MOTION TO VACATE JUDGE EVANS'
VOID ORDERS OF MARCH 6, 1998
NOW COMES the Petitioner, EUGENE ALPERN ("EUGENE") in this cause and moves this Court to vacate the void orders issued by Judge Timothy Evans on March 6, 1998, and for other relief.
1. On March 6, 1998, Judge Mathein, in response to the PETITION FOR CHANGE OF JUDGE FOR CAUSE PURSUANT TO 735 ILCS 5/2- 1001(a)(3), transferred the cause to Judge Evans for reassignment.
ATTORNEY GORDON NEVER FILED A WRITTEN APPEARANCE
2. As an attorney and as a judicial officer, Theodora Gordon ("Gordon") appeared three times before Judge Evans on the afternoon of March 6, 1998 to obtain three purported orders issued by the Presiding Judge.
Gordon has never filed a Notice of Appearance in the current 91-D-5122 cause before the court.
Supreme Court Rule ("SCR") 13(c)(1) states:
Addressing the Court. An attorney shall file his written appearance
... before he addresses the court " [Emphasis added].
Local Rule 1.4 of the Circuit Court Rules of Cook County states:
1.4(a) Addressing the court. An attorney shall file his appearance before he addresses the court ". [Emphasis added].
The Court, in Real Estate Buyer's Agents v. Foster, 234 Ill.App.3d 257, 600 N.E.2d 83 (1992), stated that "although Supreme Court Rule 13(c)(1) requires that an attorney file a written appearance before addressing the court (134 Ill.2d R. 13(c)(1)), no such appearance was filed here." As in Real Estate, no written appearance on behalf of any party was ever filed in the current cause.
EUGENE contends that all papers filed by Theodora Gordon were filed in violation of the law and should be vacated/expunged/dismissed. Under Illinois law, Theodora Gordon cannot represent any party in the matter before the court until after she has filed her written appearance.
Further, Gordon had no lawful right to address any of the judges relative to EUGENE's "PETITION FOR CHANGE OF JUDGE FOR CAUSE PURSUANT TO 735 ILCS 5/2-1001(a)(3), and all orders issued thereupon are void and should be vacated/dismissed. Without filing the required written Notice of Appearance, Gordon could not lawfully appear in the current 91-D-5122 cause at any time.
3. This Court issued a purported order to [attorney Theodora] Gordon transferring the cause to Judge Moshe Jacobius for a hearing. Judge Jacobius recused himself and transferred the cause to Judge Ponce DeLeon. [Report of Proceedings before Judge Jacobius dated March 6, 1998, filed previously with the Clerk of the Circuit Court].
GORDON CHANGED JUDGE'S ORDER
4. Gordon changed Judge Jacobius' order [Exhibit A] from "transferring the cause to Judge Ponce DeLeon" to "transferring the cause to Judge Evans" without any lawful authority.
5. After Judge Jacobius' recusal, Gordon appeared before this Court in a secret and ex-parte unlawful meeting, without any notice to EUGENE. Any order issued without notice is void. Wilson v. Moore, 13 Ill.App.3d 632, 301 N.E.2d 39 (1st Dist. 1973) ("an order entered on a motion without notice is void."); Baldwin v. Hale, 68 U.S. 223, 233 (1863).
This Court issued a purported order transferring the matter to Judge Ponce DeLeon. Since EUGENE had not been served with any prior notice1, this Court's order is void. In addition, the order was void for the additional reason that Gordon had not filed a Notice of Appearance, and therefore had no standing or lawful authority to appear before this Court.
6. Based on the void order issued by this Court, Gordon appeared before Judge Ponce DeLeon, without any notice1 to EUGENE, in a secret and ex-parte unlawful hearing. The cause was then unlawfully transferred to Judge Evans. This purported Order is void.
7. Gordon appeared before Judge Evans for the third time, this time as well as the previous time, without any lawful notice1 to EUGENE, in a secret and ex-parte unlawful meeting. The purported order issued by Judge Evans was unlawful, without subject-matter jurisdiction, and void.
8. Based on multiple void orders orchestrated by Gordon through her acts of deception and fraud, Judge Evans transferred the cause back to Judge Mathein.
The "fraud upon the court" by attorney Theodora Gordon is just another example wherein Gordon has consciously, deliberately, intentionally, and knowingly acted to cause this Court to issue void orders and to deprive this Court of any lawful authority. Thomas Stasel v. The American Home Security Corporation, 362 Ill. 350; 199 N.E. 798 (1935) ("Fraud vitiates everything ..."); The People of the State of Illinois v. Fred E. Sterling, 357 Ill. 354, 192 N.E. 229 (1934); The People ex rel. The Chicago Bar Association v. Newton R. Gilmore, 345 Ill. 28; 177 N.E. 710 (1931); Allen F. Moore v. Stanley F. Sievers, 336 Ill. 316; 168 N.E. 259 (1929); In re Village of Willowbrook, 37 Ill.App.2d 393 (1962) ("It is axiomatic that fraud vitiates everything."); Dunham v. Dunham, 57 Ill.App. 475 (1894), affirmed 162 Ill. 589 (1896); Skelly Oil Co. v. Universal Oil Products Co., 338 Ill.App. 79, 86 N.E.2d 875, 883-4 (1949).
