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People v. Dunson

October 24, 2000


Appeal from the Circuit Court of Winnebago County. No. 97--CM--4500 Honorable Steven L. Nordquist, Judge, Presiding.

The opinion of the court was delivered by: Justice Rapp

In May 1997 defendant, Elvis E. Dunson, was charged with two counts of disorderly conduct (720 ILCS 5/26--1(a)(1) (West 1996)), a Class C misdemeanor. A jury trial was held on May 6, 1998, in which the State was represented by Daniel Salafsky, acting in the prosecutorial role of assistant State's Attorney. There is no evidence in the record that Salafsky was involved in initiating the criminal complaint. It is undisputed that Salafsky was not in fact duly licensed to practice law in the State of Illinois, and it also appears that Salafsky was subsequently convicted of various crimes, including felonies. Defendant was unrepresented by legal counsel at his trial and defended himself pro se. Judge Steven L. Nordquist presided at the trial. Defendant was convicted of the two offenses, and, on June 1, 1998, the trial court sentenced defendant to a term of two years' probation with certain conditions attached, including a remittable jail term of 30 days. Defendant was also required to undergo counseling and to perform public service.

On April 30, 1999, counsel appeared for defendant and filed a motion to vacate defendant's convictions on the grounds that the prosecution of defendant by a person not licensed to practice law contravened Illinois law and denied defendant due process of law because the trial was tainted and illegal. Defendant requested that the convictions be vacated with prejudice.

The State argued that, although Salafsky was not authorized to practice law, defendant had no due process right to be prosecuted by a licensed attorney and that defendant failed to show how he was prejudiced by the claimed violation.

The trial court (Judge Nordquist) took judicial notice of Salafsky's conduct and found that there was a "taint that the defendant's rights were violated." The court determined that justice would be best served if the convictions were vacated, and the court granted defendant a new trial.

In a memorandum decision and order dated July 27, 1999, the trial court also denied the State's motion to reconsider. Relying on Illinois law, the court first noted that a person has no privilege or authority to represent other persons in a court of record unless such person is admitted to the practice of law in this state. See 705 ILCS 205/1 (West 1998). The court cited the general rule that, where it appears that one not licensed to practice law has instituted legal proceedings on behalf of another in a court of record, such action should be dismissed, and if the action has proceeded to judgment, the judgment is void and will be reversed. Leonard v. Walsh, 73 Ill. App. 2d 45 (1966). The court also relied on People v. Munson, 319 Ill. 596 (1925), in which our supreme court held that an indictment procured through the participation of an unlicensed person acting as a State's Attorney must be quashed.

In its decision and order, the trial court cited a number of cases holding that a judgment procured by an unlicensed person on behalf of another party is void. However, the trial court concluded that the strict rule of dismissing the cause with prejudice was too harsh and need not be applied in this case. The court determined that the better view under the circumstances would be to vacate the judgment and grant a new trial. See Janiczek v. Dover Management Co., 134 Ill. App. 3d 543 (1985) (under unique circumstances, strict rule would not be applied to dismiss the cause with prejudice so as to defeat the plaintiff's cause of action where the innocent plaintiff never consciously elected to be represented by an attorney who had been disbarred unbeknownst to the plaintiff; dismissal with prejudice reversed and cause remanded for further proceedings). We agree with the trial court's decision in this case, and we affirm.

The State appeals the trial court's decision. We review it pursuant to jurisdiction under Supreme Court Rule 304(b)(3) (155 Ill. 2d R. 304(b)(3)).

