batres-Santolino, 521 F. Supp. 744, 751-52 (N.D. Cal. 1981).


          There are two competing visions of the doctrine’s role. One school of thought holds that the defense should be confined to cases involving extreme physical, and possibly psychological, abuse of a defendant.  See United States v. Kelly, 707 F.2d 1460, 1476 n.13 (D.C. Cir.) (per curiam)  (collecting cases),  cert. denied, 464  U.S. 908 (1983).  A second school of thought holds that outrageous misconduct may also function as a kind of supplement to  the entrapment  defense, reserved for  those cases where law enforcement personnel become so overinvolved in a felonious venture that  they can fairly be said either to have ‘creat[ed]”  the crime or to have ‘coerc[ed]’ the  defendant’s participation  in it. Mosley, 965 F.2d at 911-12; see also Bogart, 783 F.2d at 1436-38. This case does not require us to choose between these two conceptions of the doctrine….
               Having traced the evolution of the doctrine of outrageous misconduct, we proceed to consider its applicability in this case. Although what transpired here fits neither of the conventional patterns of outrageous misconduct described above, the district court nonetheless ruled that furnishing the hefty heroin sample (and then losing track of it) comes within the doctrine’s sweep. We conclude, for two independently sufficient reasons, that the district court erred….
          Nevertheless, we do not think that the inquiry into outrageousness can usefully be broken down into a series of discrete components. Almost by definition, the power of a court to control prosecutorial excesses through resort to substantive aspects of the due process clause is called into play only in idiosyncratic situations and such situations are likely to be highly ramified. Where facts are critically important and fact patterns tend to be infinitely diverse, adjudication can often best proceed on a case-by-case basis.  The outrageousness defense falls into this category. Thus, it is unproductive to force the determination of outrageousness into a mechanical mode….
          Let us be perfectly plain. We find that outrageousness, by its nature, requires an ad hoc determination….

At bottom, however, outrageousness is a concept, not a constant. What shocks the conscience in a given situation may be acceptable, though perhaps grim or unpleasant, under a different set of circumstances. Slashing a person’s throat with a sharp knife may be an unrelievedly outrageous course of conduct if one thinks in terms of Jack the Ripper, helpless women, and the shadowy streets of London; the same behavior will be thoroughly acceptable, however, if the knife is a scalpel, the knife-wielder a skilled surgeon performing a tracheotomy, the target a patient, and the venue an operating room. Although we recognize that formulaic tests offer administrative convenience and ease in application, we also recognize that neither life nor law can always be made convenient and easy. So here: there is simply no way to reduce the myriad combinations of potentially relevant circumstances to a neat list of weighted factors without losing too much in the translation. Cf. Borden v. Paul Revere  Life Ins. Co., 935 F.2d 370,  380 (1st Cir. 1991)  (discussing ‘outrageousness’  in the context  of tort liability and concluding that ‘[t]here  is no  universal litmus test that a court can utilize to determine whether behavior is extreme and outrageous’)….

 

[FN presented without text referencing it] FN11 We do not totally reject the possibility, suggested by the court below, that outrageous misconduct may be found apart from situations in which the government has used brutality or induced commission of a crime.  We simply note that the case at hand does not require us to explore this doctrinal frontier….

 

Generally speaking, an outrageous misconduct defense can prosper only if a

defendant’s due process rights have been violated….

            [T]he outrageous misconduct doctrine, no matter how cramped its confines, is not entirely mummified. Should the occasion and the necessity arise, we continue to believe that the law will prove itself adequate to the task of preventing the government from going too far. In the war on crime, as in conventional warfare, some tactics simply cannot be tolerated by a civilized society.”


Santana, Id.

 

 

Dated: April 4, 2007

                                                                        Respectfully submitted,

 

 

                                                                        Linda L. Shelton

                                                                        Pro Se Defendant

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

October 17, 2008

Lawless, Corrupt, Incompetent, Wacko C[r]ook County Judge Kuriakos Ciesil Jails Defendent for Being 40 min Early for Hearing


Despite the following letter to the presiding judge of Municipal 1 District of the Circuit Court of Cook County, the only action taken was to temporarilty re-assign Judge Ciesil. I will petition the court post-trial to vacate all her orders which were illegal and refund the 10% of the bond money held by the Clerk for costs after bond was refunded. I should not have to pay for the gross judicial misconduct of Dishonorable Judge Ciesel.

