The trial judge asked: "So what do we do to make sure that the little one has a meaningful relationship with mom and dad, and [what] do we do to make sure that dad and mom have a meaningful relationship with this child?" THE ANSWER? REMOVE THE FATHER ALMOST COMPLETELY FROM THE CHILD'S LIFE. Oh, and make him a cash machine that the ex-wife can withdraw from at any time.
THAT'S what this case is about.
Evidence and logic mean nothing in so-called "courts of law." Some may address these immoral terrorists as "Your Honor," but I never will -- as they haven't EARNED it.
FIRST JUDICIAL DISTRICT
| IN RE THE MARRIAGE OF: | ) |
Appeal from the Circuit Court of |
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Cook County , Illinois | |
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County Department – | |
| BRIAN LOVETT, | ) |
Domestic Relations Division |
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| Petitioner-Appellant, |
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Trial Court No. 00 D 06725 |
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| and |
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Judge R. Morgan Hamilton, |
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Presiding, and | |
| LAURIE LOVETT, | ) |
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Judge Veronica Mathein, | |
| Respondent-Appellee |
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Presiding |
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BRIEF OF PETITIONER-APPELLANT
BRIAN LOVETT
1416 W Wolfram St., #1
Chicago, IL 60657-4117
(312) 245-7982
blovett@gsb.uchicago.edu
November 19, 2004
ORAL ARGUMENT REQUESTED
POINTS AND AUTHORITIES
People v. Malchow, 193 Ill. 2d 413, 418 (2000)
Lulay v. Lulay, 193 Ill. 2d 455 (2000)
Nissenson v. Bradley, 316 Ill. App. 3d 1035 (2000)
In Re Marriage of Mcmahon, 82 Ill. App.3d 1126 (1980)
Langman v. Langman, 325 Ill.App.3d 101 (2001)
People of the State of Illinois v. R.G., 131 Ill. 2d 328 (1989)
Troxel v. Granville, 530 U.S. 57 (2000)
Lulay v. Lulay, 193 Ill. 2d 455 (2000)
Harris v. McRae, 448 U.S. 297 (1980)II. The best interest of the child statutes are unconstitutional
A. Brian is a fit parent; no evidence exists of abuse or risk of substantial harm
Troxel v. Granville, 530 U.S. 57 (2000)
Stanley v. Illinois, 405 U.S. 645 (1972)
Jarrett v. Jarrett, 348 Ill. App. 1 (1952)
Santosky v. Kramer, 455 U.S. 745 (1982)B. Brian has a right to privacy and a right to be an equal parent.
Troxel v. Granville, 530 U.S. 57 (2000)
Griswold v. Connecticut, 381 U.S. 479 (1965)
Meyer v. Nebraska, 262 U.S. 390 (1923)
Quilloin v. Walcott, 434 U.S. 246 (1978)
Stanley v. Illinois, 405 U.S. 645 (1972)
Santosky v. Kramer, 455 U.S. 745 (1982)
Parham v. J.R., 442 U.S. 584 (1979)
Bellotti v. Baird, 443 U.S. 622 (1979)
Lulay v. Lulay, 193 Ill. 2d 455 (2000)
Regenold v. Baby Fold, Inc., 68 Ill.2d 419 (1977)
City of Chicago v. Morales, 527 U.S. 41 (1999)
Village of Hoffman Estates et al. v. Flip-Side, 455 U.S. 489 (1982)
Wickham v. Byrne, 199 Ill.2d 309 (2002)C. Troxel v. Granville is broad in its application.
Troxel v. Granville, 530 U.S. 57 (2000)
Pierce v. Society of Sisters, 268 U.S. 510 (1925)
Prince v. Massachusetts, 321 U.S. 158, 166 (1944)D. The only criterion for infringing on a parent’s fundamental right is fitness
Santosky v. Kramer, 455 U.S. 745 (1982)
Boyd v. United States, 116 U.S. 616 (1886)
Miranda v. Arizona, 384 U.S. 436 (1966)
McCarthy v. Arndstein, 266 U.S. 34 (1924)
Griswold v. Connecticut, 381 U.S. 479 (1965)A. The Wealth Transfer Statutes violate equal protection.
Gulf, Colorado and Santa Fe Railway Company v. Ellis, 165 U.S. 150(1897)
Beyer v. Parkis, 324 Ill.App.3d 305 (2001)
In re the Marriage of Emily Auriemma, 271 Ill. App. 3d 68 (1994)
McLaughlin v. Florida, 379 U.S. 184 (1964)
Loving v. Virginia, 388 U.S. 1 (1967)
Romer v. Evans, 517 U.S. 620 (1996)
Stanley v. Illinois, 405 U.S. 645 (1972)
Glona v. American Guarantee Co., 391 U.S. 73 (1968)
Leary v. United States, 395 U.S. 6 (1969)
Orr v. Orr, 440 U.S. 268 (1979)
Nevada Department of Human Resources v. Hibbs, 123 S.Ct. 1972 (2003)
In Re Fisher, 15 Ill.2d 139 (1958)
Jackson v. Jackson, 34 Ill. App.3d 407 (1975)
In Re Marriage of Workman, 89 Ill. App.3d 886 (1980)
Bellow v. Bellow, 94 Ill. App.3d 361 (1981)
People v. Pullen, 192 Ill.2d 36 (2000)
Consumer Product Safety Commission et al. v. GTE Sylvania, 447 U.S. 102 (1980)
Griswold v. Connecticut, 381 U.S. 479 (1965)
Chicago & Northwestern Railway Company v. NYE Schneider Fowler Company,260 U.S. 35 (1922)
In re Marriage of Fields, 288 Ill.App.3d 1053 (1997)B. The Wealth Transfer Statutes violate due process
Butchers’ Union Co. v. Crescent City Co., 111 U.S. 746 (1884)
In Re Fisher, 15 Ill.2d 139 (1958)
Beyer v. Parkis, 324 Ill.App.3d 305 (2001)
Griffin v. Illinois, 351 U.S. 12 (1956)
Chapman v. Chapman, 285 Ill.App.3d 377 (1996)
In Re Marriage of Marie R. Courtright, 185 Ill. App. 3d 74 (1989)
Village of Hoffman Estates et al. v. Flip-Side, 455 U.S. 489 (1982)
Coates v. City of Cincinnati, 402 U.S. 611 (1971)
In Re Marriage of Simmons, 87 Ill. App.3d 651 (1980)
In re Marriage of Mohr, 260 Ill.App.3d 98 (1994)
Grayned v. City of Rockford, 408 U.S. 104 (1972)
Weinberger v. Salfi, 422 U.S. 749 (1975)
Manley v. Georgia, 279 U.S. 1 (1929)
In re Marriage of Harlow, 251 Ill.App.3d 152 (1993)
Stanley v. Illinois, 405 U.S. 645 (1972)C. The Wealth Transfer Statutes violate privacy.
Roe v. Wade, 410 U.S. 113 (1973)
Whalen v. Roe, 429 U.S. 589 (1977)
Stanley v. Georgia, 394 U.S. 557 (1969)
Chapman v. Chapman, 285 Ill.App.3d 377 (1996)
In Re Marriage of Simmons, 87 Ill. App.3d 651 (1980)
Beyer v. Parkis, 324 Ill.App.3d 305 (2001)D. The Wealth Transfer Statutes are unconstitutional taking of property
Southwestern Illinois Development Authority v. National City Environmental, L.L.C., 304 Ill.App.3d 542 (1999)
Chicago, Burlington and Quincy Railroad Company v. Chicago, 166 U.S. 226 (1897)
Atlantic Coast Line Railroad Company v. Riverside Mills, 219 U.S. 186 (1911)
In Re Fisher, 15 Ill.2d 139 (1958)
Beyer v. Parkis, 324 Ill.App.3d 305 (2001)E. The Wealth Transfer Statutes constitute a threat of imprisonment for debt.
