justices of the court district of public before appreciate your attendance just fine with caution for everyone if you have a cell phone and i know you do turn it off right now please make sure it's elected with one assigned member and they are looking from various places in the district the fourth district runs from pontiac livingston county to the north all the way down to jersey county and to vote borders east and west of the state so we cover a lot of geographic area and our courts usually pads oral arguments three to four times a month so we're glad to be here today i mean to go back and let the judges know that we're ready to get started the feeling we'll have all of you rise once the judges are walking onto the bench and then we'll have you be seated when they sit down so thank you again for being here this next case is case number four das seventeen dash zero zero two eight donavan six verses mickey griffith appearing for the opponent as attorney kevin sanborn and for days before the troth court during that time evidence was presented and evidence was presented of what we term as harassment from each the petitioner and the responde bore out that the respondent was provoked by the petitioner into his actions he responded then harassed the petitioner the relief for the harassment are the stalking no contact with visions during the after the hearing the judge ruled that despite the harassment that was on both sides he ruled in favor of the petitioner in this particular case granting a two year order of protection suit me sock you no contact order and set off for four fees to a later date during that time the petitioner filed a motion to vacate the judgment explaining again our position of something i would like to call a doctrine of unclean hands or a similar doctrine to such a such that harassment did occur in fact he responded admittedly to such during the trial during the hearing scuse me he admitted to various forms of what would under the statute be cause for grounds for harassment at least on two different occasions the premise of that harassment though is that he was responding to harassment from the petitioner when did it all start because from my memory of reading the case it went back at least a couple  initial falling out between the neighbors and they were neighbors in this particular case started back in two thousand and thirteen where there were some dispute about neighbors taking side against neighbor some point time during that  you respond its properties essentially land locked cannot be accessed yet but through the petitioner's property and there was an easement of a driveway so the responder could access the property there was a dispute among that it was a between the parties goes back months and here even years what do you do do you have to go back to the initial act and figure out who it was that initiated the  first contact that then provoked the back and forth to determine whether that party couldn't can get a stalking no contact order and the other one can't in this particular case the harassment just as the spam back years and also spam to the contempora us time that the partition or alleged in her petition the respondent testified that every time that he harassed her he was responding to some sort of harassment in the period of time would be would  case and there you're talking about a contemporaneous reaction to the self defense but here you're talking about what based on what i read would be actual actually days that would pass between these acts or perhaps meant between the parties and i would concede your honor that sometimes there would be time passing bits to between the initial harassment in the response response of harassment but in this particular case wrong they do not have clean hands the courts are put in place so that people can get together justice in this particular case you cannot have justice or be fair if the person who began the wrongdoing ends up the victor to further harass and for the wrong do the we have not only in self defense doctrine because in this particular case but we have you know i think the court also talked about it we have a statute with virtually no limit the trial even surveillance by law enforcement or business owners could be considered harassment given the broad nature of the statute following up on the question by justice harris you how far back do you have to go you're saying that well in this case you just go back a few days but in reality you said this started back in twenty thirty i think the falling out between the neighbor started out twenty thirteen  harasser go back to there to find out who was the initial aggressor if you use your self defense argument or who is the person who started the problem if you use your own clean hands you know that i believe the initial falling out began in two thousand and thirteen but the originally in this case you have a lot of litigation both in the civil room and in the stocking the order of protection that bled into as the petition alleges in the record l void there was a request for an emergency order that was denied yes or reason given i wasn't a part of that it was an ex parte it was ex parte proceeding there was no defense counsel to reason why  emergency circumstances to warrant such remedy counsel let me ask you a couple questions about all this is my understanding correct that there is no place law point the precise point at issue here whether the unclean hands doctor applies to stalking the contact order that is applicable in this case none that i could find your honor ok and i would also assume that you cannot be found by the petitioner in this case i now i'm as your brief shows you're familiar with the notion for the unclean hands doctrine