October 4, 2007 LETTER

Honorable Judge E. Kenneth Wright, Jr.
Presiding Judge
First Municipal District
Circuit Court of Cook County
1303 Richard J Daley Center
50 W. Washington
Chicago, IL 60602

IN RE: Outrageous and illegal conduct of Judge Maria Kuriaskos Ciesil

Dear Honorable Judge Wright:

I am writing to you to inform you of the inappropriate, unethical, and frankly lawless conduct of Judge Ciesil and ask for your immediate intervention by removing her from any duties on the bench involving defendants and reassigning her to a desk job until she is completely evaluated by you and perhaps the JIB. This should include a psychiatric examination because her behavior and rulings are so inappropriate and bizarre that it must be considered that she has a severe personality disorder making her unable to make fair judgments and causing her to boost her ego by irrational attacks against defendants and attorneys. If she is found not to be unfit for duty then, at the very least, you should order direct and constant supervision and tutoring by a senior judge for at least 3 months before she is allowed to return to the bench unsupervised.

I am a defendant in several misdemeanor cases as a result of retaliation against me by corrupt county and state officials, as well as a result of police brutality and unlawful arrests. In Branch 46, before Judge Sheehan, I was able without an attorney to have six (6) bogus cases dismissed against me. As you know, I at first was before Judge Ballard, who proved to have inappropriate conduct (being in great need of training on demeanor, the law, judicial procedure, etc.) and you have reassigned him elsewhere.

Judge Sheehan replaced Judge Ballard on my cases. She is an outstanding judge, who is intellectually honest, attempts to be unbiased and fair, does not show preference to the prosecution, treats defendants with respect assuming they are innocent until proven guilty, clearly follows the rulings of higher courts, takes a step back and does not make knee-jerk decisions when she is unsure of the law during a hearing, and has potential to be one of the finest judges on the bench in the Circuit Court of Cook County because her demeanor, actions, and ethics are of the highest judicial level, besides the fact that her IQ is clearly very high.

Then when Judge Sheehan was reassigned to juvenile court there has been a succession of judges on my remaining two cases in branch 46. One Judge, Kenneth Fletcher also proved to be unfortunately ignorant of the law and inappropriate. I wrote a motion for SOJ for cause and he recused himself.

Judge Katz replaced him and his conduct was very appropriate and judicial. All the judges have been ordering that my pretrial hearings be held at either 11:00 a.m. or 10:00 a.m., because I have brought up motions that are quite advanced legally, appropriate, and challenging to the court.

Almost every continuance was set for 10:00 a.m. or later. I have throughout all these cases always arrived early to court or on time except for several days where I was hospitalized. My attorney, J. Nicolas Albukerk (I have decided to allow donors to pay for an attorney on my remaining cases as my health has deteriorated and the stress of representing myself is now too much), instructed me to meet him at 9:30 a.m. outside courtroom 304 at 555 Harrison St. My attorney told me this court date was at the usual time and I should be outside the court by 9:30 to talk with him. On 9/26/07 I arrived in the area around 9:00 a.m. and was unable to find a parking space at a meter due to construction in the surrounding area. I therefore parked in the lot next to the courthouse. I avoid parking there because of financial difficulties and I don’t want to keep borrowing money to pay the parking fees. I cannot take public transportation due to my disabilities [severe reactions to perfumes and fumes]. I walk with a cane due to spinal problems.

I arrived in the courthouse around 9:15 a.m. and up to the courtroom at 9:20 a.m. There were no seats in the courtroom so I sat on the bench outside of court. There was a crowd outside the courtroom including about six CPD officers. I had a pleasant conversation with one of them. At about 9:40 a.m. Sgt. Rankus came out of the courtroom and asked me where was my attorney, that the “judge wanted to call my case.” I told her that he had two other cases in 401 and 404 and he told me to wait for him. She told me to go find him and I slowly walked to the fourth floor and was unable to find him. I arrived back at courtroom 304 about 5-10 minutes later and went in and sat on a bench in the gallery because a seat had opened up and Sgt. Rankus was telling everyone to come into the courtroom.

After several other cases were called, my case was called and I stood up in the gallery and told the judge that Mr. Albukerk was involved in several other cases upstairs and told me to ask for the judge to hold my case until he arrived. Judge Ciesil very firmly told me to come stand before the bench. I did that. Then she took a paper out of one of the files and announced that she had issued an arrest warrant because I “was late” and told the Sheriff to execute the warrant. She raised my bail on each of the two cases from a $1,000 I-Bond to $25,000 D-Bond (total of $50,000 D-Bond)! This is an outrageous and unconstitutional excessive bail, especially for a disabled, indigent person!

I was stunned. She didn’t want to listen to a word I said and was very rude. She did not ask for any explanation or attempt to discuss the issue. I rapidly and frantically told her that my hearing was not scheduled until 10:00 a.m. and that I was not late, while the deputies were trying to drag me to the lock-up. I told her I arrived at 9:20 a.m. and had a conversation with a CPD officer in the hall [these 6 or so officers were seated in the courtroom in the front row of seats] as the courtroom had no seats available. I told her Sgt. Rankus had told me to find my attorney. I pleaded with the CPD officers and Sgt. Rankus to speak up and they remained silent. The judge was OBLIGATED to question the officers, read the file, which details that almost every other court date started at 10:00 a.m. or later. Instead she yelled that her court starts at 9:00 a.m. and that she had issued the warrant at 9:05 a.m. because I was “late”. She made NO EFFORT to read the previous file orders or to contact Judge Katz.

