state of marion wilson i'm here today to ask the court to reverse the appellate court opinion in this matter and to reinstate in its entirety the trial court's rulings this case involves a woman who is now in her ninety's marion wilson and karen bailey who while acting as marianne's power of attorney exploited three hundred thousand dollars from her which were all intents and purposes constituted close to the totality of her liquid assets this was done at a time when marianne suffered from dementia among other disabilities pending before the scores are issues involving the interpretation of seven thirty five i l c s five slash two dash one  a three and in particular a three to the substitution of judge for cause provision which is  that mean when there's a request for a hearing for cause the thing must be it must be transferred to another judge now and you are the criminal statute nor the cases that i've referenced in my brief are you saying that here that there is required that are pleading requirements that are required required by the statute in that yes and they weren't satisfied and therefore  it says any time anyone files anything no matter how deficient under the statutes in acted by the legislature that you can stop whatever proceedings  so that it can be transferred to a separate judge which may be able to handle it in a day or week or month it adds it takes away from the statute that the legislature enacted a certain sense of good faith because what you're doing is removing any inhibitions for all intents and purposes for any attorney at any time she to fire the petition for cause and stop whatever proceedings are then pending before the trial  judges are authorized to review a pleading just for the facial appropriateness under the statute so even though the i think that the case law which goes back many many years and i'm not just talking about the threshold cases i'm talking about the criminal in the civil cases which for example require timeliness that's not included in the statute but i don't think there are any cases that would find that a a motion for substitution of judge for a cause which was brought for months as this one in the priest before the court and that the judge if the judge in federal courts can review for that facial adequacy and i don't think anyone in any of the cases that have been is suggesting that it's a high standard but absent some india shell could face some standard it really does just open the floodgates and it we go to another country to not but not necessarily in fact i think the concept of the word threshold derives from the cases that have been decided under the criminal statute  prejudice against me because i have brown hair i'm not sure that the judge prejudiced against me because i have brown hair and i'm glad you brought that up in this case wasn't there or representation way th i don't know i don't think so because i think this there still wasn't an affidavit and there weren't specific allegations and it was untimely i had i know of no cases and have read no cases either civil or criminal which is found that a petition of this nature can be filed four months after the alleged prejudice they all say that they must be filed at the first available moment but in terms of your question about the allegations that the judge was acting is inadequate the issue is you are creating a situation where in numerous guardianship cases because this comes out of a guardianship context in which judges are faced with crisis situations and quite regularly and according to their common law in statutory obligations do ask ask probing questions they need to the their primary responsibility is to the safety welfare of the disabled person or alleged disabled person and in in this context if you read the  case and take it out of the guardianship context it's it creates the possibility for a tremendous amount of problems with in conflicts the other obligations of a guardianship judge allegations of this case are stream and sometimes extreme facts make bad law but the reality is that marion wilson and her elderly companion clifford service were removed from her home by the department of aging by and by a a nurse who was employed by the department of aging and removed and taken immediately to the hospital where they were both spent the next several weeks  city of quincy weinberg and it also talked about the statute and reference the language then in order to be title to a hearing before another judge and whether or substitution for cause is warranted the motion must allege grounds if taken is true would justify granting a substitution for cause so they are referencing section three two for the most part the cases don't specifically discuss three two and i think that's one of the things that's created the confusion and has led to this case being before this court now is that there is no or very little interpretation of the level of specificness that's required in these pleadings but clearly the legislature intended there to piece a level of adequacy of the pleadings since the statute specifically intends that if that the motion must allege grounds that if taken is true would justify granting a substitution for cause and that's what quincy says the other case and quincy also found that  is distinguishable because it specifically dealt with a situation where substitute judge or second judge after first judge withdrew from the case i think you went to  court found that a petition filed which alleged that the second judge had had a complaint filed against him with the judicial inquiry board by the attorney representing the petitioner was adequate because it pled cause