YOUNG MENS CHRISTIAN              )
ASSOCIATION OF CHICAGO, INC.      )
                                  )
      Plaintiff                   )
                                  )
      v.                          )    No. 99M1-737335
                                  )
JOSEPH W. PETERS                  )
                                  )
      Defendant                   )
 
 

       NOW COMES the purported Defendant, JOSEPH PETERS (hereinafter "JOSEPH"), and moves this Honorable Court to expunge the void ab initio Order of Possession issued by this Court while the Automatic Stay, 11 U.S.C. §362, is in effect.

      Judge Sheldon Garber, at all times in this matter, was acting without subject-matter jurisdiction. Without subject-matter jurisdiction, all of his orders are void ab initio.

      Judge Garber's order of May 23, 2000 that this purported defendant could only file a motion with leave of court was also issued without subject-matter jurisdiction and is void. The Illinois Supreme Court has held that a void order may be disregarded, People v. Miller, 339 Ill. 573, 171 N.E. 672 (1930) ("Every judgment of a court rendered without jurisdiction is a nullity -- not merely voidable but void -- and may be disregarded."), and JOSEPH respectfully requests Judge Garber to allow JOSEPH to follow the Supreme Court's decision.

    1.   A voidable order is an order that must be declared void by a judge to be void; a void order is an order issued without jurisdiction by a judge and is void ab initio and does not have to be declared void by a judge to be void. Only an inspection of the record of the case showing that the judge was without jurisdiction or violated a person's due process rights, or where fraud was involved in the attempted procurement of jurisdiction, is sufficient for an order to be void. Potenz Corp. v. Petrozzini, 170 Ill.App.3d 617, 525 N.E.2d 173, 175 (1988). In the instances herein, the law has stated that the orders are void ab initio and not voidable. Although a person may not claim that a judge is without subject-matter jurisdiction without satisfactory proof of the want of jurisdiction, in the underlying case, not only JOSEPH has made the finding, but six judges ⁽¹⁾, and a Chief Deputy Clerk of the Circuit Court of Cook County, have also reported that they had inspected the record of the case and found that the critically mandatory requirement of having a valid Petition for Dissolution of Marriage within the record of the case necessary to confer subject-matter jurisdiction upon the 91-D-5122 court was missing. JOSEPH believes that the findings of six judges¹ are sufficient to definitely establish that a judge acted without subject-matter jurisdiction and therefore his orders were void ab initio.

       This Court can accept the findings of the six judges¹, or if it believes that the six judges were faulty in their inspection of the record of the 91-D-5122 case, then this Court can and ought to make a ninth inspection.

       There is a misconception by some attorneys and judges that only a judge may declare an order void, but this is not the law: (1) there is no statute nor case law that supports this position, and (2) should there be any case law that allegedly supported this argument, that case would be directly contrary to the law established by the U.S. Supreme Court in Vallely v. Northern Fire & Marine Ins. Co., 254 U.S. 348, 41 S.Ct. 116 (1920) and by the Illinois Supreme Court in People v. Miller. supra. A party may have a court vacate a void order, but the void order is still void ab initio, whether vacated or not; a piece of paper does not determine whether an order is void, it just memorializes it.

      This principle of law was stated by the U.S. Supreme Court as "Courts are constituted by authority and they cannot go beyond that power delegated to them. If they act beyond that authority, and certainly in contravention of it, their judgments and orders are regarded as nullities. They are not voidable, but simply VOID, AND THIS EVEN PRIOR TO REVERSAL." [Emphasis added]. Vallely v. Northern Fire & Marine Ins. Co., 254 U.S. 348, 41 S.Ct. 116 (1920). See also Old Wayne Mut. I. Assoc. v. McDonough, 204 U.S. 8, 27 S.Ct. 236 (1907); Williamson v. Berry, 8 How. 495, 540, 12 L.Ed. 1170, 1189 (1850); Rose v. Himely, 4 Cranch 241, 269, 2 L.Ed. 608, 617 (1808).

     Pursuant to the Vallely court decision, a void order does not have to be reversed by any court to be a void order. Courts have also held that, since a void order is not a final order, but is in effect no order at all, it cannot even be appealed. Courts have held that a void decision is not in essence a decision at all, and never becomes final.