All orders issued since Judge Evans' first order transferring the cause to Judge Jacobius were issued without lawful notice1 and lawful authority, in violation of the law of this State, and therefore are void.
JUDGE EVANS ACTED WITHOUT SUBJECT-MATTER JURISDICTION
9. The law is clear and well-settled, that in all divorce actions, the court is one of limited jurisdiction and that no presumption of subject-matter jurisdiction is conferred upon the court. Strukoff v. Strukoff, 76 Ill. 2d 53, 60, 389 N.E.2d 1170, 1172-73 (1979).
This principle applies to all statutory proceedings. People ex rel. Curtin v. Heizer, 36 Ill.2d 438, 223 N.E.2d 128 (1967) ("ordinary presumptions of jurisdiction do not obtain, and every fact necessary to support such jurisdiction must appear from the face of the record."); People v. R.D.S., 94 Ill.2d 77, 84 (1983) ("However, no such presumption prevailed in connection with special statutory jurisdiction. In such cases jurisdiction was never presumed, and whatever the jurisdiction of the court, the proceedings were required to be in strict conformity with the statute."); Wabash Area Development, Inc. v. Ind. Com., 88 Ill.2d 392 (1981) (where courts "exercise a special statutory jurisdiction, which can properly be invoked only by strict compliance with the statute. ... any presumption of subject matter jurisdiction which may otherwise obtain is lost, so that compliance with the statutory requirements for the issuance of the writ must affirmatively appear in the record.").
10. Subject-matter jurisdiction is determined only by an inspection of the record of the case. The inspection of the record of the case must show that ALL of the elements of subject- matter jurisdiction existed, and at all times. State Bank of Lake Zurich v. Thill, 113 Ill.2d 294, 497 N.E.2d 1156 (1986); Herb v. Pitcairn, 384 Ill. 237, 241 (1943); People ex rel. Curtin v. Heizer, 36 Ill.2d 438, 223 N.E.2d 128 (1967); Brown v. VanKeuren, 340 Ill. 118, 122 (1930); Wabash Area Development, Inc. v. Ind. Com., 88 Ill.2d 392 (1981).
11. Either subject-matter jurisdiction exists, or it doesn't. In the case at bar, Judge Ward, as well as three Justices of the Illinois Appellate Court, First District, all found, in their inspection of the record of the 91-D-5122 case, that no Petition for Dissolution of Marriage was a part of the record. Since a valid Petition is a mandatory requirement for subject-matter jurisdiction to be conferred upon the Court, their inspection and findings established the fact that subject-matter jurisdiction did not exist in case no. 91-D-5122.
12. Subject-matter jurisdiction cannot be conferred upon a court by agreement of the parties or by acquiescence. People v. Arlington Park Race Track Corp, 122 Ill.App.3d 517, 461 N.E.2d 505, 508 (1st Dist. 1984) ("Defects in subject-matter jurisdiction cannot be waived nor can such jurisdiction be conferred on the court by the acquiescence or the stipulation of the parties."); Klopfer v. Court of Claims, 286 Ill.App.3d 499, 676 N.E.2d 679 (1st Dist. 1987) ("Defects in subject matter jurisdiction cannot be waived (Glasco Electric Co. v. Department of Revenue, 86 Ill.2d 346, 427 N.E.2d 90 (1981); People ex rel. Compagnie Nationale Air France v. Giliberto, 74 Ill.2d 90, 383 N.E.2d 977 (1978), and the parties to an action cannot confer jurisdiction by their acquiescence or consent (City of Chicago v. Shayne, 27 Ill.2d 414, 189 N.E.2d 324 (1963)."). Even if the Petitioner or the Respondent, in the underlying matter, or both acquiesce to, or agree with each other that the court has, subject-matter jurisdiction, if the record of the case does not support subject-matter jurisdiction, no subject-matter jurisdiction is conferred upon the court.
Subject-matter jurisdiction must attach and must continue through each stage of the proceedings. Armstrong v. Obucino, 300 Ill. 140, 143, 133 N.E. 58 (1921). Before this Court can assign the cause to another judge for hearing, it must first have subject-matter jurisdiction. EUGENE suggests that Judge Evans did not inspect the record of the 91-D-5122 trial case, otherwise he would not have assigned the matter to Judge Jacobius, but would have, as is his duty, sua sponte vacate the void judgment issued on August 10, 1992 in the 91-D-5122 matter.
The record in this case is an embarrassment to the courts. To correct this, it is incumbent on every judge who entertains it, to remedy the wrong done to EUGENE by their continuing to enter purported orders in a void proceeding.
