Opinion filed March 14, 2014 ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2014 ____________________________________________________________________________

) LAURA A. BRZOWSKI, n/k/a Laura A. ) Appeal from the Circuit Court Zasadny, ) of the 12th Judicial Circuit, ) Will County, Illinois, Petitioner-Appellee, ) ) Appeal No. 3-13-0404 v. ) Circuit No. 07-OP-595 ) WALTER J. BRZOWSKI, ) ) The Honorable Victoria M. Kennison, Respondent-Appellant. ) Judge, Presiding. ) ______________________________________________________________________________

JUSTICE McDADE delivered the judgment of the court, with opinion. Justices Carter and O'Brien concurred in the judgment and opinion.

OPINION

¶1 This case is the latest in a long series of pro se appeals filed by respondent Walter

Brzowski regarding a 2007 order of protection entered in favor of his ex-wife, petitioner Laura

Zasadny (formerly Laura Brzowski). The plenary order of protection was extended several

times, and on May 16, 2013, the trial court entered another two-year extension of the order.

Respondent appealed. Because the judge who presided over the 2013 extension hearing had

previously recused herself from the case, we vacate and remand for further proceedings. ¶2 BACKGROUND

¶3 In 2003, the circuit court of Cook County entered a judgment of dissolution of marriage

between the parties, although in all of his filings both in the trial court and on appeal, respondent

denies the validity of that proceeding and insists that he is still legally married to petitioner.

Apparently, a plenary order of protection was also entered against respondent in Cook County.

¶4 In 2007, the circuit court of Will County entered a two-year plenary order of protection

(OP) against respondent in favor of petitioner. Respondent appealed that order, arguing that the

evidence was insufficient to grant the OP, that the trial court lacked jurisdiction to enter the OP,

that the Cook County divorce action was void, and that criminal proceedings against him based

on his violation of a Cook County order of protection were invalid. We rejected these arguments

and affirmed. See Brzowski v. Brzowski, No. 3-07-0379 (2007) (unpublished order under

Supreme Court Rule 23). Respondent later filed a motion to vacate the OP, which the trial court

denied. Respondent appealed again, raising the same arguments as in his first appeal; we

affirmed on the basis of res judicata because the issues had already been decided. Brzowski v.

Brzowski, No. 3-08-0783 (2009) (unpublished order under Supreme Court Rule 23).

¶5 In 2009, the trial court allowed petitioner's request to extend the OP for a period of two

years. Respondent appealed yet again, arguing that his due process rights were violated by the

extension of the OP, and also raising the same arguments as in the prior two appeals. We

affirmed, ruling that the 2009 extension of the OP was proper and that review of the other issues

was barred by res judicata. Brzowski v. Brzowski, No. 3-09-0602 (unpublished order under

Supreme Court Rule 23). Petitioner obtained another two-year extension of the OP on April 20,

2011. Respondent appealed the entry of the 2011 extension, and we affirmed, again finding that

2 the arguments raised by respondent were decided in prior appeals and thus were barred by res

judicata and law-of-the-case. See Brzowski v. Brzowski,

, ¶ 12.

¶6 In 2010, respondent was charged with criminal violation of the OP (720 ILCS 5/12-

30(a)(1) (West 2010)) in Will County proceeding No. 10-CF-2494. He was convicted in 2012

and sentenced to three years in the Department of Corrections.

¶7 In March 2012, respondent began filing motions in the trial court attacking the validity of

the OP. Specifically, respondent filed a "Motion to Dismiss Case Due to Several Incurable

Defects" repeating his arguments that the dissolution of marriage proceeding was void, that the

trial court lacked jurisdiction to enter the OP, that the case had been removed to federal court,

and that petitioner failed to prove her allegations in the original OP proceeding. He also filed a

notice of motion, stating that he would appear before the trial court on March 19, 2012, at 9 a.m.

