For a summary of the case–
The starting point in any legal case is the statute. The case law is all very interesting, but, to understand what you are doing you have to go to the statute. The Statute that you have to address is 735 ILCS 5/11a – 1 et seq.
This is interestingly enough exactly how I started with Judge Connors in my cross examination of her. The statute is either mandatory or permissive. A permissive statute is one in which the judge has some discretion. For instance, if the statute states that a certain act ‘may’ or ‘will” be completed by a certain day the Judge and the Court system have the right to set it for another day that is reasonable. However, if the statute uses the word ‘shall’ the legislative mandate and delegation to the Court is specific. If the statute for instance says that a particular hearing “shall” set a place and time for hearing with 30 days of the filing of the incompetency petition (11a -10) that is mandatory. Thus, on the 40th day without this criterion being met, Judge Connors noticed that the Petition was defective and the CCP 211 was not filed. What is the effect of it?
If we apply a liberal interpretation of the statute, this does not mean that the hearing had to be held on that date – it means that the time and place had to be set. This does not mean that there could be no continuances. It meant that as long as a time and place was mentioned the matter could be continued.
Do not Jump! Carolyn was appointed as a temporary guardian. By statute this is a 60 day job. Thus, 60 days after the appointment Carolyn is once again a peon. Thus, after approximately 60 days this is a rudderless situation.
As the Court had appointed Guardian ad Litem, these individuals’ duty was to report to the Court such ‘technicalities’ as lack of jurisdiction, loss of jurisdiction etc. The statute further provides that the CCP 211 need not be filed with the petition – however, it must be filed at least 10 days prior to the hearing. This provides some ‘leeway’ for a petitioner to fudge a bit. Upon examination of the certificate of incompetency might reveal as an example that the respondent appears borderline, but in fact is ****. This allows a physician to amend and qualify his opinion so it is more accurate.
The Petition was filed @ July 20, 2009. Even though the statute stated “upon the filing of a petition *** the clerk shall” No court date was set. It is very clear why no date was set. Mr. Waller recognized that your mother was competent and unless a ‘hack’ or a ‘prostitute’ could be obtained to sign a CCP 211 (certificate of incompetency) the facade could not occur and Mary would not be deprived of her liberty, her property, her civil rights and/or her human rights.
Assuming that a doctor could be found to sign the CCP and the petition required by section 8 could be filed, this petition required that ‘near’ relatives be named and specifically required that adult children and adult siblings who were alive be named. Again the word ‘shall’ is used. The Sodini case addresses this principle. It points out that Section 10 provides the jurisdictional (use of the word shall) that 14 days prior to the hearing the near (I have been referring to them as ‘close”) relatives have been be given written notice. This was not done so there is no jurisdiction and all the orders of the Circuit Court are VOID.
It is an axiom that Jurisdiction cannot be conferred on the Court, so the issue of waiver is also eliminated, unless, the waiver is in writing or memorialized in some very definite manner. An ambush such as having everyone in Court for discussion of a ‘care plan’ and them sneaking in an appointment of a plenary guardian is a ‘naked’ Fraud on the Court. Sodini rejected such an approach and it is hard to conceive of a proper Judge who would participate in such a sham.
The Statutory process is further set out. The burden of proof that the petition must meet is ‘clear and convincing.’ This is the highest civil standard of proof. Assuming an unbiased and non-wired Court this means an unbiased judge is strictly limited in the help that he/she can provide the petition. For instance, Judge Connors statement on August 31, 2012 is totally inappropriate. Representative Akin’s recent statement is benign compared with Connor’s statement. Adam Stern’s nomination of Dr. Shaw and Dr. Amdur are equally offensive and clearly in derogation of the Statute.
Section 10o b provides that the Court in its discretion may appoint counsel for the respondent (Mary); however the court ‘shall” appoint counsel on respondent’s request. The request may be either oral or written. It would be helpful if you have at your finger tips the ‘chapter and verse’ of Mary’s requesting an attorney and Mr. Shaw telling the Court that he talked to her and she did not want one! For instance, the record shows that right after Mary was bench served she demanded an attorney be appointed for her and that was refused!
To guaranty that the Civil Rights of the respondent are protected the Statute goes one step further. The Venue provision of the act again using the word ‘shall’ requires that venue shall be in the county in which the respondent resides. Your mother resided in DuPage County. Thus, why are we in Cook County? Assuming that Naperville is in Cook County, the statute further says that the respondent has to be served with summons and shall be explained his/her rights. In the Sykes case the summons was placed with the Sheriff; however knowing that Mary resided in Du Page County (abet against her will) the Sheriff was directed to serve Mary at 6014 N. Avondale, Chicago, Illinois (Cook County).
It is very interesting that neither guardian ad litem appears to have informed Judge Connors of these discrepancies. From her deposition it appears that Judge Connors was not really interested. That fact is really troubling.
Now with that background, it is the inescapable conclusion
1) As there was no proper petition filed, there is a jurisdictional deficiency
2) As there was no service upon the ‘near’ relatives (also known as close relatives) there is a jurisdictional deficiency.
3) That as there was no hearing (see docket) there is a jurisdictional deficiency.
This is the primary and first line of inquiry. The Second line of inquiry goes more to culpability than procedure. The words TRO, injunction, citation etc are all thrown in the mix as if they all had some magic. They do not. Illinois has an Injunction Act. Generally ‘sua sponde’ injunctions are at the very least ‘bad form!’ In the Sykes case we have a bunch of them. Similarly probate citations are not favored instruments. Not only do we have them popping out, but the jurisdictional procedures appear to be lacking. The activity of the guardian ad litems in regard to the injunctions and citations is very troubling. The job of the plenary guardian is to muster the financial affairs of the incompetent. Why are the GALs all over the place going after your assets? Very suspicious.
I can hardly wait for Ms. Farenga and Mr. Stern to tell us how all of this happened. It also will be interesting to heard from the GALs how it happens that Ms. Troepe does not deny certain facts and they are publishing to the ARDC and others that we are all liars and misrepresenting when we allege from our own personal knowledge the existence of some valuables that have not been inventoried.
I hope that this quick books view of the guiding statute is helpful in your presentations.