again a motion must allege clams that if taken is true would justify planting a substitution for a cause and they were citing to a finding that there is sufficient facial adequacy to the petition before it's required that a trial judge transfer it to an instances one if we should reverse the appellate court or two if we should affirm the appellate or remanded to the trial court or a hearing and if the judge hearing the motion for substitution determines there was no cause what's what's the effect of matter goes back to the trial court for to then assign for a separate hearing that time should a judge have to go through everything that's already taken place so do you think we should deal with him reinstate those order absolutely a well if the judge finds that the substitution was justified after it's been sent but if it were sent back to the trial court it with you know another judge found that then another judge is going to have to be involved in the process if the judge is found judge connors was found not to have been biased then and i think there are plenty of indications that she wasn't because i spent another two years as to counsel dealing with the questions that were presented in this case and we all went through a full trial that lasted many days and there's also been a criminal proceeding in which motion for an emergency scheduled for the next day now i was an act that specific but i read all the transcripts and now that the fact that she expressed an opinion in the examination of her made statements following that examination would she then be predisposed to continue with those feelings at another perhaps improper should not have been conducted i don't think i'm not i don't think it was an improper purpose and i think a pick that's the second primary issue in this case is that if it was an improper purpose then created a situation where court in the first case was the position taken that everything should be put back to the status quo immediately that mrs bailey should be able to  be in charge of health decisions and financial decisions for the wards who'd been removed from the house and the fight and after there had been a showing that a significant bank account had been depleted by ness daily kos i'm sorry but your time is so thank you if you if you ever want to make a finishing statement you feel free to do so you're pretty much close to being  this is one of those factual cases that creates a conflict and requires an interpretation of how in particular a guardianship judge in a difficult situation where there are serious allegations of abuse can pursue their obligation to  an emergency basis determine what should be the an issue well being of a alleged fort or disabled person and the extent to which that same court can review a section one hundred one three to petition prior to making a determination prior to sending it to another judge and whether there are any limitations on the legislative language were curative steps taken by him to correct that the tickler base there were two bases for bias alleged by him in the petition which i feel was very well taken one did not need an let's let's keep focused or a very sure i'm going where the curative steps well and let me before you answer that the statute says the petition shall be verified by the affidavit of the applicant shall be verified by the affidavit of the applicant so my question is are we even dealing with a petition here even before we get into whether the substance of that petition may or may not fit within the statute and whether or the two bases as i was saying the two bases in the petition were both matters of record one bases which i thought was especially serious in which the appellate court agreed and justice mcbride's opinion w examined by the trial judge the two bases in his petition were number one that the motions that he came to court to present when june eighth on june eighth two thousand  me i'm sorry in this case they were uncovered by the trial very questionable actions on the part of your client i don't believe that's correct was a finding that question we my my predecessor australians do this is there a factual issue in this case my predecessor attorney requested a factual hearing that's the problem th elderly woman and the chronology is that the petition for substitution of judge for cause was filed october sixteenth two thousand and six at that point no factual hearings without requiring the response of pleadings or setting it down for hearing and the court rigorously examined him and frequently interrupted him whenever he attempted to speak on behalf of his client and this went on was filed we got to the point where you said no none was filed the curative action was taken so far i believe your answer to that question is that the curative action is that it was in the record is that the answer to the question that there wasn't an no it was not it was prior to that time he couldn't ology your honor is that the petition was filed october sixteenth two thousand and six and was not ruled upon by the trial court until sometime in november in that interim period mr braden when attaching an affidavit was brought to his attention i believe took several different curative steps including attaching a copy of the transcript there's probably count point counterpoint as to whether the affidavit was sufficient or the curative steps what that was sufficient is it your position that in a case where an affidavit is not fun no curative steps taken is it your position that that petition once it's filed even though some of the steps in this case the affidavit not been filed in my hypothetical with respect to the statute