¶8 On March 19, 2012, respondent was present in court in custody of the Will County

sheriff. Apparently, before the case was heard, Judge Kennison recused herself. The record is

silent as to the reason she recused: the docket entry merely states "File sent to Honorable Baron

for reassignment as Judge Kennison recuses from case." Judge Baron subsequently assigned

Judge Anderson to the case. Judge Anderson set respondent's motion for a status and case

management date on April 5, 2012. Prior to that date, however, Judge Anderson determined that

respondent's motions were frivolous, denied the motions, and struck the court date. Respondent

filed several more motions attacking the validity of the OP. Judge Anderson denied these

motions on May 1, 2012.

¶9 On May 9, 2012, respondent filed another motion to dismiss the OP proceeding, along

with a petition titled "Motion For Substitution of Judge John C. Anderson For Cause." The

petition alleged in part that Judge Anderson was biased against respondent because Judge

3 Anderson had dismissed his previous filings as frivolous. The rest of the petition and the motion

merely reiterated respondent's attacks against the validity of the dissolution of marriage and OP

proceedings. The motion and the petition were set for a hearing before Judge Anderson on May

11, 2012, but respondent failed to appear. Judge Anderson transferred the matter to Judge Baron

pending a resolution of the substitution of judge petition, but respondent failed to appear for the

hearing set on September 10, 2012. The petition was reset for September 17, 2012. Respondent

once again failed to appear for the hearing, and Judge Baron struck respondent's petition for

substitution of judge.

¶ 10 The 2011 extension of the OP was set to expire on April 25, 2013. That morning, the

cause was called for a hearing on the termination of the OP before Judge Kennison. Petitioner

was present but respondent was not. The court granted petitioner leave to file instanter an

emergency motion to extend the OP. Petitioner alleged that respondent was currently in prison

for violation of the OP but would be released soon, and that she was afraid for her safety and the

safety of her children. The court then heard testimony and extended the OP on a temporary

basis. The matter was continued for a hearing on the extension of the OP, which was set for

May, 16, 2013, before Judge Anderson.

¶ 11 Respondent was served with the order and the notice of hearing. On May 13, he filed a

"Motion to Vacate April 25, 2013 Ex Parte Order," a "Notice to Expose Judicial Injustice on U.S.

Citizen," and a petition for habeas corpus.

¶ 12 On May 16, 2013, Judge Anderson entered an order transferring the case back to Judge

Kennison for the hearing on the motion to extend the OP and for all future matters. The case was

then called before Judge Kennison, with petitioner present and respondent failing to appear.

According to the docket entry, after the court heard testimony, it found: (1) that there was no

4 material change in the relevant circumstances since the OP was last extended in 2011; (2) that

respondent had been criminally convicted of violating the OP; and (3) respondent's

correspondence and filings with the court indicated his continued refusal to accept that the

parties are divorced and his intention to have contact with the protected persons. Accordingly,

the court extended the OP to May 15, 2015, and struck the motions and petitions respondent had

filed.

¶ 13 Respondent filed a timely notice of appeal on June 7, 2013.

¶ 14 ANALYSIS

¶ 15 Initially, we note that petitioner has not filed an appellee's brief. Respondent seems to

argue that this alone entitles him to relief, and he has even filed a motion to hold petitioner in

default, which we denied. In the appellate court, reversal is not automatic when the appellee

fails to file a brief. First Capitol Mortgage Corp. v. Talandis Construction Corp.,

(1976). Our supreme court has explained how we may proceed in the absence of an

appellee's brief:

"We do not feel that a court of review should be compelled

to serve as an advocate for the appellee or that it should be

required to search the record for the purpose of sustaining the

judgment of the trial court. It may, however, if justice requires, do

so. Also, it seems that if the record is simple and the claimed

errors are such that the court can easily decide them without the aid

of an appellee's brief, the court of review should decide the merits

of the appeal. In other cases[,] if the appellant's brief demonstrates

prima facie reversible error and the contentions of the brief find

5 support in the record[,] the judgment of the trial court may be

reversed." Talandis,

.

The standard announced in Talandis will guide our review in this case.

