Friday, May 15, 2020

                          Respondent,                      )      Court of Illinois,
                                                                    )      2nd District
            v.                                                     )      No. 2-19-1090
MARCI WEBBER,                                    )   
                          Appellant.                         )

NOW COMES, Marci Webber (“Webber”), in want of counsel, the petitioner in the aforementioned case and moves this Honorable Court as follows: PETITION FOR LEAVE TO FILE LATE AND APPEAL TO THE ILLINOIS SUPREME COURT UNDER RULE 315. In support thereof and in compliance with Illinois Supreme Court Rule 315, Webber states the following:


1.     Webber is in want of counsel and proceeding pro se.  She is not a licensed attorney and has no access to legal resources as the Chicago Read Mental Health Center (CRMHC) is devoid of legal resources. Being pro se and not a licensed attorney, Webber invokes the lenient pleading standard pursuant to, inter alia, Haines v. Kerner, 404 U.S. 519 (1972).  Webber acknowledges that in her attempts to submit a previous petition to this court pro se in January 2020, she accidentally put an old appellate case number on the heading of the document. However, the pleadings presented in the petition were clearly recent, specifically in December 2019. According to Haines v. Kerner, “allegations such as those asserted by petitioner, however inartfully pleaded, are sufficient to call for the opportunity to offer supporting evidence.” Indeed, Webber presented rather significant allegations which deserve serious review by this Honorable Court. Furthermore the U.S. Supreme Court said in Haines, “we hold [pleadings] to less stringent standards than formal pleadings drafted by lawyers.” Webber’s original petition to this Court was submitted within the 35-day time period.
2.     Also since Webber has no counsel on this motion she respectfully requests that the court not construe against her any underdeveloped arguments or omissions that indicate meritlessness (Se, e.g., United States v. Watson, 189 F. 3d 496, 500 (7th Cir. 1999) (for the proposition that inadequately developed or supported arguments are waived)
3.     Webber cites United States v. 30.64 Acres of Land, 795 F. 2d 796, 805 (9th Cir. 1986).  “Quite obviously an incompetent person cannot be held to compliance with technical rules.” Furthermore, “incompetence” in the legal setting is defined as, lack of legal ability to do something[1]. As Webber is currently confined to the CRMHC, she requests this Court’s adequate leniency in her filings to ensure that her arguments are properly addressed. As Webber is currently housed in a mental health center, it is presumptuous to assume that she is competent to submit pro se pleadings with the degree of accuracy that a licensed attorney would without an appropriate competency hearing.
4.     Webber also points out Illinois Supreme Court Rule 183 which says, “The court, for good cause shown on motion after notice to the opposite party, may extend the time for filing any pleading or the doing of any act which is required by the rules to be done within a limited period, either before or after the expiration of the time.” Webber’s access to legal resources and other material has been very limited, due in part to complications resulting from the Covid-19 pandemic. Due to the extreme circumstances that Webber has been forced into, she respectfully seeks this Honorable Court allow her to file the instant petition at this time, to the extent that this Court does not treat her original filing in January 2020, which was within the 35 day period, as adequate for the purpose of timing on this petition.  Webber notes that Respondent, seeking Webber’s confinement, is in no way prejudiced by the petition’s lateness, as her interim confinement is sought by Respondent.


5.     The People of the State of Illinois (“State”) filed a motion for Stay of Enforcement on or around 12/17/19 and the Illinois Appellate Court, 2nd District granted said order on 12/20/19, without allowing Webber an opportunity to respond to the State’s motion. Webber was not properly served and received a copy of the motion via U.S. mail only hours before the motion was granted. Webber filed her Motion to Vacate the Stay Order of 12/20/19 on 12/27/19. On or around 1/6/20 the Illinois Appellate Court, 2nd District denied Webber’s motion without providing any reasoning.

Rule 315 (c)(3)