      Consistent with this holding, in 1991 the U.S. Supreme Court stated that "Since such jurisdictional defect deprives not only the initial court but also the appellate court of its power over the case or controversy, to permit the appellate court to ignore it ... [would be an] unlawful action by the appellate court itself." Freytag v. Commissioner, 501 U.S. 868 (1991); Miller, supra.

       Following the same principle, it would be an unlawful action for this court to rely on an order issued by a judge which did not have subject-matter jurisdiction and therefore the order he issued was void ab initio.

       JOSEPH understands the possible reluctance of This Court to follow the law rather than the current practices of law, but this judge is requested to consider that this same issue is now before a Federal Court and it may not appear appropriate to issue an order contrary to an order soon to be issued by a Federal Court. At a minimum, a stay of this Court's Order of Possession ought to be issued until the final determination of the Bankruptcy's jurisdiction has been established.

          A Judge does not have the lawful authority to make a void judgment valid. Once void, it is void forever.

        A void order may be challenged in any court, at any time, and even by third parties.  A void order has no legal force or effect.  As one court stated, a void order is equivalent to a blank piece of paper.

    2.    The law is clear and well-settled that a judge in a statutory proceeding, such as Bankruptcy, divorce, adoption, forcible detainer, etc., is governed by the rules of limited jurisdiction and not by the rules of general jurisdiction. In all actions governed by the rules of limited jurisdiction, there is no presumption that the judge has jurisdiction. In re Cash, 383 Ill. 409, 429 (1943) ("Jurisdiction in special statutory proceedings is never presumed. It must affirmatively appear from the record. Nothing will be presumed in favor of jurisdiction in the face of facts appearing in the record showing it did not exist."); State Bank of Lake Zurich v. Thill, 113 Ill.2d 294, 497 N.E.2d 1156 (1986); Wabash Area Development, Inc. v. Ind. Com., 88 Ill.2d 392 (1981).

    3.   Whenever jurisdiction is denied or questioned by a party or the court, it is the duty of the party claiming that the court has jurisdiction to prove that the court does indeed have it. Bindell v. City of Harvey, 212 Ill.App.3d 1042, 571 N.E.2d 1017 (1st Dist. 1991) ("the burden of proving jurisdiction rests upon the party asserting it."). At no time whenever JOSEPH denied that the 91-D-5122 court held subject-matter jurisdiction, did the Petitioner prove jurisdiction existed, nor could she, because the court did not ever have it. For one reason, she had filed a fatally defective Petition for Dissolution of Marriage and she had then removed the Petition after filing to prevent it being challenged. For a second reason, her filing two Petitions for Dissolution of Marriage and then serving the second Petition, deprived the second judge of any subject-matter jurisdiction. Failure of the Petitioner to prove that the court held jurisdiction did not confer the court with jurisdiction; it just left the court without it.

    4.    JOSEPH DENIES THAT THIS COURT HAS SUBJECT-MATTER JURISDICTION. Under Illinois law, the Petitioner must prove that this court has subject-matter jurisdiction, consistent with the facts stated herein. Bindell, supra,; Loos v. American Energy Savers, Inc., 168 Ill.App.3d 558, 522 N.E.2d 841 (4th Dist. 1988) ("Where jurisdiction is contested, the burden of establishing it rests upon the plaintiff.", citing R.W. Sawant v. Allied Programs Corp., 111 Ill.2d 304, 489 N.E.2d 1360 (1986)). The Petitioner has the burden under law to prove that this court has had jurisdiction at all times.

    5.    On April 8, 1993 JOSEPH filed a voluntary Petition in Bankruptcy for protection from the void orders of the 91-D-5122 court. Old Wayne Mut. L. Assoc. v. McDonough, 204 U.S. 8, 27 S.Ct. 236 (1907). Upon filing a Bankruptcy Petition, the Automatic Stay under 11 U.S.C. §362 went into effect.

    6.    During that Bankruptcy proceeding, three(3) affidavits from detached, disinterested, reasonable observers of the Bankruptcy judge's appearance of partiality were filed with the court [Exhibit A], plus four(4) motions to disqualify the presiding Bankruptcy Judge.