Judge Evans must first find that the court has subject- matter jurisdiction. EUGENE requests that Judge Evans show EUGENE and the Court a valid Petition filed in, and a part of, the record of the 91-D-5122 case. EUGENE suggests that Justices Hoffmann, O'Brien, and Theis and Judge Ward's findings that no Petition existed were correct, and that Judge Evans will also find and report that no Petition for Dissolution of Marriage exists in the record of the 91-D-5122 trial court.
EUGENE HAS DENIED SUBJECT-MATTER JURISDICTION
EUGENE has denied that the 91-D-5122 trial court held subject-matter jurisdiction, and has subsequently denied that any court in which the 91-D-5122 action has been considered before ever held subject-matter jurisdiction.
Phyllis Alpern ("PHYLLIS"), the Petitioner in the underlying action, has the burden to prove that subject-matter jurisdiction, as to all of its elements, existed. At no time has PHYLLIS proven that the 91-D-5122 trial court, or any court since March 22, 1991 in which any aspect of the Phyllis Alpern v. Eugene Alpern matter has been presented, ever held subject-matter jurisdiction as to all of its elements. 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."); Loos v. American Energy Savers, Inc., 168 Ill.App.3d 558, 522 N.E.2d 841 (1988) ("Where jurisdiction is contested, the burden of establishing it rests upon the plaintiff.").
Although PHYLLIS has been informed that subject-matter jurisdiction has been denied, PHYLLIS has not produced even one piece of evidence that subject-matter jurisdiction had ever been conferred upon the 91-D-5122 trial court. Since PHYLLIS has not produced any evidence that subject-matter jurisdiction had ever been conferred upon the trial court, and since PHYLLIS cannot provide any evidence that subject-matter jurisdiction was ever conferred upon the trial court, EUGENE suggests that PHYLLIS has admitted that subject-matter jurisdiction had never been conferred upon the 91-D-5122 trial court. PHYLLIS has abandoned the argument that the trial court held subject-matter jurisdiction. PHYLLIS has defaulted in her duty to produce evidence that the court held subject-matter jurisdiction. This Court should recognize and accept the fact that PHYLLIS has failed to produce any evidence of subject-matter jurisdiction, and should sua sponte vacate/expunge the underlying 91-D-5122 judgment.
JURISDICTIONAL FINDINGS NOT CONTAINED IN ORDER
13. The Jennings Court ruled that "in a special statutory proceeding, an order MUST contain the jurisdictional FINDINGS prescribed by statute." [Emphasis added] In re Jennings, 68 Ill.2d 125, 368 N.E.2d 864 (1977). A court exercising a special statutory jurisdiction, the record must show upon its face that the case is one where the court has authority to act. Keal v. Rhydderck, 317 Ill. 231, 148 N.E.2d 53 (1925).
Mere recitals of the court that it has subject-matter jurisdiction are just that. They have no more force or effect than an allegation of anything in the pleadings. The orders and judgment must recite each and all findings that the essential elements of the statutory proceeding exist and consequently the court has the requisite subject-matter jurisdiction to enter its judgment.
The orders entered by Judge Evans must recite all of the facts that give the Court subject-matter jurisdiction in this matter; it must contain the fact that he found a valid Petition for Dissolution of Marriage in the record of case no. 91-D-5122. The orders did not contain any of the mandatory required jurisdictional findings required by law. The order did not comply with the law. The orders were, at the least, a nullity; the orders were void, of no legal force or effect.
GORDON SHOULD BE SANCTIONED
14. This Court should sanction attorney Theodora Gordon for her not complying with the law, by her not filing a written appearance before addressing the court, by her failing to give lawful notice to EUGENE, by her "fraud upon the court", by her placing judges in a position where they engaged in unlawful acts, and by her disdain for the law and the judges of the Illinois judiciary.
Gordon had a duty to the court to inspect the record of the case before filing any of her pleadings in this cause. Rule 137. Gordon had a duty to the court not to make false and frivolous arguments before the court. Fremarek v. John Hancock Mut. Life. Ins., 272 Ill.App.3d 1067 (1995) and other citations referred to therein.
CONCLUSION
Judge Evans should comply with the law, should vacate/ purge all orders that he issued in case no. 91-D-5122 on March 6, 1998 as they were issued without subject-matter jurisdiction, without lawful notice, without jurisdictional findings recited in the order, and an unauthorized attorney appeared before him, should inspect the record of case no. 91-D-5122, should either show this Court and EUGENE the copy of the valid Petition that is currently in the record of the case or sua sponte vacate the purported judgment of August 10, 1992 as it was issued without subject-matter jurisdiction, and should sanction attorney Theodora Gordon.
WHEREFORE, the movant prays that this Court will
A. vacate all orders issued by Judge Evans in case no. 91-D-5122 on March 6, 1998,
B. vacate/expunge sua sponte the August 10, 1992 purported judgment,
C. sanction attorney Theodora Gordon for her activities stated above.
Respectfully submitted, _______________________ Eugene Alpern Eugene Alpern P.O. Box 672 Morton Grove, IL 60053-0672
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May 8, 1998