6.     In asking the Illinois Supreme Court to review the judgment of the Appellate Court, Webber states as follows:
a.    Webber was living in the community when the Stay Order was granted. Thus, she had more liberty interest at stake than a trial court’s order granting release. That is, she did not merely have the liberty interest of prospective release, but she had actually obtained release.
b.    Webber has been detained against her will in a mental health facility tasked with providing highly-restrictive inpatient mental health treatment in accordance with strict constitutional standards despite the absence of a hearing determining that she meets the criteria for inpatient treatment. Webber has been detained based not on the precedent found in voluminous case law requiring notice, a hearing with evidence and examination of witnesses, as well as the opportunity to appeal, but rather due to an abstract legal/administrative procedure known as a Stay, which has absolutely no precedent in case law.
c.     The Appellate Court is the common means of appeal when someone’s liberty is taken from them by the State. However, the Appellate Court is the entity that took Webber’s liberty in this case. The only entity to whom Webber can appeal this unwarranted detention is the Illinois Supreme Court.
d.    Webber did not receive adequate notice by the State as service was not performed appropriately. Despite being pro se, Webber prepared and filed a motion to vacate 1 week after she received the state’s emergency motion in the mail, which was also the same day that the appellate court granted the state’s motion. The State exploited her pro se status to avoid any argument against their motion.
e.    The State’s emergency motion was submitted prior to the record on appeal being formalized and submitted; it included both untrue information as well as information that was not in the record; that is, the introduction of new evidence.
f.      Webber’s detention is based on an abstract legal/administrative procedure (Stay of Enforcement) and not acute mental illness and dangerousness (a determination derived from professional evaluations of her current mental state). Nowhere in the history of Illinois case law or any other case law that Webber has seen in her research has it been legally permissible to detain someone in a mental health facility (1) for an administrative procedural reason and not mental health treatment and (2) without a trial or full due process hearing, including the opportunity to appeal, based upon the individual’s current mental state. Judge Bakalis’s ruling, finding that Webber had shown, by clear and convincing evidence, that she did not meet the criteria for inpatient treatment, relieves her of any presumptions against her under Illinois or federal law, Jones v. United States, 463 US 354 U.S. Supreme Court 1983 . Consequently, further confinement, under Illinois and federal law, requires a full due process hearing. (See, inter alia, Vitek v. Jones, 445 US 480 U.S. Supreme Court 1980, Specht v. Patterson, 386 US 605 U.S. Supreme Court 1967).
g.     The fundamental liberty interest at stake, liberty itself, requires that the state of Illinois afford Webber full due process protections, regardless of convenience to any judicial process. Put simply, a stay of enforcement in a divorce proceeding, for example, is one thing, but a stay of enforcement that results in a forcible return to custody is a completely different thing. The abstract legal concept of a stay of enforcement must not supersede Webber’s liberty interest.
h.    The current circumstances in which Webber finds herself are not at all the “Status Quo.” She was disallowed by CRMHC officials several court-approved privileges and personal property rights that she had previously at CRMHC, just before she was granted conditional release.
i.      The Appellate Court abused its discretion in granting the Stay Order against Webber.
j.      The current COVID-19 pandemic is putting Webber in danger living at CRMHC as she cannot adequately protect herself at CRMHC; indeed, she is subject to patients coming in off the streets who may be carrying COVID-19. Staff that Webber is forced to interact with may carry COVID-19 and infect her; due to the nature of confinement, Webber cannot adequately adhere to federal and state social distancing guidelines.

Rule 315(c)(4)

7.     Webber filed her petition for discharge or conditional release in July 2018. During the hearing she presented three expert witnesses that all stated that she did not meet the criteria for inpatient treatment (neither mentally ill nor dangerous). The court-appointed examiner testified that Webber did not meet the criteria for inpatient treatment insofar as she testified that while Webber had a mental health diagnosis, it was in a sustained remission and that Webber was not dangerous. The only expert testimony against Webber was that of her treating psychiatrist at Elgin Mental Health Center (“EMHC”), Dr. Malis. However, the trial court called into question information provided to the court by the Illinois Department of Human Services (“IDHS”) including EMHC, as there was substantial evidence showing that IDHS had submitted false information and/or attempted to mislead the court about Webber. Webber cannot reference any specific pages in the Record on Appeal as (1) the Stay Order was granted prior to completion of the Record on Appeal and (2) Webber has not yet received the Record on Appeal and is unaware if it has been prepared.

Rule 315(c)(5)

