Brzowski v. Brzowski
2014 IL App (3d) 130404
Ill. App. Ct.2015Background
- Long sequence of pro se appeals challenging a 2007 plenary order of protection (OP) in Will County; 2013 two-year extension appealed after judge who presided had recused; Kennison recused in 2012 but heard evidence and entered extensions; panel vacates those orders and remands; trial court ordered temporary OP continuation and 21-day hearing window; respondent convicted in 2012 for OP violation; prior extensions in 2009 and 2011 were upheld or barred by res judicata and law-of-the-case; this appeal centers on whether post-recusal orders were void or voidable and whether relief is warranted to preserve the status quo; court ultimately vacates/remands to address improper actions by a recused judge; petitioner sought emergency extension and the court preserves OP temporarily on remand.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of orders entered after recusal | Brzowski contends Kennison lacked authority to enter orders after recusal | Zasadny contends orders are valid or voidable, and need not be vacated | Recused judge's substantive orders vacated; need remand |
| Impact of res judicata and law-of-the-case on repeat challenges | Brzowski seeks to revisit prior rulings | Zasadny relies on res judicata and law-of-the-case to bar relitigation | Arguments barred; merits addressed only to the 2013 extension |
| Authority to extend OP after recusal without remittal | Brzowski argues lack of jurisdiction invalidates extension | Zasadny argues extensions could be upheld if proper procedure followed | Extension orders vacated; remand ordered to proceed before a different judge |
| Remedy for improper actions by a recused judge | Brzowski seeks voiding of orders and immediate relief | Zasadny seeks standard appellate review with proper remittal | Vacate/reduce impact of Kennison's orders; preserve status quo; remand for hearing before a non-recused judge |
| Preservation of the protected persons' safety during remand | OP should remain in effect to protect petitioner and children | Status quo may be adjusted with new hearing | OP remains temporarily in effect; new hearing within 21 days |
Key Cases Cited
- First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128 (Illinois Supreme Court 1976) (default standards for appellate review when no appellee brief)
- In re Petition of C.M.A., 306 Ill. App. 3d 1061 (Illinois Appellate Court 1999) (orders entered after substitution of judge may be void or voidable)
- Wilson, 238 Ill. 2d 519 (Illinois Supreme Court 2010) (recusal/substitution standards; voidness/voidability discussion)
- O’Brien, In re Marriage of O’Brien, 2011 IL 109039 (Illinois Supreme Court 2011) (recusal and substitution principles in family law context)
- Sarkissian v. Chicago Board of Education, 201 Ill. 2d 95 (Illinois Supreme Court 2002) (jurisdiction and authority when judgment entered by disqualified judge)
- Generes v. Foreman, 277 Ill. App. 3d 353 (Illinois Appellate Court 1995) (evaluate orders after a disqualified judge)
- Alwin v. Village of Wheeling, 371 Ill. App. 3d 898 (Illinois Appellate Court 2007) (law-of-the-case and res judicata considerations)
- Cabrera v. First National Bank of Wheaton, 324 Ill. App. 3d 85 (Illinois Appellate Court 2001) (res judicata/barred relief principles)
- Moody v. Simmons, 858 F.2d 137 (3d Cir. 1988) (recusal leads to limited post-recusal duties; ministerial acts only)