are not covered is it your position that it each and every one of those cases there is a requirement of the trial judge upon filing a petition deficient or not to send it to another judge yes right now that's not only my position but th there have been and you would agree a number of appellate courts that are found opposite to that and have been if the statute has not met the requirements of the statute not met allowing the trial judge issue to to rule on the motion beca a deficient petition per statute could be filed i mean couldn't shenanigans go along with someone who perhaps wants a continuance in the case in those they're not going to get a continuance needs another day some more time whatever the situation files a petition for cause not not compliant with statute not timely no affidavit filed and now we know that judge has to go and find another judge to hear it it takes some time and it comes back isn't that subject believe that there are at the other extreme there's the al cantar case with benjamin shapiro where they're clearly twisting and turning and trying to get out of having to pay sanctions for what was clearly a frivolously filed complain here by contrast my predecessor attorney very familiar with the law and i would take umbrage at any suggestion that he would have filed such a petition for any improper purpose it's been my distinct privilege and pleasure to be a successor attorney to mr braden who was my was referring attorney in this case decision it would have said if the affidavits not there if the child not be referred to another judge either way right prejudiced will cause i think as strongly conflicts with the guiding principle of impartiality might my client was entitle it as everybody going to entitled to a fair and impartial hearing and  is sufficient insufficient on its face so you're you're not arguing that you are entitled to have a full blown hearing on the case regardless of the i'm not sure i understand your question my question is can this judge that gets this motion second judge not the writ not the original that the jury's first made and that judge look at the petition say this isn't sufficient it i suppose they could i suppose they could grant leave to a man i suppose they could permit him to sign an affidavit at that point i suppose there are many actions that they could take all guided by the principle petition it gets referred to another judge justice which gerald correctly noted that in criminal cases that's universally done if you allow the initial judge to make an initial screening that can have as it's of perhaps unintended effect that if a biased judge gets to decide that she cheer she gets to keep the case then you've defeated the whole remedy that's in the statute and that's what occurred here  county judge connors didn't want this to go to another judge and said well you don't have this and then mr braden came in and i believe did certain period of his work this is where you don't have this you don't have this so the end result was it never got to a second judge for here right now because the your position counsel that the requirement of an affidavit is a bit tricky requirement of the state no it's not it's it's contained in the statute and that's the law just like in a replevin case the complaint has to be verified although that's not determined by a judge maybe the clerk's office looks at it maybe they don't maybe it's brought up the first time a comes then it's an important requirement into  is the legislature says it's there now who decides but it's a requirement that you're about to say that the judge that is being accused of bias in the petition itself  but i believe that the second judges it is the correct judge to make that determination because if you don't have a procedure like that and that's the procedure the that the next question you mean what difference does it make the second  makes sense that the looks language and sub paragraphs three states that went up the titian is filed a hearing to determine whether the cause exists and that specifically says cause exist in the petition so it would seem to me that that sub paragraph would include the second judge not the first once the petition is valid and can move forward the second judge will hear whether justice in the case of williams who didn't think that procedure made sense either doesn't make sense to me didn't make sense to justice mcbride didn't make sense of justice k help i didn't make sense to the judge that wrote the dissent in the sydney williams case which was subsequent to ours now it doesn't make sense as mr plumper i appreciate your comment with respect to the prior attorney on this case and how your belief that he wouldn't do anything to prolong matters and th he was knowledgeable of the law but you understand that any ruling coming out of this or would would definitely encompass other cases outside of this particular attorney working on the case i mean you certainly understand that very question time and as a as as we look at this verified petition by the affidavit i mean the appellate the the legislature could have easily said matters of record they didn't say matters of record in the affidavit i suppose there could be there could be counteracted davids or whatever or the trial judge would take a look at what was in the affidavit that counsel prior counsel put in the affidavit as to what one matters of record and knew that they weren't of record if it was in the affidavit made decision so i think going back to justice burke's question i think we keep going round and round you just think this even th affidavit requests requirement well let me ask it look as if