¶ 16 On the merits of the appeal, respondent once again attacks the initial entry of the OP in

2007 on jurisdictional and evidentiary grounds, attacks the extensions of the OP in 2009 and

2011, attacks the validity of the dissolution of marriage proceeding in Cook County, and attacks

the validity of the criminal proceedings stemming from his violations of the OP. Respondent has

raised these arguments in four prior appeals and in a plethora of filings in the trial court, and they

have been rejected each time. Under the doctrine of law-of-the-case, a party may not relitigate a

question of law or fact that has already been decided in the same case. Alwin v. Village of

Wheeling,

(2007). Under the doctrine of res judicata, a final judgment

on the merits bars a party from later asserting claims that were actually decided or could have

been decided by the court. Cabrera v. First National Bank of Wheaton,

(2001). These doctrines bar respondent's arguments attacking the Cook County divorce, the

entry of the original OP in 2007 and the extensions of the order in 2009 and 2011, and the related

criminal proceedings. To the extent that respondent challenges these orders as void, we affirm

those orders. And while respondent raises these exact arguments against the 2013 extension of

the OP, those arguments are without merit and are similarly barred.

¶ 17 Respondent does raise one novel argument, addressing the 2013 extension of the OP, that

we must consider in more detail. We quote this argument from respondent's pro se brief:

"On March 19, 2012, the Will County Circuit Court, Judge

Victoria Kennison recused herself off of civil case #07 OP-595, (C

442) pursuant to IL. Supreme Ct. Rule #63 (C)(c), which the

6 Common Law Record remains silent to any remittal of Judge

Kennison, as required by IL. Supreme Court Rule #63 (D), and

thus Judge Kennison would lack the legal authority to enter any

'judicial act' on April 25, 2013, (C 609) and May 16, 2013, (C

652). Upon such lack of jurisdictional power and authority, Judge

Victoria Kennison could not enter such unproven, ex parte 'orders'

on such relevant dates, rendering them complete nullities, (Fact)."

¶ 18 We agree with respondent that it was improper for Judge Kennison to conduct hearings

and enter orders in this matter after she had recused herself and in the absence of a remittal.

Therefore, we conclude that respondent has demonstrated a prima facie case of reversible error.

¶ 19 Our research has not revealed any reported Illinois case specifically addressing the

validity of an order entered by a judge who had previously recused herself. But our cases do

hold that when a judge has been substituted for cause, the disqualified judge cannot enter any

further orders in the case. See In re C.M.A.,

(1999) (holding that

judge’s orders in case, entered after a petition for substitution of that judge for cause was

granted, were void and had no legal effect). See also In re Estate of Wilson,

(2010) (stating that orders entered after a petition for substitution has been improperly denied

will be invalidated). We believe that the same principle should apply when a judge has

disqualified herself through recusal. 1 Also, it is a generally accepted rule in both state and

1 We acknowledge that "recusal and substitution for cause are not the same thing." In re

Marriage of O'Brien,

. A judge should recuse herself in situations called

for by Illinois Supreme Court Rule 63(C) where the judge’s impartiality might reasonably be

questioned. O'Brien,

(citing Ill. S. Ct. R. 63(C) (eff. Apr. 16, 2007)).

7 federal courts that once a judge recuses, that judge should have no further involvement in the

case outside of certain ministerial acts. See, e.g., Moody v. Simmons,

(3d Cir.

1988) ("Once a judge has disqualified himself, he or she may enter no further orders in the case.

[Citations.] His power is limited to performing ministerial duties necessary to transfer the case to

another judge (including the entering of 'housekeeping' orders).") See also S. Matthew Cook,

Note, Extending the Due Process Clause to Prevent A Previously Recused Judge from Later

Attempting to Affect the Case from Which He Was Recused, 1997 BYU. L. Rev. 423, 442-47

(1997) (analyzing cases). Thus, we conclude that when a judge is disqualified from a case, either

by recusal or through a petition for substitution, that judge cannot enter any further orders in the

matter.