       Some of the law relative to judicial disqualification can be found in Liteky v. U.S., 114 S.Ct. 1147 (1994) (""Disqualification is required if an objective observer would entertain reasonable questions about the judges impartiality. If a judge's attitude or state of mind leads a detached observer to conclude that a fair and impartial hearing is unlikely, the judge must be disqualified." [Emphasis added]. Id. at 1162.); Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 108 S.Ct. 2194 (1988) (what matters is not the reality of bias or prejudice but its appearance); United States v. Sciuto, 521 F.2d 842 (7th Cir. 1996) ("The right to a tribunal free from bias or prejudice is based, not on section 144, but on the Due Process Clause." Id. at 845.); United States v. Balistrieri, 779 F.2d 1191 (7th Cir. 1985) (455(a) "is directed against the appearance of partiality, whether or not the judge is actually biased.") (it is self-executing). The failure of the Bankruptcy Judge to follow the mandatory requirements of the law is a further evidence of his appearance of partiality.

      The Bankruptcy Judge was disqualified by operation of law and since December 20, 1993 when the first motion disqualifying him was presented to the court or even before that date, he was acting contrary to law and all of his orders were issued without lawful authority and were void ab initio. The disqualification motions were self-executing.

       No judge has any authority to violate the Supreme Law of the Land. In support of this principle, the U.S. Supreme Court has held that should any judge act without jurisdiction, that judge is engaged in treason. U.S. v. Will, 449 U.S. 200, 216, 101 S.Ct. 471, 66 L.Ed.2d 392, 406 (1980), see also Cohens v. Virginia, 19 U.S. (6 Wheat) 264, 404, 5 L.Ed 257 (1821) (usurping jurisdiction that which is not given by law would be treason).

    7.     In the PETERS v. PETERS 91-D-5122 action, the court was without subject-matter jurisdiction at all times for multiple reasons. One of the many reasons arises out of the repeated decisions of the Illinois Supreme Court, that the record of the case must affirmatively contain a valid Petition for Dissolution of Marriage. Brown v. VanKeuren, 340 Ill. 118, 122 (1930):

("The petition required to put the court in motion and give it jurisdiction must be in conformity with the statute granting the right and must show all the facts necessary to authorize it to act, -i.e., it must contain all the statements which the statute says the petition shall state, - and if the petition fails to contain all of these essential elements the court is without jurisdiction."

"Where a court is exercising special statutory jurisdiction the record must show upon its face that the case is one where the courts have authority to act. Before a decree can have vitality the court must have jurisdiction not only of the person but of the subject matter.");

Fico v. Industrial Com., 353 Ill. 74 (1933); In re Cash, 383 Ill. 409, 429 (1943) ("Jurisdiction in special statutory proceedings is never presumed. It must affirmatively appear from the record. Nothing will be presumed in favor of jurisdiction in the face of facts appearing in the record showing it did not exist.").

          Six judges¹ have reported that they have inspected the record of the 91-D-5122 case and all six judges have reported that a valid Petition for Dissolution of Marriage is not a part of the record of the 91-D-5122 case. Under Illinois law, the 91-D-5122 court was without jurisdiction and all of its orders were void ab initio.

         Having made a finding that a critically mandatory condition for the conferring of subject-matter jurisdiction upon the 91-D-5122 court was absent (i.e., a valid Petition of Dissolution of Marriage), the judges only had the lawful authority to vacate the purported judgment issued. The People v. Brewer, 328 Ill. 472, 483 (1928) ("If it could not legally hear the matter upon the jurisdictional paper presented, its finding that it had the power can add nothing to its authority, - it had no authority to make that finding."). By the judges taking any other action, they were engaged in an unlawful action. Freytag v. Commissioner, 501 U.S. 868 (1991); Miller, supra.

        There are in addition other reasons why the 91-D-5122 court lacked subject-matter jurisdiction, but only one is sufficient to establish lack of subject-matter jurisdiction.

        The purported orders issued by the 91-D-5122 court were void ab initio.