has generally not been favored by the courts number one and number two it appears that this is a doctrine which has arisen primarily in the context of equity proceedings where what's at issue is paper transactions a claim of well you committed fraud upon me see you shouldn't be able to get specific performance  such this seems far afield from what we're dealing with here it's not an equity it's a statutory pursuing a statutory remedy it's not really an actionable matter plus  rule what the court's concern was about timing that would be determined by a case by case basis for the statute itself has no defense and it doesn't recognize any defense i would assume that even if it was contemporaneous conduct same t here and the respondent can say in defense of the action well you know i didn't initiate it you know she did isn't that the equivalent of what you're saying should be done in terms of the application of the unclean hands doctrine not necessarily even the aggressor can say well i didn't consent to what and what they did back to me when i was the initial aggressor sure i may have called names but i did not give  consent to call me names or harass me further also it goes on to the look of the timing is as well as the court as has rightly looked at these some of these acts happened a few days in or salutation to what happened the respondent a few days prior what we're really boils down to in our mind is what you have here is a dispute between two neighbors that goes back years they bring the dispute to the court it is a tit for tat he just harassing the other one benefits from filing first and being victorious first  have the statute excludes mutual orders of no stocking no stopping no contact orders so then we have a problem of it's a race of the court between two parties for lack of a better term who hate each other  in response to being harassed themself though and that is what it believe the evidence even bears out even the petitioner did say that she would say something sometimes she has plenty of motive to start the harassment we have between the two parties we have also the fact that the previous order have been vacated and that the criminal charges have been thrown out the petition who said that she was so afraid of the respondent even showed up on the arraignment date as is her right of the criminal trial to just to see just i would say argued to gloat about having mr griffith arrested and charged with a crime so we have here a specific example of neighbors not getting along with each other never gotten to violence and i believe even the courts concerned that they would be at each other's throats if you did not  order this there are laws on the books already that stop physical violence even the type of harassment that may have occurred in this or did care in this case but even the criminal justice system refuse to get their hands into this probably because they saw this was an actual situation were both parties were in the wrong so in essence if both parties are in the wrong the courts cannot be the sword instead of the shield they should not be taking sides and what is essentially two wrongs isn't there a concern expressed by the legislature by enacting the stature that when things are really ugly especially between they bers like here can hardly a boy to each other someone's always moves away that there's a potential for the situation to escalate to literally violence or some other dangerous sort of behavior so that the courts to intervene to do something about this to address it so that way she doesn't vote in that case i would look at the remedies available for violation of the order their criminal remedies of violating the clientele i meet her i'm perhaps i have been clear i'm talking about the reason for the statue in the first place and the authority for the court have to hearing all this in the court with my sympathy what they hear two days worth of testimony about how each one of these people was so awful and other people being called going back to my trial judge experience is a must have been a nightmare is to have to listen to all this but you know they're what is surely there must be some role for the court to try to disputes got a real dispute here the way and look you're essentially saying is these people are so awful to each other that the court just ought to back away and say you work it out can that converse is true there were previous acts committed by petitioner that could have allowed for your client to obtain a stalking no contact order is not a perfect analogy but in domestic battery cases the you know the police officer arrives and both the husband and wife are time in which you have two parties committing acts against each other that individual a constitute conduct that's controlled by the act here so you know just because you know a period of here and i see the court's point in the analogy is the court suggested isn't the same as we have here we don't have a law enforcement officer determine whether or not they're probably cause to arrest somebody in this particular respondent party based on the fact that the judge found there are no defenses according to the act in the trial judge just addressed some more points says that the type of cases all the time where neighbor turns against neighbor and it becomes a contest of which neighbor can make each other's life worse and i i understand that the courts proposition in this case but maybe it's better for the court not to be the arbiter of neighbor to neighbor leaves but rather to be what is fair what is just not to be the prophylactic against further violence we have many laws that prohibit violence and are the prophylactic but in this particular case i believe the statute is virtually