¶ 20 Here, Judge Kennison recused herself from the case on March 19, 2012, and the record

does not contain any remittal of her recusal pursuant to Supreme Court Rule 63(D). Thus, Judge

Kennison should not have had any involvement in the case (outside of ministerial actions) after

she recused. But she later heard evidence and entered substantive orders in the case, extending

the OP first on an emergency basis and later entering a two-year extension. Because this was

improper, we must vacate Judge Kennison’s orders of April 25, 2013, and May 16, 2013.

¶ 21 We note that respondent has seemingly argued Judge Kennison’s orders are void because

of a lack of jurisdiction. Many cases also state that orders entered by a judge after that judge

Substitution of a judge for cause involves a much higher showing of actual bias or prejudice

pursuant to section 2-1001(a)(3) of the Code of Civil Procedure (735 ILCS 5/2-1001(a)(3) (West

2012)). O'Brien,

. But for the purposes of our analysis in this case, the

power of a judge who has been substituted for cause is similar to the power of a judge who has

voluntarily recused herself from the case.

8 should have been disqualified are void. See C.M.A.,

; Curtis v. Lofy,

(2009). Recently, however, our supreme court suggested that such orders

might merely be voidable, rather than void. Wilson,

n.14. An order is void

when the court lacks jurisdiction over the person or subject matter, or when the court lacks

inherent authority to enter a particular order. Sarkissian v. Chicago Board of Education,

(2002). It is questionable whether an order entered by a disqualified judge is void for

lack of jurisdiction, because jurisdiction is vested in the court itself, not with an individual judge.

See Generes v. Foreman,

(1995) (holding that when a recused judge

later entered an order in case, the order was not an act done in complete absence of jurisdiction).

But we do not decide whether such an order is void or merely voidable—because this is a direct

appeal and not a collateral attack on the order, deciding whether Judge Kennison’s order was

void is unnecessary to the resolution of this case. It is sufficient to say that when a recused judge

subsequently enters substantive orders in a case, those orders must be vacated.

¶ 22 While we grant respondent relief in this appeal, we do not approve of his conduct

throughout this litigation: respondent has engaged in a pattern of filing numerous documents

which do nothing more than repeat the same frivolous arguments which our courts have already

considered and rejected. Respondent also has a penchant for seeking to remove judges who rule

against him: he has sought to disqualify at least two judges in this case for cause, alleging that

these judges were biased against him because they have not ruled in his favor. It may very well

be that confusion surrounding the status of respondent's petition to substitute Judge Anderson

caused Judge Anderson to conclude that he could not preside over the OP hearing. This may

have led him to transfer the case back to Judge Kennison. In the interest of aiding the orderly

administration of this case on remand, we note that a petition for substitution of a judge for cause

9 must be accompanied by an affidavit and must set forth grounds that, if true, would constitute

cause for substitution. 735 ILCS 5/2–1001(a)(3) (West 2012); Wilson,

. If a

petition for substitution does not meet this threshold—and "[a] judge's previous rulings almost

never constitute a valid basis for a claim of judicial bias"—then there is no obligation to refer the

petition to another judge for a hearing. Wilson,

.

¶ 23 We also believe that while respondent has a right to a hearing before a judge who has not

been disqualified, petitioner should not be put in jeopardy because the extension of the OP is

now being invalidated for reasons that are not her fault. Having reviewed the record in this case,

we believe that an unbiased trial judge could have concluded that there was good cause to extend

the OP. Therefore, to protect petitioner's rights as well as respondent's, we conclude that it

would be best to preserve the status quo until the case can be heard before another judge.

Therefore, we order that the OP is to remain in effect, on a temporary basis, until the case can be

heard on petitioner's emergency motion to extend the OP. The circuit court is directed to hold

such a hearing within 21 days of the issuance of our mandate in this case. Depending on the

outcome of that proceeding, the circuit court should hold all other proceedings in a timely

manner thereafter.

¶ 24 CONCLUSION

¶ 25 For the foregoing reasons, the judgment of the circuit court of Will County is affirmed in

part, vacated in part, and remanded for further proceedings consistent with this opinion.

¶ 26 Affirmed in part and vacated in part; cause remanded with directions.

10