     8.   In addition to the lack of jurisdiction of the Bankruptcy Judge due to his automatic disqualification by operation of law, he was also deprived of any jurisdiction he may have lawfully held by the filing of the void ab initio orders of the 91-D-5122 court in the 93-B-7643 Bankruptcy action. The filing of the void ab initio judgments as part of Proofs of Claims in the 93-B-7643 is a violation of 18 U.S.C. §152, a Federal criminal act. The filing of the void ab initio 91-D-5122 judgments in the 93-B-7643 court was a "fraud upon the court" and deprived the 93-B-7643 judge of any jurisdiction he may held. The orders issued by the 93-B-7643 judge were void ab initio. Kenner v. C.I.R., 387 F2d 689 (7th Circuit, 1968).

       In addition, the Bankruptcy Judge accepted a $6,700. bribe. This information is currently before the U.S. Attorney's office, and JOSEPH has received correspondence from the U.S. Attorney relative to this misconduct. The acceptance of a bribe by a judge has been held not only to be unlawful, but also depriving a judge of subject-matter jurisdiction due to his appearance of partiality towards one party.

     9.   Since the Bankruptcy judge had been disqualified under the Supreme Law of this Land, also independently by the "fraud upon the court" by the filing of void ab initio judgments, and by his acceptance of a bribe, no valid discharge had ever been issued, and the Automatic Stay currently applies to this and all other actions against JOSEPH.

       The purported Order for Possession issued by this court is void ab initio since it was issued during the period of the Automatic Stay. Since the purported Order of Possession has no legal force or effect, courts have held that it should be expunged.

       JOSEPH followed the holding in People v. Miller, 339 Ill. 573, 171 N.E. 672 (1930) ("Every judgment of a court rendered without jurisdiction is a nullity -- not merely voidable but void -- and may be disregarded.") and proceeded accordingly, and has disagreed with the void order. JOSEPH requests that the court should also proceed according to law.

    10.   Should anyone take comfort in the fact that the courts have heretofore declined to enter orders granting JOSEPH's Petitions for relief, it should be noted that, State and Federal courts have, without exception, never deviated from the principle that a void order is void ab initio, and need not be declared void to have that effect.

       Should this Court rely on an invalid and void discharge in the Bankruptcy Court and it's competency and efficacy, that reliance is misplaced. This Court cannot rely on such an order. This Court should not countenance such.

    11.   Should this court rule when it does not have jurisdiction, and at any future time any court confirms that the prior proceedings were without lawful authority, then this Judge would under law have been engaging in an act of treason. U.S. v. Will, supra, Cohens v. Virginia, supra. This position is consistent with the Supreme Court's holding in Vallely, supra, where the Vallely court stated that a void order is void ab initio, even before reversal.

     12.   Should this court rule when it does not have jurisdiction, and at any future time a court confirms that the prior proceedings were without lawful authority, then the Supreme Court has in prior decisions held that the Plaintiff has the legal and fiduciary duty to restore and replace the property and all of its contents in the exact same condition and in the exact same position as it was when taken or removed from JOSEPH, Wood v. First Nat. Bank of Woodlawn, 383 Ill. 515 (1943). The Plaintiff would also be responsible for all costs and expenses incurred by JOSEPH in challenging the void ab initio order issued by this court and all other costs and expenses incurred by JOSEPH during the time the property was taken or removed from him. No person, whether judge or private entity, has lawful authority to act in an unlawful manner.

      JOSEPH estimates that the replacement value of the property in his residential unit to be at least $10,000,000. Further some of the property in JOSEPH's residential unit is part of the Bankruptcy estate.

     13.   JOSEPH understands that in the past judicial errors of jurisdiction were created and no entity other than the entities in the courtroom knew of these errors. But today, in the period of the Internet, that is no longer the situation. Today, judicial errors of jurisdiction are sent worldwide in minutes, and they remain on the Internet for years and years. JOSEPH reads on the Internet about many judges each day who violate the law. Up until now, this information has not been readily available.

           JOSEPH has placed the names of the judges involved in the 91-D-5122 and the 93-B-7643 actions, along with copies of the motions presented before them, on the Internet.

    14.   It is the Public Policy that charitable organizations may not discriminate to whom it bestows its charitable benefits.

         The YMCA did not claim in its 30 day Notice of Termination of any causes for its termination of JOSEPH's tenancy. The Notice of Termination was a part of a policy by the YMCA to discriminate against who will receive the charitable benefits of the YMCA.