unlimited needs to be limited by the court because the legislature has a reason this particular case  good morning or honors may please the court counsel your honor is with respect to the first issue i would make three main contentions number one that the trial court did indeed consider evidence analogous to unclean hands number two that even if the trial court had not done that that would have been within the sound discretion of the trial court and thirdly that the trial court did not find as counsel contends that it was without authority to apply the doctrine of unclean hand to the first contention your honor imposing right there yes your honor if the trial court did not so conclude should have it should not have your honor i mean this this goes to whether or not the equitable doctrine of unclean hands can be can be applied to an equitable remedy my there is counsel no case law with respect to the no stalking no contact act but they no stalking no contact that does reference that it's an equitable remedy being sought it is and the doctrine of unclean hands is well settled under illinois appellate case law and i've cited many of those in my brief is an equitable doctrine that can be applied stalking no contact act are accountable so but all of the evidence that the respondent desired to present concerning the petitioners conduct was indeed allowed and considered by the trial court in fact the respondent was the only witness who testified on behalf of the respondent side and of the eighteen specific occasions of stalking that were presented by the petitioner the respondent admitted six of them denied only three of them and with respect to the remaining nine presented no testimony or evidence whatsoever to rebut them but with respect to the episodes that he did admit the respondents excuse was the petitioners conduct and the respondent was present as much evidence and testimony as he wanted on the petitioners conduct the respondent testimony which was the only testimony offered concerning the petitioners conduct included that the petitioner had been videotaping him parties had have to traverse all the excuses were about in considered by the trial court in fact the trial court made very specific findings at the closing of the proofs and closing arguments and of those specific findings was that the petitioners conduct was reasonable and the trial court specifically stated in that finding and i think this is very important because it goes to the heart of whether the trial court considered the equitable doctrine of unclean hands the tr court stated and i find that her reactions are not the reactions of an unreasonable person i believe that she is acting reasonable and reacting the way that she has to these particular events the trial court went on further and it's specific findings at the conclusion of the trial to find that with respect to the respondents conduct respondants conduct occurred for no other reason other than just pure minas there was the trial court then went on to to to describe the petitioner in her husband's testimony concerning the emotional distress suffered as that testimony being certainly credible the trial court further described the respondents conduct as hateful think the first issue presented on appeal is indeed a red herring your honor the trial court in fact did consider evidence of the doctrine of unclean hands and specifically found the petitioners conduct to be reasonable after all when we are talking about whether the equitable doctrine of unclean hands was applied or asking the question as to whether or not the petitioners conduct was evaluated in considered by the trial court and indeed it was does your honor and so doesn't a court in essence make that determination as to on clean hands but because of what the statute requires the trial court has to determine whether the contact w there poured there's a starting point here and so in this case the trial court made the determination that the respondent initiated the contact that's correct your honor in with respect to that finding and all of the other evidence to support the contentions of the petition with respect to the stocking up a so it's the trial court found that the evidence was overwhelming and that was the term that the trial court used overwhelming your honour's even if the trial court had not considered the defense of unclean hands that was completely within its sound discretion to do so it's well settled in illinois that with that it is within the sound discretion of the trial court as to whether to apply the doctrine of unclean hands and that's the trial court's decision in that regard should not be disturbed on appeal absent an abuse of that discretion and let me ask you a question about the ground so mr sam bourne argued that one of the problems with this statute in a situation where both sides are engaging in bad conduct is that by not applying the unclean hands doctrine were essentially rewarding the person who wins the race of the court house isn't doesn't he have a good point about well i imagine a case where both both sides were at fault and there was misconduct on both sides and it couldn't be determined who initiated it and who was at fault and then the net would be a problem but in applying the doctrine of unclean hands in this case the trial court found that in fact the petitioners conduct was reasonable and the respondents conduct was done out of pure meanness and hatred and in fact we didn't even have testimony from the respondent the the statutory language that justice harris pointed out about initiating the conduct and in applying the doctrine of unclean hands you're determining which one was at fault and which one wasn't so regardless as to who filed first