Hodges v. United States, 203 U.S. 1 (1906)
V. The order permanently enjoining Brian was unconstitutional
Pfeffer v. Lebanon Land Development Corp., 46 Ill. App.3d 186 (1977)
Nye v. Parkway Bank & Trust Co., 114 Ill. App.3d 272 (1983)
Lily of the Valley Spiritual Church v. Sims, 169 Ill. App. 3d 624 (1988)
Electronic Design & Manufacturing v. John Konopka, 272 Ill. App. 3d 410 (1995)
Triangle Sign Co. v. Randolph & State Property, 16 Ill. App.2d 21 (1957)
Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000)
Troxel v. Granville, 530 U.S. 57 (2000)
Kemner v. Monsanto Co., 112 Ill.2d 223 (1986)
Parham v. J.R., 442 U.S. 584 (1979)VI .Laurie and her attorneys committed perjury
In the Matter of Michael, 326 U.S. 224 (1945)
People v. Briddle, 84 Ill. App. 3d 523 (1980)
Sanchez v. City of Chicago, No. 1-03-2594 (Ill.App. Dist.1 09/30/2004)
Regenold v. Baby Fold, Inc., 68 Ill.2d 419 (1977)
Majewski v. Gallina, 17 Ill.2d 92 (1959)VII .Laurie and her attorneys committed deliberate, malicious, and severe fraud
Soules v. General Motors Corp., 79 Ill.2d 282 (1980)
In re Marriage of Dunlap, 294 Ill. App. 3d 768 (1998)
Nissenson v. Bradley, 316 Ill. App. 3d 1035 (2000)VIII. Laurie clearly dissipated assets
In Re Marriage of Barbara Hagshenas, 234 Ill. App. 3d 178 (1992)
IX. Brian should have received the marital home
In re Marriage of Gattone, 317 Ill.App.3d 346 (2000)
In Re Marriage of Barbara Hagshenas, 234 Ill. App. 3d 178 (1992)X .Brian should have received the jewelry
In Re Marriage of Weinstein, 128 Ill. App.3d 234 (1984)
Dudley v. Uptown Nat. Bank of Moline, 25 Ill. App.2d 514 (1960)
Statutes
"Attorneys' Fees Statutes," including 750 ILCS 5/501 (c)(1), 750 ILCS 5/503 (j), and 750 ILCS 5/508, as well as any other sections within 750 ILCS 5 and rules that refer to “attorneys’ fees”
"Maintenance Statutes," including 750 ILCS 5/504, and associated sections 750 ILCS 5/501 (a), 750 ILCS 5/507, and 750 ILCS 5/510 (a), as well as any other sections and rules that refer to “maintenance”
”Best Interest of the Child Statutes,”including 750 ILCS 5/602, 750 ILCS 5/603, 750 ILCS 5/604, 750 ILCS 5/607, 750 ILCS 5/609, 750 ILCS 5/610, 750 ILCS 5/503 (g), and 750 ILCS 5/506, as well as any other sections and rules that refer to “best interest of the child”
”Child Support Statutes,” including 750 ILCS 5/505, and associated sections 750 ILCS 5/501 (a), 750 ILCS 5/507, 750 ILCS 5/510 (a), 750 ILCS 5/510 (e), 750 ILCS 5/510 (f), and 750 ILCS 5/513, as well as any other sections and rules that refer to “child support”
”Discovery Rules,” including Illinois Supreme Court Rules 201 through 214
”Mandatory Disclosure Rules,” including Rules of the Circuit Court of Cook County 13.3.1 and 13.3.2
Regulations
Constitutional Provisions
NATURE OF THE CASE
Brian Lovett (hereinafter “Brian”) filed for divorce from his wife Laurie Lovett (hereinafter “Laurie”) on April 28, 2000, approximately five months after the birth of their daughter Samantha Lovett (hereinafter “Samantha”) and 2.5 years after they were married. In July, 2000, the parties attempted to reconcile, but after struggling for eleven months, both agreed they could not.
Brian’s first attorney fired Brian as a client in court when he refused to accept a visitation schedule proposed by the trial judge and the Guardian Ad Litem for four out of fourteen days. Shortly after Brian hired a replacement attorney, the parties negotiated an agreement (Pl. Ex. A, hereinafter “Agreed Interim Order”) that attempted to set-out the temporary and permanent disposition of some of the most contentious topics while the divorce was pending (e.g., custody, parenting schedules, living arrangements, child support, future income and expenses, property). Brian later fired his second attorney. Subsequently, Brian filed his appearance as Pro Se seeking to have multiple Illinois statutes and rules related to divorce declared unconstitutional.
Brian is challenging the constitutionality of all Illinois statutes that refer to the “best interest of the child” (i.e., 750 ILCS 5/ 602, 603, 604, 607, 609, 610, 503 (g), and 506, as well as any other sections and rules that refer to “best interest of the child”) (hereinafter “Best Interest of the Child Statutes”), on their face and as applied, which compel the State’s judiciary to make “awards” of child custody and parenting time, or allocation of parental responsibilities, privileges, and parenting time, or assignment of “guardians” and “evaluators,” within the context of dissolution of marriage actions and post-decree dissolution of marriage actions concerning children. Brian contends that the challenged statutes and rules violate well-recognized fundamental rights, including the right to due process, the right to equal protection, the right to privacy, and the right to the care, custody, control, companionship, and nurture of one’s offspring embodied in the fundamental liberty interest in family, which rights are secured by the Fourteenth Amendment. Brian is seeking that the challenged “best interest” statutes and rules are declared unconstitutional. These challenges/questions were presented in Brian’s Trial Brief (R. Vol. 5-9: C1085-2020), his Summary of Constitutional Arguments trial pleading (R. Vol. 9-10: C2225-2237), and extensively throughout the trial.
Additionally, Brian also is challenging the constitutionality of all “child support” statutes (750 ILCS 5/505, and associated sections 501 (a), 507, 510 (a), 510 (e), 510 (f), and 513, as well as any other sections and rules that refer to “child support”) (hereinafter “Child Support Statutes”), the maintenance statutes (750 ILCS 5/504, and associated sections 501 (a), 507, and 510 (a), as well as any other sections and rules that refer to “maintenance”) (hereinafter “Maintenance Statutes”), and the attorneys’ fee statutes (750 ILCS 5/501 (c)(1), 503 (j), and 508, as well as any other sections within 750 ILCS 5 and rules that refer to “attorneys’ fees”) (hereinafter “Attorneys’ Fees Statutes”), as well as parts 13.3.1 and 13.3.2 of the Rules of the Circuit Court of Cook County(hereinafter “Mandatory Disclosure Rules”) and Illinois Supreme Court Rules 201 through 214 (hereinafter “Discovery Rules”). Brian contends that these statutes and rules are directly and egregiously violative of the Federal Constitution and Illinois Constitution. Specifically, Brian contends that the statutes and rules are unconstitutional on their face[1] and as applied because they violate the fundamental rights to equal protection, to due process, to privacy, to property, and to proscriptions about involuntary servitude, all of which are guaranteed to Brian under the Federal Constitution. Further, Brian contends the statutes are unconstitutional as applied because they violate his rights to not be imprisoned for debt and for proscriptions about private takings for private use or public use, all guaranteed to him under the Illinois Constitution. As with the Best Interest of the Child Statutes, these challenges/questions were also presented in Brian’s Trial Brief, his Summary of Constitutional Arguments trial pleading, and extensively throughout the trial.
On June 1, 2004, approximately ten months after an eighteen-day, non-jury trial, the circuit court entered a Judgment for Dissolution of Marriage (hereinafter “Judgment”) denying Brian’s request to find the referenced statutes and rules unconstitutional. Additionally in its Judgment, the circuit court, intra alia, awarded sole custody of Samantha to Laurie with visitation for Brian, ordered Brian to pay child support, divided up the parties’ assets, ordered the sale of the marital residence, and ruled on other outstanding requests. On June 11, 2004, the circuit court ordered a permanent injunction against Brian (hereinafter “Injunction”). Brian appeals from the Judgment, certain related orders entered by the circuit court regarding attorneys’ fees and property distribution, and the Injunction. As Judge R. Morgan Hamilton summarized:
“We've got one child, we've got two parents. We will always have the one child and two parents, and you will be the parents of this child forever and ever, and the mom will be the mom of this child forever and ever. The dad will be the dad of this child forever and ever. But what we have is a situation... where mom and dad will no longer be living together in the same house with the child. So what do we do to make sure that that little one has a meaningful relationship with mom and dad, and [what] do we do to make sure that dad and mom have meaningful relationships with this child? That's what our case is about.” (S.R. V3: 111 lines 21-24, 112 lines 1-9)
ISSUES PRESENTED FOR REVIEW
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Whether the following Illinois statues and rules are directly and egregiously violative of the Federal Constitution and Illinois Constitution on their face and as applied: the Best Interest of the Child Statutes; the Child Support Statutes, the Maintenance Statutes, and the Attorneys’ Fees Statutes (hereinafter “Wealth Transfer Statutes”); the Mandatory Disclosure Rules, and; the Discovery Rules.
