his seat on the bench by fraud and the unreasonable assistance provided by posting fiction councils who allowed kelly's petition to languish in the trial court for twelve years during which they utterly failed to shape kelly's claims into proper legal form i can start with whichever of the issues your honour's are most interested in or if your owners have no preference i'll i'll start at the beginning on trial for his life and represented by the public defender's office hired a private attorney alexander salerno to represent him on a day on which the case was set to go to trial but i would note a day on which the assistant public defender representing kelly was not prepared to go to trial that private attorney attempted to appear on mr kelly's behalf the trial judge refused to allow him to do so even though he requested only a continuance of one month and the continuance and that after the judge refused to allow the private attorney to appear because he wanted that continuance she then did not request that continuance she does stage in her affidavit that she was not prepared to go to trial she had not investigated the case properly and that she went to the scene with mr kelly after the first day of trial was already over deal with both of you know to my knowledge you know unfortunately appellate counsel did not importantly this private attorney attempted to appear on mr howe his behalf and was not allowed to do so  that it makes no difference your honor the crux of the problem here is that a private attorney arrived was ready willing and able to represent mr kelly he asked for so it was set for trial that day and i believe it was up for trial once previously as well but a one month continuance is is a short amount of time and a mere inconvenience to the court or to the parties is simply they didn't say he was unqualified tears as they said he could say that given and this supreme court in the goodman vs world case the supreme court found that an individual who was planning to move to a particular judicial subcircuits but did not live in th judicial sub circuit when he filled out his statement of candidacy was not constitutionally qualified to be a judge is the only constitution requires as one of the qualifications for judge that one live within the unit which selects him the court in good men because he came to his office in violation of the constitution in a manner threatening the basic objectives of the constitution which actually provide qualifications for those judges several courts have found that  of our argument on this point i'm as i was saying before we had to both that there's a substantial showing of a constitutional violation and also that that mr hayes conviction and sentence are void because i have the fraud and that's absolutely what the de facto official doctrine involves but notably the writer case involves some individuals who were named who were appointed to be judges in military courts who were appointed in violation of the appointments clause of article three of the federal constitution and in that case the the united states supreme court held that the defacto official doctrine would not be applied in those cases and those judges decisions their judgment would be invalidated because public policy could not support appointing judges in violation of the appointments clause of the federal constitution i'm the right of seem to the constitution that's what we have here we have a judge gaining and maintaining his seat by fraud he's not constitutionally qualified he lacks one of the three constitutional qualifications to be a judge and not only likes it he lies about it to me to gain as you just said they discussed the de facto official doctrine they also held invalid the acts of the officials in that case who were appointed to a commission were pointed to a commission that was created without constitutional authority created and those individuals were placed on the commission without constitutional authority and so again as here we have a judge to lacks a constitutional qualification to be a judge and his place it becomes a judge only by his own fraud because he has lied about that qualification from appointed without constitutional authority does not fit with with public policy we cannot have we cannot abide we can't validate decisions acts of officials who lack constitutional authority and again  because he lacks that the constitutional qualification to be a judge kelly was deprived has made a substantial showing that he was deprived of the trial before a properly constituted tribe you know if there are no other questions or any questions on the good morning chit mahoney on behalf of the people of the state of illinois the first issue argued by counsel was addressed as a denial of the right to counsel of choice the actual issue on appeal is ineffective assistance of a for raising the issue of whether he was denied the right to counsel of choice and in this case there was nothing in the record for appellate counsel to see to raise that issue now counsel again said perhaps should have gone out and gotten those records but that was race for the first time in their reply brief and was not the issue raised in the brief before this court and in this case the record clearly indicates without any official finding that what allegedly another attorney showed up to represent him at this point enough was enough it was time to proceed with the case it was a very simple case it was not a complicated case you did not need to bring in a throng of witnesses for this case and the judge thought it was for what it was and denied that request moving on to the other issue raise here today this case is the exact case officer doctrine is designed for what we had here was a duly elected judge who whose election was certified who was sworn and took the batch whose authority was submitted to  out for years by people who believed that he was a judge there was no problem with jurisdiction in this case there was no problem with him exceeding his authority to hear this case impose the different way remember the supreme court had appointed him and recalled him three times perhaps he would have been reappointed but that really is relevant the bottom line is in this case yes he did lie no he did not live in the subcircuits he are you familiar i am familiar as writer writer is a unique case it was a timely challenge in that he raised the issue during the trial itself and they spoke about it and it had to do with the appointment clause and the united states supreme court in in analyzing that clause in their class only said in this case with this timely challenge we are not going to apply the de facto doctrine here that and in illinois are illinois supreme court has specifically addressed eligible eligibility issues in their rush case from one thousand nine hundred twenty eight which actually is pretty interesting case not identical to this but what it was you had two women who were appointed one was an election judge one was a clerk and in in there are positions they did things that were wrong and they were charged with contempt and time of sentencing they said oh wait a minute we can't be found guilty of anything and sentence because where women and this appointment was for men only so therefore are were not eligible for this in the court said you know what we appoint you were appointed to this position you undertook the duties of the position we all thought that that was right that you were doing what you were supposed to be doing and we're not going to allow you to rely on the eligibility requirement to prevent justice being done in this case for what you have done wrong in that capacity n o i in neology eyes in that to this case we had a judge who was elected the election was certified he was sworn in he came into court every day in people stood before him every day for eight years and everybody believed that he was a judge and this is exactly what the de facto doctrine is for if the court had jurisdiction which it did personal subject matter he didn't exceed his authority there was nothing else wrong here the de facto officer doctrine applies here and his orders should be given to fact of possible and shy of anything else that there's nothing else that has been alleged that was improper in this case the fact that he was ineligible for this position should not be weighed his decision in this case fining the other way is a drastic measure a drastic measure and when we have someone here who is qualified in every other way and acted properly in every other way the defacto officer doctrine gives this court the ability be decided the court to not lose jurisdiction based upon the person who was sitting in the back which the court had jurisdiction over this case there was nothing else wrong with this trial and in terms of the drastic measure as i stated we're not just talking about this one case facto officer doctrine for a reason it's to protect the system it's a practical doctrine it's firmly established here in the state of illinois it's a safeguard for this type of situation because we have a system made up of people people who do things that are wrong and it gives a court and opportunity to a from what is right  avoid judgment ok and he has failed to point to anything else that went wrong with his case that would make this an injustice to him other than the fact that the person sitting on the bench was ineligible to sit there even though everybody thought that he was how ironic that there was an element of boyd in the case that you heard before this one the chaos that that follows this idea that something that we all rely upon that we all thought was true but now it's earth and he sent to jail based on facts in which he was found guilty beyond a reasonable doubt in a court that had jurisdiction over the subject over the person in which there is no other problem supporting those allegations as true unless they are positively rebutted by the record and credibility determinations of premature they can only be made at an evidentiary hearing so many complaints about the evidence supporting mr kelly's claim that he was