8.     Review by the Supreme Court is warranted here not only the sake of Webber’s liberty, but also because it touches on an important legal question on which lower courts need guidance.
a.    Without adequate due process, or even having the record on appeal prepared and available, the Appellate Court for the 2nd District set a dangerous and unconstitutional precedent by ordering the detention of Webber without any hearing or even factual review. The Appellate Court merely allowed the State to manipulate their pen into ordering Webber’s detention. No case law was cited by the State in their motion, nor did the Appellate Court provide any basis showing  that such a type of detention not based on a full due process hearing is permissible.
b.    The reversal of a trial court’s decision on appeal should only occur when the decision is manifestly erroneous People v. Hager, 253 Ill.App.3d 37, 42, 192 Ill.Dec. 272, 625 N.E.2d 232, 236 (1993); People v. Cross, 301 Ill.App.3d 901, 912, 235 Ill.Dec. 193, 704 N.E.2d 766, 773 (1998). However, this precedent regards a reversal at the end of the appeals process, after the production of the record on appeal and the parties’ legal briefs. However, in this case, the appellate court’s decision is a de facto decision to reverse the trial court’s decision: it has the effect of seizing Webber’s person and detaining her without even the most cursory review of the law and facts. Webber’s current confinement rests on the absurd presumption that Judge Bakalis’s ruling was against the manifest weight, putting the legal norm of deference to the factual determinations of lower courts on its head.
c.     The Illinois Appellate Court for the 2nd District denied Webber’s motion to vacate the stay order without providing any reasoning for the denial. Webber’s motion was thorough and contained important constitutional and legal arguments that the Appellate Court did not even bother to address.
d.    Webber asserts that this case presents an important legal question that the Illinois Supreme Court must address, both for Webber’s sake and potential similar situations in the future. Commitment, for any reason, requires the ability to appeal to comport with due process, Vitek v. Jones, 445 US 480 U.S. Supreme Court 1980. Without being able to appeal to the Illinois Supreme Court, Webber’s current detention does not comport with due process.
e.    The unconstitutionality of Webber’s current detention is supported by voluminous case law. “I think it clear that acquittees could not be confined as mental patients absent some medical justification for doing so. In such a case, the necessary connection between the nature and purpose of confinement would be absent” Vitek v. Jones 445 US 480. Webber is not currently detained for medical reasons, but for a legal/administrative reason. The committed acquittee is entitled to release when he has recovered his sanity, or he is no longer dangerous. Jones v. United States 463 U.S. 354. The acquittee may be held as long as he is mentally ill and dangerous, but no longer. O’Connor v. Donaldson 422 US 563 (held as a matter of due process that it was unconstitutional for a state to continue to confine a harmless mentally ill person, even if the initial commitment was permissible, it could not constitutionally continue after that basis no longer existed). Vitek v. Jones held that a convicted felon serving his sentence has a liberty interest not extinguished by his confinement as a criminal and not being transferred to a mental institution and hence classified as mentally ill without appropriate procedures to prove that he was mentally ill. “The loss of liberty produced by involuntary commitment is more than a loss of freedom from confinement (Vitek Id. 492). Due process requires that the nature of the commitment bears some reasonable relation to the purpose for which the individual is committed (Jones at 368, Jackson v. Indiana 406 US 715). Currently, the purpose of Webber’s commitment is that of the legal instrument of a stay order to allow an appeal process to play out. However, the nature of her commitment is that of mental health treatment.
f.      The State in their Emergency Motion for a Stay of Enforcement used information that was misleading and outright false. The State also used information that was not contained within the record of the trial court for Webber’s hearing; that is, they introduced new evidence in their Emergency Motion, which was improper. Furthermore, the State did not provide Webber or the Court with any exculpatory evidence in accordance with Brady v. Maryland 373 U.S. 83 (1963). 
g.     Webber was not properly served with a copy of the State’s Emergency Motion and received it via the US Postal Service mere hours before the Appellate Court entered their order granting the Stay Order. As such she had no opportunity to respond to the State’s motion. In Nagel v. Gerald Dennen & Co., 650 NE 2d 547 - Ill: Appellate Court, 1st Dist., 2nd Div. 1995, the Appellate court reversed and remanded a case in which Defendants filed an “emergency” motion without adequate notice to the plaintiff. The trial court granted the defendant’ motion in an ex parte hearing. The Appellate court found that adequate notice is necessary in such circumstances. “Is the mere fact that defendant's motion was labelled an "emergency" sufficient to satisfy the requirement that an emergency exist? Clearly, the answer is "No" in light of the specific meaning of "emergency" and the cases cited herein, requiring specifically stated facts "that immediate and irreparable injury, loss, or damage will result to the applicant before notice can be served… We further find that the written motion itself belies the argument that an emergency existed.” There was no reason for the Appellate Court to not allow Webber the opportunity to respond before deciding the State’s “emergency” motion. 
