*1 to be venue is determined plaintiffs chosen where the conveniens that harass because of to the defendant prejudicial harassment law, every area of the note, appears that in other ment. On reversal, party has demonstrated appealing there is a where that presumption to overcome submit prejudice. We must demonstrate proper, defendant choice of forum is plaintiffs This is prejudice it. venue will of its motion to transfer that denial movant, defendant, as the idea, revolutionary á because of venue plaintiffs selection always prove had the burden (Weaver (1987), 116 Ill. 2d Towing, Inc. v. Midwest improper. was 840.) must set out doing, defendant 279, 285, so 507 N.E.2d conclusions, right to the relief a clear specific facts, not show Wojtonik Illinois Central (Emphasis original.) asked for.” 482, 487-88, R.R., 640 N.E.2d App. 266 Ill. order). (1995) (supervisory vacated, 645 N.E.2d course, opinion, aware, that the court vacated We are order, no provides which unfortunately supervisory it did it but guidance to this court. court is af- stated, judgment of the circuit
For the reasons firmed.
Affirmed. HOPKINS, JJ.,
KUEHN and concur. BURGESS, Petitioner-Appellee, and J. In re MARRIAGE OF DONALD BURGESS,Respondent-Appellant. M. SHARRON Division) (2nd First District No. 1 — 97—4311 Opinion filed December 1998. *2 TULLY,J., specially concurring. Chicago Services, Shannon M. Legal Cobe and Volunteer Chicago, both of appellant.
for Marcy A. Kennedy, Chicago, Newman and Susan Lorraine ap- both of for pellee.
JUSTICE RAKOWSKI delivered the opinion of the court: (a Can a disabled adult’s plenary guardian guardian of both the person) individual’s estate and continue a dissolution of marriage ac originally filed by the disabled adult prior filing to the of a peti tion for guardianship prior finding disability? and to a This is the certified question appeal. involved in this In Marriage Pursuant to and, 115 Ill. 2d the answer is no accordingly, we reverse remand.
BACKGROUND Petitioner, 64, Burgess, Burgess, Donald and respondent, Sharron marriage. were married 1978. No children were born of the 1996, alleging April petition filed a for dissolution Donald answered, allega denying the cruelty. Sharron repeated acts of mental entered of the circuit court probate In June of division tions. sister, Virginia his appointed disabled and finding that Donald was dismiss Cronk, then filed a motion to plenary guardian. as Sharron authority contending that Cronk was without petition, the dissolution but court denied the motion proceeding. The trial to continue with Supreme granted appeal pursuant We leave to question. certified the (155 308), certified accepting parties’ Ill. 2d R. Court Rule 308 question.
ANALYSIS 1975, there are Preliminarily, under the Illinois Probate Act of (755 1a — 17 guardians: guardians person of the ILCS types two 5/1 (West (West 1996)) guardians of the estate 1a — 18 5/1 1996)). person appointed disability, A of the when a “lack[ ] defined in section causes an individual sufficient 11a— understanding make deci capacity responsible or communicate concerning person.” sions the care of his 755 ILCS 11a— (West 3(a)(1) when, appointed A of the estate is due to disability as defined section the individual “is unable 11a— —3( 5/11a—2, manage his estate or financial affairs.” 755 ILCS 1 1 a a)(2) (West 1996). powers Section 11a—17 sets forth the person powers and section 11a—18 sets forth the *3 stated, previously of the estate. As the instant case involves plenary guardian, who of both the individual’s estate is person. and of the individual’s Drews, 201, Marriage In In re 115 Ill. 2d 207 our Illinois of
Supreme
plenary guardian
standing
Court held that a
lacks
to institute
decided,
proceeding.
or maintain a dissolution
When Drews was
a ma
jority
states to consider the
with this result.
of
issue were
accord
ma
long ago adopted
court stated that Illinois had
the
authorization,
jority
approach
statutory
“absent
action,
ward,
of
cannot institute an
on behalf of a
for the dissolution
marriage.” Drews,
Rejecting
the
As
majority
when Drews was
rule in
country
was that a
could not
proceeding.
