Editor Note: The following motion was filed in the First District Appellate Court on September 12, 1998. Also filed was an Affidavit from a person not a party to this action, who had read the Judicial Inquiry Board Complaints published on this web-site.
The judges whose jurisdiction was challenged and who were the respondent parties to the August 11, 1998 Motion acted as both judges and respondent/defendants in the same case.
Please email Citizens if you agree that a judge should not rule
in any case in which he/she is the respondent/defendant.
IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT, FOURTH DIVISION _________________________________________________________________ ) ) EUGENE W. ALPERN, ) Appellate Ct. 1-92-2905, Respondent-Appellant ) 92-2975, 93-0240 & 93-0601 ) v. ) ) Trial Ct. 91-D-5122 PHYLLIS ALPERN, ) Petitioner-Appellee ) Judge Philip S. Lieb ) )
NOW COMES the Respondent-Appellant, EUGENE ALPERN "EUGENE", and moves this Court to reconsider and vacate its purported Order dated August 13, 1998.
1. On August 11, 1998 EUGENE filed a 735 ILCS 5/2-1401(f) motion challenging the jurisdiction of Justices Sheila M. O'Brien, Thomas E. Hoffman, and Mary Jane Theis in the 1-92-2905 case.
The respondent parties to the 1401(f) motion were Justices Sheila M. O'Brien, Thomas E. Hoffman, and Mary Jane Theis.
2. A 1401(f) motion is a new proceeding, but is filed under the caption and case number of the underlying case. It is not a continuation of the underlying case.
3. Two days later, on August 13, 1998, Justices Sheila M. O'Brien, Thomas E. Hoffman, and Mary Jane Theis issued a purported Order denying EUGENE's 1401(f) Motion.
4. In a 735 ILCS 5/2-1401 action, Justices Sheila M. O'Brien, Thomas E. Hoffman, and Mary Jane Theis should know that the law requires that an evidentiary hearing be held. Ostendorf v. International Harvester Co., 89 Ill.2d 273, 433 N.E.2d 253 (1982); People v. Reymar Clinic Pharmacy, 246 Ill.App.3d 835, 617 N.E.2d 35 (1993). Justices Sheila M. O'Brien, Thomas E. Hoffman, and Mary Jane Theis know that no evidentiary hearing was held.
5. Justices Sheila M. O'Brien, Thomas E. Hoffman, and Mary Jane Theis issued this purported order of August 13, 1998, although they had not been assigned the new proceeding and were not part of a single appellate panel, nor an assigned single appellate panel. Justices Sheila M. O'Brien, Thomas E. Hoffman, and Mary Jane Theis are currently assigned to three(3) different appellate panels. Justices Sheila M. O'Brien, Thomas E. Hoffman, and Mary Jane Theis had no lawful authority to act in this cause.
The Act (735 ILCS 5/2-1401(f)) states that such proceeding is not a continuation of the original proceeding. By countenancing and deciding the 1401(f) motion which attacked their prior order the three justices acted in contravention to the statute.
The purported order of August 13, 1998, being issued in contravention of the statute, and without lawful authority, was void ab initio.
6. It is clear and well settled law, both Federal and Illinois, that a judge shall not act in any cause where the judge is a party to the action.
7. The 1401(f) motion filed on August 11, 1998 was an action against Justices Sheila M. O'Brien, Thomas E. Hoffman, and Mary Jane Theis challenging their subject-matter jurisdiction.
Neither Justices Sheila M. O'Brien, Thomas E. Hoffman, and Mary Jane Theis, as a party to the 1401(f) motion, has no authority to issue any order. The August 13, 1998 purported order contravenes all established law, in that a party to the action cannot lawfully issue any order in that cause.
8. Justices Sheila M. O'Brien, Thomas E. Hoffman, and Mary Jane Theis acted in their own personal interests, and not in their judicial capacity, in issuing the purported order of August 13, 1998.
It is well-established law that a judge may not act in any case in which he/she is personally involved. In re Heirich, 10 Ill.2d 357, 140 N.E.2d 825 (1957) ("It is a classical principle of jurisprudence that no man who has a personal interest in the subject matter of decision in a case may sit in judgment on that case."); Easter House v. DCFS, 204 Ill.App.3d 312, 561 N.E.2d 1266 (1990); Bd. of Educ. of Niles Tp. v. Reg. Bd. of Sch., 127 Ill.App.3d 210, 468 N.E.2d 1247 (1984); International Harvester Co. v. Bowling, 72 Ill.App.3d 910, 391 N.E.2d 168 (1979).
9. Without any jurisdiction in the current matter, or for that matter in any matter before the Appellate Court at any time in the past, in case no. 1-92-2905, Justices Sheila M. O'Brien, Thomas E. Hoffman, and Mary Jane Theis have engaged in treason, U.S. v. Will, 449 U.S. 200, 216, 101 S.Ct. 471, 66 L.Ed.2d 392, 406 (1980); Cohens v. Virginia, 19 U.S. (6 Wheat) 264, 404, 5 L.Ed 257 (1821) (a judge who acts without jurisdiction is acting in treason to the Constitution), and they have declared war against the Government. Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401 (1958) ("No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it.").
10. Justices Sheila M. O'Brien, Thomas E. Hoffman, and Mary Jane Theis knew, or should have known, that under the circumstances of this action, they were engaged in an action in violation of Supreme Court Rule 63(C) and should have voluntarily disqualified themselves. Justices Sheila M. O'Brien, Thomas E. Hoffman, and Mary Jane Theis have knowingly, intentionally, and deliberately engaged in acts in violation of the Code of Judicial Conduct.