I was taken to the lock-up and not allowed to use medication. I have been fighting a virus for a week and asthma attacks that are not well controlled. I had been in the emergency room at Mt. Sinai Hospital all day on 9/21/07 with a severe asthma attack. I then went into an asthma attack and the deputies called an ambulance and I was taken to the U. of I. ER in custody and remained there under treatment until about 5:00 p.m., when I was returned to 555 Harrison lock-up and then transported to CCDOC.

My attorney arrived as I was being transported by the paramedics out of the courthouse, in custody, accompanied by several deputies, fully restrained [in a wheelchair]. I was released on bond from the jail at 3:00 a.m. and immediately, at the exit to the CCDOC had someone call an ambulance, which took me back to the hospital because I was so ill. I was unable to attend the hearing ordered by Judge Ciesil the next day, 9/27/07 at 9:00 a.m. because I had to be hospitalized and was released from the hospital on 10/2/07. My attorney has written a motion for Substitution of Judge for Cause which is attached and was filed the next day when he appeared on my behalf before Judge Ciesil.

Mr. Albukerk, my attorney, told me that after I was removed by paramedics as he arrived at court, Judge Ciesil refused to read the court file to see that the other dates were at 10:00 a.m. or later, so he read them into the record. He said the judge refused to quash the warrant and threatened him with contempt. He said he stepped back from the bench, put his hands behind his back and stated firmly to her that he was fully prepared to be taken into custody if the Judge thought that pointing out the truth and making arguments constituted contempt.

Please contact Mr. Albukerk at 773 847-2600 for further details. He told me that on 9/27/07 Judge Ciesil refused to transfer the case to you and insisted she would do nothing until I appeared in her courtroom, setting the next status date for 10/24/07 at 9:00 a.m. Judge Ciesil’s interaction with Mr. Albukerk is so unbelievable and outrageous that you cannot ignore it. Mr. Albukerk is writing an amended SOJ for cause motion, to include a lot more of what happened and it is all too astonishing to explain indirectly. Please get the facts directly form Mr. Albukerk and from the transcripts, which he has ordered and should be available shortly.

Mr. Albukerk also stated to me that Judge Ciesil used also as an excuse to issue the arrest warrant that I had refused to cooperate with a limited BCX [mental fitness exam] ordered. When Dr. Lourgos of FCS told me to sit in a back corner behind a table in a small interview room, I refused to do so and reminded him he was under written orders of Judge Sheehan to accommodate my disabilities [flashbacks of being attacked induced by small rooms] and he replied that he didn’t have to follow that order. I asked to sit by the door or to be interviewed in a larger room and he then said “the interview is over, leave.”

Please note the limited BCX was ordered upon MY request in a motion that I had filed for a forensic clinical exam for the issue of temporary insanity during the alleged “crime” possibly resulting from post-traumatic stress disorder – see attached motion. As temporary insanity was a possible defense because I have a lack of memory of some of this incident where I am alleged to have battered a lock-up aide by “kicking her” it was necessary to determine if temporary insanity due to a flashback related to a post-traumatic-stress disorder from which I suffer occurred at the time of the alleged “crime.” This flashback was induced by an illegal attack on me by a lock-up aide during this incident – see motion.

Judge Ciesil said that the report from FCS said I refused to cooperate with the exam. Judge Ciesil should know that statutes state that a defendant may choose to refuse to answer questions and bail cannot be changed or revoked due to this refusal.

725 ILCS 5/104‑14

       (c) The court shall advise the defendant of the limitations on the use of any statements made or information gathered in the course of the fitness examination or subsequent treatment as provided in this Section. It shall also advise him that he may refuse to cooperate with the person conducting the examination, but that his refusal may be admissible into evidence on the issue of his mental or physical condition.
Mr. Albukerk pointed out that I refused to cooperate because Dr. Lourgos from FCS refused to obey Judge Sheehan’s order to accommodate my disability (see order in file) by allowing me to sit by the door in a small room or interviewing me in a large room with a window. Mr. Albukerk read this order into the record and Judge Ciesil stated “that’s not my understanding.” I am unable to tolerate discussions of the life-threatening and terrifying incidents causing the flashbacks except with these accommodations and end up becoming out of touch with reality, unresponsive, frozen, crying, with a look of terror on my face, often frantically hiding under a table or cowering against a wall.

Please replace her immediately as the judge in that courtroom and quash the arrest warrant, expunge the warrant, and order that the entire $5,000 bond be immediately returned. Judge Ciesil’s order for a warrant and increase in bail is null and void due to judicial error and outrageous conduct.