changed, however,
Times have
majority
jurisdic
and a
of
29)1
tions to address the issue
of
personal guardian
now allow a
bring or maintain a dissolution action. We also note from a review of
legal
decisions
sound
and public policy considerations have
been
See,
offered in
of
support
position.
e.g., Ruvalcaba v. Ruval
caba,
436,
174 Ariz.
1993);
Standing is defined as:
“ ‘Standing
party
to sue’ means that
has sufficient stake in an
justiciable controversy
judicial
otherwise
to obtain
resolution of
controversy.
Standing
concept
[Citation.]
is a
utilized to
party
determine if
sufficiently
affected so as to insure that a
justiciable
court;
controversy presented
right
it is the
step
legal
take the initial
adjudica-
frames
issues for ultimate
jury.
[Citation.]
court or
140,
Hopson Hopson,
(1952); Campbell
1 See
v.
257 Ala.
57
2d
So.
v.
141,
Campbell,
(1941);
Ruvalcaba,
242 Ala.
or been threatened with lawsuit, fight the litigant proper party to is the whether Dictionary justiciable.” itself is Black’s Law whether the issue (6th 1990). ed. rule based on lack of stand- The Drews court articulated an absolute a creature of statute ing, reasoning rooted in the that a is and, thus, standing it is without only powers granted with those beyond specific grant authority. its anything do distinction between Donald contends there is a fundamental (as Drews) or maintenance institution of an action in and continuation (at here). an “[t]o as: maintain of an action issue Maintain is defined it; imports or the term may action or suit mean to commence however, Maintain, usually ap is a cause of action. the existence of already yet judgment.” but not reduced to plied brought, to actions (6th 1990). Further, Dictionary “[t]o ed. ‘maintain’ Black’s Law foot, keep collapse an action on from suit uphold, is continue already begun, prosecute or to a suit effect.” Black’s Law Dictio with (6th 1990). nary Although guard that a plenary ed. the statement may ian is to maintain an action for dissolution be without dicta, it expression under the facts is nevertheless clear Moreover, our court. neither section 11a—17 nor 11a—18 any instituting maintaining makes reference to either a dissolution statutory in absent proceeding. Given the rationale Drews authorization, act, any argument that a different cannot result should be reached this case because involves an action is merit. without additionally points recently granted
Donald out that Illinois has In powers personal guardian. particular, additional to a (see allowed to medical treatment Health Care Sur now withdraw 17(d) (West 1996))), a deci rogate seq.; Act ILCS et 40/1 5/1 1a — argues than the decision to seek a sion Donald is much more agree argument appeal standpoint divorce. this from the We pow logic. quick we are also to note that these additional granted in the manner the Drews court mandated: precisely ers were Thus, statutory appeal logic authorization. would be better via legislature. if made to the served In three times.
Since section 11a—17 has been amended surrogate decision-making powers legislature added the 17(d) (West 1996). referred to above. 755 of At the Illinois Power legislature powers added connection with 1996). 17(c) (West Finally, torney Act. 755 ILCS 5/1 1a — mak- for decision legislature detailing the standard paragraph added 17(e) (West ing guardian must follow. 755 Supp. ILCS 5/1 1a — *5 Clearly, the legislature granted personal guardian greater has author in ity certain areas. it failed to do so in the area of dissolu legislature tion presumed actions. to know the construction the placed upon Crickman, courts have a statute. v. Williams 81 Ill. 2d (1980). judicial 111 A interpretation of a statute is considered part of the statute legislature until the amends it in contrary to that (1995). terpretation. Seigfried, Charles v. 492 More over, legislature when the acquiesced judicial construction time, here, over a substantial period depart did from that construction would be tantamount to an amendment of the statute Charles, itself. Ill. 2d 165 at 492. This we cannot do. The power to amend exclusively legislative function.