11. Justices Sheila M. O'Brien, Thomas E. Hoffman, and Mary Jane Theis knew that EUGENE had filed Judicial Inquiry Board charges against each of them, and had published the charges against each of them on the Internet on July 17, 1998, and further has published other articles on their judicial incompetence. Justices Sheila M. O'Brien, Thomas E. Hoffman, and Mary Jane Theis, although without any lawful authority, have attempted to strike back against EUGENE for his proper and legal exercise of his legal, civil, and Constitutional Rights.
12. Justices Sheila M. O'Brien, Thomas E. Hoffman, and Mary Jane Theis have given the appearance of their bias and partiality towards EUGENE. Members of the public have filed, or are in the process of filing, affidavits of the judges' bias, partiality and incompetence with this Court.
13. Should Justices Sheila M. O'Brien, Thomas E. Hoffman, and Mary Jane Theis not reverse their purported decisions in this cause, and disqualify themselves from any action in this cause, they should, as they have acted without lawful authority, be impeached for waging war against the U.S. Constitution and the U.S. Government, and engaging in actions in violation of the laws of the State of Illinois.
Apparently Justices Sheila M. O'Brien, Thomas E. Hoffman, and Mary Jane Theis have forgotten the law that states:
"No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government from the highest to the lowest, are creatures of the law, and are bound to obey it." Butz v. Economou, 98 S.Ct. 2894 (1978); United States v. Lee, 106 U.S. at 220, 1 S.Ct. at 261 (1882).
Neither Justices Sheila M. O'Brien, Thomas E. Hoffman, nor Mary Jane Theis, because of their violation of the laws of the State of Illinois and the United States, are fit to serve as judges.
14. Courts have held that "It is important that the litigant not only actually receive justice, but that he believe that he has received justice. A judge, like Caeser's wife, should be above suspicion." Pfizer, Inc. v. Lord, 456 F.2d 532 (1972). In the current case, this litigant has not received justice, nor does the public believe that he has received justice. Nor are Justices Sheila M. O'Brien, Thomas E. Hoffman, and Mary Jane Theis above suspicion.
15. The Illinois constitution provides that "Every person shall find a certain remedy in the laws for all injuries and wrongs which he receives to his person, privacy, property or reputation. He shall obtain justice by law, freely, completely, and promptly." Ill.Const. (1970), Art I, Sec. 12.
In the 1-92-2905 case Justices Sheila M. O'Brien, Thomas E. Hoffman, and Mary Jane Theis have engaged in actions to deny to EUGENE his constitutional rights under Article I, Section 12 of the Constitution of the State of Illinois. Further EUGENE has not obtained justice by law, as Justices Sheila M. O'Brien, Thomas E. Hoffman, and Mary Jane Theis have denied, on August 13, 1998, and on all other dates that he has been before this Court his right to obtain justice by law.
Justices Sheila M. O'Brien, Thomas E. Hoffman, and Mary Jane Theis have engaged in unlawful acts in case no. 1-92-2905 and have engaged in acts in violation of the Constitution. People ex rel. Lyle v. City of Chicago, 360 Ill. 25, 195 N.E. 451 (1935) ("Neither the legislature nor any executive or judicial officer may disregard the provisions of the constitution even in case of a great emergency."); Hollenbeck v. State, 6 Ill.Ct.Cl. 330 (1929) (The Constitution is the supreme law of the State, - it is a mandate from the people which executive, legislative and judicial officials are all bound to obey.).
Justices Sheila M. O'Brien, Thomas E. Hoffman, and Mary Jane Theis have engaged in acts in violation of the Constitution of the State.
16. In 1993 EUGENE filed an action in Bankruptcy under case no. 93-B-7643. Such action automatically invoked the Automatic Stay of Proceedings against the debtor, EUGENE. 11 U.S.C. Section 362. At no time has the Bankruptcy Court lifted the Automatic Stay, allowing any action against the debtor.
Justices Sheila M. O'Brien, Thomas E. Hoffman, and Mary Jane Theis violated the Federal Automatic Stay of any proceedings against EUGENE by issuing their Rule 23 order in case no. 1-92- 2905 in August 1995, while the Automatic Stay was in effect. Such order is a void order, of no legal force or effect.
Justices Sheila M. O'Brien, Thomas E. Hoffman, and Mary Jane Theis have engaged in violation of Federal law.
17. Justices Sheila M. O'Brien, Thomas E. Hoffman, and Mary Jane Theis abused their positions as members of the Illinois judiciary, in ruling without subject-matter jurisdiction, and have debased the judiciary branch of government.
18. Justices Sheila M. O'Brien, Thomas E. Hoffman, and Mary Jane Theis have brought public disgrace to themselves, as well as to each and every member of the Illinois judiciary. They have made a mockery of the law and of the entire Illinois judiciary. They have made the Illinois judiciary a joke in the eyes of the public.
WHEREFORE, EUGENE ALPERN prays that this Court will:
A. vacate the purported order dated August 13, 1998,
B. vacate all orders issued in case no. 1-92-2905, or
C. vacate the purported order dated August 13, 1998, assign this cause to a new Appellate panel, and hold an evidentiary hearing as required by law.
_______________________________ Eugene Alpern Eugene Alpern P.O. Box 672 Morton Grove, IL 60053-0672
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September 12, 1998