or if there was only one person to file you're still making a determination at the trial court level as to who was at fault and who wasn't and like in this case if there is a finding that the petitioner was acting reasonably in the respond it was acting out of pure meanness then of course there would be a finding like in this case in favor of the petitioner but i think if you're taking those considerations into account as the trial court did in this in this case it wouldn't matter who filed f council argues that the trial court felt it didn't have the authority to apply the doctrine of unclean hands and there is simply no support in the record for this the respondents attempt to manufacture support for this petition come from a motion to reconsider hearing that was held two months after the trial prior to denying the motion to reconsider the trial judge engaged in a general academic discussion about his perceived problems with the act as counsel mentioned the trial judge talked about how there is no specification with respect to surveillance in that maybe the trial judge or someone else could be at a stop light with red light cameras or in public where a security camera is present and if that person reasonably feared for what was reasonably suffering emotional distress because of those situations that may be in a stocking no contact order could be obtained against the police or the county or the state and as that as the trial court was having this sort of academic discussion the trial court said you know what i wish should i just say a plague on both your houses you're both at fault but then the trial court went into specifically it specifically addressing the argument that respondents counsel is making concerning the equitable doctrine of unclean hands when the trial courts said you know essentially the petitioner is arguing or the responded as arguing that the petitioner can do no wrong that the petitioner has to be perfect and that's not the law and the trial court was right that isn't the law of the doctrine of unclean hands it's well settled in illinois that in order to prevail on the equitable hands doctrine there are the little doctrine of unclean hands the party making the contention must prove that the other party is in fact guilty of fraud misconduct or bad faith towards the party making the contention again the trial court found that there was no fraud misconduct or bad faith on behalf of the petitioner the truck court's finding that the petitioner acted reasonably necessarily implies that the petitioners hands were not clean in fact at the motion to reconsider hearing i reminded the trial judge that he had made no findings whatsoever that the respondents conduct was retaliatory in nature at all after i spoke counsel respondants counsel had the opportunity to speak and then the trial court spoke and there was no disagreement with that statement that i made because it was supported by the record in the specific findings made two months prior by the trial court with respect to the second issue the unclean hands doctrine should not and does not bar entry of the plenary order respondents allegations of unclean hands are simply not supported by the evidence the trial judge properly found that the petitioner acted reasonably and the  the trial judge stated as well supported by the evidence in order to prevail on unclean hands defense the respondent would have to prove that the protesters conduct rose to that level of bad faith fraud or misconduct and the truck petitioner would also have to prove that with respect to each and every incident of the notice of the stalking occasions that were proven by the petitioner in illinois misconduct on the part of a plaintiff that will defeat recovery in a court of equity under the unclean hands doctrine must have been conduct in connection with the very transaction being considered or complained of and must have been misconduct fraud or bad faith toward the defendant making the contention and this goes to the discussion your honour's were having with counsel earlier about you know when do we start the timetable well the ball vs mcdonald's corp case that i've cited from the first district and few other cases addressed this issue in talk about that the unclean hands doctrine has to relate to the very transactions that are being complained of in this case all of the stocking episodes that were set forth in the petition of the petitioner and in the testimony and evidence brought by the petitioner and credibly the respondent claimed in their brief that the trial court found that both parties were at fault the trial court made no such finding  is referring to the comment i made earlier from the trial court two months later at the motion to reconsider hearing when the trial court was engaging in a general academic discussion about the act ng concerning the act the judge at the motion to reconsider hearing actually ultimately found that the findings of the court from two months previous were ample in relation to the evidence the trial court specifically stated at that hearing the testimony was ample in relation to the in relation to the findings of the court and the motion to reconsider is denied obviously those findings of the trial court that the trial judge was referring to at the motion to reconsider hearing included the findings that the petitioner acted reasonably and that the responded and acted out of pure minas and hatred with looking at the evidence more more particularly the evidence in this case that the respondent presented testimony on another that the petitioner presented testimony and other evidence on was overwhelming as i mentioned nine specific dates of stalking by the petitioner went completely unreported eight