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Whether the circuit court’s orders under these challenged statutes and rules were unconstitutional (i.e., assigning custody and visitation, requiring Samantha to be the irrevocable life insurance beneficiary, requiring Brian to provide secondary medical coverage, ordering Brian to pay child support and attorneys’ fees, ordering Brian not be reimbursed for maintenance paid, allowing Laurie to claim Samantha as a tax exemption, for college expenses to be determined by Section 513, ordering Brian to provide Laurie annual copies of federal and state tax returns, W-2 statements, and 1099s, and the Injunction).
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Whether the circuit court’s July 23, 2003 order for Brian to pay Laurie’s attorneys’ fees was also an abuse of discretion and contrary to the manifest weight of the evidence.
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Whether the circuit court’s order that Brian not be reimbursed for the maintenance payments he was ordered to make pursuant to an order entered on September 30, 2002 was an abuse of discretion and contrary to the manifest weight of the evidence.
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Whether Laurie and her attorneys committed multiple torts and counts of perjury.
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Whether the circuit court abused its discretion in ignoring fraud and perjury.
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Whether the circuit court finding the marital home to be marital property and the division of the net proceeds were contrary to the manifest weight of the evidence.
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Whether the circuit court abused its discretion in ordering the sale of the marital home, ordering Brian to sign a quitclaim deed transferring his interest in the marital home to Laurie, and authorizing and empowering any judge to sign a Judge’s Deed transferring Brian’s interest in the marital home to Laurie.
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Whether the circuit court’s finding that no dissipation occurred by Laurie was contrary to the manifest weight of the evidence.
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Whether awarding two marital property items to Laurie in its July 24, 2003 order was against the manifest weight of the evidence and an abuse of discretion.
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Whether the circuit court awarding specific pieces of jewelry to Laurie was contrary to the manifest weight of the evidence.
JURISDICTIONAL STATEMENT
Pursuant to Supreme Court Rules 301 and 303, this is an appeal as of right from a final judgment of a circuit court. The circuit court’s judgment dissolving the marriage, inter alia, was entered on June 1, 2004 (R. Vol. 10: C2256-2304), with an associated order entered on July 23, 2003 ordering Brian to pay Laurie’s attorneys $56,467 (R. Vol. 9: C2213) (hereinafter “July 23, 2003 Order”), and an associated order entered on July 24, 2003 awarding two property items to Laurie (R. Vol. 9: C2218) (hereinafter “July 24, 2003 Order”), and the Injunction entered on June 11, 2004 (R. Vol. 10: C2323-2324). Brian timely filed his Notice of Appeal on June 8, 2004 (R. Vol. 10: C2305-2306) and an amended Notice of Appeal on June 18, 2004 (R. Vol. 10: C2325-2326).
STANDARD OF REVIEW
All statutes, rules, and associated orders challenged here are questions of law, statutory construction, and constitutional validity. The proper standard of review is de novo. People v. Malchow, 193 Ill. 2d 413, 418 (2000); Lulay v. Lulay, 193 Ill. 2d 455, 466 (2000). Whether Illinois Supreme Court Rule 137 has been violated is reviewed under the manifest weight of the evidence standard. Nissenson v. Bradley, 316 Ill. App. 3d 1035, 1040 (2000). Though it appears that some disagreement exists among the courts, Brian believes the appropriate standards for the remaining issues are whether the trial court abused its discretion and whether the orders were contrary to the manifest weight of the evidence. In Re Marriage of Mcmahon, 82 Ill. App.3d 1126, at ¶25-33 (1980).
STATEMENT OF FACTS
During the first three days of trial, Brian presented to the circuit court his argument as to why he contended the Best Interest of the Child Statutes, the Child Support Statutes, the Maintenance Statutes, the Attorneys’ Fees Statutes, the Mandatory Disclosure Rules, and the Discovery Rules were unconstitutional. At the circuit court’s request, Brian also filed a Summary of Constitutional Arguments. On July 23, 2003, the circuit court ordered Brian to pay Laurie’s attorneys $56,467 (i.e., July 23, 2003 Order). On July 24, 2003, the circuit court entered an order awarding two property items to Laurie (i.e., July 24, 2003 Order). On June 1, 2004, the circuit court entered its Judgment denying Brian’s request to declare any of the referenced statutes and rules unconstitutional. Additionally, the circuit court: (1) awarded Laurie the sole care, custody, control, and education of Samantha; (2) allowed Brian to have significantly reduced visitation (16% of time, or approximately 4.5 days/month); (3) ordered Brian to name Samantha as the irrevocable beneficiary of any life insurance policy he may have through work; (4) ordered Brian to provide secondary medical coverage for Samantha; (5) ordered Brian to pay child support of $1,519.10 monthly; (6) ordered that Laurie shall claim Samantha as a tax exemption every year; (7) ordered that each parent’s contribution of college expenses be determined by Section 513; (8) ordered Brian not be reimbursed for the child support and maintenance payments he was ordered to make pursuant to an order entered on September 30, 2002; (9) ordered Brian not be reimbursed for interim attorneys’ fees and costs awarded to Laurie pursuant the July 23, 2003 Order; (10) found certain pieces of jewelry to be non-marital and ordered Laurie be assigned this jewelry; (11) found the marital home to be marital property, ordered the sale of the party’s marital home, the net proceeds which are to be divided 50/50 between the parties, ordered Brian to sign a quitclaim deed transferring his interest in the marital home to Laurie, and authorizing a Judge’s Deed should Brian not execute the quitclaim deed (which was later executed (R. Vol. 10: C2315)); (12) ordered Brian to provide Laurie copies of federal and state tax returns, W-2 statements, and 1099s; (13) found that no dissipation occurred by Laurie; (14) ignored alleged perjury by Laurie’s attorneys and Brian’s plea for sanctions; (15) ignored alleged perjury by Laurie and Brian’s plea for sanctions; (16) ignored alleged fraud by Laurie’s attorneys; (17) ignored alleged fraud by Laurie, and; (18) awarded two marital property items to Laurie in its July 24, 2003 Order.
On June 10, 2004, at approximately 5:00 PM, Brian received petitions from Laurie’s attorneys seeking a permanent injunction against Brian. On June 11, 2004 at 10:30 AM, the parties appeared before the circuit court, Judge Veronica Mathein presiding, where an emergency hearing was held on the issues. The resulting Injunction stated that Brian admitted: (a) “That he has told Samantha that Laurie is taking her (Samantha) from him;” (b) “That he has told Samantha that he was going to have less time with her;” (c) “That he has told Samantha that her mother lies,” and; (d) “That he has told Samantha that people associated with her mother are bad.” Resulting from those findings, the circuit court ordered a permanent injunction “...enjoining Brian Lovett from making any disparaging remarks about Laurie Lovett and further enjoining him from talking to Samantha about the Judgment of Dissolution of Marriage, the appeal from that Judgment or his alleged fight for Samantha.” (R. Vol. 10: C2323-2324).
ARGUMENT
I. When a State law or rule affects fundamental rights, the traditional standard of appellate review is abandoned, there is no presumption of constitutionality, and the court is required to apply “strict scrutiny”
The Judgment states: “That the Wife, LAURIE LOVETT, shall have the sole care, custody, control and education of the minor child of the parties, SAMANTHA LOVETT, born on November 13, 1999.” (Judgment, R. Vol. 10: C114). Did Brian have a fundamental constitutional right to make decisions concerning the care, custody, and control of his child before filing for divorce in the circuit court? If the answer is yes, given the Judgment’s clear wording, does Brian have a fundamental constitutional right to make decisions concerning the care, custody, and control of his child after receiving the Judgment from the circuit court? If the answer is no, what did Brian do wrong between the time he filed for divorce and the time his divorce was “granted” that caused him to lose that fundamental right? For, surely, for someone to lose such an important fundamental right, he must have committed a crime of great severity other than not being able to get along with his wife, which was why he filed for divorce in the first place.
Fundamental rights “...must be evaluated under a strict scrutiny analysis. Lulay, 193 Ill. 2d at 476, 739 N.E.2d at 532. To withstand the strict scrutiny test, a statute must serve a compelling state interest, and the statute must be narrowly tailored to serve the compelling interest.” Langman v. Langman, 325 Ill.App.3d 101, at ¶32 (2001); see also People of the State of Illinois v. R.G., 131 Ill. 2d 328 at ¶45 and 47 (1989). Like the right to make decisions concerning the care, custody, and control of a child, the right to property is also fundamental. A statute, by its mere existence “on the books,” cannot overcome fundamental individual rights and liberty interests. Troxel v. Granville, 530 U.S. 57, 65 (2000).
There must exist a compelling state interest before the State can impair fundamental rights, even in the face of apparent statutory empowerment to the contrary, as evidenced by the fact that the standard of review of such a decision is one of strict scrutiny. What was the circuit court’s narrowly tailored, compelling interest in taking Brian’s fundamental constitutional right away from him? This court may NOT use intermediate scrutiny because it is not the heightened scrutiny required when fundamental interests are implicated. Id., at 65; Lulay v. Lulay, supra, at 532. “[I]f a law "impinges upon a fundamental right explicitly or implicitly secured by the Constitution [it] is presumptively unconstitutional.” Harris v. McRae, 448 U.S. 297, 312 (1980). Therefore, all challenged statutes and rules here are presumptively unconstitutional.
Having effectively lost all rights to his daughter, there can be NO question that the State has thus “significantly interfered” with Brian’s “freedom of choice” concerning “family life,” his fundamental right to property, and his fundamental right to privacy.
II. The best interest of the child statutes are unconstitutional
A. Brian is a fit parent; no evidence exists of abuse or risk of substantial harm.
Per the Judgment (R. Vol. 10: C2300-2304), by “awarding” Laurie sole custody, the circuit court has completely deprived Brian of any decision-making authority and control of his daughter. Additionally, the circuit court has completely deprived Brian of the ability to see his daughter equally (in relation to his ex-wife). These decisions were completely erroneous because Brian was not found to be unfit. To avoid state impairment of parental rights, one need only be a “fit” parent. Troxel v. Granville, supra, at 67.
The criterion for “fitness” only requires that one “adequately cares for his or her children.” As long as one is fit in this regard, one is entitled to the full constitutional protection of one’s liberty interest in family. Brian has not been shown to be an unfit parent and, therefore, the courts have no reason to inject themselves into the realm of his relationship with his daughter and separate him from her. Stanley v. Illinois, 405 U.S. 645, 652–653 (1972). The decision by the trial court to force itself into the private realm of Brian’s relationship with his daughter and deprive him of his rights to his child was a flagrant violation of his full constitutional protection of his liberty interest in family. “A court is only warranted in depriving a father of the custody of his child where the evidence discloses that the child is destitute, abandoned or dependent; that the father is living an immoral life or in vicious or disreputable circumstances; that he has neglected or treated the child cruelly or unkindly or that he may so treat the child; that he is wanting in good principles or that he is illy adapted to the care of the child on account of defects in his mental or physical qualities which prevent him from being a kind and affectionate father.” Jarrett v. Jarrett, 348 Ill. App. 1, at ¶20 (1952).
The triggering mechanism of a divorce is not a sufficient-enough reason to allow the State to impermissibly intervene and interrupt the associative right of the child and parent in the parent-child relationship. The State cannot support the argument that a child is in imminent harm just because the parents are divorcing, for alleged parental conflict may or may not rise to a level compelling State intervention. Where a parent is fit, the legal presumption implies that the child is not in imminent harm. Where the child is not in imminent harm, there are no competing interests to a parent’s right to the care, custody, and companionship of the child. Where there are no competing interests, the child’s best interests are already protected. Santosky v. Kramer, 455 U.S. 745, 759–761 (1982).
Moreover, the fundamental right of a parent to raise his or her own child has never been premised on any kind of expertise. The right to raise one’s own child as one sees fit is no more subject to any expert opinion (e.g., a judge’s, a lawyer’s, an evaluator’s) about a child’s “best interest” than is the right to freedom of religion subject to precisely analogous “expert” opinions about consistent theology. Citizens have the right to raise their children; citizens have the right to freedom of religion – in both cases the opinions of “experts” about how well citizens exercise those rights have no bearing upon whether citizens actually possess those rights. To say otherwise is reductio ad absurdum, since rights that are subject to such “expert” opinions are not rights at all. This is critically important in light of the obvious inability of mental health “experts” to achieve consensus on any notions of the “best interest of the child” other than protection from abuse or criminal neglect. (S.R. Vol. 10: 166-169; see also S.R. Vol. 2: 226-236 discussing recommendations of custody evaluation report and associated “expert” witnesses must be barred as “junk science” and Brian’s Motion in Limine (R. Vol. 5: C1007-1011)).
Therefore, the State cannot interfere by assigning a Guardian Ad Litem (hereinafter “GAL”) to protect the “best interest” of the child, as fit parents are already, by definition, protecting the child’s best interest. Further, the State may not infringe on a fit parent’s right to property and require him to fund an officer of the court (i.e., GAL) with his private property against his will. The State also cannot interfere and require a custody evaluation to “evaluate” or identify the physical or mental state of the parties, or identify the “best interest of the child.” Further, the State may not infringe on a fit parent’s right to privacy and property by forcing him to subject himself to a custody evaluation/psychological review, reveal information to a stranger, and then fund the process with his private property, all against his will.
There is no significant difference between termination of a parent’s rights to his children and making him a non-custodial parent with no decision-making authority or control over his children (not to mention significantly reducing his parenting time). The entire concept of “awarding custody” is flawed; no one is awarded rights, but, rather, one parent is deprived of rights. Brian divorced his wife – not his daughter, and the State (i.e., court) has no compelling reason for taking his daughter away from him or interfering in his child rearing decisions. In every contested child custody case in which there is no finding of parental unfitness by clear and convincing evidence, a court always denies one parent equal protection when it apportions custody unequally between the parties and severs the legal (and often emotional) bond between the so-called “non-custodial” parent and the child. Laurie’s attorney even correctly confirmed that “[t]he cases since 1999 in Illinois have almost universally rejected joint custody.” (S.R. Vol. 11: 68 line 22, 69 line 1. However, mere repetition does not establish validity.
B. Brian has a right to privacy and a right to be an equal parent.
As there is no abuse or risk of substantial harm, and as it is a parent’s right to manage a child, and as this right is a fundamental right protected by the Federal Constitution (e.g., Troxel v. Granville, supra), the court does not have the authority or jurisdiction to force/inject itself into Brian’s private life (Griswold v. Connecticut, 381 U.S. 479, 495–496 (1965))“under the guise of protecting the public interest” (Meyer v. Nebraska, 262 U.S. 390, 399–400 (1923))through the “best interest of the child.” The U.S. Supreme Court has specifically said that the “Due Process Clause would be offended "[if] a State were to attempt to force the breakup of a natural family, over the objections of the parents and their children, without some showing of unfitness and for the sole reason that to do so was thought to be in the children's best interest." Quilloin v. Walcott, 434 U.S. 246, 255 (1978). Yet, this is exactly what happened here. Brian contends that the unequal allocation of parenting time, parental responsibilities, and rights by the trial court constituted an unconstitutional infringement of his fundamental liberty interest in his family, and his rights under the Equal Protection and Substantive Due Process Clauses of the Fourteenth Amendment of the Federal Constitution.
“What I have highlighted in my own personal notes as I listen to you is something that I want to stress now and that I want you and Mrs. Lovett to remember as this case proceeds, because this is just one short snapshot in time and in the time of your life and in the life of your daughter. When this case is over, the mother will still be the mother of this child. And when this case is over, the father will still be the father of this child. And I don't hear that from you. What I hear from you, Mr. Lovett, is that you haven't really grasped that the only father this child is ever going to have is you. You are her dad. The only mother this child is ever going to have is your wife. She is the mom, and divorced or married, that doesn't change. And I am listening to you and you haven't gotten to that step yet. You need to make a fast forward, sir. You will always be the father and mom will always be the mother.” (Judge R. Morgan Hamilton, S.R. Vol. 3: 18 lines 14-24, 19 lines 1-8.
The trial court claimed to understand this, though obviously its judgment is a contradiction to any rational thinking person. As the trial court correctly claimed, Brian stands in the same relation to his daughter during these proceedings as he did before these proceedings, as a divorced parent is still the parent. This relationship is independent of any other relationship that exists with any other person. A divorce does not (or, rather, should not) nullify or reduce the relationship between Brian and his daughter. The parties’ divorce, even though it includes a child, does not give a court a special circumstance to usurp Brian’s parental authority and rights. Any court decision that favors Laurie over Brian and interferes with Brian’s privacy will eventually destroy an intact relationship. “The private interest here, that of a man in the children he has sired and raised, undeniably warrants deference and, absent a powerful countervailing interest, protection.” Stanley v. Illinois, supra, at 651.When the parties were not getting divorced, the court did not have the authority or jurisdiction to infringe or restrict one parent’s fundamental rights by forcing either parent to accept an unequal parenting/custody schedule. “Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life. If anything, persons faced with forced dissolution of their parental rights have a more critical need for procedural protections than do those resisting state intervention into ongoing family affairs. When the State moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures.” Santosky v. Kramer, supra, at 753.
Brian accepts that dissolution of his marriage would of necessity act to diminish the amount of time spent with his child, but contends that the State’s power to arbitrarily apply the statutory factors set forth specifically in 750 ILCS 5/602 or broadly in the 750 ILCS 5, Illinois Marriage and Dissolution of Marriage Act, in light of the fact that no credible evidence exists herein to implicate Brian as an unfit parent, or that no “clear and present danger” exists, resulted in a capricious “custody” decision which flagrantly violates Brian’s right to equal protection by “awarding” (or, more appropriately, allowing) him unequal parenting time and parental responsibilities as compared with Laurie. “The statist notion that governmental power should supersede parental authority in all cases because some parents abuse and neglect children is repugnant to American tradition.” Parham v. J.R., 442 U.S. 584, 602 (1979).
The welfare of citizens, including children, is an important State interest. However, the State cannot impinge upon the protected and underlying federal rights of its citizens – adults or children. State privileges (i.e., statutory entitlements) do not supersede substantive federal rights. Through the Best Interest of the Child Statutes, the State has reversed the “pecking order” of the Supremacy Clause (Article VI, Paragraph 2). The best interest standard cannot supersede parental and children’s rights; yet the State places the “best interest of the child” at the top of the pyramid, disregarding federal rights to “custody.” The Constitution permits a State to interfere only to prevent harm or potential harm to the child. There is no public purpose that demands the harm and social damage to the fundamental parent-child relationship where the child is implicitly protected by a fit parent. The Best Interest of the Child Statutes do not require a threshold showing of harm and permit a court to exercise virtually infinite discretion in “allocating” parental rights and responsibilities, parenting time and “awards” of custody, “guardians” and “evaluators,” with the only requirement being that the judicial outcomes be “found” – solely by the court whom has no “special wisdom” – to serve the “best interest of the child,” which is, in fact, determined by the court itself. Yet, the “best interest” standard “provides little real guidance... [and] is fundamentally at odds with privacy interests.” Bellotti v. Baird, 443 U.S. 622, 638 and 655–656 (1979).
Lacking a requirement that a child is, or ever was proven to be, in substantial harm, the Best Interest of the Child Statutes are facially unconstitutional. Frequently, the legal community uses the term “best interest of the child” to gloss over constitutional mandates and turn fit parents into criminals (e.g., removing most all rights to their children, eliminating their ability to see their children, forcing them to pay purported child support with a threat of imprisonment if they do not). “Best interest” is actually a legal standard placing the trial judge, and hence the State, superior to fit parents. Its only proper use is after parental rights are terminated or after a threshold showing of harm. Quilloin v. Walcott, supra, at 255. Courts can reasonably claim to know that the “best interests of children” means protecting children against abuse and/or criminal negligence. They cannot reasonably claim to know more. Thus, in all cases in which court decisions implement disproportionate custody schedules and privileges as between fit parents, those decisions are per se capricious and unconstitutionally violative of liberty interests.
As the trial court readily admitted, two classes of parents exist: custodial and non-custodial (S.R. Vol. 3: 155 lines 7-12). The Best Interest of the Child Statutes unnecessarily create these two classes of parents out of essentially similarly situated persons, thus committing an equal protection under-inclusive violation (i.e., treats persons with the same capabilities differently). Additionally, the Best Interest of the Child Statutes automatically place fit parents in the same group as unfit ones and subject them all to the best interest of the child legal standard, thus causing an equal protection over-inclusive violation (i.e., treats persons with different capabilities the same, and sweeps in more than it should). No contested divorce with children in Illinois can achieve a constitutional resolution under federal law where both parents’ rights are implicated, for the non-custodial parent’s rights are always denied, and the custodial parents’ are always enlarged without an evidentiary standard other than the discretion (i.e., best interests) of the trial court. The trial court stated: “This is not a case where a child is being taken from a parent. This is a case where the child will have the same two parents, when it is over, that the child started out with.” (S.R. Vol. 3: 103 lines 18-21). Yet, the trial court did just that, in that Brian is only allowed to now see his daughter 16% of the time, and he has no decision-making capability whatsoever. Brian asks this court: do you really believe that allowing Brian 16% of his daughter’s time, and taking away all of his other decision-making rights to his child, is really different from “a child being taken from a parent?” Contrary to the trial court’s claim, this IS a case where a child was taken from a parent, regardless of the privilege of 16% parenting time.
A statute, in and of itself, cannot trump the Federal Constitution. In this case, the so-called Best Interest of the Child Statutes are routinely utilized by the courts to effectively limit or reduce parental rights (i.e., personal liberties) because of divorce, by assigning custody when there is absolutely no finding that the parent is unfit. Lulay v. Lulay, supra, at ¶73; see also Regenold v. Baby Fold, Inc., 68 Ill.2d 419, at ¶51 (1977).
A statute that allows a judge to exercise “too much discretion in every case” or “unlimited discretion” is unconstitutional because it undermines the parent’s fundamental right to make decisions regarding the care and custody of the child (i.e., because the parent’s decision is no longer presumed to be in the child’s best interest). City of Chicago v. Morales, 527 U.S. 41, at ¶26 (1999). The Best Interest of the Child Statutes do not identify what is forbidden and what is permitted, nor do they identify any “standard of conduct” at all for that matter. Id., at ¶59. Therefore, they are “vague.” Village of Hoffman Estates v. Flip-Side, 455 U.S. 489, 498 (1982). The Best Interest of the Child Statute sallow the courts broad discretion to take over a child’s life like a thief and usurp parental rights. It is a statutory flaw when a statute “...places the best-interest determination solely in the hands of the judge.” Troxel v. Granville, supra, at 52.
The issue here is not who achieves/receives “custody.” The issue is that, under Illinois law, a parent can be deprived of their parental right to “custody” or responsibility of their child, temporarily or permanently, based solely on the whim of the courts, absent of proven criminal violent acts. By definition, any statute that limits the decision-making capability (i.e., fundamental right) of a fit parent is, on its face, unconstitutional because “no set of circumstances exists under which the [statute] would be valid.” Wickham v. Byrne, 199 Ill.2d 309, at ¶41 (2002).
In addition, a statute will be held unconstitutional if it is “breathtakingly broad.” Troxel v. Granville, supra, at 52. 750 ILCS 5/602 and related statutes that refer to the “best interest of the child” create an intolerable tension in the law because they allow the courts extremely broad latitude to make any “custody” decision, and almost any decision for that matter (e.g., what Brian can and cannot say to his daughter as per the Injunction), based on its own discretion, even if Brian adequately cares for his daughter, and without any showing that Brian is an unfit parent.
The Best Interest of the Child Statutes create significant interference on Brian’s fundamental rights and implicate his daughter’s welfare. Lulay v. Lulay, supra, at ¶64. Furthermore, the Illinois Supreme Court recently reiterated this opinion in its appellate review striking down 607(b)(1) and reinforced that State interference with fundamental childrearing rights is extremely limited, giving specific examples of where State interference is permitted. Wickham v. Byrne, supra, at ¶42.
C. Troxel v. Granville is broad in its application.
Though Troxel v. Granville, supra, was a case involving the wishes of grandparents against the fundamental rights of parents, the U.S. Supreme Court was crystal clear in its broad statement that “so long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent’s children.”Id., at 67. Additionally, the U.S. Supreme Court spoke broadly that “[t]he liberty interest at issue in this case -- the interest of parents in the care, custody, and control of their children -- is perhaps the oldest of the fundamental liberty interests recognized by this Court.” Id., at 66. They also broadly reaffirmed their decision in Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925)that "[t]he child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations." Troxel v. Granville, supra, at 66. Discussing Prince v. Massachusetts, 321 U.S. 158 (1944), they again continued with their broad confirmation “that there is a constitutional dimension to the right of parents to direct the upbringing of their children. "It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder." Troxel v. Granville, supra, at 66. Nowhere did they state or imply that those decisions were only relevant within the context of third-party visitation. If anything, as they continued on with a plethora of other high Court decisions, they forcefully implied that these decisions, starting “[m]ore than 75 years ago,” applied in all situations. Troxel v. Granville, supra, at 66. The U.S. Supreme Court even broadly referred to the “decisional framework employed by the Superior Court directly contravened the traditional presumption that a fit parent will act in the best interest of his or her child.” Id., at 69.
In fact, they ended their high-powered introduction with the broadest of generalizations: “In light of this extensive precedent, it cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.” Id., at 66. They then even summed it up once more in the broadest of terms: “[a]s we have explained, the Due Process Clause does not permit a State to infringe on the fundamental right of parents to make childrearing decisions simply because a state judge believes a "better" decision could be made.” Id., at 72. Not once in any of their ruling did the U.S. Supreme Court imply that the application of these decisions should be applied only to the matter at hand. Contrarily, they made clear just the opposite.
The U.S. Supreme Court twice clearly characterized Troxel v. Granville, supra, as “nothing more than a simple disagreement between the Washington Superior Court and Granville concerning her children's best interests.” Id., at 67. The same relevant factors are manifest in the instant action, in that the court disagrees with a fit parent (Brian) concerning his child’s best interests. The court affords Brian “no deference” in determining the best interest of Samantha, as the “best interest of the child” standard “contains no requirement that a court accord the parent's decision any presumption of validity or any weight whatsoever.” Id., at 67. The U.S. Supreme Court was also very clear in identifying the Washington statute “breathtakingly broad” because it placed “the best-interest determination solely in the hands of the judge. Should the judge disagree with the parent's estimation of the child's best interests, the judge's view necessarily prevails. Thus, in practical effect, in the State of Washington a court can disregard and overturn any decision by a fit custodial parent concerning visitation whenever a third party affected by the decision files a visitation petition, based solely on the judge's determination of the child's best interests.” Id., at 67.
D. The only criterion for infringing on a parent’s fundamental right is fitness.
The U.S. Supreme Court precedence makes it clear that the Best Interest of the Child Statuteshave no chance surviving long-term. Every U.S. Supreme Court case dealing with fit parents and children and/or the purported “best interest of the child” standard makes this abundantly clear.
Brian and Laurie are both fit parents and Samantha was a happy and healthy child, as Laurie’s attorney confirmed on the second day of trial: “fitness is not an issue in this case.” (S.R. Vol. 3: 105 lines 2-4). The trial court even indicated that “I don't have the State alleging neglect or abuse or dependency.” (S.R. Vol. 3: 111 lines 1-2). (See also: “That the Husband testified that... Samantha has no adjustment problems and she has been thriving over the past 15 months.” (Judgment, R. Vol. 10: C2260 ¶17); “Factor 3: the Father has an excellent relationship with the Child Factor 4: the Child has no significant adjustment problems; the Child is thriving” (Judgment, R. Vol. 10: C2265); “That on adverse examination the Wife testified that she has no concerns that the Husband will not be able to provide for the Child’s basic needs, provide a proper home, food, proper education, or a safe environment. The Wife testified that she believes the Father loves the Child and the Child loves the Father and that the Child enjoys the time she spends with the Father.” (Judgment, R. Vol. 10: C2287 ¶71); “That on adverse examination the Wife testified that the Father “absolutely needs to be a participant in the Child’s life”, and the Wife stated, “You will always be Samantha’s father; I will always be Samantha’s mother. You will see her, speak to her, enjoy her, support her, share holidays with her, be a father to her.” The Wife testified that the Father’s relationship with the Child and the Child’s relationship with the Father “is strong and will continue to get stronger” because the Father is dedicated to being a father. The Wife testified that... if (the Father) is there for the Child then the relationship will grow.” (Judgment, R. Vol. 10: C2287 ¶72); “That the Wife testified that the Child is healthy, physically active...” (Judgment, R. Vol. 10: C2293 ¶95); “The Wife stated that her feelings changed when she recognized the importance of the Child seeing her Dad on a regular basis, frequently, with his participation...” (Judgment, R. Vol. 10: C2294 ¶97); “The Wife testified that the Husband’s strengths are that... he loves the child, he has good teaching skills, he is very animated and athletic, he teaches the Child athletic things.” (Judgment, R. Vol. 10: C2297 ¶111); see also Laurie’s testimony (e.g., S.R. Vol. 7: 92-102, 151-153; Vol. 9: 97 lines 9-14; see also Laurie’s attorney’s argument: Vol. 11: 54 lines 2-7).
Therefore, parental control has not faltered. Ergo, the State has no role as parens patriae. Santosky v.Kramer, supra, at 766 and footnote 17.
III. A rule with the force and effect of law that requires divulging information about oneself without probable cause is facially unconstitutional
As the trial court stated in response to Brian’s Motion in Limine:
“The parties cannot deny [the] Court financial data. Finances must be as close to the trial date as reasonable. Reasonable has some flexibility in it, but the Court needs current information that you both have to make informed decisions and financial records are indeed relevant.” (S.R. Vol. 2: 29 lines 3-8).
However, any court order or rule that requires the “compulsory production of a man’s private papers” without probable cause of something illegal, supported by oath or affirmation under penalties of perjury,“to forfeit his property, is within the scope of the Fourth Amendment to the Federal Constitution, in all cases in which a search and seizure would be; because it is a material ingredient, and effects the sole object and purpose of search and seizure.” Boyd v. United States, 116 U.S. 616, at ¶29 (1886). As clearly enunciated by the U.S. Supreme Court, “a search for and seizure of a man's private books and papers for the purpose of obtaining information therein contained, or of using them as evidence against him,” is “totally different” from “a legitimate proceeding.” Id., at ¶29. Therefore, any Illinois court order or rule requiring as such is facially unconstitutional. “Whereas, by the proceeding now under consideration, the court attempts to extort from the party his private books and papers to make him liable for a penalty or to forfeit his property.” Id., at ¶29. In fact, in its decision, the U.S. Supreme Court called a similar act which “did not go as far” as the one declared unconstitutional as “obnoxious.” Id., at ¶29.The Discovery Rules and the Mandatory Disclosure Rules are of the same ilk.
There can be no question that a setting in which Brian lost custody rights to his daughter and rights to his property without criminal conviction constitutes a “setting[ ] in which [his] freedom of action is curtailed in [a] significant way.” Miranda v. Arizona, 384 U.S. 436, 467 (1966). As Boyd v. United States, supra, at ¶40, states clearly: “And we have been unable to perceive that the seizure of a man's private books and papers to be used in evidence against him is substantially different from compelling him to be a witness against himself.” Yet, contrary to what the U.S. Supreme Court has specifically stated, Illinois uses the Discovery Rules and the Mandatory Disclosure Rules to compel individuals to be a witness against themselves regularly during and after divorce proceedings.
Pursuant to the Judgment, Brian has been ordered to annually provide copies of his federal and state tax returns, W-2 statements, and 1099s (hereinafter “Private Papers”). As Boyd v. United States, supra, clearly provides, the courts have no authority or jurisdiction to compel Brian to produce these Private Papers. No compelling reason (i.e., compelling state interest) exists for Brian to be required to turnover his Private Papers as part of or after a divorce proceeding. The State is purely using the implicated rules as a “fishing expedition” to circumvent Brian’s rights. The Fifth Amendment of the Federal Constitution, which applies to both criminal and civil trials (McCarthy v. Arndstein, 266 U.S. 34, 40 (1924); Miranda v. Arizona, supra, at 467), specifically bars the use of compelled testimony against individuals. In addition, verification of the Asset Disclosure Statement (i.e., the “13.3”) requires that individuals produce their personal books and records (or be held in contempt), which violates the Fourth Amendment of the Federal Constitution. The requirements to submit all the personal and financial data requested in and after divorce proceedings also violate an individual’s right to privacy under the Ninth Amendment. Griswold v. Connecticut, supra, at 495–496. Privacy is a fundamental right subject to review under strict scrutiny (see also section IV.C.).
Per Cook County Circuit Court Rule 13.3.1 (c),Brian is threatened with sanctions if he refuses to comply under the protection of the Fourth and Fifth Amendments of the Federal Constitution. Therefore, Brian is therefore forced to divulge this information against his will. The purpose of the Judgment’s order to produce federal and state tax returns, W-2 statements, and 1099s is to further extort Brian’s property should his financial situation improve. At no time was Brian told that he has the right to remain silent, that if he gives up the right to remain silent, that the Private Papers will be used against him and his property. These Private Papers are a “material ingredient” in Laurie’s and the State’s continued pursuits to extort Brian’s property. Brian is innocent, but is “confounded with the guilty” when he is forced to turnover these Private Papers against his will. Boyd v. United States, at ¶29.
IV. The child support statutes, maintenance statutes, and attorneys’ fees statutes are unconstitutional
A. The Wealth Transfer Statutes violate equal protection.
IN GENERAL: The courts have no authority or jurisdiction to “award” child support, maintenance, or attorneys’ fees, as the Wealth Transfer Statutes violate Brian’s right to equal protection of the laws, a right guaranteed by the Federal and Illinois Constitutions, in that the statutes subject Brian to burdens different from, and in excess of, those imposed on persons (parents or otherwise) in an intact marriage and/or non-related persons. While the legal relation between a husband and wife is altered by the entry of a decree of dissolution of marriage, the legal relation between each parent individually and the child is not so altered. A parent stands in the same relation to his or her child after dissolution as he or she did prior to dissolution. Similarly, the ex-spouses stand in exactly the same relation to each other (i.e., as non-related persons) and therefore cannot be treated differently. The trial court attempted to deny that Brian and Laurie would no longer be related after the divorce S.R. Vol. 3: 161 lines 1-22), which is obviously utter nonsense; that is the whole purpose of divorce!
A divorced, higher earning or more “financially able” ex-spouse is “singled out” and treated by the State very differently than the way the State treats a divorced, lower earning or “financially deprived” ex-spouse. The State requires the individual to pay child support, maintenance, and/or attorneys’ fees to the other party, while it gives them no like or “corresponding benefit.” Only against divorcing spouses “is such extraction made” (e.g., the State does not single out other financially able non-related persons or married parents), “and only in certain cases.” Therefore, a claim that all divorced parents or spouses are treated alike is not to draw a valid distinction. The implicated statutes are simply “imposing a penalty” upon a divorcing spouse for being a more financially able spouse. No one else is “punished.”
Though not related to divorce, the U.S. Supreme Court has explicitly stated this. Gulf, Colorado and Santa Fe Railway Company v. Ellis, 165 U.S. 150-162 (1897). In this 1897 attorneys’ fees decision, the U.S. Supreme Court stated clearly that “men possessed of a certain wealth” (i.e., “financially advantage[d]” using the court’s current language, Beyer v. Parkis, 324 Ill.App.3d 305, at ¶55 (2001)) CANNOT be subjected to paying attorneys’ fees for the reason of being “financially advantaged.” It is a “punishment.” It is not a “proper basis for the attempted classification.” It is an “incentive” to litigate. And, sure enough, as the U.S. Supreme Court knew over 100 years ago, the reviewing courts now openly agree and admit that most divorce litigation is completely out of control: In re the Marriage of Emily Auriemma, 271 Ill. App. 3d 68, at ¶38 (1994). “The legislature cannot give to one party in litigation such privileges as will arm him with special and important pecuniary advantages over his antagonist." Gulf, Colorado and Santa Fe Railway Company v. Ellis, supra, at 162. Yet, this is EXACTLY what the Illinois legislature has done. This is as clear as language can make it.
The Wealth Transfer Statutes violate Brian’s right to equal protection of the laws in that he suffers egregiously different burdens (without benefits) from Laurie who is similarly situated with respect to each other and/or their child (i.e., they are both in identically the same situation), as a divorce imposes on Brian a sum certain to be expended for his child and/or a non-related person. The Wealth Transfer Statutes do not treat all (soon-to-be) divorced ex-spouses and/or parents alike, as they discriminate between higher and lower wage earners, higher and lower asset holders, and custodial and non-custodial parents. However, even if the statutes treat all (soon-to-be) divorced persons alike (which they clearly do not), this is not the claim being urged here. This distinction, created by operation of the statutes, is one of the core elements of the laws being challenged. The rights at issue are of the most fundamental nature (e.g., the right to property). A (soon-to-be) divorced ex-spouse (i.e., non-related person) is treated by the State very differently than the way the State treats other non-related persons. A (soon-to-be) divorced parent is treated by the State very differently than the way the State treats other married parents. Similarly, a higher-earning, divorced ex-spouse, with or without more non-marital property, is treated by the State very differently than the way the State treats a lower-earning divorced ex-spouse, with or without less non-marital property. Regardless of the custody of the child, and regardless of one ex-spouse’s/parent’s income relative to the other’s, and regardless of the amount of time a parent is “allowed” to spend with the child, a divorced ex-spouse/parent is not situated differently with respect to the other and/or his/her child. Again, the claim that all divorced persons/parents are treated alike is not to draw a valid distinction. The Wealth Transfer Statutes, while facially content-neutral and generally applicable, are neither, in that they regularly and routinely result in unequal treatment of similarly situated persons. The statutes are not supported by nor narrowly tailored to serve a valid governmental interest, as their application inevitably results in imposition of an order against one divorced ex-spouse (i.e., non-related person)/parent to pay an arbitrary sum certain to the other when the State cannot and does not impose such a burden on a married parent or non-related person situated identically in relation to another parent or non-related person. Discriminatory intent is clear as, by the statutes’ very terms, courts can order only one party (e.g., the higher earning party, the party with greater assets) to pay the other. No rational basis (much less a compelling interest, as the fundamental right to property is implicated) justifies singling out one non-related person or parent (e.g., on the basis of financial ability) and imposing upon him/her a disproportionate financial burden while awarding the other non-related person or parent a windfall of benefits.
A state cannot single out a class of persons identified by traits (e.g., married or divorced, custodial or non-custodial, higher or lower wage earners, more or less assets, financially able or disabled), without a compelling interest such as a crime, and then deny them equal protection by imposing a burden on that class (e.g., that they must pay money to the other). Suspect classifications arise when legislation creates them where no “overriding statutory purpose” was shown (McLaughlin v. Florida, 379 U.S. 184, 192 and 194 (1964)) and they were not necessary to some “legitimate overriding purpose” (Loving v. Virginia, 388 U.S. 1, 11 (1967)). A state’s actions are even more blatantly discriminatory when the imposed burden benefits a similarly situated class, as it does in the case of child support, maintenance, and attorneys’ fees. The U.S. Supreme Court has held that a statute is unconstitutional on equal protection grounds for singling out a class of persons identified by a single trait, and then denying them protection across the board. Romer v. Evans, 517 U.S. 620, at ¶43-44 (1996).
CHILD SUPPORT: The challenged statutory provisions are functionally similar to the presumption of unfitness provision struck down by the U.S. Supreme Court in Stanley v. Illinois, supra. The implication of the Child Support Statutes is that the parent upon whom this burden is imposed would not otherwise “adequately” care for his or her child – that he would be derelict in his acknowledged duty of support and by logical extension unfit. The challenged statutes, while providing for a hearing, presume that the potential child support obligor will not support his children adequately and reasonably by establishing a “presumptive” adequate level of “support” without any proof of neglect or unfitness. 750 ILCS 5/505 is equivalent to the State of Illinois previously presuming an unwed father to be unfit and forcing him to “prove” his fitness, which the U.S. Supreme Court rightfully corrected based on equal protection. Stanley v. Illinois, supra. As the trial court indicated: “Parties cannot bargain away child support. You are not allowed to. If the parents don’t look out for what is good for their children, then the judge has to do it. You cannot bargain away child support, no matter what you call it, agreed order or anything else.” (S.R. Vol. 3: 28 lines 21-24, 28 lines 1-2).
The Child Support Statutes create a legal line-in-the-sand between married parents and those who have ceased to be or who chose not to be married. However, the U.S. Supreme Court has rejected such an artificial distinction in cases involving family relations. Glona v. American Guarantee Co., 391 U.S. 73, 75-76 (1968). The statutes operation is indistinguishable on any substantive basis from the legitimacy distinction for recovery for wrongful death struck down in this decision. The Child Support Statutes treat unmarried parents, especially the obligor, as having no right to determine the precise nature of the care and nurturing of their offspring, substituting instead the combined and tabulated wisdom of the State legislature and courts to establish that care, whereas the State does not interfere with the equivalent care and nurture of children provided by married parents without a showing of a compelling interest.
750 ILCS 5/505 is blatantly biased in that even its wording specifically allows courts to order only one parent (i.e., “either or both”) to support a child of the marriage, when both parents are obviously financially responsible for providing, and have a duty to provide, reasonable support for the child. Discriminatory intent is clear as, by its very terms, courts can order only one party (e.g., the non-custodial parent, the parent that makes a higher salary, the parent who receives less time/privileges) to pay child support. In Illinois, both parents have an obligation to support their children. No rationale justifies singling out one parent (e.g., on a basis of “custody,” financial resources, or parental time/privileges) and imposing upon him (and, on rare occasion, her) a disproportionate financial burden while awarding the other parent a windfall of tax-free income and other benefits. The State has created a classification of married and divorced parents. This is an arbitrary classification as there is no legitimate (much less compelling) overriding purpose, and is therefore suspect. The State has created a classification of “more financially able” and “less financially able” ex-spouses. This is an arbitrary classification as there is no legitimate (much less compelling) overriding purpose, and is therefore suspect. The State cannot assume that a divorced parent, simply by dint of the marital dissolution, will fail to support his children. The State cannot, consistent with due process requirements, merely presume that unmarried parents in general and Brian in particular, are unsuitable and neglectful parents, and will therefore fail or refuse (be “unsuitable” in the parlance of Stanley v. Illinois, supra, at 654) to provide the reasonable or necessary support. Parental unfitness must be established on the basis of individualized proof. “The State's interest in caring for Stanley's children is de minimis if Stanley is shown to be a fit father.” Id., at 657-658. Any other legislative scheme, other than one based on individualized proof of unfitness, creates an artificial class of parents who, by dint of marital status alone, are presumed “unfit” and in need of State coercion to discharge their obligations. The State cannot intentionally create a condition/class (e.g., non-custodial parent) and then impose a punishment/penalty on it (e.g., child support) without a compelling interest such as a crime (e.g., negligence).
Brian is not claiming that he does not owe a duty of support to his daughter, nor has he claimed that he does not wish to support his own daughter. Brian’s claim under the equal protection argument is that the State’s sum certain guideline child support treats him differently from other parents similarly situated with respect to their children without a compelling state interest.
MAINTENANCE: As a “statute based upon a legislative declaration of facts is subject to constitutional attack on the ground that the facts no longer exist,” the non-existence of the underlying facts of maintenance/alimony renders the Maintenance Statutes unconstitutional. Leary v. United States, 395 U.S. 6, 38 (1969). The present logic and purpose of maintenance is not clear or applicable to current conditions (i.e., the original intent and purpose no longer exist). Historically, alimony was specifically designed for the wife of a broken marriage who needed financial assistance, or to compensate women for past discrimination during marriage which left them unprepared to fend for themselves in the working world following divorce. Orr v. Orr, 440 U.S. 268, 279 (1979). Alimony was important historically because employment opportunities were limited to women after marriage. The primary “cost” of divorce for many women was the reduction in their human capital that resulted from the sacrifices made during marriage. The cost of the divorce and the resulting “debt” was a lifestyle similar to the one enjoyed during the marriage. Since the debt was tied to the dissolution of a marriage, it was logical for the debt to be repaid with periodic payments that could be modified and would end with remarriage or death. However, women now have significantly increased employment opportunities. Nevada Department of Human Resources v. Hibbs, 123 S.Ct. 1972, at ¶26 and 65 (2003). Historically, alimony was somewhat more relevant when courts could consider a party’s “fault.” The laws considered fault/criminalized abuse in alimony awards (i.e., a guilty spouse had to pay an innocent spouse). As 750 ILCS 5/504 states, Illinois no longer considers fault (i.e., “marital misconduct”) in a determination of maintenance.
As sex was removed, it is no longer known what the legislature is trying to accomplish by awarding spousal maintenance. Appellate courts have modified their decisions over the years in a flawed, but obvious attempt to justify the continued legislative action. The legislative intent of alimony was to support women only. In Re Fisher, 15 Ill.2d 139, at ¶42 (1958); Jackson v. Jackson, 34 Ill. App.3d 407, at ¶23 (1975); In Re Marriage of Workman, 89 Ill. App.3d 886, at ¶25 (1980). The history of the courts made it crystal clear that the legislative purpose of alimony was to support a wife. The whole structure conforms to this particular purpose. However, after Orr v. Orr, supra, in 1979, made it clear that family courts are to treat men and women equally, the State/courts merely removed sex from the statute and kept using the IDENTICAL UNCONSTITUTIONAL judicial decisions (e.g., “Byerly v. Byerly (1936), 363 Ill. 517, 525-26, 2 N.E.2d 898, 902; Gilmore v. Gilmore (1975), 28 Ill. App.3d 36, 38, 328 N.E.2d 562, 564” Bellow v. Bellow, 94 Ill. App.3d 361, at ¶44 (1981); “See Frank v. Frank (1975), 34 Ill. App.3d 957, 342 N.E.2d 404; Busby v. Busby (1973), 11 Ill. App.3d 426, 296 N.E.2d 585” Id., at ¶45; “See Jackson v. Jackson (1975), 34 Ill. App.3d 407, 339 N.E.2d 764” Id., at ¶46) to support their findings, even though the original intents specifically stated in those judicial decisions (i.e., support of wife and discrimination of women) were no longer applicable. Evidence of legislative intent (i.e., support of wife and discrimination of women) and the underlying facts of the presumptions are no longer applicable nor apply in the award of maintenance, and neither are the purported supporting cases. People v. Pullen, 192 Ill.2d 36, at ¶19 (2000); Consumer Product Safety Commission et al. v. GTE Sylvania, 447 U.S. 102, 108 (1980).
ATTORNEYS’ FEES: Though Gulf, Colorado and Santa Fe Railway Company v. Ellis, supra, should be all that this court needs to immediately rule the Attorneys’ Fees Statutes unconstitutional,infirmities abound elsewhere as well. “Leveling the [financial] playing field” (Beyer v. Parkis, supra, at ¶54-55) by awarding attorneys’ fees in a civil suit of two related or non-related persons is not a legitimate government interest, to say nothing of a compelling one as it infringes on the fundamental right to property. Contrary to what is stated in Beyer v. Parkis, supra, the State may not discriminate (i.e., “limit[ ] the ability” or “prohibit[ ] a financially advantaged party” by restricting their fundamental rights) for the sole reason of being in a “financially advantageous position.” Id., at ¶55. Even if the award can later be revoked (Id., at ¶55), the State may not discriminate in the first place. The courts even admit that they and the State are discriminating against the “financially advantageous position/party.” Id., at ¶55. “Leveling the playing field by equalizing the parties’ litigation resources” for the “State’s public interest in the institution of marriage, and by extension, the State’s interest in ensuring the fairness and integrity of all proceedings related to dissolution” (Id., at ¶62) is not a legitimate government interest, much less a compelling one as to discriminate and deprive a person their fundamental right to property. The State may not enter the private realm of family life. Griswold v. Connecticut, supra, at 495-496. An award of attorneys’ fees is a punitive award ordered by the government and directly applied to the “financially advantageous” party for the sole reason of being financially able without a showing of tort, compensable injury, or damages. Discriminatory intent is clear as, by its very terms, courts can order only one party (e.g., the “financially advantaged” party) to pay the other. No rational (much less compelling) basis justifies singling out one spouse/ex-spouse/non-related person (on the basis of financial ability) and imposing upon him/her a disproportionate financial burden while awarding the other a windfall of benefits ”...when they were both in identically the