this way how are we supposed to interpret understand your story construction the don't we look at the plain wording of the statute yes that's what justice m  matters that could be remediated after there was the finally without the affidavit is that anywhere in the state i think your honor misconstrues my argument and most respectfully very well as matters can be dealt with by the second judge justice mcbride's point in the point of just k who agreed with her in the other dissenting justice make when they quote the language of the statute they quote the phrase upon the filing of the petition they don't that route the guiding principle here is impartiality and if you have a judge that for whatever reason wants to decide a case a particular way and you permit that judge to shortcut the opportunity for the litigant to have an impartial fact finder the court can do that this is your prerogative but what i'm trying to say is i think that the owner writing concern of impartiality  impartial fact finder trumps some of these other requirements which can be dealt with and in terms of getting the sufficiency the important thing is to get to a hearing the important thing is to find out why you think this judge is prejudiced what gives you that idea let's have a little hearing here before the second judge so we can find out if that person should be disqualified or not i notice the justice freiman when found the appointment of a temporary guardian and the appointment of a g a o they are both authorized under the probate code on based on notice as the guardianship judge sees fit so these were not ex parte improper or  this actual issue that has to be of the record so it's not on the record the only fair few cation in the record is in a reply or response knew that opposing counsel five year old when the court asked for briefs on the question there was a verification on a reply or response i don't recall which and that's in the  record i want to point out that there was also never requests to file an amended petition at any time and there was absolutely no prohibition imposed by the court  giving counsel the right to do that either before or after the the pre supposed written in the hearing it taken place furthermore we talk about the record but nowhere in that record is there a transcript of the actual hearing that took place when the judge was looking to get an explanation of the prejudice in sufficient detail to be able to make a determination that it was somehow and ok this was just a deficient petition and it was a deficient petition that was filed after four months of rigorous motion were substantial  decisions and interesting lee enough although there was never a prohibition council's quiet never filed across petition for guardianship so the only petition there was the petition filed by my clients  and it was all file it was filed the day before there were multiple issues to be decided before the court including and after the position of miss also included and it's in the caption the the petition is that something we should take into consideration is that something that the trial the initial judge a targeted judge should be allowed to rule on that a factual matter that should be heard by a second trial your argument as far as  substitution of judge for of course the criminal case is they have all included a timeliness requirement is that a threshold requirement or is that issue for the judge to whom the proper that something that i think a kind judge can hear and i think there are a long series of cases in criminal cases and civil cases which have found that timeliness is or something that the judge whom the matter might be transferred should consider i think it can be a threshold matter if the allegations are so insufficient i think there's also a conflict which has been raised in another case that's been briefed here i think is a riot in which there are cases that say to bring a petition for substitution of judge for cause there must be allegations based on something external to the court room which is why in one of those cases it was reverse because the judge the successor judge had had a petition before then she dishes inquiry board filed by the attorney representing the mov t and i think actually and that case the spouse is in detail but there is some conflict about whether it's required that prejudice can only be shown if you show an external reason for the prejudice support for the prejudice and i think there are cases that go both ways on that but the primary current opinions have held that there must be an outside source and i think that's another issue that i certainly i didn't reach because it wasn't an issue in this case per se but there is some conflict in that the case also into finally in terms of a remedy there's always the same way amity that petitioners have pad in these kinds of cases going back many many years pretty it did but you also don't have the transcript of the actual hearing in which all of those things were discussed and at that point wasn't it wasn't my client i mean there were just caution on any number of these issues and briefs prepared by both counsel and and myself talking about the deficiencies so now that it has been available it's not included in the record and i don't i never understood why it hadn't been i just know that there are implications to that in terms of the case law and the original decisions of the trial  and the basis for her ruling my time is up again with qwest that this court overturn the decision of the appellate boards and reinstate the orders all orders entered by the trial court thank you very much case number one henri four eight seven