I and my attorney are initiating ALL appropriate legal actions in response to this outrage and lawlessness with the Illinois Appellate Court, the JIB, and if necessary with the press.

Please respond to this letter ASAP, if not to me to my attorney. Judge Ciesil has illegally harmed me in ways that are too upsetting for me to describe – other than to say I was attacked by a correctional officer after being taken into custody and medically neglected at the CCDOC resulting in hospitalization from the moment I was released on 9/27/07 to 10/2/07 and my health has been damaged. Please contact Mr. Albukerk for details. I have been under treatment by a psychiatrist to help diminish the symptoms of PTSD.

I REFUSE TO APPEAR IN COURTROOM 304 AGAIN UNTIL THIS MENTALLY UNSTABLE, UNETHICAL, LAWLESS, AND DANGEROUS JUDGE IS REPLACED! I will come to court on 10/24/07 but will remain seated outside the courtroom unless I see that there is a different judge on the bench. You may consider this contempt. I CONSIDER THIS MY CIVIC PATRIOTIC DUTY, LIKE THE FOUNDERS OF OUR COUNTRY, TO STAND AGAINST TYRANNY. Judge Ciesil has brought the court into disrepute and is unethically filling up the jail with unfortunate defendants who are five minutes late and have good excuses! Judge Ciesil made knee-jerk, rash, and unethical decisions without reading the file pleadings, orders, or attempting to verify anything. She clearly is biased and assumes all defendants are worthless scum who should be slammed.

Sincerely with utter despair over this tyranny and with utter determination to fight it,

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

Cc: Chief Judge Evans

Cook County Commissioners

Posted and published on Internet

Attachment:
Mr. Albukerk’s Motion for SOJ for Cause
Pro Se Motion for Forensic Clinical Exam

With reasonable men, I will reason;
with honest men, I will plead;
but to tyrants, I will give no
quarter, nor waste arguments where
they will certainly be lost.

William Lloyd Garrison

In a time of deceit, telling the truth is a revolutionary act.

George Orwell

IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS
MUNICIPAL DEPARTMENT, FIRST MUNICIPAL DISTRICT,
CRIMINAL SECTION

PEOPLE OF THE STATE OF ILLINOIS Plaintiff V. LINDA SHELTON, Defendant, Case No 06-221401, Honorable Colleen Sheehan Presiding

MOTION FOR FORENSIC CLINICAL EXAM

NOW COMES, the Defendant, Linda L. Shelton, Pro Se who respectfully requests that this court order a forensic clinical exam of defendant concerning state of mind during alleged act and in support of this motion states as follows:
1. Defendant was arrested for disorderly conduct on March 4, 2006 [charges later dismissed] and brought to the 1st District Woman’s lock-up for processing.
2. As she was being released on a personal recognizance bond she was brought out of a cell to her possession, sealed in plastic bags on a table.
3. [Chicago Police Department] Detention Aide Shell ripped open the bags, when defendant was too weak to do so and told her to organize her possessions.
4. As defendant organized her possessions back into her briefcase she noticed her bottle of prednisone, prescribed by a physician. She takes an extra dose of this medication when stressed due to a relative steroid deficiency to prevent an asthma attack and to prevent complications of neurocardiogenic syncope.
5. Defendant opened her bottle and attempted to take a dose of medication.
6. Detention Aide Shell then violently grabbed defendant and body slammed her against the table causing contusions and yelling that she was not allowed to take any medication. Several other aides and/or officers ran at defendant and aided and abetted this felony attack on the handicapped defendant.
7. This caused defendant to attempt to pull away in self-defense and struggle while she yelled to stop assaulting her.
8. Then defendant went into a flashback due to her illness post-traumatic-stress disorder.
9. This illness has resulted from several previous attacks on her by officers at the First District causing injuries and great fear.
10. Defendant remained in this altered state of consciousness and next found herself being dragged to a cell and then beaten in a cell by a female aide or officer. Defendant is unable to remember much of the incident when she was in an altered state of consciousness due to the PTSD.
11. Defendant will use the defenses of self-defense, temporary insanity and outrageous government conduct (due to the history of repeated false arrests, beatings and medical neglect by First District Chicago Police).
12. Defendant is indigent and requires an exam by a forensic psychiatrist regarding the defense of temporary insanity.
WHEREFORE, Defendant Pro Se, respectfully requests this honorable court to
order a psychiatric exam of defendant by Forensic Clinical Services regarding the issue of temporary insanity during this alleged act.

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.

Dated: October 17, 2006

Respectfully submitted,

Linda L. Shelton

Pro Se Defendant

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

 

 

 

 

Create a free website or blog at WordPress.com.

%d bloggers like this: