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Desecrated Sixth Amendment
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WITTEKIND v. RUSK

625 N.E.2d 427 (1993)

253 Ill. App.3d 577

192 Ill.Dec. 467

Roger WITTEKIND, Plaintiff-Appellant, Cross-Appellee,  
v.
Beverly RUSK, Defendant-Appellee, Cross-Appellant.

No. 3-93-0158.

Appellate Court of Illinois, Third District.

December 13, 1993.

Rehearing Denied January 13, 1994.

Roger Wittekind, pro se.

Duane Thompson (argued), Braud/Warner, Ltd., for Beverly Rusk.

Statement of Facts concerning this Malicious Prosecution lawsuit and since Duane Thompson added to the lies that his client made about her own daughter everything Duane Dale Thompson did was also malicious.

To make a long story short I had everything I needed for a Malicious Prosecution lawsuit to prove both malice and a total lack of good faith in the probable cause and Duane Thompson knew that the only way he could stop me from proving my case was to add to Beverly Rusk's lies about her own daughter, tamper with the evidence I  presented during a jury trial I won 12 to 0 as a pro se litigant and then misrepresent the law on malicious prosecution to prevent the definition of probable cause from being properly applied.

In the above 3-93-0158 I thought I had Duane Thompson beat but Duane Thompson maintained his evidence tampering and he maintained his misrepresentation of the law with a bribe during an oral argument.  While all his bribe consisted of was to tell judges they could use this case to get their names into three law books he didn't tell the Judges that it also meant they would have to refuse to apply the definition of probable cause themselves reversing the decision in the Mack vs. First Security Bank of Chicago and they would have to reward Duane Thompson for tampering with the evidence presented during the jury trial I won and they would have to reward Duane Thompson for continually misrepresenting the decision in the Mack vs. First Security Bank of Chicago.

As for Duane Thompson's evidence tampering it concerns what he stated about I had not proven malice or a lack of probable cause because the transcript for a jury trial that I won 12 to 0 as a pro se litigant was allowed as evidence in a malicious prosecution lawsuit and it proved two things.

1.  I had proven malice during cross examination of Beverly Rusk because her daughter was female and Beverly Rusk admitted to calling me a faggot and that certainly was not justice.  But I could have expanded on that and proven that the real problem was Beverly Rusk had no idea that her daughter and I were using a middle man and I just wanted to clear up some of the false statement the middle man had made to her daughter after he started to have an interest in her himself.

2.  I had proven a total lack of good faith in the probable cause itself when I used the Statement of Facts on the mind of Judge Brinn as two exhibits to completely impeach all three of the State's witnesses with prior inconsistent statements.

All I needed to prove both malice and a total lack of good faith in the probable cause was to have the definition of probable cause properly applied so I could transfer a "Report of Proceedings" and a police report from the jury trial  I won into a malicious prosecution lawsuit but a bribe by Duane Thompson along with his evidence tampering and misrepresented lawsuit prevented that from happening as you can see from what is now case law.

Duane Dale Thompson:   McCarthy Bush, PO Box 5197  Davenport, IA 52808-5197.


Presiding Justice McCUSKEY delivered the opinion of the court:

 And I'm Roger and I will be placing my replies to yours just like this.

Plaintiff, Roger Wittekind, appeals from the dismissal of his petition pursuant to section 2-1401 of the Code of Civil Procedure (section 2-1401) (Ill.Rev.Stat.1991, ch. 110, par. 2-1401 (now 735 ILCS 5/2-1401 (West 1992))) to reopen a judgment in favor of defendant, Beverly Rusk. The sole issue raised by plaintiff on appeal is whether the trial court erred in dismissing his petition. Defendant has cross-appealed from the trial court's denial of her motion for
sanctions. Also, defendant has requested sanctions on appeal against plaintiff.

By not applying the definition of probable cause yourself you refused to give me the chance to prove how it was used to completely impeach all three of the State's witnesses with prior inconsistent statements.  See: http://SlimeFest.com/Exhibits

And you also prevented me from proving malice since the probable cause itself would have given me easy access to the two words Beverly Rusk used to describe me of "infatuated" and "faggot" and one of them has to be evidence of malice.

After reviewing the record, we affirm the trial court's dismissal of plaintiff's section 2-1401 petition. Additionally, we reverse the trial court's denial of defendant's motion for sanctions, and grant defendant's request for sanctions on appeal.

And all you did was help Duane Thompson conceal the fact that the probable cause was so reckless that I used it to completely impeach all three of the State's witnesses with prior inconsistent statements and you overlooked the fact that Duane Thompson also lied about the existence of malice because there always was evidence of malice as proven by: http://slimefest.com/exhibits/#EvidenceOfMalice

In 1990, plaintiff was charged with the offense of telephone harassment (Ill.Rev. Stat.1989, ch. 134, par. 16.4-1). Defendant accused plaintiff of making frequent telephone calls to her residence, including one call at 4 a.m. on January 2, 1990. A jury found plaintiff not guilty.

Not only that but all 12 jurors voted not guilty after using the Statement of Facts on the mind of Judge Brinn as Defense Exhibit #1 and Defense Exhibit #5 to completely impeach all three of the State's witnesses with prior inconsistent statements so it was the jury itself that stated there was a lack of probable cause for my prosecution.  And you can see for yourself that I used the probable cause itself to win a jury trial 12 to 0 at http://SlimeFest.com/exhibits.

On December 24, 1990, plaintiff filed a small claims complaint against defendant for malicious prosecution. Plaintiff sought $630 in damages. After a trial was held on the small claims complaint, the court directed a finding for defendant. Plaintiff appealed, and this court affirmed in Wittekind v. Rusk (October 16, 1991), No. 3-91-0162 (unpublished Rule 23 order).

And Duane Thompson lied about the existence of Malice because the word "faggot" was all over the transcript for the jury trial and Duane Thompson concealed the fact that the probable cause fully supported the Defendant instead of the State by misrepresenting the Mack case.

In that appeal, we held the trial court properly directed judgment for defendant based upon its finding that the prosecution of plaintiff was supported by probable cause and because plaintiff presented insufficient evidence of malice. This court relied upon Mack v. First Security Bank (1987), 158 Ill.App.3d 497, 110 Ill.Dec. 537, 511 N.E.2d 714, as authority for setting out the elements of the offense of malicious prosecution and the definition of malice. Thereafter, plaintiff filed a petition for rehearing which was denied. Plaintiff later filed a petition for leave to appeal to the supreme court. After that petition was denied on March 27, 1992, 144 Ill.2d 644, 169 Ill.Dec. 152, 591 N.E.2d 32, we issued our mandate to the circuit court on April 23, 1992.

The fact still remains since the probable cause itself was used as Defense Exhibit #1 and Defense Exhibit #5 in a jury trial and they all voted not guilty it was the jury itself that proved prosecution was NOT supported by the probable cause because the Probable Cause completely supported the defendant instead.

In the Appellate Court the first time you made the statement: "Given the history of the parties and the time of the phone call, we agree with the trial court's finding that the prosecution of the plaintiff was supported by probable cause."  But your history did not include one valid statement since all you did was throw out the best evidence which would have been Defense Exhibit #1, Defense Exhibit #4 and Defense Exhibit #5 then retried a case that ended in an acquittal and made it appear as if I did not deal with any of the false accusations against me when I dealt with all of them.

And since there was evidence of malice on page 30 of the transcript for the jury trial and the jury itself proved prosecution was not supported by the probable cause all you really did with your alleged history is prove you demonstrated a total lack of good faith yourself. 

Almost nine months later, on January 13, 1993, plaintiff filed his petition to reopen the judgment pursuant to section 2-1401. Plaintiff alleged that the judgment must be reopened because of errors of law. Plaintiff argued that defendant's counsel cited Mack as supporting defendant's position when, according to plaintiff, it actually supported his position. In his affidavit attached to the petition, plaintiff stated that the trial court misapplied the law. We note that plaintiff made this same argument in his original appeal.

But this time I subpoenaed people necessary to so I could get the exhibits I needed moved from the jury trial into the malicious prosecution lawsuit to prove the probable cause was so reckless that I used it to completely impeach all three of the State's witnesses.  The only reason why Judge Brinn brought charges against me knowing I had so much evidence against Beverly Rusk is he was betting I as a pro-se litigant would not know how to get those exhibits entered in court and he lost!  Casey Stengal the assistant State's Attorney that lost a jury trial 12 to 0 against a pro-se litigant bet I wouldn't be able to present a police report as an exhibit and you can see how he lost his bet at: http://slimefest.com/exhibits/#Exhibit5intro

Defendant filed a motion to strike the petition and a motion for sanctions pursuant to Supreme Court Rule 137 (Rule 137) (134 Ill.2d R. 137). Defendant requested $360 in attorney fees. Plaintiff filed a reply to defendant's motions. Plaintiff again complained that a legal precedent was unfairly represented to the trial court. He further argued that the appellate court misconstrued and misapplied the law. Following a hearing, the trial court dismissed plaintiff's petition but denied defendant's motion for sanctions. This appeal and cross-appeal followed.

And even after issuing subpoenas so I could get the entire probable cause entered as evidence Judge Telleen dismissed those witnesses and denied me access to the two exhibits I had used in the jury trial that proved the probable cause was not just reckless but that Judge Brinn and John Kinser both knew they were prosecuting me maliciously when they brought charges against me.

The gist of plaintiff's section 2-1401 petition is that defendant's counsel misrepresented the holding of the Mack decision to the trial court and, as a result, both the trial court and this court misapplied the law. We find absolutely no basis for plaintiff's claim.

You had no idea that I won that jury trial 12 to 0 because the probable cause itself had been used as Defense Exhibit #1 and Defense Exhibit #5 or that there really was evidence of malice on a few different pages of the transcript of the jury trial despite what Duane Thompson claimed.

After careful review of the record and applicable law, we rejected plaintiff's argument in his first appeal. Relying upon the applicable language in Mack, this court found that the trial court correctly ruled for defendant. Upon the return of our mandate to the circuit court, the trial court is bound by our determination and its sole obligation is to act in conformance with this court's judgment. See Hamilton v. Williams (1992), 237 Ill.App.3d 765, 773, 178 Ill.Dec. 214, 219, 604 N.E.2d 470, 475.

I saw your eyes light up during the Oral Argument when Duane Thompson told you that you could use this case to get your names in to three law books and I remember you telling me that you can make assumptions about the probable cause from the opening remarks.

What you failed to realize is my very first exhibit was the Probable cause itself and it completely undermined the opening remarks so if you really wanted to make fair assumptions about the probable cause you should have made assumptions about the two exhibits I used to completely impeach all three of the State's witnesses with prior inconsistent statements instead.

And it really didn't bother me what you did because the errors of law are still on the face of the record.  The fact remains when a pro-se litigant uses the probable cause itself to completely impeach all three of the State's witnesses with prior inconsistent statements they should be given the right to prove the probable cause demonstrated a total lack of good faith and that is the exact reason the Mack vs. First Security Bank of Chicago was reversed and remanded.

Plaintiff's refusal to accept the fact that defendant has prevailed in the trial court and on appeal is not an adequate basis for a section 2-1401 petition to vacate a judgment. In Kubiak v. City of Kewanee (1992), 228 Ill.App.3d 605, 606, 170 Ill.Dec. 520, 521, 592 N.E.2d 1200, 1201, we held that the trial court properly dismissed a petition to vacate a judgment which merely restated arguments already unsuccessful in a prior appeal. Here, the same result is clearly warranted. Therefore, we conclude that plaintiff's petition was properly dismissed.
In her cross-appeal, defendant argues that the trial court should have granted her motion for sanctions. We agree. In Kubiak, this court affirmed the trial court's imposition of sanctions under very similar circumstances. We noted in Kubiak that the defendant had lost its prior appeal and had no valid basis for continuing to attack the judgment. (Kubiak, 228 Ill.App.3d at 606-07, 170 Ill.Dec. at 521-22, 592 N.E.2d at 1201-02.) The same conclusion applies here. The only distinction between the instant appeal and Kubiak is that the defendant in Kubiak was represented by an attorney while the plaintiff here has proceeded pro se.

Do you realize the only reason Beverly Rusk was mad at me was because of what a third person in a love triangle said and do you realize the only reason I wanted to answer her daughter's questions was to put an end to the same lies that upset Beverly?

In the case at hand, the trial judge denied defendant's motion for sanctions stating that he thought plaintiff was in "good faith" but "just doesn't understand the machinations of the law." In order to review the trial court's decision, it is necessary to examine Rule 137 which provides, in pertinent part:

good faith?  You can't talk about good faith because you made unfair assumptions about a probable cause without even considering that it had been used as Defense Exhibit #1 and Defense Exhibit #5 in the jury trial I won 12 to 0 as a pro-se litigant.

"The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. * * * If a pleading, motion or other paper is signed in violation of this rule, the court * * * may impose upon the person who signed it * * * an appropriate sanction." (Emphasis added.) 134 Ill.2d R. 137.

The purpose of Rule 137 "is to prevent abuse of the judicial process by penalizing the litigant who brings vexatious or harassing actions that are based on false statements or without legal foundation." (Emphasis added.) (Singer v. Brookman (1991), 217 Ill.App.3d 870, 879, 160 Ill.Dec. 822, 827, 578 N.E.2d 1, 6.) The test to be utilized in determining whether the rule has been violated is an objective standard of what was reasonable under the circumstances at the time the assertions were made. (In re Marriage of Sykes (1992), 231 Ill.App.3d 940, 946, 173 Ill.Dec. 347, 352, 596 N.E.2d 1226, 1231.) Therefore, subjective good faith is not sufficient to meet the burden of Rule 137. Edwards v. Estate of Harrison (1992), 235 Ill.App.3d 213, 221, 176 Ill.Dec. 164, 169, 601 N.E.2d 862, 867.

Here, plaintiff was given ample opportunity to present his case to the court during the trial on his small claims complaint. He then appealed the trial court's judgment. We considered plaintiff's arguments and affirmed the trial court's ruling. After plaintiff's petition for rehearing to this court and his petition for leave to appeal to the supreme court were denied, we issued our mandate to the circuit court. At that point, on April 23, 1992, the case was finally concluded. Nevertheless, almost nine months later, plaintiff filed a section 2-1401 petition to vacate the judgment. Plaintiff raised nothing new in this petition but continued to argue that the trial court had misapplied the law. We find no reasonable legal foundation for plaintiff's petition. Accordingly, the filing of the petition was a clear violation of Rule 137.

"Ample opportunity?"  As long as the trial court judge refused to properly apply the definition of probable cause I didn't have any opportunity at all to get Defense Exhibit #1 and Defense Exhibit #5 moved from the jury trial I won into the Malicious Prosecution lawsuit because the judge in case 90-CM-9 handed the exhibits back after the trial.

We recognize that a trial court's determination regarding a motion for sanctions is a matter within the court's discretion and will not be disturbed absent an abuse of that discretion. (In re Estate of Hoover (1993), 155 Ill.2d 402, 419, 185 Ill.Dec. 866, 874, 615 N.E.2d 736, 744.) However, based on our review of the record, we conclude that the trial court abused its discretion when it denied defendant's motion for sanctions. The court in Mentzer v. Dudley, (1992), 236 Ill.App.3d 726, 177 Ill.Dec. 39, 602 N.E.2d 934, held that, when sufficiently egregious circumstances exist, sanctions can properly be imposed upon a pro se small claims litigant. (Mentzer, 236 Ill. App.3d at 729-31, 177 Ill.Dec. at 40-42, 602 N.E.2d at 935-37.) The court in Mentzer stated, "[w]e can give a pro se small claims litigant some leeway in presenting a claim which appears unreasonable, but when such a claimant engages in the harassment
involved here, he must suffer the consequences." Mentzer, 236 Ill.App.3d at 731, 177 Ill.Dec. at 42, 602 N.E.2d at 937.

Pretty funny that you claim to know what probable cause is and yet you obviously didn't know what the probable cause was in this case because you overlooked the fact the probable cause was the reason I won a jury trial 12 to 0 as a pro-se litigant.

Likewise, plaintiff here filed a petition totally lacking in legal foundation almost nine months after the case was completed. We conclude that plaintiff's conduct was sufficiently egregious to warrant the imposition of sanctions. We also conclude that the amount requested, $360, was reasonable and supported by the evidence. Consequently, we reverse that portion of the trial court's judgment which denied defendant's motion for sanctions and order plaintiff to pay defendant $360 in attorney fees.

And to think you did that just because Duane Thompson lied about the existence of malice and used a misrepresented lawsuit to conceal the fact that the Probable Cause was used as Defense Exhibit #1 and Defense Exhibit #5 in the jury trial I won 12 to 0 without an attorney.

Defendant has also requested sanctions pursuant to Supreme Court Rule 375(b) (Rule 375(b)) (134 Ill.2d R. 375(b)). Rule 375(b) allows this court to impose an appropriate sanction upon any party or the party's attorney if it is determined that the appeal is frivolous or not taken in good faith. An appeal will be deemed frivolous "where it is not reasonably well grounded in fact and not warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law." (134 Ill.2d R. 375(b).) The test to determine whether an appeal is frivolous is based upon an objective standard of conduct. Kubiak, 228 Ill.App.3d at 607, 170 Ill.Dec. at 522, 592 N.E.2d at 1202.

Pretty funny that you would fall for the lies of Duane Thompson who was only adding to Beverly Rusk's lies and if you'd seen what type of lies Beverly Rusk told police officers about me and about her own daughter you would feel differently about what you did to me.

At the hearing regarding defendant's motion for sanctions, the trial court made the following remarks to plaintiff:

"I am just going to say it here that it is my absolute opinion that you ought to drop this case and quit trying to relive it. Quit trying to reopen it, and accept the fact that this case is over and done.

And all you really did was give me proof that judges that will refuse to honor the decision in the Mack case and help an attorney relying on evidence tampering and fraudulent deception to conceal evidence that should have been part of a malicious prosecution lawsuit all along.

* * * * * *

* * * You do have a right to take this to a higher court. * * * But if you do take it to a higher court there's a provision in the Appellate Rules which also applies to frivolous appeals, and * * * the Appellate Court may give us some guidance as to what we should do in cases involving litigants who appear on their own and raise legal arguments that do not have merit."

The trial court properly informed plaintiff that his case was over and should be dropped. Further, the court warned plaintiff that an appeal could be found frivolous by the appellate court.

Disregarding the trial court's admonitions, plaintiff nevertheless continued this litigation by filing his notice of appeal. In Kubiak, we imposed sanctions under Rule 375(b) when the defendant appealed from a similarly meritless petition to vacate a judgment. We noted that the defendant's appeal required the plaintiff to continually defend against the defendant's "refusal to abide by this court's rulings." (Kubiak, 228 Ill.App.3d at 608, 170 Ill.Dec. at 522, 592 N.E.2d at 1202.) Here, plaintiff has refused to abide by our mandate affirming the trial court's judgment. Based upon the history of this case, we conclude that appropriate sanctions are warranted here. Plaintiff's appeal is not well grounded in fact or warranted by existing law.

We recognize that plaintiff was not represented by an attorney before this court and filed his notice of appeal pro se. However, we find absolutely no legal basis for plaintiff's appeal. Also, the trial court essentially informed plaintiff that an appeal would be unwise. Under these circumstances, we conclude that sanctions should be imposed against plaintiff.

Defendant has provided this court with the affidavit of her attorney. The affidavit states that attorney fees and costs incurred in defending this appeal, including presenting oral argument, total $1,501.82. We conclude that this amount is reasonable and adequately documented. Therefore, we order plaintiff to pay defendant the sum of $1,501.82 as a sanction for bringing this frivolous appeal.

For the reasons indicated, that portion of the judgment of the circuit court of Rock Island County which dismissed plaintiff's section 2-1401 petition is affirmed. That portion of the judgment which denied defendant's motion for sanctions is reversed, and sanctions are ordered against plaintiff in the amount of $360. Furthermore, we
impose sanctions on appeal against plaintiff in the amount of $1,501.82.

Don't forget by not applying the principles of law that reversed and remanded the Mack vs. First Security Bank of Chicago all you have done is help Duane Thompson conceal evidence of a total lack of good faith and helped Duane Thompson lie about the existence of malice.

Affirmed in part; reversed in part; sanctions imposed.

BARRY and BRESLIN, JJ., concur.

All I had to do to prove malice was point to page 30 of the transcript of the jury trial and the fact I used the probable cause itself in a jury as two exhibits to completely impeach all three of the State's witnesses with prior inconsistent statements and the jury voted 12 to 0 in my favor proves a lack of a valid probable cause.