On appeal, the State first argues that the trial court did not have jurisdiction to grant relief from a final judgment pursuant to section 2--1401 of the Code of Civil Procedure (the Code) (735 ILCS 5/2--1401 (West 1998)). The State argues, in rather conclusory fashion, that defendant failed to establish a factual and justiciable claim under this provision and that he was not diligent in presenting his request for relief. We disagree. The trial court had jurisdiction to grant relief from the void judgment, and defendant presented sufficient and undisputed facts to warrant consideration of his claim. The State ignores the well-established principle that this is an equitable proceeding and that the trial court has the discretion to grant relief where the judgment should not have been entered under the particular circumstances. The due diligence prerequisites for obtaining section 2--1401 relief may be relaxed when equity and justice so require. See, e.g., Smith v. Airoom, Inc., 114 Ill. 2d 209, 225 (1986); Ostendorf v. International Harvester Co., 89 Ill. 2d 273, 285 (1982).

Furthermore, a collateral attack on a void judgment is not subject to the time constraints or due diligence requirements of a section 2--1401 petition; even where the petition is mislabeled, the courts should be liberal in recognizing a pleading as a collateral attack upon a void judgment. People v. Reymar Clinic Pharmacy, Inc., 246 Ill. App. 3d 835, 841 (1993). Here, it is undisputed that Salafsky engaged in the unauthorized practice of law in representing the People of the State of Illinois at the trial, and he thereby deceived the court. A court has the inherent power to vacate a judgment at any time when it was obtained through a fraud committed upon the court, deception, or collusion. See Hustana v. Hustana, 22 Ill. App. 2d 59, 64, 67 (1959) (stating that the court has inherent power to expunge void acts from its records).

The State next argues that the trial court erred in vacating the convictions based on its misapprehension of the law and that defendant was required to show prejudice in claiming a violation of due process of law to have the judgment vacated. The State asserts that, excepting Munson, the cases relied on by the trial court involved civil proceedings where the policy of protecting the lay public from unqualified representation was the central issue. The State further argues that Munson, a criminal case, is inapplicable because no documents appear to have been signed by Daniel Salafsky, and Paul A. Logli, a licensed attorney and the State's Attorney of Winnebago County, was the source of lawful authority for the prosecution and trial of defendant.

In a criminal prosecution, are the People of the State of Illinois less worthy of protection from incompetent legal representation and charlatans than private persons engaged in civil litigation? We think not. The State appears to ignore the clear import of Munson and grossly misapprehends the common law of this State in attempting to minimize the deception practiced upon the court and upon the public. The criminal prosecution of an accused by the State through a representative who is unauthorized to practice law can be neither ignored nor condoned. As we will explain, the unlawful participation of Salafsky tainted the original trial so that it must be declared a nullity and the resulting judgment void.

The well-settled rule in Illinois is that, where one not licensed to practice law has instituted legal proceedings on behalf of another in a court of record, such action should be dismissed, and if the action has proceeded to judgment, the judgment is void and will be reversed. Janiczek, 134 Ill. App. 3d at 545. The rule is applicable not only when corporations are represented by non-attorney agents, but it also applies to natural persons. Janiczek, 134 Ill. App. 3d at 545 (citing cases); Leonard, 73 Ill. App. 2d 45 (action instituted on behalf of individual by a non-attorney agent required vacatur of judgment and dismissal of the suit); Marken Real Estate & Management Corp. v. Adams, 56 Ill. App. 3d 426 (1977) (proceedings were a nullity and judgment was void where complaint was signed by layperson on behalf of corporation).

The prohibition against the unauthorized practice of law does not differentiate between pretrial and trial practice. Marken, 56 Ill. App. 3d 426. This strict rule preventing a layperson from representing another party operates to void the judgment even where the lay agent merely files the complaint under his or her signature and all subsequent appearances are made by a duly licensed attorney. Housing Authority v. Tonsul, 115 Ill. App. 3d 739, 740 (1983); see Fruin v. Northwestern Medical Faculty Foundation, Inc., 194 Ill. App. 3d 1061 (1990) (medical malpractice complaint signed by Wisconsin lawyer not licensed in Illinois was not unique circumstance justifying deviation from strict rule). In Tonsul, the complaint of the plaintiff housing authority was prepared, signed, and filed by a non-attorney agent. These acts amounted to the ...

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