of those episodes included eight specific dates where the respondent shouted insults hurled obscenity these and played  music at the petitioners home the night that the so did the petitioner testified was actually the most frightening up a so to her on april third two thousand and sixteen she sat down to have dinner and looked up and the  respondent was staring at her directly through her window and it frightened her very much because of the respondent had never gotten that close to her home before with respect to the episodes that the petitioner did admit  i'm sorry that the respondent didn't at the respondent admitted that it was hid his voice and audio recordings played before the court on june thirteenth two thousand and fifteen where the respondent was shouting obscenities hurling insults and saying very insulting things the petitioner's mother had just passed away the respondent was shouting on this occasion and others that you killed your mother in law for the money the responded admitted making those statements and that they were directed towards the petitioner and that he was playing music directed towards the petitioners home the respondent also admitted that on christmas of two thousand and fifteen he drove by the petitioners home kicked up gravel at her home on purpose and then on the respondent was asked thirdly on september two thousand and fifteen if that was another day where he shouted obscenity as her old insults and play loud music at the petitioners home respondent testified that he couldn't recall whether on that day he did that his attorney then asked him if it sounded like something he would do and he responded i might have did it fourth and fifth the respondent emitted placing cameras on his property in july and june of two thousand and fifteen directed towards surveilling the petitioner the respondent claimed that they're only pointed towards the easement area but they were still pointed in that area to surveil the petition respondent also admitted six that he on occasion drove by the petitioners home and kicked up gravel on purpose at her home the only three rebuttal is by the respondent were very weak  bottles one of them was a rebuttal of the petitioners testimony that the respondent outside of the courtroom walked into the hallway and extended his middle finger towards the  said he did not do that but then we had the courthouse deputy come and testify in rebuttal and she said she was there and saw him do it the respondent also denied coming out of the court room on in september of two thousand and fifteen and charging at the petitioners husband respondants claim was that he was just walking out of the courtroom fast the respondent further denied that on december sixth two thousand and fifteen he drove by and picked up rocks at the petitioner's home but he did admit doing that on other occasions your honour's as the trial court put it the evidence in this case to support the no stalking no contact no stalking order was overwhelming we only had to prove two instances under the act and i submit to you that we proved eighteen but at least fifteen there were nine unrebutted incidences and six were admitted so with that you in instigating those improper actions and when looking at the court i think it's good to know what the court actually said during the motion to vacate the court actually said but i agree things need clarification whether by statute or by this body if the east court also noted that you opined that if there are no protections if you're not there are no protections and the council then went on about transactions the transactions in the mcdonnell case are financial transactions contemporaneous and sometimes those actions and transactions continue on for days months or years there's no set time limit for transactions as the court asked be previously because by a case by case basis what we have here are two litigants who harass one another one went to the courthouse and found relief in reserve warded for their harassment the you if we if we aspire to the motivations of why someone files a suit and wants on doesn't file suit then we are creating the very monster that we're trying to avoid in this particular case which is one aggrieved party in a usual situation getting the idea there however they give the idea they talk to a lawyer they hear about it on t v or some advertisement or or their friend says hey try out this it works for me disempowered because he couldn't find anyone to help him record will no he also inform police about the harassment it was going on that he suffered at the hands of the petitioner and the police in that particular case didn't make any arrest either much like as the record shows that the petitioner also called police didn't find satisfaction with the police and for one reason or another went to the court house we're creating then if we look at the intentions of why one party didn't follow party did file we are creating the monster we're trying to avoid here which is we're not rewarding the first person who says time to go to court and we need to have more of a geisha in our society so if we can see the bad acts in this particular case and the transactions that are referred to in the macdonald case are financial transactions which the court notes can take months days years to trans there we're not really talking about a bright line rule about how long it takes for these bad acts occur or these transactions were actually talking about either how bad the harassment was whether one party was worse than the other we cases all cases irrelevancies are burned away until we get to the fundamental truth of the matter and a fair decision brought i cannot think of one thing more unfair then a wrongdoer profiting