h.    Webber asserts that as the “status quo’ does not currently exist, it is appropriate that the Stay order is reviewed. Furthermore, the nature of this stay order attempts to address the merits of the underlying dispute. Indeed, the U.S. Supreme Court has held that one can only be held as an inpatient in a mental health facility if they are both mentally ill and dangerous. Foucha v. Louisiana, 504 US 71 - Supreme Court 1992. As this is precedent, locking Webber back up in an inpatient mental health facility indicates that she must be both mentally ill and dangerous, otherwise there is no legal basis to confine her there. The question of whether or not the trial court ruled properly in determining that Webber no longer met this 2-pronged test is what the Appellate Court is deciding. However, by forcing Webber back into confinement, the merits of the underlying dispute are being addressed: Webber is currently seen under the law as meeting the 2-pronged test of being both mentally ill and dangerous, despite already having proven by clear and convincing evidence that she is not. “A stay order seeks only to preserve the status quo existing on the date of its entry and does not address in any way the merits of the underlying dispute. (Douglas Transit, Inc. v. Illinois Commerce Commission (1986), 145 Ill.App.3d 115, 99 Ill.Dec. 173, 495 N.E.2d 620.)” Quoting Kaden v. Pucinski, 635 NE 2d 468 - Ill: Appellate Court, 1st Dist., 3rd Div. 1994. In Landis, the United States Supreme Court was confronted with a stay order which had been entered approximately one year earlier. In light of the events which had transpired during the intervening months, the Supreme Court remanded the matter to allow the court to reassess the propriety of the stay given the current situation of the pending cases. Landis, 299 U.S. at 258-59, 57 S.Ct. at 167-68. Quoting Kaden v. Pucinski, 635 NE 2d 468 - Ill: Appellate Court, 1st Dist., 3rd Div. 1994. Webber points out that her current situation at CRMHC is in no way similar to the situation the day prior to the granting of her conditional release by the trial court. It certainly is not similar in any way to the situation the day that the Stay order was granted: Webber was living in the community.
i.      Webber also points out that the current COVID-19 pandemic and crisis is a significant factor in her life and the lives of all. The current stay order, which is not even preserving the status quo, is putting Webber’s life in jeopardy as the CRMHC is an environment where appropriate social distancing is difficult or impossible; where new patients and staff can bring COVID-19 Webber without giving her the opportunity to “self-quarantine” as the rest of society is doing. If Webber were in her own apartment, she could abide by federal and state social distancing guidelines and adequately protect herself from COVID-19. For all of these reasons, a review of the current stay order is justified. The COVID-19 pandemic was not occurring in the U.S. prior to Webber’s conditional release order being granted; the Stay order does not just fail in preserving the status quo, it also puts Webber in harms way. Living in her own apartment, Webber could adequately protect herself from COVID-19 and adhere to all social distancing guidelines for her safety and the safety of those around her.
j.      The State relied on Stacke v. Bates, 562 NE 2d 192 - Ill: Supreme Court 1990; however, this reliance was misplaced.  “A stay issued by the appellate court, formally referred to as a supersedeas, suspends enforcement of a judgment, and is intended to preserve the status quo pending the appeal and to preserve the fruits of a meritorious appeal where they might otherwise be lost.” Webber contends that there was no way to “suspend” enforcement of the conditional release order such that she would have been brought back into custody. The conditional release order is a “passively” enforced order such that no actual “enforcement” is required; rather, Webber is allowed to live in the community until such time as 1) the 5-year order expires; 2) Webber successfully petitions for a termination of the order and unconditional discharge; or 3) the State’s Attorney petitions successfully to the Court to bring her back into custody on a finding that she has not followed the conditions of her release. Bringing Webber back into custody is an “active” process that requires at least 3 steps, and not merely the issuance of a stay order: the granting of the stay order; the issuance of a warrant directing law enforcement to seize Webber; and the actual carrying out of this warrant by law enforcement. This situation is not merely a suspension of monetary payments as in the case of Stacke.
9.     In compliance with Illinois Supreme Court Rule 315, Webber has attached a copy of the order of the Appellate Court denying her motion to vacate. However, as she does not have available to her the Record on Appeal, she cannot include any information, documents or references from it.

WHEREFORE, Webber prays that this Honorable Court grant her petition for leave to file late and appeal to the Illinois Supreme Court and hears her case against the granting of the Stay Order by the Appellate Court, 2nd District.

Respectfully Submitted,

___________________________________                        Date: 5/1/20
Marci Webber, Pro Se
Marci Webber
775 Pershing Ave. #7
Glen Ellyn, IL 60137

Presently at,
Chicago Read Mental Health Center
4200 N. Oak Park Ave.
Chicago, IL 60634

[1] . “Incompetence” Legal Information Institute. Cornell Law School. .

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