        Although there is a difference under law between a charity landlord and a non-charity landlord, Judge Garber applied the law of non-charity landlords to the Forcible Detainer action and the Order of Possession. The YMCA is a charity landlord. A charity landlord is required by law to comply with all of the following: (1) the benefits derived are for an indefinite number of persons [for their general welfare or in some way reducing the burdens on government]; (2) the organization has no capital, capital stock or shareholders, and does not profit from the enterprise; (3) funds are derived mainly from private and public charity, and the funds are held in trust for the objects and purposes expressed in the charter; (4) the charity is dispensed to all who need and apply for it; and (5) no obstacles appear to be placed in the way of those seeking the benefits. Methodist Old People's Home v. Korzen, 39 Ill. 2d 149, 233 N.E.2d 537 (1968). A non-charity landlord has none of these legal requirements.

           By filing its Notice of Termination without cause, the YMCA has placed an obstacle in JOSEPH's way of seeking the charitable benefits the YMCA is supposed to offer, in direct adversity to (5) which states that "no obstacles appear to be placed in the way of those seeking the benefits".

           Judge Garber's participation in, aiding and abetting in, assisting in, and conniving with, this scheme of discrimination by the YMCA violates the Public Policy of the State of Illinois. Judge Garber may not lawfully assist an entity to discriminate in violation of the Public Policy. A Judge does not have lawful authority to violate the Public Policy of the State of Illinois. All judicial orders enforcing the discrimination practices of a charitable landlord are void.

     15.   A Judge may lose jurisdiction during a case, although he may have held jurisdiction at the beginning of a case. The Illinois Supreme Court has stated that:

"Where a court, after acquiring jurisdiction of a subject matter, as here, transcends the limits of the jurisdiction conferred, its judgment is void." Flake v. Pretzel, 381 Ill. 498, 46 N.E.2d 375 (1943); Armstrong v. Obucino, 300 Ill. 140, 143, 133 N.E. 58 (1921); People v. Abney, 90 Ill.App.3d 235, 243, 232 N.E.2d 784, 788 (1967).

        JOSEPH suggests that Judge Garber has transcended his lawful authority to grant the Order of Possession, and thus has lost jurisdiction. The Order of Possession issued in this matter is void.

     16.   While a Judge may issue orders to control his court, he has no lawful authority to issue any order which violates the Supreme Law of the Land. The First Amendment to the U.S. Constitution states that all entities, including JOSEPH, have the mandatory right of an adequate, complete, effective, fair, full, meaningful and timely access to the court. The Order of this court restricting JOSEPH's adequate, complete, effective, fair, full, meaningful and timely access to the court by first getting leave of this court to file a motion violates JOSEPH's Constitutional Rights and deprives this court of jurisdiction. Violations of Constitutional Rights by Judge Garber deprived him of his subject-matter jurisdiction. His orders were, and are, void.

           Similarly the attempts by other Judges to restrict JOSEPH's Constitutional Rights of whatever nature also deprived that Judge of jurisdiction.

           For the multiple reasons stated herein, Judge Sheldon Garber acted at all times without subject-matter jurisdiction. All of his orders were, and are, void ab initio.

           WHEREFORE, the defendant prays that this Court will

        A.     expunge sua sponte the Order of Possession issued in this case,

        B.     stay sua sponte the Order of Possession until the jurisdictional issue is finally settled,

        C.     grant to JOSEPH such further equitable and complete relief which to the court shall seem meet and just.

Respectfully submitted,

_______________________
JOSEPH PETERS

                The Illinois Supreme Court has repeatedly held that an inspection of the record of the case must affirmatively find that a valid Petition for Dissolution of Marriage must be a part of the record of the case, in order to confer any subject-matter jurisdiction upon the trial court. In re Cash, 383 Ill. 409, 429 (1943) ("Jurisdiction in special statutory proceedings is never presumed. It must affirmatively appear from the record."); Wabash Area Development, Inc. v. Ind. Com., 88 Ill.2d 392 (1981);C. & N.W. Ry. Co. v. Galt, 133 Ill. 657, 668 (1890); Brown v. VanKeuren, 340 Ill. 118, 122 (1930).

Copyright© 2000 by Citizens for Legal Responsibility®.
                    All rights reserved.

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Draft created May 29, 2000

Corrected May 30, 2000