CONCLUSION foregoing, Based on the question we the certified in the answer negative and hold that a plenary may not continue a dissolu- tion originally by prior action filed his or her ward to the time the Accordingly, ward was found disabled. the judgment we reverse County circuit court of Cook and remand the proceed- cause for further ings consistent with our opinion.
Reversed and remanded.
COUSINS, J., concurs. TULLY,specially concurring:
JUSTICE
specially
agree
I
concur because
I
are
by
while
we
bound
court’s decision in In
Ill. 2d
Marriage
115
201
emphasize
strong legal
public policy
I would
reasons
allowing
for
plenary
disabled adult’s
to continue a dissolu
marriage
originally
by
tion of
action
filed
the disabled adult.
argued
guard
I
echo the dissent in
that such
would
which
initiate,
maintain,
ians should be allowed to
let alone
a dissolution of
marriage
According
action on the
adult’s behalf.
to that dis
disabled
sent,
personal
a marital dissolution action is not too
to fall within the
(West 1996)). The
seq.
purpose
statute
1a — 1 et
5/1
plenary guardianship
preserve
is to
the disabled adult’s best
“neglect,
him or her from
protect
exploitation,
interests
3(b) (West 1996).
allowing
abuse.” 755 ILCS
a plenary
Not
originally
to maintain a marital dissolution action
filed
goals. “By allowing guardians
the disabled adult does not
serve
actions, a court
regarding
preserves
to make such decisions
dissolution
and affords
incompetent]
[an
dignity
person
‘the
and worth of such
recognizes in
rights
and choices it
person
panoply
the same
”
(Simon, J., dissenting),
Drews,
Also,
authority upon
which the
questioned
the Drews dissent
majority relie[d]
on
majority relied. “The two Illinois cases
which
ac
holding
that a
lacks
to initiate
(1901); Iago
Iago,
Ill.
v.
solution action is no more than medical decisions. *6 days of termination of life tax support, consequences “[I]n these virtually decisions, the all economic no-fault dissolutions and other vagaries vastly changing society, deny we think an absolute rule ing authority justified public is not nor in the interest.” In re Mar riage Gannon, 121, 124, 2d Wash. 702 P.2d As brief, petitioner pointed appellee’s out in his the Probate Act specifi cally guardian surrogate authorizes to act as a decision maker under 17(d) (West 1996). Surrogate the Health Care Act. 755 ILCS 5/11a — Surrogate surrogate The Health Care the Act allows the to authorize (West Thus, withdrawal of medical treatment. 755 I ILCS 40/20 argument initiating would find the a dissolution guardian action fall personal on ward’s behalf is too within statute to be unpersuasive. jurisdictions addressing
It important note that of the issue, on the proceeding 17 allow a to institute dissolution behalf, and that the must be able stipulate ward’s some those ward judgment to exercise as his or her decisions reasonable express and to a desire for dissolution. Ten of the unequivocally Illinois, twenty-nine jurisdictions, including do not allow a jurisdictions those have not proceedings. Most of twenty-nine jurisdic- considered of the the issue since the 1950’s. Two Certainly longer are Drews no reflects tions undecided on the issue. the majority view. ac-
Moreover, allowing
to maintain such dissolution
spouse
adult and the
preserves equity
tions
between the disabled
“
absolute,
otherwise,
party is vested with
competent
because
‘the
”
final
marriage.’
Ruvalcaba,
control over the
In re Marriage
436, 443,
Ariz.
1993),
Gannon,
850 P.2d
(App.
quoting
Wash.
at
in the best
authority
interests of
such
must
sought specifically by
be
special petition
purpose.
for that
The
hearing
court must then hold a
to obtain evidence of what action is
in the best interests of the ward. The discretion
trial
court
matters, again
will test
great emphasis upon
with
interests of the ward and the necessities and interests of the
competent
Gannon,
spouse.”
2d at
Wash.
THE OF THE v. ROMAN PEOPLE STATEOF DMITRIYEV,Defendant-Appellant. (2nd Division) First District No. 1 — 97—2592 Opinion filed December 1998.